EXHIBIT 4.13
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of March 11,
1998, by and among Angeion Corporation, a Minnesota corporation, with
headquarters located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000 ("COMPANY"), and the purchaser set forth on the signature page
hereto (the "BUYER").
WHEREAS:
A. The Company and the Buyer are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 under Regulation D ("REGULATION D") as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "1933 ACT");
B. The Company has authorized the issuance to the Buyer of (i) a
convertible senior note of the Company, in the form attached hereto as EXHIBIT
"A", in the aggregate principal amount of Five Million Dollars ($5,000,000),
convertible into shares of common stock, $.01 par value per share, of the
Company (the "COMMON STOCK"), upon the terms and subject to the limitations and
conditions set forth in such note (collectively, together with any note(s)
issued in replacement thereof or as a dividend thereon or otherwise with respect
thereto in accordance with the terms thereof, the "NOTE") and (ii) warrants, in
the form attached hereto as EXHIBITS "B-1", "B-2" and "B-3" to purchase an
aggregate of Nine Hundred Seventy Thousand (970,000) shares of Common Stock (the
"WARRANTS");
C. The Buyer desires to purchase and the Company desires to issue and
sell, upon the terms and conditions set forth in this Agreement, the Note and
Warrants, for an aggregate purchase price of Five Million Dollars ($5,000,000);
D. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement,
in the form attached hereto as EXHIBIT "C" (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company has agreed to provide certain
registration rights under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws; and
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF NOTE AND WARRANTS.
a. Purchase of Note and Warrants. The Company shall
issue and sell to the Buyer and the Buyer agrees to purchase
from the Company such principal amount of Note and number of
Warrants for the aggregate purchase price (the "PURCHASE
PRICE") as is set forth immediately below such Buyer's name on
the signature page hereto. The aggregate principal amount of
the Note to be issued at the Closing (as defined below) is
Five Million Dollars
($5,000,000) and the aggregate number of Warrants to be issued
at the Closing is Nine Hundred Seventy Thousand (970,000), for
an aggregate purchase price of Five Million Dollars
($5,000,000).
b. Form of Payment. On the Closing Date (as defined
below), (i) the Buyer shall pay the Purchase Price for the
Note and the Warrants to be issued and sold to it at the
Closing (as defined below) by wire transfer of immediately
available funds to the Company, in accordance with the
Company's written wiring instructions, against delivery of the
Note in the principal amount equal to the Purchase Price and
the number of Warrants as is set forth immediately below such
Buyer's name on the signature page hereto, and (ii) the
Company shall deliver such Note and Warrants duly executed on
behalf of the Company, to the Buyer, against delivery of such
Purchase Price.
c. Closing Date. Subject to the satisfaction (or
waiver) of the conditions thereto set forth in Section 6 and
Section 7 below, the date and time of the issuance and sale of
the Note and the Warrants pursuant to this Agreement (the
"CLOSING DATE") shall be 12:00 noon, Eastern Standard Time on
March 11, 1998 or such other mutually agreed upon time. The
closing of the transactions contemplated by this Agreement
(the "CLOSING") shall occur on the Closing Date at the offices
of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000, or at such other location as may be
agreed to by the parties.
2. BUYER'S REPRESENTATIONS AND WARRANTIES. The Buyer
represents and warrants to the Company solely as to such Buyer that:
a. Investment Purpose. As of the date hereof, the
Buyer is purchasing the Note and the shares of Common Stock
issuable upon conversion thereof (the "CONVERSION SHARES") and
the Warrants and the shares of Common Stock issuable upon
exercise thereof (the "WARRANT SHARES" and, collectively with
the Note, Warrants and Conversion Shares the "SECURITIES") for
its own account for investment only and not with a present
view towards the public sale or distribution thereof, except
pursuant to sales registered or exempted from registration
under the 1933 Act.
b. Accredited Investor Status. The Buyer is an
"accredited investor" as that term is defined in Rule 501(a)
of Regulation D.
c. Reliance on Exemptions. The Buyer understands that
the Securities are being offered and sold to it in reliance
upon specific exemptions from the registration requirements of
United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and the
Buyer's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Buyer
set forth herein in order to determine the availability of
such exemptions and the eligibility of the Buyer to acquire
the Securities.
d. Information. The Buyer and its advisors have been
furnished with all materials relating to the business,
finances and operations of the Company and materials relating
to the offer and sale of the Securities which have been
requested by the Buyer or its advisors. The Buyer and its
advisors have been afforded the opportunity to ask questions
of the Company and have received what the Buyer believes to be
satisfactory answers to any such inquiries. Neither such
inquiries nor any other due diligence investigation conducted
by Buyer or any of its advisors or representatives shall
modify, amend or affect Buyer's right to rely on the Company's
representations and warranties contained in Section 3 below.
