28
<PAGE> 29
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of the 28th day of July, 2000
by and among BioSphere Medical, Inc., a Delaware corporation with its principal
office at 1050 Hingham Street, Rockland, MA 02370 (the "Company"), and the
several purchasers named in the attached Exhibit A (individually, a "Purchaser"
and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers
pursuant to this Agreement shares (the "Shares") of the authorized but unissued
shares of common stock, $.01 par value per share, of the Company (the "Common
Stock"); and
WHEREAS, the Purchasers, severally, wish to purchase the Shares on the
terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Affiliate" of a party means any corporation or other business entity
controlled by, controlling or under common control with such party.
For this purpose "control" shall mean direct or indirect beneficial
ownership of fifty percent (50%) or more of the voting or income
interest in such corporation or other business entity.
(b) "Closing Date" means the date of the Initial Closing (as defined in
Section 2.1) or, with respect to Additional Purchasers (as defined
in Section 2.3), the date of the Additional Closing (as defined in
Section 2.3).
(c) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all of the rules and regulations promulgated thereunder.
(d) "Registration Rights Agreement" shall mean that certain Registration
Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(e) "Majority Purchasers" shall mean Purchasers which, at any given time,
hold greater than fifty percent (50%) of the Shares.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "Securities Act" shall mean the Securities Act of 1933, as amended,
and all of the rules and regulations promulgated thereunder.
2. PURCHASE AND SALE OF SHARES.
2.1 PURCHASE AND SALE. Subject to and upon the terms and conditions set
forth in this Agreement, the Company agrees to issue and sell to each
Purchaser, and each Purchaser, severally, hereby agrees to purchase
from the Company, at the Initial Closing (defined below), the number
of shares of Common Stock set forth opposite the name of such
Purchaser under the heading "Number of Shares to be Purchased" on
Exhibit A hereto, at a purchase price of $11.00 per share. The total
purchase price payable by each Purchaser for the number of shares of
Common Stock that such Purchaser is hereby agreeing to purchase is set
forth opposite the name of such Purchaser under the heading "Purchase
Price" on Exhibit A hereto. The aggregate purchase price payable by
the Purchasers to the Company for all of the Shares purchased by the
Purchasers at the Initial Closing shall be $12,703,900.
<PAGE> 30
2.2 INITIAL CLOSING. The initial closing of the transactions contemplated
under this Agreement (the "Initial Closing") shall take place at the
offices of the Company's counsel simultaneously with the execution of
this Agreement by the Company and the Purchasers. At the Initial
Closing, the Company shall deliver to each Purchaser a single stock
certificate, registered in the name of such Purchaser (or in such
nominee or custodial name as shall be specified by such Purchaser),
representing the number of shares of Common Stock purchased by such
Purchaser, against payment of the purchase price therefor by wire
transfer of immediately available funds to such account or accounts as
the Company shall designate in writing.
2.3 ADDITIONAL CLOSING. After the Initial Closing the Company may, in its
sole discretion and without obtaining the consent of any Purchaser,
hold an additional closing (the "Additional Closing", and together
with the Initial Closing, the "Closing") at which the Company may
issue and sell to new investors (the "Additional Purchasers") up to
208,736 additional shares of Common Stock at a purchase price of
$11.00 per share. The Additional Closing will take place at the
offices of the Company's counsel. At the Additional Closing, the
Additional Purchasers shall become parties to this Agreement by
executing a signature page hereto and, upon such execution, shall be
deemed "Purchasers" hereunder and shall be deemed to be added to
EXHIBIT A hereto, and the shares of Common Stock so purchased shall be
deemed to be "Shares" hereunder. At the Additional Closing, the
Company shall deliver to each Additional Purchaser a single stock
certificate, registered in the name of such Additional Purchaser (or
in such nominee or custodial name as shall be specified by such
Additional Purchaser), representing the number of shares of Common
Stock purchased by such Additional Purchaser, against payment of the
purchase price thereof by wire transfer of immediately available funds
to such account or accounts as the Company shall designate in writing.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents, warrants and covenants to each of the Purchasers as
follows.
3.1 INCORPORATION. The Company and each of the Subsidiaries (as defined
below) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and
is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires
such qualification, except where the failure to so qualify would not
have a material adverse effect upon the Company and the Subsidiaries
taken as a whole. The Company and each of the Subsidiaries has all
requisite corporate power and authority to carry on its business as
now conducted. Other than Biosphere Medical S.A. and Biosphere Medical
Japan, Inc. (the "Subsidiaries"), the Company has no subsidiaries.
3.2 CAPITALIZATION. The authorized capital stock of the Company, as of
July 1, 2000, consists of 25,000,000 shares of Common Stock, of which
9,256,422 shares are issued and outstanding and 1,000,000 shares of
blank check Preferred Stock, $.01 par value, none of which have been
designated. All of the issued and outstanding shares of Common Stock
are duly authorized, validly issued, fully paid, nonassessable and
free of all preemptive rights and free from any liens or any other
encumbrances created by the Company with respect to the issuance and
delivery thereof.
