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): May 12, 1999
POSSIS MEDICAL, INC.
(Exact name of registrant as specified in its charter)
Minnesota 001-12567 41-0783184
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation) File Number) Identification No.)
9055 Evergreen Boulevard N.W., Minneapolis, MN 55433-8003
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 780-4555
Not Applicable
(Former name or former address, if changed since last report.)
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Item 5. Other Events
On May 11, 1999, Possis Medical, Inc. (the "Company") entered into a
Purchase Agreement with the purchasers who appear on the signature pages thereto
(the "Purchasers"), pursuant to which, on May 12, 1999, the Company issued in a
private placement 710,059 shares of the Company's common stock, par value $.40
per share (the "Common Stock"), for an aggregate purchase price of $6,000,000.
The Purchasers also received warrants to purchase a total of 106,509 shares of
Common Stock, with an exercise price equal to $11.43 per share. The warrants are
exercisable for a period of four years from the date of their issuance.
The Company intends to use the proceeds from this offering for AngioJet(R)
Thrombectomy System sales and marketing activities, new product development
expenses, and working capital purposes.
The foregoing information is only a summary and is qualified in its
entirety by the information contained in the documents filed as exhibits to this
Form 8-K.
Item 7. Financial Statements and Exhibits
(c) Exhibits
4.1 Purchase Agreement, dated as May 11, 1999, between Possis Medical, Inc.
and the purchasers who appear on the signature pages thereto.
4.2 Registration Rights Agreement, dated as of May 11, 1999, by and between
Possis Medical, Inc. and the purchasers who appear on the signature pages
thereto.
4.3 Form of Warrant, dated as of May 12, 1999.
99.1 Press Release, dated as of May 13, 1999.
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Signature
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.
Date: May __, 1999
POSSIS MEDICAL, INC.
By _________________________
Irving R. Colacci
Vice President, Legal Affairs & Human
Resources, General Counsel and Secretary
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EXHIBIT INDEX
Exhibit Description of Exhibit
4.1 Purchase Agreement, dated as May 11, 1999, between Possis Medical, Inc.
and the purchasers who appear on the signature pages thereto.
4.2 Registration Rights Agreement, dated as of May 11, 1999, by and between
Possis Medical, Inc. and the purchasers who appear on the signature pages
thereto.
4.3 Form of Warrant, dated as of May 12, 1999.
99.1 Press Release, dated as of May 13, 1999.
<PAGE>
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of the 11th day of May,
1999 by and between Possis Medical, Inc., a Minnesota corporation (the
"Company"), and the Investors set forth on the signature page affixed hereto
(each an "Investor" and collectively the "Investors").
Recitals
A. The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as
amended;
B. Each Investor wishes to purchase, and the Company wishes to sell and
issue to each Investor, upon the terms and conditions stated in this Agreement,
that number of shares of the common stock of the Company, $0.40 par value per
share (the "Common Stock") and that number of warrants to purchase Common Stock
in the form attached hereto as Exhibit A (the "Warrant"), as are set forth on
the signature page attached hereto and executed by each such Investor; and
C. Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in
the form attached hereto as Exhibit B (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder, and applicable state securities laws;
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere in
this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings here set forth:
1.1 "Affiliate" means, with respect to any person, any other person which
directly or indirectly controls, is controlled by, or is under common control
with, such person.
1.2 "Agreements" means this Agreement, the Registration Rights Agreement,
and the Warrants.
1.3 "Closing" means the consummation of the transactions contemplated by
this Agreement, and "Closing Date" shall have the meaning set forth in Section
3, below.
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1.4 "Control" means the possession , direct or indirect, of the power to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract or otherwise.
1.5 "Material Adverse Effect" means a material adverse effect on the
(i)condition (financial or otherwise), business, assets, or results of
operations of the Company and its subsidiaries, taken as a whole; (ii) ability
of the Company to perform any of its material obligations under the terms of
this Agreement; or (iii) rights and remedies of the Investor under the terms of
this Agreement.
1.6 "Person" means an individual, corporation, partnership, trust, business
trust, association, joint stock company, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.
1.7 "SEC Filings" has the meaning set forth in Section 4.6.
1.8 "Securities" means the Shares, the Warrants and the Warrant Shares
(defined below).
1.9 "Shares" means the shares of Common Stock being purchased by the
Investors hereunder.
1.10 "Warrant Shares" means the shares of Common Stock issuable upon
exercise of or otherwise pursuant to the Warrants.
1.11 "1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
1.12 "1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Shares and Warrants. Subject to the terms and
conditions of this Agreement, each of the Investors hereby severally, and not
jointly, agrees to purchase and the Company hereby agrees to sell and issue to
the Investor, the number of Shares and Warrants to purchase the number of shares
of Common Stock set forth on such Investor's signature page attached hereto. The
number of shares to be purchased by each Investor shall be determined by
dividing such Investor's aggregate purchase price (as such aggregate purchase
price is set forth on such Investor's signature page attached hereto), by an
amount equal to 85% of the "Market Pric" defined as the average of the five
lowest consecutive closing bid prices of the Company's Common Stock over the
thirty-one (31) trading days immediately preceding the date hereof (the
"Purchase Price"). The number of shares of Common Stock purchasable by each
Investor pursuant to the Warrants shall be equal to 15% of the number of Shares
purchased by such Investor.
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3. Closing. On the date of this Agreement, the Purchase Price shall be
determined. The Company shall promptly deliver to Investors' counsel, in trust,
a certificate or certificates, registered in such name or names as the Investors
shall have designated, representing all of the Shares and all of the Warrants,
with instructions that such certificates are to be held for release to the
Investors only upon payment of the Purchase Price to the Company. Upon receipt
by counsel to the Investors of the certificates, the Investors shall promptly
cause a wire transfer in same day funds to be sent to the account of the Company
as instructed in writing by the Company, in an amount representing the entire
Purchase Price, less the amount due pursuant to Section 10.5 below, which shall
be paid directly to Tail Wind, Inc. (subject to partial refund, if any, as
contemplated by Section 10.5). On the date the Company receives such funds, the
certificates evidencing the Shares and the Warrants shall be released to the
Investors (and such date shall be deemed the "Closing Date").
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investors that:
4.1 Organization, Good Standing and Qualification. The Company and each of
its subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all requisite corporate power and authority to carry on its business as now
conducted and own its properties. The Company and each of its subsidiaries is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property makes such qualification or licensing necessary unless the
failure to so qualify would not have a Material Adverse Effect.
4.2 Authorization. The Company has the requisite corporate power and
authority and has taken all requisite action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of the Agreements, (ii) authorization of the performance
of all obligations of the Company hereunder or thereunder, and (iii) the
authorization, issuance (or reservation for issuance) and delivery of the
Securities. The Agreements constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors' rights generally.
4.3 Capitalization. Set forth on Schedule 4.3 hereto is (a) the authorized
capital stock of the Company on the date hereof; (b) the number of shares of
capital stock issued and outstanding; (c) the number of shares of capital stock
issuable pursuant to the Company's stock plans; and (d) the number of shares of
capital stock issuable and reserved for issuance pursuant to securities (other
than the Shares and the Warrants) exercisable for, or convertible into or
exchangeable for any shares of capital stock. All of the issued and outstanding
shares of the Company's capital stock have been duly authorized and validly
issued and are fully paid, nonassessable and free of preemptive rights. Except
as set forth on Schedule 4.3, no Person is entitled to preemptive or similar
statutory or contractual rights with respect to any securities of the Company.
Except as set forth on Schedule 4.3, there are no outstanding warrants, options,
convertible securities or other rights, agreements or arrangements of any
character under which the Company is or may be obligated to issue any equity
securities of any kind, or in the case of the Company, to transfer any equity
securities of any kind of any subsidiary of the Company, and except as
contemplated by this Agreement, the Company and its subsidiaries are not
currently in negotiations for the issuance of any equity securities of any kind,
or in the case of the Company, the transfer of any equity securities of any kind
of any subsidiary of the Company. Except as set forth on Schedule 4.3, the
Company has no knowledge of any voting agreements, buy-sell agreements, option
or right of first purchase agreements or other agreements of any kind among any
of the securityholders of the Company relating to the securities of the Company
held by them. Except as set forth on Schedule 4.3, the Company has not granted
any Person the right to require the Company to register any securities of the
Company under the 1933 Act, whether on a demand basis or in connection with the
registration of securities of the Company for its own account or for the account
of any other Person.
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4.4 Valid Issuance. The Company has reserved a sufficient number of shares
of Common Stock for the issuance of the Shares pursuant to this Agreement and
upon exercise of the Warrants. The Company will take such steps as may be
necessary to reserve sufficient shares for issuance pursuant to Section 7 below
when such issuance is determinable. The Shares and Warrants are duly authorized,
and such Securities, along with the Warrant Shares when issued in accordance
herewith and with the terms of the Warrants, will be duly authorized, validly
issued, fully paid, non-assessable and free and clear of all encumbrances and
restrictions, except for restrictions on transfer imposed by applicable
securities laws.
4.5 Consents. The execution, delivery and performance by the Company of the
Agreements and the offer, issuance and sale of the Securities require no consent
of, action by or in respect of, or filing with, any Person, governmental body,
agency, or official other than filings that have been made pursuant to
applicable state securities laws and post-sale filings pursuant to applicable
state and federal securities laws and the requirements of the Nasdaq Stock
Market, which the Company undertakes to file within the applicable time periods.
4.6 Delivery of SEC Filings; Business. The Company has provided the
Investors with copies of the Company's most recent Annual Report on Form 10-K
for the fiscal year ended July 31, 1998, and all other reports filed by the
Company pursuant to the 1934 Act since the filing of the Annual Report on Form
10-K and prior to the date hereof (collectively, the "SEC Filings"). The Company
and its subsidiaries are engaged only in the business described in the SEC
Filings and the SEC Filings contain a complete and accurate description of the
business of the Company and its subsidiaries.
4.7 Use of Proceeds. The proceeds of the sale of the Common Stock and the
Warrants hereunder shall be used by the Company for AngioJet System sales and
marketing and new product development expenses.
