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EXHIBIT 4.4
B.I. SYSTEMS CORPORATION
SERIES M PREFERRED STOCK PURCHASE AGREEMENT
Dated as of May 7, 1997
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TABLE OF CONTENTS
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SECTION 1 AUTHORIZATION AND SALE ............................................... 1
1.1 Authorization of the Series M Preferred Stock ......................... 1
1.2 Purchase and Sale of Series M Preferred Stock ......................... 1
SECTION 2 CLOSING DATE; DELIVERY ............................................... 1
2.1 Closing Date........................................................... 1
2.2 Delivery............................................................... 1
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY ........................ 1
3.1 Organization and Standing; Charter and By-laws......................... 2
3.2 Capitalization......................................................... 2
3.3 Corporate Power; Authorization......................................... 2
3.4 Validity of Securities................................................. 3
3.5 Litigation............................................................. 3
3.6 Employee Benefit Plans................................................. 3
SECTION 4 REPRESENTATIONS, WARRANTIES OF THE PURCHASER
AND RESTRICTIONS ON TRANSFER IMPOSED BY THE ACT....................... 3
4.1 Representations and Warranties......................................... 3
4.1.1 Authorization.................................................... 3
4.1.2 Investment ...................................................... 4
4.1.3 Federal Securities Law .......................................... 4
4.2 Transfer of Securities ................................................ 4
4.2.1 Legend .......................................................... 5
4.2.2 Restrictions on Transfer......................................... 5
4.2.3 Termination of Restrictions and Removal of Legend................ 6
SECTION 5 CONDITIONS TO OBLIGATIONS OF THE PURCHASER ........................... 6
5.1 Representations and Warranties Correct; Performance of Obligations.... 6
5.2 Consents and Waivers.................................................. 6
5.3 Certificate of Incorporation.......................................... 6
5.4 Minimum Proceeds...................................................... 6
5.5 Recapitalization...................................................... 7
SECTION 6 CONDITIONS TO OBLIGATIONS OF THE COMPANY ............................. 7
SECTION 7 RIGHT OF FIRST OFFER AND COVENANTS OF THE COMPANY..................... 7
7.1 Right of First Offer.................................................. 7
7.2 Covenants............................................................. 9
7.3 Termination........................................................... 9
7.4 Right of First Refusal on the Purchaser's Shares......................10
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SECTION 8 REGISTRATION RIGHTS......................................................... 11
8.1 Definitions................................................................. 11
8.2 Company Registration........................................................ 12
8.3 Demand Registration......................................................... 12
8.4 Obligations of the Company.................................................. 13
8.5 Furnish Information......................................................... 14
8.6 Underwriting Requirements................................................... 14
8.7 Delay of Registration....................................................... 14
8.8 Indemnification ............................................................ 14
8.9 Reports Under Securities Exchange Act of 1934............................... 16
8.10 Form S-3 Registration....................................................... 17
8.11 Expenses of Registration.................................................... 17
8.12 Assignment of Registration Rights........................................... 18
8.13 "Market Stand-Off" Agreement................................................ 18
8.14 Limitations on Subsequent Registration Rights............................... 18
8.15 Amendment of Registration Rights............................................ 18
8.16 Termination................................................................. 18
SECTION 9 MISCELLANEOUS............................................................... 19
9.1 Waivers and Amendments...................................................... 19
9.2 Governing Law............................................................... 19
9.3 Successors and Assigns...................................................... 19
9.4 Entire Agreement............................................................ 19
9.5 Notices, Etc................................................................ 20
9.6 Delays or Omissions......................................................... 20
9.7 Severability................................................................ 20
9.8 Titles and Subtitles........................................................ 20
9.9 Counterparts................................................................ 20
9.10 Expenses.................................................................... 20
EXHIBITS
A. Form of Amended and Restated Certificate of Incorporation
B. Termination and Release Agreement
C. Description of Recapitalization
SCHEDULE
4.1.3 Definition of Accredited Investor
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SERIES M PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES M PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is dated as
of the 7th day of May, 1997 by and among B.I. Systems Corporation, a Delaware
corporation (the "Company"), and Millipore Corporation, a Massachusetts
corporation (the "Purchaser").
SECTION 1
AUTHORIZATION AND SALE
1.1 Authorization of the Series M Preferred Stock. The Company has authorized
the sale and issuance of up to 50,000 shares of its Series M Preferred Stock
(the "Series M Shares") to the Purchaser. The Series M Shares shall have the
rights, privileges and preferences set forth in the Company's Amended and
Restated Certificate of Incorporation attached as Exhibit A hereto (the
"Certificate of Incorporation").