The Buyer understands that its investment in the Securities
involves a significant degree of risk.
e. Governmental Review. The Buyer understands that no
United States federal or state agency or any other government
or governmental agency has passed upon or made any
recommendation or endorsement of the Securities.
f. Transfer or Resale. The Buyer understands that (i)
except as provided in the Registration Rights Agreement, the
Securities have not been and are not being registered under
the 1933 Act or any applicable state securities laws, and may
not be transferred unless (a) subsequently included in an
effective registration statement thereunder, (b) the Buyer
shall have delivered to the Company an opinion of counsel
(which opinion shall be reasonably acceptable to the Company)
to the effect that the Securities to be sold or transferred
may be sold or transferred pursuant to an exemption from such
registration, (c) sold or transferred to an "affiliate" (as
defined in Rule 144 promulgated under the 1933 Act (or a
successor rule) ("RULE 144")) or (d) sold pursuant to Rule
144; (ii) any sale of such Securities made in reliance on Rule
144 may be made only in accordance with the terms of said Rule
and further, if said Rule is not applicable, any resale of
such Securities under circumstances in which the seller (or
the person through whom the sale is made) may be deemed to be
an underwriter (as that term is defined in the 0000 Xxx) may
require compliance with some other exemption under the 1933
Act or the rules and regulations of the SEC thereunder; and
(iii) neither the Company nor any other person is under any
obligation to register such Securities under the 1933 Act or
any state securities laws or to comply with the terms and
conditions of any exemption thereunder (in each case, other
than pursuant to the Registration Rights Agreement).
Notwithstanding the foregoing or anything else contained
herein to the contrary, the Securities may be pledged as
collateral in connection with a bona fide margin account or
other lending arrangement.
g. Legends. The Buyer understands that the Note and
the Warrants and, until such time as the Conversion Shares and
Warrant Shares have been registered under the 1933 Act as
contemplated by the Registration Rights Agreement, the
Conversion Shares and Warrant Shares, may bear a restrictive
legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the
certificates for such Securities):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
securities have been acquired for investment and may not be
sold, transferred or assigned in the absence of an effective
registration statement for the securities under said Act, or
an opinion of counsel, in form, substance and scope reasonably
acceptable to the Company, that registration is not required
under said Act or unless sold pursuant to Rule 144 under said
Act."
The legend set forth above shall be removed and the Company
shall issue a certificate without such legend to the holder of any
Security upon which it is stamped, if, unless otherwise required by
applicable state securities laws, (a) such Security is registered for
sale under an effective registration statement filed under the 1933
Act, or (b) such holder provides the Company with an opinion of
counsel, in form, substance and scope reasonably acceptable to the
Company, to the effect that a public sale or transfer of such Security
may be made without registration under the 1933 Act and such sale or
transfer is effected or (c) such holder provides the Company with
reasonable assurances that such Security can be sold pursuant to Rule
144 under the 1933 Act (or a successor rule thereto) without any
restriction as to the number of Securities acquired as of a particular
date that can then be immediately sold. The Buyer agrees to sell all
Securities, including those represented by a certificate(s) from which
the legend has been removed, in compliance with applicable prospectus
delivery requirements, if any.
h. Authorization; Enforcement. This Agreement and the
Registration Rights Agreement have been duly and validly
authorized, executed and delivered on behalf of the Buyer and
are valid and binding agreements of the Buyer enforceable in
accordance with their terms.
i. Residency. The Buyer is a resident of the
jurisdiction set forth immediately below such Buyer's name on
the signature pages hereto.
j. Trading in Common Stock. Neither the Buyer nor any
of its affiliates (as defined in Rule 144) has directly or
indirectly traded or taken a position in any equity security
(including by entering into any puts, calls or options) of the
Company prior to the date hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Buyer that except as disclosed in the schedules
to this Section 3:
a. Organization and Qualification. The Company and each of its
Subsidiaries (as defined below), if any, is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, with full power and authority
(corporate and other) to own, lease, use and operate its properties and
to carry on its
business as and where now owned, leased, used, operated and conducted.
SCHEDULE 3(A) sets forth a list of all of the Subsidiaries of the
Company and the jurisdiction in which each is incorporated. The Company
and each of its Subsidiaries is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which
the nature of the business conducted by it makes such qualification
necessary except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect. "MATERIAL ADVERSE
EFFECT" means any material adverse effect on the business, operations,
assets, financial condition or prospects of the Company or its
Subsidiaries, if any, taken as a whole, or on the transactions
contemplated hereby or by the agreements or instruments to be entered
into in connection herewith. "SUBSIDIARIES" means any corporation or
other organization, whether incorporated or unincorporated, in which
the Company owns, directly or indirectly, any equity or other ownership
interest.
