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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
JULY 29, 1997
---------------------------------
Date of Report
(Date of earliest event reported)
INCONTROL, INC.
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(Exact Name of Registrant as Specified in Charter)
DELAWARE 0-24540 91-1501619
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(State or Other Jurisdiction (Commission File No.) (IRS Employer
of Incorporation) Identification No.)
6675 - 185TH AVENUE, N.E., REDMOND, WASHINGTON 98052
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(Address of principal executive offices) (Zip Code)
(206) 861-9800
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(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
On July 29, 1997, InControl, Inc. (the "Company") sold and issued
740,740 shares of common stock (the "Regulation D Shares") to two United States
institutional investors. The Regulation D Shares were issued and sold pursuant
to the provisions of Regulation D promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"). The aggregate offering price of the Regulation D Shares was
$6,999,993, based on a per share price of $9.45. The form of Stock Purchase
Agreement pursuant to which the Regulation D Shares were sold is attached hereto
as Exhibit 4.1.
See Item 9 for a description of the sale and issuance of additional
shares of common stock of the Company pursuant to Regulation S.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
Exhibits
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4.1 Form of Stock Purchase Agreement between InControl, Inc. and the
United States investors, dated July 28, 1997.
4.2 Form of Stock Purchase Agreement between InControl, Inc. and the
European investors, dated July 25, 1997.
ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATION S
On July 29, 1997, the Company sold and issued 875,000 shares of common
stock (the "Regulation S Shares") to four European institutional investors. The
Regulation S Shares were issued and sold pursuant to the provisions of
Regulation S promulgated by the SEC under the Securities Act. The aggregate
offering price of the Regulation S Shares was $8,268,750, based on a per share
price of $9.45. The investment banking firm of Goldman, Sachs & Co. acted as
placement agent for the sale of the Regulation S Shares and received 7% of the
gross proceeds from the sale of the Regulation S Shares, or approximately
$578,813, as compensation for such services. The form of Stock Purchase
Agreement pursuant to which the Regulation S Shares were sold is attached hereto
as Exhibit 4.2.
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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.
INCONTROL, INC.
Dated: August 11, 1997 By /s/ Kurt C. Wheeler
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Kurt C. Wheeler
Chairman, President and
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Form of Stock Purchase Agreement between InControl, Inc. and
the United States investors, dated July 28, 1997.
4.2 Form of Stock Purchase Agreement between InControl, Inc.
and the European investors, dated July 25, 1997.
</TABLE>
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EXHIBIT 4.1
INCONTROL, INC.
STOCK PURCHASE AGREEMENT
DATED
AS OF
JULY 28, 1997
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CONTENTS
<TABLE>
<S> <C>
1. Purchase and Sale of Stock .......................................... 1
1.1 Purchase and Sale .......................................... 1
1.2 Purchase Price ............................................. 1
2. Closing ............................................................. 1
2.1 Closing Date ............................................... 1
2.2 Delivery ................................................... 1
3. Representations and Warranties of the Company ....................... 1
3.1 Organization, Good Standing and Qualification, Due
Execution and Validity ..................................... 1
3.2 Capitalization ............................................. 2
3.3 Authorization .............................................. 2
3.4 Valid Issuance of Stock .................................... 2
3.5 Governmental Consents ...................................... 2
3.6 Litigation ................................................. 3
3.7 Employee Compensation Plans ................................ 3
3.8 Compliance With Other Instruments .......................... 3
3.9 Disclosure ................................................. 3
3.10 SEC Reports, Financial Statements .......................... 4
3.11 Compliance With Laws ....................................... 4
3.12 Private Offering ........................................... 5
3.13 Changes .................................................... 5
3.14 Certain Fees ............................................... 6
4. Representations and Warranties of the Investor ...................... 6
4.1 Authorization .............................................. 6
4.2 Exemption from Registration ................................ 6
4.3 Purchase Entirely for Own Account .......................... 7
4.4 Investment Experience ...................................... 7
4.5 Access to Information ...................................... 7
</TABLE>
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<TABLE>
<S> <C>
4.6 Restricted Securities ...................................... 8
4.7 Residency .................................................. 8
4.8 Legends .................................................... 8
5. Registration Rights ................................................. 8
6. Conditions of Investor's Obligations at the Closing Date ............ 8
6.1 Representations and Warranties ............................. 9
6.2 Performance ................................................ 9
6.3 Exemption .................................................. 9
6.4 Compliance Certificate ..................................... 9
6.5 Secretary's Certificate .................................... 9
6.6 Proceedings and Documents .................................. 9
6.7 Opinion of Company Counsel ................................. 9
7. Conditions of the Company's Obligations at the Closing Date ......... 10
7.1 Representations and Warranties ............................. 10
7.2 Exemption .................................................. 10
7.3 Performance ................................................ 10
8. Entire Agreement; Governing Law ..................................... 10
9. Notice .............................................................. 10
10. Amendments .......................................................... 11
11. Counterparts ........................................................ 11
EXHIBIT A Information Provided to the Investor
EXHIBIT B Registration Rights
</TABLE>
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 28, 1997, between INCONTROL,
INC., a Delaware corporation (the "Company"), and _____________________, (the
"Investor").
1. PURCHASE AND SALE OF STOCK
1.1 PURCHASE AND SALE
Upon the terms and subject to the conditions of this Agreement, the
Company shall sell and issue to the Investor, and the Investor shall purchase
from the Company __________ shares of Common Stock of the Company (the
"Shares").
1.2 PURCHASE PRICE
The price per Share shall be $9.45.
2. CLOSING
2.1 CLOSING DATE
The closing of the sale and purchase of the Shares shall be held at
3:00 p.m., on July 29, 1997 (the "Closing Date").
2.2 DELIVERY
At the Closing, subject to the terms and conditions hereof, the Company
shall deliver to the Investor a certificate, representing the Shares to be
purchased by the Investor from the Company, dated the Closing Date, against
payment of the purchase price therefor by wire transfer.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION, DUE EXECUTION
AND VALIDITY
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware and has all requisite
corporate power and authority to own its properties and carry on its business as
currently conducted and as proposed to be conducted. The Company is duly
qualified to transact business and is in good standing as a foreign corporation
in each jurisdiction in which the failure to so qualify would have a material
adverse effect on its financial condition, results of operations, business or
properties. The
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Company has previously provided the Investor with complete and correct copies of
its Restated Certificate of Incorporation and its Amended and Restated Bylaws as
in effect on the date of this Agreement.
3.2 CAPITALIZATION
As of the date of this Agreement, the authorized capital of the Company
consists of 10,000,000 shares of preferred stock, no shares of which are
outstanding, 400,000 shares of which are designated as Series A Participating
Cumulative Preferred Stock, which are issuable upon exercise of certain
preferred stock purchase rights associated with shares of the Company's common
stock, and 40,000,000 shares of common stock (the "Common Stock"), 17,120,445
shares of which are issued and outstanding, 102,901 shares of which are subject
to outstanding warrants to purchase shares of Common Stock, and 3,981,114 shares
of which are reserved for issuance upon the exercise of stock options granted or
to be granted under the Company's 1990 Restated Stock Option Plan, 1994 Stock
Option Plan for Nonemployee Directors and 1996 Stock Option Plan for Nonemployee
Directors.
