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EXHIBIT 10.1
[CONFORMED COPY]
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ASCENT PEDIATRICS, INC.
7,000 SHARES OF SERIES G
CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
$9,000,000 AGGREGATE PRINCIPAL AMOUNT
OF
8% SUBORDINATED NOTES
WARRANTS TO PURCHASE
2,116,958 SHARES OF COMMON STOCK
SECURITIES PURCHASE AGREEMENT
DATED MAY 13, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
AUTHORIZATION, AND AS APPLICABLE SALE AND PURCHASE, OF THE
PREFERRED SHARES, THE CONVERTIBLE NOTES, THE SUBORDINATED NOTES
AND THE WARRANTS
1.1. Authorization of the Securities........................................................................1
1.2. Sale and Purchase of the Preferred Shares, Subordinated Notes and Warrants.............................1
ARTICLE II
CLOSING
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1. Organization and Existence, etc........................................................................2
3.2. Subsidiaries...........................................................................................3
3.3. Capitalization.........................................................................................3
3.4. Authorization; Binding Obligations.....................................................................3
3.5. Compliance with Instruments, etc.......................................................................5
3.6. Litigation.............................................................................................5
3.7. Financial Statements; Taxes............................................................................5
3.8. Offering...............................................................................................6
3.9. Permits; Governmental and Other Approvals..............................................................6
3.10. Sales Representatives, Customers and Key Employees.....................................................6
3.11. Intellectual Property..................................................................................7
3.12. Form 10-K..............................................................................................8
3.13. Regulatory Status......................................................................................8
3.14. Registration Rights....................................................................................8
3.15. No Relationship Between Parties........................................................................8
3.16. Ordinary Course; No Material Adverse Change............................................................8
3.17. Small Business Concern.................................................................................8
3.18. Disclosure.............................................................................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
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ARTICLE V
CONDITIONS OF OBLIGATIONS OF THE PURCHASERS
5.1. Representations and Warranties Correct................................................................10
5.2. Performance...........................................................................................10
5.3. Compliance Certificate................................................................................10
5.4. No Impediments........................................................................................10
5.5. No Material Adverse Change............................................................................10
5.6. Legal Investment......................................................................................10
5.7. Qualifications........................................................................................11
5.8. Rule 4460(i)(2) Compliance............................................................................11
5.9. Issuance Taxes........................................................................................11
5.10. Certificate of Designation............................................................................11
5.11. Triumph Investment....................................................................................11
5.12. Proceedings and Other Documents.......................................................................11
5.13. Opinion of Counsel....................................................................................11
5.14. Consents, Waivers, Etc................................................................................11
5.15. Other Matters.........................................................................................11
5.16. SBIC Documentation....................................................................................12
5.17. Payment of Purchase Price.............................................................................12
ARTICLE VI
CONDITIONS OF OBLIGATIONS OF THE COMPANY
6.1. Representations and Warranties Correct................................................................12
6.2. Legal Investment......................................................................................12
6.3. Payment of Purchase Price.............................................................................13
6.4. Performance...........................................................................................13
ARTICLE VII
COVENANTS OF THE COMPANY
7.1. Reports...............................................................................................13
7.2. Accounts and Records..................................................................................15
7.3. Inspection............................................................................................16
7.4. Independent Accountants...............................................................................16
7.5. Board Members and Meetings............................................................................16
7.6. Use of Proceeds.......................................................................................17
7.7. Right of First Refusal................................................................................17
7.8. Rule 144A Information.................................................................................19
7.9. Post-Closing Review...................................................................................19
7.11. Further Assurances....................................................................................19
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ARTICLE VIII
NEGATIVE COVENANTS
8.1. Borrowed Money Indebtedness...........................................................................20
8.2. Liens.................................................................................................20
8.3. Contingent Liabilities................................................................................20
8.4. Mergers, Consolidations and Dispositions and Acquisitions of Assets...................................21
8.5. Redemption, Dividends and Distributions...............................................................21
8.6. Nature of Business....................................................................................21
8.7. Transactions with Related Parties.....................................................................21
8.8. Loans and Investments.................................................................................21
