<PAGE>
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): AUGUST 16, 1996
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PERSEPTIVE BIOSYSTEMS, INC.
______________________________________________________
(Exact name of registrant as specified in its charter)
DELAWARE
______________________________________________
(State or other jurisdiction of incorporation)
0-20032 04-2987616
________________________ _____________________
(Commission File Number) (IRS Employer Id. No.)
500 Old Connecticut Path Framingham, MA 01701
_____________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(508) 383-7700
______________
<PAGE>
ITEM 5. OTHER EVENTS.
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1. On August 16, 1996, the Registrant completed a private placement of
2,579,286 shares of Common Stock, $.01 par value, at a purchase price equal to
$7.00 per share. The shares were offered only to "accredited investors" (as
defined in Regulation D). The Registrant received net proceeds of approximately
$17 million after deducting estimated fees and expenses of the transaction. The
Registrant intends to use the net proceeds of this private placement for working
capital and other general corporate purposes.
In connection with this transaction, the Registrant has agreed to file,
within 60 days after the closing, a registration statement with the Securities
and Exchange Commission covering the resale of the shares of Common Stock, and
to use its best efforts to cause the Registration Statement to become effective.
2. On August 26, 1996 the Company issued 1,248,050 shares of its Common
Stock to Millipore Corporation in payment of the second $10 million installment
due upon the redemption by Millipore Corporation of 1,000 shares of the
Company's non-voting Redeemable Preferred Stock. The Redeemable Preferred Stock
was issued to Millipore Corporation in connection with the acquisition of the
BioSearch division of Millipore Corporation in August 1994. Pursuant to the
terms of the acquisition, PerSeptive agreed to register the shares of Common
Stock for resale by Millipore Corporation which registration statement has
recently been declared effective by the Securities and Exchange Commission.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
---------------------------------
(c) Exhibits.
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4.1 Form of Securities Purchase Agreement between the Registrant and each
of the several purchasers of the shares of Common Stock.
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page Number in
Exhibit Sequentially
Number Description Numbered Copy
- ------- ------------ ---------------
<S> <C> <C>
4.1 Form of Securities 5
Purchase Agreement
between the Registrant
and each of the several
purchasers of the
shares of Common Stock
</TABLE>
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PERSEPTIVE BIOSYSTEMS, INC.
By: /s/ Noubar B. Afeyan
-------------------------------
Noubar B. Afeyan, Chairman and
Chief Executive Officer
Dated: August 27, 1996
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<PAGE>
EXHIBIT 4.1
SECURITIES PURCHASE AGREEMENT
THIS AGREEMENT is by and between PERSEPTIVE BIOSYSTEMS, INC. (the "Company"),
a Delaware corporation with an office at 500 Old Connecticut Path, Framingham,
Massachusetts 01701 U.S.A., and the purchaser whose name and address is set
forth on the signature page hereto (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement and good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1. Authorization of Shares. The Company has authorized the sale of
-----------------------
up to a maximum of 3,000,000,000 shares (the "Shares") of the Company's Common
Stock, $.01 par value (the "Common Stock").
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
-----------------------------------------
defined in Section 4, the Company will sell to the Purchaser, and the
Purchaser will buy from the Company, upon the terms and conditions hereinafter
set forth, the number of Shares set forth on the signature page hereof at a
purchase price per Share of $7.00.
The Company represents and warrants that, at the Closing or subsequent
closings, the Company may enter into substantially this same form of purchase
agreement with certain other investors (the "Other Purchasers"). The Purchaser
and the Other Purchasers are hereinafter sometimes collectively referred to as
the "Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements."
SECTION 3. Payment of Purchase Price. On or prior to the Closing Date, as
-------------------------
defined below, the Purchaser will deliver to the Company the full amount of the
aggregate purchase price for the Shares purchased hereunder (the "Purchase
Price") by check or wire transfer of funds.
SECTION 4. The Closing. The consummation of the transactions contemplated
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by this Agreement (the "Closing") shall occur on a date (the "Closing Date") not
more than thirty (30) days from the date hereof and at such place and time as
shall be specified by the Company, of which the Purchasers will be notified in
advance by Company. At the Closing, the Company shall deliver to the Purchaser
one or more common stock certificates registered in the name of the Purchaser,
or, if so indicated on the signature page hereof, in the name of a nominee
designated by the Purchaser, representing the number of Shares to be purchased
by it.