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4.8 No Material Adverse Change. Since the filing of the Company's most
recent Annual Report on Form 10-K or as otherwise identified and described in
subsequent reports filed by the Company pursuant to the 1934 Act or as set forth
on Schedule 4.8 hereto, there has not been:
(i) any change in the consolidated assets, liabilities, financial condition
or operating results of the Company from that reflected in the financial
statements included in the Company's Quarterly Report on Form 10-Q for the
quarter ended January 31, 1999, except changes in the ordinary course of
business which have not had, in the aggregate, a Material Adverse Effect;
(ii) any declaration or payment of any dividend, or any authorization or
payment of any distribution, on any of the capital stock of the Company, or any
redemption or repurchase of any securities of the Company;
(iii) any material damage, destruction or loss, whether or not covered by
insurance to any assets or properties of the Company or any of its subsidiaries;
(iv) any waiver by the Company or any of its subsidiaries of a valuable
right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company or any of its subsidiaries, except in
the ordinary course of business and which is not material to the assets,
properties, financial condition, operating results or business of the Company
and its subsidiaries taken as a whole (as such business is presently conducted
and as it is proposed to be conducted);
(vi) any material change or amendment to a material contract or arrangement
by which the Company or any of their subsidiaries or any of its assets or
properties is bound or subject;
(vii) any material labor difficulties or labor union organizing activities
with respect to employees of the Company or any of its subsidiaries;
(viii) any transaction entered into by the Company or any of its
subsidiaries other than in the ordinary course of business; or
(ix) any other event or condition of any character that might have a
Material Adverse Effect.
4.9 SEC Filings; Material Contracts. (a) During the preceding three years,
as of its filing date, each report filed by the Company with the SEC pursuant to
the 1934 Act, complied as to form in all material respects with the requirements
of the 1934 Act and did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading.
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(b) During the preceding three years, each registration statement and any
amendment thereto filed by the Company pursuant to the 1933 Act and the rules
and regulations thereunder, as of the date such statement or amendment became
effective, complied as to form in all material respects with the 1933 Act and
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading; and each prospectus filed pursuant to Rule 424(b) under
the 1933 Act, as of its issue date and as of the closing of any sale of
securities pursuant thereto did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(c) Except as set forth on Schedule 4.3 hereto, there are no agreements or
instruments currently in force and effect that constitute a warrant, option,
convertible security or other right, agreement or arrangement of any character
under which the Company is or may be obligated to issue any material amounts of
any equity security of any kind, or to transfer any material amounts of any
equity security of any kind.
4.10 Form S-3 Eligibility. The Company is currently eligible to register
the resale of its Common Stock on a registration statement on Form S-3 under the
1933 Act.
4.11 No Conflict, Breach, Violation or Default. The execution, delivery and
performance of the Agreements by the Company and the issuance and sale of the
Securities will not conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under (i) the Company's
Articles of Incorporation ("Articles") or the Company's Bylaws ("Bylaws" ), both
as in effect on the date hereof, or (ii) except where it would not have a
Material Adverse Effect, (a) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, or (b) any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is subject.
4.12 Tax Matters. The Company and its subsidiaries have timely prepared and
filed all tax returns required to have been filed by the Company and its
subsidiaries with all appropriate governmental agencies and timely paid all
taxes owed by them. There are no material unpaid assessments against the Company
or any of its subsidiaries nor, to the knowledge of the Company, any basis for
the assessment of any additional taxes, penalties or interest for any fiscal
period or audits by any federal, state or local taxing authority except such as
which are not material. All material taxes and other assessments and levies that
the Company or any subsidiary is required to withhold or to collect for payment
have been duly withheld and collected and paid to the proper governmental entity
or third party when due. There are no tax liens or claims pending or threatened
against the Company or any subsidiary or any of their respective assets or
property. There are no outstanding tax sharing agreements or other such
arrangements between the Company or any subsidiary and any other corporation or
entity.
<PAGE>
4.13 Title to Properties. Except as disclosed in the SEC Filings, the
Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or currently planned to be
made thereof by them; and except as disclosed in the SEC Filings, the Company
and its subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use made or currently planned to be made thereof by them.
4.14 Certificates, Authorities and Permits. The Company and its
subsidiaries possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
4.15 No Labor Disputes. No material labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is
imminent.
4.16 Intellectual Property. The Company and its subsidiaries have
sufficient title or adequate rights or licenses to use the inventions, know-how,
patents, copyrights, trademarks, trade names, confidential information and other
intellectual property (collectively, "Intellectual Property Rights"), material
to and used in the conduct of the business now operated by them, or presently
employed by them, and presently contemplated to be operated by them, and neither
the Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property Rights. Schedule 4.16 sets forth a list by serial number and title of
the patents and/or patent applications owned or possessed by the Company or any
of its subsidiaries. To the knowledge of the Company such patents and the
present activities of the Company do not infringe any patent, copyright,
trademark, trade name or other proprietary rights of any third party.
4.17 Environmental Matters. Neither the Company nor any of its subsidiaries
is in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "Environmental Laws"), owns or operates any real
property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, or is subject to any claim relating to any Environmental
Laws, which violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Company is not aware of
any pending investigation that might lead to such a claim.
<PAGE>
4.18 Litigation. Except as disclosed in the SEC Filings or on Schedule 4.18
hereto, there are no pending actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or any of their respective properties that,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in the context
of the sale of the Securities; and to the Company's knowledge, no such actions,
suits or proceedings are threatened or contemplated.
4.19 Financial Statements. The financial statements included in each SEC
Filing present fairly and accurately in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates shown and
their consolidated results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. Except as set
forth in the financial statements of the Company included in the SEC Filings
filed prior to the date hereof, to the best of the Company's knowledge, the
Company has no liabilities, contingent or otherwise, except those which
individually or in the aggregate are not material to the financial condition or
operating results of the Company.
4.20 Insurance Coverage. The Company and its subsidiaries maintain in full
force and effect insurance coverage that is customary for comparably situated
companies for the business being conducted, and properties owned or leased, by
the Company and its subsidiaries, and the Company reasonably believes such
insurance coverage to be adequate against all liabilities, claims and risks
against which it is customary for comparably situated companies to insure.
4.21 Compliance with Nasdaq Continued Listing Requirements. The Company is
in compliance with all applicable Nasdaq continued listing requirements. There
are no proceedings pending or to the Company's knowledge threatened against the
Company relating to the continued listing of the Company's Common Stock on the
Nasdaq National Market and the Company has not received any notice of, nor to
the knowledge of the Company is there any basis for, the delisting of the Common
Stock from the Nasdaq National Market.
4.22 Acknowledgement of Dilution. The number of shares of Common Stock
issuable pursuant to this Agreement may increase substantially in the event the
Company issues securities to third parties in the future under certain
circumstances. The Company's executive officers and directors have studied and
fully understand the nature of the transactions being contemplated hereunder and
recognize that they have a potential dilutive effect.
4.23 Brokers and Finders. Except as set forth on Schedule 4.23 hereof, the
Company shall have no liability or responsibility for the payment of any
commission or finder's fee to any third party in connection with or resulting
from this agreement or the transactions contemplated by this Agreement. No
agreement by the Company with any third party will give rise to any liability or
responsibility of any Investor for a finder's fee or commission related to this
Agreement and the transactions contemplated hereby.
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4.24 No Directed Selling Efforts or General Solicitation. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in
connection with the offer or sale of any of the Securities.
4.25 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 of any security or solicited any offers to buy any security,
under circumstances that would adversely affect reliance by the Company on
Section 4(2) for the exemption from registration for the transactions
contemplated hereby or would require registration of the Securities under the
1933 Act.
4.26 Disclosures. No representation or warranty made under any Section
hereof contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein, in light of the
circumstances under which the statements were made, not misleading.
5. Representations and Warranties of the Investor. Each of the Investors
hereby severally, and not jointly, represents and warrants to the Company that:
5.1 Organization and Existence. The Investor is a validly existing
corporation or limited liability company and has all requisite corporate or
limited liability company power and authority to invest in the Securities
pursuant to this Agreement.
5.2 Authorization. The execution, delivery and performance by the Investor
of the Agreements have been duly authorized and the Agreements will each
constitute the valid and legally binding obligation of the Investor, enforceable
against the Investor in accordance with their terms.
5.3 Purchase Entirely for Own Account. The Securities to be received by the
Investor hereunder will be acquired for investment for the Investor's own
account, not as nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Investor has no present intention of
selling, granting any participation in, or otherwise distributing the same. The
Investor is not a registered broker dealer or an entity engaged in the business
of being a broker dealer.
5.4 Investment Experience. The Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Securities and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment contemplated hereby.
5.5 Disclosure of Information. The Investor has had an opportunity to
receive documents related to the Company and to ask questions of and receive
answers from the Company regarding the Company, its business and the terms and
conditions of the offering of the Securities. Neither such inquiries nor any
other due diligence investigation conducted by the Investor shall modify, amend
or affect the Investor's right to rely on the Company's representations and
warranties contained in this Agreement.
<PAGE>
5.6 Restricted Securities. The Investor understands that the Securities are
characterized as "restricted securities" under the U.S. federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the 1933 Act only in
certain limited circumstances.
5.7 Legends. It is understood that, until registration for resale pursuant
to the Registration Rights Agreement, certificates evidencing the Securities may
bear one or all of the following legends:
(a) "The shares represented by this certificate may not be transferred
without (i) the opinion of counsel satisfactory to the corporation that such
transfer may lawfully be made without registration under the Securities Act of
1933 or qualification under applicable state securities laws; or (ii) such
registration or qualification."
(b) If required by the authorities of any state in connection with the
issuance of sale of the Securities, the legend required by such state authority.
Upon registration for resale pursuant to the Registration Rights Agreement,
the Company shall promptly cause certificates evidencing the Shares previously
issued hereunder to be replaced with certificates which do not bear such
restrictive legends, and each Investor will thereafter sell the Common Stock
evidenced by such certificates only pursuant to the Prospectus (as defined in
the Registration Rights Agreement) or pursuant to Rule 144(k).
5.8 Accredited Investor. The Investor is an accredited investor as defined
in Rule 501(a) of Regulation D, as amended, under the 1933 Act.
5.9 No General Solicitation. The Investor did not learn of the investment
in the Securities as a result of any public advertising or general solicitation.