1.2 Purchase and Sale of Series M Preferred Stock. Subject to the terms and
conditions hereof and in reliance upon the representations, warranties and
agreements contained herein, the Company agrees to issue and sell to the
Purchaser, and the Purchaser agrees to purchase from the Company, 50,000 Series
M Shares in consideration for the termination of the Note and related Security
Agreement, as such terms are defined in the Termination and Release Agreement
attached hereto as Exhibit B (the "Release Agreement").
SECTION 2
CLOSING DATE; DELIVERY
2.1 Closing Date. The purchase and sale of the Series M Shares hereunder
shall occur at a closing (the "Closing") to be held at Xxxxxxxxx & Xxxxxxx, 000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx, on May 9, 1997 or at such
other time and place as shall be mutually agreed upon by the Company and the
Purchaser (the "Closing Date").
2.2 Delivery. Subject to the terms of this Agreement, at the Closing, the
Company will deliver to the Purchaser a certificate representing 50,000 Series M
Shares registered in the Purchaser's name.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise expressly indicated in the Schedules attached hereto, the
Company hereby represents and warrants to the Purchaser as follows:
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3.1 Organization and Standing: Charter and By-laws. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and the company is authorized to exercise all of its
corporate powers, rights and privileges. True and accurate copies of the
Certificate of Incorporation and the by-laws of the Company, each as it will be
in effect at the Closing, have been delivered to the Purchaser.
3.2 Capitalization. The authorized capital Stock of the Company on the date of
the Closing will consist of 15,000,000 shares of $.001 par value common stock
("Common Stock") and 4,000,000 shares of $.001 par value Preferred Stock (The
"Preferred Stock"), 2,000,000 of which have been designated Series B Preferred
Stock (The "Series B Shares") and 50,000 of which have been designated Series M
Preferred Stock. Assuming the completion of the recapitalization described in
Exhibit C attached hereto (the "Recapitalization"), no Preferred Stock will be
outstanding at the date of the Closing. The Series M Shares will have the
rights, preferences and privileges set forth in the Certificate of
Incorporation. Upon completion of the Recapitalization, there will be 31,280
shares of Common Stock issued and outstanding. The Company has reserved
6,060,000 shares of Common Stock for issuance upon conversion of the Series B
Preferred Stock, 270,027 shares of Common Stock for issuance upon conversion of
the Series M Preferred Stock and 1,590,000 shares of Common Stock for issuance
to employees, consultants and directors under its 1994 Omnibus Equity Incentive
Plan (the "Stock Plan") pursuant to which, prior to the Recapitalization,
options to acquire an aggregate of 194,500 shares were outstanding. The Company
intends to offer the holders of such options the right to exchange their
existing options for new options which, upon completion of the Recapitalization,
will entitle them to acquire the number of shares of Common Stock specified in
their existing option agreement, but at an exercise price of $0.33 per share.
The Stock Plan was adopted by the Board of Directors and stockholders of the
Company in July 1994 and amended in April 1997. Except as set forth herein or as
described in the description of the Recapitalization and except for the proposed
sale of Series B Preferred Stock, there are no outstanding rights, options,
warrants, preemptive rights, conversion rights or agreements for the purchase,
acquisition or receipt from the Company of any shares of capital stock or any
other securities of the Company. The Company is not a party to any existing
agreement with any person or entity which requires the Company to purchase from
such person or entity any of its capital stock, any securities convertible into
or exchangeable or exercisable for any of its capital stock, or any right,
options or warrants for its capital stock. All outstanding securities of the
Company, including the Series M Shares, have been issued in accordance with all
applicable state and federal securities laws.
3.3 Corporate Power; Authorization. The Company has all requisite legal and
corporate power to enter into this Agreement, to issue and sell the Series M
Shares as provided hereunder, and to carry out and perform its obligations under
the terms of this Agreement. All corporate action on the part of the Company and
its officers, directors and stockholders that is necessary for the
authorization, execution and delivery of this Agreement by the Company, for the
performance of the Company's obligations hereunder and for the issuance and
delivery of the Series M Shares has been taken; and this Agreement constitutes a
legal and binding obligation of the Company, enforceable against the Company in
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accordance with its terms, subject to: (i) judicial principles respecting or
limiting the availability of specific performance, injunctive relief and other
equitable remedies; and (ii) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect generally relating to or
affecting creditors' rights.
3.4 Validity of Securities. The Series M Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid and nonassessable and will be free and clear of any
liens, encumbrances or restrictions of any kind; provided, however, that the
Series M Shares may be subject to restrictions on transfer under state and
federal securities laws. The Common Stock issuable upon conversion of the Series
M Shares has been duly and validly reserved and, upon issuance in accordance
with the terms of this Agreement and the Certificate of Incorporation, will be
duly and validly issued, fully paid and nonassessable and will be free and
clear of any liens, encumbrances or restrictions of any kind; provided, however,
that the Common Stock may be subject to restrictions on transfer under state and
federal securities laws.