b. Authorization; Enforcement. (i) The Company has all
requisite corporate power and authority to enter into and perform this
Agreement, the Registration Rights Agreement, the Note and the Warrants
and to consummate the transactions contemplated hereby and thereby and
to issue the Securities, in accordance with the terms hereof and
thereof, (ii) the execution and delivery of this Agreement, the
Registration Rights Agreement, the Note and the Warrants by the Company
and the consummation by it of the transactions contemplated hereby and
thereby (including without limitation, the issuance of the Note and the
Warrants and the issuance and reservation for issuance of the
Conversion Shares and Warrant Shares issuable upon conversion or
exercise thereof in accordance with the terms of this Agreement) have
been duly authorized by the Company's Board of Directors and no further
consent or authorization of the Company, its Board of Directors, or its
shareholders is required, (iii) this Agreement has been duly executed
and delivered by the Company, and (iv) this Agreement constitutes, and
upon execution and delivery by the Company of the Registration Rights
Agreement, the Note and the Warrants, each of such instruments will
constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
c. Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of (i) 50,000,000 shares of
Common Stock of which 33,156,443 shares are issued and outstanding,
3,371,582 shares are reserved for issuance pursuant to the Company's
stock option plans, 5,000,000 shares are reserved for issuance pursuant
to securities (other than the Note and the Warrants) exercisable for,
or convertible into or exchangeable for shares of Common Stock and
4,455,000 shares are reserved for issuance upon conversion of the Note
and exercise of the Warrants (subject to adjustment pursuant to the
Company's covenant set forth in Section 4(h) below); and (ii) 3,000,000
shares of preferred stock, of which 600,000 shares are designated Class
A Convertible Preferred Stock, $.01 par value per share and 300,000
shares are designated Series B Preferred Stock, $0.01 par value per
share. No shares of preferred stock are issued and outstanding. All of
such outstanding shares of capital stock are, or upon issuance will be,
duly authorized, validly issued, fully paid and nonassessable. Except
as set forth on SCHEDULE 3(C), no shares of capital stock of the
Company are subject to preemptive rights or any other similar rights of
the stockholders of the Company or any liens or
encumbrances imposed through the actions or failure to act of the
Company. Except as disclosed in SCHEDULE 3(C), as of the effective date
of this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe for, puts, calls, rights of first refusal,
agreements, understandings, claims or other commitments or rights of
any character whatsoever relating to, or securities or rights
convertible into or exchangeable for any shares of capital stock of the
Company or any of its Subsidiaries, or arrangements by which the
Company or any of its Subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its
Subsidiaries, and (ii) there are no agreements or arrangements under
which the Company or any of its Subsidiaries is obligated to register
the sale of any of its or their securities under the 1933 Act (except
the Registration Rights Agreement) and (iii) there are no anti-dilution
or price adjustment provisions contained in any security issued by the
Company (or in any agreement providing rights to security holders) that
will be triggered by the issuance of the Note, the Warrants, the
Conversion Shares or Warrant Shares. The Company has furnished to the
Buyer true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof ("CERTIFICATE OF
INCORPORATION"), the Company's By-laws, as in effect on the date hereof
(the "BY-LAWS"), and the terms of all securities convertible into or
exercisable for Common Stock of the Company and the material rights of
the holders thereof in respect thereto. The Company shall provide the
Buyer with a written update of this representation signed by the
Company's Chief Executive or Chief Financial Officer on behalf of the
Company as of the Closing Date.
d. Issuance of Shares. The Conversion Shares and Warrant
Shares are duly authorized and, upon issuance in accordance with the
terms of this Agreement (including the issuance of the Conversion
Shares upon conversion of the Note and the Warrant Shares upon exercise
of the Warrants in accordance with their respective terms) will be
validly issued, fully paid and non-assessable and shall not be subject
to preemptive rights or other similar rights of stockholders of the
Company except as set forth on SCHEDULE 3(C). The term Conversion
Shares and Warrant Shares includes the shares of Common Stock issuable
upon conversion of the Note or exercise of the Warrants, including
without limitation, such additional shares, if any, as are issuable as
a result of the events described in Sections 1.3 and 1.4(g) of the Note
and Section 2(b) of the Registration Rights Agreement. The Company
understands and acknowledges the potentially dilutive effect to the
Common Stock upon the issuance of the Conversion Shares and Warrant
Shares upon conversion or exercise of the Note or Warrants. The Company
further acknowledges that its obligation to issue Conversion Shares and
Warrant Shares upon conversion of the Note or exercise of the Warrants
in accordance with the terms and conditions of this Agreement, the Note
and the Warrants is absolute and unconditional regardless of the
dilutive effect that such issuance may have on the ownership interests
of other stockholders of the Company.
e. No Conflicts. The execution, delivery and performance of
this Agreement, the Registration Rights Agreement and the Warrants by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance and reservation for issuance of the Conversion Shares and
Warrant Shares) will not (i) conflict with or result in a violation of
any provision of the Certificate of Incorporation or By-laws or (ii)
violate or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which with notice or lapse of time or
both could become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its Subsidiaries
is a party, or result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities laws
and regulations) applicable to the Company or any of its Subsidiaries
or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a Material Adverse
Effect). Neither the Company nor any of its Subsidiaries is in
violation of its Certificate of Incorporation, By-laws or other
organizational documents and neither the Company nor any of its
Subsidiaries is in default (and no event has occurred which with notice
or lapse of time or both could put the Company or any of its
Subsidiaries in default) under, and neither the Company nor any of its
Subsidiaries has taken any action or failed to take any action that
would give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which the
Company or any of its Subsidiaries is a party or by which any property
or assets of the Company or any of its Subsidiaries is bound or
affected, except for possible defaults as would not, individually or in
the aggregate, have a Material Adverse Effect. The businesses of the
Company and its Subsidiaries, if any, are not being conducted, and
shall not be conducted so long as a Buyer owns any of the Securities,
in material violation of any law, ordinance or regulation of any
governmental entity. Except as specifically contemplated by this
Agreement and as required under the 1933 Act and any applicable state
securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any
court or governmental agency or any regulatory or self regulatory
agency in order for it to execute, deliver or perform any of its
obligations under this Agreement, the Registration Rights Agreement,
the Note or the Warrants in accordance with the terms hereof or
thereof. Except as disclosed in SCHEDULE 3(E), all consents,
authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence have been
obtained or effected on or prior to the date hereof. The Company is not
in violation of the listing requirements of the Nasdaq National Market
("NASDAQ") and has not received any notice from Nasdaq that the Common
Stock will be delisted by Nasdaq. The Company and its Subsidiaries are
unaware of any facts or circumstances which might give rise to any of
the foregoing.
f. SEC Documents; Financial Statements. Since July 31, 1995,
the Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC pursuant to
the reporting requirements of the Exchange Act of 1934, as amended (the
"1934 ACT") (all of the foregoing filed prior to the date hereof and
all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits) incorporated by reference
therein, being hereinafter referred to herein as the "SEC DOCUMENTS").