3.3 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and
delivered by the Company, each of this Agreement and the Registration
Rights Agreement shall constitute the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, and except as may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. The Company has all
requisite corporate power to enter into this Agreement and the
Registration Rights Agreement and to carry out and perform its
obligations under the terms of this Agreement and the Registration
Rights Agreement.
<PAGE> 31
3.4 VALID ISSUANCE OF THE SHARES. The Shares being purchased by the
Purchasers hereunder will, upon issuance pursuant to the terms hereof,
be duly authorized and validly issued, fully paid and nonassessable
and free of all preemptive rights.
3.5 REPORTS AND FINANCIAL STATEMENTS. The Company has previously made
available to the Purchasers complete and accurate copies, as amended
or supplemented, of all reports filed by the Company under Section 13
of the Exchange Act with the SEC since January 1, 1995 (such reports
are collectively referred to herein as the "Company SEC Reports"). The
Company has timely filed all reports required to be filed under the
Securities Act and the Exchange Act since June 30, 1999. As of their
respective dates, the Company SEC Reports did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein as necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
The audited consolidated financial statements and unaudited interim
consolidated financial statements of the Company included in the
Company SEC Reports (i) comply as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, (ii) have been prepared
in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby (except as
may be indicated therein or in the notes thereto, and in the case of
quarterly financial statements, as permitted by Form 10-Q under the
Exchange Act), (iii) fairly represent the consolidated financial
condition, results of operations and cash flows of the Company and the
Subsidiaries as of the respective dates and for the periods referred
to therein and (iv) are consistent with the books and records of the
Company and the Subsidiaries.
3.6 CONSENTS. All consents, approvals, orders and authorizations required
on the part of the Company in connection with the execution, delivery
or performance of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated herein and
therein have been obtained and will be effective as of the Closing
Date, other than such filings required to be made after the Closing
under applicable federal and state securities laws and the
registration statement contemplated by the Registration Rights
Agreement.
3.7 No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby will not conflict
with or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to a
loss of a benefit under (i) any provision of the Certificate of
Incorporation or By-laws of the Company or any of the Subsidiaries or
(ii) any agreement or instrument, permit, franchise, license,
judgment, order, statute, law, ordinance, rule or regulations,
applicable to the Company or any of its Subsidiaries or their
respective properties or assets other than, in the case of (ii) above,
any violation, default, right of termination, cancellation,
acceleration or loss or benefits the occurrence of which would not
reasonably be likely to have a material adverse effect on the assets,
business, financial conditions or results of operations of the Company
and the Subsidiaries taken as a whole.
3.8 BROKERS OR FINDERS. Except for certain fees and expenses payable by
the Company to Solomon Smith Barney Inc. and PaineWebber Incorporated
(the "Placement Agents"), the Company has not incurred, and shall not
incur, directly or indirectly, any liability for any brokerage or
finders' fees or agents commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
<PAGE> 32
3.9 NASDAQ NATIONAL MARKET. The Common Stock is listed on the Nasdaq
National Market System, and there are no proceedings to revoke or
suspend such listing.
3.10 ABSENCE OF LITIGATION. As of the date hereof, there is no action, suit
or proceeding or, to the Company's knowledge, any investigation,
pending, or to the Company's knowledge, threatened by or before any
governmental body against the Company or any of the Subsidiaries and
in which an unfavorable outcome, ruling or finding in any said matter,
or for all matters taken as a whole, would reasonably be expected to
have a material adverse effect on the Company and the Subsidiaries
taken as a whole. The foregoing includes, without limitation, any such
action, suit, proceeding or investigation that questions this
Agreement or the Registration Rights Agreement or the right of the
Company to execute, deliver and perform under same.
3.11 DISCLOSURE. The information contained in the Private Placement
Memorandum (including the documents incorporated by reference therein)
of the Company relating to the offer and sale of the Shares dated as
of June 6, 2000, does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
are made, not misleading.
3.12 ABSENCE OF MATERIAL CHANGES. Except as disclosed in the Company SEC
Reports, since January 1, 2000, there has been no event which could
reasonably be expected to have a material adverse effect on the
Company and the Subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business.
3.13 INTELLECTUAL PROPERTY. Except as disclosed in the Company SEC Reports,
the Company and each of the Subsidiaries owns or has the right to use
all patent rights, trademarks, trade names, service marks, logos,
copyrights, formulas, methods and processes currently used in
connection with the conduct of their respective businesses.
3.14 COMPLIANCE WITH LAW. Neither the Company nor any of the Subsidiaries
is in material violation of any statute, law, rule, regulation,
ordinance, decision or order of any governmental agency or body or any
court, domestic or foreign, except where such violation would not
individually or in the aggregate have a material adverse effect on the
Company and the Subsidiaries taken as a whole.
3.15 INVESTMENT COMPANY. Neither the Company nor any of the Subsidiaries is
an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and
regulations of the SEC thereunder.
3.16 NO REGISTRATION. Assuming the accuracy of the representations and
warranties made by the Purchasers in Section 4 hereof, no registration
of the Shares under the Securities Act is required in connection with
the offer and sale of the Shares to the Purchasers as contemplated by
this Agreement.