3.5 Litigation. There is no action, suit or proceeding pending or, to the
knowledge of the Company, threatened against the Company or related to the
business conducted by the Company. The Company is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Company currently pending or which the Company intends to
initiate.
3.6 Employee Benefit Plans. Except for the Company's 401(k) Plan, short-term
and long-term disability plans, prescription drug plans, and medical, dental and
life insurance plans, the Company does not have any Employee Benefit Plan as
defined in the Employee Retirement Income Security Act of 1974.
SECTION 4
REPRESENTATIONS, WARRANTIES OF THE PURCHASER
AND RESTRICTIONS ON TRANSFER IMPOSED BY THE ACT
4.1 Representations and Warranties. The Purchaser hereby represents and
warrants to the Company as follows:
4. 1.1 Authorization. (a) All action on the part of the Purchaser
necessary for the execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby has been taken and,
assuming due execution and delivery by the Company, this Agreement constitutes a
legal, valid, binding and enforceable obligation of the Purchaser, subject to:
(i) judicial principles respecting or limiting the availability of specific
performance, injunctive relief, and other equitable remedies; and (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect generally relating to or affecting creditors' rights.
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(b) The Purchaser represents and warrants that: (i) the Purchaser is
an existing entity, and has not been organized or reorganized for the purpose of
making this investment, (ii) the undersigned has the authority to execute this
Agreement and any other documents in connection with an investment in the Series
M Shares on the Purchaser's behalf, and (iii) the Purchaser has the power, right
and authority to invest in the Series M Shares and enter into the transactions
contemplated hereby, and the investment is suitable and appropriate for the
Purchaser (given the risks and illiquid nature of the investment).
4.1.2 Investment.
(a) The Purchaser has been advised that the Series M Shares have not
been registered under the Securities Act of 1933, as amended (the "Act"), or
registered or qualified under any applicable state securities laws on the ground
that no distribution or public offering of the Series M Shares is to be
effected, and that in this connection the Company is relying in part on the
representations of the Purchaser set forth in this Section 4;
(b) The Purchaser has been further advised that no public market now
exists for any of the securities issued by the Company and that a public market
may never exist for the Series M Shares;
(c) The Purchaser is purchasing the Series M Shares for its own
account and not for any other person;
(d) By reason of its business or financial experience, the Purchaser
has the capacity to protect its own interest in connection with the transactions
contemplated hereunder, is able to bear the risks of an investment in the
Company, and could afford a complete loss of such investment;
(e) The Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Series M Shares; and
(f) The Purchaser has had the opportunity to ask questions regarding
the Company and the Company has provided information in response to the
questions.
4.1.3 Federal Securities Law. In order to enable the Company to
determine whether the sale of the Series M Shares is exempt from registration
under the Act, such Purchaser represents that it is an Accredited Investor (as
defined in Schedule 4.1.3 hereof) and is acquiring the Series M Shares for its
own account, for investment, and not with a view to, or for sale in connection
with, any distribution thereof.
4.2 Transfer of Securities. Neither the Series M Shares nor the shares of
Common Stock issuable upon conversion of the Series M Shares shall be
transferable except upon the conditions specified in this Section 4.2, which
conditions are intended to insure compliance with the provisions of the Act with
respect to the transfer of such securities.
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4.2.1 Legend. Unless and until otherwise permitted by this Section
4.2, each certificate representing (i) the Series M Shares or (ii) the Company's
Common Stock issued upon conversion of the Series M Shares, will be endorsed
with a legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS, (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (B) THE COMPANY HAS BEEN FURNISHED WITH AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT
SUCH SALE, PLEDGE OR TRANSFER IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID SECURITIES ACT AND
ANY APPLICABLE STATE SECURITIES LAWS."
4.2.2 Restrictions on Transfer. The Series M Shares and the Common
Stock issuable upon the conversion of the Series M Shares shall not be sold,
assigned, pledged or transferred, and the Company shall not be required to
register any such sale, assignment, pledge or transfer, unless and until one of
the following events shall have occurred:
(a) the Company shall have received an opinion of counsel, in form and
substance reasonably acceptable to the Company and its counsel, stating that the
contemplated transfer is exempt from registration under the Act as then in
effect, and the Rules and Regulations of the Securities and Exchange Commission
(the "Commission") thereunder and any applicable state securities laws;
(b) the Company shall have been furnished with a letter from the
Commission in response to a written request in form and substance acceptable to
counsel for the Company setting forth all of the facts and circumstances
surrounding the contemplated sale, assignment, pledge or transfer, stating that
the Commission will take no action with regard to the contemplated sale,
assignment, pledge or transfer; or
(c) the Series M Shares, or the Common Stock issuable upon conversion
of the Series M Shares, are transferred pursuant to a registration statement
which has been filed with the Commission and has become effective.
