SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 28, 2000
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NOVOSTE CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 0-20727 59-2787476
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification)
3890 Steve Reynolds Blvd., Norcross, GA 30093
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 717-0904
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On March 31, 2000, Novoste Corporation (the "Registrant") completed the
sale of 1,313,500 shares of its common stock at a price of $35.00 per share to a
group of Institutional Investors (the "Investors") which resulted in gross
proceeds to the Registrant of approximately $46 million. U.S. Bancorp Piper
Jaffray served as the placement agent to the Investors. The sale of shares to
the Investors was made pursuant to a securities purchase agreement, dated as of
March 28, 2000, between the Registrant and the Investors (the "Purchase
Agreement"). The Purchase Agreement also provides for the sale to the Investors
of 186,500 shares of common stock by selling shareholders comprised of certain
directors and executive officers (or their affiliates) of the Registrant. The
sale of shares under the Purchase Agreement is exempt from the registration
requirements under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to Section 4(2) of the Securities Act and Rule 506 of Regulation
D. The Purchase Agreement contains customary representations and warranties of
the Registrant, the selling shareholders and the Investors.
Contemporaneously with the execution of the Purchase Agreement, the
Registrant and the Investors entered into a registration rights agreement, dated
as of March 28, 2000 (the "Registration Rights Agreement"). The Registration
Rights Agreement provides, among other things, that the Registrant will file a
registration statement covering the resale of the shares sold under the Purchase
Agreement within 15 business days from the closing. The Registration Rights
Agreement also grants piggyback registration rights to the Investors in the
event that the registration statement covering resale of the shares sold under
the Purchase Agreement is not effective and the Registrant subsequently files a
registration statement for itself, or for the account of others, during the
period set forth therein.
A copy of the press release announcing the completion of the sale is
attached as Exhibit 99.1 and incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c)
Exhibit 4.20 Registration Rights Agreement dated as of March 28, 2000
by and among Novoste Corporation and the investors listed
on the signature pages thereto.
Exhibit 10.27 Securities Purchase Agreement dated as of March 28, 2000
by and among Novoste Corporation and the investors listed
on the signature pages thereto.
Exhibit 99.1 Press Release dated April 4, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April 6, 2000
NOVOSTE CORPORATION
(Registrant)
By: /S/ WILLIAM A. HAWKINS
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William A. Hawkins
Chief Executive Officer
Exhibit 4.20
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of March 28, 2000 (this
"Agreement"), is made by and among NOVOSTE CORPORATION, a Florida corporation,
with headquarters located at 3890 Steve Reynolds Boulevard, Norcross, GA 30093
(the "Company"), and the investors named on the signature pages hereto (the
"Initial Investors").
RECITALS:
A. In connection with the Securities Purchase Agreement dated March 28,
2000 between the Initial Investors and the Company (the "Purchase Agreement"),
the Company and the selling shareholders named therein have agreed, upon the
terms and subject to the conditions of the Purchase Agreement, to sell to the
Initial Investors 1,500,000 shares of the Company's Common Stock (the "Common
Shares").
B. In order to induce the Initial Investors to execute and deliver the
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act and applicable state securities laws with
respect to the Common Shares.
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Initial Investors hereby agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not otherwise defined herein have the
respective meanings given them set forth in the Purchase Agreement. In addition,
as used in this Agreement, the following terms have the following meanings:
1.1 "Common Shares" means the shares of Common Stock sold pursuant to the
Purchase Agreement.
1.2 "Investors" means the Initial Investors and any of their transferees
or assignees who agree to become bound by the provisions of this Agreement in
accordance with Article IX hereof.
1.3 "Registrable Securities" means the Common Shares sold pursuant to the
Purchase Agreement and any shares of capital stock issued or issuable from time
to time (with any adjustments) in exchange for or otherwise with respect to the
Common Shares.
1.4 "Registration Period" means the period between the date of this
Agreement and the earlier of (i) the date on which all of the Registrable
Securities have been sold by the Initial Investors and no further Registrable
Securities may be issued in the future, (ii) the date on which all the
Registrable Securities (in the opinion of the Investors' counsel) may be
immediately sold by the Initial Investors without registration and without
restriction (including without limitation as to volume by each holder thereof)
as to the number of Registrable Securities to be sold, pursuant to Rule 144(k)
or otherwise, or (iii) the second anniversary of the date of this Agreement.
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1.5 "Registration Statement" means a Registration Statement of the Company
filed under the Securities Act.
1.6 The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
statements in compliance with the Securities Act and pursuant to Rule 415 and
the declaration or ordering of effectiveness of such Registration Statement by
the SEC.
1.7 "Rule 415" means Rule 415 under the Securities Act, or any successor
Rule providing for offering securities on a continuous basis, and applicable
rules and regulations thereunder.
ARTICLE II
REGISTRATION
2.1 Mandatory Registration. The Company will use best efforts to file with
the SEC a Registration Statement on Form S-3 registering the Registrable
Securities for resale within 15 business days after the Closing Date of the
purchase of the Common Shares under the Purchase Agreement. If Form S-3 is not
available at that time, then the Company will file a Registration Statement on
such form as is then available to effect a registration of the Registrable
Securities, subject to the consent of the Initial Investors, which consent will
not be unreasonably withheld.
2.2 Effectiveness of the Registration Statement. The Company will use its
best efforts to cause the Registration Statement to be declared effective by the
SEC as soon as practicable after filing, and in any event no later than the 45th
day after the Closing Date (the "Required Effective Date"). However, so long as
the Company filed the Registration Statement within 15 business days after the
Closing Date, if the Registration Statement receives SEC review, then the
Required Effective Date will be the 75th day after the Closing Date. The
Company's best efforts will include, but will not be limited to, promptly
responding to all comments received from the staff of the SEC. If the Company
receives notification from the SEC that the Registration Statement will receive
no action or review from the SEC, then the Company will cause the Registration
Statement to become effective within five business days after such SEC
notification. Once the Registration Statement is declared effective by the SEC,
the Company will cause the Registration Statement to remain effective throughout
the Registration Period, except as permitted under Section 3.
2.3 Payments by the Company. If (i) at any time after effectiveness of the
Registration Statement, sales cannot be made thereunder for any reason, other
than suspension of effectiveness of the Registration Statement as described in
Section 3.6, for a period of more than 10 consecutive business days, or 30 days
in the aggregate, during any 12-month period or (ii) the Common Stock is not
listed or included for quotation on Nasdaq, Nasdaq SmallCap, the NYSE or AMEX
for more than an aggregate of 10 business days in any 12-month period, then the
Company will thereafter make cash payments to each Investor as partial
compensation for such delay. The amount of the cash payment made to each
Investor will be equal to 1% of the purchase price paid for the Common Shares
purchased by the Investor and not previously sold by the Investor for each
30-day period following the Effective Date that sales cannot be made under the
effective Registration Statement or the Common Stock is not listed or included
for quotation on Nasdaq, Nasdaq SmallCap, the NYSE or AMEX. These payments will
be prorated on a daily basis during each 30 day period and will be paid to each
Investor in cash within five business days following the end of each month after
the 20th day that sales could not be made.
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2.4 Effect of Late Registration. If the Registration Statement has not
been declared effective by the Required Effective Date, then the Company will
make cash payments to each Investor as partial compensation for such delay (the
"Late Registration Payments"). The Late Registration Payments will be equal to
1% of the purchase price paid for the Common Shares purchased by such Investor
and not previously sold by such Investor for each 30-day period after the
Required Effective Date. The Late Registration Payments will be prorated on a
daily basis during each 30 day period and will be paid to the Initial Investors
in cash within five business days after the earlier of (i) the end of each
applicable 30-day period following the Required Effective Date or (ii) the
effective date of the Registration Statement. Nothing herein limits any
Investor's right to pursue actual damages for the Company's failure to file a
Registration Statement or to have it declared effective by the SEC on or prior
to the Required Effective Date in accordance with the terms of this Agreement.
2.5 Piggyback Registrations.
(a) If, at any time prior to the expiration of the Registration
Period, a Registration Statement is not effective with respect to all of the
Registrable Securities and the Company decides to register any of its securities
for its own account or for the account of others, then the Company will promptly
give the Investors written notice thereof and will use its best efforts to
include in such registration all or any part of the Registrable Securities
requested by such Investors to be included therein (excluding any Registrable
Securities previously included in a Registration Statement). This requirement
does not apply to Company registrations on Form S-4 or S-8 or their equivalents
relating to equity securities to be issued solely in connection with an
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans. Each Investor must
give its request for registration under this paragraph to the Company in writing
within 15 days after receipt from the Company of notice of such pending
registration. If the registration for which the Company gives notice is a public
offering involving an underwriting, the Company will so advise the Investors as
part of the above-described written notice. In that event, if the managing
underwriter(s) of the public offering impose a limitation on the number of
shares of Common Stock that may be included in the Registration Statement
because, in such underwriter(s)' judgment, such limitation would be necessary to
effect an orderly public distribution, then the Company will be obligated to
include only such limited portion, if any, of the Registrable Securities with
respect to which such Investors have requested inclusion hereunder. Any
exclusion of Registrable Securities will be made pro rata among all holders of
the Company's securities seeking to include shares of Common Stock in proportion
to the number of shares of Common Stock sought to be included by those holders.