3.17 S-3 STATUS. The Company meets the requirements for the use of Form S-3
for the registration of the resale of the Shares by the Purchasers and
will use its reasonable best efforts to maintain S-3 status with the
SEC during the period required by Section 3(a) of the Registration
Rights Agreement.
<PAGE> 33
3.18 REPORTING STATUS. So long as any of the Purchasers beneficially own
any portion of the Shares, the Company will use its reasonable best
efforts to maintain the inclusion of the Common Stock on Nasdaq or the
listing of the Common Stock on a national securities exchange;
provided, however, that this will not restrict the Company from
engaging in any transaction which results in all of the capital stock
of the Company being acquired in a business combination or other
acquisition transaction.
3.19 FORM D. The Company agrees to file one or more Forms D with respect to
the Shares on a timely basis as required under Regulation D to claim
the exemption provided by Rule 506 of Regulation D and to provide a
copy thereof to the Purchasers promptly after such filing.
3.20 INTEGRATION. The Company will not sell, offer to sell, solicit offers
to buy or otherwise negotiate in respect of any "security" (as defined
in the Securities Act) that is or could be integrated with the sale of
the Shares in a manner that would require the registration of the
Shares under the Securities Act.
3.21 USE OF PROCEEDS. The net proceeds received by the Company will be used
to fund working capital needs and operating expenses.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser severally
for itself, and not jointly with the other Purchasers, represents and
warrants to the Company as follows:
4.1 AUTHORIZATION. All action on the part of such Purchaser and, if
applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement
and the Registration Rights Agreement and the consummation of the
transactions contemplated herein and therein has been taken. Each of
this Agreement and the Registration Rights Agreement constitutes the
legal, valid and binding obligation of such Purchaser, enforceable
against such Purchaser in accordance with its terms, except as such
may be limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights generally and by general equitable
principles. Such Purchaser has all requisite power to enter into each
of this Agreement and the Registration Rights Agreement and to carry
out and perform its obligations under the terms of this Agreement and
the Registration Rights Agreement.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT, ETC. Such Purchaser is acquiring
the Shares for its own account, and not with a view to, or for sale in
connection with, any distribution of the Shares in violation of the
Securities Act. Except as contemplated by this Agreement and the
Registration Rights Agreement, such Purchaser has no present
agreement, undertaking, arrangement, obligation or commitment
providing for the disposition of the Shares. Any Purchaser that is a
corporation or other entity represents that it has not been organized,
reorganized or recapitalized specifically for the purpose of investing
in the Shares. Such Purchaser agrees not to assign, sell, pledge,
transfer or otherwise dispose of or transfer any Shares unless
registered under the Securities Act and applicable state securities
laws, or, at the option of the Company, such Purchaser furnishes to
the Company either (a) a representation letter setting forth a factual
basis for concluding that such proposed transfer involves a
transaction for which such registration is not required or (b) an
opinion of counsel reasonably satisfactory to the Company that such
registration is not required; provided that no such opinion shall be
required for any transfer of Shares that is exempt from such
registration under Rule 144(k) under the Securities Act. The Company
may affix a legend to any certificates representing the Shares to the
foregoing effect.
<PAGE> 34
4.3 INVESTOR STATUS; ETC. Such Purchaser certifies and represents to the
Company that at the time such Purchaser acquires any of the Shares,
such Purchaser will be an "accredited investor" as defined in Rule 501
of Regulation D promulgated under the Securities Act. Such Purchaser's
financial condition is such that it is able to bear the risk of
holding the Shares for an indefinite period of time and the risk of
loss of its entire investment. Such Purchaser has been afforded the
opportunity to ask questions of and receive answers from the
management of the Company concerning this investment and has
sufficient knowledge and experience in investing in companies similar
to the Company in terms of the Company's stage of development so as to
be able to evaluate the risks and merits of its investment in the
Company.
4.4 SHARES NOT REGISTERED. Such Purchaser understands that the Shares have
not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue
to be held by such Purchaser unless a subsequent disposition thereof
is registered under the Securities Act or is exempt from such
registration. The Purchaser understands that the exemptions from
registration afforded by Rule 144 (the provisions of which are known
to it) promulgated under the Securities Act depend on the satisfaction
of various conditions, and that, if applicable, Rule 144 may afford
the basis for sales only in limited amounts.
4.5 NO CONFLICT. The execution and delivery of this Agreement and the
Registration Rights Agreement by such Purchaser and the consummation
of the transactions contemplated hereby and thereby will not conflict
with or result in any violation of or default by such Purchaser (with
or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation
or to a loss of a material benefit under (i) any provision of the
organizational documents of such Purchaser or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to such Purchaser or its
respective properties or assets.
4.6 BROKERs. Such Purchaser has not retained, utilized or been represented
by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 CONSENTS. All consents, approvals, orders and authorizations required
on the part of such Purchaser in connection with the execution,
delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective
as of the Closing Date.