As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the
SEC Documents, at the time they were filed with the SEC, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. As of their respective dates, the financial
statements of the Company included in the SEC Documents complied as to
form in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles, consistently applied,
during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case
of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present
in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates thereof and
the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in the
financial statements of the Company included in the SEC Documents, the
Company has no liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to
July 31, 1997 and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in such
financial statements, which, individually or in the aggregate, are not
material to the financial condition or operating results of the
Company.
g. Absence of Certain Changes. Except as set forth in SCHEDULE
3(G), since July 31, 1997, there has been no material adverse change
and no material adverse development in the assets, liabilities,
business, properties, operations, financial condition, results of
operations or prospects of the Company or any of its Subsidiaries.
h. Absence of Litigation. There is no action, suit, claim,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its Subsidiaries,
threatened against or affecting the Company or any of its Subsidiaries
that could have a Material Adverse Effect. SCHEDULE 3(H) contains a
complete list and summary description of any pending or threatened
proceeding against or affecting the Company or any of its Subsidiaries,
without regard to whether it would have a Material Adverse Effect. The
Company and its Subsidiaries are unaware of any facts or circumstances
which might give rise to any action, suit, claim, proceeding, inquiry
or investigation including any pending or threatened proceeding.
i. Patents, Copyrights, etc. The Company and each of its
Subsidiaries owns or possesses the requisite licenses or rights to use
all patents, patent rights, inventions, know-how, trade secrets,
trademarks, service marks, service names, trade names and copyrights
("INTELLECTUAL PROPERTY") necessary to enable it to conduct its
business as now operated (and, except as set forth in SCHEDULE 3(I)
hereof, to the best of the Company's knowledge, as presently
contemplated to be operated in the future); there is no claim or action
by
any person pertaining to, or proceeding pending, or to the Company's
knowledge threatened which challenges the right of the Company or of a
Subsidiary with respect to any Intellectual Property necessary to
enable it to conduct its business as now operated (and, except as set
forth in SCHEDULE 3(I) hereof, to the best of the Company's knowledge,
as presently contemplated to be operated in the future); to the best of
the Company's knowledge, the Company's or its Subsidiaries, current and
intended products, services and processes do not infringe on any
Intellectual Property or other rights held by any person; and the
Company is unaware of any facts or circumstances which might give rise
to any of the foregoing. The Company and each of its Subsidiaries have
taken reasonable security measures to protect the secrecy,
confidentiality and value of their Intellectual Property.
j. No Materially Adverse Contracts, Etc. Except as set forth
in SCHEDULE 3(J), neither the Company nor any of its Subsidiaries is
subject to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation which in the judgment of
the Company's officers has or is expected in the future to have a
Material Adverse Effect. Neither the Company nor any of its
Subsidiaries is a party to any contract or agreement which in the
judgment of the Company's officers has or is expected to have a
Material Adverse Effect.
k. Tax Status. Except as set forth on SCHEDULE 3(K), the
Company and each of its Subsidiaries has made or filed all federal and
state income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject (unless and only to
the extent that the Company and each of its Subsidiaries has set aside
on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown
or determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on its
books provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim.
l. Certain Transactions. Except as set forth on SCHEDULE 3(L)
and except for arm's length transactions pursuant to which the Company
or any of its Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than the Company or any of its
Subsidiaries could obtain from third parties and other than the grant
of stock options disclosed on SCHEDULE 3(C), none of the officers,
directors, or employees of the Company is presently a party to any
transaction with the Company or any of its Subsidiaries (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services
to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any officer, director, or
any such employee has a substantial interest or is an officer,
director, trustee or partner.
m. Disclosure. All information relating to or concerning the
Company or any of its Subsidiaries set forth in this Agreement and
provided to the Buyer pursuant to Section 2(d) hereof and otherwise in
connection with the transactions contemplated hereby is true and
correct in all material respects and the Company has not omitted to
state any material fact necessary in order to make the statements made
herein or therein, in light of the circumstances under which they were
made, not misleading. No event or circumstance has occurred or exists
with respect to the Company or any of its Subsidiaries or its or their
business, properties, prospects, operations or financial condition,
which, under applicable law, rule or regulation, requires public
disclosure or announcement by the Company but which has not been so
publicly announced or disclosed (assuming for this purpose that the
Company's reports filed under the 1934 Act are being incorporated into
an effective registration statement filed by the Company under the 1933
Act).
n. Acknowledgment Regarding Buyer's Purchase of Securities.
The Company acknowledges and agrees that the Buyer are acting solely in
the capacity of arm's length purchasers with respect to this Agreement
and the transactions contemplated hereby. The Company further
acknowledges that no Buyer is acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to
this Agreement and the transactions contemplated hereby and any advice
given by any Buyer or any of their respective representatives or agents
in connection with this Agreement and the transactions contemplated
hereby is merely incidental to the Buyer's purchase of the Securities.