However, the Company will not exclude any Registrable Securities unless the
Company has first excluded all outstanding securities the holders of which are
not entitled by right to inclusion of securities in such Registration Statement
or are not entitled pro rata inclusion with the Registrable Securities.
(b) No right to registration of Registrable Securities under this
Section 2.5 limits in any way the registration required under Section 2.1 above.
The obligations of the Company under this Section 2.5 expire upon the earlier of
(i) the effectiveness of the Registration Statement filed pursuant to Section
2.1 above, (ii) after the Company has afforded the opportunity for the Investors
to exercise registration rights under this Section 2.5 for two registrations
(provided, however, that any Investor that has had any Registrable Securities
excluded from any Registration Statement in accordance with this Section 2.5 may
include in any additional Registration Statement filed by the Company the
Registrable Securities so excluded), (iii) when all of the Registrable
Securities held by
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any Investor may be sold by such Investor under Rule 144(k) without being
subject to any volume restrictions, or (iv) the second anniversary of the date
of this Agreement.
2.6 Eligibility to use Form S-3. The Company represents and warrants that
it meets the requirements for the use of Form S-3 for registration of the sale
by the Investors of the Registrable Securities. The Company will file all
reports required to be filed by the Company with the SEC in a timely manner so
as to preserve its eligibility for the use of Form S-3.
ARTICLE III
ADDITIONAL OBLIGATIONS OF THE COMPANY
3.1 Continued Effectiveness of Registration Statement. Subject to the
limitations set forth in Section 3.6, the Company will use its best efforts to
keep the Registration Statement covering the Registrable Securities effective
under Rule 415 at all times during the Registration Period. In the event that
the number of shares available under a Registration Statement filed pursuant to
this Agreement is insufficient to cover all of the Registrable Securities
issued, the Company will (if permitted) amend the Registration Statement or file
a new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover all of the Registrable Securities. The
Company will file such amendment or new Registration Statement as soon as
practicable, but in no event later than 30 business days after the necessity
therefor arises (based upon the market price of the Common Stock and other
relevant factors on which the Company reasonably elects to rely). The Company
will use its best efforts to cause such amendment or new Registration Statement
to become effective as soon as is practicable after the filing thereof, but in
no event later than 90 days after the date on which the Company reasonably first
determines (or reasonably should have determined) the need therefor.
3.2 Accuracy of Registration Statement. Any Registration Statement
(including any amendments or supplements thereto and prospectuses contained
therein) filed by the Company covering Registrable Securities will not contain
any 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 in which they were made, not misleading. The Company
will prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to permit
sales pursuant to the Registration Statement at all times during the
Registration Period, and, during such period, will comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by the Registration Statement until the termination of
the Registration Period, or if earlier, until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in the
Registration Statement.
3.3 Furnishing Documentation. The Company will furnish to each Investor
whose Registrable Securities are included in a Registration Statement, or to its
legal counsel, (a) promptly after each document is prepared and publicly
distributed, filed with the SEC or received by the Company, one copy of any
Registration Statement filed pursuant to this Agreement and any amendments
thereto, each preliminary prospectus and final prospectus and each amendment or
supplement thereto; and (b) a number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements thereto, and such
other documents as the Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by the Investor. The Company
will immediately notify by facsimile each Investor whose Registrable
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Securities are included in any Registration Statement of the effectiveness of
the Registration Statement and any post-effective amendment.
3.4 Additional Obligations. The Company will use its best efforts to (a)
register and qualify the Registrable Securities covered by a Registration
Statement under such other securities or blue sky laws of such jurisdictions as
each Investor who holds (or has the right to hold) Registrable Securities being
offered reasonably requests, (b) prepare and file in those jurisdictions any
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain their
effectiveness during the Registration Period, (c) take any other actions
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period, and (d) take any other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions. Notwithstanding the foregoing, the Company is not required, in
connection such obligations, to (i) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 3.4,
(ii) subject itself to general taxation in any such jurisdiction, (iii) file a
general consent to service of process in any such jurisdiction where it has not
so consented, (iv) provide any undertakings that cause material expense or
burden to the Company, or (v) make any change in its charter or bylaws, which in
each case the Board of Directors of the Company determines to be contrary to the
best interests of the Company and its stockholders.
3.5 Underwritten Offerings. If the Investors who hold a majority in
interest of the Registrable Securities being offered in an offering pursuant to
a Registration Statement or any amendment or supplement thereto under this
Agreement select underwriters reasonably acceptable to the Company for such
offering, the Company will enter into and perform its obligations under an
underwriting agreement in usual and customary form including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering.
3.6 Suspension of Registration.
(a) The Company will notify (by telephone and also by facsimile and
reputable overnight courier) each Investor who holds Registrable Securities
being sold pursuant to a Registration Statement of the happening of any event of
which the Company has knowledge as a result of which the prospectus included in
the Registration Statement as then in effect includes an untrue statement of a
material fact or omits 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. The Company will make such notification as
promptly as practicable after the Company becomes aware of the event (but in no
event, without the prior written consent of the Investor, will the Company
disclose to any Investor any of the facts or circumstances regarding the event),
will promptly (but in no event more than ten business days) prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and will deliver a number of copies of such supplement or amendment to
each Investor as such Investor may reasonably request.
(b) Notwithstanding the obligations under Section 3.6(a), if in the
good faith judgment of the Company, following consultation with legal counsel,
it would be detrimental to the Company and its stockholders for resales of
Registrable Securities to be made pursuant to the Registration Statement due to
(i) the existence of a material development or potential material development
involving the Company which the Company would be obligated to disclose in the
Registration Statement, which disclosure would be premature or otherwise
inadvisable at such time
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or would have a Material Adverse Effect upon the Company and its stockholders,
or (ii) in the good faith judgment of the Company's Board of Directors, it would
adversely affect or require premature disclosure of the filing of a
Company-initiated registration of any class of its equity securities, the
Company will have the right to suspend the use of the Registration Statement for
a period of not more than ninety days, provided, however, that the Company may
so defer or suspend the use of the Registration Statement no more than one time
in any twelve-month period, and provided, further, that after deferring or
suspending the use of the Registration Statement, the Company may not again
defer or suspend the use of the Registration Statement until a period of thirty
days has elapsed after resumption of the use of the Registration Statement.
(c) Subject to the Company's rights under this Section 3, the
Company will use its best efforts to prevent the issuance of any stop order or
other suspension of effectiveness of a Registration Statement and, if such an
order is issued, will use its best efforts to obtain the withdrawal of such
order at the earliest possible time and to notify each Investor that holds
Registrable Securities being sold (or, in the event of an underwritten offering,
the managing underwriters) of the issuance of such order and the resolution
thereof.
(d) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, if the use of the Registration Statement is suspended by
the Company, the Company will promptly give notice of the suspension to all
Investors whose securities are covered by the Registration Statement, and will
promptly notify each such Investor as soon as the use of the Registration
Statement may be resumed. Notwithstanding anything to the contrary contained
herein or in the Purchase Agreement, the Company will cause the Transfer Agent
to deliver unlegended shares of Common Stock to a transferee of an Investor in
accordance with the terms of the Purchase Agreement in connection with any sale
of Registrable Securities with respect to which such Investor has entered into a
contract for sale prior to receipt of notice of such suspension and for which
such Investor has not yet settled.
3.7 Review by the Investors. The Company will permit a single firm of
legal counsel, designated by the Investors who hold a majority in interest of
the Registrable Securities being sold pursuant to a Registration Statement, to
review the Registration Statement and all amendments and supplements thereto (as
well as all requests for acceleration or effectiveness thereof) a reasonable
period of time prior to their filing with the SEC, and will not file any
document in a form to which such counsel reasonably objects, unless otherwise
required by law in the opinion of the Company's counsel. The sections of any
such Registration Statement including information with respect to the Investors,
the Investors' beneficial ownership of securities of the Company or the
Investors' intended method of disposition of Registrable Securities must conform
to the information provided to the Company by each of the Investors.
3.8 Comfort Letter; Legal Opinion. At the request of the Investors who
hold a majority in interest of the Registrable Securities being sold pursuant to
a Registration Statement, and on the date that Registrable Securities are
delivered to an underwriter for sale in connection with the Registration
Statement, the Company will furnish to the Investors and the underwriters (i) a
letter, dated such date, from the Company's independent certified public
accountants, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters; and (ii) an opinion, dated such date, from
counsel representing the Company for purposes of the Registration Statement, in
form and substance as is customarily given in an underwritten public offering,
addressed to the underwriters and Investors.