5.10 Reliance. The Investor understands and acknowledges that (i) the
Securities to be acquired by it hereunder are being offered and sold to it
without registration under the 1933 Act in a private placement that is exempt
from the registration provisions of the 1933 Act and (ii) the availability of
such exemption depends in part on and the Company will rely upon the accuracy
and truthfulness of the representations contained herein and the Investor hereby
consents to such reliance.
5.11 Transactions in Common Stock. The Investor has not, during the thirty
(30) trading days immediately preceding the date hereof, sold or established a
short position in, any shares of Common Stock.
<PAGE>
6. Registration Rights Agreement. The parties acknowledge and agree that
part of the inducement for the Investor to enter into this Agreement is the
Company's execution and delivery of the Registration Rights Agreement. The
parties acknowledge and agree that simultaneously with the execution hereof, the
Registration Rights Agreement is being duly executed and delivered by the
parties thereto.
7. Covenants and Agreements of the Company.
7.1 Subsequent Sale at Lower Price.
(a) Required Adjustments. Subject to the exclusions contained in Section
7.1(e) below, if during the period ending on the later of (i) twenty-seven (27)
months following the Closing Date and (ii) twenty-four (24) months following the
date of effectiveness of the Registration Statement covering the Shares as
contemplated by the Registration Rights Agreement (the "Restricted Period"), the
Company sells any shares of its Common Stock in a capital raising transaction at
a selling price lower than the Purchase Price per share set forth in Section 2
hereof, the Purchase Price per share of the Shares sold to the Investors
hereunder shall be adjusted downward to equal such lower selling price and
Investors shall be entitled to receive the additional shares as provided by
Section 7.1(b); provided, however, that in the event an Investor then owns less
than 51% of the Shares acquired by it hereunder, such Investor shall be entitled
to additional shares only with respect to the number of Shares then owned by
such Investor as provided in Section 7.1(b). The Company shall give to the
Investors written notice of any such sale within 24 hours of the closing of any
such sale. For so long as an Investor owns 51% or more of the Shares originally
acquired by such Investor hereunder, such Investor shall be entitled to the full
benefit of the Purchase Price adjustment required by this Section 7.1.
(b) Adjustment Mechanism. If an adjustment of the Purchase Price is
required pursuant to Section 7.1(a), the Company shall deliver to the Investors
within eight business days of the closing of the transaction giving rise to the
adjustment ("Delivery Date") each Investor's pro-rata share of such number of
additional shares of Common Stock equal to (i) the aggregate purchase price paid
by such Investor divided by the adjusted per share purchase price as required
under Section 7.1(a), minus (ii) the total number of shares of Common Stock
previously delivered to that Investor hereunder; provided however, that the
Company shall effect such adjustment in cash, in whole or in part, to the extent
required by Section 7.1(c). In the event the Company fails to deliver the
additional shares (or cash, as the case may be) within three (3) days of the
Delivery Date, the Company shall be liable to the Investors for a penalty equal
to 2% of the aggregate Purchase Price adjustment per month (in each instance to
such Investor pro rata in accordance with its participation in this offering),
payable in Common Stock or cash, at each Investor's election.
(c) Limitation on Number of Shares. No Investor shall be required to
accept, by way of any such adjustment a number of shares of the Company such
that the total number of such shares held by an Investor as of the date of such
adjustment would exceed 9.90% of the total outstanding Common Stock of the
Company. In addition, in no event shall the Company issue to the Investors
additional shares such that the total number of shares issued to the Investors
(when added to the Warrant Shares) would exceed 19.9% of the Company's issued
and outstanding shares of Common Stock on the date hereof. The Company shall
effect the adjustment required by this Section by cash refund (in an amount
equal to the amount paid plus 15%) to the extent necessary to avoid causing the
aforesaid limitations to be exceeded. Only shares acquired pursuant to this
Agreement will be included in determining whether the limitations would be
exceeded for purposes of this Section 7.1(c).
<PAGE>
(d) Capital Adjustments. In case of any stock split or reverse stock split,
stock dividend, reclassification of the common stock, recapitalization, merger
or consolidation, or like capital adjustment affecting the Common Stock of the
Company, the provisions of Section 7.1 shall be applied in a fair, equitable and
reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof.
(e) Exclusions. Section 7.1(a) and Section 7.2 shall not apply to (i) sales
of shares of Common Stock by the Company upon conversion or exercise of any
convertible securities, options or warrants outstanding prior to the date
hereof; or (ii) sales of shares of Common Stock by the Company pursuant to the
provisions of any shareholder-approved option or similar plan heretofore or
hereafter adopted by the Company.
(f) Definitions. For purposes of Section 7.1 hereof, a sale in a capital
raising transaction of shares of Common Stock shall include the sale or issuance
of rights, options, warrants or convertible securities under which the Company
is or may become obligated to issue shares of Common Stock, and the selling
price (the "Selling Price") of the Common Stock covered thereby shall be the
exercise or conversion price thereof plus the consideration (if any) received by
the Company upon such sale or issuance. In case of any such security issued
within the Restricted Period, if the conversion or exercise price is variable,
the Selling Price shall be deemed to be the lowest conversion or exercise price
at which such securities are converted or exercised or might have been converted
or exercised; provided, however, that in the event the conversion, exercise or
Selling Price is variable, such as those issued in a Variable Rate Transaction
or a Most-Favored Investor Transaction (as those terms are defined in Section
7.2(b) below), the number of shares issuable pursuant to Section 7.1 shall in
the first instance be determined as of the date of the closing of the
transaction giving rise to the adjustment based upon the fixed or maximum
conversion price (or if there is no such price, calculated based on the variable
conversion price using the then market price or other benchmark for determining
conversion), and to the extent that the price at which such securities may be
converted or exercised or the Selling Price is lower over time than such price,
the Company shall issue additional shares of Common Stock within eight (8)
calendar days of the end of each subsequent calendar month in which such a lower
price is the price at which such securities may be converted or exercised or
such Selling Price is reduced. If shares are issued for a consideration other
than cash, the Selling Price shall be the fair value of such consideration as
determined in good faith by the Board of Directors of the Company. The term
"Share" as used in this Agreement shall include shares issued to the Investors
pursuant to this Section 7.1.
<PAGE>
7.2 Limitation on Transactions.
(a) Until the date of effectiveness of the Registration Statement covering
the Shares as contemplated by the Registration Rights Agreement, without the
prior written consent of the Investors (which consent may be withheld in the
Investors' discretion), the Company shall not issue or sell or agree to issue or
sell for cash in a non-public offering any equity securities in a capital
raising transaction.
(b) Until the expiration of the Restricted Period, without the prior
written consent of the Investors (which consent may be withheld in the
Investors' discretion), the Company shall not issue or sell, or agree to issue
or sell, for cash in a non-public offering (A) any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the right
to receive additional shares of Common Stock either (x) at a conversion,
exercise or exchange rate or other price that is based upon and/or varies with
the trading prices of or quotations for the Common Stock at any time after the
initial issuance of such debt or equity securities, or (y) with a fixed
conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon
the occurrence of specified or contingent events directly or indirectly related
to the business of the Company or the market for the Common Stock (but excluding
standard stock split anti-dilution provisions), or (B) any securities of the
Company pursuant to an "equity line" structure which provides for the sale, from
time to time, of securities of the Company which are registered for resale
pursuant to the 1933 Act (clauses (A) and (B) are collectively "Variable Rate
Transactions"), provided, however, that the foregoing limitation on Variable
Rate Transactions shall not apply to any such securities with an aggregate face
value outstanding at any time equal to or less than the lower of eight percent
of the Company's primary market capitalization or $8 million, or (C) any other
debt financing in excess of $500,000. Notwithstanding the foregoing, a "Variable
Rate Transaction" shall not be deemed to include, for the purposes of this
Section 7.2(b), a transaction in which the Company issues or sells or agrees to
issue or sell for cash in a non-public offering any equity securities in a
capital raising transaction (the "New Offering") which grants to an investor
(the "New Investor") the right to receive additional shares based upon future
equity raising transactions of the Company on terms more favorable than those
granted to the New Investor in the New Offering (referred to herein as a
"Most-Favored Investor Transaction").
7.3 Right of Investors to Participate in Future Transactions. The Company
agrees that during the Restricted Period, the Company shall give fifteen (15)
calendar days advance written notice to the Investors prior to any non-public
offer or sale of any of its equity securities or any securities convertible into
or exchangeable or exercisable for such securities by providing to the Investors
a comprehensive term sheet containing all significant business terms of such a
transaction. Prior to the closing of any such sale, the Investor shall have the
right to participate (pro rata in accordance with such Investor's participation
in this offering) in up to 15% of such new offering (or in the case of a
Variable Rate Transaction for $5 million or less, 30%; or in the case of a
Variable Rate Transaction for more than $5 million, 50% of such new offering)
and purchase such equity securities for the same consideration and on the same
terms and conditions as contemplated for such third-party sale, which right must
be exercised in writing by the Investor within seven calendar days following
receipt of the notice from the Company. If, subsequent to the Company giving
notice to the Investors hereunder, the terms and conditions of the proposed
third-party sale are changed from that disclosed in the comprehensive term
sheet, the Company shall be required to provide a new notice to the Investors
hereunder and the Investors shall have the right to participate in the offering
on such changed terms and conditions as provided hereunder.
<PAGE>
7.4 Opinion of Counsel. On or prior to the Closing Date, the Company will
deliver to the Investors the opinion of legal counsel to the Company, in form
and substance reasonably acceptable to the Investors, addressing those legal
matters set forth in Schedule 7.4 hereto.
7.5 Reservation of Common Stock Pursuant to Section 7.1 and Exercise of
Warrants. The Company hereby agrees at all times to reserve and keep available
out of its authorized but unissued shares of Common Stock, solely for the
purpose of providing for the exercise of the Warrants, such number of shares of
Common Stock as shall from time to time equal the number of shares sufficient to
permit the exercise of the Warrants in accordance with the terms of the
Warrants. In addition, as soon as such number is determinable, the Company
agrees to reserve such shares as may be necessary to permit the issuances to the
Investors required by Section 7.1.