Within five business days after delivery to the Company and its counsel
of an opinion described in clause (a) above, the Company either shall deliver to
the proposed transferor a statement to the effect that such opinion is not
satisfactory in the reasonable opinion of its counsel (and shall specify in
detail the legal analysis supporting any such
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conclusion) or shall authorize the Company's transfer agent to make the
requested transfer.
4.2.3 Termination of Restrictions and Removal of Legend. The
restrictions on transfer imposed by this Section 4.2 shall cease and terminate
as to the Series M Shares and the Common Stock issuable upon conversion of the
Series M Shares, when (i) such securities (as applicable) shall have been
effectively registered under the Act and sold by the holder thereof in
accordance with such registration, or (ii) an acceptable opinion as described in
Section 4.2.2(a) or a "no action" letter described in Section 4.2.2(b) states
that all future transfers of such securities by the TRANSFEROR OR THE
CONTEMPLATED transferee would be exempt from registration under the Act. When
the restrictions on transfer contained in this Section 4.2 have terminated as
provided above, the holder of the securities as to which such restrictions shall
have terminated or the transferee of such holder shall be entitled to receive
promptly from the Company, without expense to him, new certificates not bearing
the legends set forth in Section 4.2.1 hereof.
SECTION 5
CONDITIONS TO OBLIGATIONS OF THE PURCHASER
The obligation of the Purchaser to purchase the Series M Shares at the
Closing is subject to each of the following conditions having been fulfilled on
or prior to the Closing Date or waived by the Purchaser in accordance with the
provisions of Section 9.1 hereof:
5.1 Representations and Warranties Correct; Performance of Obligations.
The representations and warranties made by the Company in Section 3 hereof shall
be true and correct when made, and shall be true and correct on the Closing Date
with the same force and effect as if they had been made on and as of the Closing
Date; and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the Closing Date.
5.2 Consents and Waivers. The Company shall have obtained any and all
consents, permits and waivers and made all filings necessary or appropriate for
consummation of the transactions contemplated by this Agreement.
5.3 Certificate of Incorporation. The Certificate of Incorporation
shall have been filed with the Secretary of State of the State of Delaware.
5.4 Minimum Proceeds. The Company shall have raised at least $850,000
pursuant to its proposed sale of the Series B Shares.
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5.5 Recapitalization. The Recapitalization shall have been completed such
that immediately prior to or simultaneously with the Closing the Company shall
have no outstanding Series A Preferred Stock and the Company shall have no
further obligations pursuant to its 15.0% Subordinated Debentures or the
promissory note issued to Millipore Corporation.
SECTION 6
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The Company's obligation to issue, sell and deliver the series M Shares
at the Closing is subject to the following conditions having been fulfilled on
or prior to the Closing Date or waived by the Company in accordance with the
provisions of Section 9.1 hereof: The representations and warranties made by the
Purchaser in Section 4 hereof shall be true and correct when made, and shall be
true and correct on the Closing Date with the same force and effect as if they
had been made on and as of the Closing Date, the conditions set forth in
Sections 5.2, 5.3, 5.4 and 5.5 hereof shall have been satisfied and the
Purchaser shall have executed and delivered to the Company the Release Agreement
substantially in the form of Exhibit B attached thereto and shall have complied
with all of the terms of the Release Agreement.
SECTION 7
RIGHT OF FIRST OFFER AND COVENANTS OF THE COMPANY
7.1 Right of First Offer.
(a) Subject to the terms and conditions specified in this Section 7.
1, the Company hereby grants to the Purchaser a right to participate in future
sales by the Company of its Shares (as hereinafter defined).
(b) Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of a portion
of such Shares (as determined in subsection (2) below) to the Purchaser in
accordance with the following provisions:
(1) The Company shall deliver a written notice ("Notice") to
the Purchaser stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii)
the price and terms, if any, upon which it proposes to offer such
Shares.
(2) Within 10 calendar days after receipt of the Notice, the
Purchaser may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares
which equals the proportion that the number of shares of Common
Stock
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held by such Purchaser (including for such calculation any shares
issuable upon conversion of any capital stock convertible into
Common Stock) bears to the total number of shares of Common Stock
of the Company then outstanding held by the Purchaser and all
other persons who have been granted a right of first offer
(assuming for such calculation any shares issuable upon conversion
of any capital stock convertible into common stock).