The Company further represents to each Buyer that the Company's
decision to enter into this Agreement has been based solely on the
independent evaluation of the Company and its representatives.
o. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly
or indirectly made any offers or sales in any security or solicited any
offers to buy any security under circumstances that would require
registration under the 1933 Act of the issuance of the Securities to
the Buyer. The Company believes that the issuance of the Securities to
the Buyer will not be integrated with any other issuance of the
Company's securities (past, current or future) which requires
stockholder approval under the rules of The Nasdaq Stock Market.
p. No Brokers. The Company has taken no action which would
give rise to any claim by any person for brokerage commissions,
finder's fees or similar payments relating to this Agreement or the
transactions contemplated hereby, except for dealings with Perpetual
Growth Advisors, whose commissions and fees will be paid for by the
Company solely in accordance with SCHEDULE 3(P).
q. Permits; Compliance. The Company and each of its
Subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exemptions,
consents, certificates, approvals and orders necessary to own, lease
and operate its properties and to carry on its business as it is now
being conducted (collectively, the "COMPANY
PERMITS"), and there is no action pending or, to the knowledge of the
Company, threatened regarding suspension or cancellation of any of the
Company Permits. Neither the Company nor any of its Subsidiaries is in
conflict with, or in default or violation of, any of the Company
Permits, except for any such conflicts, defaults or violations which,
individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect. Since July 31, 1997, neither the
Company nor any of its Subsidiaries has received any notification with
respect to possible conflicts, defaults or violations of applicable
laws, except for notices relating to possible conflicts, defaults or
violations, which conflicts, defaults or violations would not have a
Material Adverse Effect.
r. Environmental Matters.
(i) Except as set forth in SCHEDULE 3(R), there are,
to the Company's knowledge, with respect to the Company or any
of its Subsidiaries or any predecessor of the Company, no past
or present violations of Environmental Laws (as defined
below), releases of any material into the environment,
actions, activities, circumstances, conditions, events,
incidents, or contractual obligations which may give rise to
any common law environmental liability or any liability under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 or similar federal, state, local or
foreign laws and neither the Company nor any of its
Subsidiaries has received any notice with respect to any of
the foregoing, nor is any action pending or, to the Company's
knowledge, threatened in connection with any of the foregoing.
The term "ENVIRONMENTAL LAWS" means all federal, state, local
or foreign laws relating to pollution or protection of human
health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or
subsurface strata), including, without limitation, laws
relating to emissions, discharges, releases or threatened
releases of chemicals, pollutants contaminants, or toxic or
hazardous substances or wastes (collectively, "HAZARDOUS
MATERIALS") into the environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous
Materials, as well as all authorizations, codes, decrees,
demands or demand letters, injunctions, judgments, licenses,
notices or notice letters, orders, permits, plans or
regulations issued, entered, promulgated or approved
thereunder.
(ii) Other than those that are or were stored, used
or disposed of in compliance with applicable law, no Hazardous
Materials are contained on or about any real property
currently owned, leased or used by the Company or any of its
Subsidiaries, and no Hazardous Materials were released on or
about any real property previously owned, leased or used by
the Company or any of its Subsidiaries during the period the
property was owned, leased or used by the Company or any of
its Subsidiaries, except in the normal course of the Company's
or any of its Subsidiaries' business.
(iii) Except as set forth in SCHEDULE 3(R), there are
no underground storage tanks on or under any real property
owned, leased or used by the Company or any of its
Subsidiaries that are not in compliance with applicable law.
s. Title to Property. The Company and its Subsidiaries have
good and marketable title in fee simple to all real property and good
and marketable title to all personal property owned by them which is
material to the business of the Company and its Subsidiaries, in each
case free and clear of all liens, encumbrances and defects except such
as are described in SCHEDULE 3(S) or such as would not have a Material
Adverse Effect. Any real property and facilities held under lease by
the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as would not
have a Material Adverse Effect.
t. Insurance. The Company and each of its Subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as management of the Company
believes to be prudent and customary in the businesses in which the
Company and its Subsidiaries are engaged. Neither the Company nor any
such Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material
Adverse Effect.
u. Internal Accounting Controls. The Company and each of its
Subsidiaries maintain a system of internal accounting controls
sufficient, in the judgment of the Company's board of directors, to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability, (iii) access to assets
is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
v. Foreign Corrupt Practices. Neither the Company, nor any of
its Subsidiaries, nor any director, officer, agent, employee or other
person acting on behalf of the Company or any Subsidiary has, in the
course of his actions for, or on behalf of, the Company, used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expenses relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation
of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or
employee.
4. COVENANTS.
a. [Intentionally Omitted]
b. Form D; Blue Sky Laws. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to
provide a copy thereof to the Buyer promptly after such filing. The
Company shall, on or before the Closing Date, take such action as the
Company shall reasonably determine is necessary to qualify the
Securities for sale to the Buyer at the applicable closing pursuant to
this Agreement under applicable securities or "blue sky" laws of the
states of the United States (or to obtain an exemption from such
qualification), and shall provide evidence of any such action so taken
to the Buyer on or prior to the Closing Date.
c. Reporting Status; Eligibility to Use Form S-3. The
Company's Common Stock is registered under Section 12(g) of the 1934
Act. So long as the Buyer beneficially owns any of the Securities, the
Company shall timely file all reports required to be filed with the SEC
pursuant to the 1934 Act, and the Company shall not terminate its
status as an issuer required to file reports under the 1934 Act even if
the 1934 Act or the rules and regulations thereunder would permit such
termination. The Company currently meets, and will use its best efforts
to continue to meet, the "registrant eligibility" requirements set
forth in the general instructions to Form S-3.