8.9. Subsidiaries..........................................................................................21
8.10. Organizational Documents..............................................................................22
8.11. Lease Expenses; Purchase Money Indebtedness...........................................................22
8.12. Sale/Leasebacks.......................................................................................22
8.14. Control Certification.................................................................................22
8.15. Definitions...........................................................................................22
ARTICLE IX
REDEMPTION
9.1. Redemption of Subordinated Notes......................................................................25
9.2. Notice of Redemption of Subordinated Notes............................................................25
9.3. Redemption Upon Change of Control, etc................................................................25
9.4. Notice of Redemption Upon Change of Control, etc......................................................27
9.5. Effect of Redemption..................................................................................28
ARTICLE X
REGISTRATION RIGHTS
10.1. Restrictive Legend....................................................................................28
10.2. Certain Definitions...................................................................................29
10.3. Requested Registration................................................................................30
10.4. Piggyback Registrations...............................................................................32
10.5. Holdback Agreements...................................................................................33
10.6. Registration Procedures...............................................................................34
10.7. Indemnification.......................................................................................36
10.8. Information by Holders................................................................................38
10.9. Limitations on Registration of Issues of Securities...................................................38
10.10. Rule 144 Reporting....................................................................................38
10.11. Selection of Underwriters.............................................................................38
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ARTICLE XI
SUBORDINATION; SENIORITY
11.1. Senior Indebtedness...................................................................................39
11.2. Securities Subordinated to Senior Indebtedness........................................................39
11.3. Company Not to Make Payments with Respect to Notes in Certain Circumstances...........................40
11.4. Subrogation of Notes..................................................................................41
11.5. Notices...............................................................................................42
11.6. No Impairment of Subordination........................................................................42
11.7. Article XI Not To Prevent Events of Default...........................................................42
11.8. Amendment to Article XI...............................................................................42
ARTICLE XII
CONVERSION OF THE CONVERTIBLE NOTES
12.1. Certain Definitions...................................................................................43
12.2. Right of Conversion; Conversion Price.................................................................43
12.3. Issuance of Shares on Conversion......................................................................44
12.4. Adjustment of Conversion Price........................................................................44
12.5. Notice of Certain Corporate Action....................................................................48
12.6. Taxes on Conversions..................................................................................49
12.7. Fractional Shares.....................................................................................49
12.8. Provisions in Case of Consolidation, Merger or Sale of Assets.........................................49
12.9. Covenant to Reserve Shares............................................................................50
12.10. Rule 13e-3 Transactions...............................................................................50
12.11. Automatic Conversion..................................................................................50
ARTICLE XIII
EVENTS OF DEFAULT
13.1. Events of Default.....................................................................................51
13.2. Remedies..............................................................................................53
13.3. Enforcement...........................................................................................53
ARTICLE XIV
AMENDMENT AND WAIVER
ARTICLE XV
LOST OR MUTILATED CERTIFICATES
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ARTICLE XVI
TRANSFER OF SECURITIES
16.1. Transfer of Securities................................................................................56
16.2. Limitation on Number of Holders.......................................................................56
ARTICLE XVII
MISCELLANEOUS
17.1. Governing Law.........................................................................................57
17.2. Survival..............................................................................................57
17.3. Successors and Assigns................................................................................57
17.4. Entire Agreement......................................................................................57
17.5. Notices, etc..........................................................................................57
17.6. Delays or Omissions...................................................................................59
17.7. Severability..........................................................................................59
17.8. Agent's Fees..........................................................................................59
17.9. Information Confidential; No Solicitation.............................................................59
17.10. Expenses..............................................................................................60
17.11. Litigation............................................................................................60
17.12. Titles and Subtitles..................................................................................60
17.13. Counterparts..........................................................................................60
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EXHIBITS AND SCHEDULES
Exhibit A - Certificate of Designation of Preferred Stock
Exhibit B - Form of Convertible Note
Exhibit C - Form of Subordinated Note
Exhibit D - Form of Warrant
Exhibit E - Form of Opinion of Hale and Dorr LLP
Schedule 1 - List of Purchasers and numbers of Preferred Stock, Principal Amount of Subordinated
Notes and Number of Warrants to be Purchased
Schedule 3.3A - Derivative Securities
Schedule 3.3B - Triumph Notes
Schedule 3.3C - Rights, Options and Warrants
Schedule 3.5 - Compliance with Instruments, etc.
