Exhibit 99.3
COMMON STOCK PURCHASE AGREEMENT
between
ABIOMED, Inc.
and
Xxxx Xxxxxxx
dated as of July 14, 1997
TABLE OF CONTENTS
ARTICLE 1. PURCHASE AND SALE OF SHARES..................... 1
1.1. Authorization........................................ 1
-------------
1.2. Purchase and Sale of the Shares...................... 1
-------------------------------
1.3. Delivery of Certificates............................. 1
------------------------
1.4. Simultaneous Xxxxxxxx Purchase and Sale.............. 1
---------------------------------------
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED....... 2
2.1. Organization and Qualification....................... 2
------------------------------
2.2. Capitalization....................................... 2
--------------
2.3. Issuance and Sale of Shares.......................... 3
---------------------------
2.4. Authority for Agreement.............................. 3
-----------------------
2.5. SEC Reports.......................................... 3
-----------
2.6. Financial Statements................................. 3
--------------------
2.7. Subsidiaries......................................... 4
------------
2.8. Absence of Undisclosed ABIOMED Liabilities........... 4
------------------------------------------
2.9. No Material Adverse Change........................... 4
--------------------------
2.10. Tax Matters......................................... 5
-----------
2.11. No Breach........................................... 5
---------
2.12. Actions and Proceedings............................. 6
-----------------------
2.13. Compliance with Laws................................ 6
--------------------
2.14. Brokerage........................................... 6
---------
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.. 6
3.1. Authority for Agreement.............................. 6
-----------------------
3.2. Investment........................................... 7
----------
3.3. Restrictions on Transferability; Legend.............. 7
---------------------------------------
3.4. Information.......................................... 7
-----------
3.5. Brokerage............................................ 7
---------
ARTICLE 4. REGISTRATION RIGHTS............................. 8
4.1. Certain Definitions.................................. 8
-------------------
4.2. Required Registration................................ 8
---------------------
4.3. Conditions of Obligations to Register Shares......... 9
--------------------------------------------
4.4. Registration Procedures.............................. 9
-----------------------
4.5. Description of Expenses.............................. 11
-----------------------
4.6. Indemnification...................................... 12
---------------
ARTICLE 5. MISCELLANEOUS................................... 13
5.1. Assignment........................................... 13
----------
5.2. Severability......................................... 13
------------
5.3. Notices.............................................. 14
-------
5.4. Applicable Law....................................... 14
--------------
5.5. Entire Agreement..................................... 14
----------------
(i)
5.6. Headings............................................. 15
5.7. Counterparts......................................... 15
(ii)
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT dated as of July 14, 1997 (the
"Agreement") is between ABIOMED, Inc., a Delaware corporation having its
principal place of business at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000 (ABIOMED"), and Xxxx Xxxxxxx of ______________, Massachusetts (the
"Investor"). ABIOMED and the Investor are sometimes referred to herein
individually as a "Party" and collectively as the "Parties."
In consideration of the mutual promises and of the covenants contained
herein, the Parties hereby agree as follows:
ARTICLE 1. PURCHASE AND SALE OF SHARES
1.1. Authorization.
-------------
ABIOMED has duly authorized the issuance and sale to the Investor of
Twenty- Three Thousand Four Hundred Eighty (23,480) shares (the "Shares") of its
Common Stock, $0.01 par value per share ("Common Stock").
1.2. Purchase and Sale of the Shares.
-------------------------------
Concurrently with the execution and delivery of this Agreement, ABIOMED
hereby issues and sells to the Investor, and the Investor hereby purchases from
ABIOMED, the Shares at a purchase price of $13.00 per Share, for an aggregate
purchase price of Three Hundred Five Thousand Two Hundred Forty Dollars
($305,240.00). The purchase price shall be payable by the Investor to ABIOMED
upon execution of this Agreement.
1.3. Delivery of Certificates.
------------------------
On the date hereof, ABIOMED will deliver to the Investor one or more
certificates representing the Shares registered in the name of the Investor
against payment by the Investor of the purchase price by check or wire transfer.
1.4. Simultaneous Xxxxxxxx Purchase and Sale.
---------------------------------------
Reference is made to and the Parties hereby acknowledge that certain Common
Stock Purchase Agreement (the "Xxxxxxxx Agreement") dated as of the date hereof
by and between Xxxxx X. Xxxxxxxx ("Xxxxxxxx") and the Investor pursuant to which
Xxxxxxxx is selling and transferring to the Investor and the Investor is
purchasing from Xxxxxxxx an aggregate of One Hundred Fifty-Three Thousand Eight
Hundred Forty Six (153,846) shares of Common Stock (the "Xxxxxxxx Shares")
simultaneously with the purchase and sale contemplated by this Agreement.
ABIOMED acknowledges that the Investor is relying upon the representations and
warranties of ABIOMED set forth in Article 2 hereof in connection with the
Investor's execution and delivery of the Xxxxxxxx Agreement.
1
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED
Except as otherwise set forth in the disclosure schedule delivered to the
Investor on the date hereof (the "Disclosure Schedule"), the section numbers of
which are numbered to correspond to the sections of this Agreement to which they
refer, ABIOMED represents and warrants to the Investor as follows:
2.1. Organization and Qualification.
------------------------------
Each of ABIOMED and the Subsidiaries (as defined in Section 2.7) is a
corporation or partnership duly organized, validly existing and in good standing
under the laws of its state or jurisdiction of incorporation or formation with
full power and authority to own, lease and operate its assets, properties and
business and to carry on its business as now being and as heretofore conducted.
Each of ABIOMED and the Subsidiaries is qualified or otherwise authorized to
transact business as a foreign corporation or partnership in all jurisdictions
in which such qualification or authorization is required by law, except for
jurisdictions in which the failure to so qualify or be authorized would not have
a material adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of ABIOMED and the Subsidiaries taken as a
whole (the "Business of ABIOMED").
2.2. Capitalization.
--------------
(a) ABIOMED is authorized to issue 25,000,000 shares of Common
Stock, of which 7,017,872 shares were issued and outstanding as of June 30,
1997, 2,346,000 shares of Class A Common Stock, $0.01 par value per share, none
of which are issued and outstanding, 150,000 shares of Class A Preferred Stock,
$0.01 par value per share, none of which are issued and outstanding and
1,000,000 shares of Class B Preferred Stock, $0.01 par value per share, none of
which are issued and outstanding. No other class of capital stock of ABIOMED is
authorized or outstanding. All of the issued and outstanding shares of ABIOMED's
capital stock are duly authorized and are validly issued, fully paid,
nonassessable and free of preemptive rights. None of the issued and outstanding
shares have been issued in violation of any federal or state law except for
violations that would not have a material adverse effect on the Business of
ABIOMED.
(b) Options representing in the aggregate the right to purchase
969,785 shares of Common Stock pursuant to ABIOMED's 1992 Combination Stock
Option Plan and ABIOMED's 1989 Non-Qualified Stock Option Plan for Non-Employee
Directors are outstanding as of the date hereof.
(c) 90,718 shares of Common Stock are reserved for issuance
under ABIOMED's 1988 Employee Stock Purchase Plan as of the date hereof.
(d) Except as set forth in paragraphs (a), (b) and (c) of this
Section 2.2, Section 2.2 of the Disclosure Schedule or as a result of the
exercise of outstanding options or rights set forth therein, there are not, as
of the date hereof, any other shares of ABIOMED capital stock authorized or
outstanding or any subscriptions, options, conversion or exchange rights,
2
warrants, repurchase or redemption agreements, or other agreements or
commitments obligating ABIOMED to issue, transfer, sell, repurchase or redeem
any shares of its capital stock or other securities of ABIOMED. To the best
knowledge of ABIOMED, there are no written stockholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the voting of the capital stock of ABIOMED.
2.3. Issuance and Sale of Shares.
---------------------------
The issuance and sale of the Shares by ABIOMED has been duly authorized and
the Shares have been duly reserved for issuance by all necessary corporate
action on the part of ABIOMED, and the Shares, when issued and delivered against
payment therefor, will be duly and validly issued, fully paid and non-
assessable. Based in part on the representations made by the Investor set forth
in Article 3 below, the offer, issuance and sale of the Shares pursuant to this
Agreement are exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act"), and applicable state securities laws. ABIOMED
has complied with all applicable federal and state securities laws and with the
Nasdaq By-Laws in connection with the offer, issuance and sale of the Shares.
2.4. Authority for Agreement.
-----------------------
The execution, delivery and performance by ABIOMED of this Agreement has
been duly authorized by all necessary corporate action, and this Agreement has
been duly executed and delivered by ABIOMED. This Agreement constitutes the
valid and binding obligation of ABIOMED enforceable against ABIOMED in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and to general principles of equity.
2.5. SEC Reports.
-----------
ABIOMED has previously delivered to the Investor its (a) Annual Report on
Form 10-K for the year ended March 31, 1997 (the "ABIOMED 10-K"), as filed with
the Securities and Exchange Commission (the "SEC'), (b) all proxy statements
relating to ABIOMED's meetings of stockholders held or currently scheduled to be
held since March 31, 1997 and (c) all other reports filed by ABIOMED with the
SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since March 31, 1997. As of their respective dates, such reports complied in all
material respects with applicable SEC requirements and did not contain any
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. ABIOMED has timely
filed with the SEC all reports required to be flied under Section 13, 14 or
15(d) of the Exchange Act since March 31, 1997.
2.6. Financial Statements.
--------------------
The financial statements contained in the ABIOMED 10-K have been prepared
from, and are in accordance with, the books and records of ABIOMED and present
fairly, in all material respects, the financial condition and results of
operations of ABIOMED as of and for the periods
3
presented therein, all in conformity with United States generally accepted
accounting principles, consistently applied, except as otherwise noted therein.
2.7. Subsidiaries.
------------
(a) The Disclosure Schedule sets forth all of the Subsidiaries
and the jurisdiction in which each is incorporated or organized. Except as set
forth on the Disclosure Schedule, all issued and outstanding shares or
partnership interests of each Subsidiary are owned directly by ABIOMED free and
clear of any charges, liens, encumbrances, security interests or adverse claims.
As used in this Agreement, "Subsidiary" means any corporation, partnership or
other legal entity of which ABIOMED or any Subsidiary owns, directly or
indirectly, 50% or more of the stock or other equity interest entitled to vote
for the election of directors.
(b) Except as set forth on the Disclosure Schedule, there are
not as of the date hereof any other shares of capital stock or other equity
interest of any Subsidiary authorized or outstanding or any subscriptions,
options, conversion or exchange rights, warrants, repurchase or redemption
agreements, or other agreements, claims or commitments of any nature whatsoever
obligating any Subsidiary to issue, transfer, deliver, sell, repurchase or
redeem any shares of the capital stock or other equity interest of any
Subsidiary or obligating ABIOMED or any Subsidiary to grant, extend or enter
into any such agreement. To the best knowledge of ABIOMED, there are no
stockholder agreements, voting trusts, proxies or other agreements, instruments
or understandings with respect to the capital stock of any Subsidiary.
(c) Except for the Subsidiaries, ABIOMED does not directly or
indirectly own or have any investment in any of the capital stock of, and is not
a party to a partnership or joint venture with, any other person.
2.8. Absence of Undisclosed ABIOMED Liabilities.
------------------------------------------
As of March 31, 1997, ABIOMED and the Subsidiaries had no material
liabilities of any nature, whether accrued, absolute, contingent or otherwise,
(a) required to be reflected or disclosed on the balance sheets dated March 31,
1997 (or the notes thereto) included in the ABIOMED 10-K that in the opinion of
management were not adequately reflected or reserved against on such balance
sheets or (b) for the payment of any dividends, or any other distribution, to
the stockholders of ABIOMED. ABIOMED and the Subsidiaries have no such
liabilities, other than liabilities (i) which in the opinion of management as of
March 31, 1987 are adequately reflected or reserved against on such balance
sheet, (ii) incurred since March 31, 1997 in the ordinary course of business and
consistent with past practice or (iii) that would not, in the aggregate, have a
material adverse effect on the Business of ABIOMED.
