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EXHIBIT 10.19A
LASERSCOPE
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT ("Agreement") made as of this 22nd day of
December, 1999 between LASERSCOPE, a California corporation, with its principal
offices at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000-0000 (the "Company")
and the undersigned (the "Subscriber").
W I T N E S S E T H :
WHEREAS, the Company desires to issue, in a private placement, shares of
common stock, no par value per share (the "Common Stock"), at a price of $0.80
per share, with a minimum aggregate offering price of $1,000,000 (the "Minimum
Amount") and a maximum aggregate offering price of $2,000,000 (the "Maximum
Amount"); and
WHEREAS, Subscriber desires to acquire shares of Common Stock having an
aggregate purchase price set forth on the signature page hereof (the "Purchase
Price").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. SUBSCRIPTION FOR SECURITIES AND REPRESENTATIONS BY SUBSCRIBER.
1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby subscribes for and agrees to purchase from the Company for a
price of $0.80 per share, shares of Common Stock having the Purchase Price
(hereinafter, collectively, the "Shares") and the Company agrees to sell the
Shares to the Subscriber for the Purchase Price, subject to the Company's right
to sell to the Subscriber such lesser amount of Shares as it may, in its sole
and absolute discretion, deem necessary or desirable. The Purchase Price is
payable, at or prior to the closing of this Agreement, by wire transfer or by
check, subject to collection, as set forth in the "INSTRUCTIONS TO SUBSCRIBERS"
contained in the Subscription Documents Booklet of which this Agreement is a
part.
1.2 The Subscriber recognizes that the purchase of the Shares
involves a high degree of risk in that (i) the Shares have not been registered
under the Securities Act of 1933, as amended
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("1933 Act"), and the Company has no obligation to register the Shares, except
as set forth in Section 3 below; (ii) an investment in the Shares is highly
speculative and only investors who can afford the loss of their entire
investment should consider investing in the Company and the Shares; (iii) the
Subscriber may not be able to liquidate the Subscriber's investment; and (v) the
Subscriber could sustain the loss of Subscriber's entire investment. Such risks
are more fully set forth in the Company's Confidential Private Placement
Memorandum dated December 21, 1999, including the exhibits thereto, as the same
may thereafter be supplemented and/or amended (collectively, the "Memorandum").
1.3 The private placement of the Common Stock by the Company (the
"Private Placement") pursuant to the Memorandum shall continue for a period
commencing on the date of the Memorandum and ending on the date set forth in the
Memorandum.
1.4 The Subscriber represents as follows:
(a) The Subscriber represents that the Subscriber is an
Accredited Investor (as defined in Rule 501 of Regulation D promulgated under
the 0000 Xxx) as indicated by the Subscriber's responses to the Confidential
Investor Questionnaire, a copy of which is included in the Subscription
Documents Booklet, and that the Subscriber is able to bear the economic risk of
an investment in the Shares.
(b) The Subscriber acknowledges that the Subscriber has
significant prior investment experience, including investment in non-listed and
non-registered securities. The Subscriber recognizes the highly speculative
nature of this investment. The Subscriber acknowledges that the Subscriber has
carefully read the Memorandum, including but not limited to, the Company's Form
10-K for the fiscal year ended December 31, 1998 and the Company's Form 10-Qs
for the fiscal quarters ended March 31, 1999, June 30, 1999 and September 30,
1999.
(c) The Subscriber hereby acknowledges that this Private
Placement and the Memorandum have not been reviewed by the United States
Securities and Exchange Commission ("SEC") or by a state securities regulator
because it is intended to be a nonpublic offering pursuant to Sections 4(2) and
4(6) of the 1933 Act and Rule 506 of Regulation D promulgated thereunder. The
Subscriber represents that the Shares are being purchased for the Subscriber's
own account, for investment purposes only and not for distribution or resale to
others. The Subscriber agrees that the Subscriber will not sell or otherwise
transfer the Shares unless they are registered under the 1933 Act or unless an
exemption from such registration is available.