(3) The Company may during the 10-day period following the
expiration of the 10-day period provided in subsection (2)
hereof, offer the remaining unsubscribed portion of such Shares
which the Purchaser has not elected to purchase to any person or
persons at a price not less than, and upon terms no more favorable
to the offeree than those specified in the Notice. If the Company
does not enter into an agreement for the sale of the Shares within
90 days of the expiration of such 10-day period, or if such
agreement is not consummated within 120 days following the
expiration of such 10-day period, the right provided hereunder
shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Purchaser in accordance herewith.
(4) The right of first offer in this Section 7. 1 shall not
be applicable (i) to the issuance or sale of shares of Common
Stock (as adjusted to reflect any stock splits, combinations or
other events involving the Common Stock) to employees, consultants
or members of the Board of Directors pursuant to employee or
director stock plans which are approved in writing by the
Company's Board of Directors, (ii) to the Public Offering (as
defined in Section 7.3 hereof) or to any offering of Shares after
consummation of the Public Offering, (iii) to the issuance of
securities pursuant to the conversion or exercise of presently
outstanding convertible or exercisable securities, (iv) to any
Common Stock issued upon conversion of the Series B Preferred
Stock, the Series M Preferred Stock or other series of Preferred
Stock issued pursuant to the Certificate of Incorporation, (v) to
securities issued in connection with any acquisition or business
combination transaction approved by the Board of Directors of the
Company, or (vi) to securities issued in connection with equipment
lease financings or other financings with commercial lenders or in
strategic transactions involving, the Company and other entities
including joint ventures or marketing, distribution or development
arrangements, in each case provided that any issuance pursuant to
subsection (vi) has been approved by the Board of Directors of the
Company.
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7.2 Covenants.
(a) Taxes. The Company will promptly pay and discharge, or cause
to be paid and discharged, when due and payable, all lawful taxes, assessments,
and governmental charges or levies imposed upon the income, profits, property,
or business of the Company; provided, however, that any such tax, assessment,
charge, or levy need not be paid if the validity thereof shall currently be
contested in good faith by appropriate proceedings and if the Company shall have
set aside on its books adequate reserves with respect thereof.
(b) Maintain Properties. The company will keep its properties in
good repair, working order, and condition, reasonable wear and tear excepted,
and from time to time will make all necessary and proper repairs, renewals,
replacements, additions, and improvements thereto.
(c) Maintain Corporate Existence. The Company shall maintain in
full force and effect its corporate existence, rights, and franchises and all
material licenses and other material rights to use processes, licenses,
trademarks, trade names, or copyrights owned or possessed by it and deemed by
the Company to be necessary to the conduct of its business.
(d) Insurance. The Company will maintain insurance of the types
and in the amounts generally deemed adequate for its business.
(e) Limit on Expenditures. Without the approval in writing, of the
Company's Board of Directors, the Company will not make or incur any expenditure
(including, without limitation, capital expenditures, acquisitions and
capitalized leases) or guarantee, assume or otherwise become directly or
indirectly liable for any indebtedness (including capitalized leases) which,
individually or in combination with related expenditures, guarantees or
assumptions subject to a common commitment, exceed $250,000.
(f) Financial Information. As long as the Purchaser continues to
hold Series M Shares or Common Stock issued upon conversion thereof, the Company
shall deliver as soon as practicable (i) after the end of each fiscal year of
the Company, and in any event with 90 days thereafter, an audited consolidated
balance sheet of the Company as of the end of such year and audited consolidated
statements of income, stockholders' equity and cash flows for such year, which
year-end financial reports shall be prepared in accordance with generally
accepted accounting principles and (ii) after the end of each of the first three
fiscal quarters of each year, and in any event within 45 days after the end of
each such fiscal quarter, unaudited quarterly financial statements, which
quarterly statements shall be prepared in accordance with generally accepted
accounting principles.
7.3 Termination. The right of first offer set forth in Section 7.1 and
the covenants set forth in Section 7.2 hereof shall terminate upon the earlier
to occur of (i) the closing of a public offering pursuant to an effective
registration statement under the
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Securities Act of 1933, as amended, covering the offer and sale of the
Company's Common Stock where the gross proceeds to the Company are not
less than $7,500,000, where the public offering price is not less than $0.75
per share (adjusted to reflect any stock splits, combinations or similar events
after the date hereof) and which results in the Company's Common Stock being
traded on an exchange or quoted on the National Association of Securities
Dealers, Inc. Automated quotation ("NASDAQ") or quoted on the NASDAQ National
Market System (the "Public Offering") and (ii) the closing of the Company's
sale of all or substantially all of its assets or the acquisition of the
Company by another entity by means of merger or consolidation resulting in the
exchange of the outstanding shares of the Company's capital stock for
securities or consideration issued, or caused to be issued, by the acquiring
entity or its subsidiary.