7.6 Reports. For so long as the Investors beneficially own any of the
Securities, the Company will furnish to the Investors the following reports,
each of which shall be provided to the Investors by air mail (within one week of
filing with the SEC, in the case of SEC filings):
(a) Quarterly Reports. The Company's quarterly report on Form 10-Q or, in
the absence of such report, consolidated balance sheets of the Company and its
subsidiaries as at the end of such period and the related consolidated
statements of operations, stockholders' equity and cash flows for such period
and for the portion of the Company's fiscal year ended on the last day of such
quarter, all in reasonable detail and certified by a principal financial officer
of the Company to have been prepared in accordance with generally accepted
accounting principles, subject to year-end and audit adjustments.
(b) Annual Reports. The Company's Form 10-K or, in the absence of a Form
10-K, consolidated balance sheets of the Company and its subsidiaries as at the
end of such year and the related consolidated statements of earnings,
stockholders' equity and cash flows for such year, all in reasonable detail and
accompanied by the report on such consolidated financial statements of an
independent certified public accountant selected by the Company and reasonably
satisfactory to the Investor.
(c) Securities Filings. Copies of (i) all notices, proxy statements,
financial statements, reports and documents as the Company or any subsidiary
shall send or make available generally to its stockholders or to financial
analysts, promptly after providing same to the stockholders and (ii) all
periodic and special reports, documents and registration statements (other than
on Form S-8) which the Company or any subsidiary furnishes or files, or any
officer or director of the Company or any of its subsidiaries (in such person's
capacity as such) furnishes or files with the SEC.
<PAGE>
(d) Other Information. Such other information relating to the Company or
its subsidiaries as from time to time may reasonably be requested by the
Investors provided the Company produces such information in its ordinary course
of business, and further provided that the Company, solely in its own
discretion, determines that such information is not confidential in nature and
disclosure to the Investor would not be harmful to the Company.
7.7 Press Releases. Any press release or other publicity concerning this
Agreement or the transactions contemplated by this Agreement shall be submitted
to the Investors for comment at least two (2) business days prior to issuance,
unless the release is required to be issued within a shorter period of time by
law or pursuant to the rules of a national securities exchange. The Company
shall issue a press release concerning the fact and material terms of this
Agreement within one business day of the Closing.
7.8 No Conflicting Agreements. The Company will not, and will not permit
its subsidiaries to, take any action, enter into any agreement or make any
commitment that would conflict or interfere in any material respect with the
obligations to the Investors under the Agreements.
7.9 Insurance. So long as the Investors beneficially own any Securities,
the Company shall, and shall cause each subsidiary to, have in full force and
effect (a) insurance reasonably believed to be adequate on all assets and
activities of a type customarily insured, covering property damage and loss of
income by fire or other casualty, and (b) insurance reasonably believed to be
adequate protection against all liabilities, claims and risks against which it
is customary for companies similarly situated as the Company and the
subsidiaries to insure.
7.10 Compliance with Laws. So long as the Investors beneficially own any
Securities, the Company will use reasonable efforts, and will cause each of its
subsidiaries to use reasonable efforts, to comply with all applicable laws,
rules, regulations, orders and decrees of all governmental authorities, except
to the extent non-compliance (in one instance or in the aggregate) would not
have a Material Adverse Effect.
7.11 Listing of Underlying Shares and Related Matters. The Company hereby
agrees, promptly following the Closing of the transactions contemplated by this
Agreement, to take such action to cause the Shares and the Warrant Shares to be
listed on the Nasdaq National Market as promptly as possible but no later than
the effective date of the registration contemplated by the Registration Rights
Agreement. The Company further agrees that if the Company applies to have its
Common Stock or other securities traded on any other principal stock exchange or
market, it will include in such application the Warrant Shares and will take
such other action as is necessary to cause such Common Stock to be so listed.
For so long as the Investors beneficially own any of the Securities, the Company
will take all action necessary to continue the listing and trading of its Common
Stock on the Nasdaq National Market and will comply in all respects with the
Company's reporting, filing and other obligations under the bylaws or rules of
such exchange, as applicable, to ensure the continued eligibility for trading of
the Shares and the Warrant Shares thereon.
In the event it is determined that the issuance of the Shares would or does
constitute an issuance which, pursuant to the rules or regulations of the Nasdaq
National Market (or any other national securities exchange upon which the Common
Stock is or becomes traded), renders the Shares ineligible for inclusion on the
Nasdaq (or any other national securities exchange upon which the Common Stock is
then traded), then the Company shall promptly redeem such number of Shares held
by the Investors (pro rata in accordance with their participation in this
offering) which are so ineligible at a per share redemption price equal to 110%
of the per share Purchase Price for those Shares as set forth in Section 2
hereof.
7.12 Corporate Existence. So long as the Investors beneficially own any of
the Shares or Warrants (but in no event longer than five years), the Company
shall maintain its corporate existence, except in the event of a merger,
consolidation or sale of all or substantially all of the Company's assets, as
long as the surviving or successor entity in such transaction (a) assumes the
Company's obligations hereunder and under the agreements and instruments entered
into in connection herewith, regardless of whether or not the Company would have
had a sufficient number of shares of Common Stock authorized and available for
issuance in order to fulfill its obligations hereunder and effect the exercise
in full of all Warrants outstanding as of the date of such transaction; (b) has
no legal, contractual or other restrictions on its ability to perform the
obligations of the Company hereunder and under the agreements and instruments
entered into in connection herewith; and (c) is a publicly traded corporation
whose common stock and the shares of capital stock issuable upon exercise of the
Warrants are (or would be upon issuance thereof) listed for trading on the
Nasdaq National Market, New York Stock Exchange or American Stock Exchange.
8. Survival. All representations, warranties, covenants and agreements
contained in this Agreement shall be deemed to be representations, warranties,
covenants and agreements as of the date hereof and shall survive the execution
and delivery of this Agreement for a period of two years from the date of this
Agreement; provided, however, that the provisions contained in Section 7 hereof
shall survive in accordance therewith.
9. Arbitration.
9.1 Scope. Resolution of any and all disputes arising from or in connection
with the Agreements, whether based on contract, tort, common law, equity,
statute, regulation, order or otherwise ("Disputes"), shall be exclusively
governed by and settled in accordance with the provisions of this Section 9;
provided, that the foregoing shall not preclude equitable or other judicial
relief to enforce the provisions hereof or to preserve the status quo pending
resolution of Disputes hereunder.
9.2. Binding Arbitration. The parties hereby agree to submit all Disputes
to arbitration for final and binding resolution. Either party may initiate such
arbitration by delivery of a demand therefor (the "Arbitration Demand") to the
other party. The arbitration shall be conducted in New York, New York by a sole
arbitrator selected by agreement of the parties not later than fifteen (15)
business days after delivery of the Arbitration Demand, or, failing such
agreement, appointed pursuant to the Commercial Arbitration Rules of the America
Arbitration Association, as amended from time to time (the "AAA Rules"). If the
arbitrator becomes unable to serve, his successor(s) shall be similarly selected
or appointed.
<PAGE>
9.3. Procedure. The arbitration shall be conducted pursuant to the Federal
Arbitration Act and such procedures as the parties may agree or, in the absence
of or failing such agreement, pursuant to the AAA Rules. Notwithstanding the
foregoing, (a) each party shall have the right to conduct limited discovery of
information relevant to the Dispute; (b) each party shall provide to the other,
reasonably in advance of any hearing, copies of all documents that a party
intends to present in such hearing; (c) all hearings shall be conducted on an
expedited schedule; and (d) except as otherwise required by law and as required
to conduct the proceedings, all proceedings shall be confidential, except that
either party may at its expense make a stenographic record thereof.
9.4. Timing. The arbitrator shall complete all hearings not later than 90
days after his or her selection or appointment, and shall make a final award not
later than 30 days thereafter. The arbitrator shall apportion all costs and
expenses of the arbitration, including the arbitrator's fees and expenses, and
fees and expenses of experts ("Arbitration Costs") between the prevailing and
non-prevailing party as the arbitrator shall deem fair and reasonable. In
circumstances where a Dispute has been asserted or defended against on grounds
that the arbitrator deems frivolous, the arbitrator may assess all Arbitration
Costs against the non-prevailing party and may include in the award the
prevailing party's attorney's fees and expenses in connection with any and all
proceedings under this Section 9. Notwithstanding the foregoing, in no event may
the arbitrator award multiple or punitive damages.
10. Miscellaneous.
10.1 Successors and Assigns. This Agreement may not be assigned by a party
hereto without the prior written consent of the other party hereto, except that
without the prior written consent of the Company, but after notice duly given,
an Investor may assign its rights and delegate its duties hereunder to an
Affiliate, and without the prior written consent of the Investors, but after
notice duly given and in compliance with this Agreement, the Company may assign
its rights and delegate its duties hereunder to any successor-in-interest
corporation in the event of a merger or consolidation of the Company with or
into another corporation, or any merger or consolidation of another corporation
with or into the Company that results directly or indirectly in an aggregate
change in the ownership or control of more than 50% of the voting rights of the
equity securities of the Company, or the sale of all or substantially all of the
Company's assets. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
<PAGE>
10.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.3 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
10.4 Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given only upon delivery to each party to be notified by (i) personal delivery,
(ii) telex or telecopier, upon receipt of confirmation of complete transmittal,
or (iii) an internationally recognized overnight air courier, addressed to the
party to be notified at the address as follows, or at such other address as such
party may designate by ten days' advance written notice to the other party:
If to the Company:
Possis Medical, Inc.
9055 Evergreen Boulevard, N.W.
Minneapolis, MN 55433-8003
Attn: Irving R. Colacci, Esq.
with a copy to:
Dorsey & Whitney LLP
Pillsbury Center South
220 South 6th Street
Minneapolis, MN 55402-1498
Attn: Amy E. Ayotte, Esq.
If to the Investors, to the addresses set forth on the
signature pages hereto.
10.5 Fees and Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith, except that the Company shall pay to Tail Wind,
Inc. the sum of $35,000 as and for reimbursement for legal and due diligence
expenses incurred in connection herewith and such amount shall be paid at
Closing from gross proceeds of the offering. Tail Wind, Inc. shall submit to the
Company evidence of such expenses within thirty (30) days of the Closing Date.