2.9. No Material Adverse Change.
--------------------------
Since March 31, 1997, there has not been any material adverse change in the
Business of ABIOMED.
4
2.10. Tax Matters.
-----------
(a) ABIOMED and each of the Subsidiaries have filed all tax
reports and returns required to be filed by them and have paid or will timely
pay all taxes and other charges shown as due on such reports and returns.
Neither ABIOMED nor any of the Subsidiaries is delinquent in the payment of any
material tax assessment or other governmental charge (including without
limitation applicable withholding taxes). Any provision for taxes reflected in
the financial statements referenced in Section 2.6 above is, to the best
knowledge of ABIOMED, adequate for payment of any and all tax liabilities for
periods ending on or before March 31, 1997 and there are no tax liens on any
assets of ABIOMED or the Subsidiaries except liens for current taxes not yet
due.
(b) Except as set forth in Section 2.10 of the Disclosure
Schedule, there has not been any audit of any tax return filed by ABIOMED or any
of the Subsidiaries and no audit of any such tax return is in progress and
neither ABIOMED nor any Subsidiary has been notified by any tax authority that
any such audit is contemplated or pending. ABIOMED knows of no material tax
deficiency or claim for additional taxes asserted or threatened to be asserted
against ABIOMED or any of the Subsidiaries by any taxing authority and ABIOMED
knows of no grounds for any such assessment. No extension of time with respect
to any date on which a tax return was or is to be filed by ABIOMED or any of the
Subsidiaries is in force, and no waiver or agreement by ABIOMED or any of the
Subsidiaries is in force for the extension of time for the assessment or payment
of any tax. For purposes of this Agreement, the term "tax" includes all federal,
state, local and foreign taxes or assessments, including income, sales, gross
receipts, excise, use, value added, royalty, franchise, payroll, withholding,
property and import taxes and any interest or penalties applicable thereto.
2.11. No Breach.
---------
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not: (a) violate any
provision of the certificate of incorporation or by-laws of ABIOMED; (b)
violate, conflict with or result in the breach of any of the terms or conditions
of, result in modification of the effect of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any material instrument, contract
or other agreement to which ABIOMED or any of the Subsidiaries is a party or to
which any of the assets or properties of ABIOMED or any of the Subsidiaries may
be bound or subject; (c) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon, ABIOMED, any Subsidiary or upon any of their respective
securities, properties, assets or businesses; (d) violate any statute, law or
regulation of any jurisdiction as such statute, law or regulation relates to
ABIOMED, any Subsidiary or any of their respective securities, properties,
assets or businesses; (e) require the approval, consent or authorization of, or
registration or filing with, any foreign, federal, state, local or other
governmental or regulatory body or the approval, consent, waiver or notification
of any stockholder, creditor, lessor or other person; or (f) result in the
creation of any lien or other encumbrance on the assets or properties of ABIOMED
or any of the Subsidiaries, excluding from clauses (b) - (f') such matters as
would not
5
in the aggregate have a material adverse effect on the Business of
ABIOMED or upon the transactions contemplated hereby.
2.12. Actions and Proceedings.
-----------------------
There are no outstanding orders, judgments, injunctions, awards or decrees
of any court, governmental or regulatory body or arbitration tribunal against
ABIOMED, any Subsidiary or any of their respective properties or assets. There
are no actions, suits or claims or legal, administrative or arbitral proceedings
or, to the best knowledge of ABIOMED, investigations (whether or not the defense
thereof or liabilities in respect thereof are covered by insurance) pending or,
to the best knowledge of ABIOMED, threatened against ABIOMED, any Subsidiary or
any of their respective properties or assets.
2.13. Compliance with Laws.
--------------------
To its knowledge, neither ABIOMED nor any of the Subsidiaries is in
violation of any statute, law, rule or regulation, or in default with respect to
any judgment, writ, injunction, decree, rule or regulation of any court,
governmental or regulatory body or arbitration tribunal, including without
limitation laws relating to environmental protection, health and safety matters
and labor and employment practices, except for such violations or defaults which
do not, individually or in the aggregate, materially and adversely affect the
Business of ABIOMED.
2.14 Brokerage.
---------
No broker, finder, agent or similar intermediary has acted on behalf of
ABIOMED in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with ABIOMED or any action taken by ABIOMED, other than a fee
payable by ABIOMED to UBS Securities LLC in connection with a fairness opinion
being rendered by UBS Securities LLC.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to ABIOMED as follows:
3.1. Authority for Agreement.
-----------------------
The Investor has the power and authority to execute and deliver this
Agreement and to perform all of his obligations hereunder. This Agreement has
been duly executed and delivered by the Investor. This Agreement constitutes the
valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and to general principles of equity.
6
3.2. Investment.
----------
The Investor is an accredited investor, as defined in Rule 501 of
Regulation D under the Securities Act. The Investor is acquiring the Shares
solely for his own account for investment purposes as a principal and not with a
view to the public resale or distribution of all or any part thereof; provided
however, that in making such representation, the Investor does not agree to hold
the Shares for any minimum or specific term and reserves the right to sell,
transfer or otherwise dispose of the Shares at any time in accordance with the
terms of this Agreement and with federal and state securities laws applicable to
such sale, transfer or disposition.
3.3. Restrictions on Transferability; Legend.
---------------------------------------
The Investor understands that the Shares have not been registered under the
Securities Act or under the securities laws of any state or other jurisdiction
in reliance upon exemptions thereunder. The Investor acknowledges and is aware
that the Shares cannot be resold unless the Shares are registered under the
Securities Act and any applicable securities law of any state or other
jurisdiction, or an exemption from registration is available. Each certificate
representing the Shares shall bear a legend in substantially the following form
(unless such Shares have been transferred pursuant to a registration statement
under the Securities Act or, in the opinion of counsel acceptable to ABIOMED,
such a legend is not required):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAW AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (ii) UPON FIRST FURNISHING TO THE
COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT
IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY STATE
SECURITIES LAW.
3.4. Information.
-----------
The Investor has reviewed (a) the representations of ABIOMED contained in
this Agreement and (b) the ABIOMED 10-K and has had the opportunity to make
inquiry concerning ABIOMED and its business and personnel. The Investor is a
director of ABIOMED and in such capacity is otherwise familiar with the business
of ABIOMED. The officers of ABIOMED have made available to the Investor any and
all written information that he has requested and have answered to the
Investor's satisfaction all inquiries made by the Investor.
3.5. Brokerage.
---------
No broker, finder, agent or similar intermediary has acted on behalf of the
Investor in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with the Investor, or any action taken by him.
7
ARTICLE 4. REGISTRATION RIGHTS
4.1. Certain Definitions.
-------------------
As used in this Article 4, the following terms shall have the following
respective meanings:
(a) "Holders" shall mean the Investor and any of his successors
and assigns (other than successors and assigns who acquire the Shares pursuant
to a registered public offering or pursuant to a transaction covered by Rule 144
under the Securities Act) who hold Shares.
(b) "Registration Expenses" and "Selling Expenses" shall mean
the expenses so described in Section 4.6.
(c) "Other Holders" shall mean all holders of the Company's
securities other than Holders.
(d) "Shares" for purposes of this Article 5 shall have the
meaning set forth in Section 1.1 hereof, with the exception that the term shall
not include Shares which at any time have become salable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act, or any similar successor
rule
(e) "Underwriter" shall mean each person who is or may be deemed
an "underwriter," as that term is defined in Section 2(11) of the Securities
Act, in respect of securities which shall have been registered by ABIOMED under
the Securities Act pursuant to any of the provisions of this Article 6.
4.2. Required Registration.
---------------------
If ABIOMED for itself or any of its security holders shall at any time or
times after the first anniversary of the date hereof and prior to the seventh
anniversary of the date hereof determine to register under the Securities Act
any shares of Common Stock for an underwritten public offering other than (a)
the registration of an offer and sale of securities to employees of, or other
persons providing services to ABIOMED pursuant to an employee or similar benefit
plan, registered on Form S-8 or comparable form; or (b) relating to a merger,
acquisition or other transaction of the type described in Rule 145 under the
Securities Act or comparable rule, registered on Form S-4 or similar form,
ABIOMED will notify each Holder in each case of such determination at least ten
(10) days prior to the filing of such registration statement, and upon the
request of a Holder given in writing within five days after the date of such
notice, ABIOMED will use commercially reasonable efforts as soon as practicable
thereafter to cause any of the Shares specified by such Holder to be included in
such registration statement. Notwithstanding the foregoing, if the managing
underwriter determines and advises in writing that the inclusion of all Shares
of such requesting Holders and all shares of ABIOMED's Common Stock to be
offered by ABIOMED and by Other Holders, whether covered by requests for
registration or otherwise included, would interfere with the marketing of the
securities to be sold by ABIOMED, or if the registration is at the request of a
person or persons with a right to require registration, by that person or
persons; then the number of shares of Common Stock otherwise to be included in
the
8
registration statement by Holders and Other Holders shall be reduced as follows:
(i) there shall first be excluded shares proposed to be included by Other
Holders not possessing legal rights to include the same pursuant to this section
or any similar provision; and (ii) any further reduction shall be pro rata among
such Holders and Other Holders (having such legal rights) in proportion to the
number of shares as to which registration is requested by each; provided
however, that there shall be no reduction in the number of shares to be included
therein (x) by ABIOMED or (y) if the registration is at the request of a person
or persons with a right to require such registration, by that person or persons.
For purposes of making any such reduction, each holder (whether a Holder or
Other Holder) which is a partnership, together with the affiliates, partners and
retired partners of such holder, the estates and family members of any such
partners and retired partners and of their spouses, and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single holder
and any pro rata reduction with respect to such holder shall be based upon the
aggregate amount of Shares sought to be sold by all entities and individuals so
included in such holder, and the aggregate reduction so allocated to such holder
shall be allocated among the entities and individuals included in such holder in
such manner as such partnership may reasonably determine. If the managing
underwriter determines and advises in writing that the inclusion in the
registration statement of any shares of Common Stock to be sold by stockholders
of ABIOMED would interfere with the marketing of the securities to be sold by
ABIOMED, no notice need be given to any Holder pursuant to the first sentence of
this section and no Holder will have the right to include its Shares in such
registration statement.
4.3. Conditions of Obligations to Register Shares.
--------------------------------------------
As conditions to ABIOMED's obligation hereunder to cause Shares to be
included in a registration statement, the Holder shall provide such information
and execute such documents as may reasonably be required in connection with such
registration.
4.4. Registration Procedures.
-----------------------
If and whenever ABIOMED is required by the provisions of this Article 4 to
use commercially reasonable efforts to include any of the Shares in a
registration statement filed under the Securities Act, ABIOMED shall as
expeditiously as possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Shares and use commercially reasonable efforts to cause such
registration statement to become effective.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until the Shares covered thereunder have been sold.
(c) Secure the designation and quotation of the Shares on Nasdaq
or any national securities exchange on which the Common Stock is then listed.
(d) Furnish to each Holder such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus), in conformity with the
9
requirements of the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of the Shares owned by
such Holder:
(e) Use commercially reasonable efforts to register or qualify
the Shares covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as each selling Holder shall reasonably request,
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition of the Shares
owned by such Holder in such jurisdictions during the period specified in
Section 4.4(b), provided that ABIOMED shall not be required in connection
herewith to execute a general consent to service of process in any jurisdiction.