d. Use of Proceeds. The Company shall use the proceeds from
the sale of the Note and the Warrants in the manner set forth in
SCHEDULE 4(D) attached hereto and made a part hereof and shall not,
directly or indirectly, use such proceeds for any loan to or investment
in any other corporation, partnership, enterprise or other person
(except in connection with its currently existing direct or indirect
Subsidiaries).
e. Additional Equity Capital; Right of First Refusal. Subject
to the exceptions described below, the Company will not conduct any
equity financing (including debt with an equity component) ("FUTURE
OFFERINGS") during the period beginning on the Closing Date and ending
on the earlier of (i) the date the Note is repaid in full and (ii) six
(6) months from the date the Registration Statement (as defined in the
Registration Rights Agreement) is declared effective (plus any days in
which sales cannot be made thereunder) unless it shall have first
delivered to the Buyer, at least fifteen (15) business days prior to
the closing of such Future Offering, written notice describing the
proposed Future Offering, including the terms and conditions thereof
and proposed definitive documentation to be entered into in connection
therewith, and providing the Buyer an option during the ten (10) day
period following delivery of such notice to purchase its pro rata share
(based on the ratio that the aggregate principal amount of Note
purchased by it hereunder bears to the aggregate principal amount of
Note purchased hereunder) of the securities being offered in the Future
Offering on the same terms as contemplated by such Future Offering (the
limitations referred to in this sentence are collectively referred to
as the "CAPITAL RAISING LIMITATIONS"). The Buyer's option to
participate in such Future Offering shall be limited to the greater of
Ten Million Dollars ($10,000,000) and fifty percent (50%) of such
Future Offering. In the event the terms and conditions of a proposed
Future Offering are amended in any respect after delivery of the notice
to the Buyer concerning the proposed Future Offering, the Company shall
deliver a new notice to the Buyer describing
the amended terms and conditions of the proposed Future Offering and
the Buyer thereafter shall have an option during the ten (10) day
period following delivery of such new notice to purchase its pro rata
share of the securities being offered on the same terms as contemplated
by such proposed Future Offering, as amended. The foregoing sentence
shall apply to successive amendments to the terms and conditions of any
proposed Future Offering. The Capital Raising Limitations shall not
apply to (i) the contemplated offering of the Company's securities
involving HSBC Securities and/or Prudential Securities (the "HSBC
FINANCING") (ii) any transaction involving issuances of securities in a
firm commitment underwritten public offering (excluding a continuous
offering pursuant to Rule 415 under the 1933 Act), (iii) the offering
to Synthelabo pursuant to the Investment Agreement (as defined in
SCHEDULE 3(C) hereto) made pursuant to Synthelabo's share ownership
maintenance rights set forth in Section 2.3 thereof or (iv) issuances
of securities as consideration for a merger, consolidation or sale of
assets, or in connection with any strategic relationship or joint
venture (the primary purpose of which is not to raise equity capital),
or in connection with the disposition or acquisition of a business,
product or license by the Company. The Capital Raising Limitations also
shall not apply to the issuance of securities upon exercise or
conversion of the Company's options, warrants or other convertible
securities outstanding as of the date hereof or to the grant of
additional options or warrants, or the issuance of additional
securities, under any existing Company stock option or restricted stock
plan approved by a majority of the Company's disinterested directors.
In addition to the foregoing and notwithstanding anything else
contained herein to the contrary, the Buyer shall have the right to
participate in the HSBC Financing up to a dollar amount equal to the
principal amount of the Note that are expected to be repaid in cash
upon the consummation of the HSBC Financing.
f. Expenses. The Company shall reimburse Xxxx Xxxx Capital
Management, L.P. ("RGC") for all reasonable expenses incurred by it in
connection with the negotiation, preparation, execution, delivery and
performance of this Agreement and the other agreements to be executed
in connection herewith, including, without limitation, attorneys' and
consultants' fees and expenses (but excluding any finder's fees). The
Company's obligation to reimburse RGC's expenses under this Section
4(f) shall be limited to Thirty Thousand Dollars ($30,000).
g. Financial Information. The Company agrees to send the
following reports to each Buyer until such Buyer transfers, assigns, or
sells all of the Securities: (i) within one (1) day after release,
copies of all press releases issued by the Company or any of its
Subsidiaries; and (ii) contemporaneously with the making available or
giving to the stockholders of the Company, copies of any notices or
other information the Company makes available or gives to such
stockholders.
h. Reservation of Shares. The Company shall at all times have
authorized, and reserved for the purpose of issuance, a sufficient
number of shares of Common Stock to provide for the full conversion or
exercise of the outstanding Note and Warrants and issuance of the
Conversion Shares and Warrant Shares in connection therewith (based on
the Conversion Price of the Note or Exercise Price of the Warrants in
effect from time to time). The
Company shall not reduce the number of shares of Common Stock reserved
for issuance upon conversion of Note and exercise of the Warrants
without the consent of each Buyer. The Company shall use its best
efforts at all times to maintain the number of shares of Common Stock
so reserved for issuance at no less than one and one-half (1 1/2) times
the number that is then actually issuable upon full conversion of the
Note and exercise of the Warrants (based on the Conversion Price of the
Note or Exercise Price of the Warrants in effect from time to time). If
at any time the number of shares of Common Stock authorized and
reserved for issuance is below the number of Conversion Shares and
Warrant Shares issued and issuable upon conversion of the Note and
exercise of the Warrants (based on the Conversion Price of the Note or
Exercise price of the Warrants then in effect), the Company will
promptly take all corporate action necessary to authorize and reserve a
sufficient number of shares, including, without limitation, calling a
special meeting of shareholders to authorize additional shares to meet
the Company's obligations under this Section 4(h), in the case of an
insufficient number of authorized shares, and using its best efforts to
obtain shareholder approval of an increase in such authorized number of
shares.