SECTION 5. Representations, Warranties and Covenants of the Company. The
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Company hereby represents and warrants to, and covenants with, the Purchaser
that, except as disclosed in the Company's Confidential Private Placement
Memorandum dated August 1996, including the exhibits thereto and as supplemented
from time to time prior to the Closing (the "Memorandum"), distributed in
connection with the offer and sale of the Shares:
<PAGE>
SECTION 5.1. Organization. The Company is duly organized and validly
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existing in good standing under the laws of the State of Delaware. The
Company has full power and authority to own, operate and occupy its properties
and to conduct its business as presently conducted and is registered or
qualified to do business and in good standing in each jurisdiction in which it
owns or leases property or transacts business and where the failure to be so
qualified would have a material adverse effect upon the business, financial
condition, properties or operations of the Company.
SECTION 5.2. Due Authorization. The Company has all requisite power and
-----------------
authority to execute, deliver and perform its obligations under this Agreement,
and this Agreement has been duly authorized and validly executed and delivered
by the Company and constitutes legal, valid and binding agreements of the
Company enforceable against the Company in accordance with their respective
terms, except as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 5.3. Non-Contravention. The execution and delivery of this
-----------------
Agreement, the issuance and sale of the Shares to be sold by the Company
hereunder, and the consummation of the transactions contemplated hereby will not
conflict with or constitute a violation of, or default (with the passage of time
or otherwise) under, any material agreement or instrument to which the Company
is a party or by which it is bound or the Amended and Restated Certificate of
Incorporation, as amended (the "Charter") or the Amended and Restated By-
Laws, as amended, of the Company nor result in the creation or imposition
of any lien, encumbrance, claim, security interest or restriction whatsoever
upon any of the material properties or assets of the Company or an acceleration
of indebtedness pursuant to any obligation, agreement or condition contained in
any material bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement or instrument
to which the Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor conflict with, or
result in a violation of, any law, administrative regulation, ordinance or order
of any court or governmental agency, arbitration panel or authority applicable
to the Company. No consent, approval, authorization or other order of, or
registration, qualification or filing with, any regulatory body, administrative
agency, or other governmental body in the United States, other than with respect
to "blue sky" laws, is required for the valid issuance and sale of the Shares to
be sold pursuant to this Agreement (other than such as have been made or
obtained).
SECTION 5.4. Capitalization. The capitalization of the Company is as set
--------------
forth in the Memorandum as of the date indicated therein. The Company has not
issued any capital stock since that date other than shares of Common Stock
issued upon exercise of outstanding options or warrants. The Shares have been
duly authorized, and when issued and paid for in accordance with the terms of
this Agreement, will be validly issued, fully paid and nonassessable.
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<PAGE>
SECTION 5.5. Legal Proceedings. Except as disclosed in the Company's SEC
-----------------
Filings (as hereinafter defined), there is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened or
contemplated to which the Company is or may be a party or of which the business
or property of the Company is or may be subject.
SECTION 5.6. No Violations. The Company is not in violation of its Charter
-------------
or By-Laws, in violation of any law, administrative regulation, ordinance or
order of any court or governmental agency, arbitration panel or authority
applicable to the Company, which violation, individually or in the aggregate,
would have a material adverse effect on the business or financial condition of
the Company, or is in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness in any indenture, mortgage, deed of trust or any
other agreement or instrument to which the Company is a party or by which the
Company is bound or by which the properties of the Company are bound or
affected, and there exists no condition which, with the passage of time or
otherwise, would constitute a material default under any such document or
instrument or result in the imposition of any material penalty or the
acceleration of any indebtedness.
SECTION 5.7. Governmental Permits, Etc. The Company has all necessary
-------------------------
franchises, licenses, certificates and other authorizations from any foreign,
federal, state or local government or governmental agency, department, or body
that are currently necessary for the operation of the business of the Company as
currently conducted and as described in the Memorandum, the absence of which
would have a material adverse effect on the business or operations of the
Company.