(f) Notify each Holder immediately of any Shares covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus contained in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and as promptly as practicable, prepare, file and furnish to the
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; provided however, that ABIOMED may
delay preparing, filing and distributing any such supplement or amendment if
ABIOMED determines in good faith that such supplement or amendment might, in the
reasonable judgment of ABIOMED (i) interfere with or affect the negotiation or
completion of a transaction that is being contemplated by ABIOMED (whether or
not a final decision has been made to undertake such transaction) or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of ABIOMED's stockholders at such time; provided, further, that (x)
ABIOMED will give notice (a "Standstill Notice") of any such delay no less than
five (5) business days prior to such delay, (y) such delay shall not extend for
a period of more than fifteen (15) business days without the written consent of
the Holder and (z) ABIOMED may utilize such delay no more than once in each
calendar year. Each Holder agrees, upon receipt of a Standstill Notice,
forthwith to cease making offers and sales of the Shares pursuant to the
registration statement or deliveries of the prospectus contained therein and to
return to ABIOMED, for modification and exchange, the copies of such prospectus
not theretofore delivered by such Holder; provided that ABIOMED shall forthwith
prepare and deliver to such Holder after such delay a reasonable number of
copies of any supplement to or amendment of such prospectus that may be
necessary so that such prospectus does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(g) Use commercially reasonable efforts to prevent the issuance
of any stop order or other order suspending the effectiveness of such
registration statement and, if such an order is issued, to obtain the withdrawal
at the earliest possible time and to notify the Holder of the issuance of such
order and the resolution thereof.
10
(h) Furnish to the Holder and the Underwriter of the Holder's
Shares, on the date that such registration statement becomes effective, (i) an
opinion, dated such date, of outside counsel representing ABIOMED (and
reasonably acceptable to the Holder) addressed to the Holder as to the
effectiveness of the registration statement and its compliance as to form with
the requirements of the Securities Act and such other matters as may be
reasonably requested by the Holder (including, such additional matters as are
customarily included in opinions delivered by company counsel in underwritten
public offerings) and (ii) a letter, dated such date, from ABIOMED's independent
certified public accountants, in form and substance as is customarily given by
independent certified public accounts to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder.
(i) Subject to the Holder entering into a confidentiality
agreement reasonably acceptable to ABIOMED, provide the Holder and its
representatives the opportunity to conduct a reasonable inquiry of ABIOMED's
financial and other records during normal business hours and make available its
officers, directors and employees for questions regarding information which the
Holder may reasonably request in order to fulfill any due diligence obligation
on its part.
(j) Permit counsel for the Holder to review such registration
statement and all amendments and supplements thereto a reasonable period of time
prior to the filing thereof with the SEC.
(k) Enter into and perform its obligations under an underwriting
agreement, in usual and customary form reasonably acceptable to ABIOMED, with
the underwriters of such offering. and to use its reasonable efforts to cause
the conditions to the underwriters' performance thereunder to be met.
Description of Expenses.
-----------------------
All expenses incurred by ABIOMED in complying with any of the foregoing
provisions of this Section 4, including without limitation all federal and state
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel to ABIOMED, and accountants' fees and expenses incident
to or required by any such registration are herein called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Shares hereunder and the fees and disbursements of one counsel to the
Holders with respect to any registration of the Shares hereunder are herein
called "Selling Expenses." If ABIOMED is required by the provisions of this
Article 4 to use commercially reasonable efforts to effect the registration of
any of the Shares under the Securities Act, the Registration Expenses and
Selling Expenses in connection with such registration shall be borne as follows:
(a) All Registration Expenses shall be borne by ABIOMED.
(b) Selling Expenses shall be borne pro rata among the Holders
participating in the registration, except that each Holder shall bear the
expenses of any separate counsel retained by it.
11
4.6. Indemnification.
---------------
In the event that ABIOMED registers under the Securities Act any Shares
held by a Holder:
(a) ABIOMED agrees to indemnify and hold harmless such Holder,
each person, if any, who controls such Holder within the meaning of the
Securities Act, any Underwriter offering or selling the Holder's Shares and any
person controlling such Underwriter, against any and all loss, liability or
expense arising out of or based upon any untrue statement or alleged untrue
statement of a material fact in any related registration statement, prospectus
or preliminary prospectus or any omission or alleged omission of any 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, unless
such statement or omission was (i) made in reliance upon information furnished
in writing by any such Holder, Underwriter or controlling person specifically
for inclusion therein or (ii) contained in a preliminary prospectus and
corrected in a final or amended prospectus if such Holder, Underwriter or
controlling person received notice of such final or amended prospectus prior to
the effective date of the registration statement but failed to deliver a copy of
the final or amended prospectus at or prior to the confirmation of the sale of
the Shares to the person asserting such loss, claim, damage or liability, in any
case where such delivery is required by the Securities Act.
(b) The obligations of ABIOMED under Section 4.2 with respect to
any Holder are subject to the following conditions: (i) that each Holder whose
Shares are to be included in any registration referred to in this Article 4
agrees, in writing, prior to the filing of such registration or filing, to
indemnify and hold harmless ABIOMED and each person, if any, who controls
ABIOMED within the meaning of the Securities Act, against any and all loss,
liability or expense arising out of or based upon any untrue statement or
alleged untrue statement of a material fact in any related registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission of any material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to statements or
omissions made in reliance upon a statement in writing furnished by or on behalf
of such Holder for inclusion therein; provided however, that the liability of
each Holder to so indemnify shall be limited to the amount received by such
Holder on the sale of his or her Shares pursuant to such registration statement,
and (ii) that each such Holder enters into an underwriting agreement in usual
and standard form (including a "lock-up" not exceeding 180 days of Shares not
being sold in the underwritten offering) respecting such offering and uses its
best reasonable efforts to cause the conditions to the Underwriters' performance
thereunder to be met .
(c) Each Party entitled to indemnification under this Section
4.6 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not
12
relieve the Indemnifying Party of its obligations under this Section 4.6 unless
and to the extent that such failure results in the forfeiture of substantive
rights or' defenses by the Indemnifying Party. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if, in the opinion of counsel to the
Indemnified Party, representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between the Indemnified Party and any other party
represented by such counsel. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation and the Indemnifying Party shall not be required to
indemnify any Indemnified Party for any amount paid or payable by such
Indemnified Party in settlement of any claim or litigation without such consent
of the Indemnifying Party, which consent shall not be unreasonable withheld.
ARTICLE 5. MISCELLANEOUS
5.1. Assignment.
----------
This Agreement may not be assigned or otherwise transferred by any Party
without the consent of the other Party; provided, however, that (a) ABIOMED may,
without such consent, assign its rights and obligations under this Agreement (i)
in connection with a corporate reorganization, to any member of an affiliated
group, all or substantially all of the equity interest of which is owned and
controlled by ABIOMED or its direct or indirect parent corporation or (ii) in
connection with a merger, consolidation or sale of substantially all of
ABIOMED'S assets to an unrelated Third Party; provided however, that ABIOMED'S
rights and obligations under this Agreement shall be assumed by its successor in
interest in any such transaction and shall not be transferred separate from all
or substantially all of its other business assets. Any purported assignment in
violation of the preceding sentence shall be void. Any permitted assignee shall
assume all obligations of its assignor under this Agreement in writing.
5.2. Severability.
------------
Each Party hereby agrees that it does not intend to violate any public
policy, statutory or common laws, rules, regulations, treaty or decision of any
government agency or executive body thereof of any country or community or
association of countries. Should one or more provisions of this Agreement be or
become invalid, the Parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions, which valid provisions in their economic
effect are sufficiently similar to the invalid provisions that it can be
reasonably assumed that the Parties would have entered into this Agreement with
such valid provisions. In case such valid provisions cannot be agreed upon, the
invalidity of one or several provisions of this Agreement shall not affect the
validity of this Agreement as a whole, unless the invalid provisions are of such
essential importance to this Agreement that it is to be reasonably assumed that
the Parties would not have entered into this Agreement without the invalid
provisions.
13
5.3. Notices.
-------
Any consent, notice or report required or permitted to be given or made
under this Agreement by one of the Parties hereto to the other shall be in
writing, delivered personally or by facsimile (and promptly confirmed by
personal delivery or courier) or courier, postage prepaid (where applicable),
addressed to such other Party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the address or
in accordance with this Section 5.3, and shall be effective upon receipt by the
addressee.
If to ABIOMED, Inc.
ABIOMED: 00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to: Xxxxx Xxxxxxx Xxxxx & Gesmer, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esquire
Facsimile: (000) 000-0000
If to Xxxx Xxxxxxx
the Investor: Reebok International, Ltd.
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: <6>
5.4. Applicable Law.
--------------
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
5.5. Entire Agreement.
----------------
This Agreement contains the entire understanding of the Parties with
respect to the subject matter hereof. All express or implied agreements and
understandings, either oral or written, heretofore made are expressly merged in
and made a part of this Agreement. This Agreement may be amended, or any term
hereof modified, only by a written instrument duly executed by the Parties. Each
of the Parties hereby acknowledges that this Agreement is the result of mutual
negotiation and therefore any ambiguity in their respective terms shall not be
construed against the drafting Party.
14
5.6. Headings.
--------
The captions to the several Articles and Sections hereof are not a part of
this Agreement, but are merely guides or labels to assist in locating and
reading the several Articles and Sections hereof.
5.7. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
ABIOMED, Inc.
By:_________________________
Title:______________________
/s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
15
COMMON STOCK PURCHASE AGREEMENT
between
ABIOMED, Inc.
and
Xxxx X'Xxxxx
dated as of July 14, 1997
TABLE OF CONTENTS
ARTICLE 1. PURCHASE AND SALE OF SHARES.............................. 1
1.1. Authorization................................................. 1
-------------
1.2. Purchase and Sale of the Shares............................... 1
-------------------------------
1.3. Delivery of Certificates...................................... 1
------------------------
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED................ 1
2.1. Organization and Qualification................................ 2
------------------------------
2.2. Capitalization................................................ 2
--------------
2.3. Issuance and Sale of Shares................................... 3
---------------------------
2.4. Authority for Agreement....................................... 3
-----------------------
2.5. SEC Reports................................................... 3
-----------
2.6. Financial Statements.......................................... 3
--------------------
2.7. Subsidiaries.................................................. 4
------------
2.8. Absence of Undisclosed ABIOMED Liabilities.................... 4
------------------------------------------
2.9. No Material Adverse Change.................................... 4
--------------------------
2.10. Tax Matters.................................................. 4
-----------
2.11. No Breach.................................................... 5
---------
2.12. Actions and Proceedings...................................... 6
-----------------------
2.13. Compliance with Laws......................................... 6
--------------------
2.14. Brokerage.................................................... 6
---------
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR........... 6
3.1. Authority for Agreement....................................... 6
-----------------------
3.2. Investment.................................................... 6
----------
3.3. Restrictions on Transferability; Legend....................... 7
---------------------------------------
3.4. Information................................................... 7
-----------
3.5. Brokerage..................................................... 7
---------
ARTICLE 4. REGISTRATION RIGHTS...................................... 7
4.1. Certain Definitions........................................... 8
-------------------
4.2. Required Registration......................................... 8
---------------------
4.3. Conditions of Obligations to Register Shares.................. 9
--------------------------------------------
4.4. Registration Procedures....................................... 9
-----------------------
4.5. Description of Expenses....................................... 11
-----------------------
4.6. Indemnification............................................... 12
---------------
ARTICLE 5. MISCELLANEOUS............................................ 14
5.1. Assignment.................................................... 14
----------
5.2. Severability.................................................. 14
------------
5.3. Notices....................................................... 14
-------
5.4. Applicable Law................................................ 15
--------------
5.5. Entire Agreement.............................................. 15
----------------
5.6. Headings...................................................... 15
--------
5.7. Counterparts.................................................. 15
------------
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT dated as of July 14, 1997 (the
"Agreement") is between ABIOMED, Inc., a Delaware corporation having its
principal place of business at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000 (ABIOMED"), and Xxxx X'Xxxxx of <2> (the "Investor"). ABIOMED and the
Investor are sometimes referred to herein individually as a "Party" and
collectively as the "Parties."
In consideration of the mutual promises and of the covenants contained
herein, the Parties hereby agree as follows:
ARTICLE 1. PURCHASE AND SALE OF SHARES
1.1. Authorization.
-------------
ABIOMED has duly authorized the issuance and sale to the Investor of
Fifty-Seven Thousand Six Hundred Ninety-Two (57,692) shares (the "Shares") of
its Common Stock, $0.01 par value per share ("Common Stock").