Schedule 3.6 - Litigation
Schedule 3.9 - Permits; Governmental and Other Approvals
Schedule 3.10A - Termination
Schedule 3.10B - Employment Agreements
Schedule 3.11(a) - Intellectual Property Obligations
Schedule 3.11(b) - Intellectual Property Claims
Schedule 3.11(c) - Confidential Information
Schedule 3.12 - Form 10-K Supplement
Schedule 3.13 - Regulatory Status
Schedule 3.14 - Registration Rights
Schedule 3.15 - Business
Schedule 5.10 - Triumph Restructuring
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THIS AGREEMENT, dated as of May 13, 1998 (this "Agreement"), among Ascent
Pediatrics, Inc., a Delaware corporation (the "Company"), and the persons named
as purchasers on Schedule 1 attached hereto (each, a "Purchaser" and,
collectively, the "Purchasers").
WHEREAS, the Purchasers wish to purchase from the Company, and the Company
wishes to issue and sell to the Purchasers, (i) 7,000 shares of the Series G
Convertible Exchangeable Preferred Stock, par value $.01 per share, of the
Company (the "Preferred Stock"), exchangeable into $7,000,000 aggregate
principal amount of 8% Convertible Subordinated Notes of the Company (the
"Convertible Notes"), (ii) $9,000,000 aggregate principal amount of 8%
Subordinated Notes due 2005 of the Company (the "Subordinated Notes" and,
collectively with the Convertible Notes, the "Notes") and (iii) warrants (the
"Warrants") to purchase an aggregate of 2,116,958 shares of the common stock of
the Company, par value $0.00004 per share (the "Common Stock"); and
WHEREAS, the Purchasers and the Company desire to provide for such purchase
and sale and to establish various rights and obligations in connection
therewith.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein set forth, the parties hereto agree as follows:
ARTICLE I
AUTHORIZATION, AND, AS APPLICABLE, SALE AND PURCHASE, OF THE PREFERRED
STOCK, THE CONVERTIBLE NOTES, THE SUBORDINATED NOTES AND THE
WARRANTS
1.1. AUTHORIZATION OF THE SECURITIES. The Company has, or before the
Closing (as hereinafter defined) will have, (i) authorized the issue and sale of
the Preferred Stock, the terms of which shall be substantially as set forth on
Exhibit A attached hereto; (ii) authorized the issue of the Convertible Notes
upon exchange of the Preferred Stock, the terms of which shall be substantially
as set forth on Exhibit B attached hereto, (iii) authorized the issue and sale
of the Subordinated Notes, the terms of which shall be substantially as set
forth on Exhibit C attached hereto, and (iv) authorized the issue and sale of
the Warrants, the terms of which shall be substantially as set forth on Exhibit
D attached hereto; the Preferred Stock, the Convertible Notes, the Subordinated
Notes and the Warrants are collectively referred to in this Agreement as the
"Securities"; the term "Warrant" means a Warrant to purchase one share of Common
Stock. The Notes will be in registered form and will be issued in any
denomination.
1.2. SALE AND PURCHASE OF THE PREFERRED STOCK, SUBORDINATED NOTES AND
WARRANTS. Subject to the terms and conditions hereof and in reliance on the
representations and warranties contained herein, the Company will issue and sell
to each Purchaser, and such Purchaser will purchase from the Company, on the
Closing Date (as hereinafter defined), the number of shares of Preferred Stock,
Subordinated Notes and Warrants set opposite the name of such Purchaser on
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Schedule 1 attached hereto, for a purchase price per share of Preferred Stock of
$1,000, with the aggregate purchase price for all the Preferred Stock being
$7,000,000, a purchase price per $10,000 principal amount of Subordinated Note
of $9,444.44 with the aggregate purchase price for all the Subordinated Notes
being $8,110,000, and a purchase price per Warrant of $0.4204145, with an
aggregate purchase price for all the Warrants being $890,000. The aggregate
purchase price for the Securities is $16,000,000.
ARTICLE II
CLOSING
The closing of the purchase and sale of the Securities (the "Closing") will
take place at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109 at 1:00 p.m., local time, on June 1, 1998, (which shall be
twelve (12) business days after the date of execution of this agreement,
provided that the condition set forth in Section 5.8 shall have been satisfied)
or such other time and date, or place as shall be mutually agreed to by the
Company and FS Private Investments LLC, on behalf of the Purchasers. Such time
and date are hereinafter referred to as the "Closing Date." If the Closing shall
not have occurred on or before June 15, 1998, this Agreement shall automatically
terminate.