3.3 AUTHORIZATION
The Company has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement. All corporate action on the
part of the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the transactions
contemplated herein, the performance of all obligations of the Company hereunder
and thereunder and the authorization, issuance and delivery of the Shares being
sold hereunder have been taken or will be taken prior to the Closing. This
Agreement has been duly executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms.
3.4 VALID ISSUANCE OF STOCK
The Shares, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of any liens or encumbrances
created by the Company, except as set forth herein and subject to limitations
promulgated under Rule 144 and Regulation D of the rules promulgated pursuant to
the Securities Act of 1933, as amended (the "Act"), and will be issued in
compliance with all applicable state and federal securities laws. The
outstanding shares of Common Stock of the Company are all duly and validly
authorized and issued, fully paid and nonassessable and were issued in
compliance with all applicable state and federal securities laws.
3.5 GOVERNMENTAL CONSENTS
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, regional,
state or local governmental
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authority on the part of the Company is required in connection with the
consummation of the transactions contemplated by this Agreement.
3.6 LITIGATION
There is no action, suit, claim, proceeding or investigation pending
or, to the Company's knowledge, currently threatened against the Company that
relates to or challenges the legality, validity or enforceability of this
Agreement or the Shares or that could either individually or in the aggregate
have a material adverse effect on the financial condition, results of
operations, business or properties of the Company. The Company is not a party to
or subject to the provisions of any order, writ, injunction, judgment or decree
of any court or government agency or instrumentality that could have a material
adverse effect on its financial condition, results of operations, business or
properties.
3.7 EMPLOYEE COMPENSATION PLANS
The Company is not a party to or bound by any currently effective,
employment agreement, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement or other employee compensation
agreement, except for the Company's 1990 Restated Stock Option Plan, the
Company's 1994 Stock Option Plan for Nonemployee Directors and 1996 Stock Option
Plan for Nonemployee Directors and as disclosed in the SEC Documents as defined
below.
3.8 COMPLIANCE WITH OTHER INSTRUMENTS
The Company is not in violation of any provision of its Restated
Certificate of Incorporation or its Amended and Restated Bylaws or in violation
or default of any provision of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or any provision of any
federal or state statute, rule or regulation applicable to the Company, which
violation or default would adversely affect the legality, validity, or
enforceability of this Agreement or have a material adverse effect on its
financial condition, results of operations, business or properties. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not result in any such violation or
default or require any consent under or be in conflict with or constitute, with
or without the passage of time and giving of notice, either a violation or
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company.
3.9 DISCLOSURE
The Company has fully provided the Investor, its representatives and
legal counsel with all the information set forth on Exhibit A attached hereto
and has provided the opportunity to ask and have answered satisfactorily,
questions of the Company. Neither this Agreement, the exhibits hereto, nor any
certificate or material prepared by the Company for the benefit of the Investor
at the Closing contains any untrue statement of a material fact or
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omits to state a material fact necessary to make the statements made therein not
misleading in light of the circumstances under which they were made.
3.10 SEC REPORTS, FINANCIAL STATEMENTS
The Company has furnished the Investor with a true and complete copy of
each report, schedule, registration statement and definitive proxy statement
filed by the Company with the Securities and Exchange Commission (the "SEC")
since December 31, 1996 (the "SEC Documents"), which are all the documents
(other than registration statements on Form S-8 of the SEC) that the Company has
been required to file or has filed with the SEC. As of their respective dates,
the SEC Documents complied with the requirements of the Act, or the Securities
Exchange Act of 1934, as amended, as applicable, and the rules and regulations
of the SEC thereunder, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, as in effect at the time
of filing, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto or, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC) and fairly present, subject,
in the case of unaudited financial statements, to normal recurring audit
adjustments, the financial position of the Company and its consolidated
subsidiaries at the dates thereof and the results of their operations and
changes in financial position for the periods then ended.
3.11 COMPLIANCE WITH LAWS
(a) The Company has complied, and is in compliance with, all
federal, state, county, local and foreign laws, rules, regulations, ordinances,
decrees and orders applicable to the operation of its business, to its
employees, or to the real property and the personal property that it owns or
leases (the "Property"), the failure to comply with which would, individually or
in the aggregate, have a material adverse effect on the business, assets or
operations of the Company, including, without limitation, all such laws, rules,
ordinances, decrees and orders relating to antitrust, consumer protection,
currency exchange, environmental protection, equal opportunity, health,
occupational safety, pension, securities and trading-with-the-enemy matters. The
Company has not received any notification of any asserted present or past
unremedied failure by the Company to comply with any of such laws, rules,
ordinances, decrees or orders.
(b) The Company is not currently in violation of any
applicable building, zoning, environmental or other law, ordinance or regulation
in respect of any of its real property employed in its operations or its plant,
structures or operations. No such law, ordinance or regulation would reasonably
be expected to prevent the use of substantially all of
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such real property for the conduct thereon of the business of the Company as
currently conducted.
(c) The Company is not in violation of, and has not violated,
in connection with the ownership, use, maintenance or operation of its Property
or the conduct of its business, any applicable federal, state, county, local or
foreign statutes, laws, regulations, guidances, rules, ordinances, codes,
licenses, permits, judgments, writs, decrees, injunctions or orders of any
governmental entity relating to environmental (air, water, groundwater, soil,
noise and odor) matters, including all other applicable environmental
requirements where such violation might have a material adverse impact on the
Company's business, business prospects, assets, operations or condition
(financial or other).
(d) The Company has made all filings and given all notices to
governmental authorities and obtained all necessary ordinances, registrations,
declarations, approvals, orders, trademarks, patents, tradenames, licenses,
consents, qualifications, certificates, permits and authorizations from any
foreign, Federal, state or local government or governmental agency or department
to own or lease its properties and to conduct its business as currently
conducted, the absence or failure of which would have a material adverse effect
on the Company. All such authorizations, ordinances, consents, approvals,
waivers, orders, trademarks, patents, tradenames, licenses, consents,
qualifications, certificates and permits are in full force and effect and not
the subject of any pending or, to the Company's knowledge, any threatened attack
by appeal or direct proceeding or otherwise.
3.12 PRIVATE OFFERING
Neither the Company nor any person acting on its behalf has, directly
or through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of any security (as defined in the Act) that is
or may be integrated with the sale of the Shares in a manner that would require
the registration of the Shares under the Act within the six months preceding the
date of this Agreement; neither the Company nor any person acting on its behalf
has offered or sold or will offer or sell any Shares by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Act.
3.13 CHANGES
Since March 31, 1997 there has not been:
(a) Any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the business, financial position,
results of operations, prospects or properties of the Company;
(b) Any material change in the accounting methods or practices
followed by the Company;
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(c) Any material debt obligation or liability (whether
absolute or contingent) incurred by the Company (whether or not presently
outstanding) except (i) current liabilities incurred, and obligations under
agreements entered into, in the ordinary course of business and (ii) obligations
or liabilities entered into or incurred in connection with the execution of this
Agreement; or
(d) Any sale, lease, abandonment or other disposition by the
Company of any real property or, other than in the ordinary course of business,
of any equipment or other operating properties or, other than in the ordinary
course of business, any sale, assignment, transfer, license or other disposition
by the Company of any intellectual property or other intangible asset.