1.2. Purchase and Sale of the Shares.
-------------------------------
Concurrently with the execution and delivery of this Agreement, ABIOMED
hereby issues and sells to the Investor, and the Investor hereby purchases from
ABIOMED, the Shares at a purchase price of $13.00 per Share, for an aggregate
purchase price of Seven Hundred Forty-Nine Thousand Nine Hundred Ninety-Six
Dollars ($749,996.00). The purchase price shall be payable by the Investor to
ABIOMED upon execution of this Agreement.
1.3. Delivery of Certificates.
------------------------
On the date hereof, ABIOMED will deliver to the Investor one or more
certificates representing the Shares registered in the name of the Investor
against payment by the Investor of the purchase price by check or wire transfer.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED
Except as otherwise set forth in the disclosure schedule delivered to the
Investor on the date hereof (the "Disclosure Schedule"), the section numbers of
which are numbered to correspond to the sections of this Agreement to which they
refer, ABIOMED represents and warrants to the Investor as follows:
2.1. Organization and Qualification.
------------------------------
Each of ABIOMED and the Subsidiaries (as defined in Section 2.7) is a
corporation or partnership duly organized, validly existing and in good standing
under the laws of its state or jurisdiction of incorporation or formation with
full power and authority to own, lease and operate its assets, properties and
business and to carry on its business as now being and as heretofore conducted.
Each of ABIOMED and the Subsidiaries is qualified or otherwise authorized to
transact business as a foreign corporation or partnership in all jurisdictions
in which such qualification or authorization is required by law, except for
jurisdictions in which the failure to so qualify or be authorized would not have
a material adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of ABIOMED and the Subsidiaries taken as a
whole (the "Business of ABIOMED").
2.2. Capitalization.
--------------
(a) ABIOMED is authorized to issue 25,000,000 shares of Common
Stock, of which 7,017,872 shares were issued and outstanding as of June 30,
1997, 2,346,000 shares of Class A Common Stock, $0.01 par value per share, none
of which are issued and outstanding, 150,000 shares of Class A Preferred Stock,
$0.01 par value per share, none of which are issued and outstanding and
1,000,000 shares of Class B Preferred Stock, $0.01 par value per share, none of
which are issued and outstanding. No other class of capital stock of ABIOMED is
authorized or outstanding. All of the issued and outstanding shares of ABIOMED's
capital stock are duly authorized and are validly issued, fully paid,
nonassessable and free of preemptive rights. None of the issued and outstanding
shares have been issued in violation of any federal or state law except for
violations that would not have a material adverse effect on the Business of
ABIOMED.
(b) Options representing in the aggregate the right to purchase
969,785 shares of Common Stock pursuant to ABIOMED's 1992 Combination Stock
Option Plan and ABIOMED's 1989 Non-Qualified Stock Option Plan for Non-Employee
Directors are outstanding as of the date hereof.
(c) 90,718 shares of Common Stock are reserved for issuance under
ABIOMED's 1988 Employee Stock Purchase Plan as of the date hereof.
(d) Except as set forth in paragraphs (a), (b) and (c) of this
Section 2.2, Section 2.2 of the Disclosure Schedule or as a result of the
exercise of outstanding options or rights set forth therein, there are not, as
of the date hereof, any other shares of ABIOMED capital stock authorized or
outstanding or any subscriptions, options, conversion or exchange rights,
warrants, repurchase or redemption agreements, or other agreements or
commitments obligating ABIOMED to issue, transfer, sell, repurchase or redeem
any shares of its capital stock or other securities of ABIOMED. To the best
knowledge of ABIOMED, there are no written stockholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the voting of the capital stock of ABIOMED.
2.3. Issuance and Sale of Shares.
---------------------------
The issuance and sale of the Shares by ABIOMED has been duly authorized and
the Shares have been duly reserved for issuance by all necessary corporate
action on the part of ABIOMED, and the Shares, when issued and delivered against
payment therefor, will be duly and validly issued, fully paid and non-
assessable. Based in part on the representations made by the Investor set forth
in Article 3 below, the offer, issuance and sale of the Shares pursuant to this
Agreement are exempt from registration under the Securities Act of 1933, as
amended (the
"Securities Act"), and applicable state securities laws. ABIOMED has complied
with all applicable federal and state securities laws and with the Nasdaq By-
Laws in connection with the offer, issuance and sale of the Shares.
2.4. Authority for Agreement.
-----------------------
The execution, delivery and performance by ABIOMED of this Agreement has
been duly authorized by all necessary corporate action, and this Agreement has
been duly executed and delivered by ABIOMED. This Agreement constitutes the
valid and binding obligation of ABIOMED enforceable against ABIOMED in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and to general principles of equity.
2.5. SEC Reports.
-----------
ABIOMED has previously delivered to the Investor its (a) Annual Report on
Form 10-K for the year ended March 31, 1997 (the "ABIOMED 10-K"), as filed with
the Securities and Exchange Commission (the "SEC'), (b) all proxy statements
relating to ABIOMED's meetings of stockholders held or currently scheduled to be
held since March 31, 1997 and (c) all other reports filed by ABIOMED with the
SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since March 31, 1997. As of their respective dates, such reports complied in all
material respects with applicable SEC requirements and did not contain any
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. ABIOMED has timely
filed with the SEC all reports required to be flied under Section 13, 14 or
15(d) of the Exchange Act since March 31, 1997.
2.6. Financial Statements.
--------------------
The financial statements contained in the ABIOMED 10-K have been prepared
from, and are in accordance with, the books and records of ABIOMED and present
fairly, in all material respects, the financial condition and results of
operations of ABIOMED as of and for the periods presented therein, all in
conformity with United States generally accepted accounting principles,
consistently applied, except as otherwise noted therein.
2.7. Subsidiaries.
------------
(a) The Disclosure Schedule sets forth all of the Subsidiaries and
the jurisdiction in which each is incorporated or organized. Except as set forth
on the Disclosure Schedule, all issued and outstanding shares or partnership
interests of each Subsidiary are owned directly by ABIOMED free and clear of any
charges, liens, encumbrances, security interests or adverse claims. As used in
this Agreement, "Subsidiary" means any corporation, partnership or other legal
entity of which ABIOMED or any Subsidiary owns, directly or indirectly, 50% or
more of the stock or other equity interest entitled to vote for the election of
directors.
(b) Except as set forth on the Disclosure Schedule, there are not as
of the date hereof any other shares of capital stock or other equity interest of
any Subsidiary authorized or outstanding or any subscriptions, options,
conversion or exchange rights, warrants, repurchase or redemption agreements, or
other agreements, claims or commitments of any nature whatsoever obligating any
Subsidiary to issue, transfer, deliver, sell, repurchase or redeem any shares of
the capital stock or other equity interest of any Subsidiary or obligating
ABIOMED or any Subsidiary to grant, extend or enter into any such agreement. To
the best knowledge of ABIOMED, there are no stockholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the capital stock of any Subsidiary.
(c) Except for the Subsidiaries, ABIOMED does not directly or
indirectly own or have any investment in any of the capital stock of, and is not
a party to a partnership or joint venture with, any other person.
2.8. Absence of Undisclosed ABIOMED Liabilities.
------------------------------------------
As of March 31, 1997, ABIOMED and the Subsidiaries had no material
liabilities of any nature, whether accrued, absolute, contingent or otherwise,
(a) required to be reflected or disclosed on the balance sheets dated March 31,
1997 (or the notes thereto) included in the ABIOMED 10-K in the opinion of
management that were not adequately reflected or reserved against on such
balance sheets or (b) for the payment of any dividends, or any other
distribution, to the stockholders of ABIOMED. ABIOMED and the Subsidiaries have
no such liabilities, other than liabilities (i) which in the opinion of
management as of March 31, 1987 are adequately reflected or reserved against on
such balance sheet, (ii) incurred since March 31, 1997 in the ordinary course of
business and consistent with past practice or (iii) that would not, in the
aggregate, have a material adverse effect on the Business of ABIOMED.
2.9. No Material Adverse Change.
--------------------------
Since March 31, 1997, there has not been any material adverse change in the
Business of ABIOMED.
2.10. Tax Matters.
-----------
(a) ABIOMED and each of the Subsidiaries have filed all tax reports
and returns required to be filed by them and have paid or will timely pay all
taxes and other charges shown as due on such reports and returns. Neither
ABIOMED nor any of the Subsidiaries is delinquent in the payment of any material
tax assessment or other governmental charge (including without limitation
applicable withholding taxes). Any provision for taxes reflected in the
financial statements referenced in Section 2.6 above is, to the best knowledge
of ABIOMED, adequate for payment of any and all tax liabilities for periods
ending on or before March 31, 1997 and there are no tax liens on any assets of
ABIOMED or the Subsidiaries except liens for current taxes not yet due .
(b) Except as set forth in Section 2.10 of the Disclosure Schedule,
there has not been any audit of any tax return filed by ABIOMED or any of the
Subsidiaries and no audit
of any such tax return is in progress and neither ABIOMED nor any Subsidiary has
been notified by any tax authority that any such audit is contemplated or
pending. ABIOMED knows of no material tax deficiency or claim for additional
taxes asserted or threatened to be asserted against ABIOMED or any of the
Subsidiaries by any taxing authority and ABIOMED knows of no grounds for any
such assessment. No extension of time with respect to any date on which a tax
return was or is to be filed by ABIOMED or any of the Subsidiaries is in force,
and no waiver or agreement by ABIOMED or any of the Subsidiaries is in force for
the extension of time for the assessment or payment of any tax. For purposes of
this Agreement, the term "tax" includes all federal, state, local and foreign
taxes or assessments, including income, sales, gross receipts, excise, use,
value added, royalty, franchise, payroll, withholding, property and import taxes
and any interest or penalties applicable thereto.
2.11. No Breach.
---------
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not: (a) violate any
provision of the certificate of incorporation or by-laws of ABIOMED; (b)
violate, conflict with or result in the breach of any of the terms or conditions
of, result in modification of the effect of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any material instrument, contract
or other agreement to which ABIOMED or any of the Subsidiaries is a party or to
which any of the assets or properties of ABIOMED or any of the Subsidiaries may
be bound or subject; (c) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon, ABIOMED, any Subsidiary or upon any of their respective
securities, properties, assets or businesses; (d) violate any statute, law or
regulation of any jurisdiction as such statute, law or regulation relates to
ABIOMED, any Subsidiary or any of their respective securities, properties,
assets or businesses; (e) require the approval, consent or authorization of, or
registration or filing with, any foreign, federal, state, local or other
governmental or regulatory body or the approval, consent, waiver or notification
of any stockholder, creditor, lessor or other person; or (f) result in the
creation of any lien or other encumbrance on the assets or properties of ABIOMED
or any of the Subsidiaries, excluding from clauses (b) - (f') such matters as
would not in the aggregate have a material adverse effect on the Business of
ABIOMED or upon the transactions contemplated hereby.
2.12. Actions and Proceedings.
-----------------------
There are no outstanding orders, judgments, injunctions, awards or decrees
of any court, governmental or regulatory body or arbitration tribunal against
ABIOMED, any Subsidiary or any of their respective properties or assets. There
are no actions, suits or claims or legal, administrative or arbitral proceedings
or, to the best knowledge of ABIOMED, investigations (whether or not the defense
thereof or liabilities in respect thereof are covered by insurance) pending or,
to the best knowledge of ABIOMED, threatened against ABIOMED, any Subsidiary or
any of their respective properties or assets.
2.13. Compliance with Laws.
--------------------
To its knowledge, neither ABIOMED nor any of the Subsidiaries is in
violation of any statute, law, rule or regulation, or in default with respect to
any judgment, writ, injunction, decree, rule or regulation of any court,
governmental or regulatory body or arbitration tribunal, including without
limitation laws relating to environmental protection, health and safety matters
and labor and employment practices, except for such violations or defaults which
do not, individually or in the aggregate, materially and adversely affect the
Business of ABIOMED.
2.14. Brokerage.
---------
No broker, finder, agent or similar intermediary has acted on behalf of
ABIOMED in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with ABIOMED or any action taken by ABIOMED, other than a fee
payable by ABIOMED to UBS Securities LLC in connection with a fairness opinion
being rendered by UBS Securities LLC.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to ABIOMED as follows:
3.1. Authority for Agreement.
-----------------------
The Investor has the power and authority to execute and deliver this
Agreement and to perform all of his obligations hereunder. This Agreement has
been duly executed and delivered by the Investor. This Agreement constitutes the
valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and to general principles of equity.