7.4 Right of First Refusal on the Purchaser's Shares.
7.4.1 If the Purchaser wishes to transfer any securities of the
Company issued to such person at any time except in a Permitted Transfer, the
Purchaser shall do so only for cash, unsecured promissory notes, cash
equivalents, or a combination of the foregoing, and shall first give written
notice (the "Offer Notice") to the Company, identifying the securities proposed
to be transferred (the "Offered Securities"), identifying the proposed
transferee, and stating the price at which, and other material terms on which,
the Purchaser wishes to transfer the Offered Securities, including the date of
the proposed transfer.
7.4.2 Delivery of an Offer Notice to the Company shall constitute
an offer to transfer the Offered Securities, in whole but not in part (the
"Offer"), to the Company pursuant to this Section 7.4, at the price and on the
other material terms described in the Offer Notice.
7.4.3 The Company may elect, by written notice delivered to the
Purchaser not later than fourteen calendar days after the Company receives the
Offer Notice, to accept the Offer with respect to all of the Offered Securities.
7.4.4 If the Company elects to accept an Offer in its entirety,
then the Purchaser shall transfer the Offered Securities to the Company and the
Company shall acquire the Offered Securities, at the price and on the other
material terms described in the Offer Notice. The consummation of the transfer
shall take place at the chief executive offices of the Company, on the date
specified for the proposed transfer in the Offer Notice (but not earlier than
thirty-four calendar days after the Company shall have received the Offer
Notice), or at such other location or date on which the participants in the
transaction agree in writing.
7.4.5 If the Company does not accept an Offer in its entirety,
then the Purchaser may transfer the Offered Securities (subject to the
provisions of this Agreement other than this Section 7.4 and to any other
agreements binding on the Purchaser) to the transferee named in the Offer
Notice, at any time within the period of ninety calendar days beginning on the
date the Company received the Offer Notice. The
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provisions of this Section 7.4 shall again apply to any transfer of Offered
Securities not transferred within such period.
7.4.6 A "Permitted Transfer" is a transfer of securities to a
Permitted Transferee if, prior to the consummation of the transfer, the
Permitted Transferee shall have agreed in writing to be bound as a party to this
Agreement by all the terms of this Agreement applicable to the Purchaser. A
"Permitted Transferee" means any of:
(a) the spouse or a lineal ancestor or descendant (whether
natural or adopted) of the transferor;
(b) a trust all the beneficiaries (primary and contingent) of
which are either the transferor or the spouse or a lineal ancestor
or descendant (natural or adopted) of the transferor; or
(c) a partner in a transferor which is a partnership, or a
stockholder of a transferor which is a limited liability company,
which person receives the transfer as part of a distribution among
partners, stockholders, or members, as the case may be, of the
transferor.
SECTION 8
REGISTRATION RIGHTS
The Company covenants and agrees as follows:
8.1 Definitions. For purposes of this Section 8:
(a) The term "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Series B Preferred Stock or the
Series M Preferred Stock and (ii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, such Series B Preferred Stock or Series M
Preferred Stock, other Preferred Stock or Common Stock; provided, however, that
Common Stock or other securities shall only be treated as Registrable Securities
if and so long as (1) they have not been sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction, and
(2) they have not been sold in a transaction exempt from the registration and
prospectus delivery requirements of the Act under Section 4(1) thereof so that
all transfer restrictions
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and restrictive legends with respect thereto are removed upon the consummation
of such sale;
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities;
(d) The term "Holder" means any person who is the record owner of
Registrable Securities, the Series B Shares Or the Series M Shares, or any
assignee thereof in accordance with Section 8.12 hereof; and
(e) The term "SEC" means the Securities and Exchange Commission or
any other federal agency at the time administering the Act.
8.2 Company Registration. If (but without any obligation to do so) the
Company proposes to register any of its stock or other securities under the Act
in connection with the public offering of such securities solely for cash (other
than a registration relating solely to the sale of securities to participants in
a Company stock plan, or a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a SEC
Rule 145 transaction), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within fifteen (15) days after mailing of such notice by the
Company in accordance with Section 9.5, the Company shall, subject to the
provisions of Sections 8.4, 8.5, 8.6 and 8.7, cause to be registered under the
Act all of the Registrable Securities that each such Holder has requested to be
registered. Notwithstanding the foregoing, after the Company's initial public
offering, the Company will not be required to give notice to the Holders of
Registrable Securities if the underwriters managing the proposed offering have
advised the Company in writing that in their judgment market conditions will not
allow the inclusion of any secondary shares in such offering. In the event the
managing underwriters and the Company subsequently determine to add any
secondary shares in the offering, such notice shall be provided, and each Holder
shall have the registration rights provided in this Section 8.