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(d) The Subscriber understands that the Shares have not been
registered under the 1933 Act by reason of a claimed exemption under the
provisions of the 1933 Act which depends, in part, upon the Subscriber's
investment intention. In this connection, the Subscriber understands that it is
the position of the SEC that the statutory basis for such exemption would not be
present if the Subscriber's representation merely meant that the Subscriber's
present intention was to hold the Shares for a short period, such as the capital
gains period of tax statutes, for a deferred sale, for a market rise, or for any
other fixed period. The Subscriber realizes that, in the view of the SEC, a
purchase now with an intent to resell after a pre-determined amount of time
would represent a purchase with an intent inconsistent with the Subscriber's
representation to the Company, and the SEC might regard such a sale or
disposition as a deferred sale to which such exemptions are not available.
(e) The Subscriber understands that Rule 144 (the "Rule")
promulgated by the SEC under the 1933 Act requires, among other conditions, a
one year holding period prior to the resale (in limited amounts and subject to
certain other restrictions) of securities acquired in a non-public offering
without having to satisfy the registration requirements under the 1933 Act. The
Subscriber understands that the Company makes no representation or warranty
regarding its fulfillment in the future of any reporting requirements under the
Securities Exchange Act of 1934, as amended, or its dissemination to the public
of any current financial or other information concerning the Company, as is
required by the Rule as one of the conditions of its availability. The
Subscriber understands and hereby acknowledges that the Company is the only
entity that can register the Shares under the 1933 Act and that the Company is
under no obligation to register the Shares under the 1933 Act, with the
exception of certain registration obligations set forth in Section 3 below. The
Subscriber acknowledges that the Company may, if it desires, permit the transfer
of the Shares out of the Subscriber's name only when the Subscriber's request
for transfer is accompanied by an opinion of counsel reasonably satisfactory to
the Company that neither the sale nor the proposed transfer results in a
violation of the 1933 Act or any applicable state "blue sky" laws and subject to
the provisions of Section 1.4(f) hereof.
(f) The Subscriber consents to the placement of a legend on
any certificate or other document evidencing the Shares stating that they have
not been registered under the 1933 Act and under applicable state securities
laws and setting forth or referring to the restrictions on transferability and
sale thereof.
(g) The Subscriber understands that the Company will review
this Agreement and the Confidential Investor Questionnaire; and it is further
agreed that the Company reserves
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the unrestricted right to reject or limit any subscription and to close the
Private Placement at any time.
(h) The Subscriber hereby represents that the address of
Subscriber furnished by the Subscriber at the end of this Agreement is the
Subscriber's principal residence, if the Subscriber is an individual, or its
principal business address, if the Subscriber is a corporation or other entity.
(i) The Subscriber has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the Company and the
Private Placement, and all such questions, if any, have been answered to the
full satisfaction of the Subscriber; and the Company shall provide Subscriber
with the opportunity to ask additional questions of and receive answers (all of
which information shall be limited to information in the public realm) from the
Company concerning the Company during the period which the Subscriber owns the
Shares.
(j) The Subscriber has such knowledge and expertise in
financial and business matters that the Subscriber is capable of evaluating the
merits and risks involved in an investment in the Shares.
(k) The Subscriber has full power and authority to execute
and deliver this Agreement and to perform the obligations of the undersigned
hereunder; and this Agreement is a legally binding obligation of the undersigned
enforceable in accordance with its terms.
(l) Except as set forth in this Agreement and the
Memorandum, no representations or warranties have been made to the Subscriber by
the Company, the Placement Agent (as defined in the Memorandum) or any of their
respective agents, employees or affiliates and in entering into this
transaction, the Subscriber is not relying on any information, other than that
contained in the Memorandum, the public documents of the Company (e.g., latest
Form 10-K and Form 10-Q; collectively, the "Public Documents") and the results
of an independent investigation by the Subscriber.
(m) The Subscriber agrees that Subscriber will not sell or
otherwise transfer the Shares unless they are registered under the 1933 Act and
applicable state "blue sky" laws or unless an exemption from such registration
is available. The Subscriber represents that (i) the Subscriber has adequate
means of providing for the Subscriber's current needs and possible personal
contingencies, (ii) the Subscriber has no need for liquidity in this investment,
(iii) the Subscriber is able to bear the substantial economic risk of an
investment in the Shares for an indefinite period, and (iv) at the present time
the Subscriber could afford a complete loss of such investment.