At the Closing, the Company will deliver to each Purchaser (i) a
certificate or certificates (in definitive form) in the denominations specified
in Schedule 1 and registered in the name of such Purchaser (or in the name of
such Purchaser's nominee) representing the Preferred Stock, (ii) the
Subordinated Notes (in definitive form) in the denominations specified in
Schedule and registered in the name of such Purchaser (or the name of such
Purchaser's nominee), and (iii) Warrants (in definitive form) in the
denominations specified in Schedule 1 and registered in the name of such
Purchaser (or in the name of such Purchaser's nominee), to be purchased by such
Purchaser against payment to the Company of the purchase price of such
Securities, by wire transfer or transfers of immediately available funds to an
account designated by the Company at least two (2) business days prior to the
Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
3.1. ORGANIZATION AND EXISTENCE, ETC. The Company (a) is duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to carry on its business as now
conducted and proposed to be conducted, and (b) is duly qualified to do business
as a foreign corporation and is in good standing (or the equivalent
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thereof under applicable law) in each jurisdiction in which the conduct of its
business requires such qualification by reason of the ownership or leasing of
property or otherwise (except for those jurisdictions in which the failure so to
qualify has not had and will not have a Material Adverse Effect). "Material
Adverse Effect" means, when used in connection with the Company, any
development, change or effect that is materially adverse to the business,
properties (including, without limitation, Intellectual Property (as defined in
Section 3.11)), assets, net worth, financial condition, or results of operations
or prospects of the Company. The Company has furnished the Purchasers with true,
correct and complete copies of the Certificate of Incorporation and Bylaws
(including any amendments to date of any thereof) of the Company.
3.2. SUBSIDIARIES. The Company has no subsidiaries and owns no securities
of other corporations or entities other than short-term money market
investments.
3.3. CAPITALIZATION.
(a) As of the date hereof, (i) the Company's authorized capital stock
consists of: 60,000,000 shares of Common Stock, $.00004 par value per share, of
which 6,921,074 shares are validly issued and outstanding, fully paid and
nonassessable, and 5,000,000 shares of "blank check" preferred stock, $.01 par
value per share, none of which has been issued; (ii) the Company has outstanding
the securities set forth on Schedule 3.3A which are convertible into or
exercisable or exchangeable for Common Stock (the "Derivative Securities");
(iii) the Company has $5,250,000 principal amount of subordinated notes held by
Triumph Connecticut Limited Partnership and certain related entities (the
"Triumph Notes"), and (iv) the Company has no bank debt outstanding. From the
date hereof to the Closing, there will be no changes in such authorized capital
stock or Derivative Securities, except as contemplated by this Agreement except
as may result from the exercise or conversion of the Derivative Securities
during such period.
(b) All the issued and outstanding shares of capital stock are free of
preemptive and similar rights and have been offered, issued, sold and delivered
by the Company in transactions either in compliance with applicable federal,
state and foreign securities laws, or as to which all limitation periods that
are applicable have expired. Other than as set forth in Schedule 3.3C, there are
no outstanding agreements or commitments requiring the Company to issue capital
stock or Derivative Securities.
3.4. AUTHORIZATION; BINDING OBLIGATIONS.
(a) The Company has full power and authority to execute and deliver
this Agreement, the Preferred Stock, the Notes and the Warrants and such other
documents furnished or to be furnished by the Company hereunder. This Agreement
has been duly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity. The issuance, offering
and sale of the Securities pursuant
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to this Agreement, the compliance by the Company with the provisions of this
Agreement, the Securities, and the consummation of the other transactions herein
contemplated will not result in the creation or imposition of any lien, charge,
security interest or encumbrance upon any of the assets of the Company pursuant
to the terms or provisions of, or result in a breach or violation of or conflict
with any of the terms or provisions of, or constitute a default under, or give
any other party a right to terminate any of its obligations under, or result in
the acceleration of any obligation under, (i) the Certificate of Incorporation
and Bylaws of the Company, or (ii) any contract or other agreement to which the
Company is a party or by which the Company or any of its respective properties
is bound or affected, or any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body, domestic or
foreign, applicable to the business or properties of the Company.
