Endologix, Inc. - 8-K Filing Date: 7/21/03
Exhibit 99.1
STOCK PURCHASE AGREEMENT
Endologix, Inc.
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Ladies & Gentlemen:
The undersigned, Federated ▇▇▇▇▇▇▇▇ Fund a portfolio of Federated Equity Funds
(the "Investor"), hereby confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
July 15, 2003 between Endologix, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company is offering up to 4,000,000 shares (the "Shares") of common
stock of the Company, $.001 par value (the "Common Stock"), subject to
adjustment by the Company's Board of Directors, to certain investors in a
private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor 4,000,000
Shares, for a purchase price of $2.25 per Share, or an aggregate purchase price
of $9,000,000; provided, however, that the Company shall have the option sell up
to 444,444 of such Shares (the "Carve-out Shares") at the same purchase price
per Share to one or more other investors in which case the number of Shares
purchased by the Investor shall be reduced accordingly such that, in any event,
the total Shares sold by the Company to the Investors and the other investors
(if any) shall be 4,000,000 and the aggregate purchase price paid by the
Investors and the other investors (if any) shall be $9,000,000. The purchase of
the Shares by the Investor and the purchase of the Carve-out Shares by the other
investors (if any) shall be made pursuant to the Terms and Conditions for
Purchase of Shares attached hereto as Annex I and incorporated herein by
reference as if fully set forth herein. Unless otherwise requested by the
Investor, certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
Investor is affiliated with the following NASD members: Federated Financial
Services, Inc., Federated Securities Corp;., and Edgewood Services, Inc.
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Disclosure Page 5
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
FEDERATED ▇▇▇▇▇▇▇▇ FUND a portfolio of
Federated Equity Funds
"INVESTOR"
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Portfolio Manager
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇ ▇▇▇▇
Telephone:
Name in which shares should be registered
(if different): Federated ▇▇▇▇▇▇▇▇ Fund a
portfolio of Federated Equity Funds
Tax ID No.:
Address where shares should be sent (if
different) State Street Bank & Trust Company
Attn: ▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 6
Endologix, Inc. - 8-K Filing Date: 7/21/03
STOCK PURCHASE AGREEMENT
Endologix, Inc.
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Ladies & Gentlemen:
The undersigned, Perry Capital (the "Investor"), hereby confirms its agreement
with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
July 15, 2003 between Endologix, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company is offering up to 4,000,000 shares (the "Shares") of common
stock of the Company, $.001 par value (the "Common Stock"), subject to
adjustment by the Company's Board of Directors, to certain investors in a
private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor 200,000 Shares,
for a purchase price of $2.25 per Share, or an aggregate purchase price of
$450,000. The purchase of the Shares by the Investor shall be made pursuant to
the Terms and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein and contingent on
the Company closing on the entire Offering. Unless otherwise requested by the
Investor, certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Disclosure Page 7
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
PERRY PARTNERS L.P.
"INVESTOR"
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing DIRECTOR
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇ ▇. ▇▇▇▇
Telephone:
Name in which shares should be registered
(if different):
Tax ID No.:
Address where shares should be sent (if
different)
________________________________________________
________________________________________________
________________________________________________
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 8
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
PERRY PARTNERS INTERNATIONAL, INC.
"INVESTOR"
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇ ▇. ▇▇▇▇
Telephone:
Name in which shares should be registered
(if different): ________________________________
Tax ID No.:
Address where shares should be sent (if
different)
________________________________________________
________________________________________________
________________________________________________
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 9
Endologix, Inc. - 8-K Filing Date: 7/21/03
STOCK PURCHASE AGREEMENT
Endologix, Inc.
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Ladies & Gentlemen:
The undersigned, Panacea Fund LLC (the "Investor"), hereby confirms its
agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
July 15, 2003 between Endologix, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company is offering up to 4,000,000 shares (the "Shares") of common
stock of the Company, $.001 par value (the "Common Stock"), subject to
adjustment by the Company's Board of Directors, to certain investors in a
private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor 150,000 Shares,
for a purchase price of $2.25 per Share, or an aggregate purchase price of
$337,500. The purchase of the Shares by the Investor shall be made pursuant to
the Terms and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein and contingent on
the Company closing on the entire Offering. Unless otherwise requested by the
Investor, certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Disclosure Page 10
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
PANACEA FUND LLC
"INVESTOR"
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Investors, Inc., as Manager
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Name in which shares should be registered
(if different): ________________________________
Tax ID No.:
Address where shares should be sent (if
different)
________________________________________________
________________________________________________
________________________________________________
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 11
Endologix, Inc. - 8-K Filing Date: 7/21/03
STOCK PURCHASE AGREEMENT
Endologix, Inc.
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Ladies & Gentlemen:
The undersigned, Ursus Capital (the "Investor"), hereby confirms its agreement
with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
July 15, 2003 between Endologix, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company is offering up to 4,000,000 shares (the "Shares") of common
stock of the Company, $.001 par value (the "Common Stock"), subject to
adjustment by the Company's Board of Directors, to certain investors in a
private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor 75,000 Shares,
for a purchase price of $2.25 per Share, or an aggregate purchase price of
$168,750. The purchase of the Shares by the Investor shall be made pursuant to
the Terms and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein and contingent on
the Company closing on the entire Offering. Unless otherwise requested by the
Investor, certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Disclosure Page 12
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
URSUS CAPITAL, L.P.
"INVESTOR"
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Print Name: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: General Partner
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
Name in which shares should be registered
(if different): ________________________________
Tax ID No.:
Address where shares should be sent (if
different)
________________________________________________
________________________________________________
________________________________________________
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 13
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
URSUS OFFSHORE, LTD.
"INVESTOR"
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Print Name: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
Name in which shares should be registered
(if different): ________________________________
Tax ID No.:
Address where shares should be sent (if
different)
________________________________________________
________________________________________________
________________________________________________
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 14
Endologix, Inc. - 8-K Filing Date: 7/21/03
STOCK PURCHASE AGREEMENT
Endologix, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Ladies & Gentlemen:
The undersigned, Haimovitch Medical Technology Consultants (the "Investor"),
hereby confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made effective as of
July 15, 2003 between Endologix, Inc., a Delaware corporation (the "Company"),
and the Investor.