In the event Tail Wind, Inc. has not incurred and documented $35,000 of related
expenses within such period, Tail Wind, Inc. shall refund to the Company any
amount in excess of the amount of expenses actually incurred.
10.6 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Investors. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Securities purchased under this Agreement at the time outstanding, each
future holder of all such securities, and the Company.
<PAGE>
10.7 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
10.8 Entire Agreement. This Agreement, including the Exhibits and Schedules
hereto, and the Registration Rights Agreement constitute the entire agreement
among the parties hereof with respect to the subject matter hereof and thereof
and supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and thereof.
10.9 Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
10.10 Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
The Company:
By: /s/ Irving R. Colacci
Name: Irving R. Colacci
Title: Vice President, Legal Affairs & Human
Resources, General Counsel & Secretary
<PAGE>
The Investor: [ GEOFFREY H. GALLEY ]
By: /s/ Geoffrey H. Galley
Name: Geoffrey H. Galley
Title:
By:_________________________
Name:
Title:
Aggregate Purchase Price: $1,266,300
Number of Shares of Common Stock: 149,858
Number of Warrants: 22,479 (equal to 15% of total number of Shares)
Effective per share Purchase Price of Shares: $8.45
Exercise price of Warrants: $11.43 (equal to 115% of Market Price)
Address for Notice:
[____________________________]
[____________________________]
[____________________________]
[____________________________]
[____________________________]
[____________________________]
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005
Attn: LaDawn Naegle
Telephone: 202/508-6046
Facsimile: 202/508-6200
<PAGE>
The Investor: [ THE TAIL WIND FUND LTD. ]
By: /s/ Jason McCarroll
Name: Jason McCarroll
Title:
By:__/s/_______________________
Name: Illegible
Title:
Aggregate Purchase Price: $3,500,000
Number of Shares of Common Stock: 414,201
Number of Warrants: 62,130 (equal to 15% of total number of Shares)
Effective per share Purchase Price of Shares: $8.45
Exercise price of Warrants: $11.43 (equal to 115% of Market Price)
Address for Notice:
[Mr. Geoffrey Galley]
[Bankside]
[71 Frognal]
London]
[NW3 6XY]
[England]
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005
Attn: LaDawn Naegle
Telephone: 202/508-6046
Facsimile: 202/508-6200
<PAGE>
The Investor: [JERSEY PHOENIX TRUST LIMITED]
By: /s/ Martin Richardson
Name: Martin Richardson
Title: Director
By:_________________________
Name:
Title:
Aggregate Purchase Price: $211,250
Number of Shares of Common Stock: 25,000
Number of Warrants: 3,750 (equal to 15% of total number of Shares)
Effective per share Purchase Price of Shares: $8.45
Exercise price of Warrants: $11.43 (equal to 115% of Market Price)
Address for Notice:
[P. J. Scott Graham]
[Graham Investment Managers Limited]
[No. 1 Seaton Place]
[St. Helier]
[Jersey, JE4 8YJ]
[Channel Islands]
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005
Attn: LaDawn Naegle
Telephone: 202/508-6046
Facsimile: 202/508-6200
<PAGE>
The Investor: [ BANK OF ENGLAND PENSION FUND ]
By: /s/ W. J. Porte
Name: W. J. Porte
Title: Manager
By:_________________________
Name:
Title:
Aggregate Purchase Price: $426,725
Number of Shares of Common Stock: 50,500
Number of Warrants: 7,575 (equal to 15% of total number of Shares)
Effective per share Purchase Price of Shares: $8.45
Exercise price of Warrants: $11.43 (equal to 115% of Market Price)
Address for Notice:
[W. J. Porte]
[Investment Unit House]
[Bank of England]
[Threadneedle Street]
[London EC2R 8AH]
[England]
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005
Attn: LaDawn Naegle
Telephone: 202/508-6046
Facsimile: 202/508-6200
<PAGE>
The Investor: [NORTH AMERICAN GROWTH INVESTMENTS LIMITED]
By: /s/ R. S. McAvoy
Name: R. S. McAvoy
Title: Director
By:_________________________
Name:
Title:
Aggregate Purchase Price: $88,725
Number of Shares of Common Stock: 10,500
Number of Warrants: 1,575 (equal to 15% of total number of Shares)
Effective per share Purchase Price of Shares: $8.45
Exercise price of Warrants: $11.43 (equal to 115% of Market Price)
Address for Notice:
[P. J. Scott Graham]
[Graham Investment Managers Limited]
[No. 1 Seaton Place]
[St. Helier]
[Jersey JE4 8YJ]
[Channel Islands]
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005
Attn: LaDawn Naegle
Telephone: 202/508-6046
Facsimile: 202/508-6200
<PAGE>
The Investor: [ANGLO IRISH GROWTH EQUITY FUND]
By: /s/ Michael Hodgson
Name: Michael Hodgson
Title: Fund Manager
By:_/s/________________________
Name: Illegible
Title: Fund Manager
Aggregate Purchase Price: $507,000
Number of Shares of Common Stock: 60,000
Number of Warrants: 9,000 (equal to 15% of total number of Shares)
Effective per share Purchase Price of Shares: $8.45
Exercise price of Warrants: $11.43 (equal to 115% of Market Price)
Address for Notice:
[Anglo Irish Bank, Austria]
[Rathanstrasse 20]
[1010 Vienna]
[Austria]
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005
Attn: LaDawn Naegle
Telephone: 202/508-6046
Facsimile: 202/508-6200
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of this 11th day of May, 1999 by and between Possis Medical, Inc., a
Minnesota corporation (the "Company"), and the "Investors" named in that
Purchase Agreement of even date herewith by and between the Company and the
Investors (the "Purchase Agreement").
The parties hereby agree as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the following
meanings:
"Additional Registrable Securities" shall mean the shares of Common Stock,
if any, issued to the Investors pursuant to Section 7.1 of the Purchase
Agreement.
"Common Stock" shall mean the Company's Common Stock, par value $0.40 per
share.
"Investors" shall mean the purchasers identified in the Purchase Agreement
and any affiliate of any Investor who is a subsequent holder of any Warrants,
Registrable Securities or Additional Registrable Securities.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities or
Additional Registrable Securities covered by such Registration Statement and by
all other amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration made by
preparing and filing a registration statement or similar document in compliance
with the 1933 Act (as defined below), and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Securities" shall mean the shares of Common Stock issued and
issuable to the Investors pursuant to the Purchase Agreement (other than
additional shares of Common Stock issuable pursuant to Section 7.1 of the
Purchase Agreement) and issuable upon the exercise of the Warrants.
<PAGE>
"Registration Statement" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities or Additional Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"Warrants" mean the warrants to purchase shares of Common Stock issued to
the Investors pursuant to the Purchase Agreement, the form of which is attached
to the Purchase Agreement as Exhibit A.
2. Registration.
(a) Registration Statements.
(i) Registrable Securities. Promptly following the closing of the purchase
and sale of Common Stock and Warrants contemplated by the Purchase Agreement
(the "Closing Date") (but no later than thirty (30) days after the Closing
Date), the Company shall prepare and file with the SEC one Registration
Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on
such form of registration statement as is then available to effect a
registration for resale of the Registrable Securities, subject to the Investors'
consent) covering the resale of the Registrable Securities in an amount equal to
the number of shares of Common Stock issued to the Investors on the Closing Date
plus the number of shares of Common Stock necessary to permit the exercise in
full of the Warrants. Such Registration Statement also shall cover, to the
extent allowable under the 1933 Act and the Rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions with
respect to the Registrable Securities. The Company shall use its best efforts to
obtain from each person who now has piggyback registration rights a waiver of
those rights with respect to the Registration Statement. No securities shall be
included in the Registration Statement without the consent of each Investor
other than the Registrable Securities and the securities subject to piggyback
registration rights on the date hereof for which the Company could not obtain
waivers. The Registration Statement (and each amendment or supplement thereto,
and each request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission.
<PAGE>
(ii) Additional Registrable Securities. Upon the written demand of any
Investor and following the issuance of any additional shares of Common Stock to
such Investor pursuant to Section 7.1 of the Purchase Agreement, the Company
shall prepare and file with the SEC one Registration Statement on Form S-3 (or,
if Form S-3 is not then available to the Company, on such form of registration
statement as is then available to effect a registration for resale of the
Additional Registrable Securities, subject to the Investor's consent) covering
the resale of the Additional Registrable Securities in an amount equal to the
number of shares of Common Stock issued to and designated in the demand by such
Investor. Such Registration Statement also shall cover, to the extent allowable
under the 1933 Act and the Rules promulgated thereunder (including Rule 416),
such indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the
Additional Registrable Securities. The Company shall use its best efforts to
obtain from each person who now has piggyback registration rights a waiver of
those rights with respect to the Registration Statement. No securities shall be
included in the Registration Statement without the consent of the Investor other
than the Registrable Securities and Additional Registrable Securities and the
securities subject to piggyback registration rights on the date hereof for which
the Company could not obtain waivers. The Registration Statement (and each
amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section 3(c) to the
Investor and its counsel prior to its filing or other submission.
(b) Expenses. The Company will pay all its expenses associated with each
registration, and the Investors will pay all their expenses subject to the
reimbursement provided for in the Purchase Agreement (and to the extent funds
have been returned to the Company, in respect thereof, the Company will pay them
over subject to receipt of appropriate documentation). In no event will the
Company reimburse Investors for discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals.
(c) Effectiveness.