3.2. Investment.
----------
The Investor is an accredited investor, as defined in Rule 501 of
Regulation D under the Securities Act. The Investor is acquiring the Shares
solely for his own account for investment purposes as a principal and not with a
view to the public resale or distribution of all or any part thereof; provided
however, that in making such representation, the Investor does not agree to hold
the Shares for any minimum or specific term and reserves the right to sell,
transfer or otherwise dispose of the Shares at any time in accordance with the
terms of this Agreement and with federal and state securities laws applicable to
such sale, transfer or disposition.
3.3. Restrictions on Transferability; Legend.
---------------------------------------
The Investor understands that the Shares have not been registered under the
Securities Act or under the securities laws of any state or other jurisdiction
in reliance upon exemptions thereunder. The Investor acknowledges and is aware
that the Shares cannot be resold unless the
Shares are registered under the Securities Act and any applicable securities law
of any state or other jurisdiction, or an exemption from registration is
available. Each certificate representing the Shares shall bear a legend in
substantially the following form (unless such Shares have been transferred
pursuant to a registration statement under the Securities Act or, in the opinion
of counsel acceptable to ABIOMED, such a legend is not required):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAW AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (ii) UPON FIRST FURNISHING TO THE
COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT
IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY STATE
SECURITIES LAW.
3.4. Information.
-----------
The Investor has reviewed (a) the representations of ABIOMED contained in
this Agreement and (b) the ABIOMED 10-K and has had the opportunity to make
inquiry concerning ABIOMED and its business and personnel. The Investor is a
director of ABIOMED and in such capacity is otherwise familiar with the business
of ABIOMED. The officers of ABIOMED have made available to the Investor any and
all written information that he has requested and have answered to the
Investor's satisfaction all inquiries made by the Investor.
3.5. Brokerage.
---------
No broker, finder, agent or similar intermediary has acted on behalf of the
Investor in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with the Investor, or any action taken by him.
ARTICLE 4. REGISTRATION RIGHTS
4.1. Certain Definitions.
-------------------
As used in this Article 4, the following terms shall have the following
respective meanings:
(a) "Holders" shall mean the Investor and any of his successors and
assigns (other than successors and assigns who acquire the Shares pursuant to a
registered public offering or pursuant to a transaction covered by Rule 144
under the Securities Act) who hold Shares.
(b) "Registration Expenses" and "Selling Expenses" shall mean the
expenses so described in Section 4.6.
(c) "Other Holders" shall mean all holders of the Company's
securities other than Holders.
(d) "Shares" for purposes of this Article 4 shall have the meaning
set forth in Section 1.1 hereof, with the exception that the term shall not
include Shares which at any time have become salable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act, or any similar successor
rule.
(e) "Underwriter" shall mean each person who is or may be deemed an
"underwriter," as that term is defined in Section 2(11) of the Securities Act,
in respect of securities which shall have been registered by ABIOMED under the
Securities Act pursuant to any of the provisions of this Article 4.
4.2. Required Registration.
---------------------
If ABIOMED for itself or any of its security holders shall at any time or
times after the first anniversary of the date hereof and prior to the seventh
anniversary of the date hereof determine to register under the Securities Act
any shares of Common Stock for an underwritten public offering other than (a)
the registration of an offer and sale of securities to employees of, or other
persons providing services to ABIOMED pursuant to an employee or similar benefit
plan, registered on Form S-8 or comparable form; or (b) relating to a merger,
acquisition or other transaction of the type described in Rule 145 under the
Securities Act or comparable rule, registered on Form S-4 or similar form,
ABIOMED will notify each Holder in each case of such determination at least ten
(10) days prior to the filing of such registration statement, and upon the
request of a Holder given in writing within five days after the date of such
notice, ABIOMED will use commercially reasonable efforts as soon as practicable
thereafter to cause any of the Shares specified by such Holder to be included in
such registration statement. Notwithstanding the foregoing, if the managing
underwriter determines and advises in writing that the inclusion of all Shares
of such requesting Holders and all shares of ABIOMED's Common Stock to be
offered by ABIOMED and by Other Holders, whether covered by requests for
registration or otherwise included, would interfere with the marketing of the
securities to be sold by ABIOMED, or if the registration is at the request of a
person or persons with a right to require registration, by that person or
persons; then the number of shares of Common Stock otherwise to be included in
the registration statement by Holders and Other Holders shall be reduced as
follows: (i) there shall first be excluded shares proposed to be included by
Other Holders not possessing legal rights to include the same pursuant to this
section or any similar provision; and (ii) any further reduction shall be pro
rata among such Holders and Other Holders (having such legal rights) in
proportion to the number of shares as to which registration is requested by
each; provided however, that there shall be no reduction in the number of shares
to be included therein (x) by ABIOMED or (y) if the registration is at the
request of a person or persons with a right to require such registration, by
that person or persons. For purposes of making any such reduction, each holder
(whether a Holder or Other Holder) which is a partnership, together with the
affiliates, partners and retired partners of such holder, the estates and family
members of any such partners and retired partners and of their spouses, and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single holder and any pro rata reduction with respect to such holder shall
be based upon the aggregate amount of Shares sought to be sold by all entities
and individuals so included in such holder, and the aggregate reduction so
allocated to such holder shall be allocated among the entities and individuals
included in such holder in such manner as such partnership may reasonably
determine. If the managing underwriter determines and advises in writing that
the inclusion in the registration statement of any shares of Common Stock to be
sold by stockholders of ABIOMED would interfere with the marketing of the
securities to be sold by ABIOMED, no notice need be given to any Holder pursuant
to the first sentence of this section and no Holder will have the right to
include its Shares in such registration statement.
4.3. Conditions of Obligations to Register Shares.
--------------------------------------------
As conditions to ABIOMED's obligation hereunder to cause Shares to be
included in a registration statement, the Holder shall provide such information
and execute such documents as may reasonably be required in connection with such
registration.
4.4. Registration Procedures.
-----------------------
If and whenever ABIOMED is required by the provisions of this Article 4 to
use commercially reasonable efforts to include any of the Shares in a
registration statement filed under the Securities Act, ABIOMED shall as
expeditiously as possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Shares and use commercially reasonable efforts to cause such
registration statement to become effective.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective until the Shares
covered thereunder have been sold.
(c) Secure the designation and quotation of the Shares on Nasdaq or
any national securities exchange on which the Common Stock is then listed.
Furnish to each Holder such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus), in conformity
with the requirements of the Securities Act, and such other documents as such
Holder may reasonably request in order to facilitate the disposition of the
Shares owned by such Holder:
(e) Use commercially reasonable efforts to register or qualify the
Shares covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as each selling Holder shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition of the Shares
owned by such Holder in such jurisdictions during the period specified in
Section 4.4(b), provided that ABIOMED shall not be required in connection
herewith to execute a general consent to service of process in any jurisdiction.
(f) Notify each Holder immediately of any Shares covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus contained in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and as promptly as practicable, prepare, file and furnish to the
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; provided however, that ABIOMED may
delay preparing, filing and distributing any such supplement or amendment if
ABIOMED determines in good faith that such supplement or amendment might, in the
reasonable judgment of ABIOMED (i) interfere with or affect the negotiation or
completion of a transaction that is being contemplated by ABIOMED (whether or
not a final decision has been made to undertake such transaction) or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of ABIOMED's stockholders at such time; provided, further, that (x)
ABIOMED will give notice (a "Standstill Notice") of any such delay no less than
five (5) business days prior to such delay, (y) such delay shall not extend for
a period of more than fifteen (15) business days without the written consent of
the Holder and (z) ABIOMED may utilize such delay no more than once in each
calendar year. Each Holder agrees, upon receipt of a Standstill Notice,
forthwith to cease making offers and sales of the Shares pursuant to the
registration statement or deliveries of the prospectus contained therein and to
return to ABIOMED, for modification and exchange, the copies of such prospectus
not theretofore delivered by such Holder; provided that ABIOMED shall forthwith
prepare and deliver to such Holder after such delay a reasonable number of
copies of any supplement to or amendment of such prospectus that may be
necessary so that such prospectus does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(g) Use commercially reasonable efforts to prevent the issuance of
any stop order or other order suspending the effectiveness of such registration
statement and, if such an order is issued, to obtain the withdrawal at the
earliest possible time and to notify the Holder of the issuance of such order
and the resolution thereof.
(h) Furnish to the Holder and the Underwriter of the Holder's
Shares, on the date that such registration statement becomes effective, (i) an
opinion, dated such date, of outside counsel representing ABIOMED (and
reasonably acceptable to the Holder) addressed to the Holder as to the
effectiveness of the registration statement and its compliance as to form with
the requirements of the Securities Act and such other matters as may be
reasonably requested by the Holder (including, such additional matters as are
customarily included in opinions delivered by company counsel in underwritten
public offerings) and (ii) a letter, dated such date, from ABIOMED's independent
certified public accountants, in form and substance as is customarily given by
independent certified public accounts to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder.
(i) Subject to the Holder entering into a confidentiality agreement
reasonably acceptable to ABIOMED, provide the Holder and its representatives the
opportunity to conduct a reasonable inquiry of ABIOMED's financial and other
records during normal business hours and make available its officers, directors
and employees for questions regarding information which the Holder may
reasonably request in order to fulfill any due diligence obligation on its part.
(j) Permit counsel for the Holder to review such registration
statement and all amendments and supplements thereto a reasonable period of time
prior to the filing thereof with the SEC.
(k) Enter into and perform its obligations under an underwriting
agreement, in usual and customary form reasonably acceptable to ABIOMED, with
the underwriters of such offering. and to use its reasonable efforts to cause
the conditions to the underwriters' performance thereunder to be met.
4.5. Description of Expenses.
-----------------------
All expenses incurred by ABIOMED in complying with any of the foregoing
provisions of this Section 4, including without limitation all federal and state
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel to ABIOMED, and accountants' fees and expenses incident
to or required by any such registration are herein called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Shares hereunder and the fees and disbursements of one counsel to the
Holders with respect to any registration of the Shares hereunder are herein
called "Selling Expenses." If ABIOMED is required by the provisions of this
Article 4 to use commercially reasonable efforts to effect the registration of
any of the Shares under the Securities Act, the Registration Expenses and
Selling Expenses in connection with such registration shall be borne as follows:
(a) All Registration Expenses shall be borne by ABIOMED.
(b) Selling Expenses shall be borne pro rata among the Holders
participating in the registration, except that each Holder shall bear the
expenses of any separate counsel retained by it.
4.6. Indemnification.
---------------
In the event that ABIOMED registers under the Securities Act any Shares
held by a Holder:
(a) ABIOMED agrees to indemnify and hold harmless such Holder, each
person, if any, who controls such Holder within the meaning of the Securities
Act, any Underwriter offering or selling the Holder's Shares and any person
controlling such Underwriter, against any and all loss, liability or expense
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact in any related registration statement, prospectus or preliminary
prospectus or any omission or alleged omission of any 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, unless such statement or omission was (i)
made in reliance upon information furnished in writing by any such Holder,
Underwriter or controlling person specifically for inclusion therein or (ii)
contained in a preliminary prospectus and corrected in a final or amended
prospectus if such Holder, Underwriter or controlling person received notice of
such final or amended prospectus prior to the effective date of the registration
statement but failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the sale of the Shares to the person asserting such
loss, claim, damage or liability, in any case where such delivery is required by
the Securities Act.