5. CONDITIONS PRECEDENT.
5.1 CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CONSUMMATE THE
INITIAL CLOSING AND, IF APPLICABLE, ANY ADDITIONAL CLOSING. The
obligation of each Purchaser to consummate the Initial Closing and, if
applicable, any Additional Closing, and to purchase and pay for the
Shares being purchased by it pursuant to this Agreement is subject to
the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct on and as of the Closing Date
with the same force and effect as though made on and as of the
Closing Date (it being understood and agreed by each Purchaser
that, in the case of any representation and warranty of the
Company contained herein (i) which is not hereinabove qualified
by application thereto of a materiality standard, such
representation and warranty need be true and correct only in all
material respects in order to satisfy as to such representation
<PAGE> 35
or warranty the condition precedent set forth in the foregoing
provisions of this Section 5.1 (a) or (ii) which is made as of a
specific date, such representation and warranty need be true and
correct only as of such specific date in order to satisfy as to
such representation and warranty the condition precedent set
forth in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed and
delivered by the Company.
(c) The Company shall have performed in all material respects all
obligations and conditions herein required to be performed or
observed by the Company on or prior to the Closing Date.
(d) No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Initial Closing and, if applicable, any
Additional Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be
pending.
(e) The purchase of and payment for the Shares by the Purchasers
shall not be prohibited by any law or governmental order or
regulation.
(f) The Purchasers shall have received the following documents:
(i) a certificate of an officer of the Company certifying that
each of the conditions specified in clauses (a) and (c)
above has been satisfied;
(ii) a certificate of the Secretary of the Company certifying as
to the certificate of incorporation and bylaws of the
Company, and setting forth the resolutions of the Board of
Directors of the Company authorizing the execution of this
Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated hereby and
thereby, and certifying that such resolutions were duly
adopted and have not been rescinded or amended as of the
Closing Date; and
(iii)an opinion of Company counsel reasonably satisfactory to
the Purchasers and their counsel.
(g) All instruments and corporate proceedings in connection with the
transactions contemplated by this Agreement to be consummated at
the Initial Closing and, if applicable, any Additional Closing,
shall be satisfactory in form and substance to such Purchaser and
the Placement Agents, and such Purchaser and the Placement Agents
shall have received copies (executed or certified, as may be
appropriate) of all documents which such Purchaser or the
Placement Agents may have reasonably requested in connection with
such transactions.
5.2 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CONSUMMATE THE INITIAL
CLOSING AND, IF APPLICABLE, ANY ADDITIONAL CLOSING. The obligation of
the Company to consummate the Initial Closing and, if applicable, any
Additional Closing, and to issue and sell to each of the Purchasers
the Shares to be purchased by it at the Initial Closing and, if
applicable, any Additional Closing, is subject to the satisfaction of
the following conditions precedent:
<PAGE> 36
(a) The representations and warranties contained herein of such
Purchaser shall be true and correct on and as of the Closing Date
with the same force and effect as though made on and as of the
Closing Date (it being understood and agreed by the Company that,
in the case of any representation and warranty of each Purchaser
contained herein which is not hereinabove qualified by
application thereto of a materiality standard, such
representation and warranty need be true and correct only in all
material respects in order to satisfy as to such representation
or warranty the condition precedent set forth in the foregoing
provisions of this Section 5.2(a)).
(b) The Registration Rights Agreement shall have been executed and
delivered by each Purchaser.
(c) The Purchasers shall have performed in all material respects all
obligations and conditions herein required to be performed or
observed by the Purchasers on or prior to the Closing Date.
(d) No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Initial Closing and, if applicable, any
Additional Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be
pending.
(e) The sale of the Shares by the Company shall not be prohibited by
any law or governmental order or regulation.
(f) Each of the other Purchasers shall have purchased, in accordance
with this Agreement, the number of shares of Common Stock set
forth opposite its name under the heading "Number of Shares to be
Purchased."
(g) The Purchasers shall have each delivered to the Company:
(i) an executed Investor Questionnaire in the form attached
hereto as Annex A, in the case of individual investors, or
Annex B, in the case of non-individual investors; and
(ii) an executed Selling Stockholder Questionnaire in the form
attached hereto as Annex C.
(h) All instruments and corporate proceedings in connection with the
transactions contemplated by this Agreement to be consummated at
the Initial Closing and, if applicable, any Additional Closing,
shall be satisfactory in form and substance to the Company, and
the Company shall have received counterpart originals, or
certified or other copies of all documents, including without
limitation records of corporate or other proceedings, which it
may have reasonably requested in connection therewith.
6. TRANSFER, LEGENDS.
6.1 SECURITIES LAW TRANSFER RESTRICTIONS. No Purchaser shall sell, assign,
pledge, transfer or otherwise dispose or encumber any of the Shares
being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an
available exemption from registration under the Securities Act and
applicable state securities laws and, if requested by the Company,
upon delivery by such Purchaser, at the option of the Company, of
either (A) a representation letter setting forth a factual basis for
<PAGE> 37
concluding that such proposed transfer involves a transaction for
which such registration is not required, or (B) an opinion of counsel
reasonably satisfactory to the Company to the effect that the proposed
transfer is exempt from registration under the Securities Act and
applicable state securities laws; provided that no such opinion shall
be required for any transfer of Shares that is exempt from such
registration under Rule 144(k) under the Securities Act. Any transfer
or purported transfer of the Shares in violation of this Section 6.1
shall be voidable by the Company. The Company shall not register any
transfer of the Shares in violation of this Section 6.1. The Company
may, and may instruct any transfer agent for the Company, to place
such stop transfer orders as may be required on the transfer books of
the Company in order to ensure compliance with the provisions of this
Section 6.1.