SECTION 5.8. Financial Statements. The financial statements of the Company
--------------------
and the related notes contained in the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1995, as amended, and its Quarterly Reports
on Form 10-Q for quarter ended December 31, 1995, March 31, 1996 and June 30,
1996 attached as an exhibit to the Memorandum (collectively, the "SEC Filings"),
present fairly the financial position of the Company, as of the dates indicated
therein, and the results of its operations and cash flows for the periods
therein specified. Such financial statements (including the related notes) have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified and are
true, correct and complete in all respects.
SECTION 5.9. No Material Adverse Change. Subsequent to the respective dates
--------------------------
as of which information is given in the Memorandum, the Company has not incurred
any material liabilities or obligations, direct or contingent, other than in the
ordinary course of business, and there has not been any material adverse change
in its consolidated condition (in each case, financial or other), results of
operations, business, prospects, key personnel or capitalization.
SECTION 5.10. Placement Memorandum. The information contained in the
--------------------
Memorandum (including the SEC Filings incorporated therein) is true and
correct in all material respects; and the Memorandum does not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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<PAGE>
SECTION 5.11. Additional Information. The Company has filed in a timely
----------------------
manner all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") during the 12 months
preceding the date of this Agreement. The following documents complied in all
material respects with the requirements of the Exchange Act as of their
respective filing dates, and the information contained therein was true and
correct in all material respects as of the date of such documents, and each of
the following documents as of the date thereof did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995, as amended, its Quarterly Reports on Form 10-Q
for the three-month periods ended December 31, 1995, March 31, 1996
and June 30, 1996 and its Proxy Statement for the Annual Meeting of
Stockholders held on May 6, 1996; and
(b) all other documents, if any, filed by the Company with the
Securities and Exchange Commission (the "SEC") since the filing of
the Quarterly Report on Form 10-Q for the three-month period ended
June 30, 1996 pursuant to the reporting requirements of the Exchange
Act.
SECTION 5.12. Intellectual Property. The Company owns all right, title and
---------------------
interest in and to, all of the intellectual property owned and used by it (the
"Intellectual Property") free and clear of any liens or encumbrances; in any
case in which the Company does not own such Intellectual Property, it has good
and valid licenses for the same which are in full force and effect; in either
case, the Company has the right to use all Intellectual Property as now used in
its business. Except as disclosed in the SEC Filings, no claims have
been asserted with respect to the use of any such Intellectual Property or
challenging or questioning the validity or effectiveness of any such license or
agreement.
SECTION 5.13. Default on Contracts. (a) The Company is not in violation of,
--------------------
or (with or without notice or the passage of time or both) in default under, any
term or provision of any contract, mortgage, deed of trust, bond, indenture,
lease, license, note, franchise certificate, option, warrant, right or other
instrument, undertaking, document or written agreement and any oral obligation,
right or agreement of any kind and nature whatsoever (hereinafter collectively
referred to as "Contracts") to which the Company is a party or by or to which
the Company or its assets or properties may be bound or affected or subject,
which violation or default might reasonably be expected to have a material
adverse effect on the Company or its business, condition (financial or
otherwise), operations, assets, properties or prospects of any of them. The
Company is not aware of any fact, circumstance or event which reasonably can be
expected in the future to cause a violation or default as described in the
preceding sentence.
(b) To the best knowledge of the Company, no party to any Contract
material to the business, condition (financial or otherwise), operations,
assets, properties or prospects of the
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<PAGE>
Company is in violation or default thereunder, which violation or default might
reasonably be expected to have a material adverse effect on the business,
condition (financial or otherwise), operations, assets, properties or prospects
of the Company, and there exists no fact, circumstance or event, including the
transactions contemplated by this Agreement, which reasonably can be expected in
the future to cause any such party to be in any such violation or default, or
which reasonably can be expected in the future to permit any such party to
terminate any such Contract, which termination might reasonably be expected to
have a material adverse effect on the business, condition (financial or
otherwise), operations, assets, properties or prospects of the Company.
SECTION 5.14. Listing. The Company shall use its best efforts to comply
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with all requirements of the National Association of Securities Dealers, Inc.
(the "NASD") and The Nasdaq Stock Market, Inc. with respect to the issuance of
the Shares and the listing of the Shares on the Nasdaq National Market.
SECTION 6. Representations, Warranties and Covenants of the Purchaser.