(b) The obligations of ABIOMED under Section 4.2 with respect to any
Holder are subject to the following conditions: (i) that each Holder whose
Shares are to be included in any registration referred to in this Article 4
agrees, in writing, prior to the filing of such registration or filing, to
indemnify and hold harmless ABIOMED and each person, if any, who controls
ABIOMED within the meaning of the Securities Act, against any and all loss,
liability or expense arising out of or based upon any untrue statement or
alleged untrue statement of a material fact in any related registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission of any material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to statements or
omissions made in reliance upon a statement in writing furnished by or on behalf
of such Holder for inclusion therein; provided however, that the liability of
each Holder to so indemnify shall be limited to the amount received by such
Holder on the sale of his or her Shares pursuant to such registration statement,
and (ii) that each such Holder enters into an underwriting agreement in usual
and standard form (including a "lock-up" not exceeding 180 days of Shares not
being sold in the underwritten offering) respecting such offering and uses its
best reasonable efforts to cause the conditions to the Underwriters' performance
thereunder to be met.
(c) Each Party entitled to indemnification under this Section 4.6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 4.6 unless and to the extent that such failure
results in the forfeiture of substantive rights or' defenses by the Indemnifying
Party. The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if, in the opinion of counsel to the Indemnified Party, representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation and the Indemnifying
Party shall
not be required to indemnify any Indemnified Party for any amount paid or
payable by such Indemnified Party in settlement of any claim or litigation
without such consent of the Indemnifying Party, which consent shall not be
unreasonable withheld.
ARTICLE 5. MISCELLANEOUS
5.1. Assignment.
----------
This Agreement may not be assigned or otherwise transferred by any Party
without the consent of the other Party; provided, however, that (a) ABIOMED may,
without such consent, assign its rights and obligations under this Agreement (i)
in connection with a corporate reorganization, to any member of an affiliated
group, all or substantially all of the equity interest of which is owned and
controlled by ABIOMED or its direct or indirect parent corporation or (ii) in
connection with a merger, consolidation or sale of substantially all of
ABIOMED'S assets to an unrelated Third Party; provided however, that ABIOMED'S
rights and obligations under this Agreement shall be assumed by its successor in
interest in any such transaction and shall not be transferred separate from all
or substantially all of its other business assets. Any purported assignment in
violation of the preceding sentence shall be void. Any permitted assignee shall
assume all obligations of its assignor under this Agreement in writing.
5.2. Severability.
------------
Each Party hereby agrees that it does not intend to violate any public
policy, statutory or common laws, rules, regulations, treaty or decision of any
government agency or executive body thereof of any country or community or
association of countries. Should one or more provisions of this Agreement be or
become invalid, the Parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions, which valid provisions in their economic
effect are sufficiently similar to the invalid provisions that it can be
reasonably assumed that the Parties would have entered into this Agreement with
such valid provisions. In case such valid provisions cannot be agreed upon, the
invalidity of one or several provisions of this Agreement shall not affect the
validity of this Agreement as a whole, unless the invalid provisions are of such
essential importance to this Agreement that it is to be reasonably assumed that
the Parties would not have entered into this Agreement without the invalid
provisions.
5.3. Notices.
-------
Any consent, notice or report required or permitted to be given or made
under this Agreement by one of the Parties hereto to the other shall be in
writing, delivered personally or by facsimile (and promptly confirmed by
personal delivery or courier) or courier, postage prepaid (where applicable),
addressed to such other Party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the address or
in accordance with this Section 5.3, and shall be effective upon receipt by the
addressee.
If to ABIOMED, Inc.
ABIOMED: 00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to: Xxxxx Xxxxxxx Xxxxx & Gesmer, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esquire
Facsimile: (000) 000-0000
If to Xxxx X'Xxxxx
the Investor: Allmerica Financial
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (617) (000) 000-0000
with a copy to: <6>
5.4. Applicable Law.
--------------
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
5.5. Entire Agreement.
----------------
This Agreement contains the entire understanding of the Parties with
respect to the subject matter hereof. All express or implied agreements and
understandings, either oral or written, heretofore made are expressly merged in
and made a part of this Agreement. This Agreement may be amended, or any term
hereof modified, only by a written instrument duly executed by the Parties. Each
of the Parties hereby acknowledges that this Agreement is the result of mutual
negotiation and therefore any ambiguity in their respective terms shall not be
construed against the drafting Party.
5.6. Headings.
--------
The captions to the several Articles and Sections hereof are not a part of
this Agreement, but are merely guides or labels to assist in locating and
reading the several Articles and Sections hereof.
5.7. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first set forth above.
ABIOMED, Inc.
By: ___________________________________
Title: ________________________________
/s/ Xxxx X'Xxxxx
---------------------------------------
Xxxx X'Xxxxx
COMMON STOCK PURCHASE AGREEMENT
between
ABIOMED, Inc.
and
Xxxxxxx X. X'Xxxxxxx, Xx.
dated as of July 14, 1997
TABLE OF CONTENTS
ARTICLE 1. PURCHASE AND SALE OF SHARES..................... 1
1.1. Authorization........................................ 1
-------------
1.2. Purchase and Sale of the Shares...................... 1
-------------------------------
1.3. Delivery of Certificates............................. 1
------------------------
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED....... 1
2.1. Organization and Qualification....................... 2
------------------------------
2.2. Capitalization....................................... 2
--------------
2.3. Issuance and Sale of Shares.......................... 3
---------------------------
2.4. Authority for Agreement.............................. 3
-----------------------
2.5. SEC Reports.......................................... 3
-----------
2.6. Financial Statements................................. 3
--------------------
2.7. Subsidiaries......................................... 4
------------
2.8. Absence of Undisclosed ABIOMED Liabilities........... 4
------------------------------------------
2.9. No Material Adverse Change........................... 4
--------------------------
2.10. Tax Matters......................................... 4
-----------
2.11. No Breach........................................... 5
---------
2.12. Actions and Proceedings............................. 6
-----------------------
2.13. Compliance with Laws................................ 6
--------------------
2.14. Brokerage........................................... 6
---------
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.. 6
3.1. Authority for Agreement.............................. 6
-----------------------
3.2. Investment........................................... 6
----------
3.3. Restrictions on Transferability; Legend.............. 7
---------------------------------------
3.4. Information.......................................... 7
-----------
3.5. Brokerage............................................ 7
---------
ARTICLE 4. REGISTRATION RIGHTS............................. 7
4.1. Certain Definitions.................................. 8
-------------------
4.2. Required Registration................................ 8
---------------------
4.3. Conditions of Obligations to Register Shares......... 9
--------------------------------------------
4.4. Registration Procedures.............................. 9
-----------------------
4.5. Description of Expenses.............................. 11
-----------------------
4.6. Indemnification...................................... 12
---------------
ARTICLE 5. MISCELLANEOUS................................... 14
5.1. Assignment........................................... 14
----------
5.2. Severability......................................... 14
------------
5.3. Notices.............................................. 14
-------
5.4. Applicable Law....................................... 15
--------------
5.5. Entire Agreement..................................... 15
----------------
5.6. Headings............................................. 15
--------
5.7. Counterparts......................................... 15
------------
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT dated as of July 14, 1997 (the
"Agreement") is between ABIOMED, Inc., a Delaware corporation having its
principal place of business at 00 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000 (ABIOMED"), and Xxxxxxx X. X'Xxxxxxx, Xx. of <2> (the "Investor"). ABIOMED
and the Investor are sometimes referred to herein individually as a "Party" and
collectively as the "Parties."
In consideration of the mutual promises and of the covenants contained
herein, the Parties hereby agree as follows:
ARTICLE 1. PURCHASE AND SALE OF SHARES
1.1. Authorization.
-------------
ABIOMED has duly authorized the issuance and sale to the Investor of
Seven Thousand Six Hundred Ninety-Two (7,692) shares (the "Shares") of its
Common Stock, $0.01 par value per share ("Common Stock").
1.2. Purchase and Sale of the Shares.
-------------------------------
Concurrently with the execution and delivery of this Agreement, ABIOMED
hereby issues and sells to the Investor, and the Investor hereby purchases from
ABIOMED, the Shares at a purchase price of $13.00 per Share, for an aggregate
purchase price of Ninety-Nine Thousand Nine Hundred Ninety-Six Dollars
($99,996.00). The purchase price shall be payable by the Investor to ABIOMED
upon execution of this Agreement.
1.3. Delivery of Certificates.
------------------------
On the date hereof, ABIOMED will deliver to the Investor one or more
certificates representing the Shares registered in the name of the Investor
against payment by the Investor of the purchase price by check or wire transfer.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF ABIOMED
Except as otherwise set forth in the disclosure schedule delivered to the
Investor on the date hereof (the "Disclosure Schedule"), the section numbers of
which are numbered to correspond to the sections of this Agreement to which they
refer, ABIOMED represents and warrants to the Investor as follows:
2.1. Organization and Qualification.
------------------------------
Each of ABIOMED and the Subsidiaries (as defined in Section 2.7) is a
corporation or partnership duly organized, validly existing and in good standing
under the laws of its state or jurisdiction of incorporation or formation with
full power and authority to own, lease and operate its assets, properties and
business and to carry on its business as now being and as heretofore conducted.
Each of ABIOMED and the Subsidiaries is qualified or otherwise authorized to
transact business as a foreign corporation or partnership in all jurisdictions
in which such qualification or authorization is required by law, except for
jurisdictions in which the failure to so qualify or be authorized would not have
a material adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of ABIOMED and the Subsidiaries taken as a
whole (the "Business of ABIOMED").
2.2. Capitalization.
--------------
(a) ABIOMED is authorized to issue 25,000,000 shares of Common
Stock, of which 7,017,872 shares were issued and outstanding as of June 30,
1997, 2,346,000 shares of Class A Common Stock, $0.01 par value per share, none
of which are issued and outstanding, 150,000 shares of Class A Preferred Stock,
$0.01 par value per share, none of which are issued and outstanding and
1,000,000 shares of Class B Preferred Stock, $0.01 par value per share, none of
which are issued and outstanding. No other class of capital stock of ABIOMED is
authorized or outstanding. All of the issued and outstanding shares of ABIOMED's
capital stock are duly authorized and are validly issued, fully paid,
nonassessable and free of preemptive rights. None of the issued and outstanding
shares have been issued in violation of any federal or state law except for
violations that would not have a material adverse effect on the Business of
ABIOMED.
(b) Options representing in the aggregate the right to purchase
969,785 shares of Common Stock pursuant to ABIOMED's 1992 Combination Stock
Option Plan and ABIOMED's 1989 Non-Qualified Stock Option Plan for Non-Employee
Directors are outstanding as of the date hereof.
(c) 90,718 shares of Common Stock are reserved for issuance under
ABIOMED's 1988 Employee Stock Purchase Plan as of the date hereof.
(d) Except as set forth in paragraphs (a), (b) and (c) of this
Section 2.2, Section 2.2 of the Disclosure Schedule or as a result of the
exercise of outstanding options or rights set forth therein, there are not, as
of the date hereof, any other shares of ABIOMED capital stock authorized or
outstanding or any subscriptions, options, conversion or exchange rights,
warrants, repurchase or redemption agreements, or other agreements or
commitments obligating ABIOMED to issue, transfer, sell, repurchase or redeem
any shares of its capital stock or other securities of ABIOMED. To the best
knowledge of ABIOMED, there are no written stockholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the voting of the capital stock of ABIOMED.
2.3. Issuance and Sale of Shares.
---------------------------
The issuance and sale of the Shares by ABIOMED has been duly
authorized and the Shares have been duly reserved for issuance by all necessary
corporate action on the part of ABIOMED, and the Shares, when issued and
delivered against payment therefor, will be duly and validly issued, fully paid
and non-assessable. Based in part on the representations made by the Investor
set forth in Article 3 below, the offer, issuance and sale of the Shares
pursuant to this Agreement are exempt from registration under the Securities Act
of 1933, as amended (the
"Securities Act"), and applicable state securities laws. ABIOMED has complied
with all applicable federal and state securities laws and with the Nasdaq By-
Laws in connection with the offer, issuance and sale of the Shares.
2.4. Authority for Agreement.
-----------------------
The execution, delivery and performance by ABIOMED of this Agreement has
been duly authorized by all necessary corporate action, and this Agreement has
been duly executed and delivered by ABIOMED. This Agreement constitutes the
valid and binding obligation of ABIOMED enforceable against ABIOMED in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and to general principles of equity.