8.3 Demand Registration. Subject to the terms of this Agreement, in the
event that the Company shall receive from the Holders of at least thirty percent
(30%) of the Registrable Securities then outstanding, at any time after six (6)
months after the effective date of the registration statement covering the
Company's initial public offering, a written notice that it or they intend to
offer or cause to be offered for public sale at least twenty-five percent (25 %)
of the Registrable Securities then outstanding (or any lesser percentage if the
aggregate offering price to the public is greater than $5,000,000), the Company
will so notify all Holders. Upon written request of any Holder given within
fifteen (15) days after the receipt by such Holder from the Company of such
notification, the Company will use its best efforts to cause such of the
Registrable Securities as may be requested by any Holder (including the Holder
giving the initial notice of intent to offer) to
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be registered under the Securities Act as expeditiously as possible (a "Demand
Registration"). The Company shall not be required to effect more than one (1)
Demand Registration. If (i) in the good faith judgment of the Board of Directors
of the Company, a Demand Registration would be materially detrimental to the
Company and the Board of Directors of the Company concludes, as a result, that
it is essential to defer the filing of such registration statement at such time,
and (ii) the company shall furnish to each Holder a certificate signed by the
President of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be materially detrimental to the Company
for such registration statement to be filed in the near future, then the Company
shall have the right to defer such filing for the period during which such
Demand Registration would be materially detrimental, provided that the Company
may not defer the filing for a period of more than ninety (90) days after
receipt of the request for a Demand Registration, and more than once in any
12-month period.
8.4 Obligations of the Company. Whenever required under Section 8.2 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to 90 days or until all of the
securities registered thereunder are sold, whichever occurs sooner.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in Such underwriting shall also enter into and perform its obligations under
such an agreement.
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(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
8.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 8 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
8.6 Underwriting Requirements. In connection with any offering involving
an underwriting of shares of the Company's capital stock, the Company shall
not be required under Section 8.2 to include any of the Holders'
securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by the persons entitled to select the underwriters, and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by Holders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among all selling stockholders according to
the total amount of securities owned by each selling stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholders).
For purposes of the preceding parenthetical concerning apportionment, for any
selling stockholder which is a holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and stockholders of
such holder, or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing persons
shall be deemed to be a single "selling stockholder" and any pro-rata
reduction with respect to such "selling stockholder" shall be based upon the
aggregate amount of shares owned by all entities and individuals included
in such "selling stockholder," as defined in this sentence.
8.7 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 8.
8.8 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 8:
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(a) To the extent permitted by law, tile Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, or the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or '
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, or the 1934 Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by one law
firm retained by them (or such additional law firms retained by a Holder or
Holders if such Holder or Holders reasonably believe there exists a conflict of
interest among them) in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 8.8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any loss, claim, damage, liability or action to the extent that it arises
out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the 1934 Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 8.8(b), in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
8.8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity
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under this subsection 8.8(b) exceed the net proceeds from the offering received
by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 8.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 8.8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
8.8, but the failure to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 8.8.
(d) The obligations of the Company and Holders under this Section
8.8 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 8, and otherwise.
8.9 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration, the
Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), (ii) a copy of
the most recent annual or quarterly report of the Company and
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such other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration or pursuant to such form.
8.10 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders of the Registrable Securities then Outstanding a written
request or requests that the Company effect a registration on Form S-3 for a
public offering the aggregate offering price of which would exceed $1,000,000,
the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 8.10: (i) if
Form S-3 is not available for such offering by the Holders; (ii) if the Company
shall furnish to the Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company it would be detrimental to the Company and its stockholders for such
Form S-3 Registration to be effected at such time, in which event the Company
shall have the right to defer the filing of the Form S-3 registration statement
for a period of not more than ninety (90) days after receipt of the request of
the Holder or Holders under this Section 8.10; (iii) if the Company has, within
the twelve (12) month period preceding the date of such request, already
effected two registrations for the Holders pursuant to Section 8.2, 8.3 or this
Section 8.10; or (iv) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders.
8.11 Expenses of Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to a total of three registrations,
whether pursuant to Section 8.2, 8.3 or 8.10 or a combination thereof, including
(without limitation) all registration, filing, and qualification fees, printers
and accounting fees relating or apportionable thereto and the fees and
disbursements of one counsel for the selling Holders selected by them (which the
Company may request be the Company's counsel if such counsel is reasonably
acceptable to
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such selling Holders), but excluding underwriting discounts and commissions and
stock transfer taxes relating to Registrable Securities.
8.12 Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Section 8 may only be
assigned to a purchaser, assignee or transferee of the underlying Registrable
Securities.