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3.9 Due Diligence; Confidentiality.
(a) The Company will make available for inspection by any Investor
whose Registrable Securities are being sold pursuant to a Registration
Statement, any underwriter participating in any disposition pursuant to the
Registration Statement, and any attorney, accountant or other agent retained by
any such Investor or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as each Inspector reasonably deems
necessary to enable the Inspector to exercise its due diligence responsibility.
The Company will cause its officers, directors and employees to supply all
information that any Inspector may reasonably request for purposes of performing
such due diligence.
(b) Each Inspector will hold in confidence, and will not make any
disclosure (except to an Investor) of, any Records or other information that the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction, (iii) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement (to the
knowledge of the relevant Inspector), (iv) the Records or other information was
developed independently by an Inspector without breach of this Agreement, (v)
the information was known to the Inspector before receipt of such information
from the Company, or (vi) the information was disclosed to the Inspector by a
third party without restriction. The Company is not required to disclose any
confidential information in the Records to any Inspector unless and until such
Inspector has entered into a confidentiality agreement (in form and substance
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3.9. Each Investor will, upon learning
that disclosure of Records containing confidential information is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential. Nothing herein will be
deemed to limit the Investor's ability to sell Registrable Securities in a
manner that is otherwise consistent with applicable laws and regulations.
(c) The Company will hold in confidence, and will not make any
disclosure of, information concerning an Investor provided to the Company under
this Agreement unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent
jurisdiction, (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement (v) the information was disclosed to the Company by a third party
without restriction or (vi) such Investor consents to the form and content of
any such disclosure. If the Company learns that disclosure of such information
concerning an Investor is sought in or by a court or governmental body of
competent jurisdiction or through other means, the Company will give prompt
notice to such Investor prior to making such disclosure and allow such Investor,
at its expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, such information.
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3.10 Listing. The Company will (i) cause all of the Registrable Securities
covered by each Registration Statement to be listed on each national securities
exchange on which securities of the same class or series issued by the Company
are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) to the extent the securities
of the same class or series are not then listed on a national securities
exchange, secure the designation and quotation of all of the Registrable
Securities covered by each Registration Statement on Nasdaq and, without
limiting the generality of the foregoing, arrange for at least two market makers
to register with the National Association of Securities Dealers, Inc. as such
with respect to such Registrable Securities.
3.11 Transfer Agent; Registrar. The Company will provide a transfer agent
and registrar, which may be a single entity, for the Registrable Securities not
later than the effective date of the Registration Statement.
3.12 Share Certificates. The Company will cooperate with the Investors who
hold Registrable Securities being sold and with the managing underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing Registrable Securities to be
offered pursuant to a Registration Statement and will enable such certificates
to be in such denominations or amounts as the case may be, and registered in
such names as the Investors or the managing underwriter(s), if any, may
reasonably request, all in accordance with Article V of the Purchase Agreement.
3.13 Plan of Distribution. At the request of the Investors holding a
majority in interest of the Registrable Securities registered pursuant to a
Registration Statement, the Company will promptly prepare and file with the SEC
such amendments (including post-effective amendments) and supplements to the
Registration Statement, and the prospectus used in connection with the
Registration Statement, as may be necessary in order to change the plan of
distribution set forth in such Registration Statement.
3.14 Securities Laws Compliance. The Company will comply with all
applicable laws related to any Registration Statement relating to the sale of
Registrable Securities and to offering and sale of securities and with all
applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act, the Exchange Act
and the rules and regulations promulgated by the SEC).
3.15 Further Assurances. The Company will take all other reasonable
actions as any Investor or the underwriters, if any, may reasonably request to
expedite and facilitate disposition by such Investor of the Registrable
Securities pursuant to the Registration Statement.
ARTICLE IV
OBLIGATIONS OF THE INVESTORS
4.1 Investor Information. As a condition to the obligations of the Company
to complete any registration pursuant to this Agreement with respect to the
Registrable Securities of each Investor, such Investor will furnish to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it
as is reasonably required by the Company to effect the registration of the
Registrable Securities. At least 10 business days prior to the first anticipated
filing date of a Registration Statement for any registration under this
Agreement, the Company will notify each Investor of the information the
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Company requires from that Investor if the Investor elects to have any of its
Registrable Securities included in the Registration Statement. If, within three
business days prior to the filing date, the Company has not received the
requested information from an Investor, then the Company may file the
Registration Statement without including Registrable Securities of that
Investor.
4.2 Further Assurances. Each Investor will cooperate with the Company, as
reasonably requested by the Company, in connection with the preparation and
filing of any Registration Statement hereunder, unless such Investor has
notified the Company in writing of such Investor's election to exclude all of
such Investor's Registrable Securities from the Registration Statement.
4.3 Suspension of Sales. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.6, each Investor
will immediately discontinue disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until it
receives copies of the supplemented or amended prospectus contemplated by
Section 3.6. If so directed by the Company, each Investor will deliver to the
Company (at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Investor's possession (other than
a limited number of file copies) of the prospectus covering such Registrable
Securities that is current at the time of receipt of such notice.
4.4 Underwritten Offerings.
(a) If Investors holding a majority in interest of the Registrable
Securities being registered (with the approval of the Initial Investors)
determine to engage the services of an underwriter, each Investor will enter
into and perform such Investor's obligations under an underwriting agreement, in
usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering, and will take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Registrable Securities,
unless such Investor has notified the Company in writing of such Investor's
election to exclude all of its Registrable Securities from such Registration
Statement.
(b) Without limiting any Investor's rights under Section 2.1 hereof,
no Investor may participate in any underwritten distribution hereunder unless
such Investor (a) agrees to sell such Investor's Registrable Securities on the
basis provided in any underwriting arrangements approved by the Investors
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (c) agrees to pay its pro rata share of all underwriting
discounts and commissions and other fees and expenses of investment bankers and
any manager or managers of such underwriting, and legal expenses of the
underwriter, applicable with respect to its Registrable Securities, in each case
to the extent not payable by the Company under the terms of this Agreement.
ARTICLE V
EXPENSES OF REGISTRATION
The Company will bear all reasonable expenses, other than underwriting
discounts and commissions, and transfer taxes, if any, incurred in connection
with registrations, filings or qualifications pursuant to Articles II and III of
this Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, the fees and disbursements
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of counsel for the Company, and the reasonable fees and disbursements of one
firm of legal counsel selected by the Initial Investors pursuant to Section 3.7
hereof.
ARTICLE VI
INDEMNIFICATION
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify and hold
harmless each Investor that holds such Registrable Securities, any underwriter
(as defined in the Securities Act) for the Investors, any directors or officers
of such Investor or such underwriter and any person who controls such Investor
or such underwriter within the meaning of the Securities Act or the Exchange Act
(each, an "Indemnified Person") against any losses, claims, damages, expenses or
liabilities (joint or several) (collectively, and together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened in respect thereof, "Claims") to which any of
them become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims arise out of or are based upon any of the following
statements, omissions or violations in a Registration Statement (including any
exhibits or schedules thereto) filed pursuant to this Agreement, any amendment
or supplement thereof or any prospectus (preliminary or final) included therein:
(a) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment or supplement thereof
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(b) any untrue statement or alleged untrue statement of a material fact
contained in the prospectus (as it may be amended or supplemented) or the
omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (c) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act or any other
law, including without limitation any state securities law or any rule or
regulation thereunder (the matters in the foregoing clauses (a) through (c)
being, collectively, "Violations"). Subject to the restrictions set forth in
Section 6.3 with respect to the number of legal counsel, the Company will
reimburse the Investors and each such underwriter or controlling person and each
such other Indemnified Person, promptly as such expenses are incurred and are
due and payable, for any legal fees or other reasonable expenses incurred by
them in connection with investigating or defending any Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6.1 (i) does not apply to a Claim arising out of or
based upon a Violation that occurs in reliance upon and in conformity with
information furnished in writing to the Company by any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement (including any exhibits or schedules thereto) or any such amendment
thereof or supplement thereto, if such prospectus was timely made available by
the Company pursuant to Section 3.3 hereof; and (ii) does not apply to amounts
paid in settlement of any Claim if such settlement is made without the prior
written consent of the Company, which consent will not be unreasonably withheld.
This indemnity obligation will remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Persons and will survive
the transfer of the Registrable Securities by the Investors under Article IX of
this Agreement.