2. The Company is offering up to 4,000,000 shares (the "Shares") of common
stock of the Company, $.001 par value (the "Common Stock"), subject to
adjustment by the Company's Board of Directors, to certain investors in a
private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor 19,444 Shares,
for a purchase price of $2.25 per Share, or an aggregate purchase price of
$43,749. The purchase of the Shares by the Investor shall be made pursuant to
the Terms and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein and contingent on
the Company closing on the entire Offering. Unless otherwise requested by the
Investor, certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Disclosure Page 15
Endologix, Inc. - 8-K Filing Date: 7/21/03
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 2000 SEPARATE PROPERTY
REVOCABLE TRUST
"INVESTOR"
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Trustee
Address:
email:
INFORMATION FOR DISTRIBUTION OF SHARES
Contact name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone:
Name in which shares should be registered
(if different): ________________________________
Tax ID No.:
Address where shares should be sent (if
different)
________________________________________________
________________________________________________
________________________________________________
AGREED AND ACCEPTED:
ENDOLOGIX, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Disclosure Page 16
Endologix, Inc. - 8-K Filing Date: 7/21/03
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company is offering 4,000,000 shares of Common
Stock (the "Shares").
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon the
terms and conditions hereinafter set forth, the number of Shares set forth on
the signature page hereto at the purchase price set forth on such signature
page.
2.2 The Company is entering into this same form of Stock Purchase
Agreement with certain other investors (the "Other Investors") effective as of
the date hereof (the "Subscription Date") and expects to complete sales of
Shares to them. (The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the "Investors," and this Agreement and the Stock
Purchase Agreements executed by the Other Investors are hereinafter sometimes
collectively referred to as the "Agreements.")
3. Delivery of the Shares at Closing. The completion of the
purchase and sale of the Shares (the "Closing") shall occur (the "Closing Date")
on the third business day after the Subscription Date (or upon such earlier date
as the Company and the Investors shall agree), at the offices of the Company's
counsel. At the Closing, the Company shall deliver to the Investor one or more
stock certificates representing the number of Shares set forth on the signature
page hereto, each such certificate to be registered in the name of the Investor
or, if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor. The Company's obligation to issue the Shares to the
Investor shall be subject to the following conditions, any one or more of which
may be waived by the Company: (a) receipt by the Company of a wire transfer of
funds in the full amount of the purchase price for the Shares being purchased
hereunder; and (b) the accuracy of the representations and warranties made by
the Investors and the fulfillment of those undertakings of the Investors to be
fulfilled prior to the Closing. The Investor's obligation to purchase the Shares
shall be subject to the following conditions, any one or more of which may be
waived by the Investor: (a) receipt by the Investor of one or more stock
certificates representing the number of Shares set forth on the signature page
hereto; (b) receipt by ▇▇▇▇ ▇▇▇▇▇, LLP, counsel to the Investors ("Investors'
Counsel"), of an opinion letter, dated as of the Closing Date, from ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, in form, scope and substance
satisfactory to Investors' Counsel and in substantially the form attached hereto
as Exhibit A; (c) the accuracy of the representations and warranties made by the
Company as of the Closing Date and the fulfillment of those undertakings of the
Company to be fulfilled prior to the Closing; (d) on the Closing Date, no legal
action, suit or proceeding shall be pending or threatened which seeks to
restrain or prohibit the transactions contemplated by the Agreements; (e) the
Company shall have delivered to the Investor's Counsel its certificate, dated
the Closing Date, duly executed by its Chief Executive Officer to the effect set
forth in clause (c) above; (f) the Company shall have delivered to Investors'
Counsel its certificate, dated the Closing Date, duly executed by its Secretary,
certifying as to (i) the Company's Certificate of Incorporation and (ii) the
Company's By-Laws, each as in effect as of the Closing Date, and (iii) all
resolutions, votes or minutes of the Company's Board of Directors (or the
Special Finance Committee of the Board of Directors) in connection with the
Offering; (g) the Company shall have delivered to Investors' Counsel certified
copies of certificates evidencing the incorporation and good standing of the
Company and each Significant Subsidiary (as defined in Section 4.1 below) in
each such entity's state or jurisdiction of incorporation or organization as of
a date within ten (10) days of the Closing Date; (i) receipt by Investors'
Counsel of such other documents or certificates relating to the Offering as
Investors' Counsel may reasonably request.
4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, the Investor, as
follows:
4.1 Subsidiaries; Organization. The Company has no subsidiaries
(as defined by Rule 405 under the Securities Act of 1933, as amended (the
"Securities Act")) except as set forth in Exhibit 21.1 to its Annual Report on
Form 10-K for the fiscal year ended December 31, 2002. The Company and each
Significant Subsidiary of the
Disclosure Page 17
Endologix, Inc. - 8-K Filing Date: 7/21/03
Company (as defined in Rule 1-02(w) of Regulation S-X, the "Subsidiaries") is
duly organized and validly existing in good standing under the laws of the
jurisdiction of its incorporation or organization. The Company and each of its
Subsidiaries has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and is registered
or qualified to do business and in good standing in each jurisdiction in which
it owns or leases property or transacts business and where the failure to be so
qualified would have a material adverse effect upon the financial condition or
business, operations, assets or prospects of the Company and its Subsidiaries
taken as a whole, and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
4.2 Due Authorization. The Company has all requisite power and
authority to execute, deliver and perform its obligations under the Agreements,
and the Agreements have been duly authorized and validly executed and delivered
by the Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.3 Non-Contravention. The execution and delivery of the
Agreements, the issuance and sale of the Shares to be sold by the Company under
the Agreements, the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A) conflict with
or constitute a violation of, or default (with or without the giving of notice
or the passage of time or both) under, (i) any material bond, debenture, note or
other evidence of indebtedness, or under any material lease, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or
instrument to which the Company is a party or by which it or its properties are
bound, (ii) the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries, or (iii) any law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration panel or
authority applicable to the Company, any of its Subsidiaries or their respective
properties, or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or any of its Subsidiaries or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to which
any of the property or assets of the Company or any of its Subsidiaries is
subject. No consent, approval, authorization or other order of, or registration,
qualification or filing with, any regulatory body, administrative agency,
self-regulatory organization, stock exchange or market, or other governmental
body in the United States is required for the execution and delivery of the
Agreements and the valid issuance and sale of the Shares to be sold pursuant to
the Agreements, other than such as have been made or obtained, and except for
any securities filings required to be made under federal or state securities
laws or the rules of the Nasdaq Stock Market.
4.4 Reporting Status. The Company has filed in a timely manner all
documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), during the 12 months preceding the
date of this Agreement. The following documents complied in all material
respects with the SEC's requirements as of their respective filing dates, and
the information contained therein as of the date thereof did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances under where they were made not misleading, except to the extent
that information contained in any such document has been revised or superseded
by a later filed SEC Document (as defined below):
(i) The Company's Proxy Statement for the 2002 Annual Meeting
of Stockholders (the "Proxy Statement");
(ii) The Company's Annual Report on Form 10-K for the year
ended December 31, 2002, as amended by Form 10-K/A, including the
exhibits thereto (the "Form 10-K"); and
(iii) all other documents, including the exhibits thereto,
filed by the Company with the SEC since December 31, 2002 pursuant to
the reporting requirements of the Exchange Act (together with the Proxy
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Endologix, Inc. - 8-K Filing Date: 7/21/03
Statement and the Form 10-K, the "SEC Documents").