3.14 CERTAIN FEES
No broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the sale of the Shares to
the Investor.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants that:
4.1 AUTHORIZATION
All acts and conditions necessary for the authorization, execution,
delivery and consummation by the Investor of this Agreement and the transactions
contemplated hereby have been, or will prior to the Closing be, taken, performed
and obtained. This Agreement constitutes a valid and legally binding obligation
of the Investor, enforceable in accordance with its terms. The Investor has full
power and authority to execute, deliver and perform its obligations under this
Agreement and to own the Shares. The execution, delivery and performance of this
Agreement and the transaction contemplated hereby by the Investor does not
violate any provision of, or constitute a material breach of or default under,
the charter or bylaws of the Investor, any term, condition or provision of any
agreement, indenture or other instrument to which the Investor is a party, or by
which it or its properties or assets are bound, or of any order, judgment or
decree against or binding upon such Investor.
4.2 EXEMPTION FROM REGISTRATION
The Investor has been advised that the none of the Shares proposed to
be purchased by the Investor hereunder is being registered under the Act and the
rules and regulations of the SEC promulgated thereunder, or applicable state
securities laws, but is being offered and sold pursuant to exemptions from such
laws, and that the Company's reliance upon such exemptions is predicated in part
on the Investor's representations contained herein. The Investor acknowledges
that the Company is relying in part upon the Investor's representations and
warranties contained herein for the purpose of qualifying the offer and sale of
the Shares
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proposed to be offered and sold hereunder for applicable exemptions from
registration or qualification pursuant to federal or state securities laws,
rules and regulations.
4.3 PURCHASE ENTIRELY FOR OWN ACCOUNT
The Shares to be received by the Investor will be acquired for
investment for the Investor's own account, not as a nominee or agent, and not
with a view to the distribution of any part thereof, and the Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same in a manner contrary to the Act or any applicable state
securities law, and the Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person with respect to any of the
Shares.
4.4 INVESTMENT EXPERIENCE
The Investor is an investor in securities of companies in the
development stage, qualifies as an "accredited investor" as defined in Rule
501(a) of Regulation D promulgated by the SEC that meets the requirements of
Rule 501(a)(1), (2), (3), or (7) of said Regulation D, is purchasing shares in
an aggregate amount of at least $1,000,000, and acknowledges that the Shares are
a speculative risk. The Investor is able to fend for itself in the transactions
contemplated by this Agreement, can bear the economic risk of its investment
(including possible complete loss of such investment) for an indefinite period
of time and has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the investment in the
Shares. The Investor represents it has not been organized for the purpose of
acquiring the Shares.
4.5 ACCESS TO INFORMATION
The Investor has been furnished such information as it deems necessary
to evaluate an investment in the Shares, including the information as set forth
on Exhibit A attached hereto. The Investor has been given access to sufficient
information regarding the Company including, in particular, the current
financial condition, results of operations, business, properties, management and
prospects of the Company and the risks associated therewith and has utilized
such access to its satisfaction for the purpose of obtaining information or
verifying information, and particularly, the Investor has either attended or
been given reasonable opportunity to attend a meeting with representatives of
the Company for the purpose of asking questions of, and receiving answers from,
such representatives concerning the terms and conditions of the offering of the
Shares and to obtain any additional information, to the extent reasonably
available.
4.6 RESTRICTED SECURITIES
The Investor realizes that none of the Shares proposed to be purchased
by the Investor hereunder has been registered under the Act and that all of such
Shares are characterized under the Act as "restricted securities" and therefore
cannot be sold or transferred unless
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subsequently registered under the Act or an exemption from such registration is
available and the Investor would most likely not be able to liquidate its
investment in the event of an emergency or to pledge any of the Shares proposed
to be purchased by the Investor hereunder as collateral security for loans. The
Investor's financial condition is such that it is unlikely that the Investor
would need to dispose of any of the Shares proposed to be purchased by the
Investor hereunder in the foreseeable future. In this connection, the Investor
represents that it is familiar with Rule 144 of the SEC, as presently in effect,
and understands the resale limitations imposed thereby and by the Act.
4.7 RESIDENCY
For purposes of the Company's compliance with applicable state and
foreign securities laws, the Investor represents that it is a bona fide resident
of, and/or is domiciled in the state of [____________].
4.8 LEGENDS
It is understood that the certificates evidencing the Shares may bear
legends in substantially the following form:
"The securities evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended (the 'Act'), or applicable state
securities law, and no interest therein may be sold, distributed, assigned,
offered, pledged or otherwise transferred unless (i) there is an effective
registration statement under the Act and applicable state securities laws
covering any such transaction involving said securities, (ii) this corporation
receives an opinion of legal counsel for the holder of these securities
reasonably satisfactory to this corporation stating that such transaction is
exempt from registration or (iii) this corporation otherwise satisfies itself
that such transaction is exempt from registration."
5. REGISTRATION RIGHTS
The terms of the Registration Rights attached hereto as Exhibit B are
hereby incorporated into and made a part of this Agreement as if fully set forth
herein.
6. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING DATE
The obligations of the Investor under Section 1 hereof are subject to
the fulfillment, on or before the Closing Date of each of the following
conditions, unless waived by the Investor:
6.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained in Section
3 hereof shall be true in all material respects on and as of the Closing Date.
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6.2 PERFORMANCE
The Company shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing Date.
6.3 EXEMPTION
The offer and sale of the Shares to the Investor pursuant to this
Agreement shall be exempt from registration under the Act.
6.4 COMPLIANCE CERTIFICATE
The Chief Executive Officer of the Company shall have delivered to the
Investor a certificate stating that the conditions specified in Sections 6.1,
6.2 and 6.3 hereof have been fulfilled.
6.5 SECRETARY'S CERTIFICATE
The Investor shall have received a certificate, dated the Closing Date,
signed by the secretary of the Company and certifying (a) that attached thereto
is a true, complete and correct copy of (i) the Company's Restated Certificate
of Incorporation and Amended and Restated Bylaws and (ii) resolutions duly
adopted by the Board of Directors of the Company authorizing the execution and
delivery of this Agreement and the issuance of the Shares, (b) the incumbency of
officers executing this Agreement, and (c) that attached thereto is a specimen
of the stock certificate for the Common Stock.
6.6 PROCEEDINGS AND DOCUMENTS
All corporate and other proceedings in connection with the transactions
contemplated at the Closing Date and all documents incident thereto shall be
reasonably satisfactory to the Investor and the Investor's counsel.
6.7 OPINION OF COMPANY COUNSEL
The Investor shall have received from Perkins Coie, counsel for the
Company, an opinion, dated as of the Closing, in form and substance satisfactory
to the Investor.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING DATE
The obligations of the Company under this Agreement are subject to the
fulfillment on or before the Closing Date of the following conditions:
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7.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Investor contained in Section
4 hereof shall be true in all material respects on and as of the Closing Date.
7.2 EXEMPTION
The offer and sale of the Shares to the Investor pursuant to this
Agreement shall be exempt from registration under the Act, and the Company shall
have received from Perkins Coie an opinion, dated the Closing Date, to such
effect.
7.3 PERFORMANCE
The Investor shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing Date.
8. ENTIRE AGREEMENT; GOVERNING LAW
This Agreement and the other documents delivered at the Closing
constitute the full and entire understanding and agreement between the parties
with respect to the subject matter hereof and supersede all prior agreements
with respect to the subject matter hereof. This Agreement shall be governed by
and construed under the laws of the state of Washington as applied to agreements
among Washington residents entered into and to be performed entirely within the
state of Washington.