i. Listing. The Company shall promptly, but no later than ten
(10) business days from the Closing Date, secure the listing of the
Conversion Shares and Warrant Shares upon each national securities
exchange or automated quotation system, if any, upon which shares of
Common Stock are then listed (subject to official notice of issuance)
and shall maintain, so long as any other shares of Common Stock shall
be so listed, such listing of all Conversion Shares and Warrant Shares
from time to time issuable upon conversion of the Note or exercise of
the Warrants. The Company will obtain and maintain the listing and
trading of its Common Stock on Nasdaq, the Nasdaq SmallCap Market
("NASDAQ SMALLCAP"), the New York Stock Exchange ("NYSE"), or the
American Stock Exchange ("AMEX") and will comply in all respects with
the Company's reporting, filing and other obligations under the bylaws
or rules of the National Association of Securities Dealers ("NASD") and
such exchanges, as applicable. The Company shall promptly provide to
the Buyer copies of any notices it receives from Nasdaq and any other
exchanges or quotation systems on which the Common Stock is then listed
regarding the continued eligibility of the Common Stock for listing on
such exchanges and quotation systems.
j. Corporate Existence. So long as the Buyer beneficially owns
any Note or Warrants, the Company shall maintain its corporate
existence and shall not sell all or substantially all of the Company's
assets, except in the event of a merger or consolidation or sale of all
or substantially all of the Company's assets, where (i) the surviving
or successor entity in such transaction (A) assumes the Company's
obligations hereunder and under the agreements and instruments entered
into in connection herewith and (B) is a publicly traded corporation
whose Common Stock is listed for trading on Nasdaq, Nasdaq SmallCap,
NYSE or AMEX (a "Publicly Traded Corporation") or (ii) if the survivor
or successor entity in such transaction is not a Publicly Traded
Corporation, such event shall be treated as an Event of Default (as
defined in Article IV of the Note) and the Note is prepaid at the
Default Amount in accordance with Article IV of the Note.
k. No Integration. The Company will use its best efforts not
to conduct any future offering that will be integrated with the
issuance of the Securities solely for purposes of Rule 4460(i) of the
Nasdaq Stock Market.
l. Solvency. The Company (both before and after giving effect
to the transactions contemplated by this Agreement) is solvent (i.e.,
its assets have a fair market value in excess of the amount required to
pay its probable liabilities on its existing debts as they become
absolute and matured) and currently the Company has no information that
would lead it to reasonably conclude that the Company would not have,
nor does it intend to take any action that would impair, its ability to
pay its debts from time to time incurred in connection therewith as
such debts mature. The Company did not receive a qualified opinion from
its auditors with respect to its most recent fiscal year end and does
not anticipate or know of any basis upon which its auditors might issue
a qualified opinion in respect of its current fiscal year.
m. Trading Restrictions. Neither the Buyer nor any of its
affiliates (as defined in rule 144) will directly or indirectly engage
in any transactions or take any positions in the Company's Common Stock
(including entering into any puts, calls or options) until the earlier
of (i) the date that the proposed HSBC Financing is abandoned, (ii) the
ninety-first (91st) day following the Closing Date and (iii) the
occurrence of an event set forth in Schedule 2.1 of the Note. The Buyer
covenants and agrees that, during any period during which a Conversion
Price or Exercise Price is computed, neither the Buyer nor others
acting on its behalf shall be responsible for the low closing bid price
of the Company's Common Stock.
5. TRANSFER AGENT INSTRUCTIONS. The Company shall issue irrevocable
instructions to its transfer agent to issue certificates, registered in the name
of the Buyer or its nominee, for the Conversion Shares and Warrant Shares in
such amounts as specified from time to time by the Buyer to the Company upon
conversion of the Note or exercise of the Warrants in accordance with the terms
thereof (the "IRREVOCABLE TRANSFER AGENT INSTRUCTIONS"). Prior to registration
of the Conversion Shares and Warrant Shares under the 1933 Act, all such
certificates shall bear the restrictive legend specified in Section 2(g) of this
Agreement. The Company warrants that no instruction other than the Irrevocable
Transfer Agent Instructions referred to in this Section 5, and stop transfer
instructions to give effect to Section 2(f) hereof (in the case of the
Conversion Shares and Warrant Shares, prior to registration of the Conversion
Shares and Warrant Shares under the 1933 Act), will be given by the Company to
its transfer agent and that the Securities shall otherwise be freely
transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Registration Rights Agreement. Nothing in
this Section shall affect in any way the Buyer's obligations and agreement set
forth in Section 2(g) hereof to comply with all applicable prospectus delivery
requirements, if any, upon resale of the Securities. If the Buyer provides the
Company with an opinion of counsel, reasonably satisfactory to the Company in
form, substance and scope, that registration of a resale by the Buyer of any of
the Securities is not required under the 1933 Act, the Company shall permit the
transfer, and, in the case of the Conversion Shares
and Warrant Shares, promptly instruct its transfer agent to issue one or more
certificates in such name and in such denominations as specified by the Buyer.