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(n) It is understood that all documents, records and books
pertaining to this investment have been made available for the inspection by the
Subscriber's attorney and/or accountant and/or the Subscriber's purchaser
representative and the Subscriber, and that the books and records of the Company
will be available upon reasonable notice during business hours at its principal
place of business.
2. TERMS OF SUBSCRIPTION.
The Offering of the Common Stock is being made on a "best efforts"
basis as more particularly set forth in the Memorandum.
3. REGISTRATION RIGHTS.
(a) The Company shall prepare and file with the SEC, within sixty
(60) days following the Final Closing Date (as defined in the Memorandum), a
registration statement ("Registration Statement") on the appropriate form under
the 1933 Act, with respect to the Shares (the "Registrable Securities"). The
Company shall use its best efforts to have the Registration Statement declared
effective as soon as possible after filing, but in no event later than one
hundred and thirty-five (135) days following the Final Closing Date and shall
keep such Registration Statement effective and current continuously for three
(3) years or until such earlier date as all of the Registrable Securities have
been sold. If the Registration Statement is not filed within sixty (60) days
following the Final Closing Date, each holder of such Registrable Securities
(including transferees authorized under applicable securities laws) (each a
"Registered Holder") shall be entitled to receive from the Company in cash a
payment (the "Filing Payment") equal to (A) the product of the number of
Registrable Securities held by the Registered Holder and the Purchase Price,
multiplied by (B) the product of three percent (3%) and the number of thirty
(30) day periods, or any part thereof, beyond said sixty (60) day period until
the Registration Statement is filed with the SEC. In addition, if the
Registration Statement has been filed but is not declared effective within one
hundred and thirty-five (135) days following the Final Closing Date, each
Registered Holder also shall be entitled to receive in cash from the Company a
payment (the "Effectiveness Payment" and together with the Filing Payment, the
"Registration Payments") equal to (Y) the product of the number of Registrable
Securities held by the Registered Holder and the Purchase Price, multiplied by
(Z) the product of two percent (2%) and the number of thirty (30) day periods,
or any part thereof, beyond said one hundred and thirty-five (135) day period
until the Registration Statement is declared effective. The Company shall pay
the Registration Payments, if any, to the
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Registered Holders within thirty (30) days after the earlier to occur of (i) the
filing or effectiveness of the Registration Statement, as applicable, or (ii)
the end of the calendar quarter during which the sixty (60) day or one hundred
and thirty-five day period expired, as applicable, and then quarterly
thereafter. The Registration Statement will, among other things, also register
all other shares of Common Stock sold in the Private Placement, any Placement
Agent Shares (as defined in the Memorandum) and the shares of Common Stock
issuable upon exercise of the Placement Agent Warrants (as defined in the
Memorandum).
(b) In the event the Company effects any registration under the
1933 Act of any Registrable Securities pursuant to Section 3(a) above or 3(g)
below, the Company shall indemnify, to the extent permitted by law, and hold
harmless any person or entity whose Registrable Securities are included in such
registration statement (each, a "Seller"), any underwriter, any officer,
director, employee or agent of any Seller or underwriter, and each other person,
if any, who controls any Seller or underwriter within the meaning of Section 15
of the 1933 Act, against any losses, claims, damages, liabilities, judgment,
fines, penalties, costs and expenses, joint or several, or actions in respect
thereof (collectively, the "Claims"), to which each such indemnified party
becomes subject, under the 1933 Act or otherwise, insofar as such Claims arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or prospectus or any
amendment or supplement thereto or any document filed under a state securities
or blue sky law (collectively, the "Registration Documents") or insofar as such
Claims arise out of or are based upon the omission or alleged omission to state
in any Registration Document a material fact required to be stated therein or
necessary to make the statements made therein not misleading, and will reimburse
any such indemnified party for any legal or other expenses reasonably incurred
by such indemnified party in investigating or defending any such Claim; provided
that the Company shall not be liable in any such case to a particular
indemnified party to the extent such Claim is based upon an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact made in any Registration Document in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such indemnified party specifically for use in the preparation of such
Registration Document.