6.2 In connection with any Registration Statement in which an Investor is
participating, each such Investor will indemnify and hold harmless, to the same
extent and in the same manner set forth in Section 6.1 above, the Company, each
of its directors, each of its officers who signs the
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Registration Statement, each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act, and any other stockholder
selling securities pursuant to the Registration Statement or any of its
directors or officers or any person who controls such stockholder within the
meaning of the Securities Act or the Exchange Act (each an "Indemnified Person")
against any Claim to which any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Investor expressly for use in
connection with such Registration Statement. Subject to the restrictions set
forth in Section 6.3, such Investor will promptly reimburse any legal or other
expenses (promptly as such expenses are incurred and due and payable) reasonably
incurred by them in connection with investigating or defending any such Claim.
However, the indemnity agreement contained in this Section 6.2 does not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent will not be
unreasonably withheld, and no Investor will be liable under this Agreement
(including this Section 6.2 and Article VII) for the amount of any Claim that
exceeds the net proceeds actually received by such Investor as a result of the
sale of Registrable Securities pursuant to such Registration Statement. This
indemnity will remain in full force and effect regardless of any investigation
made by or on behalf of an Indemnified Party and will survive the transfer of
the Registrable Securities by the Investors under Article IX of this Agreement.
6.3 Promptly after receipt by an Indemnified Person under this Article VI
of notice of the commencement of any action (including any governmental action),
such Indemnified Person will, if a Claim in respect thereof is to be made
against any indemnifying party under this Article VI, deliver to the
indemnifying party a written notice of the commencement thereof. The
indemnifying party may participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly given notice,
assume control of the defense thereof with counsel mutually satisfactory to the
indemnifying parties and the Indemnified Person. In that case, the indemnifying
party will diligently pursue such defense. If, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by such counsel
of the Indemnified Person and the indemnifying party would be inappropriate due
to actual or potential conflicts of interest between the Indemnified Person and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action including the
Indemnified Person, and any such Indemnified Person reasonably determines that
there may be legal defenses available to such Indemnified Person that are
different from or in addition to those available to the indemnifying party, then
the Indemnified Person is entitled to assume such defense and may retain its own
counsel, with the fees and expenses to be paid by the indemnifying party. The
Company will pay for only one separate legal counsel for the Investors
collectively, and such legal counsel will be selected by the Investors holding a
majority in interest of the Registrable Securities. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action does not relieve an indemnifying party of any
liability to an Indemnified Person under this Article VI, except to the extent
that the indemnifying party is prejudiced in its ability to defend such action.
The indemnification required by this Article VI will be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable.
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ARTICLE VII
CONTRIBUTION
To the extent that any indemnification provided for herein is prohibited
or limited by law, the indemnifying party will make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Article
VI to the fullest extent permitted by law. However, (a) no contribution will be
made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Article VI, (b) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and (c) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Registrable Securities
will be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
ARTICLE VIII
EXCHANGE ACT REPORTING
In order to make available to the Investors the benefits of Rule 144 or
any similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of the Company to the public without registration,
the Company will:
(a) File with the SEC in a timely manner, and make and keep
available, all reports and other documents required of the Company under the
Securities Act and the Exchange Act so long as the Company remains subject to
such requirements (it being understood that nothing herein limits the Company's
obligations under Section 4.3 of the Purchase Agreement) and the filing and
availability of such reports and other documents is required for the applicable
provisions of Rule 144; and
(b) Furnish to each Investor, so long as such Investor holds
Registrable Securities, promptly upon the Investor's request, (i) a written
statement by the Company that it has complied with the reporting requirements of
Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents filed by the Company with the SEC and (iii) such other information as
may be reasonably requested to permit the Investors to sell such securities
pursuant to Rule 144 without registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of the Investors hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, will be
automatically assigned by the Investors to transferees or assignees of all or
any portion of the Registrable Securities, but only if (a) the Investor agrees
in writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment, (b) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned, (c) after such transfer
or assignment, the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and applicable state securities
laws, (d) at or before the time the Company received the written notice
contemplated
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by clause (b) of this sentence, the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained herein, (e) such
transfer is made in accordance with the applicable requirements of the Purchase
Agreement, and (f) the transferee is an "accredited investor" as that term is
defined in Rule 501 of Regulation D.
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
This Agreement may be amended and the obligations hereunder may be waived
(either generally or in a particular instance, and either retroactively or
prospectively) only with the written consent of the Company and of the Investors
who then hold at least 66 2/3% of the Registrable Securities (but not including
any Investor who is not affected by such amendment or waiver). Any amendment or
waiver effected in accordance with this Article X is binding upon each Investor
and the Company. Notwithstanding the foregoing, no amendment or waiver will
retroactively affect any Investor without its consent, or will prospectively
adversely affect any Investor who no longer owns any Registrable Securities
without its consent. Neither Article VI nor Article VII hereof may be amended or
waived in a manner adverse to an Investor without its consent.
ARTICLE XI
MISCELLANEOUS
11.1 Conflicting Instructions. A person or entity is deemed to be a holder
of Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
11.2 Notices. Any notices required or permitted to be given under the
terms of this Agreement will be given as set forth in the Purchase Agreement.
11.3 Waiver. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, does not operate as a waiver thereof.
11.4 Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of New York without regard to the
principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby.
11.5 Severability. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or unenforceable under any law will
not affect the validity or enforceability of any other provision hereof.
11.6 Entire Agreement. This Agreement and the Purchase Agreement
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or
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undertakings, other than those set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
11.7 Successors and Assigns. Subject to the requirements of Article IX
hereof, this Agreement inures to the benefit of and is binding upon the
successors and assigns of each of the parties hereto. Notwithstanding anything
to the contrary herein, including, without limitation, Article IX, the rights of
an Investor hereunder are assignable to and exercisable by a bona fide pledgee
of the Registrable Securities in connection with an Investor's margin or
brokerage accounts.
11.8 Use of Pronouns. All pronouns refer to the masculine, feminine or
neuter, singular or plural, as the context may require.
11.9 Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and do not affect its
interpretation.
11.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which is deemed an original but all of which constitute
one and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission, and facsimile
signatures are binding on the parties hereto.
11.11 Further Assurances. Each party will do and perform, or cause to be
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.12 Consents. All consents and other determinations to be made by the
Investors pursuant to this Agreement will be made by the Initial Investors or
the Investors holding at least 66 2/3% of the Registrable Securities.
11.13 No Strict Construction. The language used in this Agreement is
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
IN WITNESS WHEREOF, the undersigned Investors and the Company have caused
this Agreement to be duly executed as of the date first above written.
NOVOSTE CORPORATION:
By: _______________________________________
Name:
Title:
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OMNIBUS SIGNATURE PAGE TO
NOVOSTE CORPORATION
REGISTRATION RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Registration Rights
Agreement to which this Signature Page is attached, which, together with all
counterparts of the Agreement and Signature Pages of the other parties named in
said Agreement, shall constitute one and the same document in accordance with
the terms of the Agreement.
Sign Name: ______________________________
Print Name: ______________________________
Address: ______________________________
______________________________
______________________________
Telephone: ______________________________
Facsimile: ______________________________
15
Exhibit 10.27
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of March
28, 2000 is made by and among NOVOSTE CORPORATION, Florida corporation, with
headquarters located at 3890 Steve Reynolds Boulevard, Norcross, GA 30093 (the
"Company"), the selling shareholders of the Company named on the signature pages
hereto (the "Selling Shareholders") and the investors named on the signature
pages hereto, together with their permitted transferees (the "Investors").
RECITALS:
A. The Company, the Selling Shareholders and the Investors are executing
and delivering this Agreement in reliance upon the exemption from securities
registration afforded by Section 4(2) of the Securities Act and Rule 506 under
Regulation D.
B. The Investors desire, upon the terms and conditions stated in this
Agreement, to purchase shares of the Company's Common Stock, for an aggregate
purchase price of $52,500,000. The purchase price per share of the Common Stock
is $35.00.
C. Contemporaneously with the execution and delivery of this Agreement,
the Company and the Investors are executing and delivering a Registration Rights
Agreement under which the Company has agreed to provide certain registration
rights under the Securities Act, the rules and regulations promulgated
thereunder and applicable state securities laws.
D. The capitalized terms used herein and not otherwise defined have the
meanings given them in Article X hereof.
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Investors hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale of Securities. At the Closing, subject to the terms
of this Agreement and the satisfaction or waiver of the conditions set forth in
Articles VII and VIII hereof, the Company will issue and sell, and the Selling
Shareholders (on a several and not a joint basis) will sell, to each Investor,
and each Investor will (on a several and not a joint basis) purchase from the
Company and the Selling Shareholders, the number of shares of Common Stock set
forth beneath such Investor's name on the signature pages hereof. Schedule I
sets forth the total number of shares of Common Stock being issued and sold by
the Company and being sold by the Selling Shareholders pursuant to this
Agreement. Subject to adjustment to eliminate fractional shares, the number of
shares of Common Stock being purchased by each Investor from the Company and
from each Selling Shareholder shall bear the same ratio to the total number of
shares being sold by the Company and such Selling Shareholder as the total
number of shares of Common Stock being purchased by such Investor bears to the
total number of shares being purchased hereunder by all Investors.