The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Buyer, by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Section 5 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section, that the Buyer shall be entitled, in
addition to all other available remedies, to an injunction restraining any
breach and requiring immediate transfer, without the necessity of showing
economic loss and without any bond or other security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. The obligation of
the Company hereunder to issue and sell the Note and Warrants to the Buyer at
the Closing is subject to the satisfaction, at or before the Closing Date of
each of the following conditions thereto, provided that these conditions are for
the Company's sole benefit and may be waived by the Company at any time in its
sole discretion:
a. The Buyer shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Company.
b. The Buyer shall have delivered the Purchase Price in
accordance with Section 1(b) above and the Company shall have received
an aggregate of Five Million Dollars ($5,000,000) from the Buyer.
c. The representations and warranties of the Buyer shall be
true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date), and
the Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer at
or prior to the Closing Date.
d. No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this Agreement.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE. The obligation of
the Buyer hereunder to purchase the Note and Warrants at the Closing is subject
to the satisfaction, at or before the Closing Date of each of the following
conditions, provided that these conditions are for the Buyer's sole benefit and
may be waived by the Buyer at any time in its sole discretion:
a. The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Buyer.
b. The Company shall have delivered to the Buyer a duly
executed Note (in such denominations as the Buyer shall request) and
Warrants in accordance with Section 1(b) above.
c. The Irrevocable Transfer Agent Instructions, in form and
substance satisfactory to the Buyer, shall have been delivered to and
acknowledged in writing by the Company's Transfer Agent.
d. The representations and warranties of the Company shall be
true and correct in all material respects as of the date when made and
as of the Closing Date as though made at such time (except for
representations and warranties that speak as of a specific date) and
the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with
by the Company at or prior to the Closing Date. The Buyer shall have
received a certificate or certificates, executed by the chief executive
officer of the Company, dated as of the Closing Date, to the foregoing
effect and as to such other matters as may be reasonably requested by
the Buyer including, but not limited to certificates with respect to
the Company's Certificate of Incorporation, By-laws and Board of
Directors' resolutions relating to the transactions contemplated
hereby.
e. No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this Agreement.
f. The Buyer shall have received an opinion of the Company's
counsel, dated as of the Closing Date, in form, scope and substance
reasonably satisfactory to the Buyer and in substantially the same form
as EXHIBIT "D" attached hereto.
g. The Buyer shall have received an officer's certificate
described in Section 3(c) above, dated as of the Closing Date.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York
without regard to the principles of conflict of laws. The parties
hereto hereby submit to the exclusive jurisdiction of the United States
Federal Courts located in Delaware with respect to any dispute arising
under this Agreement, the agreements entered into in connection
herewith or the transactions contemplated hereby or thereby.
b. Counterparts; Signatures by Facsimile. This Agreement may
be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this
Agreement.
c. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
d. Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company
nor the Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in
writing signed by the party to be charged with enforcement.
f. Notices. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or
registered mail (return receipt requested) or delivered personally or
by courier (including a recognized overnight delivery service) or by
facsimile and shall be effective five days after being placed in the
mail, if mailed by regular U.S. mail, or upon receipt, if delivered
personally or by courier (including a recognized overnight delivery
service) or by facsimile, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
Angeion Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
With copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esquire
Facsimile: (000) 000-0000
If to a Buyer: To the address set forth immediately below such Buyer's
name on the signature pages hereto.
Each party shall provide notice to the other party of any change in
address.
g. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and
assigns. Neither the Company nor the Buyer shall assign this Agreement
or any rights or obligations hereunder without the prior written
consent of the other. Notwithstanding the foregoing, subject to Section
2(f), the Buyer may assign its rights hereunder to any person that
purchases Securities in a private transaction from the Buyer or to any
of its "affiliates," as that term is defined under the 1934 Act,
without the consent of the Company.
h. Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
i. Survival. The representations and warranties of the Company
and the agreements and covenants set forth in Sections 3, 4, 5 and 8
shall survive the closing hereunder notwithstanding any due diligence
investigation conducted by or on behalf of the Buyer.
j. Publicity. The Company and the Buyer shall have the right
to review a reasonable period of time before issuance of any press
releases, SEC, Nasdaq or NASD filings, or any other public statements
with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval
of the Buyer, to make any press release or SEC, Nasdaq or NASD filings
with respect to such transactions as is required by applicable law and
regulations (although the Buyer shall be consulted by the Company in
connection with any such press release prior to its release and shall
be provided with a copy thereof and be given an opportunity to comment
thereon).
k. Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
l. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be
applied against any party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused
this Agreement to be duly executed as of the date first above written.
ANGEION CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------------
Xxxxxxx X. XxXxxxxx
President and Chief Executive Officer
RGC INTERNATIONAL INVESTORS, LDC
By: Xxxx Xxxx Capital Management, L.P., Investment Manager
By: RGC General Partner Corp., as General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
Managing Director
RESIDENCE: Cayman Islands
ADDRESS:
c/o Xxxx Xxxx Capital Management, L.P.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
000 Xx. Xxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
AGGREGATE SUBSCRIPTION AMOUNT:
Aggregate Principal Amount of Note: $5,000,000
Number of Warrants: 970,000
Aggregate Purchase Price: $5,000,000