(c) In connection with any registration statement in which any
Seller is participating, each Seller, severally and not jointly, shall
indemnify, to the extent permitted by law, and hold harmless the Company, each
of its directors, each of its officers who have signed the registration
statement, each other person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act, each other Seller and each
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underwriter, any officer, director, employee or agent of any such other Seller
or underwriter and each other person, if any, who controls such other Seller or
underwriter within the meaning of Section 15 of the 1933 Act against any Claims
to which each such indemnified party may become subject under the 1933 Act or
otherwise, insofar as such Claims (or actions in respect thereof) are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Document, or insofar as any Claims are based upon the
omission or alleged omission to state in any Registration Document a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, and will reimburse any such indemnified party for any
legal or other expenses reasonably incurred by such indemnified party in
investigating or defending any such claim; provided, however, that such
indemnification or reimbursement shall be payable only if, and to the extent
that, any such Claim arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Document in reliance upon and in conformity with written
information furnished to the Company by the Seller specifically for use in the
preparation thereof.
(d) Any person entitled to indemnification under Section 3(b) or
3(c) above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Section 3(d), but the
omission of such notice shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
Section 3(b) or 3(c) above, except to the extent that such failure shall
materially adversely affect any indemnifying party or its rights hereunder. In
case any action is brought against the indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it chooses, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party;
and, after notice from the indemnifying party to the indemnified party that it
so chooses, the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that (i) if the indemnifying party fails to take reasonable steps necessary to
defend diligently the Claim within twenty (20) days after receiving notice from
the indemnified party that the indemnified party believes it has failed to do
so; (ii) if the indemnified party who is a defendant in any action or proceeding
which is also brought against the indemnifying party reasonably shall have
concluded that there are legal defenses available to the indemnified party which
are not available to the indemnifying party; or (iii) if representation of both
parties by the same counsel is otherwise inappropriate under applicable
standards of
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professional conduct, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there are
legal defenses available to such party or parties which are not available to the
other indemnified parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the indemnifying party shall be liable
for any reasonable expenses therefor; provided, that no indemnifying party shall
be subject to any liability for any settlement of a Claim made without its
consent (which may not be unreasonably withheld, delayed or conditioned). If the
indemnifying party assumes the defense of any Claim hereunder, such indemnifying
party shall not enter into any settlement without the consent of the indemnified
party if such settlement attributes liability to the indemnified party.
(e) If for any reason the indemnity provided in Section 3(b) or
3(c) above is unavailable, or is insufficient to hold harmless, an indemnified
party, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of any Claim in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other from the
transactions contemplated by this Agreement. If, however, the allocation
provided in the immediately preceding sentence is not permitted by applicable
law, or if the indemnified party failed to give the notice required by Section
3(d) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. Notwithstanding the foregoing, no
underwriter or controlling person thereof, if any, shall be required to
contribute, in respect of such underwriter's participation as an underwriter in
the offering, any amount in excess of the amount by which the total price at
which the Registrable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
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damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligation of any
underwriters to contribute pursuant to this paragraph (e) shall be several in
proportion to their respective underwriting commitments and not joint.
(f) The provisions of Section 3(b) through 3(e) of this Agreement
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The Registered Holders shall have certain "piggy-back"
registration rights with respect to the Registrable Securities as hereinafter
provided:
A. If at any time after the date of the Final Closing Date,
the Company shall file with the SEC a registration statement under the 1933 Act
registering any shares of Common Stock (other than a Registration Statement on
Form S-4 or Form S-8 or any successor to such forms), the Company shall give
written notice to each Registered Holder thereof prior to such filing.
B. Within fifteen (15) days after such notice from the
Company, each Registered Holder shall give written notice to the Company whether
or not the Registered Holder desires to have all of the Registered Holder's
Registrable Securities included in the registration statement. If a Registered
Holder fails to give such notice within such period, such Registered Holder
shall not have the right to have such Registered Holder's Registrable Securities
registered pursuant to such registration statement. If a Registered Holder gives
such notice, then the Company shall include such Registered Holder's Registrable
Securities in the registration statement, at the Company's sole cost and
expense, subject to the remaining terms of this Section 3(g).