The SEC Documents as of the date of their respective filings with the
SEC, did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.5 Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 35,000,000 shares of capital stock, of which
30,000,000 shares are designated Common Stock and 5,000,000 shares are
designated Preferred Stock. As of July 9, 2003, there were approximately
23,877,944 shares of Common Stock issued and outstanding, and no shares of
Preferred Stock issued and outstanding. As of July 9, 2003, an aggregate of
1,839,967 shares of Common Stock were reserved for issuance under the Company's
1996 Stock Option/Stock Issuance Plan, the 1997 Supplemental Stock Option Plan
and the 1996 Employee Stock Purchase Plan, all of which shares issuable upon
exercise of outstanding stock options issued by the Company to employees,
consultants and directors of the Company. Other than as disclosed in the SEC
Documents, no other shares or options, warrants or other rights to acquire
shares of capital stock of the Company or securities convertible into capital
stock of the Company are outstanding. All outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable, free from any
liens or any other encumbrances created by the Company with respect to the
issuance and delivery thereof and not subject to preemptive rights. Other than
as disclosed in the SEC Documents, except as set forth above, there are no
outstanding rights, options, warrants, preemptive rights, rights of first
refusal agreements, commitments or similar rights for the purchase or
acquisition from the Company or any of its Subsidiaries of any securities of the
Company or any of its Subsidiaries. The Shares to be sold pursuant to the
Agreements have been duly authorized, and when issued and paid for in accordance
with the terms of the Agreements will be duly and validly issued, fully paid and
nonassessable, free and clear of all pledges, liens, encumbrances and other
restrictions (other than those arising under federal or state securities laws as
a result of the private placement of the Shares to the Investors). No preemptive
right, co-sale right, right of first refusal or other similar right exists with
respect to the Shares or the issuance and sale thereof. No further approval or
authorization of any stockholder, the Board of Directors of the Company or
others is required for the issuance and sale of the Shares. Except as set forth
in the SEC Documents, no holder of any of the securities of the Company has any
rights ("demand," "piggyback" or otherwise) to have such securities registered
by reason of the intention to file, filing or effectiveness of a Registration
Statement (as defined in Section 7.1 hereof).
4.6 Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened to which the Company or any of its Subsidiaries or any
of their respective officers or directors in their capacity as such officer or
director is or may be a party or of which the business or property of the
Company or any of its Subsidiaries is subject that is not disclosed in the SEC
Documents. There is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body (including, without limitation, the SEC)
pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened against or affecting the Company wherein an unfavorable decision,
ruling or finding could adversely affect the validity or enforceability of, or
the authority or ability of the Company to perform its obligations under the
Agreements.
4.7 No Violations. Neither the Company nor any of its Subsidiaries
is in violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any of its Subsidiaries, which violation, individually or in the aggregate,
would be reasonably likely to have a material adverse effect on the business,
operations, assets or prospects or financial condition of the Company and its
Subsidiaries taken as a whole, or in default (and there exists no condition
which, with or without the passage of time or giving of notice or both, would
constitute a default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other material agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or by which the properties of the Company are
bound, which would be reasonably likely to have a material adverse effect upon
the business, operations, assets or prospects or financial condition of the
Company and its Subsidiaries taken as a whole.
4.8 Governmental Permits, Etc. The Company and its Subsidiaries
possess all necessary franchises, licenses, certificates and other
authorizations from any foreign, federal, state or local government or
governmental
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Endologix, Inc. - 8-K Filing Date: 7/21/03
agency, department, or body that are currently necessary for the operation of
their respective business as currently conducted, except where the failure to
currently possess could not reasonably be expected to have a material adverse
effect upon the business, operations, assets or prospects or financial condition
of the Company and its Subsidiaries taken as a whole.
4.9 Intellectual Property. The Company and its Subsidiaries own or
possess sufficient rights to use all patents, patent rights, trademarks,
copyrights, licenses, inventions, trade secrets, trade names and know-how
(collectively, "Intellectual Property") that are necessary for the conduct of
their respective businesses as now conducted except where the failure to
currently own or possess would not have a material adverse effect on the
financial condition or business of the Company and its Subsidiaries taken as a
whole. Except as set forth in the SEC Documents, (i) neither the Company nor any
of its Subsidiaries has received any notice in writing of, or has any knowledge
of, any infringement of asserted rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect on the financial condition or business, operations,
assets or prospects of the Company and its Subsidiaries taken as a whole and
(ii) neither the Company nor any of its Subsidiaries has received any notice in
writing of any infringement rights by a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
material adverse effect upon the business, operations, assets or prospects or
financial condition of the Company and its Subsidiaries taken as whole.
4.10 Financial Statements. The consolidated financial statements of
the Company and its Subsidiaries and the related notes thereto included in the
SEC Documents present fairly, in accordance with the rules and regulations of
the SEC, the financial position of the Company as of the dates indicated, and
the results of its operations and cash flows for the periods therein specified.
Except as set forth in such financial statements, such financial statements
(including the related notes) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods therein specified, subject, in the case of unaudited statements, to
normal year-end adjustments.
4.11 No Material Adverse Change. Except as publicly disclosed in
the SEC Documents, press releases or in other "public disclosures" as such term
is defined in Section 101(e) of Regulation FD of the Exchange Act, since
December 31, 2002 there has not been (i) any material adverse change in the
financial condition, earnings or prospects of the Company or any of its
Subsidiaries nor has any material adverse event occurred to the Company or any
of its Subsidiaries (it being understood that the Company has incurred operating
losses), (ii) any obligation, direct or contingent, that is material to the
Company and its Subsidiaries taken as a whole, incurred by the Company or any of
its Subsidiaries, except obligations incurred in the ordinary course of
business, (iii) any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company, or (iv) any loss or damage (whether or not
insured) to the physical property of the Company or any of its Subsidiaries
which has been sustained which has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or business prospects
of the Company and its Subsidiaries taken as a whole. Except as publicly
disclosed in the SEC Documents, press releases or in other "public disclosures"
as such term is defined in Section 101(e) of Regulation FD of the Exchange Act,
since December 31, 2002, neither the Company nor any of its Subsidiaries has (i)
sold, assigned, transferred, abandoned, mortgaged, pledged or subjected to lien
any of its material properties, tangible or intangible, or rights under any
material contract, permit, license, franchise or other agreement or (ii) waived
or cancelled any indebtedness or other obligations owed to the Company or any of
its Subsidiaries.