(b) The Preferred Stock shall be duly authorized for issuance prior to
the Closing, and, when issued and delivered in accordance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable. The shares
of Common Stock issuable upon conversion of the Preferred Stock (the "Preferred
Conversion Shares") have been duly authorized and reserved for issuance, and,
when the Preferred Stock has been issued by the Company, (i) the Preferred Stock
will be convertible into Preferred Conversion Shares in accordance with its
terms as set forth in the Certificate of Designation attached hereto as Exhibit
A (the "Certificate of Designation"), and (ii) the Preferred Conversion Shares
initially issuable upon such conversion, when issued and delivered in accordance
with the provisions of the Certificate of Designation, will be validly issued,
fully paid and nonassessable.
(c) The Convertible Notes have been duly authorized for issuance prior
to the Closing and, following the issuance of the Convertible Notes, the shares
of Common Stock issuable upon conversion of the Convertible Notes (the "Note
Conversion Shares") will have been duly authorized and reserved for issuance,
and, when the Convertible Notes have been duly executed and delivered by the
Company in accordance with this Agreement, (i) the Convertible Notes will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity, (ii) the
principal amount outstanding under the Convertible Notes will be convertible
into Note Conversion Shares in accordance with the provisions of the Convertible
Notes, and (iii) the Note Conversion Shares initially issuable upon such
conversion, when issued and delivered in accordance with the provisions of the
Convertible Notes, will be validly issued, fully paid and nonassessable.
(d) The Subordinated Notes have been duly authorized for issuance
prior to the Closing and, when the Subordinated Notes have been duly executed
and delivered by the Company in accordance with this Agreement, the Subordinated
Notes will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
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(e) The Warrants shall be duly authorized for issuance prior to the
Closing and the shares of Common Stock issuable upon exercise of the Warrants
(the "Warrant Shares") will be duly authorized and reserved for issuance prior
to the Closing and when the Warrants have been duly executed and delivered by
the Company in accordance with this Agreement, (i) the Warrants will constitute
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity, (ii) the Warrants will be
exercisable for the Warrant Shares in accordance with their terms, and (iii) the
Warrant Shares, when issued and delivered in accordance with the provisions of
the Warrants, will be validly issued, fully paid and nonassessable.
3.5. COMPLIANCE WITH INSTRUMENTS, ETC. Except as set forth on Schedule 3.5
hereto, the Company is not in breach or violation of, or in default under, any
term or provision of (i) its Certificate of Incorporation and Bylaws, (ii) any
indenture, mortgage, deed of trust, voting trust agreement, stockholders
agreement, note agreement, debt instrument or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property is
subject, the effect of which breach, violation or default, individually or in
the aggregate, could have a Material Adverse Effect, or (iii) any statute,
judgment, decree, order, rule or regulation applicable to the Company or of any
arbitrator, court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or any of its respective activities or properties and the effect of
which breach, violation or default, individually or in the aggregate, would have
a Material Adverse Effect.
3.6. LITIGATION. Except as set forth on Schedule 3.6 hereto, there is no
action, suit, proceeding or investigation pending, or, to the knowledge of the
Company, threatened, against the Company before or by any court, regulatory body
or administrative agency or any other governmental agency or body, domestic or
foreign, or any action, suit, proceeding or investigation pending, or, to the
knowledge of the Company, threatened, which challenges the validity of any
action taken or to be taken pursuant to or in connection with this Agreement or
the issuance of the Preferred Stock, Convertible Notes, Subordinated Notes, the
Warrants, the Preferred Conversion Shares, the Note Conversion Shares and the
Warrant Shares. As it pertains to the Company, when used herein, the phrases "to
the knowledge of," "to the best knowledge of" or derivatives thereof shall mean
the actual knowledge of the chief executive officer and the chief financial
officer of the Company, and the knowledge that a reasonable person serving in
the same or substantially similar capacities as such persons, acting prudently
under similar circumstances, would be expected to have.
3.7. FINANCIAL STATEMENTS; TAXES
(a) The Company has previously delivered to the Purchasers or the
Purchasers' representative true, correct and complete copies of its financial
statements for the years ended December 31, 1995, 1996 and 1997 (such financial
statements for 1997 being referred to as the
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"1997 Financial Statements" and all such financial statements being collectively
referred to as the "Financial Statements"). The Financial Statements have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") and fairly present, in all material respects, the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended. The Financial Statements
as are audited have been examined by Coopers & Lybrand LLP who are independent
public accountants within the meaning of the Securities Act of 1933, as amended
(the "Securities Act") and the rules and regulations promulgated thereunder and
they have expressed an opinion thereon, which is unqualified with respect to the
financial statements for the years ended December 31, 1995 and 1996. As of their
respective dates, the Company had no material liabilities or obligations of any
nature (absolute, accrued, contingent or otherwise) which are required to be
reflected on a balance sheet or disclosed in the notes thereto and which are not
reflected on any balance sheet contained in the Financial Statements or
disclosed in such notes.