C. If the registration statement relates to an underwritten
offering, and the underwriter shall determine in writing that the total number
of shares of Common Stock to be included in the offering, including the
Registrable Securities, shall exceed the amount which the underwriter deems to
be appropriate for the offering, the number of shares of the Registrable
Securities shall be reduced in the same proportion as the remainder of the
shares in the offering and each Registered
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Holder's Registrable Securities included in such registration statement will be
reduced proportionately. For this purpose, if other securities in the
registration statement are derivative securities, their underlying shares shall
be included in the computation. The Registered Holders shall enter into such
agreements as may be reasonably required by the underwriters and the Registered
Holders shall pay to the underwriters commissions relating to the sale of their
respective Registrable Securities.
D. The Registered Holders shall have two (2) opportunities
to have the Registrable Securities registered under this Section 3(g).
E. The Registered Holder shall furnish in writing to the
Company such information as the Company shall reasonably require in connection
with a registration statement.
(h) If and whenever the Company is required by the provisions of
this Section 3 to use its best efforts to register any Registrable Securities
under the 1933 Act, the Company shall, as expeditiously as possible under the
circumstances:
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 as soon as possible after filing
and remain effective.
B. Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement current and
effective and to comply with the provisions of the 1933 Act, and any regulations
promulgated thereunder, with respect to the sale or disposition of all
Registrable Securities covered by the registration statement required to effect
the distribution of the securities, but in no event shall the Company be
required to do so for a period of more than three (3) years following the
effective date of the registration statement.
C. Furnish to the Sellers participating in the offering,
copies (in reasonable quantities) of summary, preliminary, final, amended or
supplemented prospectuses, in conformity with the requirements of the 1933 Act
and any regulations promulgated thereunder, and other documents as reasonably
may be required in order to facilitate the disposition of the securities, but
only while the Company is required under the provisions hereof to keep the
registration statement current.
D. Use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions of the United States as the
Sellers participating
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in the offering shall reasonably request, and do any and all other acts and
things which may be reasonably necessary to enable each participating Seller to
consummate the disposition of the Registrable Securities in such jurisdictions.
E. Notify each Seller selling Registrable Securities, at
any time when a prospectus relating to any such Registrable Securities covered
by such registration statement is required to be delivered under the 1933 Act,
of the Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and promptly prepare and furnish to each such
Seller selling Registrable Securities a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
F. As soon as practicable after the effective date of the
registration statement, and in any event within eighteen (18) months thereafter,
make generally available to Sellers participating in the offering an earnings
statement (which need not be audited) covering a period of at least twelve (12)
consecutive months beginning after the effective date of the registration
statement which earnings statement shall satisfy the provisions of Section 11(a)
of the 1933 Act, including, at the Company's option, Rule 158 thereunder. To the
extent that the Company files such information with the SEC in satisfaction of
the foregoing, the Company need not deliver the above referenced earnings
statement to Seller.
G. Upon request, deliver promptly to counsel of each Seller
participating in the offering copies of all correspondence between the SEC and
the Company, its counsel or auditors and all memoranda relating to discussions
with the SEC or its staff with respect to the registration statement and permit
each such Seller to do such investigation at such Seller's sole cost and
expense, upon reasonable advance notice, with respect to information contained
in or omitted from the registration statement as it deems reasonably necessary.
Each Seller agrees that it will use its best efforts not to interfere
unreasonably with the Company's business when conducting any such investigation
and each Seller shall keep any such information received pursuant to this
Section confidential.
H. Provide a transfer agent and registrar located in the
United States for all such Registrable Securities covered
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by such registration statement not later than the effective date of such
registration statement.
I. List the Registrable Securities covered by such
registration statement on such exchanges and/or on the NASDAQ as the Common
Stock is then currently listed upon.