4.12 NASDAQ Listing. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market, Inc. National Market (the "Nasdaq National Market"), and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor to the Company's knowledge is the
National Association of Securities Dealers, Inc. ("NASD") currently
contemplating terminating such listing. The Company and the Common Stock meet
the criteria for continued listing and trading on the Nasdaq National Market.
4.13 Listing of the Shares. The Company shall comply with all
requirements of the National Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and the listing thereof on the Nasdaq
National Market. In furtherance thereof, the Company shall use its commercially
reasonable efforts to take such actions as may be necessary and as soon as
practicable and in no event later than 20 days after the Closing Date to file
with the Nasdaq National Market an application or other document required by the
Nasdaq National Market
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Endologix, Inc. - 8-K Filing Date: 7/21/03
and pay all applicable fees for the listing of the Shares with the Nasdaq
National Market and shall provide evidence of such filing to the Investors. The
Company knows of no reason why the Shares will not be eligible for listing on
the Nasdaq National Market.
4.14 No Manipulation of Stock. The Company has not taken and will
not, in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
4.15 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 Investors and
will use its best efforts to maintain S-3 status with the SEC during the
Registration Period (as defined in Section 7.1(c)).
4.16 Insurance. The Company and each of its Subsidiaries maintains
and will continue to maintain insurance against loss or damage by fire or other
casualty and such other insurance, including, but not limited to, product
liability insurance, in such amounts and covering such risks as is reasonably
adequate consistent with industry practice for the conduct of their respective
businesses and the value of their respective properties.
4.17 Tax Matters. The Company and each of its Subsidiaries has
filed all material federal, state, local and foreign income and franchise and
other tax returns required to be filed by any jurisdiction to which it is
subject and has paid all taxes due in accordance therewith, and no tax
deficiency has been determined adversely to the Company or any of its
Subsidiaries which has had (nor does the Company or any of its Subsidiaries have
any knowledge of any tax deficiency which, if determined adversely to the
Company or any of its Subsidiaries, would reasonably be expected to have) a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
4.18 Investment Company. The Company is not an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the SEC thereunder.
4.19 No Registration. Assuming the accuracy of the representations
and warranties made by, and compliance with the covenants of, the Investors in
Section 5 hereof, no registration of the Shares under the Securities Act is
required in connection with the offer and sale of the Shares by the Company to
the Investors as contemplated by the Agreements.
4.20 Internal Accounting Controls. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient, in
the judgment of the Company's board of directors, to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of consolidated financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
4.21 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 under the
Securities Act to claim the exemption provided by Rule 506 of Regulation D and
to provide a copy thereof to the Investors and their counsel promptly after such
filing.
4.22 Certain Future Financings and Related Actions.
(a) 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.
(b) The Company shall not offer, sell, contract to sell
or issue (or engage any person to assist the Company in taking any such
action) any equity securities or securities convertible into,
exchangeable for or otherwise entitling the holder to acquire, any
Common Stock at a price below the market price of the
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Endologix, Inc. - 8-K Filing Date: 7/21/03
Common Stock during the period from the date of this Agreement to the
ninetieth (90th) day following the effective date of the Registration
Statement; provided, however, that nothing in this Section 4.22(b)
shall prohibit the Company from issuing securities (v) to employees,
directors, officers, advisors or consultants of the Company or any of
its Subsidiaries; (w) upon exercise of conversion, exchange, purchase
or similar rights issued, granted or given by the Company and
outstanding as of the date of this Agreement; (x) pursuant to a public
offering underwritten on a firm commitment basis registered under the
Securities Act; (y) for the purpose of funding the acquisition of
securities or assets of any entity in a single transaction or a series
of related transactions; or (z) pursuant to a strategic partnership or
alliance agreement, loan agreement, equipment lease or similar
commercial agreement (including licensing and similar arrangements).
4.23 Use of Proceeds. The Company will use the net proceeds from
the sale of the Shares for working capital and general corporate purposes,
including, without limitation, expenditures associated with the Company's
research and development effort.
5. Representations, Warranties and Covenants of the Investor.
5.1 The Investor represents and warrants to, and covenants with,
the Company that: (i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act and the Investor has the knowledge,
sophistication and experience necessary to make, and is qualified to make
decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company and investments in comparable companies, and
has had the opportunity to request and review all information it deemed relevant
in making an informed decision to purchase the Shares; (ii) the Investor is
acquiring the number of Shares set forth on the signature page hereto for its
own account for investment only and with no present intention of distributing
any of such Shares in violation of the Securities Act nor does the Investor have
any arrangement or understanding with any other persons regarding the
distribution of such Shares; (iii) the Investor will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with the Securities Act, applicable state securities
laws and the respective rules and regulations promulgated thereunder; (iv) the
Investor has filled in all requested information on the signature page hereto
for use in preparation of the Registration Statement and the answers thereto are
true and correct as of the date hereof and will be true and correct as of the
Closing Date; (v) the Investor will notify the Company promptly of any change in
any of such information until such time as the Investor has sold all of its
Shares or until the Company is no longer required to keep the Registration
Statement effective; and (vi) the Investor has, in connection with its decision
to purchase the number of Shares set forth on the signature page hereto, relied
only upon the SEC Documents, other publicly available information and the
representations and warranties of the Company contained herein. The Investor
understands that its acquisition of the Shares has not been registered under the
Securities Act or registered or qualified under any state securities law in
reliance on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of the Investor's investment intent as
expressed herein.
5.2 The Investor acknowledges that the Company has represented
that no action has been or will be taken in any jurisdiction outside the United
States by the Company that would permit an offering of the Shares, or possession
or distribution of offering materials in connection with the issuance of the
Shares, in any jurisdiction outside the United States where action for that
purpose is required. If the Investor is located or domiciled outside the United
States it agrees to comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers Shares or
has in its possession or distributes any offering material, in all cases at its
own expense.
5.3 The Investor hereby covenants with the Company not to make any
sale of the Shares without complying with the provisions of this Agreement,
including Section 7.2 hereof and, without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied, if applicable,
and the Investor acknowledges that the certificates evidencing the Shares will
be imprinted with a legend that prohibits their transfer except in accordance
therewith. The Investor acknowledges that there may occasionally be times when
the Company, based on the advice of its counsel, determines that, subject to the
limitations of Section 7.2, it must suspend the use of the Prospectus forming a
part of the Registration Statement until such time as an amendment to the
Registration Statement has been filed by the Company and declared effective by
the SEC or until the Company
Disclosure Page 22
Endologix, Inc. - 8-K Filing Date: 7/21/03
has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and (ii) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification and contribution agreements
of the Investors herein may be legally unenforceable.