(i) The Company shall use its best efforts to have each Registration
Statement declared effective as soon as practicable. If (A) the Registration
Statement covering Registrable Securities is not declared effective by the SEC
within three (3) months following the Closing Date, or the Registration
Statement covering Additional Registrable Securities is not declared effective
by the SEC within three (3) months following the demand of an Investor relating
to the Additional Registrable Securities covered thereby, or with respect to
either Registration Statement which is subject to full review (other than an
exclusively "plain English review," for which an additional fifteen (15) days
shall be given) by the SEC staff, within four (4) months following the Closing
Date or demand, as the case may be (each, a "Registration Date"), (B) after a
Registration Statement has been declared effective by the SEC, sales cannot be
made pursuant to such Registration Statement (by reason of a stop order, or the
Company's failure to update the Registration Statement) but except as excused
pursuant to subparagraph (ii) below, or (C) the Common Stock generally or the
Registrable Securities specifically is not listed or included for quotation on
the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York
Stock Exchange or the American Stock Exchange, then the Company will make
pro-rata payments to each Investor, as liquidated damages and not as a penalty,
in an amount equal to 2% of the aggregate amount paid by such Investor on the
Closing Date to the Company for shares of Common Stock still held by such
Investor for any month or pro rata for any portion thereof following the
Registration Date during which any of the events described in (A) or (B) or (C)
above occurs and is continuing (the "Blackout Period"). The Blackout Period
shall terminate upon (x) the effectiveness of the applicable Registration
Statement in the case of (A) and (B) above; (y) listing or inclusion of the
Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market,
the New York Stock Exchange or the American Stock Exchange in the case of (C)
above; and (z) in the case of the events described in (A) or (B) above, the
earlier termination of the Registration Period (as defined in Section 3(a)
below). The amounts payable as liquidated damages pursuant to this paragraph
shall be payable, at the option of the Company, in lawful money of the United
States or in shares of Common Stock at the Market Price (as that term is defined
in the Purchase Agreement), and amounts payable as liquidated damages shall be
paid monthly within two (2) business days of the last day of each month
following the commencement of the Blackout Period until the termination of the
Blackout Period. Amounts payable as liquidated damages hereunder shall cease
when an Investor no longer holds Warrants or Registrable Securities, or
Additional Registrable Securities, as applicable. Notwithstanding the above, if
after twelve (12) months, the Company in good faith determines that it is unable
to remedy the events set forth in (A), (B) or (C), the Company may notify the
Investors that the liquidated damages will cease to accrue and, at the
Investor's election, the Company shall redeem, in whole or in part, as
instructed by the Investor, the shares of Common Stock and Warrants held by such
Investor for an amount equal to 120% of the amount originally invested by such
Investor. If an Investor does not elect to have its Common Stock and Warrants so
redeemed, the Company shall use reasonable efforts to remedy the events set
forth in (A), (B) and (C), but the Investor will no longer be entitled to
further liquidated damages pursuant to this Agreement.
<PAGE>
(ii) For not more than twenty (20) consecutive trading days or for a total
of not more than thirty (30) trading days in any twelve (12) month period, the
Company may delay the disclosure of material non-public information concerning
the Company and terminate or suspend effectiveness of any registration
contemplated by this Section containing such information, if disclosure of such
information at the time is not, in the good faith opinion of the Company, in the
best interests of the Company (an "Allowed Delay"); provided, that the Company
shall promptly (a) notify the Investors in writing of the existence of (but in
no event, without the prior written consent of an Investor, shall the Company
disclose to such Investor any of the facts or circumstances regarding) material
non-public information giving rise to an Allowed Delay, and (b) advise the
Investors in writing to cease all sales under the Registration Statement until
the end of the Allowed Delay. The duration of the Restricted Period as provided
in the Purchase Agreement will be extended by the number of days of any and all
Allowed Delays.
(d) Underwritten Offering. If any offering pursuant to a Registration
Statement pursuant to Section 2(a) hereof involves an underwritten offering, the
Company shall have the right to select an investment banker and manager to
administer the offering, which investment banker or manager shall be reasonably
satisfactory to the Investors.
3. Company Obligations. The Company will use its best efforts to effect the
registration of the Registrable Securities and Additional Registrable Securities
in accordance with the terms hereof, and pursuant thereto the Company will, as
expeditiously as possible:
(a) use its best efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period that will terminate
upon the earlier of the date on which all Registrable Securities or Additional
Registrable Securities, as the case may be, covered by such Registration
Statement, as amended from time to time, have been sold or are eligible for sale
under Rule 144(k) promulgated under the Securities Act (the "Registration
Period");
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement effective for the period specified in Section
3(a) and to comply with the provisions of the 1933 Act and the 1934 Act with
respect to the distribution of all Registrable Securities and Additional
Registrable Securities; provided that, at least three (3) days prior to the
filing of a Registration Statement or Prospectus, or any amendments or
supplements thereto, the Company will furnish to the Investors copies of all
documents proposed to be filed, which documents will be subject to the comments
of the Investors;
(c) permit one counsel designated by the Investors to review each
Registration Statement and all amendments and supplements thereto no fewer than
five (5) days prior to their filing with the SEC and not file any document to
which such counsel reasonably objects in a timely manner;
(d) furnish to the Investors and their legal counsel (i) promptly after the
same is prepared and publicly distributed, filed with the SEC, or received by
the Company, one copy of any Registration Statement and any amendment thereto,
each preliminary prospectus and Prospectus and each amendment or supplement
thereto, and each letter written by or on behalf of the Company to the SEC or
the staff of the SEC, and each item of correspondence from the SEC or the staff
of the SEC, in each case relating to such Registration Statement (other than any
portion of any thereof which contains information for which the Company has
sought confidential treatment), and (ii) such number of copies of a Prospectus,
including a preliminary prospectus, and all amendments and supplements thereto
and such other documents as each Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities and Additional
Registrable Securities owned by such Investor;
(e) in the event the Company selects an underwriter for the offering, the
Company shall enter into and perform its reasonable obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
<PAGE>
(f) if required by the underwriter, at the request of the Investors, the
Company shall furnish, on the date that Registrable Securities or Additional
Registrable Securities, as applicable, are delivered to an underwriter, if any,
for sale in connection with the Registration Statement (i) an opinion, dated as
of such date, from counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to the underwriter and the Investors
and (ii) 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 underwriter and the Investors;
(g) make effort to prevent the issuance of any stop order or other
suspension of effectiveness and, if such order is issued, obtain the withdrawal
of any such order at the earliest possible moment (except as allowed under
Section 2(c)(ii) hereof);
(h) furnish to each Investor a copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
by courier pursuant to the notice requirements of Section 10.4 of the Purchase
Agreement;
(i) use its reasonable best efforts to register or qualify or cooperate
with the Investors and their counsel in connection with the registration or
qualification of such Registrable Securities or Additional Registrable
Securities, as applicable, for offer and sale under the securities or blue sky
laws of such jurisdictions as the Investors reasonably request in writing and do
any and all other reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities or Additional
Registrable Securities covered by the Registration Statement;
(j) cause all Registrable Securities or Additional Registrable Securities
covered by a Registration Statement to be listed on each securities exchange,
interdealer quotation system or other market on which similar securities issued
by the Company are then listed;
(k) immediately notify the Investors, at any time when a Prospectus
relating to the Registrable Securities or Additional Registrable Securities is
required to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and subject to Section 2(c)(ii), at the request of
any such holder, promptly prepare and furnish to such holder a reasonable number
of copies of a supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities or Additional Registrable Securities, as applicable, such Prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; and
(l) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, take such other
actions as may be reasonably necessary to facilitate the registration of the
Registrable Securities and Additional Registrable Securities, if applicable,
hereunder; and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve months, beginning after
the effective date of each Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act (for the purpose
of this subsection 3(m), "Availability Date" means the 45th day following the
end of the fourth fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter).
<PAGE>
4. Obligations of the Investors.
(a) It shall be a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the
Registrable Securities or Additional Registrable Securities, as applicable, that
each Investor shall furnish in writing to the Company such information regarding
itself, the Registrable Securities or Additional Registrable Securities, as
applicable, held by it and the intended method of disposition of the Registrable
Securities or Additional Registrable Securities, as applicable, held by it, as
shall be reasonably required to effect the registration of such Registrable
Securities or Additional Registrable Securities, as applicable, and shall
execute such documents in connection with such registration as the Company may
reasonably request. At least ten (10) business days prior to the first
anticipated filing date of any Registration Statement, the Company shall notify
each Investor of the information the Company requires from such Investor if such
Investor elects to have any of the Registrable Securities or Additional
Registrable Securities included in the Registration Statement. An Investor shall
provide such information to the Company at least five (5) business days prior to
the first anticipated filing date of such Registration Statement if such
Investor elects to have any of the Registrable Securities or Additional
Registrable Securities included in the Registration Statement.
(b) Each Investor, by its acceptance of the Registrable Securities and
Additional Registrable Securities, if any, agrees to cooperate with the Company
as reasonably requested by the Company in connection with the preparation and
filing of a Registration Statement hereunder, unless such Investor has notified
the Company in writing of its election to exclude all of its Registrable
Securities or Additional Registrable Securities, as applicable, from the
Registration Statement, in which case the Investor shall be deemed to have
waived its rights to have Registrable Securities or Additional Registrable
Securities, as the case may be, registered under this Agreement, unless the
Investor reasonably believes sales of its securities under such Registration
Statement may violate federal securities laws.
(c) In the event the Company determines to engage the services of an
underwriter, each Investor agrees to 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 and take such other actions as are
reasonably required in order to expedite or facilitate the dispositions of the
Registrable Securities or Additional Registrable Securities, as applicable.
<PAGE>
(d) Each Investor agrees that, upon receipt of any notice from the Company
of the happening of any event rendering a Registration Statement no longer
effective, such Investor will immediately discontinue disposition of Registrable
Securities or Additional Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities or Additional Registrable
Securities, until the Investor's receipt of the copies of the supplemented or
amended prospectus filed with the SEC and declared effective and, if so directed
by the Company, the Investor shall 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 of the prospectus covering the
Registrable Securities or Additional Registrable Securities, as applicable,
current at the time of receipt of such notice.
(e) No Investor may participate in any underwritten registration hereunder
unless it (i) agrees to sell the Registrable Securities or Additional
Registrable Securities, as applicable, on the basis provided in any underwriting
arrangements in usual and customary form entered into by the Company, (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements, and (iii) agrees to pay its pro rata share of
all underwriting discounts and commissions and any expenses in excess of those
payable by the Company pursuant to the terms of this Agreement.