J. Pay all Registration Expenses incurred in connection
with a registration of Registrable Securities, whether or not such registration
statement shall become effective; provided that each Seller shall pay all
underwriting discounts, commissions and transfer taxes, and their own counsel
fees, if any, relating to the sale or disposition of such Seller's Registrable
Securities pursuant to a registration statement. As used herein, "Registration
Expenses" means any and all reasonable and customary expenses incident to
performance of or compliance with the registration rights set forth herein,
including, without limitation, (i) all SEC and stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses of complying with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities but no other expenses
of the underwriters or their counsel), (iii) all printing, messenger and
delivery expenses, and (iv) the reasonable fees and disbursements of counsel for
the Company and the Company's independent public accountants.
(i) The Company acknowledges that there is no adequate remedy at
law for failure by it to comply with the provisions of this Section 3 and that
such failure would not be adequately compensable in damages, and therefore
agrees that its agreements contained in this Section 3 may be specifically
enforced. In the event that the Company shall fail to file such registration
statement when required pursuant to Section 3(a) above or to keep any
registration statement effective as provided in this Section 3 or otherwise
fails to comply with its obligations and agreements in this Section 3, then, in
addition to any other rights or remedies the Registered Holders may have at law
or in equity, including without limitation, the right of rescission, the Issuer
shall indemnify and hold harmless the Registered Holders from and against any
and all manner or loss which they may incur as a result of such failure. In
addition, the Issuer shall also reimburse the Registered Holders for any and all
reasonable legal fees and expenses incurred by them in enforcing their rights
pursuant to this Section 3, regardless of whether any litigation was commenced.
4. MISCELLANEOUS.
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4.1 All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a)
when delivered by hand, (b) one business day after the business day of
transmission if sent by telecopier (with receipt confirmed), provided that a
copy is mailed by certified mail, return receipt requested, or (c) one business
day after the business day of deposit with the carrier, if sent for next
business day delivery by Express Mail, Federal Express or other recognized
express delivery service (receipt requested), in each case addressed to the
Company at the address indicated on the first page of this Agreement marked
"Attention: Xxxxxx X. Xxxxxxx", and to the Subscriber at the Subscriber's
address indicated on the last page of this Agreement (or to such other
addresses, the telecopier numbers as a party may designate as to itself by
notice to the other parties).
4.2 This Agreement shall not be changed, modified or amended
except by a writing signed by the parties to be charged, and this Agreement may
not be discharged except by performance in accordance with its terms or by a
writing signed by the party to be charged.
4.3 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and to their respective heirs, legal representatives,
successors and assigns. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter thereof and merges
and supersedes all prior discussions, agreements and understandings of any and
every nature among them.
4.4 Notwithstanding the place where this Agreement may be executed
by any of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the laws
of the State of New York. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York and they hereby submit to the
exclusive jurisdiction of the courts of the State of New York and of the federal
courts in New York with respect to any action or legal proceeding commenced by
any party, and irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in such a court or
respecting the fact that such court is an inconvenient forum, relating to or
arising out of this Agreement or any acts or omissions relating to the sale of
the securities hereunder, and consent to the service of process in any such
action or legal proceeding by means of registered or certified mail, return
receipt requested, in case of the address set forth below or such other address
as the undersigned shall furnish in writing to the other.
14
4.5 This Agreement may be executed in counterparts. Upon the
execution and delivery of this Agreement by the Subscriber, this Agreement shall
become a binding obligation of the Subscriber with respect to the purchase of
the Shares as herein provided; subject, however, to the right hereby reserved to
the Company to enter into the same agreements with other subscribers and to add
and/or to delete other persons as subscribers.
4.6 The holding of any provision of this Agreement to be invalid
or unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
4.7 It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not operate, or be construed, as a waiver of
any subsequent breach by that same party.
4.8 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
TO BE COMPLETED BY SUBSCRIBER
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Print Name
Signature for Individual Subscriber Signature of Subscriber
Other than Individual
By:
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Signature
Name:
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Title:
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Address
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City State Zip Code
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Aggregate Purchase Price
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Social Security or Employer Identification
Number
SUBSCRIPTION ACCEPTED:
LASERSCOPE
By:
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Name:
Title:
Date:
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