5.5 The Investor will not, prior to the effectiveness of the
Registration Statement, sell, offer to sell, solicit offers to buy, dispose of,
loan, pledge or grant any right with respect to (collectively, a "Disposition"),
the Common Stock of the Company in violation of the Securities Act, nor will
Investor engage in any hedging or other transaction which is designed to or
could reasonably be expected to lead to or result in a Disposition of Common
Stock of the Company by the Investor or any other person or entity in violation
of the Securities Act. Such prohibited hedging or other transactions would
include without limitation effecting any short sale or having in effect any
short position (whether or not such sale or position is against the box and
regardless of when such position was entered into) or any purchase, sale or
grant of any right (including without limitation any put or call option) with
respect to the Common Stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in this Agreement or any
other materials presented to the Investor in connection with the purchase and
sale of the Shares constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Investor represents and warrants that neither it, nor any
of its affiliates (or any other third party acting on the instructions of the
Investor or its affiliates), have entered into any Short Sales (as hereinafter
defined) or otherwise traded in the Common Stock or acted in a manner that could
reasonably be expected to result in downward price pressure on the Common Stock
following the receipt of any information or documents related to the sale of the
Shares contemplated herein. For purposes of this Section 5.7, a "Short Sale" by
the Investor shall mean a sale of Common Stock by the Investor that is marked as
a short sale and that is made at a time when there is no equivalent offsetting
long position in Common Stock held by the Investor.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the delivery
to the Investor of the Shares being purchased and the payment therefor.
7. Registration of the Shares; Compliance with the Securities
Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the
Investors, use commercially reasonable efforts to prepare and file with
the SEC, as soon as reasonably practicable but in any event within 30
days after the Closing Date, a registration statement (the
"Registration Statement") on Form S-3 to enable the resale of the
Registrable Shares (as defined below) by the Investors on a delayed or
continuous basis under Rule 415 of the Securities Act. "Registrable
Shares" means (a) all shares of Common Stock purchased in the Offering
and (b) Penalty Shares (as defined below), if any;
(b) use commercially reasonable efforts, subject to
receipt of necessary information from the Investors, to cause the
Registration Statement to become effective as soon as reasonably
practicable but in
Disclosure Page 23
Endologix, Inc. - 8-K Filing Date: 7/21/03
any event within 120 days after the Closing Date (with respect to this
Section 7.1(b), the term "commercially reasonable efforts" shall mean
that the Company shall submit to the SEC, within two business days
after the Company learns that no review of the Registration Statement
will be made by the staff of the SEC or that the staff has no further
comments on the Registration Statement, as the case may be, a request
for acceleration of effectiveness of the Registration Statement to a
time and date not later than 48 hours after the submission of such
request);
(c) use commercially reasonable efforts to prepare and
file with the SEC such amendments and supplements to the Registration
Statement and the Prospectus used in connection therewith and take all
such other actions as may be necessary to keep the Registration
Statement current and effective for a period (the "Registration
Period") not exceeding, with respect to each Investor's Registrable
Shares, the earlier of (i) the second anniversary of the Closing Date,
(ii) the date on which the Investor may sell all Shares then held by
the Investor without restriction by the volume limitations of Rule
144(e) of the Securities Act, and (iii) such time as all Registrable
Shares held by such Investor have been sold (A) pursuant to a
registration statement, (B) to or through a broker or dealer or
underwriter in a public distribution or a public securities
transaction, and/or (C) in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions and restrictive
legends with respect thereto, if any, are removed upon the consummation
of such sale.
(d) promptly furnish to the Investor with respect to the
Shares registered under the Registration Statement such number of
copies of the Registration Statement and Prospectuses in conformity
with the requirements of the Securities Act and such other documents as
the Investor may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares by the Investor;
(e) promptly take such action as may be necessary to
qualify, or obtain, an exemption for the Registrable Shares under such
of the state securities laws of United States jurisdictions as shall be
necessary to qualify, or obtain an exemption for, the sale of the
Registrable Shares in states specified in writing by the Investor;
provided, however, that the Company shall not be required to qualify to
do business or consent to service of process in any jurisdiction in
which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures
in paragraph (a) through (e) of this Section 7.1 and the registration
of the Shares pursuant to the Registration Statement, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses
(including filings made with the NASD); (ii) fees and expenses of
compliance with federal securities and state "blue sky" or securities
laws; (iii) expenses of printing (including printing certificates for
the Registrable Securities and Prospectuses), messenger and delivery
services and telephone; (iv) all application and filing fees in
connection with listing the Registrable Securities on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and (v) all fees and disbursements of counsel of
the Company and independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters
required by or incident to such performance); provided, however, that
each Investor shall be responsible for paying the underwriting
commissions or brokerage fees, and taxes of any kind (including,
without limitation, transfer taxes) applicable to any disposition, sale
or transfer of such Investor's Registrable Securities. The Company
shall, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual
audit, rating agency fees and the fees and expenses of any person,
including special experts, retained by the Company;
(g) advise the Investors, within two business days by
e-mail, fax or other type of communication, and, if requested by such
person, confirm such advice in writing: (i) after it shall receive
notice or obtain knowledge of the issuance of any stop order by the SEC
delaying or suspending the effectiveness of the Registration Statement
or of the initiation or threat of any proceeding for that purpose, or
any other order issued by any state securities commission or other
regulatory authority suspending the qualification or exemption from
qualification of such Registrable Securities under state securities or
"blue sky" laws; and it will promptly use its best efforts to prevent
the issuance of any stop order or other order or to obtain its
withdrawal at the earliest possible moment if such stop order or other
order should be issued;
Disclosure Page 24
Endologix, Inc. - 8-K Filing Date: 7/21/03
and (ii) when the Prospectus or any Prospectus Supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment thereto, when
the same has become effective.;
(h) otherwise use commercially reasonable efforts to
comply with all applicable rules and regulations of the SEC;
(i) use commercially reasonable efforts to cause all
Registrable Shares to be listed on each securities exchange or market,
if any, on which equity securities issued by the Company are then
listed; and
(j) use commercially reasonable efforts to take all other
steps necessary to effect the registration of the Registrable Shares
contemplated hereby and to enable the Investors to sell the Shares
under Rule 144.