9. NOTICE
Unless otherwise provided, any notice desired or required to be given
hereunder shall be in writing given by personal delivery or certified or
registered mail, telegram or confirmed facsimile transmission, addressed to such
party at its address listed on the signature page of this Agreement, or to such
other address as any party shall have previously designated by such a notice.
The effective date of any notice or request shall be three days from the date it
is sent by the addressor with charges prepaid so long as it is in fact received
within five days, or when successful transmission is confirmed if sent by
facsimile, or when personally delivered.
10. AMENDMENTS
Any term of this Agreement may be amended and the observance of any
term 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 Investor.
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11. COUNTERPARTS
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed and delivered shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
INCONTROL, INC.
By ____________________________________
Its _________________________________
Address: 6675 -- 185th Avenue N.E.
Redmond, WA 98052
Fax: (206) 861-9301
"INVESTOR"
_______________________________________
By ____________________________________
Its _________________________________
Address: _____________________________
_____________________________
_____________________________
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EXHIBIT A
INFORMATION PROVIDED TO THE INVESTOR
1. Annual Report of the Company on Form 10-K for the year ended December 31,
1996.
2. Quarterly Report of the Company on Form 10-Q for the quarter ended March 31,
1997.
3. Annual Report of the Company to stockholders for the year ended December 31,
1996.
4. Proxy Statement, dated April 10, 1997, relating to the 1997 annual meeting
of stockholders of the Company.
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EXHIBIT B
REGISTRATION RIGHTS
1. REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS
As used in this Agreement, the following terms not otherwise defined in
the Agreement shall have the following respective meanings:
"Commission" shall mean the United States Securities and Exchange
Commission.
"Holder" shall mean the Investor.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement with the
Commission in compliance with the Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company and of one special counsel to the Holder, and blue sky fees and
expenses.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of the Shares by the
Holder.
"Shelf Period" shall mean the period commencing 40 days after the
Closing Date and ending on the date one year from the Closing Date.
1.2 SHELF REGISTRATION
The Company shall use its best efforts to effect upon commencement of
the Shelf Period a registration with respect to all the Shares held by the
Holder (including, without limitation, appropriate qualification under
applicable blue sky or other state securities laws) and to maintain the
registration effective until the earlier of (i) the expiration of the Shelf
Period or (ii) the time at which the Shares of the Holder have been sold or
distributed (such period, the "Selling Period"). If at any time during the Shelf
Period the Company shall notify the Holder that there exists material nonpublic
information which must be disclosed in order for the registration statement not
to be false or misleading, then the Company may require that no sales may be
made under the registration statement until such time as disclosure is made. The
Company shall use its best efforts to cause such disclosure to be made as soon
as practicable.
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1.3 EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with registrations
pursuant to Section 1.2 shall be borne by the Company. All Selling Expenses
relating to securities registered on behalf of the Holder shall be borne by the
Holder on the basis of the number of Shares registered and sold.
1.4 REGISTRATION PROCEDURES
In the case of registration effected by the Company pursuant to this
Section 1, the Company will keep the Holder advised in writing as to the
initiation of registration and as to the completion thereof.
At its expense the Company will:
(a) Registration Statement. Prepare and file with the
Commission a registration statement with respect to the Shares held by the
Holder and use its best efforts to cause such registration statement to become
and remain effective for the Selling Period;
(b) Amendments. Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Copies. Furnish to the Holder and to the underwriters of
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as the Holder or such underwriters may reasonably request in order to
facilitate the public offering of such securities.
(d) Underwriting Agreement. In the event of any underwritten
public offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. The Holder shall also enter into and perform its obligations under
such agreement.
(e) Blue Sky. Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holder, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any state or jurisdiction.
(f) Notice. Notify the Holder covered by such registration
statement (at any time when a prospectus relating thereto is required to be
delivered under the Act) of 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 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.
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(g) Opinion. Furnish, at the request of the Holder requesting
registration of Shares delivered to the underwriters for sale in connection with
a registration pursuant to Section 1.2, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder and (ii) a
letter dated such date, from the independent accountants of the Company, in form
and substance as is customarily given by independent accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any, and
to the Holder.
1.5 INFORMATION BY HOLDER
The Holder shall furnish to the Company such information regarding
itself, the Shares it holds and the distribution proposed by it as the Company
may reasonably request in writing and as shall be required in connection with
any registration, qualification or compliance referred to in this Section 1.
1.6 INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification by the Company. Upon the registration of
Shares pursuant to Section 1.2 hereof, the Company shall indemnify and hold
harmless the Holder and each underwriter, selling agent or other securities
professional, if any, that facilitates the disposition of such Shares, and each
of their respective officers and directors and each person who controls the
Holder, underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any losses, claims, damages or
liabilities, joint or several, to which the Holder or such other persons may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such Shares are to be
registered under the Act, or any prospectus contained therein or furnished by
the Company to the Holder or other such person, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company hereby agrees to
reimburse the Holder or other person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable to the Holder or other person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or prospectus, or amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Company by the Holder or such other person expressly for use therein.
(b) Indemnification by the Holder and any Agents and
Underwriters. The Holder agrees, as a consequence of the inclusion of the Holder
in such registration,
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and each underwriter, selling agent or other securities professional, if any,
which facilitates the disposition of such Shares shall agree, as a consequence
of facilitating such disposition of Shares, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, officers who sign any
registration statement with respect to such Shares and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company or such other persons may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in such registration
statement or prospectus, or any amendment or supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by the Holder, underwriter, selling agent or other securities
professional expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 1.6,
notify such indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.6. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof,
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under this Section 1.6 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or
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claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this
Section 1.6 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 1.6(d) were determined by
pro rata allocation (even if the Holder or any underwriters, selling agents or
other securities professionals or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 1.6(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations
of the Holder and any underwriters, selling agents or other securities
professionals in this Section 1.6(d) to contribute shall be several in
proportion to the number of Shares registered, underwritten, or sold as the case
may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 1.6,
in no event will (i) the Holder be required to undertake liability to any person
under this Section 1.6 for any amounts in excess of the dollar amount of the
proceeds to be received by the Holder from the sale of the Holder's Shares
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any registration statement under which such Shares are to be
registered under the Act and (ii) any underwriter, selling agent or other
securities professional be required to undertake liability to any person
hereunder for any amounts in excess of the discount, commission or other
compensation payable to such underwriter, selling agent or other securities
professional with respect to the Shares underwritten or sold by it.
(f) The obligations of the Company under this Section 1.6
shall be in addition to any liability which the Company may otherwise have to
the Holder, underwriter, selling agent or other securities professional within
the meaning of Section 15 of the Act or
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Section 20 of the Exchange Act, and the obligations of the Holder or other such
person under this Section 1.6 shall be in addition to any liability which the
Holder or other person may otherwise have to the Company, its directors,
officers who sign any registration statement with respect to such Shares and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act. The remedies provided
in this Section 1.6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to an indemnified party at law or in equity.
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EXHIBIT 4.2
INCONTROL, INC.