6.2 LEGENDS. Each certificate requesting any of the Shares shall be
endorsed with the legends set forth below, and each Purchaser
covenants that, except to the extent such restrictions are waived by
the Company, it shall not transfer the shares represented by any such
certificate without complying with the restrictions on transfer
described in this Agreement and the legends endorsed on such
certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS
EXEMPT FROM SAID ACT."
7. INDEMNIFICATION.
7.1 INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
harmless each Purchaser against any losses, claims, damages, expenses
(including reasonable legal fees) or liabilities, joint or several, to
which they may become subject, to the extent such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise
out of any breach by the Company of any representation, warranty or
covenant made by the Company in this Agreement.
7.2 INDEMNIFICATION BY THE PURCHASERS. Each Purchaser will (severally and
not jointly with any other Purchaser) indemnify and hold harmless the
Company against any losses, claims, damages, expenses (including
reasonable legal fees) or liabilities to which the Company may become
subject, to the extent such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of any breach by
such Purchaser of any representation, warranty or covenant made by
such Purchaser in this Agreement or in the Investor Questionnaire
delivered to the Company in connection with this Agreement.
8. MISCELLANEOUS PROVISIONS.
8.1 PUBLIC STATEMENTS OR RELEASES. None of the Company or any of the
Purchasers shall make, issue, or release any announcement, whether to
the public generally, or to any of its suppliers or customers, with
respect to this Agreement or the transactions provided for herein, or
make any statement or acknowledgment of the existence of, or reveal
the status of, this Agreement or the transactions provided for herein,
without the prior consent of the other parties, which shall not be
unreasonably withheld or delayed, provided that nothing in this
Section 8.1 shall prevent any of the parties hereto from making such
public announcements as it may consider necessary in order to satisfy
its legal obligations, but to the extent not inconsistent with such
obligations, it shall provide counsel to the other parties with an
opportunity to review and comment on any proposed public announcement
before it is made.
<PAGE> 38
8.2 FURTHER ASSURANCES. Each party agrees to cooperate fully with the
other party and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be
reasonably requested by the other party to better evidence and reflect
the transactions described herein and contemplated hereby, and to
carry into effect the intents and purposes of this Agreement.
8.3 RIGHTS CUMULATIVE. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such
parties may have at law or in equity in the event of the breach of any
of the terms of this Agreement. The exercise or partial exercise of
any right, power or remedy shall neither constitute the exclusive
election thereof nor the waiver of any other right, power or remedy
available to such party.
8.4 PRONOUNS. All pronouns or any variation thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
8.5 NOTICES.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or
permitted to be given hereunder shall be sent by postage prepaid
first class mail, courier or fax or delivered by hand to the
party to whom such correspondence is required or permitted to be
given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as follows:
President and Chief Executive Officer
BioSphere Medical, Inc.
1050 Hingham Street
Rockland, MA 02370
(c) All correspondence to any Purchaser shall be sent to such
Purchaser at the address set forth in Exhibit A with a copy to:
Morrison & Foerster
1290 Avenue of the Americas
New York, NY 10104
Attention: Jeff Marcus, Esq.
(d) Any entity may change the address to which correspondence to it
is to be addressed by notification as provided for herein.
8.6 CAPTIONS. The captions and paragraph headings of this Agreement are
solely for the convenience of reference and shall not affect its
interpretation.
8.7 SEVERABILITY. Should any part or provision of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations
of any jurisdiction, the invalid or unenforceable part or provisions
shall be replaced with a provision which accomplishes, to the extent
possible, the original business purpose of such part or provision in a
valid and enforceable manner, and the remainder of this Agreement
shall remain binding upon the parties hereto.
8.8 GOVERNING LAW; INJUNCTIVE RELIEF.
(a) This Agreement shall be governed by and construed in accordance
with the internal and substantive laws of Massachusetts and
without regard to any conflicts of laws concepts which would
apply the substantive law of some other jurisdiction.
<PAGE> 39
(b) Each of the parties hereto acknowledges and agrees that damages
will not be an adequate remedy for any material breach or
violation of this Agreement if such material breach or violation
would cause immediate and irreparable harm (an "Irreparable
Breach"). Accordingly, in the event of a threatened or ongoing
Irreparable Breach, each party hereto shall be entitled to seek,
in any state or federal court in Massachusetts, equitable relief
of a kind appropriate in light of the nature of the ongoing or
threatened Irreparable Breach, which relief may include, without
limitation, specific performance or injunctive relief; provided,
however, that if the party bringing such action is unsuccessful
in obtaining the relief sought, the moving party shall pay the
non-moving party's reasonable costs, including attorney's fees,
incurred in connection with defending such action. Such remedies
shall not be the parties' exclusive remedies, but shall be in
addition to all other remedies provided in this Agreement.
8.9 WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or be construed as, a further or
continuing waiver of any such term, provision or condition or as a
waiver of any other term, provision or condition of this Agreement.