(k) The Company further agrees that, subject to the
Company's right to cause a Suspension under Section 7.2 of this
Agreement, in the event that the Registration Statement has not (i) in
the event of a "no review" of the Registration Statement by the the
SEC, been declared effective by the SEC within 60 days after the
Closing Date, or (ii) in the event the Registration Statement is
reviewed by the SEC, been declared effective by the SEC within 90 days
after the Closing Date, unless in either case the failure to become
effective is due to the fault of one or more Investors (each such event
referred to in clauses (i) and (ii), a "Registration Default"), then:
(A) if the Registration Default exists for 60 or
fewer days, then the Company shall issue additional shares to
the Investor equal to 1/6th of 1% of the Shares issued to the
Investor at the Closing, per day of the Registration Default
period;
(B) if the Registration Default exists for 61 to
90 days, then the Company shall issue further additional
shares to the Investor equal to 10% of the Shares issued to
the Investor at the Closing; and
(C) if the Registration Default exists for more
than 90 days, then the Company shall pay a further additional
shares to the Investor equal to 10% of the Shares issued to
the Investor at the Closing.
To the extent that the Company has insufficient authorized but unissued shares
available to pay such penalties, or such issuance would result in the Company
being required under NASDAQ rules or other applicable rules to obtain the
approval of the Company's stockholders, then the Company shall pay to the
Investor cash in lieu of shares, at the rate of $2.25 per share. The Company
shall deliver said shares or cash payment to the Investor by the fifth business
day after the end of each such Penalty Period. Notwithstanding anything to the
contrary in Section 7.3 or any other provision of this Agreement, the issuance
of the Penalty Shares or cash as provided in this Section 7.1(k) shall be the
Investor's sole and exclusive remedy in the event of any Registration Default;
provided, however, that if the foregoing remedy is deemed unenforceable by a
court of competent jurisdiction then the Investor shall have all other remedies
available at law or in equity.
7.2 Transfer of Shares; Suspension.
(a) The Investor agrees that it will not effect any
Disposition of the Shares or its right to purchase the Shares that
would constitute a sale within the meaning of the Securities Act except
as contemplated in the Registration Statement referred to in Section
7.1 and as described below or otherwise in accordance with the
Securities Act, and that it will promptly notify the Company of any
changes in the information set forth in the Registration Statement
regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies,
the Company shall, at all times during the Registration Period,
promptly (i) prepare and file from time to time with the SEC a
post-effective amendment to the Registration Statement or a supplement
to the related Prospectus or a
Disclosure Page 25
Endologix, Inc. - 8-K Filing Date: 7/21/03
supplement or amendment to any document incorporated therein by
reference or file any other required document so that such Registration
Statement will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that,
as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (ii) provide
the Investor copies of any documents filed pursuant to Section
7.2(b)(i); and (iii) inform each Investor that the Company has complied
with its obligations in Section 7.2(b)(i) (or that, if the Company has
filed a post-effective amendment to the Registration Statement which
has not yet been declared effective, the Company will notify the
Investor to that effect, will use its commercially reasonable efforts
to secure the effectiveness of such post-effective amendment as
promptly as possible and will promptly notify the Investor pursuant to
Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event (i) of
any request by the SEC or any other federal or state governmental
authority during the period of effectiveness of the Registration
Statement for amendments or supplements to a Registration Statement or
related Prospectus or for additional information; (ii) of the issuance
by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose; (iii) of the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; or (iv)
either before or after effectiveness of the Registration Statement, of
any event or circumstance which necessitates the making of any changes
in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact
or any omission to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; then the
Company shall deliver a notice in writing to the Investor (the
"Suspension Notice") to the effect of the foregoing and, upon receipt
of such Suspension Notice, the Investor will refrain from selling any
Registrable Shares pursuant to the Registration Statement (a
"Suspension") until the Investor's receipt of copies of a supplemented
or amended Prospectus prepared and filed by the Company, or until it is
advised in writing by the Company that the current Prospectus may be
used, and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in any such
Prospectus. In the event of any Suspension, the Company will use its
commercially reasonable efforts, consistent with the best interests of
the Company and its stockholders, to cause the use of the Prospectus so
suspended to be resumed as soon as reasonably practicable after the
delivery of a Suspension Notice to the Investor. In addition to and
without limiting any other remedies (including, without limitation, at
law or at equity) available to the Investor, the Investor shall be
entitled to specific performance in the event that the Company fails to
comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this
Section 7.2, the Investor shall not be prohibited from selling
Registrable Shares under the Registration Statement as a result of
Suspensions on more than two occasions (for two separate suspension
events) of not more than 45 days each in any twelve month period. If
the Investor is prohibited from selling Registrable Shares under the
Registration Statement as a result of Suspensions on more than two
occasions in any twelve-month period or for more than 45 days on any
one occasion, it shall be deemed a Registration Default, and the
Company shall issue Penalty Shares or cash, as the case may be, in
accordance with the provisions of Section 7.1(k) based on the aggregate
purchase price of the Registrable Shares that have not been previously
sold by the Investor.
(e) Provided that a Suspension is not then in effect, the
Investor may sell Registrable Shares under the Registration Statement,
provided that it arranges for delivery of a current Prospectus to the
transferee of such Shares. Upon receipt of a request therefor, the
Company has agreed to provide, at its own expense, an adequate number
of current Prospectuses (including documents incorporated by reference
therein) to the Investor and to supply copies to any other parties
requiring such Prospectuses.
Disclosure Page 26
Endologix, Inc. - 8-K Filing Date: 7/21/03
(f) In the event of a sale of Registrable Shares by the
Investor under the Registration Statement, the Investor must also
deliver to the Company's transfer agent, with a copy to the Company, a
Certificate of Subsequent Sale substantially in the form attached
hereto as Exhibit B, so that the Registrable Shares may be properly
transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" shall include the Investor and
any person controlling such Investor;
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include (1) any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein not misleading and (2) any
untrue statement or alleged untrue statement, or any omission or alleged
omission to state in the Prospectus a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless
each Selling Stockholder from and against any losses, claims, damages,
liabilities or expenses to which such Selling Stockholder may become
subject (under the Securities Act or otherwise) insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) arise out of, or are based upon (i) any untrue
statement of a material fact contained in the Registration Statement or
Prospectus, (ii) any failure by the Company to fulfill any undertaking
included in the Registration Statement, (iii) any breach of any
representation, warranty or covenant made by the Company in this
Agreement and (iv) any violation or alleged violation of the Securities
Act, the Exchange Act, any other law, including, without limitation,
any state securities law, or any rule or regulation thereunder relating
to the offer or sale of the Registrable Securities, and the Company
will promptly reimburse such Selling Stockholder for any reasonable
legal or other expenses incurred in investigating, defending or
preparing to defend, settling, compromising or paying any such action,
proceeding or claim, provided, however, that the Company shall not be
liable in any such case to the extent that such loss, claim, damage,
liability or expense arises solely out of, or is based solely upon, an
untrue statement made in such Registration Statement in reliance upon
and in conformity with written information furnished to the Company by
such Selling Stockholder specifically for use in preparation of the
Registration Statement or the failure of such Selling Stockholder to
comply with its covenants and agreements contained in Sections 5.3 or
7.2 hereof respecting sale of the Shares or any statement or omission
in any Prospectus that is corrected in any subsequent Prospectus that
was delivered to the Investor at least three business days prior to the
pertinent sale or sales by the Investor. Notwithstanding the foregoing,
the Company shall not be liable to any Selling Stockholder for any
consequential damages, including lost profits, solely with respect to
losses, claims, damages, liabilities or expenses to which such Selling
Stockholder may become subject arising out of, or based upon, any
breach of any representation, warranty or covenant made by the Company
in this Agreement.