----------------------------------------------------------
(a) The Purchaser represents and warrants to, and covenants with, the
Company, as of the date hereof and as of the Closing Date, that: (i) the
Purchaser is an "accredited investor" as defined in the Memorandum; (ii) the
Purchaser is acquiring the number of Shares set forth below for its own account
for investment and with no present intention of distributing any of such Shares
(this representation and warranty not limiting the Purchaser's right to sell
pursuant to an effective registration statement registering the Shares for
resale or to be indemnified pursuant to the provisions hereof); (iii) the
Purchaser will not, directly or indirectly, voluntarily offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares, except in compliance
with the Securities Act of 1933, as amended (the "Securities Act") and the rules
and regulations promulgated thereunder; (iv) the Purchaser has had an
opportunity to ask questions and receive answers from the management of the
Company regarding the Company, its business and the offering of the Shares; (v)
the Purchaser has completed or caused to be completed the Questionnaire which is
a part hereof and the answers thereto are true and correct to the best knowledge
of the Purchaser as of the date hereof and will be true and correct as of the
effective date of the registration statement referred to in Section 9.1; (vi)
the Purchaser will notify the Company immediately of any change in any of such
information until such time as the Purchaser has sold all of its Shares or until
the Company is no longer required to keep such registration statements effective
pursuant to Sections 9.1(c); and (vii) the Purchaser has, in connection with its
decision to purchase Shares, relied solely upon the documents described in
Section 5.10 and Section 5.11 and the representations and warranties of the
Company contained herein.
(b) The Purchaser acknowledges, represents and agrees that no action
has been or will be taken in any jurisdiction outside the United States by the
Company that would permit an offering of the Shares, or possession or
distribution of offering material in connection with the issue of the Shares, in
any country or jurisdiction outside the United States where action for that
purpose is required. Each Purchaser outside the United States agrees to comply
with all applicable laws and regulations in each foreign jurisdiction in which
it purchases, offers, sells or
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<PAGE>
delivers Shares or has in its possession or distributes any offering material,
in all cases at its own expense.
(c) The Purchaser agrees not to make any sale of the Shares, pursuant
to the registration statement referred to in Section 9.1 without effectively
causing the prospectus delivery requirements under the Securities Act to be
satisfied. The Purchaser acknowledges that there may occasionally be times when
the Company must suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment to such registration
statement has been filed by the Company and declared effective by the SEC or
until the Company has amended or supplemented such prospectus. The Company
agrees to use its best efforts to cause such amended registration statement to
be declared effective and/or to deliver such amended or supplemented prospectus
as soon as possible. The Purchaser hereby covenants that it will not sell any
Shares pursuant to said prospectus during the period commencing at the time at
which the Company gives the Purchaser notice of the suspension of the use of
said prospectus and ending at the time the Company gives the Purchaser notice
that the Purchaser may thereafter effect sales pursuant to said prospectus.
(d) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Purchaser herein may be legally
unenforceable.
SECTION 7. Survival of Representations, Warranties and Agreements.
------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive the execution of this Agreement, the delivery
to the Purchaser of the Shares being purchased and the payment therefor.
SECTION 8. Conditions to Closing.
---------------------
(a) The obligations of the Purchaser to consummate the transactions
contemplated hereby shall be subject to the satisfaction by the Company of each
of the following conditions on or before the Closing Date, any one or more of
which may be waived by the Purchaser:
(i) The representations and warranties of the Company set forth in
this Agreement delivered to the Purchaser by or on behalf of the Company shall
be true and correct as if made on the Closing Date.
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<PAGE>
(ii) Each of the covenants, agreements and conditions to be performed
and satisfied by the Company pursuant to this Agreement at or prior to Closing
shall have been duly performed and satisfied.
(b) The obligations of the Company to consummate the transactions
contemplated hereby shall be subject to the satisfaction by the Purchaser of
each of the following conditions on or before the Closing Date, any one or more
of which may be waived by the Company:
(i) The representations and warranties of the Purchaser set forth in
this Agreement shall be true and correct as if made on the Closing Date.
(ii) Each of the covenants, agreements and conditions to be performed
and satisfied by the Purchaser pursuant to this Agreement at or prior to Closing
shall have been duly performed and satisfied.
(iii) The Purchaser shall have paid the Purchase Price in
accordance with Section 3.
SECTION 9. Registration of the Shares; Compliance with the Securities Act.