5. Indemnification.
(a) Indemnification by Company. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law the Investors, each of their
officers, directors, partners and employees and each person who controls the
Investors (within the meaning of the 1933 Act) against all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorney's fees) and expenses imposed on such person caused by (i) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein 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, except insofar as the same are based entirely upon any information
furnished in writing to the Company by such Investors, expressly for use
therein, or (ii) any violation by the Company of any federal, state or common
law, rule or regulation applicable to the Company in connection with any
Registration Statement, Prospectus or any preliminary prospectus, or any
amendment or supplement thereto, provided that such violation was not caused by
the negligence or willful misconduct of the Investor and shall reimburse in
accordance with subparagraph (c) below, each of the foregoing persons for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claims. The foregoing is subject to the
condition that, insofar as the foregoing indemnities relate to any untrue
statement, alleged untrue statement, omission or alleged omission made in any
preliminary prospectus or Prospectus that is eliminated or remedied in any
Prospectus or amendment or supplement thereto, the above indemnity obligations
of the Company shall not inure to the benefit of any indemnified party if a copy
of such corrected Prospectus or amendment or supplement thereto had been made
available to such indemnified party and was not sent or given by such
indemnified party at or prior to the time such action was required of such
indemnified party by the 1933 Act and if delivery of such Prospectus or
amendment or supplement thereto would have eliminated (or been a sufficient
defense to) any liability of such indemnified party with respect to such
statement or omission. Indemnity under this Section 5(a) shall remain in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the permitted transfer of the Registrable
Securities and Additional Registrable Securities.
<PAGE>
(b) Indemnification by Holder. In connection with any registration pursuant
to the terms of this Agreement, each Investor will furnish to the Company in
writing such information as the Company reasonably requests concerning the
holders of Registrable Securities and Additional Registrable Securities or the
proposed manner of distribution for use in connection with any Registration
Statement or Prospectus and agrees, severally but not jointly, to indemnify and
hold harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees, stockholders and each person who controls the
Company (within the meaning of the 1933 Act) against any losses, claims,
damages, liabilities and expense (including reasonable attorney's fees)
resulting from (i) any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or Prospectus
or preliminary prospectus or amendment or supplement thereto or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading, to the extent, but only to the extent that such untrue
statement or omission is contained in any information furnished in writing by
such Investor to the Company specifically for inclusion in such Registration
Statement or Prospectus or amendment or supplement thereto and that such
information was substantially relied upon by the Company in preparation of the
Registration Statement or Prospectus or any amendment or supplement thereto; or
(ii) any violation by the Investor of any federal, state or common law, rule or
regulation applicable to the Investor in connection with the Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto, provided that such violation was not caused by the
negligence or willful misconduct of the Company. In no event shall the liability
of an Investor be greater in amount than the dollar amount of the proceeds (net
of all expense paid by such Investor and the amount of any damages such holder
has otherwise been required to pay by reason of such untrue statement or
omission) received by such Investor upon the sale of the Registrable Securities
or Additional Registrable Securities included in the Registration Statement
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided that any person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such person unless (a) the indemnifying party
has agreed to pay such fees or expenses, or (b) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists
between such person and the indemnifying party with respect to such claims (in
which case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely affect the indemnifying party
in the defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of
attorneys at any time for all such indemnified parties. No indemnifying party
will, except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
<PAGE>
(d) Contribution. If for any reason the indemnification provided for in the
preceding paragraphs (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified therein,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation. In
no event shall the contribution obligation of a holder of Registrable Securities
or Additional Registrable Securities be greater in amount than the dollar amount
of the proceeds (net of all expenses paid by such holder and the amount of any
damages such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it upon
the sale of the Registrable Securities or Additional Registrable Securities
giving rise to such contribution obligation.
6. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by a writing
signed by the parties hereto. The Company may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of each Investor.
(b) Notices. All notices and other communications provided for or permitted
hereunder shall be made as set forth in Section 10.4 of the Purchase Agreement.
(c) Assignments and Transfers by Investors. This Agreement and all the
rights and obligations of the Investors hereunder may not be assigned or
transferred to any transferee or assignee except to an affiliate of an Investor
who is a subsequent holder of any Warrants, Registrable Securities or Additional
Registrable Securities.
<PAGE>
(d) Assignments and Transfers by the Company. This Agreement may not be
assigned by the Company without the prior written consent of each Investor then
holding Registrable Securities, except that without the prior written consent of
the Investors, but after notice duly given, the Company shall assign its rights
and delegate its duties hereunder to any successor-in-interest corporation, and
such successor-in-interest shall assume such rights and duties, in the event of
a merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company's assets.
(e) Benefits of the Agreement. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
(h) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its terms
to the fullest extent permitted by law.
(i) Further Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(k) Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
<PAGE>
The Company:
By: /s/ Irving R. Colacci
Name: Irving R. Colacci
Title: Vice President, Legal Affairs &
Human Resources
The Investors:
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
<PAGE>
The Company:
By:_________________________
Name:
Title:
The Investors: GEOFFREY H. GALLEY
By:_/s/ Geoffrey H. Galley
Name: Geoffrey H. Galley
Title:
By:_________________________
Name:
Title:
<PAGE>
The Company:
By:_________________________
Name:
Title:
The Investors: THE TAIL WIND FUND LTD.
By: /s/ Jason McCarroll
Name: Jason McCarroll
Title:
By:_________________________
Name:
Title:
<PAGE>
The Company:
By:_________________________
Name:
Title:
The Investors: BANK OF ENGLAND PENSION FUND
By: /s/ W. J. Porte
Name: W. J. Porte
Title: Manager
By:_________________________
Name:
Title:
<PAGE>
The Company:
By:_________________________
Name:
Title:
The Investors: NORTH AMERICAN INVESTMENTS LIMITED
By: /s/ R. S. McAvoy
Name: R. S. McAvoy
Title: Director
By:_________________________
Name:
Title:
<PAGE>
The Company:
By:_________________________
Name:
Title:
The Investors: THE JERSEY PHOENIX INVESTMENT TRUST
By: /s/ Martin Richardson
Name: Martin Richardson
Title: Director
By:_________________________
Name:
Title:
<PAGE>
The Company:
By:_________________________
Name:
Title:
The Investors: ANGLO IRISH GROWTH EQUITY FUND
By: /s/ Michael Hodgson
Name: Michael Hodgson
Title: Fund Manager
By:_/s/_________________________
Name:
Title: Fund Manager
<PAGE>
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS. ACCORDINGLY, THIS WARRANT
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOED OF WITHOUT (i) AN OPINION OF
COUNSEL SATISFACTORY TO POSSIS MEDICAL, INC. THAT SUCH SALE, TRANSFER OR OTHER
DISPOSITION MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR (ii) SUCH REGISTRATION.
VOID AFTER 5:00 P.M. EASTERN TIME ON May __, 2003 ("EXPIRATION DATE").
POSSIS MEDICAL, INC.
WARRANT TO PURCHASE ______ SHARES OF
COMMON STOCK, PAR VALUE $.40 PER SHARE ("Common Stock")
For VALUE RECEIVED, _____________________ ("Warrantholder"), is entitled to
purchase, subject to the provisions of this Warrant, from Possis Medical, Inc.,
a Minnesota corporation ("Company"), at any time not later than 5:00 P.M.,
Eastern time, on the Expiration Date, at an exercise price per share equal to
$____ (the exercise price in effect being herein called the "Warrant Price"),
______ shares ("Warrant Shares") of Common Stock. The number of Warrant Shares
purchasable upon exercise of this Warrant and the Warrant Price shall be subject
to adjustment from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the transfer
and registration of the Warrant. Upon the initial issuance of the Warrant, the
Company shall issue and register the Warrant in the name of the Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be transferred
only pursuant to a registration statement filed under the Securities Act of
1933, as amended ("Securities Act") or an exemption from such registration. This
Warrant may only be transferred to an affiliate of the Warrantholder. Subject to
such restrictions, the Company shall transfer this Warrant from time to time
upon the books to be maintained by the Company for that purpose, upon surrender
thereof for transfer properly endorsed or accompanied by appropriate
instructions for transfer and such other documents as may be reasonably required
by the Company to establish that such transfer is being made in accordance with
the terms hereof, and a new Warrant shall be issued to the transferee and the
surrendered Warrant shall be canceled by the Company.
<PAGE>
Section 3. Exercise of Warrant. Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part at any time upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise form attached hereto (the "Exercise Agreement") and payment by cash,
certified check or wire transfer of funds for the Warrant Price for that number
of Warrant Shares then being purchased, to the Company during normal business
hours on any business day at the Company's principal executive offices (or such
other office or agency of the Company as it may designate by notice to the
holder hereof). The Warrant Shares so purchased shall be deemed to be issued to
the holder hereof or such holder's designee, as the record owner of such shares,
as of the close of business on the date on which this Warrant shall have been
surrendered (or evidence of loss, theft or destruction thereof and security or
indemnity satisfactory to the Company), the Warrant Price shall have been paid
and the completed Exercise Agreement shall have been delivered. Certificates for
the Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding five (5) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be designated
by such holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised.
Each exercise hereof shall constitute the representation and warranty of
the Warrantholder to the Company that the representations and warranties
contained in Article 5 of the Purchase Agreement (as defined below) are true and
correct in all material respects with respect to the Warrantholder as of the
time of such exercise.
Section 4. Compliance with the Securities Act of 1933. Neither this Warrant
nor the Common Stock issued upon exercise hereof nor any other security issued
or issuable upon exercise of this Warrant may be offered, sold or transferred
except as provided in this agreement and in conformity with the Securities Act,
and then only against receipt of an agreement of such person to whom such offer
of sale is made to comply with the provisions of this Section 4 with respect to
any resale or other disposition of such security. The Company may cause the
legend set forth on the first page of this Warrant to be set forth on each
Warrant or similar legend on any security issued or issuable upon exercise of
this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's satisfaction that such tax has been
paid. The holder shall be responsible for income taxes due under federal, state
or other law, if any such tax is due.