STOCK PURCHASE AGREEMENT
DATED
AS OF
JULY 25, 1997
<PAGE> 2
CONTENTS
<TABLE>
<S> <C> <C>
1. Purchase and Sale of Stock ........................................... 1
1.1 Purchase and Sale ........................................... 1
1.2 Purchase Price .............................................. 1
2. Closing .............................................................. 1
2.1 Closing Date ................................................ 1
2.2 Delivery .................................................... 1
3. Representations and Warranties of the Company ........................ 1
3.1 Organization, Good Standing and Qualification, Due
Execution and Validity ...................................... 1
3.2 Capitalization .............................................. 2
3.3 Authorization ............................................... 2
3.4 Valid Issuance of Stock ..................................... 2
3.5 Governmental Consents ....................................... 3
3.6 Litigation .................................................. 3
3.7 Employee Compensation Plans ................................. 3
3.8 Compliance With Other Instruments ........................... 3
3.9 Disclosure .................................................. 4
3.10 SEC Reports, Financial Statements ........................... 4
3.11 Compliance With Laws ........................................ 4
3.12 Private Offering ............................................ 5
3.13 Changes ..................................................... 5
3.14 Certain Fees ................................................ 6
4. Representations and Warranties of the Investors ...................... 6
4.1 Authorization ............................................... 6
4.2 Purchase Entirely for Own Account ........................... 7
4.3 Investment Experience ....................................... 7
4.4 Access to Information ....................................... 7
4.5 Restricted Securities; Compliance with Regulation S ......... 7
</TABLE>
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<TABLE>
<S> <C> <C>
4.6 Legends ..................................................... 8
5. Restrictions on Resale ............................................... 8
5.1 Holding Period .............................................. 8
5.2 Restricted Period ........................................... 9
5.3 Registration Rights ......................................... 9
5.4 Transferees ................................................. 9
5.5 Permitted Transfers ......................................... 9
6. Conditions of Investor's Obligations at the Closing Date ............. 9
6.1 Representations and Warranties .............................. 10
6.2 Performance ................................................. 10
6.3 Exemption ................................................... 10
6.4 Compliance Certificate ...................................... 10
6.5 Secretary's Certificate ..................................... 10
6.6 Proceedings and Documents ................................... 10
6.7 Opinion of Company Counsel .................................. 10
7. Conditions of the Company's Obligations at the Closing Date .......... 11
7.1 Representations and Warranties .............................. 11
7.2 Exemption ................................................... 11
7.3 Performance ................................................. 11
8. Entire Agreement; Governing Law ...................................... 11
9. Notice ............................................................... 11
10. Amendments ........................................................... 12
11. Third-Party Beneficiary .............................................. 12
12. Counterparts ......................................................... 12
EXHIBIT A Schedule of Investors
EXHIBIT B Information Provided to the Investors
EXHIBIT C Registration Rights
</TABLE>
ii
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 25, 1997, between INCONTROL,
INC., a Delaware corporation (the "Company"), and the investors listed on
Exhibit A hereto, as at any time amended (collectively, the "Investors" and
individually, an "Investor").
1. PURCHASE AND SALE OF STOCK
1.1 PURCHASE AND SALE
Upon the terms and subject to the conditions of this Agreement, the
Company shall sell and issue to each Investor, and each Investor shall purchase
from the Company, severally and not jointly, the number of shares of Common
Stock of the Company (the "Shares") specified opposite of such Investor's name
on the Schedule of Investors attached hereto as Exhibit A.
1.2 PURCHASE PRICE
The price per Share shall be $9.45.
2. CLOSING
2.1 CLOSING DATE
The closing of the sale and purchase of the Shares shall be held at
4:00 p.m. London, England Time, on July 29, 1997 (the "Closing Date") .
2.2 DELIVERY
At the Closing, subject to the terms and conditions hereof, the Company
shall deliver to each Investor a certificate, representing the Shares to be
purchased by such Investor from the Company, dated the Closing Date, against
payment of the purchase price therefor by wire transfer.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Investor as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION, DUE EXECUTION
AND VALIDITY
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware and has all requisite
corporate power and authority to own its properties and carry on its business as
currently conducted and as proposed to be
<PAGE> 5
conducted. The Company is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on its financial condition,
results of operations, business or properties. The Company has previously
provided each Investor with complete and correct copies of its Restated
Certificate of Incorporation and its Amended and Restated Bylaws as in effect on
the date of this Agreement.
3.2 CAPITALIZATION
As of the date of this Agreement, the authorized capital of the Company
consists of 10,000,000 shares of preferred stock, no shares of which are
outstanding, 400,000 shares of which are designated as Series A Participating
Cumulative Preferred Stock, which are issuable upon exercise of certain
preferred stock purchase rights associated with shares of the Company's common
stock, and 40,000,000 shares of common stock (the "Common Stock"), 17,120,445
shares of which are issued and outstanding, 102,901 shares of which are subject
to outstanding warrants to purchase shares of Common Stock, and 3,981,114 shares
of which are reserved for issuance upon the exercise of stock options granted or
to be granted under the Company's 1990 Restated Stock Option Plan, 1994 Stock
Option Plan for Nonemployee Directors and 1996 Stock Option Plan for Nonemployee
Directors.
3.3 AUTHORIZATION
The Company has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement. All corporate action on the
part of the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the transactions
contemplated herein, the performance of all obligations of the Company hereunder
and thereunder and the authorization, issuance and delivery of the Shares being
sold hereunder have been taken or will be taken prior to the Closing. This
Agreement has been duly executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms.
3.4 VALID ISSUANCE OF STOCK
The Shares, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of any liens or encumbrances
created by the Company, except as set forth herein and subject to limitations
promulgated under Regulation S of the Securities Act of 1933, as amended (the
"Act"), and will be issued in compliance with all applicable state and federal
securities laws. The outstanding shares of Common Stock of the Company are all
duly and validly authorized and issued, fully paid and nonassessable and were
issued in compliance with all applicable state and federal securities laws.
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3.5 GOVERNMENTAL CONSENTS
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, regional,
state or local governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated by this
Agreement.
3.6 LITIGATION
There is no action, suit, claim, proceeding or investigation pending
or, to the Company's knowledge, currently threatened against the Company that
relates to or challenges the legality, validity or enforceability of this
Agreement or the Shares or that could either individually or in the aggregate
have a material adverse effect on the financial condition, results of
operations, business or properties of the Company. The Company is not a party to
or subject to the provisions of any order, writ, injunction, judgment or decree
of any court or government agency or instrumentality that could have a material
adverse effect on its financial condition, results of operations, business or
properties.
3.7 EMPLOYEE COMPENSATION PLANS
The Company is not a party to or bound by any currently effective,
employment agreement, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement or other employee compensation
agreement, except for the Company's 1990 Restated Stock Option Plan, the
Company's 1994 Stock Option Plan for Nonemployee Directors and 1996 Stock Option
Plan for Nonemployee Directors and as disclosed in the SEC Documents as defined
below.
3.8 COMPLIANCE WITH OTHER INSTRUMENTS
The Company is not in violation of any provision of its Restated
Certificate of Incorporation or its Amended and Restated Bylaws or in violation
or default of any provision of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or any provision of any
federal or state statute, rule or regulation applicable to the Company, which
violation or default would adversely affect the legality, validity, or
enforceability of this Agreement or have a material adverse effect on its
financial condition, results of operations, business or properties. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not result in any such violation or
default or require any consent under or be in conflict with or constitute, with
or without the passage of time and giving of notice, either a violation or
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company.
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3.9 DISCLOSURE
The Company has fully provided each Investor, its representatives and
legal counsel with all the information set forth on Exhibit B attached hereto
and has provided the opportunity to ask and have answered satisfactorily,
questions of the Company. Neither this Agreement, the exhibits hereto, nor any
certificate or material prepared by the Company for the benefit of the Investors
at the Closing contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements made therein not
misleading in light of the circumstances under which they were made.