(b) The Investor agrees (severally and not jointly with
any other Investor) to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs
the Registration Statement and each director of the Company) from and
against any losses, claims, damages, liabilities or expenses to which
the Company (or any such officer, director or controlling person) may
become subject (under the Securities Act or otherwise), insofar as such
losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise solely out of, or are based
solely upon, (i) any failure to comply with the covenants and
agreements contained in Section 5.3 or 7.2 hereof respecting sale of
the Shares, (ii) any untrue statement of a material fact contained in
the Registration Statement if such untrue statement was made in
reliance upon and in conformity with written information furnished by
the Investor specifically for use in preparation of the Registration
Statement (provided, however, that no Investor shall be liable in any
such case for any untrue statement in any Registration Statement or
Prospectus if such statement has been
Disclosure Page 27
Endologix, Inc. - 8-K Filing Date: 7/21/03
corrected in writing by such Investor and delivered to the Company at
least three business days prior to the pertinent sale or sales by the
Investor) or (iii) any violation or alleged violation of the Securities
Act, the Exchange Act, any other law, including, without limitation,
any state securities law, or any rule or regulation thereunder relating
to the offer or sale of the Registrable Securities, and the Investor
will reimburse the Company (or such officer, director or controlling
person), as the case may be, for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend, settling,
compromising or paying any such action, proceeding or claim.
Notwithstanding the foregoing, (x) the Investor's aggregate liability
pursuant to this subsection (b) and subsection (d) shall be limited to
the net amount received by the Investor from the sale of the Shares and
(y) the Investor shall not be liable to the Company for any
consequential damages, including lost profits, solely with respect to
losses, claims, damages, liabilities or expenses to which the Company
(or any officer, director or controlling person as set forth above) may
become subject (under the Securities Act or otherwise), arising out of,
or based upon, any failure to comply with the covenants and agreements
contained in Section 5.3 or 7.2 hereof respecting sale of the Shares.
(c) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to
this Section 7.3, such indemnified person shall notify the indemnifying
person in writing of such claim or of the commencement of such action,
but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party under
this Section 7.3 (except to the extent that such omission materially
and adversely affects the indemnifying party's ability to defend such
action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action
shall be brought against an indemnified person, the indemnifying person
shall be entitled to participate therein, and, to the extent that it
shall elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from
the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be
liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense
thereof, provided further, however, that if there exists or shall exist
a conflict of interest that would make it inappropriate, in the opinion
of counsel to the indemnifying person, for the same counsel to
represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying
person; provided, however, that no indemnifying person shall be
responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) for all indemnified parties.
In no event shall any indemnifying person be liable in respect of any
amounts paid in settlement of any action unless the indemnifying person
shall have approved the terms of such settlement; provided that such
consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified person is or could have been a party
and indemnification could have been sought hereunder by such
indemnified person, unless such settlement includes an unconditional
release of such indemnified person from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section
7.3 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages, liabilities or expenses (or actions or proceedings 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, liabilities or
expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one
hand and the Investor on the other in connection with the statements or
omissions or other matters which resulted in such losses, claims,
damages, liabilities or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, in the case of
an untrue statement, whether the untrue statement relates to
information supplied by the Company on the one hand or an Investor on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement. The Company and the Investors agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata
Disclosure Page 28
Endologix, Inc. - 8-K Filing Date: 7/21/03
allocation (even if the Investors were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to above in this
subsection (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 in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Investor shall be required to contribute any amount
in excess of the net amount received by the Investor from the sale of
the Shares. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Investors' obligations in this subsection to
contribute are several in proportion to their sales of Shares to which
such loss relates and not joint.
(e) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel
during the negotiations regarding the provisions hereof including,
without limitation, the provisions of this Section 7.3, and are fully
informed regarding said provisions.
7.4 Rule 144. Until the earlier of (i) the date on which the
Company no longer has securities registered pursuant to Section 12 of the
Exchange Act, or (ii) the second anniversary of the Closing, the Company agrees
with each holder of Registrable Shares to:
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the
Company; and
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and
the Exchange Act (at any time it is subject to such reporting
requirements).
7.5 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 5 or this Section 7 upon Dispositions of the
Registrable Shares by the Investor shall cease and terminate as to any
particular number of the Registrable Shares and the restrictive legend shall be
removed when such Registrable Shares shall have been effectively registered
under the Securities Act and sold or otherwise disposed of in accordance with
the intended method of disposition set forth in the Registration Statement
covering such Registrable Shares or at such time as an opinion of counsel
reasonably satisfactory to the Company shall have been rendered to the effect
that such conditions are not necessary in order to comply with the Securities
Act (provided that such opinion shall not be required if the Company shall be
furnished with written documentation reasonably satisfactory to it that such
Registrable Shares are being transferred in a customary transaction exempt from
registration under Rule 144 under the Securities Act).
8. Notices. Except as specifically permitted by Section 7.1(g),
all notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
and (iv) if delivered by facsimile, upon electric confirmation of receipt and
shall be delivered as addressed as follows:
(a) if to the Company, to:
Endologix, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Disclosure Page 29
Endologix, Inc. - 8-K Filing Date: 7/21/03
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Investor, at its address on the signature page
hereto, or at such other address or addresses as may have been furnished to the
Company in writing.
with a copy to:
▇▇▇▇ ▇▇▇▇▇ LLP
Federated Investors Tower
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
9. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
11. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without giving effect to the principles of conflicts of law.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements relating to such subject matter
are expressly cancelled.