8.10 EXPENSES. The Company will pay up to $25,000 of the reasonable and
documented fees and disbursements of Morrison & Foerster, special
counsel to the Purchasers, for its services in connection with this
Agreement.
8.11 ASSIGNMENT. The rights and obligations of the parties hereto shall
inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of each party. Neither party may
assign its rights or obligations under this Agreement or designate
another person (i) to perform all or part of its obligations under
this Agreement or (ii) to have all or part of its rights and benefits
under this Agreement, in each case without the prior written consent
of the other party. In the event of any assignment in accordance with
the terms of this Agreement, the assignee shall specifically assume
and be bound by the provisions of the Agreement by executing and
agreeing to an assumption agreement reasonably acceptable to the other
party.
8.12 SURVIVAL. The respective representations and warranties given by the
parties hereto, and the other covenants and agreements contained
herein, shall survive the Closing Date and the consummation of the
transactions contemplated herein for a period of two years, without
regard to any investigation made by any party.
8.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, negotiations, understandings,
representations and statements respecting the subject matter hereof,
whether written or oral. No modification, alteration, waiver or change
in any of the terms of this Agreement shall be valid or binding upon
the parties hereto unless made in writing and duly executed by the
Company and the Majority Purchasers.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above written.
BIOSPHERE MEDICAL, INC.
By: /s/John M. Carnuccio
------------------------
Name: John M. Carnuccio
Title: President and Chief
Executive Officer
<PAGE> 40
PURCHASER SIGNATURE PAGE
The undersigned Purchaser hereby executes the Stock Purchase Agreement
with BioSphere Medical, Inc. and hereby authorizes this signature page to be
attached to a counterpart of such document executed by a duly authorized officer
of BioSphere Medical, Inc.
Number of Shares
to be Purchased:
------------- --------------------------
Name of Purchaser - PLEASE
PRINT OR TYPE
U. S. Taxpayer ID No., if any: [SIGN HERE]:
----------------------- By: /S/
-------------------------------
Title:
----------------------------
Address:
---------------------------
Please set out below your registration requirements:
Name in which Shares
are to be registered: -------------------------
Address of registered holder (if different
from above):
-------------------------
-------------------------
Contact name and telephone
number regarding settlement
and registration:
Name
-----------------------------------------------
Telephone Number
------------------------------------
<PAGE> 41
Exhibit A
Schedule of Investors - First Closing
<TABLE>
<CAPTION>
Number of Shares Aggregate Purchase
Name and Address of Purchaser Purchased Price Paid
------------------------------------- ----------------- -----------------
<S> <C> <C>
Pequod Investments, L.P.
450 Park Avenue, 28th Floor
New York, NY 10022 TIN: 13-3746010 49,800 $547,800
Pequod International, LTD
450 Park Avenue, 28th Floor
New York, NY 10022 TIN: 13-3746010 20,100 $221,100
Richter Investment Corp.
450 Park Avenue
New York, NY 10022 TIN: 13-3514730 5,000 $55,000
Domain Public Equity Partners L.P.
One Palmer Square, Suite 515
Princeton, NJ 08542 TIN: 22-3714573 80,000 $880,000
United Capital Management, Inc.
410 17th Street, # 1705
Denver, CO 80202 TIN: 84-1441847 181,818 $1,999,998
Rudman Partners, L.P.
540 Madison Avenue
New York, NY 10022 TIN: 13-3367586 90,909 $999,999
Summer Hill Partners L.P.
6800 Cintas Blvd.
Mason, OH 45040 TIN: 31-1196101 45,455 $500,005
Sepracor Inc.
111 Locke Drive
Marlborough, MA 01752
TIN: 222536587 454,545 $4,999,995
Pharma w/Health
c/o Merlin BioMed Group
230 Park Avenue, Suite 928
New York, NY 10169
TIN: None 136,363 $1,499,993
Castle Creek Healthcare Partners LLC
c/o Castle Creek Partners LLC
77 West Wacker Drive, Suite 4040
Chicago, IL 60601
TIN: 52-2137654 72,728 $800,008
CCL Fund LLC
c/o Castle Creek Life Science
Partners LLC
77 West Wacker Drive, Suite 4040
Chicago, IL 60601
TIN: 36-4334064 18,182 $200,002
----------------- -----------------
TOTALS: 1,154,900 $12,703,900
================= =================
</TABLE>
<PAGE> 42
Schedule of Investors - Additional Closing
<TABLE>
<CAPTION>
Number of Shares Aggregate Purchase
Name and Address of Purchaser Purchased Price Paid
------------------------------------- ----------------- -----------------
<S> <C> <C>
Teton Partners
c/o Noble Partners, L.P.
101 Federal Street
Boston, MA 02110 TIN: 04-3116395 50,000 $550,000
Jane Macrae
c/o Roger Amonica
Morgan Stanley Dean Witter
Four Headquarters Plaza
North Tower, 10th Floor
P.O. Box 1903
Morristown, NJ 07962
TIN: 59-6802915 10,000 $110,000
----------------- -----------------
TOTALS: 60,000 $660,000
================= =================
</TABLE>
<PAGE> 43
ANNEX A
INVESTOR QUESTIONNAIRE
FOR INDIVIDUAL INVESTORS
(ALL INFORMATION FURNISHED IN THIS
QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY)
If the answer to any question below is "none" or "not applicable",
please so indicate.