2.5. SEC Reports.
-----------
ABIOMED has previously delivered to the Investor its (a) Annual Report
on Form 10-K for the year ended March 31, 1997 (the "ABIOMED 10-K"), as filed
with the Securities and Exchange Commission (the "SEC'), (b) all proxy
statements relating to ABIOMED's meetings of stockholders held or currently
scheduled to be held since March 31, 1997 and (c) all other reports filed by
ABIOMED with the SEC under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since March 31, 1997. As of their respective dates, such
reports complied in all material respects with applicable SEC requirements and
did not contain any 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. ABIOMED has timely filed with the SEC all reports required to be
flied under Section 13, 14 or 15(d) of the Exchange Act since March 31, 1997.
2.6. Financial Statements.
--------------------
The financial statements contained in the ABIOMED 10-K have been prepared
from, and are in accordance with, the books and records of ABIOMED and present
fairly, in all material respects, the financial condition and results of
operations of ABIOMED as of and for the periods presented therein, all in
conformity with United States generally accepted accounting principles,
consistently applied, except as otherwise noted therein.
2.7. Subsidiaries.
------------
(a) The Disclosure Schedule sets forth all of the Subsidiaries and
the jurisdiction in which each is incorporated or organized. Except as set forth
on the Disclosure Schedule, all issued and outstanding shares or partnership
interests of each Subsidiary are owned directly by ABIOMED free and clear of any
charges, liens, encumbrances, security interests or adverse claims. As used in
this Agreement, "Subsidiary" means any corporation, partnership or other legal
entity of which ABIOMED or any Subsidiary owns, directly or indirectly, 50% or
more of the stock or other equity interest entitled to vote for the election of
directors.
(b) Except as set forth on the Disclosure Schedule, there are not
as of the date hereof any other shares of capital stock or other equity interest
of any Subsidiary authorized or outstanding or any subscriptions, options,
conversion or exchange rights, warrants, repurchase or redemption agreements, or
other agreements, claims or commitments of any nature whatsoever obligating any
Subsidiary to issue, transfer, deliver, sell, repurchase or redeem any shares of
the capital stock or other equity interest of any Subsidiary or obligating
ABIOMED or any Subsidiary to grant, extend or enter into any such agreement. To
the best knowledge of ABIOMED, there are no stockholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the capital stock of any Subsidiary.
(c) Except for the Subsidiaries, ABIOMED does not directly or
indirectly own or have any investment in any of the capital stock of, and is not
a party to a partnership or joint venture with, any other person.
2.8. Absence of Undisclosed ABIOMED Liabilities.
------------------------------------------
As of March 31, 1997, ABIOMED and the Subsidiaries had no material
liabilities of any nature, whether accrued, absolute, contingent or otherwise,
(a) required to be reflected or disclosed on the balance sheets dated March 31,
1997 (or the notes thereto) included in the ABIOMED 10-K in the opinion of
management that were not adequately reflected or reserved against on such
balance sheets or (b) for the payment of any dividends, or any other
distribution, to the stockholders of ABIOMED. ABIOMED and the Subsidiaries have
no such liabilities, other than liabilities (i) which in the opinion of
management as of March 31, 1987 are adequately reflected or reserved against on
such balance sheet, (ii) incurred since March 31, 1997 in the ordinary course of
business and consistent with past practice or (iii) that would not, in the
aggregate, have a material adverse effect on the Business of ABIOMED.
2.9. No Material Adverse Change.
--------------------------
Since March 31, 1997, there has not been any material adverse change in the
Business of ABIOMED.
2.10. Tax Matters.
-----------
(a) ABIOMED and each of the Subsidiaries have filed all tax reports
and returns required to be filed by them and have paid or will timely pay all
taxes and other charges shown as due on such reports and returns. Neither
ABIOMED nor any of the Subsidiaries is delinquent in the payment of any material
tax assessment or other governmental charge (including without limitation
applicable withholding taxes). Any provision for taxes reflected in the
financial statements referenced in Section 2.6 above is, to the best knowledge
of ABIOMED, adequate for payment of any and all tax liabilities for periods
ending on or before March 31, 1997 and there are no tax liens on any assets of
ABIOMED or the Subsidiaries except liens for current taxes not yet due.
(b) Except as set forth in Section 2.10 of the Disclosure Schedule,
there has not been any audit of any tax return filed by ABIOMED or any of the
Subsidiaries and no audit
of any such tax return is in progress and neither ABIOMED nor any Subsidiary has
been notified by any tax authority that any such audit is contemplated or
pending. ABIOMED knows of no material tax deficiency or claim for additional
taxes asserted or threatened to be asserted against ABIOMED or any of the
Subsidiaries by any taxing authority and ABIOMED knows of no grounds for any
such assessment. No extension of time with respect to any date on which a tax
return was or is to be filed by ABIOMED or any of the Subsidiaries is in force,
and no waiver or agreement by ABIOMED or any of the Subsidiaries is in force for
the extension of time for the assessment or payment of any tax. For purposes of
this Agreement, the term "tax" includes all federal, state, local and foreign
taxes or assessments, including income, sales, gross receipts, excise, use,
value added, royalty, franchise, payroll, withholding, property and import taxes
and any interest or penalties applicable thereto.
2.11. No Breach.
---------
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not: (a) violate any
provision of the certificate of incorporation or by-laws of ABIOMED; (b)
violate, conflict with or result in the breach of any of the terms or conditions
of, result in modification of the effect of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any material instrument, contract
or other agreement to which ABIOMED or any of the Subsidiaries is a party or to
which any of the assets or properties of ABIOMED or any of the Subsidiaries may
be bound or subject; (c) violate any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory body against, or
binding upon, ABIOMED, any Subsidiary or upon any of their respective
securities, properties, assets or businesses; (d) violate any statute, law or
regulation of any jurisdiction as such statute, law or regulation relates to
ABIOMED, any Subsidiary or any of their respective securities, properties,
assets or businesses; (e) require the approval, consent or authorization of, or
registration or filing with, any foreign, federal, state, local or other
governmental or regulatory body or the approval, consent, waiver or notification
of any stockholder, creditor, lessor or other person; or (f) result in the
creation of any lien or other encumbrance on the assets or properties of ABIOMED
or any of the Subsidiaries, excluding from clauses (b) - (f') such matters as
would not in the aggregate have a material adverse effect on the Business of
ABIOMED or upon the transactions contemplated hereby.
2.12. Actions and Proceedings.
-----------------------
There are no outstanding orders, judgments, injunctions, awards or decrees
of any court, governmental or regulatory body or arbitration tribunal against
ABIOMED, any Subsidiary or any of their respective properties or assets. There
are no actions, suits or claims or legal, administrative or arbitral proceedings
or, to the best knowledge of ABIOMED, investigations (whether or not the defense
thereof or liabilities in respect thereof are covered by insurance) pending or,
to the best knowledge of ABIOMED, threatened against ABIOMED, any Subsidiary or
any of their respective properties or assets.
2.13. Compliance with Laws.
--------------------
To its knowledge, neither ABIOMED nor any of the Subsidiaries is in
violation of any statute, law, rule or regulation, or in default with respect to
any judgment, writ, injunction, decree, rule or regulation of any court,
governmental or regulatory body or arbitration tribunal, including without
limitation laws relating to environmental protection, health and safety matters
and labor and employment practices, except for such violations or defaults which
do not, individually or in the aggregate, materially and adversely affect the
Business of ABIOMED.
2.14. Brokerage.
---------
No broker, finder, agent or similar intermediary has acted on behalf of
ABIOMED in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with ABIOMED or any action taken by ABIOMED, other than a fee
payable by ABIOMED to UBS Securities LLC in connection with a fairness opinion
being rendered by UBS Securities LLC.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to ABIOMED as follows:
3.1 Authority for Agreement.
-----------------------
The Investor has the power and authority to execute and deliver this
Agreement and to perform all of his obligations hereunder. This Agreement has
been duly executed and delivered by the Investor. This Agreement constitutes the
valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium and similar laws affecting the rights and remedies of creditors
generally and to general principles of equity.
3.2. Investment.
----------
The Investor is an accredited investor, as defined in Rule 501 of
Regulation D under the Securities Act. The Investor is acquiring the Shares
solely for his own account for investment purposes as a principal and not with a
view to the public resale or distribution of all or any part thereof; provided
however, that in making such representation, the Investor does not agree to hold
the Shares for any minimum or specific term and reserves the right to sell,
transfer or otherwise dispose of the Shares at any time in accordance with the
terms of this Agreement and with federal and state securities laws applicable to
such sale, transfer or disposition.
3.3. Restrictions on Transferability; Legend.
---------------------------------------
The Investor understands that the Shares have not been registered under the
Securities Act or under the securities laws of any state or other jurisdiction
in reliance upon exemptions thereunder. The Investor acknowledges and is aware
that the Shares cannot be resold unless the
Shares are registered under the Securities Act and any applicable securities law
of any state or other jurisdiction, or an exemption from registration is
available. Each certificate representing the Shares shall bear a legend in
substantially the following form (unless such Shares have been transferred
pursuant to a registration statement under the Securities Act or, in the opinion
of counsel acceptable to ABIOMED, such a legend is not required):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAW AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR (ii) UPON FIRST FURNISHING TO THE
COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT
IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY STATE
SECURITIES LAW.
3.3. Information.
-----------
The Investor has reviewed (a) the representations of ABIOMED contained in
this Agreement and (b) the ABIOMED 10-K and has had the opportunity to make
inquiry concerning ABIOMED and its business and personnel. The Investor is a
director of ABIOMED and in such capacity is otherwise familiar with the business
of ABIOMED. The officers of ABIOMED have made available to the Investor any and
all written information that he has requested and have answered to the
Investor's satisfaction all inquiries made by the Investor.
3.5. Brokerage.
---------
No broker, finder, agent or similar intermediary has acted on behalf of the
Investor in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders fees or similar fees or
commissions payable in connection therewith based on any agreement, arrangement
or understanding with the Investor, or any action taken by him.
ARTICLE 4. REGISTRATION RIGHTS
4.1. Certain Definitions.
-------------------
As used in this Article 4, the following terms shall have the following
respective meanings:
(a) "Holders" shall mean the Investor and any of his successors and
assigns (other than successors and assigns who acquire the Shares pursuant to a
registered public offering or pursuant to a transaction covered by Rule 144
under the Securities Act) who hold Shares.
(b) "Registration Expenses" and "Selling Expenses" shall mean the
expenses so described in Section 4.6.
(c) "Other Holders" shall mean all holders of the Company's
securities other than Holders.
(d) "Shares" for purposes of this Article 4 shall have the meaning
set forth in Section 1.1 hereof, with the exception that the term shall not
include Shares which at any time have become salable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act, or any similar successor
rule.
(e) "Underwriter" shall mean each person who is or may be deemed an
"underwriter," as that term is defined in Section 2(11) of the Securities Act,
in respect of securities which shall have been registered by ABIOMED under the
Securities Act pursuant to any of the provisions of this Article 4.