8.13 "Market Stand-Off' Agreement. Each Purchaser hereby agrees that
for a period of 180 days following the effective date of the first registration
statement of the Company covering common stock filed on Form S-1 under the Act
and for any registration effected pursuant to Sections 8.2, 8.3 or 8.10
(provided the Holders are given written notice of the offering at least fifteen
(15) days prior to the Company's filing with the SEC of a registration statement
relating thereto), it shall not, unless otherwise agreed by the Company and the
managing I underwriters, directly or indirectly sell, offer to sell,' contract
to sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to
be similarly bound) any securities of the Company held by it at any time during
such period except Common Stock included in such registration; provided,
however, that all officers and directors of the Company and all other persons
with registration rights (whether or not pursuant to this Agreement) enter into
similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Purchaser (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
8.14 Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the outstanding Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company which would allow such holder or prospective holder to include such
securities in any registration filed under Section 8.2, 8.3 or 8.10 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included.
8.15 Amendment of Registration Rights. Any provision of this Section 8
may be amended and the observance thereof may be waived (either generally *or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any Registrable Securities
then outstanding, each future holder of all such Registrable Securities, and the
Company.
8.16 Termination. The rights provided in this Section 8 shall terminate
on the fifth anniversary of the closing of the Company's initial public offering
pursuant to
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which the Company registers shares of Common Stock under the Act and following
shortly thereafter or concurrently therewith registers its Common Stock under
the 1934 Act.
SECTION 9
MISCELLANEOUS
9.1 Waivers and Amendments. Except as to Section 8 in which case the
provisions of Section 8.15 shall apply, with the written consent of the record
or beneficial holders of more than 50% of the aggregate of (i) the then
outstanding number of shares of the Series M Shares (treated as if converted to
Common Stock) and (ii) all shares of Common Stock obtained upon conversion of
the Series M Shares, the obligations of the Company and the rights of the
holders of Series M Shares and the Common Stock obtained upon conversion of the
Series M Shares under this Agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its board of directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such waiver or supplemental agreement shall reduce
the aforesaid percentages which are required to consent to any waiver or
supplemental agreement, without the unanimous consent of the record or
beneficial holders of all of the then outstanding number of shares of the Series
M Shares or the shares of Common Stock obtained upon conversion of the Series M
Shares. Upon the effectuation of each such waiver, consent, agreement of
amendment or modification, the Company promptly shall give written notice
thereof to the record holders of the then outstanding Series M Shares and the
shares of Common Stock obtained upon conversion of the Series M Shares. This
Agreement or any provision hereof may not be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 9.1; provided, however,
that the conditions to Closing contained in Section 5 of this Agreement may only
be waived by the Purchaser for itself.
9.2 Governing Law. This Agreement shall be governed in all respect's by
the laws of the State of Delaware as such laws are applied to agreements between
Delaware residents entered into and to be performed entirely within Delaware.
9.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
9.4 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
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9.5 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon the seventh day following mailing by registered
air mail, postage prepaid, addressed (a) if to the Purchaser, as indicated on
the signature page hereto, or at such other address as it shall have furnished
to the Company, (b) if to the Company, to B.I. Systems Corporation, 000 Xxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxx, 00000, and addressed to the attention of the
corporate secretary, or at such other address as the Company shall have
furnished to the Purchaser, or (c) if to any other holder of the Series M Shares
or of Common Stock issued upon conversion of the Series M Shares at such address
as such holder shall have furnished to the Company in writing, or, until such
holder so furnishes an address to the Company, then to and at the address of the
last holder of such Series M Shares or shares of Common Stock issued upon
conversion of the Series M Shares, who so furnished an address to the Company.
In addition, any notice delivered to an address outside the United States shall
be duplicated by counterpart telex notice (if available).
9.6 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any securities issued or sold or to be
issued or sold hereunder, upon any breach or default of the Company under this
Agreement shall impair any such right, power or remedy of such holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any holder of any breach or
default under this Agreement, or any waiver on the part of any holder of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
9.7 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, it shall be modified in such manner as to be
valid, legal, and enforceable but so as to most nearly retain the intent of the
parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
9.8 Titles and Subtitles. The titles and subtitles of this Agreement
are intended for reference and shall not by themselves determine the
construction or interpretation of this Agreement.
9.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.10 Expenses. The Company and each Purchaser shall pay its own costs
and expenses in connection with the negotiation, execution, delivery and
performance of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective representatives thereunto duly authorized as of the
day and year first above written.
B.I. SYSTEMS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
MILLIPORE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name:
Title:
Address:
SIGNATURE PAGE TO SERIES M STOCK PURCHASE AGREEMENT
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