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9.1. Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) prepare and file with the SEC a registration statement (the
"Registration Statement") covering the resale of the Shares by the
Purchasers from time to time on the Nasdaq National Market, or on
such securities market or system on which the Company's Common Stock
shall then be publicly traded, or in privately negotiated
transactions, no later than 60 days following the Closing Date;
(b) use its best efforts, subject to receipt of necessary information
from the Purchasers, to cause the Registration Statement to become
effective as soon as possible thereafter;
(c) prepare and file with the SEC such amendments and supplements to the
Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the
Securities Act until the later of such time as all of the Shares
have been sold pursuant thereto or, by reason of Rule 144(k) under
the Securities Act or any other rule of similar effect, such shares
are no longer required to be registered for the unrestricted sale
thereof by the Purchasers;
(d) furnish to the Purchaser such number of copies of prospectuses and
preliminary prospectuses in conformity with the requirements of the
Securities Act and such
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<PAGE>
other documents as the Purchaser may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the
Shares held by the Purchaser, provided, however, that the obligation
of the Company to deliver copies of prospectuses or preliminary
prospectuses to the Purchaser shall be subject to the receipt by the
Company of reasonable assurances from the Purchaser that the
Purchaser will comply with the applicable provisions of the
Securities Act and of such other securities or blue sky laws as may
be applicable in connection with any use of such prospectuses or
preliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance
in all states, provided, however, that the Company shall not be
required to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or has not
so consented;
(f) bear all expenses in connection with the procedures in paragraphs
(a) through (c) of this Section 9.1, other than brokerage
commissions or placement agent fees and fees and expenses, if any,
of counsel or other advisers to the Purchaser or the Other
Purchasers with respect to the registration and resale of the
Shares; and
(g) prepare and file additional listing applications for the Shares on
the Nasdaq National Market.
The Company understands that the Purchaser disclaims being an underwriter, but
the Purchaser being deemed an underwriter shall not relieve the Company of any
obligations it has hereunder.
SECTION 9.2. Transfer of Shares After Registration. The Purchaser agrees
-------------------------------------
that it will not effect any disposition of the Shares, that would constitute a
sale within the meaning of the Securities Act except as contemplated in the
Registration Statements referred to in Section 9.1 or pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws.
SECTION 9.3. Indemnification. For the purpose of this Section 9.3:
---------------
(a) the term "Selling Shareholder" shall mean any person or entity
selling Shares pursuant to the Registration Statement, and any affiliate
thereof;
(b) the term "Registration Statement" shall include any preliminary
prospectus, final prospectus, exhibit, supplement or amendment included in or
relating to the Registration Statement; and
(c) the term "untrue statement" shall mean any untrue statement or
alleged untrue statement of a material fact in the Registration Statement, or
any omission or alleged omission to state in the Registration Statement a
material fact required to be stated therein or
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<PAGE>
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to which
such Selling Shareholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement, or arise out of any failure by the Company to fulfill any undertaking
included herein or in the Registration Statement, and the Company promptly will
reimburse such Selling Shareholder for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of, or is based upon, an untrue statement made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Shareholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Shareholder to comply with the
covenants and agreements contained herein; provided further, that the
indemnification contained in this Section 9.3 with respect to any prospectus
after it has been amended or supplemented, shall not inure to the benefit of any
Selling Shareholder (or any person controlling such Selling Shareholder) from
whom the person asserting such loss, claim, damage, or liability shall have
purchased Shares, that are the subject thereof if, after copies thereof have
been delivered by the Company to such Selling Shareholder, such Selling
Shareholder shall have failed to send or give a copy of the prospectus as then
amended or supplemented, as the case may be, to such person at or prior to the
confirmation of such sale of such Shares, to such person, and, if such loss,
claim, damage or liability would not have arisen but for the failure of such
Selling Shareholder to deliver the same.
The Purchaser agrees to indemnify and hold harmless the Company (and each
other person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure of
the Purchaser to comply with its covenants and agreements contained herein, or
any untrue statement if such untrue statement was made in reliance upon and in
conformity with written information furnished by or on behalf of the Purchaser
specifically for use in preparation of the Registration Statement, and the
Purchaser promptly will reimburse the Company (or such officer, director or
controlling person), as the case may be, for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim.
Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 9.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and
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<PAGE>
such indemnifying person shall have been notified thereof, such indemnifying
person shall be entitled to participate therein, and, to the extent it shall
wish, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof. In the event that the indemnifying party shall have assumed the
defense of such action, such indemnifying party shall not enter into any
compromise or settlement without the indemnified party's prior written consent,
which consent shall not be unreasonably withheld, delayed or denied.
SECTION 9.4. Termination of Conditions and Obligations. The restrictions
-----------------------------------------
imposed by Section 6 or Section 9.2 upon the transferability of the Shares shall
cease and terminate as to any particular Shares when such Shares shall have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement or at such time as an opinion of counsel satisfactory to
the Company shall have been rendered to the effect that such restrictions are
not necessary in order to comply with the Securities Act.
SECTION 9.5. Information Available. So long as the Registration Statement is
---------------------
effective covering the resale of Shares owned by the Purchaser, the Company will
furnish to the Purchaser upon request:
(a) any document filed by the Company with the SEC;
(b) upon the reasonable request of the Purchaser, any other information
concerning the Company that is generally available to the public;
and
(c) an adequate number of copies of the prospectuses relating to the
resale of the Shares to supply to any party requiring such
prospectuses.
SECTION 10. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified mail, postage prepaid, and shall be deemed given when so
mailed:
(a) if to the Company to:
PerSeptive Biosystems, Inc.
500 Old Connecticut Path
Framingham, MA 01701
Attention: Chief Executive Officer
(b) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
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<PAGE>
SECTION 11. Termination.
-----------
(a) By the Purchaser. The Purchaser may terminate this Agreement
----------------
immediately, if at any time prior to the Closing, the Company shall cease
conducting business in the normal course; become insolvent or become unable to
meet its obligations as they become due; make a general assignment for the
benefit of creditors; petition, apply for, suffer or permit with or without its
consent the appointment of custodian, receiver, trustee in bankruptcy or similar
officer for all or any substantial part of its business or assets; avail itself
or become subject to any proceeding under the Federal Bankruptcy Code or any
similar state, federal or foreign statute relating to bankruptcy, insolvency,
reorganization, receivership, arrangement, adjustment of debts, dissolutions or
liquidation.
(b) By the Company. The Company may terminate this Agreement at any
--------------
time prior to the Closing.
SECTION 12. Changes. Any term of the Agreements may be amended or
-------
compliance therewith waived with the written consent of the Company and the
holders of a majority of the Shares purchased pursuant to the Agreements.
SECTION 13. Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 14. Severability. In case any provision contained in this
------------
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 15. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the Commonwealth of
Massachusetts and United States federal law.
SECTION 16. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives as of the
following date.
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<PAGE>
Dated: August 16, 1996
PERSEPTIVE BIOSYSTEMS, INC.
By:
--------------------------------
Title:
[Purchaser Signature Page Continues on the Following Page]
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<PAGE>
PURCHASER SIGNATURE PAGE AND QUESTIONNAIRE
------------------------------------------
The undersigned Purchaser hereby executes the Securities Purchase Agreement
with PerSeptive Biosystems, Inc. (the "Company") and hereby authorizes this
signature page to be attached to a counterpart of such document executed by a
duly authorized officer of the Company.
No. of Shares to be ______________________________
Purchased:_______________ Name of Purchaser [PLEASE
PRINT OR TYPE]
Aggregate Purchase By:___________________________
Price $_________________ [SIGN HERE]
Title:________________________
Purchaser is an "accredited investor" as defined in Regulation D under the
Securities Act of 1933.
Name in which Shares are to be
registered: ______________________________
Address of registered holder: ______________________________
______________________________
Social Security or Tax ID Number: ______________________________
Contact name and telephone number
regarding settlement and ______________________________
registration: Name
______________________________
Telephone Number
Number of shares of common stock of the Company beneficially owned (meaning
shares owned or controlled or which the Purchaser has the right to acquire or
vote) by the Purchaser, other than the Shares being purchased pursuant
hereto:____________________
Have you or your organization had any position, office or other material
relationship with the Company within the past three years? _____ Yes
_____ No
Do you or your organization have any direct or indirect affiliation or
association with any NASD member? _____ Yes _____ No
If "Yes" to either of the last two questions, please indicate the nature of any
such relationships below:
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