1.2 Payment. Each Investor will pay the purchase price for the number of
Securities set forth beneath its name on the signature pages hereof, by wire
transfer of immediately available funds
<PAGE>
in accordance with the Company's and the Selling Shareholders' written wire
instructions, upon delivery by the Company and the Selling Shareholders to each
Investor of certificates representing the Securities so purchased by such
Investor and the Company and the Selling Shareholders will deliver such
certificates against delivery of the purchase price as described above.
1.3 Closing Date. Subject to the satisfaction or waiver of the conditions
set forth in Articles VII and VIII hereof, the Closing will take place at 10:00
a.m., New York City Time on March 31, 2000 or at another date or time agreed
upon by the parties to this Agreement (the "Closing Date"). The Closing will be
held at the offices of Dorsey & Whitney LLP, 250 Park Avenue, New York, New York
10177 or at such other place as the parties agree.
ARTICLE II
INVESTOR'S REPRESENTATIONS AND WARRANTIES
Each Investor represents and warrants to the Company and the Selling
Shareholders, severally and solely with respect to itself and its purchase
hereunder and not with respect to any other Investor, that:
2.1 Investment Purpose. The Investor is purchasing the Securities for its
own account and not with a present view toward the public sale or distribution
thereof, except pursuant to sales registered or exempted from registration under
the Securities Act; provided, however, that by making the representation herein,
the Investor does not agree to hold any of the Securities for any minimum or
other specific term and reserves the right to dispose of the Securities at any
time in accordance with or pursuant to a registration statement or an exemption
under the Securities Act.
2.2 Accredited Investor Status. The Investor is an "accredited investor"
as defined in Rule 501(a) of Regulation D. The Investor has delivered an
Investor Questionnaire in the form of Exhibit A to the Company and to U.S.
Bancorp Piper Jaffray Inc.
2.3 Reliance on Exemptions. The Investor understands that the Securities
are being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Investor's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of the Investor to acquire
the Securities.
2.4 Information. The Investor and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company, and materials relating to the offer and sale of the Securities,
that have been requested by the Investor or its advisors, if any. The Investor
and its advisors, if any, have been afforded the opportunity to ask questions of
the Company. Neither such inquiries nor any other due diligence investigation
conducted by Investor or any of its advisors or representatives modify, amend or
affect the Investor's right to rely on the Company's representations and
warranties contained in Article III below. The Investor acknowledges and
understands that its investment in the Securities involves a significant degree
of risk, including the risks reflected in the SEC Documents, copies of which
have been made available to the Investor.
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2.5 Governmental Review. The Investor understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities or an
investment therein.
2.6 Transfer or Resale. The Investor understands that:
(a) except as provided in the Registration Rights Agreement, the
Securities have not been and are not being registered under the Securities Act
or any applicable state securities laws and, consequently, the Investor may have
to bear the risk of owning the Securities for an indefinite period of time
because the Securities may not be transferred unless (i) the resale of the
Securities is registered pursuant to an effective registration statement under
the Securities Act; (ii) the Investor has delivered to the Company an opinion of
counsel (in form, substance and scope customary for opinions of counsel in
comparable transactions) to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration; (iii) the Securities are sold or transferred pursuant to Rule 144
or (iv) the Securities are sold or transferred to an affiliate (as defined in
Rule 144) of the Investor;
(b) any sale of the Securities made in reliance on Rule 144 may be
made only in accordance with the terms of Rule 144 and, if Rule 144 is not
applicable, any resale of the Securities under circumstances in which the seller
(or the person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the SEC
thereunder; and
(c) except as set forth in the Registration Rights Agreement,
neither the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder.
2.7 Legends. The Investor understands that until such time as provided in
Section6.2, the certificates representing the Securities will bear a restrictive
legend in substantially the following form (and a stop-transfer order may be
placed against transfer of the certificates for such Securities):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD OR
TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
2.8 Authorization; Enforcement. This Agreement and the Registration Rights
Agreement have been duly and validly authorized, executed and delivered on
behalf of the Investor and are valid and binding agreements of the Investor
enforceable in accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and the application of general
principles of equity.
2.9 Residency. The Investor is a resident of the jurisdiction set forth
immediately below such Investor's name on the signature pages hereto.
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2.10 Acknowledgements Regarding Placement Agent. Investor acknowledges
that U.S. Bancorp Piper Jaffray Inc. is acting as placement agent (the
"Placement Agent") for the Securities being offered hereby and will be
compensated by the Company and the Selling Shareholders for acting in such
capacity. Investor further acknowledges that the Placement Agent has acted
solely as placement agent in connection with the offering of the Securities by
the Company and the Selling Shareholders, that the information and data provided
to Investor in connection with the transactions contemplated hereby have not
been subjected to independent verification by the Placement Agent, and that the
Placement Agent makes no representation or warranty with respect to the accuracy
or completeness of such information, data or other related disclosure material.
Investor further acknowledges that in making its decision to enter into this
Agreement and purchase the Securities it has relied on its own examination of
the Company and the terms of, and consequences, of holding the Securities.
Investor further acknowledges that the provisions of this Section 2.10 are for
the benefit of, and may be enforced by, the Placement Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors that:
3.1 Organization and Qualification. The Company is duly incorporated,
validly existing and in good standing under the laws of the jurisdiction in
which it is incorporated, with full power and authority (corporate and other) to
own, lease, use and operate its properties and to carry on its business as and
where now owned, leased, used, operated and conducted. The Company is duly
qualified to do business and is in good standing in every jurisdiction in which
the nature of the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
3.2 Authorization; Enforcement. (a) The Company has all requisite
corporate power and authority to enter into and to perform its obligations under
this Agreement and the Registration Rights Agreement, to consummate the
transactions contemplated hereby and thereby and to issue the Securities being
issued and sold by the Company in accordance with the terms hereof and thereof;
(b) the execution, delivery and performance of this Agreement and the
Registration Rights Agreement by the Company and the consummation by it of the
transactions contemplated hereby and thereby (including without limitation the
issuance of the Securities being issued and sold by the Company) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board or Directors, or its shareholders is
required; (c) this Agreement and the Registration Rights Agreement have been
duly executed by the Company; and (d) each of this Agreement and the
Registration Rights Agreement constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
or moratorium or similar laws affecting the rights of creditors generally and
the application of general principles of equity.
3.3 Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of (a) 25,000,000 shares of Common Stock, par value $.01
per share, of which 14,384,628 shares are issued and outstanding and 2,077,322
shares are reserved for issuance under the Company's stock option plans; and (b)
5,000,000 shares of preferred stock, par value $.001 per share, 1,000,000 shares
of which have been designated as Series A Participating Preferred Stock, and
none of the authorized shares of preferred stock are issued and outstanding. All
of such outstanding
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shares of capital stock are, or upon issuance will be, duly authorized, validly
issued, fully paid and nonassessable. No shares of capital stock of the Company,
including the Securities issuable pursuant to this Agreement, are subject to
preemptive rights or any other similar rights of the stockholders of the Company
or any liens or encumbrances imposed through the actions or failure to act of
the Company. Except as disclosed in Schedule 3.3 and except for the transactions
contemplated hereby, (i) there are no outstanding options, warrants, scrip,
rights to subscribe for, puts, calls, rights of first refusal, agreements,
understandings, claims or other commitments or rights of any character
whatsoever relating to, or securities or rights convertible into, exercisable
for, or exchangeable for any shares of capital stock of the Company, or
arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company; (ii) there are no agreements or
arrangements (other than the Registration Rights Agreement) under which the
Company is obligated to register the sale of any of its securities under the
Securities Act, and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in any agreement
providing rights to security holders) that will be triggered by the issuance of
the Securities.
3.4 Issuance of Securities. The Securities being issued and sold by the
Company are duly authorized and, upon issuance in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable, free from
all taxes, liens, claims, encumbrances and charges with respect to the issue
thereof, will not be subject to preemptive rights or other similar rights of
stockholders of the Company, and will not impose personal liability on the
holders thereof.
3.5 No Conflicts; No Violation.
(a) The execution, delivery and performance of this Agreement and
the Registration Rights Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Securities being sold by the Company) will not
(i) conflict with or result in a violation of any provision of the Certificate
of Incorporation or By-laws or (ii) violate or conflict with, or result in a
breach of any provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or give to others
any rights of termination, amendment (including without limitation, the
triggering of any anti-dilution provision), acceleration or cancellation of, any
agreement, indenture, patent, patent license, or instrument to which the Company
is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including U.S. federal and state securities laws and
regulations and regulations of any self-regulatory organizations to which the
Company or its securities are subject) applicable to the Company or by which any
property or asset of the Company is bound or affected (except for such
conflicts, breaches, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect).