3.10 SEC REPORTS, FINANCIAL STATEMENTS
The Company has furnished each Investor with a true and complete copy
of each report, schedule, registration statement and definitive proxy statement
filed by the Company with the Securities and Exchange Commission (the "SEC")
since December 31, 1996 (the "SEC Documents"), which are all the documents
(other than registration statements on Form S-8 of the SEC) that the Company has
been required to file or has filed with the SEC. As of their respective dates,
the SEC Documents complied with the requirements of the Act, or the Securities
Exchange Act of 1934, as amended, as applicable, and the rules and regulations
of the SEC thereunder, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, as in effect at the time
of filing, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto or, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC) and fairly present, subject,
in the case of unaudited financial statements, to normal recurring audit
adjustments, the financial position of the Company and its consolidated
subsidiaries at the dates thereof and the results of their operations and
changes in financial position for the periods then ended.
3.11 COMPLIANCE WITH LAWS
(a) The Company has complied, and is in compliance with, all
federal, state, county, local and foreign laws, rules, regulations, ordinances,
decrees and orders applicable to the operation of its business, to its
employees, or to the real property and the personal property that it owns or
leases (the "Property"), the failure to comply with which would, individually or
in the aggregate, have a material adverse effect on the business, assets or
operations of the Company, including, without limitation, all such laws, rules,
ordinances, decrees and orders relating to antitrust, consumer protection,
currency exchange, environmental protection, equal opportunity, health,
occupational safety, pension, securities and trading-with-the-enemy matters. The
Company has not received any notification of any
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<PAGE> 8
asserted present or past unremedied failure by the Company to comply with any of
such laws, rules, ordinances, decrees or orders.
(b) The Company is not currently in violation of any
applicable building, zoning, environmental or other law, ordinance or regulation
in respect of any of its real property employed in its operations or its plant,
structures or operations. No such law, ordinance or regulation would reasonably
be expected to prevent the use of substantially all of such real property for
the conduct thereon of the business of the Company as currently conducted.
(c) The Company is not in violation of, and has not violated,
in connection with the ownership, use, maintenance or operation of its Property
or the conduct of its business, any applicable federal, state, county, local or
foreign statutes, laws, regulations, guidances, rules, ordinances, codes,
licenses, permits, judgments, writs, decrees, injunctions or orders of any
governmental entity relating to environmental (air, water, groundwater, soil,
noise and odor) matters, including all other applicable environmental
requirements where such violation might have a material adverse impact on the
Company's business, business prospects, assets, operations or condition
(financial or other).
(d) The Company has made all filings and given all notices to
governmental authorities and obtained all necessary ordinances, registrations,
declarations, approvals, orders, trademarks, patents, tradenames, licenses,
consents, qualifications, certificates, permits and authorizations from any
foreign, Federal, state or local government or governmental agency or department
to own or lease its properties and to conduct its business as currently
conducted, the absence or failure of which would have a material adverse effect
on the Company. All such authorizations, ordinances, consents, approvals,
waivers, orders, trademarks, patents, tradenames, licenses, consents,
qualifications, certificates and permits are in full force and effect and not
the subject of any pending or, to the Company's knowledge, any threatened attack
by appeal or direct proceeding or otherwise.
3.12 PRIVATE OFFERING
Neither the Company nor any person acting on its behalf has, directly
or through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of any security (as defined in the Act) that is
or may be integrated with the sale of the Shares in a manner that would require
the registration of the Shares under the Act within the six months preceding the
date of this Agreement; neither the Company nor any person acting on its behalf
has offered or sold or will offer or sell any Shares by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Act.
3.13 CHANGES
Since March 31, 1997 there has not been:
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(a) Any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the business, financial position,
results of operations, prospects or properties of the Company;
(b) Any material change in the accounting methods or practices
followed by the Company;
(c) Any material debt obligation or liability (whether
absolute or contingent) incurred by the Company (whether or not presently
outstanding) except (i) current liabilities incurred, and obligations under
agreements entered into, in the ordinary course of business and (ii) obligations
or liabilities entered into or incurred in connection with the execution of this
Agreement; or
(d) Any sale, lease, abandonment or other disposition by the
Company of any real property or, other than in the ordinary course of business,
of any equipment or other operating properties or, other than in the ordinary
course of business, any sale, assignment, transfer, license or other disposition
by the Company of any intellectual property or other intangible asset.
3.14 CERTAIN FEES
Except as provided in the engagement letter dated July 11, 1997,
between the Company and Goldman, Sachs & Co., no broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the sale of the Shares to the Investors.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor hereby represents and warrants for itself, and not for
any other Investor, that:
4.1 AUTHORIZATION
All acts and conditions necessary for the authorization, execution,
delivery and consummation by such Investor of this Agreement and the
transactions contemplated hereby have been, or will prior to the Closing be,
taken, performed and obtained. This Agreement constitutes a valid and legally
binding obligation of such Investor, enforceable in accordance with its terms.
Each Investor has full power and authority to execute, deliver and perform its
obligations under this Agreement and to own the Shares. The execution, delivery
and performance of this Agreement and the transaction contemplated hereby by
such Investor does not violate any provision of, or constitute a material breach
of or default under, the charter or bylaws of such Investor, any term, condition
or provision of any agreement, indenture or other instrument to which such
Investor is a party, or by which it or its properties or assets are bound, or of
any order, judgment or decree against or binding upon such Investor.
6
<PAGE> 10
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT
The Shares to be received by the Investor will be acquired for
investment for the Investor's own account and not with a view to the
distribution of any part thereof, and the Investor has no present intention of
selling, granting any participation in, or otherwise distributing the same in a
manner contrary to the Act, including, without limitation, Regulation S under
the Act ("Regulation S").
4.3 INVESTMENT EXPERIENCE
The Investor is an investor in securities of companies in the
development stage, qualifies as an "accredited investor" as defined in Rule
501(a) of Regulation D promulgated by the SEC that meets the requirements of
Rule 501(a)(1), (2), (3), or (7) of said Regulation D, is purchasing shares in
an aggregate amount of at least $1,000,000, and acknowledges that the Shares are
a speculative risk. The Investor is able to fend for itself in the transactions
contemplated by this Agreement, can bear the economic risk of its investment
(including possible complete loss of such investment) for an indefinite period
of time and has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the investment in the
Shares. The Investor represents it has not been organized for the purpose of
acquiring the Shares.
4.4 ACCESS TO INFORMATION
The Investor has been furnished such information as it deems necessary
to evaluate an investment in the Shares, including the information as set forth
on Exhibit B attached hereto. The Investor has been given access to sufficient
information regarding the Company including, in particular, the current
financial condition, results of operations, business, properties, management and
prospects of the Company and the risks associated therewith and has utilized
such access to its satisfaction for the purpose of obtaining information or
verifying information, and particularly, the Investor has either attended or
been given reasonable opportunity to attend a meeting with representatives of
the Company for the purpose of asking questions of, and receiving answers from,
such representatives concerning the terms and conditions of the offering of the
Shares and to obtain any additional information, to the extent reasonably
available.