1. PERSONAL
Name ___________________________________________________________________________
Residence Address ______________________________________________________________
Residence Telephone ____________________________________________________________
Date of Birth __________________________________________________________________
Social Security Number _________________________________________________________
Name to Appear on Certificates _________________________________________________
2. BUSINESS
Occupation _____________________________________________________________________
Present Employer _______________________________________________________________
Position/Title _________________________________________________________________
Number of Years ________________________________________________________________
Business Address _______________________________________________________________
Business Telephone _____________________________________________________________
3. RESIDENCE INFORMATION
(a) Set forth in the space provided below the state(s) in which you
have maintained your principal residence during the past three
years and the dates during which you resided in each state.
-----------------------------------------------------------------
-----------------------------------------------------------------
(b) Do you maintain residence in any other state? If yes, in which
state(s)?
-----------------------------------------------------------------
-----------------------------------------------------------------
4. INCOME
(a) Do you reasonably expect your income from all sources during this
year (ending December 31) to exceed $200,000?
Yes ___ No ___ If not, please specify amount ________
<PAGE> 44
(b) What percentage of your income as shown above is anticipated to
be derived from sources other than salary?
-----------------------------------------------------------------
(c) Was your yearly income from all sources during each of the last
two years, ending December 31, in excess of $200,000?
Yes ____ No ____ If not, please specify amount : 1999: ______
1998: ______
(d) Do you reasonably expect your joint income with your spouse from
all sources during this year (ending December 31) to exceed
$300,000?
Yes ___ No ___ If not, please specify amount
(e) What percentage of this income is anticipated to be derived from
sources other than salary? ________________
(f) Was your joint income with your spouse from all sources during
each of the last two years, ending December 31, in excess of
$300,000?
Yes ___ No ___ If not, please specify amount : 1999: ______
1998: ______
5. NET WORTH
(a) Will your net worth as of the date you purchase the securities
offered, individually or jointly with the net worth of your
spouse, be in excess of $1,000,000?
Yes ___ No ___ If not, please specify amount ________
(b) Aggregate dollar amount of your proposed investment.
$_______________
6. EDUCATION
Please describe your educational background and degrees obtained, if any.
--------------------------------------------------------------
--------------------------------------------------------------
7. AFFILIATION
If you have any pre-existing personal or business relationship with the Company
or any of its officers, directors or controlling persons, please describe the
nature and duration of such relationship.
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
<PAGE> 45
8. BUSINESS AND FINANCIAL EXPERIENCE
Please describe the nature and extent of your business, financial and investment
experience which you believe gives you the capacity to evaluate the merits and
risks of the proposed investment.
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
9. PRIOR INVESTMENTS
Please indicate the frequency of your prior investments (check one in each
column):
Publicly-Traded Privately-Placed
Securities Securities
Frequently _______________ _____________
Occasionally _______________ _____________
Never _______________ _____________
10. FINANCIAL ADVISORS
In evaluating this investment, will you use the services of any of the following
advisors? (If so, please identify, providing address and telephone number.)
Accountant: ______________________________________________
Attorney: ______________________________________________
Other: ______________________________________________
The above information is true and correct in all material respects. The
undersigned recognizes that the Company is relying on the truth and accuracy of
such information so that it may rely on certain exemptions from registration
contained in the Securities Act of 1933, as amended, and the securities laws of
certain states. The undersigned agrees to notify the Company promptly of any
changes in the foregoing information which may occur prior to the investment.
Print Name: __________________________________
Signature: /s/_______________________________
Dated: __________________________________
<PAGE> 46
ANNEX B
INVESTOR QUESTIONNAIRE
FOR NON-INDIVIDUAL INVESTORS
(ALL INFORMATION FURNISHED IN THIS
QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY)
If the answer to any question below is "none" or "not applicable", please so
indicate.
1. IDENTIFICATION
Name ___________________________________________________________________________
Address of Principal Place of Business _________________________________________
Year and Jurisdiction of Formation
or Incorporation _________________________________________________
Type of Entity
(corporation, partnership, etc.) _____________________________________________
Was entity formed for the specific purpose of this investment?
Yes ____ No ____
If answer is yes, each equity owner (shareholder, partner, etc.) of the entity
must complete an Investor Questionnaire for Individual Investors.
2. PROPOSED INVESTMENT
Please indicate the amount of the entity's proposed investment in the Company.