(b) The Company is not in violation of its Certificate of
Incorporation, By-laws or other organizational documents and the Company is not
in default (and no event has occurred which with notice or lapse of time or both
could put the Company in default) under any agreement, indenture or instrument
to which the Company is a party or by which any property or assets of the
Company is bound or affected, except for possible defaults as would not,
individually or in the aggregate, have a Material Adverse Effect.
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(c) The Company is not conducting its business in violation of any
law, ordinance or regulation of any governmental entity, the failure to comply
with which would, individually or in the aggregate, have a Material Adverse
Effect.
(d) Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws or
any listing agreement with any securities exchange or automated quotation
system, the Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or the
Registration Rights Agreement, in each case in accordance with the terms hereof
or thereof, or to issue and sell the Securities being issued and sold by it in
accordance with the terms hereof. Except as set forth in Schedule 3.5, all
consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the date hereof. The Company is not in violation of the
listing requirements of Nasdaq.
3.6 SEC Documents, Financial Statements. Since December 31, 1999, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Exchange Act (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits) incorporated by reference therein,
being hereinafter referred to herein as the "SEC Documents"). The Company has
delivered to each Investor, or each Investor has had access to, true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been
prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). Except as set forth in the financial statements included in the
SEC Documents, the Company has no liabilities, contingent or otherwise, other
than liabilities incurred in the ordinary course of business subsequent to
December 31, 1999, and liabilities of the type not required under generally
accepted accounting principles to be reflected in such financial statements.
Such liabilities incurred subsequent to December 31, 1999, are not, in the
aggregate, material to the financial condition or operating results of the
Company.
3.7 Absence of Certain Changes. Except as disclosed in the SEC Documents,
since December 31, 1999, there has been no material adverse change in the
assets, liabilities, business, properties, operations, financial condition,
prospects or results of operations of the Company.
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3.8 Absence of Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its officers or
directors acting as such that could, individually or in the aggregate, have a
Material Adverse Effect.
3.9 Intellectual Property Rights. The Company owns or possesses the
licenses or rights to use all patents, patent applications, patent rights,
inventions, know-how, trade secrets, trademarks, trademark applications, service
marks, service names, trade names and copyrights necessary to enable it to
conduct its business as now operated (the "Intellectual Property"). Except as
set forth in the SEC Documents, there is no claim or action or proceeding
pending or, to the Company's knowledge, threatened that challenges the right of
the Company with respect to any Intellectual Property.
3.10 Tax Status. Except as set forth on Schedule 3.10, the Company has
made or filed all federal, state and foreign income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company has set aside on its books
provisions reasonably adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith, and has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. To the knowledge of the Company, there are no unpaid taxes
in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such
claim. The Company has not executed a waiver with respect to the statute of
limitations relating to the assessment or collection of any foreign, federal,
state or local tax. Except as set forth on Schedule 3.10, none of the Company's
tax returns is presently being audited by any taxing authority.
3.11 Environmental Laws. The Company (i) is in compliance with all
applicable foreign federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
has received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (iii) is in compliance
with all terms and conditions of any such permit, license or approval where, in
each of the three foregoing clauses, the failure to so comply would have,
individually or in the aggregate, a Material Adverse Effect.
3.12 No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales in any security or solicited any offers to
buy any security under circumstances that would require registration under the
Securities Act of the issuance of the Securities to the Investors. The issuance
of the Securities to the Investors will not be integrated with any other
issuance of the Company's securities (past, current or future) for purposes of
the Securities Act or any applicable rules of Nasdaq.
3.13 No Brokers. The Company has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments relating to this Agreement or the transactions contemplated hereby,
except for dealings with U.S. Bancorp Piper Jaffray Inc., whose commissions and
fees with respect to the Securities being issued and sold by the Company will be
paid for by the Company.
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3.14 Insurance. The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
of the Company believes to be prudent and customary in the businesses in which
the Company is engaged.
3.15 Employment Matters. The Company is in compliance with all federal,
state, local and foreign laws and regulations respecting employment and
employment practices, terms and conditions of employment and wages and hours
except where failure to be in compliance would not have a Material Adverse
Effect.
3.16 Investment Company Status. The Company is not and upon consummation
of the sale of the Securities will not be an "investment company," a company
controlled by an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS
Each of the Selling Shareholders represents and warrants to the Investors
that:
4.1 Authorization; Enforcement. (a) This Agreement, the Registration
Rights Agreement, the Custody Agreement attached in the form of Exhibit E hereto
and signed by such Selling Shareholder and American Stock Transfer & Trust
Company, as Custodian, relating to the deposit of the Securities to be sold by
such Selling Shareholder (the "Custody Agreement") and the Power of Attorney in
the form attached as Exhibit F hereto appointing certain individuals as such
Selling Shareholder's attorneys-in-fact to the extent set forth therein,
relating to the transactions contemplated hereby (the "Power of Attorney") have
been duly executed by such Selling Shareholder; and (b) each of this Agreement,
the Registration Rights Agreement, the Custody Agreement and the Power of
Attorney constitutes a legal, valid and binding obligation of such Selling
Shareholder enforceable against such Selling Shareholder in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, or moratorium or similar laws affecting the rights of creditors
generally and the application of general principles of equity.
4.2 Ownership of Securities. Such Selling Shareholder has and on the
Closing Date will have valid title to the Securities being sold by such Selling
Shareholder and the legal right and power, and all authorizations and approvals
required by law, to enter into this Agreement, the Registration Rights
Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer
and deliver the Securities being sold by such Selling Shareholder. The
Securities being sold by such Selling Shareholder have been duly authorized and,
upon sale in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable. Delivery of the Securities being sold by
such Selling Shareholder pursuant to this Agreement will pass title to such
Securities free and clear of any security interests, claims, liens, equities or
other encumbrances.
4.3 No Conflicts; No Violation.
(a) The execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the Custody Agreement and the Power of Attorney
by such Selling Shareholder and the consummation by such Selling Shareholder of
the transactions contemplated hereby and thereby (including, without limitation,
the sale of the Securities being sold by such Selling
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Shareholder) will not (i) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with notice or lapse of
time or both could become a default) under, or give to others any rights of
termination, amendment (including without limitation, the triggering of any
anti-dilution provision), acceleration or cancellation of, any agreement,
indenture, patent, patent license, or instrument to which such Selling
Shareholder is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including U.S. federal and state
securities laws and regulations and regulations of any self-regulatory
organizations to which such Selling Shareholder is subject) applicable to such
Selling Shareholder or by which any property or asset of such Selling
Shareholder is bound or affected.
(b) Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws or
any listing agreement with any securities exchange or automated quotation
system, such Selling Shareholder is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self regulatory agency in order for it
to execute, deliver or perform any of its obligations under this Agreement, the
Registration Rights Agreement, the Custody Agreement and the Power of Attorney,
in each case in accordance with the terms hereof or thereof, or to sell the
Securities being sold by it in accordance with the terms hereof. Except as set
forth in Schedule 4.3, all consents, authorizations, orders, filings and
registrations which such Selling Shareholder is required to obtain pursuant to
the preceding sentence have been obtained or effected on or prior to the date
hereof.
4.4 No Brokers. Such Selling Shareholder has taken no action which would
give rise to any claim by any person for brokerage commissions, finder's fees or
similar payments relating to this Agreement or the transactions contemplated
hereby, except for dealings with U.S. Bancorp Piper Jaffray Inc., whose
commissions and fees with respect to the sale of Securities by such Selling
Shareholder will be paid for by such Selling Shareholder.
ARTICLE V
COVENANTS
5.1 Best Efforts. Each party will use its best efforts to satisfy in a
timely fashion each of the conditions to be satisfied by it under Articles VII
and VIII of this Agreement.
5.2 Form D; Blue Sky Laws. The Company will file a Notice of Sale of
Securities on Form D with respect to the Securities, as required under
Regulation D, and to provide a copy thereof to each Investor promptly after such
filing. The Company will take such action as it reasonably determines to be
necessary to qualify the Securities for sale to the Investors under this
Agreement under applicable securities (or "blue sky") laws of the states of the
United States (or to obtain an exemption from such qualification), and will
provide evidence of any such action so taken to the Investors. The Company will
file with the SEC a Current Report on Form 8-K disclosing this Agreement and the
transactions contemplated hereby within 10 business days after the Closing Date.
5.3 Reporting Status; Eligibility to Use Form S-3. The Company's Common
Stock is registered under Section 12 of the Exchange Act. Throughout the
Registration Period (as defined in the Registration Rights Agreement), the
Company will timely file all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC under the reporting
requirements of the Exchange Act, and the Company will not terminate its status
as an issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations
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thereunder would permit such termination. The Company currently meets, and will
take all reasonably necessary action to continue to meet, the "registrant
eligibility" requirements set forth in the general instructions to Form S-3 to
enable the registration of the Registrable Securities as defined in the
Registration Rights Agreement.