4.5 RESTRICTED SECURITIES; COMPLIANCE WITH REGULATION S
The Investor understands that (a) the Shares have not been registered
under the Act, (b) the Shares will be issued in reliance on Regulation S and,
therefore, cannot be sold or transferred unless they are subsequently registered
under the Act or an exemption from such registration is available, and (c) the
Shares are subject to resale restrictions as set forth in Section 5 of this
Agreement and the Investor may not be able to liquidate its investment in the
event of an emergency or pledge the Shares as collateral security for loans. In
this connection, the Investor represents that it is familiar with Regulation S
as currently in effect, and understands the resale limitations imposed thereby
and by Section 5 of this Agreement.
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<PAGE> 11
The Investor acknowledges and understands that the Company's reliance upon such
exemptions under Regulation S is predicated in part on the Investor's
representations contained herein. The Investor is not a U.S. person (as that
term is used in Regulation S), is not located in the U.S. and is acquiring the
Shares in an offshore transaction, and such Investor is not acquiring the Shares
for the account or benefit of any U.S. person. The Investor has not, in
connection with the purchase of Shares hereunder, (a) offered, sold (including
by any short sale), or entered into any transaction (including the purchase of
any put or sale of any call) involving the sale or potential sale of the Common
Stock of the Company in the United States or to or for the account or benefit of
any U.S. person or (b) entered into any hedging or similar transaction pursuant
to which the economic risks or benefits associated with ownership of the Shares
is transferred, in whole or in part, directly or indirectly, to any U.S. person.
4.6 LEGENDS
It is understood that the certificates evidencing the Shares may bear
legends in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933 (THE "ACT") OR THE SECURITIES LAWS OF ANY
STATE. THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED IN A
TRANSACTION GOVERNED BY REGULATION S PROMULGATED UNDER THE ACT AND MAY NOT BE
TRANSFERRED EXCEPT IN ACCORDANCE WITH SAID REGULATION S, OR PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR AN APPLICABLE EXEMPTION FROM REGISTRATION
UNDER THE ACT.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESALE RESTRICTIONS AS SET FORTH IN A STOCK PURCHASE AGREEMENT BETWEEN THE
COMPANY AND CERTAIN STOCKHOLDERS, INCLUDING THE REGISTERED HOLDER, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
5. RESTRICTIONS ON RESALE
5.1 HOLDING PERIOD
For the period of 40 days from the Closing Date (the "Holding Period"),
no Investor may sell, assign or otherwise transfer any interest, direct or
indirect, in all or any part of the Shares or enter into any transaction,
including the purchase of any put or sale of any call or any short sale,
involving the sale or potential sale of the Company's Common Stock.
8
<PAGE> 12
5.2 RESTRICTED PERIOD
From the end of the Holding Period until the date that is six months
after the Closing Date (the "Restricted Period"), an Investor (or a non-U.S.
transferee) may resell all or part of its Shares in the United States or to, or
for the account or benefit of, a U.S. person only pursuant to a registration
statement filed with, and declared effective by, the SEC. During the Restricted
Period, no Investor may enter into (a) any transaction, including the purchase
of any put or sale of any call or any short sale, involving the sale or
potential sale of the Company's Common Stock in the United States or to or for
the account or benefit of any U.S. person or (b) any hedging or similar
transaction pursuant to which the economic risks or benefits associated with
ownership of the Shares is transferred, in whole or in part, directly or
indirectly, to any U.S. person. Upon expiration of the Restricted Period, the
Investors will be free to transfer all or any part of the Shares, subject to the
provisions of Regulation S.
5.3 REGISTRATION RIGHTS
The terms of the Registration Rights attached hereto as Exhibit C are
hereby incorporated into and made a part of this Agreement as if fully set forth
herein.
5.4 TRANSFEREES
If an Investor should decide to dispose of any of the Shares as
permitted hereunder, except pursuant to an effective registration statement or
through the facilities of the Nasdaq National Market or another inter-dealer
automated quotation system, it will do so only to a transferee that furnishes to
such Investor and the Company a signed letter confirming as to such transferee
each of the representations, warranties and agreements made by the Investor
herein, including such Investor's agreement, in connection with any subsequent
transfer, to notify any such subsequent transferee of such transfer restrictions
and to obtain from such subsequent transferee a signed letter to the same effect
and it will do so only to a transferee that agrees to be bound by the transfer
restrictions of this Agreement.
5.5 PERMITTED TRANSFERS
Notwithstanding the other provisions of this Section 5, an Investor may
transfer ownership of all or any part of the Shares, subject to compliance with
the conditions of Section 5.4, to affiliates of the Investor who control, are
controlled by, or are under common control with, the Investor.
6. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING DATE
The obligations of each Investor under Section 1 hereof are subject to
the fulfillment, on or before the Closing Date of each of the following
conditions, unless waived by such Investor:
9
<PAGE> 13
6.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Company contained in Section
3 hereof shall be true in all material respects on and as of the Closing Date.
6.2 PERFORMANCE
The Company shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing Date.
6.3 EXEMPTION
The offer and sale of the Shares to the Investors pursuant to this
Agreement shall be exempt from registration under the Act.
6.4 COMPLIANCE CERTIFICATE
The Chief Executive Officer of the Company shall have delivered to the
Investors a certificate stating that the conditions specified in Sections 6.1,
6.2 and 6.3 hereof have been fulfilled.
6.5 SECRETARY'S CERTIFICATE
The Investors shall have received a certificate, dated the Closing
Date, signed by the secretary of the Company and certifying (a) that attached
thereto is a true, complete and correct copy of (i) the Company's Restated
Certificate of Incorporation and Amended and Restated Bylaws and (ii)
resolutions duly adopted by the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and the issuance of the Shares, (b)
the incumbency of officers executing this Agreement, and (c) that attached
thereto is a specimen of the stock certificate for the Common Stock.
6.6 PROCEEDINGS AND DOCUMENTS
All corporate and other proceedings in connection with the transactions
contemplated at the Closing Date and all documents incident thereto shall be
reasonably satisfactory to the Investors and the Investors' counsel.
6.7 OPINION OF COMPANY COUNSEL
The Investors shall have received from Perkins Coie, counsel for the
Company, an opinion, dated as of the Closing, in form and substance satisfactory
to the Investors.
10
<PAGE> 14
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING DATE
The obligations of the Company under this Agreement are subject to the
fulfillment on or before the Closing Date of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of each Investor contained in
Section 4 hereof shall be true in all material respects on and as of the Closing
Date.
7.2 EXEMPTION
The offer and sale of the Shares to the Investors pursuant to this
Agreement shall be exempt from registration under the Act, and the Company shall
have received from Perkins Coie an opinion, dated the Closing Date, to such
effect.
7.3 PERFORMANCE
Each Investor shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing Date.
8. ENTIRE AGREEMENT; GOVERNING LAW
This Agreement and the other documents delivered at the Closing
constitute the full and entire understanding and agreement between the parties
with respect to the subject matter hereof and supersede all prior agreements
with respect to the subject matter hereof. This Agreement shall be governed by
and construed under the laws of the state of Washington as applied to agreements
among Washington residents entered into and to be performed entirely within the
state of Washington.
9. NOTICE
Unless otherwise provided, any notice desired or required to be given
hereunder shall be in writing given by personal delivery or certified or
registered mail, telegram or confirmed facsimile transmission, addressed, if to
the Company, at its address listed on the signature page of this Agreement and
if to the Investors, at the addresses set forth in Exhibit A attached hereto, or
to such other address as any party shall have previously designated by such a
notice. The effective date of any notice or request shall be three days from the
date it is sent by the addressor with charges prepaid so long as it is in fact
received within five days, or when successful transmission is confirmed if sent
by facsimile, or when personally delivered.