(b) The Company has filed or obtained extensions for all necessary
income, franchise and other material tax returns, domestic and foreign, and has
paid all taxes shown as due thereunder, and the Company has no knowledge of any
tax deficiency which might be assessed against the Company.
3.8. OFFERING. Subject to the Purchasers' representations and warranties in
Article IV of this Agreement, the offer, sale and issuance of the Securities as
contemplated by this Agreement are not subject to the registration requirements
of the Securities Act and neither the Company nor anyone acting on its behalf,
has taken or will take any action that would cause such registration
requirements to be applicable.
3.9.PERMITS; GOVERNMENTAL AND OTHER APPROVALS. Except as set forth in
Schedule 3.9 hereto, the Company has such licenses, permits, consents, orders,
approvals and other authorizations necessary for the conduct of its business as
now being conducted and proposed to be conducted, except where the absence of
such authorization would not have a Material Adverse Effect and except with
respect to the Company's products in development for which marketing approval
from the FDA and similar regulatory authorities has not been obtained. No
approval, consent, authorization or other order of, and no designation, filing,
registration, qualification or recording with, any governmental authority,
domestic or foreign, is required for the Company's performance of this Agreement
or the consummation of the transactions contemplated hereby except for the
filing of the Certificate of Designation, applicable filings with The Nasdaq
Stock Market, the filing of a Form D under the Securities Act and the filing of
a Form 8-K under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
3.10. SALES REPRESENTATIVES, CUSTOMERS AND KEY EMPLOYEES. Except as set
forth in Schedule 3.10A, to the knowledge of the Company, no independent sales
representatives or key employee or group of key employees of, or party or person
providing services to, the Company has any intention to terminate his, her or
its relationship with the Company or, in the case of employees, leave the employ
of the Company, which termination would have a Material Adverse Effect.
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Except as set forth in Schedule 3.10B hereto or as contemplated by this
Agreement, all personnel are employed on an "at will" basis and may be
terminated upon notice of not more than thirty (30) days.
3.11. INTELLECTUAL PROPERTY
(a) To the Company's best knowledge, the Company has full and
exclusive right, title and interest in and to, or license rights to, all
patents, patent applications, registered or unregistered trademarks, service
marks and trade names, registered or unregistered copyrights and applications
therefor, know-how, proprietary rights and processes, trade secrets, customer
lists, methodologies (to the extent protectible), proprietary development and
marketing information and know-how, inventions, inventors' notes (to the extent
such notes exist), drawings, designs associated with the foregoing, and other
confidential information (collectively, "Intellectual Property") relating to its
business or otherwise used in or necessary for the proper conduct of its
business, free and clear of all liens, security interests, claims and
encumbrances of any nature; and except as set forth on Schedule 3.11(a), the
Company has no obligation to any other person or entity with respect to the
Intellectual Property or any product or process of the Company utilizing or
embodying any Intellectual Property.
(b) There is (i) to the Company's best knowledge, no infringement,
misuse or misappropriation of any Intellectual Property owned, licensed or
controlled by any third party arising out of any product or process now being
used, manufactured or distributed, or ever having been used, manufactured or
distributed at any time previously, by or on behalf of the Company, (ii) no
pending or, to the knowledge of the Company, threatened claim or challenge of or
proceeding for infringement, misuse or misappropriation of or interference with
any Intellectual Property owned, licensed or controlled by any third party
arising out of any product or process now being used, manufactured or
distributed, or ever having been used, manufactured or distributed at any time
previously, by or on behalf of the Company, (iii) except as set forth in
Schedule 3.11(b) hereto, no pending or, to the best knowledge of the Company,
threatened claim, challenge or proceeding by the Company against any third party
for infringement, misuse or misappropriation of or interference with any
Intellectual Property owned, licensed or controlled by the Company or (iv) no
notice from another party to the effect that, or, to the knowledge of the
Company, facts or information which, in the reasonable opinion of the Company,
would render any Intellectual Property owned, controlled or licensed by the
Company invalid or unenforceable, nor, to the knowledge of the Company, is there
any allegation that any such Intellectual Property is invalid or unenforceable.