5.4 Expenses. The Company, each Selling Shareholder and each Investor is
liable for, and will pay, its own expenses incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement and the other
agreements to be executed in connection herewith, including, without limitation,
attorneys' and consultants' fees and expenses.
5.5 Financial Information. The financial statements of the Company will be
prepared in accordance with United States generally accepted accounting
principles, consistently applied, and will fairly present in all material
respects the consolidated financial position of the Company and results of its
operations and cash flows as of, and for the periods covered by, such financial
statements (subject, in the case of unaudited statements, to normal year-end
audit adjustments).
5.6 Listing. On or before the tenth business day after the date of this
Agreement, the Company will secure the listing of the Securities upon each
national securities exchange or automated quotation system, if any, upon which
shares of Common Stock are then listed (subject to official notice of issuance)
and, so long as any Investor owns any of the Securities, will maintain such
listing of the Securities. The Company will use its best efforts to obtain and,
so long as any Investor owns any of the Securities, maintain the listing and
trading of its Common Stock on Nasdaq, the American Stock Exchange or the New
York Stock Exchange and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the
National Association of Securities Dealers, Inc. and such exchanges, as
applicable. Until an Investor transfers, assigns or sells all of the Securities
owned by it, the Company will promptly provide to each Investor copies of any
notices it receives regarding the continued eligibility of the Common Stock for
listing on Nasdaq or other principal exchange or quotation system on which the
Common Stock is listed or traded.
5.7 Compliance with Law. As long as an Investor owns any of the
Securities, the Company will conduct its business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it is
conducting business, including, without limitation, all applicable local, state
and federal environmental laws and regulations, the failure to comply with which
would have a Material Adverse Effect.
5.8 No Integration. The Company will not make any offers or sales of any
security (other than the Securities) under circumstances that would cause the
offering of the Securities to be integrated with any other offering of
securities by the Company (i) for the purpose of any stockholder approval
provision applicable to the Company or its securities or (ii) for purposes of
any registration requirement under the Securities Act.
5.9 Sales by Investors. Each Investor will sell any Securities sold by it
in compliance with applicable prospectus delivery requirements, if any, or
otherwise in compliance with the requirements for an exemption from registration
under the Securities Act and the rules and regulations promulgated thereunder.
No Investor will make any sale, transfer or other disposition of the Securities
in violation of federal or state securities laws.
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ARTICLE VI
TRANSFER AGENT INSTRUCTIONS; REMOVAL OF LEGENDS
6.1 Issuance of Certificates. The Company will instruct its transfer agent
to issue certificates, registered in the name of each Investor or its nominee,
for the Securities. All such certificates will bear the restrictive legend
described in Section 2.7, except as otherwise specified in this Article VI. In
addition, the Company will issue irrevocable Transfer Agent Instructions to the
transfer agent in the form of Exhibit B hereto. The Company will not give to its
transfer agent any instruction other than as described in this Article VI and
stop transfer instructions to give effect to Section 2.7 hereof (prior to
registration of the Securities under the Securities Act). Nothing in this
Section will affect in any way the Investor's obligations and agreement set
forth in Section 2.7 hereof to comply with all applicable prospectus delivery
requirements, if any, upon resale of the Securities.
6.2 Unrestricted Securities. If, unless otherwise required by applicable
state securities laws, (a) the Securities represented by a certificate have been
registered under an effective registration statement filed under the Securities
Act and sold under such registration statement, (b) a holder of Securities
provides the Company and the Transfer Agent with reasonable assurances that such
Securities can be sold under Rule 144, or (c) the Securities represented by a
certificate can be sold without restriction as to the number of securities sold
under Rule 144(k), the Company will permit the transfer of the Securities, and
the Transfer Agent will issue one or more certificates, free from any
restrictive legend, in such name and in such denominations as specified by such
holder. Notwithstanding anything herein to the contrary, the Securities may be
pledged as collateral in connection with a bona fide margin account or other
lending arrangement; provided that such pledge will not alter the provisions of
this Article VI with respect to the removal of restrictive legends.
ARTICLE VII
CONDITIONS TO THE COMPANY'S AND SELLING SHAREHOLDERS' OBLIGATIONS TO SELL
The obligation of the Company to issue and sell the Securities being sold
by it, and of the Selling Shareholders to sell the Securities being sold by
them, to each Investor at the Closing is subject to the satisfaction by such
Investor, on or before the Closing Date, of each of the following conditions.
These conditions are for the sole benefit of the Company and the Selling
Shareholders and may be waived by the Company at any time in its sole
discretion:
7.1 The Investor will have executed this Agreement and the Registration
Rights Agreement and will have delivered those agreements to the Company.
7.2 The Investor will have delivered the purchase price for the Securities
to the Company and the Selling Shareholders in accordance with this Agreement.
7.3 The representations and warranties of the Investor must be true and
correct in all material respects as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a specific
date, which representations and warranties must be correct as of such date), and
the Investor will have performed and complied in all material respects with the
covenants and conditions required by this Agreement to be performed or complied
with by the Investor at or prior to the Closing.
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7.4 No statute, rule, regulation, executive order, decree, ruling or
injunction will have been enacted, entered, promulgated or endorsed by or in any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
ARTICLE VIII
CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE
The obligation of each Investor hereunder to purchase the Securities from
the Company and the Selling Shareholders at the Closing is subject to the
satisfaction, on or before the Closing Date, of each of the following
conditions. These conditions are for each Investor's respective benefit and may
be waived by any Investor at any time in its sole discretion:
8.1 The Company and the Selling Shareholders will have executed this
Agreement and the Registration Rights Agreement and will have delivered those
Agreements to the Investor.
8.2 The Company and the Selling Shareholders will have delivered (or
caused to be delivered) to the Investors duly executed certificates representing
the Securities in the amounts specified in Section 1.1 hereof.
8.3 The representations and warranties of the Company and the Selling
Shareholders must be true and correct in all material respects as of the Closing
as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties must be true
and correct as of such date) and the Company and the Selling Shareholders must
have performed and complied in all material respects with the covenants and
conditions required by this Agreement to be performed or complied with by the
Company and the Selling Shareholders at or prior to the Closing. The Investor
must have received a certificate or certificates dated as of the Closing Date
and executed by the Chief Executive Officer or the Chief Financial Officer of
the Company certifying, as to the Company, the matters in contained in this
Section 8.3 and as to such other matters as may be reasonably requested by such
Investor, including, but not limited to, the Company's Certificate of
Incorporation, By-laws, Board of Directors' resolutions relating to the
transactions contemplated hereby and the incumbency and signatures of each of
the officers of the Company who may execute on behalf of the Company any
document delivered at the Closing.
8.4 No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction will have been enacted, entered, promulgated or endorsed by
or in any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
8.5 Trading and listing of the Common Stock on Nasdaq shall not have been
suspended by the SEC or Nasdaq.
8.6 The Investors will have received an opinion of the counsel to the
Company and the Selling Shareholders, dated as of the Closing Date, in form,
scope and substance reasonably satisfactory to the Investors and in
substantially the form attached hereto as Exhibit C.
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8.7 The Irrevocable Transfer Agent Instructions, in the form attached
hereto as Exhibit B, shall have been delivered to the Company's transfer agent
and acknowledged in writing by such transfer agent.
ARTICLE IX
INDEMNIFICATION
9.1 In consideration of each Investor's execution and delivery of this
Agreement and its acquisition of the Securities hereunder, and in addition to
all of the Company's other obligations under this Agreement and the Registration
Rights Agreement, the Company will defend, protect, indemnify and hold harmless
each Investor and each other holder of the Securities and all of their
stockholders, officers, directors, employees and direct or indirect investors
and any of the foregoing person's agents or other representatives (including,
without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "Indemnitees") from and
against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and expenses in connection therewith
(regardless of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys' fees
and disbursements (the "Indemnified Liabilities"), incurred by an Indemnitee as
a result of, or arising out of, or relating to (a) any breach of any
representation or warranty made by the Company herein or in any other
certificate, instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Company contained herein
or in any other certificate, instrument or document contemplated hereby or
thereby or (c) any cause of action, suit or claim brought or made against such
Indemnitee and arising out of or resulting from the execution, delivery,
performance, breach or enforcement of this Agreement or the Registration Rights
Agreement by the Company. To the extent that the foregoing undertaking by the
Company is unenforceable for any reason, the Company will make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities that is permissible under applicable law.