14. Finders Fees. Neither the Company nor the Investor nor any
affiliate thereof has incurred any obligation which will result in the
obligation of the other party to pay any finder's fee or commission in
connection with this transaction, except for fees payable by the Company to
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
16. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Company and the Investors, including without limitation and without the need for
an express assignment, affiliates of the Investors. With respect to transfers
that are not made pursuant to the Registration Statement, the rights and
obligations of an Investor under this Agreement shall be automatically assigned
by such Investor to any transferee of all or any portion of such Investor's
Registrable Shares who is a Permitted Transferee (as defined below); provided,
however, that within two business days prior to the transfer, (i) the Company is
provided notice of the transfer including the name and address of the transferee
and the number of Registrable Shares transferred; and (ii) that such transferee
agrees in writing to be bound by the terms of this
Disclosure Page 30
Endologix, Inc. - 8-K Filing Date: 7/21/03
Agreement. (For purposes of this "Agreement, a "Permitted Transferee" shall mean
any Person who (a) is an "accredited investor," as that term is defined in Rule
501(a) of Regulation D under the Securities Act and (b) is a transferee of at
least 20,000 Registrable Shares as permitted under the securities laws of the
United States). Upon any transfer permitted by this Section 16, the Company
shall be obligated to such transferee to perform all of its covenants under this
Agreement as if such transferee were an Investor.
17. Expenses. Each of the Company and the Investors shall bear its
own expenses in connection with the preparation and negotiation of the
Agreement, except that the Company shall be responsible for payment of ▇▇▇▇
▇▇▇▇▇ LLP incurred in connection with the preparation and negotiation of this
Agreement, not to exceed $10,000.
Disclosure Page 31
Endologix, Inc. - 8-K Filing Date: 7/21/03
Exhibit A
CONTENT OF OPINION OF COUNSEL TO THE COMPANY
(i) Based solely upon a certificate of good standing from the Secretary of
State of the State of Delaware, the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware.
To our knowledge, all of the Company's Subsidiaries, as defined in the
Agreements, are listed on Exhibit 21.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 2002 (the "Form 10-K"). Based solely upon
certificates of good standing from the relevant jurisdictions, each Subsidiary
has been duly incorporated or organized and is an existing entity in good
standing under the laws of its jurisdiction of incorporation or organization, as
the case may be, as listed on Schedule A.
(ii) To our knowledge, the Company and each of its Subsidiaries is duly
qualified to do business as a foreign corporation and is in good standing in all
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect upon the Company and its
Subsidiaries taken as a whole.
(iii) The Company and each of its Subsidiaries has the corporate power and
authority to own and lease its properties and to conduct its business as
described in the Form 10-K, except as would not have a material adverse effect
upon the Company and its Subsidiaries taken as a whole.
(iv) The Company has the corporate power and authority to enter into the
Agreements and the Agreement dated ____________, 2003 between the Company and
you (the "Engagement Letter") and to perform its obligations thereunder. Each of
the Agreements and the Engagement Letter have been duly authorized and validly
executed and delivered by the Company.
(v) The execution and delivery of the Agreements and the Engagement Letter,
the issuance and sale of the Shares to be sold by the Company and the
consummation of the transactions contemplated by the Agreements (A) will not
conflict with or constitute a violation of, or default (with the passage of time
or otherwise) under, (i) any exhibit to the Form 10-K filed pursuant to Item
601(b) subsection 10 of Regulation S-K promulgated under the Securities Act
except as would not have a material adverse effect upon the Company and its
Subsidiaries taken as a whole, or, (ii) the certificate of incorporation or
bylaws of the Company, or (B) to our knowledge, will not result in a violation
of, any law, administrative regulation, ordinance or order of any court or
governmental agency, arbitration panel or authority applicable to the Company,
except as would not have a material adverse effect upon the Company and its
Subsidiaries taken as a whole.
(vi) The Shares to be sold pursuant to the Agreements have been duly
authorized, and, when issued and paid for in accordance with the terms of the
Agreements, will be validly issued, fully paid and nonassessable.
(vii) To our knowledge, no consent, approval, authorization or other order
of, or registration, qualification or filing with, any regulatory body,
administrative agency, or other governmental body in the United States is
required in connection with the execution, delivery and performance of the
Agreements or for the valid issuance and sale of the Shares to be sold pursuant
to the Agreements, other than such as have been made or obtained, and except for
compliance with the Blue Sky laws and federal securities laws applicable to the
offering of the Shares.
(viii) Assuming compliance by you with the terms of the Engagement Letter, and
assuming the accuracy of the representations and warranties of the Investors in
the Agreements, the offer, sale and issuance of the Shares in conformity with
the terms of the Agreements constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act.
(ix) To our knowledge, there is no legal or governmental proceeding pending
or threatened that is required to be disclosed in the Form 10-K that has not
been described.
(x) To our knowledge, no stockholder of the Company has any right to
require the Company to register the sale of any shares owned by such stockholder
under the Securities Act in the Registration Statement.
Disclosure Page 32
Endologix, Inc. - 8-K Filing Date: 7/21/03
The opinion will also include the following statement:
We have not undertaken, except as otherwise stated explicitly in this statement,
to determine independently, and we do not assume responsibility for, the
accuracy, completeness or fairness of the statements in the Company's Private
Placement Memorandum dated ______ 2003 and the exhibits thereto, including the
Form 10-K and Proxy Statement (collectively, the "PPM"). We have, however,
participated, in the preparation of the PPM, including general review and
discussion of the contents thereof, and have acted as special counsel to the
Company in connection with the Offering. In the course of such participation and
representation, no facts have come to our attention that would lead us to
believe that the PPM (other than (i) the financial statements, including the
notes thereto and other financial or statistical data (including, without
limitation, any pro forma financial information), (ii) disclosures relating to
governmental regulation of the Company's products, and (iii) disclosures
relating to the Company's intellectual property, contained therein, or omitted
therefrom, as to which we express no statement), as of its date and the date
hereof, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made not misleading.
Disclosure Page 33
Endologix, Inc. - 8-K Filing Date: 7/21/03
Exhibit B
CERTIFICATE OF SUBSEQUENT SALE
American Stock Transfer & Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Carappoli
RE: Sale of Shares of Common Stock of Endologix, Inc. (the "Company")
pursuant to the Company's Prospectus dated _____________ (the
"Prospectus")
Ladies and Gentlemen:
The undersigned hereby certifies, in connection with the sale of shares
of Common Stock of the Company included in the table of Selling Stockholders in
the Prospectus, that the undersigned has sold the shares pursuant to the
Prospectus and in a manner described under the caption "Plan of Distribution" in
the Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended, and Regulation M under the Securities
Exchange Act of 1934, as amended.
Selling Stockholder (the beneficial owner): ____________________________________
Record Holder (e.g., if held in name of nominee): ______________________________
Restricted Stock Certificate No.(s): ___________________________________________
Number of Shares Sold: _________________________________________________________
Date of Sale: __________________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: ____________________________ By: ________________________________
Print Name: _____________________________
Title: __________________________________
cc: Chief Executive Officer
Endologix, Inc.
Disclosure Page 34