(c) Except as set forth in Schedule 3.11(c), the Company has not
disclosed any material confidential information developed or utilized by the
Company to any third party except on a confidential basis and pursuant to a
confidentiality agreement, nor, to the knowledge of the Company, has any third
party disclosed confidential information developed or utilized by the Company to
any person in material breach of such confidentiality agreement.
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3.12. FORM 10-K. The Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 1997 (the "Form 10-K") complied as to form in all
material respects with the applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and, as supplemented by Schedule
3.12, does not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.
3.13. REGULATORY STATUS. Schedule 3.13 sets forth a description of the
development status of each of the Company's principal products not currently on
the market, including status with the United States Food and Drug
Administration. With respect to any such products not in commercial production,
such description sets forth the remaining steps to be taken prior to commercial
production and an estimate of the time required to reach commercial production.
The Company makes no representation or warranty with respect to the estimated
time to achieve such steps.
3.14. REGISTRATION RIGHTS. Except as provided for in this Agreement or in
Schedule 3.14, the Company is not under any obligation to register under the
Securities Act any of its currently outstanding securities or any of its
securities which may hereafter be issued.
3.15. NO RELATIONSHIP BETWEEN PARTIES. The Company is not an owner of any
shares of the stock of or equity interest in any of the Purchasers. No officer,
director or owner of more than 5% of the outstanding capital stock of the
Company with which any officer or director of the Company is affiliated or the
close relatives of such officer, director or owner is an officer or director of
or owns any shares of the capital stock of or equity interest in any Purchaser.
For purposes of this Section 3.15, "close relative" means an ancestor, lineal
descendant, brother or sister and lineal descendants of either, spouse, aunt,
uncle, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law
or sister-in-law.
3.16. ORDINARY COURSE; NO MATERIAL ADVERSE CHANGE. Since December 31, 1997,
the Company, except as set forth on Schedule 3.16 hereto, in the Form 10-K or as
explicitly contemplated by this Agreement, has conducted its business in the
ordinary course, has not incurred any material obligation, absolute or
contingent, or entered into any material transactions not in the ordinary course
of business, and has not declared or paid any dividends or distributions on its
capital shares or reacquired any of such shares; and, since that date, there has
been no change which would, individually or in the aggregate, have a Material
Adverse Effect.
3.17. SMALL BUSINESS CONCERN. The Company meets the criteria established
under the Small Business Investment Act of 1958, as amended, and the rules and
regulations of the Small Business Administration thereunder (the "Small Business
Act"), for classification as a "small business concern" within the meaning of
the Small Business Act, 15 U.S.C. ss.662(5).
3.18. DISCLOSURE. The written information with respect to the Company
heretofore provided and to be provided by the Company pursuant to this Agreement
prior to Closing, including the Schedules and Exhibits hereto, and each of the
agreements, documents, certificates
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and writings to be delivered to the Purchasers or their representatives at the
Closing, do not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated herein or therein or
necessary in order to make the statements and writings contained herein and
therein not false or misleading in the light of the circumstances under which
they were made.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, represents and warrants to the
Company that (i) it is an "accredited investor" as that term is defined in Rule
501(a) promulgated under the Securities Act, (ii) it has the requisite knowledge
and experience in financial and business matters to be capable of evaluating the
merits and risks of an investment in the Company, (iii) it has had an
opportunity to discuss the Company's business, management and financial affairs
with the Company's management, (iv) it is acquiring the Securities for
investment for its own account and not with a view to, or for resale in
connection with, any distribution thereof; nor with any present intention of
distributing or selling the same; and, except as contemplated by this Agreement,
such Purchaser has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for the
disposition thereof, (v) it is not in material breach or violation of, or in
default under, any term or provision of (A) its organizational and governing
documents, (B) any indenture, mortgage, deed of trust, voting trust agreement,
stockholders agreement, note agreement or other agreement or instrument to which
it is a party or by which it is or may be bound or to which any of its property
is or may be subject, or (C) any statute, judgment, decree, order, rule or
regulation applicable to such Purchaser or of any arbitrator, court, regulatory
body, administrative agency or any other governmental agency or body, domestic
or foreign, having jurisdiction over such Purchaser or any of its activities or
properties, (vi) any Purchaser which is a corporation, partnership or trust
represents that it has not been organized, reorganized or recapitalized
specifically for the purpose of investing in the Company, and (vii) it
understands that the Securities and the shares of common stock issuable upon
exercise or conversion of the Securities have not been registered under the
Securities Act and it will not offer, sell, transfer, pledge, hypothecate or
otherwise dispose of any Securities except pursuant to an exemption from, or
otherwise in a transaction not subject to, the registration requirements of the
Securities Act or pursuant to an effective registration statement under the
Securities Act, and, in each case, in accordance with any applicable state
securities or "blue sky" laws. Each Purchaser further represents that (i) it has
full power and authority to execute and deliver this Agreement, (ii) the person
executing this Agreement on behalf of such Purchaser has the appropriate
authority to act on behalf of such Purchaser, and (iii) this Agreement has been
duly authorized, executed and delivered by such Purchaser and constitutes a
legal, valid and binding agreement of such Purchaser, enforceable against such
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity, and (iv) it has not
employed any broker or finder in connection with the transactions contemplated
by this Agreement. To the best of its knowledge, each Purchaser
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acknowledges receipt of, and the opportunity to review, the information that it
believes necessary to make an investment in the Securities, including, without
limitation, the Financial Statements and the other documents referenced in this
Agreement as having been delivered to the Purchasers by the Company.