4.2. Required Registration.
---------------------
If ABIOMED for itself or any of its security holders shall at any time or
times after the first anniversary of the date hereof and prior to the seventh
anniversary of the date hereof determine to register under the Securities Act
any shares of Common Stock for an underwritten public offering other than (a)
the registration of an offer and sale of securities to employees of, or other
persons providing services to ABIOMED pursuant to an employee or similar benefit
plan, registered on Form S-8 or comparable form; or (b) relating to a merger,
acquisition or other transaction of the type described in Rule 145 under the
Securities Act or comparable rule, registered on Form S-4 or similar form,
ABIOMED will notify each Holder in each case of such determination at least ten
(10) days prior to the filing of such registration statement, and upon the
request of a Holder given in writing within five days after the date of such
notice, ABIOMED will use commercially reasonable efforts as soon as practicable
thereafter to cause any of the Shares specified by such Holder to be included in
such registration statement. Notwithstanding the foregoing, if the managing
underwriter determines and advises in writing that the inclusion of all Shares
of such requesting Holders and all shares of ABIOMED's Common Stock to be
offered by ABIOMED and by Other Holders, whether covered by requests for
registration or otherwise included, would interfere with the marketing of the
securities to be sold by ABIOMED, or if the registration is at the request of a
person or persons with a right to require registration, by that person or
persons; then the number of shares of Common Stock otherwise to be included in
the registration statement by Holders and Other Holders shall be reduced as
follows: (i) there shall first be excluded shares proposed to be included by
Other Holders not possessing legal rights to include the same pursuant to this
section or any similar provision; and (ii) any further reduction shall be pro
rata among such Holders and Other Holders (having such legal rights) in
proportion to the number of shares as to which registration is requested by
each; provided however, that there shall be no reduction in the number of shares
to be included therein (x) by ABIOMED or (y) if the registration is at the
request of a person or persons with a right to require such registration, by
that person or persons. For purposes of making any such reduction, each holder
(whether a Holder or Other Holder) which is a partnership, together with the
affiliates, partners and retired partners of such holder, the estates and family
members of any such partners and retired partners and of their spouses, and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single holder and any pro rata reduction with respect to such holder shall
be based upon the aggregate amount of Shares sought to be sold by all entities
and individuals so included in such holder, and the aggregate reduction so
allocated to such holder shall be allocated among the entities and individuals
included in such holder in such manner as such partnership may reasonably
determine. If the managing underwriter determines and advises in writing that
the inclusion in the registration statement of any shares of Common Stock to be
sold by stockholders of ABIOMED would interfere with the marketing of the
securities to be sold by ABIOMED, no notice need be given to any Holder pursuant
to the first sentence of this section and no Holder will have the right to
include its Shares in such registration statement.
4.3. Conditions of Obligations to Register Shares.
--------------------------------------------
As conditions to ABIOMED's obligation hereunder to cause Shares to be
included in a registration statement, the Holder shall provide such information
and execute such documents as may reasonably be required in connection with such
registration.
4.4. Registration Procedures.
-----------------------
If and whenever ABIOMED is required by the provisions of this Article 4 to
use commercially reasonable efforts to include any of the Shares in a
registration statement filed under the Securities Act, ABIOMED shall as
expeditiously as possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Shares and use commercially reasonable efforts to cause such
registration statement to become effective.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective until the
Shares covered thereunder have been sold.
(c) Secure the designation and quotation of the Shares on Nasdaq or
any national securities exchange on which the Common Stock is then listed.
(d) Furnish to each Holder such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Shares owned by such Holder:
(e) Use commercially reasonable efforts to register or qualify the
Shares covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as each selling Holder shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition of the Shares
owned by such Holder in such jurisdictions during the period specified in
Section 4.4(b), provided that ABIOMED shall not be required in connection
herewith to execute a general consent to service of process in any jurisdiction.
(f) Notify each Holder immediately of any Shares covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus contained in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and as promptly as practicable, prepare, file and furnish to the
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; provided however, that ABIOMED may
delay preparing, filing and distributing any such supplement or amendment if
ABIOMED determines in good faith that such supplement or amendment might, in the
reasonable judgment of ABIOMED (i) interfere with or affect the negotiation or
completion of a transaction that is being contemplated by ABIOMED (whether or
not a final decision has been made to undertake such transaction) or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of ABIOMED's stockholders at such time; provided, further, that (x)
ABIOMED will give notice (a "Standstill Notice") of any such delay no less than
five (5) business days prior to such delay, (y) such delay shall not extend for
a period of more than fifteen (15) business days without the written consent of
the Holder and (z) ABIOMED may utilize such delay no more than once in each
calendar year. Each Holder agrees, upon receipt of a Standstill Notice,
forthwith to cease making offers and sales of the Shares pursuant to the
registration statement or deliveries of the prospectus contained therein and to
return to ABIOMED, for modification and exchange, the copies of such prospectus
not theretofore delivered by such Holder; provided that ABIOMED shall forthwith
prepare and deliver to such Holder after such delay a reasonable number of
copies of any supplement to or amendment of such prospectus that may be
necessary so that such prospectus does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(g) Use commercially reasonable efforts to prevent the issuance of
any stop order or other order suspending the effectiveness of such registration
statement and, if such an order is issued, to obtain the withdrawal at the
earliest possible time and to notify the Holder of the issuance of such order
and the resolution thereof.
(h) Furnish to the Holder and the Underwriter of the Holder's
Shares, on the date that such registration statement becomes effective, (i) an
opinion, dated such date, of outside counsel representing ABIOMED (and
reasonably acceptable to the Holder) addressed to the Holder as to the
effectiveness of the registration statement and its compliance as to form with
the requirements of the Securities Act and such other matters as may be
reasonably requested by the Holder (including, such additional matters as are
customarily included in opinions delivered by company counsel in underwritten
public offerings) and (ii) a letter, dated such date, from ABIOMED's independent
certified public accountants, in form and substance as is customarily given by
independent certified public accounts to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder.
(i) Subject to the Holder entering into a confidentiality agreement
reasonably acceptable to ABIOMED, provide the Holder and its representatives the
opportunity to conduct a reasonable inquiry of ABIOMED's financial and other
records during normal business hours and make available its officers, directors
and employees for questions regarding information which the Holder may
reasonably request in order to fulfill any due diligence obligation on its part.
(j) Permit counsel for the Holder to review such registration
statement and all amendments and supplements thereto a reasonable period of time
prior to the filing thereof with the SEC.
(k) Enter into and perform its obligations under an underwriting
agreement, in usual and customary form reasonably acceptable to ABIOMED, with
the underwriters of such offering. and to use its reasonable efforts to cause
the conditions to the underwriters' performance thereunder to be met.
4.5. Description of Expenses.
-----------------------
All expenses incurred by ABIOMED in complying with any of the foregoing
provisions of this Section 4, including without limitation all federal and state
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel to ABIOMED, and accountants' fees and expenses incident
to or required by any such registration are herein called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Shares hereunder and the fees and disbursements of one counsel to the
Holders with respect to any registration of the Shares hereunder are herein
called "Selling Expenses." If ABIOMED is required by the provisions of this
Article 4 to use commercially reasonable efforts to effect the registration of
any of the Shares under the Securities Act, the Registration Expenses and
Selling Expenses in connection with such registration shall be borne as follows:
(a) All Registration Expenses shall be borne by ABIOMED.
(b) Selling Expenses shall be borne pro rata among the Holders
participating in the registration, except that each Holder shall bear the
expenses of any separate counsel retained by it.
4.6. Indemnification.
---------------
In the event that ABIOMED registers under the Securities Act any Shares
held by a Holder:
(a) ABIOMED agrees to indemnify and hold harmless such Holder, each
person, if any, who controls such Holder within the meaning of the Securities
Act, any Underwriter offering or selling the Holder's Shares and any person
controlling such Underwriter, against any and all loss, liability or expense
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact in any related registration statement, prospectus or preliminary
prospectus or any omission or alleged omission of any 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, unless such statement or omission was (i)
made in reliance upon information furnished in writing by any such Holder,
Underwriter or controlling person specifically for inclusion therein or (ii)
contained in a preliminary prospectus and corrected in a final or amended
prospectus if such Holder, Underwriter or controlling person received notice of
such final or amended prospectus prior to the effective date of the registration
statement but failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation of the sale of the Shares to the person asserting such
loss, claim, damage or liability, in any case where such delivery is required by
the Securities Act.
(b) The obligations of ABIOMED under Section 4.2 with respect to
any Holder are subject to the following conditions: (i) that each Holder whose
Shares are to be included in any registration referred to in this Article 4
agrees, in writing, prior to the filing of such registration or filing, to
indemnify and hold harmless ABIOMED and each person, if any, who controls
ABIOMED within the meaning of the Securities Act, against any and all loss,
liability or expense arising out of or based upon any untrue statement or
alleged untrue statement of a material fact in any related registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission of any material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to statements or
omissions made in reliance upon a statement in writing furnished by or on behalf
of such Holder for inclusion therein; provided however, that the liability of
each Holder to so indemnify shall be limited to the amount received by such
Holder on the sale of his or her Shares pursuant to such registration statement,
and (ii) that each such Holder enters into an underwriting agreement in usual
and standard form (including a "lock-up" not exceeding 180 days of Shares not
being sold in the underwritten offering) respecting such offering and uses its
best reasonable efforts to cause the conditions to the Underwriters' performance
thereunder to be met.
(c) Each Party entitled to indemnification under this Section 4.6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 4.6 unless and to the extent that such failure
results in the forfeiture of substantive rights or' defenses by the Indemnifying
Party. The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if, in the opinion of counsel to the Indemnified Party, representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation and the Indemnifying
Party shall
not be required to indemnify any Indemnified Party for any amount paid or
payable by such Indemnified Party in settlement of any claim or litigation
without such consent of the Indemnifying Party, which consent shall not be
unreasonable withheld.
ARTICLE 5. MISCELLANEOUS
5.1. Assignment.
----------
This Agreement may not be assigned or otherwise transferred by any Party
without the consent of the other Party; provided, however, that (a) ABIOMED may,
without such consent, assign its rights and obligations under this Agreement (i)
in connection with a corporate reorganization, to any member of an affiliated
group, all or substantially all of the equity interest of which is owned and
controlled by ABIOMED or its direct or indirect parent corporation or (ii) in
connection with a merger, consolidation or sale of substantially all of
ABIOMED'S assets to an unrelated Third Party; provided however, that ABIOMED'S
rights and obligations under this Agreement shall be assumed by its successor in
interest in any such transaction and shall not be transferred separate from all
or substantially all of its other business assets. Any purported assignment in
violation of the preceding sentence shall be void. Any permitted assignee shall
assume all obligations of its assignor under this Agreement in writing.
5.2. Severability.
------------
Each Party hereby agrees that it does not intend to violate any public
policy, statutory or common laws, rules, regulations, treaty or decision of any
government agency or executive body thereof of any country or community or
association of countries. Should one or more provisions of this Agreement be or
become invalid, the Parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions, which valid provisions in their economic
effect are sufficiently similar to the invalid provisions that it can be
reasonably assumed that the Parties would have entered into this Agreement with
such valid provisions. In case such valid provisions cannot be agreed upon, the
invalidity of one or several provisions of this Agreement shall not affect the
validity of this Agreement as a whole, unless the invalid provisions are of such
essential importance to this Agreement that it is to be reasonably assumed that
the Parties would not have entered into this Agreement without the invalid
provisions.
5.3. Notices.
-------
Any consent, notice or report required or permitted to be given or made
under this Agreement by one of the Parties hereto to the other shall be in
writing, delivered personally or by facsimile (and promptly confirmed by
personal delivery or courier) or courier, postage prepaid (where applicable),
addressed to such other Party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the address or
in accordance with this Section 5.3, and shall be effective upon receipt by the
addressee.
If to ABIOMED, Inc.
ABIOMED: 00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Facsimile: (000) 000-00000
with a copy to: Xxxxx Xxxxxxx Xxxxx & Gesmer, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esquire
Facsimile: (000) 000-0000
If to Xxxxxxx X. X'Xxxxxxx, Xx.
the Investor: Xxxxx 00
0000 Xxxxxxx 00
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: <6>
5.4. Applicable Law.
--------------
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
5.5. Entire Agreement.
----------------
This Agreement contains the entire understanding of the Parties with
respect to the subject matter hereof. All express or implied agreements and
understandings, either oral or written, heretofore made are expressly merged in
and made a part of this Agreement. This Agreement may be amended, or any term
hereof modified, only by a written instrument duly executed by the Parties. Each
of the Parties hereby acknowledges that this Agreement is the result of mutual
negotiation and therefore any ambiguity in their respective terms shall not be
construed against the drafting Party.
5.6. Headings.
--------
The captions to the several Articles and Sections hereof are not a part of
this Agreement, but are merely guides or labels to assist in locating and
reading the several Articles and Sections hereof.
5.7 Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first set forth above.
ABIOMED, Inc.
By:_________________________________
Title:______________________________
/s/ Xxxxxxx X. X'Xxxxxxx, Xx.
------------------------------------
Xxxxxxx X. X'Xxxxxxx, Xx.