<PAGE>
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents and
warrants that there have been reserved, and the Company shall at all applicable
times keep reserved until issued (if necessary) as contemplated by this Section
7, out of the authorized and unissued Common Stock, sufficient shares to provide
for the exercise of the rights of purchase represented by the Warrant. The
Company agrees that all Warrant Shares issued upon exercise of the Warrant shall
be, at the time of delivery of the certificates for such Warrant Shares, duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock
of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time or from time to time while the Warrant
is outstanding, pay a dividend or make a distribution on its Common Stock in
shares of Common Stock, subdivide its outstanding shares of Common Stock into a
greater number of shares or combine its outstanding shares into a smaller number
of shares or issue by reclassification of its outstanding shares of Common Stock
any shares of its capital stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), then the number of Warrant Shares purchasable upon exercise of the
Warrant and the Warrant Price in effect immediately prior to the date upon which
such change shall become effective, shall be adjusted by the Company so that the
Warrantholder thereafter exercising the Warrant shall be entitled to receive the
number of shares of Common Stock or other capital stock which the Warrantholder
would have received if the Warrant had been exercised immediately prior to such
event upon payment of a Warrant Price that has been adjusted to reflect a fair
allocation of the economics of such event to the Warrantholder. Such adjustments
shall be made successively whenever any event listed above shall occur.
<PAGE>
(b) If any capital reorganization, reclassification of the capital stock of
the Company, consolidation or merger of the Company with another corporation in
which the Company is not the survivor, or sale, transfer or other disposition of
all or substantially all of the Company's assets to another corporation shall be
effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition, lawful and adequate
provision shall be made whereby each Warrantholder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
herein specified and in lieu of the Warrant Shares immediately theretofore
issuable upon exercise of the Warrant, such shares of stock, securities or
assets as would have been issuable or payable with respect to or in exchange for
a number of Warrant Shares equal to the number of Warrant Shares immediately
theretofore issuable upon exercise of the Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interests of each Warrantholder to the end that the
provisions hereof (including, without limitations, provision for adjustment of
the Warrant Price) shall thereafter be applicable, as nearly equivalent as may
be practicable in relation to any shares of stock, securities or properties
thereafter deliverable upon the exercise thereof. The Company shall not effect
any such consolidation, merger, sale, transfer or other disposition unless prior
to or simultaneously with the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger, or the
corporation purchasing or otherwise acquiring such assets or other appropriate
corporation or entity shall assume the obligation to deliver to the holder of
the Warrant such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to purchase and the other
obligations under this Warrant. The provisions of this paragraph (b) shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers or other dispositions.
(c) In case the Company shall fix a payment date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends or distributions referred to in Section 8(a)), or
subscription rights or warrants, the Warrant Price to be in effect after such
payment date shall be determined by multiplying the Warrant Price in effect
immediately prior to such payment date by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding multiplied by
the Market Price per share of Common Stock (as determined pursuant to Section
3), less the fair market value (as determined by the Company's Board of
Directors in good faith) of said assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, and the denominator of
which shall be the total number of shares of Common Stock outstanding multiplied
by such Market Price per share of Common Stock. Such adjustment shall be made
successively whenever such a payment date is fixed.
<PAGE>
(d) If pursuant to the Purchase Agreement by and between the Company and
the Investors named therein dated May __, 1999 (the "Purchase Agreement") there
is an adjustment to the Purchase Price under Section 7.1 thereof, then the
Warrant Price shall be adjusted to a price equal to 115% of the Market Price as
of the date of the adjustment under the Purchase Agreement, if such adjustment
to the Warrant Price would result in a lower Warrant Price. "Market Price" shall
mean the average of the five lowest consecutive closing bid prices of the Common
Stock over the thirty-one (31) trading days immediately preceding such
adjustment. Such adjustments shall be made successively whenever required.
(e) An adjustment shall become effective immediately after the payment date
in the case of each dividend or distribution and immediately after the effective
date of each other event which requires an adjustment.
(f) In the event that, as a result of an adjustment made pursuant to
Section 8(a), the holder of this Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock, the
number of such other shares so receivable upon exercise of this Warrant shall be
subject thereafter to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Warrant
Shares contained in this Warrant.
Section 9. Fractional Interest. The Company shall not be required to issue
fractions of Warrant Shares upon the exercise of the Warrant. If any fraction of
a Warrant Share would, except for the provisions of this Section, be issuable
upon the exercise of the Warrant (or specified portions thereof), the fractional
share shall be disregarded and the number of shares to be issued upon exercise
shall be the number of whole shares only.
Section 10. Benefits. Nothing in this Warrant shall be construed to give
any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
Section 11. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. In the event of a dispute with respect to any such
calculation, the certificate of the Company's independent certified public
accountants shall be conclusive evidence of the correctness of any computation
made, absent manifest error. Failure to give such notice to the Warrantholder or
any defect therein shall not affect the legality or validity of the subject
adjustment.
Section 12. Identity of Transfer Agent. The Transfer Agent for the Common
Stock is Norwest Bank Minnesota, N.A. Upon the appointment of any subsequent
transfer agent for the Common Stock or other shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrant, the Company will mail to the Warrantholder a statement setting forth
the name and address of such transfer agent.
<PAGE>
Section 13. Notices. Any notice pursuant hereto to be given or made by the
Warrantholder to or on the Company shall be sufficiently given or made if sent
by certified mail, return receipt requested, postage prepaid, addressed as
follows:
Company:
Possis Medical, Inc.
9055 Evergreen Boulevard N.W.
Minneapolis, MN 55433-8003
Attn: Russel E. Carlson
Facsimile: 612/780-7223
with a copy to:
Dorsey & Whitney LLP
Pillsbury Center South
220 South sixth Street
Minneapolis, MN 55402-1498
Attn: Amy E. Ayotte, Esq.
Facsimile: 612/340-8738
or such other address as the Company may specify in writing by notice to
the Warrantholder complying as to delivery with the terms of this Section 13.
Any notice pursuant hereto to be given or made by the Company to or on the
Warrantholder shall be sufficiently given or made if personally delivered or if
sent by an internationally recognized courier services by overnight or two-day
service, to the address set forth on the books of the Company or, as to each of
the Company and the Warrantholder, at such other address as shall be designated
by such party by written notice to the other party complying as to delivery with
the terms of this Section 13. All such notices, requests, demands, directions
and other communications shall, when sent by courier be effective two (2) days
after delivery to such courier as provided and addressed as aforesaid.
Section 14. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares as provided in the Registration Rights Agreement dated as of as of May
__, 1999.
Section 15. Successors. All the covenants and provisions hereof by or for
the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 16. Governing Law. This Warrant shall be deemed to be a contract
made under the laws of the State of New York, without giving effect to its
conflict of law priciples, and for all purposes shall be construed in accordance
with the laws of said State.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be duly
executed, as of the day and year first above written.
POSSIS MEDICAL, INC.
By:___________________________
Title:
<PAGE>
POSSIS MEDICAL, INC.
WARRANT EXERCISE FORM
POSSIS MEDICAL, INC.
This undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_______________ shares of Common Stock ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
_______________________________
Name
________________________________
Address
________________________________
________________________________
Federal Tax ID or Social Security No.
and delivered by certified mail to the above address, or
electronically (provide DWAC Instructions:____________),
or
ther (specify: _______________________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
By exercising the rights represented by this Warrant, the undersigned
hereby certifies that, as of the date of exercise of this Warrant, the
representations and warranties contained in Section 5 of the Purchase Agreement
are true and correct in all material respects with respect to the undersigned.
Dated:___________________, ____
Note: The signature must correspond with Signature:____________________
the name of the registered holder as written
on the first page of the Warrant in every ______________________________
particular, without alteration or enlargement Name (please print)
or any change whatever, unless the Warrant
has been assigned. ______________________________
______________________________
Address
______________________________
Federal Identification or
Social Security No.
Assignee:
_______________________________
_______________________________
_______________________________
_______________________________
<PAGE>
Exhibit 99.1
NEWS RELEASE
FOR MORE INFORMATION CONTACT:
ROBERT G. DUTCHER
RUSSEL E. CARLSON
POSSIS MEDICAL, INC.
(612) 780-4555
POSSIS MEDICAL, INC. RAISES $6.0 MILLION IN NEW PRIVATE PLACEMENT FINANCING
MINNEAPOLIS, MN (May 13, 1999) -- Possis Medical, Inc. (NASDAQ/NMS:POSS)
announced today that it has secured $6.0 million in new financing in a private
placement of Possis stock and warrants with a group of investors.
Under the terms of the financing, Possis Medical received $6.0 million from
the issuance of 710,059 shares of Possis Common Stock. The investors also
received 106,509 warrants at an exercise price of $11.43. Possis Medical will
file a registration statement for the shares of Common Stock issued and the
stock underlying the warrants. The Company intends to use the proceeds of the
offering to fund expansion of the Company's sales and marketing activities in
light of the recent approval of its AngioJet(R) Thrombectomy System for use in
coronary arteries, ongoing research and development of new AngioJet System
products, and for working capital purposes.
Mr. Robert G. Dutcher, President and CEO of Possis Medical, Inc., stated,
"We are pleased with the quality of the investors that participated in this
transaction, which include The Tail Wind Fund, a major pension fund, a major
bank's equity growth fund and an investment trust, which are based in Great
Britain. This funding, together with our existing cash reserves, provides
capital we need to confidently move forward with our plans to grow the AngioJet
System business. Our unique AngioJet System has been designed to quickly remove
blood clots from vessels throughout the body and to treat a wide range of
serious medical conditions such as heart attack, stroke, dialysis access
failure, leg pain, pulmonary embolism and deep vein thrombosis. We continue to
be encouraged by the growing interest and sales of the AngioJet System,
especially following the March 1999 approval from the U.S. Food and Drug
Administration (FDA) to market the AngioJet System in the United States for
coronary use."
Possis Medical, Inc. develops, manufactures and markets pioneering medical
devices for the large and growing cardiovascular and vascular treatment markets.
Its primary product, the AngioJe(R) Rheolytic(R) Thrombectomy System, is
marketed in the United States for blood clot removal from dialysis access grafts
and coronary arteries and coronary bypass grafts. The Company's three U.S.
FDA-approved products -- the AngioJet(R) System, the Perma-Flow(R) Coronary
Bypass Graft, and the Perma-Seal(R) Dialysis Access Graft - are highly
differentiated, next-generation medical devices that have the potential to
become preferred treatments.
Certain statements in this press release constitute "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All
forward-looking statements involve risks and uncertainties that may cause the
Company's actual results to be materially different. Factors that could impact
the Company's future results are set forth in the cautionary statements included
in Exhibit 99 to the Company's Form 10-Q dated April 30, 1998, filed with the
Securities and Exchange Commission.
###