9.2 In consideration of each Investor's execution and delivery of this
Agreement and its acquisition of the Securities hereunder, and in addition to
all of the Selling Shareholders' other obligations under this Agreement, each
Selling Shareholder will defend, protect, indemnify and hold harmless each
Indemnitee from and against any and all Indemnified Liabilities incurred by an
Indemnitee as a result of, or arising out of, or relating to (a) any breach of
any representation or warranty made by such Selling Shareholder herein or in any
other certificate, instrument or document contemplated hereby or thereby, (b)
any breach of any covenant, agreement or obligation of such Selling Shareholder
contained herein or in any other certificate, instrument or document
contemplated hereby or thereby or (c) any cause of action, suit or claim brought
or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance, breach or enforcement of this Agreement by
such Selling Shareholder. To the extent that the foregoing undertaking by such
Selling Shareholder is unenforceable for any reason, such Selling Shareholder
will make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities that is permissible under applicable law. The
liability of each Selling Shareholder under this Agreement shall be limited to
an amount equal to the gross proceeds received by the Selling Shareholder.
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ARTICLE X
DEFINITIONS
10.1 "Closing" means the closing of the purchase and sale of the
Securities under this Agreement.
10.2 "Closing Date" has the meaning set forth in Section 1.3.
10.3 "Common Stock" means the common stock, par value $.01 per share, of
the Company.
10.4 "Company" means Novoste Corporation, a Florida corporation.
10.5 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
10.6 "Indemnified Liabilities" has the meaning set forth in Article IX.
10.7 "Indemnitees" has the meaning set forth in Article IX.
10.8 "Investors" means the investors whose names are set forth on the
signature pages of this Agreement, and their permitted transferees.
10.9 "Material Adverse Effect" means a material adverse effect on (a) the
business, operations, assets or financial condition of the Company or (b) the
ability of the Company to perform its obligations pursuant to the transactions
contemplated by this Agreement or under the agreements or instruments to be
entered into or filed in connection herewith.
10.10 "Nasdaq" means the Nasdaq National Market System.
10.11 "Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement and among the parties to this
Agreement, in the form attached hereto as Exhibit D.
10.12 "Regulation D" means Regulation D as promulgated under by the SEC
under the Securities Act.
10.13 "Rule 144" and "Rule 144(k)" mean Rule 144 and Rule 144(k),
respectively, promulgated under the Securities Act, or any successor rule.
10.14 "SEC" means the United States Securities and Exchange Commission.
10.15 "SEC Documents" has the meaning set forth in Section 3.6.
10.16 "Securities" means the Common Stock sold pursuant to this agreement.
10.17 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute.
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ARTICLE XI
GOVERNING LAW; MISCELLANEOUS
11.1 Governing Law; Jurisdiction. This Agreement will be governed by and
interpreted in accordance with the laws of the State of New York without regard
to the principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby.
11.2 Counterparts; Signatures by Facsimile. This Agreement may be executed
in two or more counterparts, all of which are considered one and the same
agreement and will become effective when counterparts have been signed by each
party and delivered to the other parties. This Agreement, once executed by a
party, may be delivered to the other parties hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
11.3 Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and do not affect its
interpretation.
11.4 Severability. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or unenforceable under any law will
not affect the validity or enforceability of any other provision hereof.
11.5 Entire Agreement; Amendments. This Agreement and the Registration
Rights Agreement (including all schedules and exhibits thereto) constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof. No provision of this Agreement
may be waived or amended other than by an instrument in writing signed by the
party to be charged with enforcement.
11.6 Notices. Any notices required or permitted to be given under the
terms of this Agreement must be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and will be effective five days
after being placed in the mail, if mailed by regular U.S. mail, or upon receipt,
if delivered personally, by courier (including a recognized overnight delivery
service) or by facsimile, in each case addressed to a party. The addresses for
such communications are:
If to the Company: Novoste Corporation
3890 Steve Reynolds Boulevard
Norcross, GA 30093
Attention: Chief Executive Officer
(770) 717-1455
With a copy to: Dorsey & Whitney LLP
250 Park Avenue
15
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New York, NY 10177
Attention: Seth I. Truwit, Esq.
(212) 953-7201
If to an Investor: To the address set forth immediately below such
Investor's name on the signature pages hereto.
Each party will provide written notice to the other parties of any change
in its address.
11.7 Successors and Assigns. This Agreement is binding upon and inures to
the benefit of the parties and their successors and assigns. The Company will
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Investors, and no Investor may assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Company. Notwithstanding the foregoing, an Investor may assign
all or part of its rights and obligations hereunder to any of its "affiliates,"
as that term is defined under the Securities Act, without the consent of the
Company so long as the affiliate is an accredited investor (within the meaning
of Regulation D under the Securities Act) and agrees in writing to be bound by
this Agreement. This provision does not limit the Investor's right to transfer
the Securities pursuant to the terms of this Agreement or to assign the
Investor's rights hereunder to any such transferee pursuant to the terms of this
Agreement.
11.8 Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
11.9 Survival. The representations and warranties of the Company and the
agreements and covenants set forth herein will survive the Closing hereunder.
The Company makes no representations or warranties in any oral or written
information provided to Investors, other than the representations and warranties
included herein.
11.10 Further Assurances. Each party will do and perform, or cause to be
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.11 No Strict Construction. The language used in this Agreement is
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
11.12 Equitable Relief. The Company recognizes that, if it fails to
perform or discharge any of its obligations under this Agreement, any remedy at
law may prove to be inadequate relief to the Investors. The Company therefore
agrees that the Investors are entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
16
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IN WITNESS WHEREOF, the undersigned Investors and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
NOVOSTE CORPORATION
By:______________________________________________
Name: William A. Hawkins
Title: President and Chief Executive Officer
The Selling Shareholders Named in Schedule I
hereto, acting severally:
By:______________________________________________
Name: William A. Hawkins
Title: Attorney-in-Fact
17
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OMNIBUS SIGNATURE PAGE TO
NOVOSTE CORPORATION
SECURITIES PURCHASE AGREEMENT
The undersigned hereby executes and delivers the Securities Purchase
Agreement to which this Signature Page is attached, which, together with all
counterparts of the Agreement and Signature Pages of the other parties named in
said Agreement, shall constitute one and the same document in accordance with
the terms of the Agreement.
Sign Name: ____________________________
Print Name: ____________________________
Address: ____________________________
____________________________
____________________________
Telephone: ____________________________
Facsimile: ____________________________
Number of Securities Being Purchased: _____________
18
Exhibit 99.1
FOR IMMEDIATE RELEASE
Contact: Cheryl Johnson
Vice President, Investor Relations
NOVOSTE CORPORATION
(770) 717-6052
NOVOSTE RAISES $46 MILLION IN PRIVATE PLACEMENT
NORCROSS, GA., April 4, 2000 - Novoste Corporation (Nasdaq: NOVT) announced
today that it has completed a private placement of 1,313,500 shares of common
stock at $35.00 per share, raising gross proceeds of $46 million. The Company
expects to complete the placement of an additional 150,000 shares by the end of
the week, bringing the total gross proceeds to $51.2 million. U.S. Bancorp Piper
Jaffray served as placement agent to institutional investors participating in
the financing.
The Company intends to use the proceeds from the financing to prepare for U.S.
market introduction of the Beta-Cath(TM) System pending FDA approval, to expand
its international sales and marketing efforts, to continue product development
and clinical trials, and for working capital and other general corporate
purposes.
An additional 186,500 shares from selling shareholders were included in the
transaction, primarily to address alternative minimum tax liabilities associated
with the exercise of stock options during 1999.
The common stock sold to the investors has not been registered under the
Securities Act of 1933. Accordingly, these shares may not be offered or sold in
the United States, except pursuant to the effectiveness of a registration
statement or an applicable exemption from the registration requirements of the
Securities Act. Novoste has agreed to file a registration statement covering
resales of these shares with the investors. This press release shall not
constitute an offer to sell or the solicitation of an offer to buy any
securities.
Novoste Corporation, based in Atlanta, Ga., is a leader in the emerging field of
vascular brachytherapy to reduce the incidence of restenosis. The Company
recently announced the results of its pivotal START Trial, which showed that
treatment with the Beta-Cath(TM) System significantly reduced the risk of repeat
blockage and additional treatment for patients suffering from blocked stents,
when compared to patients treated with placebo. The Beta-Cath(TM) System is
commercially available in the European Union, Israel, Turkey, Australia, New
Zealand, China, Singapore and India. For more information about Novoste, please
call (770) 717-0904 or visit the company's web site at www.novoste.com.
Except for the historical information contained herein, the matters set forth in
this press release, such as statements as to the expected use of net proceeds,
are forward-looking statements within the meaning of the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements are subject to risks and uncertainties including the
continued demonstration of safety and efficacy of the Beta-Cath(TM) System,
receipt and timing of regulatory approvals, market acceptance and availability
of the Beta-Cath(TM) System, and other risks detailed in documents filed by
Novoste with the SEC, including Forms 10-K and 10-Q.
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