$________
3. BUSINESS
Please indicate which, if any, of the following accurately describes the entity:
(a) [ ] a bank as defined in section 3(a)(2) of the Securities Act of
1933 (the "Securities Act") or a savings and loan association or
other institution as defined in section 3(a)(5)(A) of the
Securities Act, acting in either an individual or fiduciary
capacity;
(b) [ ] a broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934;
(c) [ ] an insurance company as defined in section 2(13) of the
Securities Act;
(d) [ ] an investment company registered under the Investment Company Act
of 1940 or a business development company as defined in section
2(a)(48) of that Act;
(e) [ ] a Small Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958;
(f) [ ] a plan established and maintained by a state, its political
subdivisions, or an agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, which
plan has total assets in excess of $5,000,000;
<PAGE> 47
(g) [ ] an employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, which satisfies one of
the following criteria: (i) the investment decision for such plan
is made by a plan fiduciary, as defined in section 3(21) of such
Act, which is either a bank, a savings and loan association, an
insurance company, or a registered investment adviser; (ii) such
plan has total assets in excess of $5,000,000; or (iii) such plan
is a self-directed plan and its investment decisions are made
solely by persons who are "accredited investors" within the
meaning of Rule 501(a) under the Securities Act;
(h) [ ] a private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
(i) [ ] an organization described in section 501(c)(3) of the Internal
Revenue Code, a corporation, a Massachusetts or similar business
trust, or a partnership, which was not formed for the specific
purpose of investing in the Company, and which has total assets
in excess of $5,000,000;
(j) [ ] a trust with total assets in excess of $5,000,000, which was not
formed for the specific purpose of investing in the Company and
whose investment in the Company is directed by a person with such
knowledge and experience in financial and business matters that
he or she is capable of evaluating the merits and risks of an
investment in the Company; and
(k) [ ] any entity in which all of the equity owners are "accredited
investors" within the meaning of Rule 501(a) under the Securities
Act.
If paragraph (k) is checked, each equity owner (shareholder, partner, etc.) of
the entity must complete an Investor Questionnaire for Individual Investors.
4. AFFILIATION
If the entity has any pre-existing personal or business relationship with the
Company or any of its officers, directors or controlling persons, please
describe the nature and duration of such relationship.
--------------------------------------------------------------
--------------------------------------------------------------
5. INVESTMENT EXPERIENCE
Please provide information detailing the business, financial and investment
experience of the entity and/or the investment manager of such entity which
gives such entity or investment manager the capacity to evaluate the merits and
risks of the proposed investment.
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
<PAGE> 48
6. ORGANIZATIONAL DOCUMENTS
Please enclose with this Questionnaire a copy of the entity's Certificate of
Incorporation, By-laws, Declaration of Trust or other governing instruments.
The above information is true and correct in all material respects. The
undersigned recognizes that the Company is relying on the truth and accuracy of
such information so that it may rely on certain exemptions from registration
contained in the Securities Act of 1933, as amended, and the securities laws of
certain states. THE UNDERSIGNED AGREES TO NOTIFY THE COMPANY PROMPTLY OF ANY
CHANGES IN THE FOREGOING INFORMATION WHICH MAY OCCUR PRIOR TO THE INVESTMENT.
Date:___________ __________________________________________
Name of Entity
By: /s/___________________________________
Signature of Authorized Representative
--------------------------------------------
Printed Name of Authorized Representative
--------------------------------------------
Printed Title of Authorized Representative
<PAGE> 49
ANNEX C
SELLING STOCKHOLDER QUESTIONNAIRE
The undersigned hereby furnishes to BioSphere Medical, Inc. ("BioSphere")
the following information.
Full legal name of record holder: _________________________
Address of record holder: _________________________
_________________________
Taxpayer identification number
of record holder: _________________________
Identity of beneficial owner if
different than record holder: _________________________
Name of contact person: _________________________
Telephone number of contact person: _________________________
Telecopy number of contact person: _________________________
Number of shares purchased: _________________________
Are you the beneficial owner of any other
securities _________________________
of BioSphere?
(Indicate Yes or No.) If Yes, please describe
the nature and
amount of such ownership:
_________________________
_________________________
Have you held any position or office, or had any _________________________
other material relationship within the past three If Yes, please describe
years with BioSphere? such relationship: ______
(Indicate Yes or No.) _________________________
_________________________
Have you made or are you aware of any arrangements _________________________
relating to the distribution of the shares to be If Yes, please describe
registered? such arrangement: ___
(Indicate Yes or No.)
_________________________
The undersigned hereby acknowledges that BioSphere has advised the
undersigned that during such time as the undersigned may be engaged in a
distribution of BioSphere Common Stock the undersigned will be required to
comply with the rules and regulations of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and, in connection therewith, the undersigned
agrees not to engage in any stabilization activity in connection with BioSphere
<PAGE> 50
securities, to furnish to each broker-dealer through which shares of BioSphere
Common Stock included in the Registration Statement may be offered copies of the
Prospectus, and not to bid for or purchase any securities of BioSphere or
attempt to induce any person to purchase any BioSphere securities except as
permitted under the Exchange Act. The undersigned also agrees to inform
BioSphere and broker-dealers through whom sales may be made under the
Registration Statement when the distribution is completed.
The undersigned has also reviewed the answers to the above questions and
affirms that the same are true, complete and accurate in every respect, to the
best of its knowledge. THE UNDERSIGNED AGREES TO NOTIFY BIOSPHERE IMMEDIATELY OF
ANY CHANGES IN THE FOREGOING INFORMATION.
Dated:___________ , 2000 /S/_______________________
Signature of Record Holder
(Please sign your name in exactly
the same manner as the
certificate(s) for the shares
being registered)