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<PAGE> 15
10. AMENDMENTS
Any term of this Agreement may be amended and the observance of any
term 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 Section
10 shall be binding upon each holder of Shares purchased under this Agreement at
the time outstanding, each future holder of the Shares, and the Company.
11. THIRD-PARTY BENEFICIARY
Goldman, Sachs & Co. shall be entitled to rely on the representations
and warranties of the Investors contained in Section 4 hereof and to enforce the
covenants of the Investors set forth in Section 5 hereof.
12. COUNTERPARTS
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed and delivered shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
[remainder of page intentionally left blank]
12
<PAGE> 16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
INCONTROL, INC.
By ______________________________________
Its __________________________________
Address: 6675 -- 185th Avenue N.E.
Redmond, WA 98052
Fax: (206) 861-9301
"INVESTOR"
_________________________________________
By ______________________________________
Its __________________________________
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<PAGE> 17
EXHIBIT A
SCHEDULE OF INVESTORS
JULY 25, 1997
<TABLE>
<CAPTION>
Aggregate
Name and Address Purchase Price Number of Shares
- ---------------- -------------- ----------------
<S> <C> <C>
TOTALS
</TABLE>
<PAGE> 18
EXHIBIT B
INFORMATION PROVIDED TO THE INVESTORS
1. Annual Report of the Company on Form 10-K for the year ended December 31,
1996.
2. Quarterly Report of the Company on Form 10-Q for the quarter ended March 31,
1997.
3. Annual Report of the Company to stockholders for the year ended December 31,
1996.
4. Proxy Statement, dated April 10, 1997, relating to the 1997 annual meeting
of stockholders of the Company.
5. Term Sheet, dated July 11, 1997, relating to the terms of the offering and
sale of the Shares.
<PAGE> 19
EXHIBIT C
REGISTRATION RIGHTS
1. REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS
As used in this Agreement, the following terms not otherwise defined in
the Agreement shall have the following respective meanings:
"Commission" shall mean the United States Securities and Exchange
Commission.
"Holder" shall mean the Investors and any person to whom the Shares
have been transferred in accordance with the Agreement.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement with the
Commission in compliance with the Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company and of one special counsel to the selling Holders, and blue sky fees and
expenses.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of the Shares by the
Holders.
"Shelf Period" shall mean the period commencing 40 days after the
Closing Date and ending on the date six months from the Closing Date.
1.2 SHELF REGISTRATION
Registration. The Company shall use its best efforts to effect
upon commencement of the Shelf Period a registration with respect to all the
Shares held by the Holders (including, without limitation, appropriate
qualification under applicable blue sky or other state securities laws) and to
maintain the registration effective until the earlier of (i) the expiration of
the Shelf Period or (ii) the time at which the Shares of the Holders have been
sold or distributed (such period, the "Selling Period"). If at any time during
the Shelf Period the Company shall notify the Holders that there exists material
nonpublic information which must be disclosed in order for the registration
statement not to be false or misleading, then the Company may require that no
sales may be made under the registration statement until such
<PAGE> 20
time as disclosure is made. The Company shall use its best efforts to cause such
disclosure to be made as soon as practicable.
1.3 EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with registrations
pursuant to Section 1.2 shall be borne by the Company. All Selling Expenses
relating to securities registered on behalf of the Holders shall be borne by the
Holders of Shares on the basis of the number of Shares registered and sold.
1.4 REGISTRATION PROCEDURES
In the case of registration effected by the Company pursuant to this
Section 1, the Company will keep each Holder advised in writing as to the
initiation of registration and as to the completion thereof.
At its expense the Company will:
(a) Registration Statement. Prepare and file with the
Commission a registration statement with respect to the Shares held by the
Holders and use its best efforts to cause such registration statement to become
and remain effective for the Selling Period;
(b) Amendments. Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Copies. Furnish to the Holders and to the underwriters of
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of such securities.
(d) Underwriting Agreement. In the event of any underwritten
public offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such agreement.
(e) Blue Sky. Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any state or jurisdiction.
(f) Notice. Notify each Holder covered by such registration
statement (at any time when a prospectus relating thereto is required to be
delivered under the Act) of 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 a
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material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Opinion. Furnish, at the request of any Holder requesting
registration of Shares delivered to the underwriters for sale in connection with
a registration pursuant to Section 1.2, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders and (ii) a
letter dated such date, from the independent accountants of the Company, in form
and substance as is customarily given by independent accountants to underwriters
in an underwritten public offering, addressed to the underwriters, if any, and
to the Holders.
1.5 INFORMATION BY HOLDER
The Holders shall furnish to the Company such information regarding
such Holder or Holders, the Shares held by them and the distribution proposed by
them as the Company may reasonably request in writing and as shall be required
in connection with any registration, qualification or compliance referred to in
this Section 1.
1.6 INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification by the Company. Upon the registration of
Shares pursuant to Section 1.2 hereof, the Company shall indemnify and hold
harmless each Holder and each underwriter, selling agent or other securities
professional, if any, that facilitates the disposition of such Shares, and each
of their respective officers and directors and each person who controls such
Holder, underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any losses, claims, damages or
liabilities, joint or several, to which such Holder or such other persons may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such Shares are to be
registered under the Act, or any prospectus contained therein or furnished by
the Company to any Holder or other such person, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company hereby agrees to
reimburse such Holder or other person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable to any such Holder or other person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or prospectus, or amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Holder or such other person expressly for use
therein.
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(b) Indemnification by the Holders and any Agents and
Underwriters. Each Holder agrees, as a consequence of the inclusion of any of
such Holder in such registration, and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of such
Shares shall agree, as a consequence of facilitating such disposition of Shares,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign any registration statement with respect to such
Shares and each person, if any, who controls the Company within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Company or such other
persons may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such registration statement or prospectus, or any amendment or
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such holder, underwriter,
selling agent or other securities professional expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 1.6,
notify such indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.6. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof,
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under this Section 1.6 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
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unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) Contribution. If the indemnification provided for in this
Section 1.6 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 1.6(d) were determined by
pro rata allocation (even if the Holders or any underwriters, selling agents or
other securities professionals or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 1.6(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations
of the Holders and any underwriters, selling agents or other securities
professionals in this Section 1.6(d) to contribute shall be several in
proportion to the number of Shares registered, underwritten, or sold as the case
may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 1.6,
in no event will any (i) Holder be required to undertake liability to any person
under this Section 1.6 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's Shares
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any registration statement under which such Shares are to be
registered under the Act and (ii) underwriter, selling agent or other securities
professional be required to undertake liability to any person hereunder for any
amounts in excess of the discount, commission or other compensation payable to
such underwriter, selling agent or other securities professional with respect to
the Shares underwritten or sold by it.
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(f) The obligations of the Company under this Section 1.6
shall be in addition to any liability which the Company may otherwise have to
any Holder, underwriter, selling agent or other securities professional within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
obligations of any Holder or other such person under this Section 1.6 shall be
in addition to any liability which such Holder or other person may otherwise
have to the Company, its directors, officers who sign any registration statement
with respect to such Shares and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act. The remedies provided in this Section 1.6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to an indemnified
party at law or in equity.
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