ARTICLE V
CONDITIONS OF OBLIGATIONS OF THE PURCHASERS
The obligations of each of the Purchasers under this Agreement are subject
to the fulfillment to their reasonable satisfaction, or the waiver by the
Purchasers, on or prior to the Closing Date of each of the following conditions:
5.1. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties of the Company in Article III hereof shall be true and correct on and
as of the date hereof, and shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as if they had been
made on and as of the Closing Date.
5.2. PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with on or prior to the Closing Date
by the Company shall have been performed or complied with by the Company in all
material respects on or prior to the Closing Date.
5.3. COMPLIANCE CERTIFICATE. The Company shall have delivered to the
Purchasers a certificate of the Company's President, dated the Closing Date,
certifying to the fulfillment of the conditions specified in Sections 5.1, 5.2
and 5.5 of this Agreement and such other matters as the Purchasers shall
reasonably request.
5.4. NO IMPEDIMENTS. No statute, judgment, order, decree of any court,
regulatory body, administrative agency or any other governmental agency or body
shall be in effect which would impose any material limitation on the ability of
the Purchasers to exercise full rights of ownership of the Securities.
5.5. NO MATERIAL ADVERSE CHANGE. Except as set forth in the Schedules
attached hereto and except for continued operating losses, since December 31,
1997, there shall have been no development, change or effect that would have a
Material Adverse Effect on the Company and there shall have been no material
adverse change in the Company's financial condition from that indicated in the
1997 Financial Statements.
5.6. LEGAL INVESTMENT. At the time of the Closing, the purchase of the
Securities by the Purchasers hereunder shall be legally permitted by all
statutes, rules and regulations to which the Purchasers and the Company are
subject.
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5.7. QUALIFICATIONS. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body that are now required in
connection with the lawful issuance and sale of the Securities pursuant to this
Agreement shall have been duly obtained and shall be in full force and effect on
and as of the Closing Date.
5.8. RULE 4460(i)(2) COMPLIANCE. The Company shall have complied with Rule
4460(i)(2) of the Marketplace Rules of the Nasdaq Stock Market, Inc. The Nasdaq
Stock Market, Inc. shall have granted the exception contemplated by Rule
4460(i)(2). The notice to stockholders of the Company contemplated by Rule
4460(i)(2) shall have been mailed at least ten (10) days prior to the Closing
Date.
5.9. ISSUANCE TAXES. All taxes imposed by law in connection with the
initial issuance, sale and delivery of the Securities shall have been fully paid
by the Company, and all laws imposing such taxes shall have been fully complied
with.
5.10. CERTIFICATE OF DESIGNATION. The Certificate of Designation of the
Preferred Stock, substantially in the form of Exhibit A, shall have been filed
with the Secretary of State of the State of Delaware.
5.11. TRIUMPH INVESTMENT. The Triumph Notes shall be prepaid in full
concurrently with the issuance and sale of the Notes. The investment of
Triumph-Connecticut Limited Partnership and certain related entities shall have
been restructured, effective the Closing Date, in accordance with Schedule 5.10.
5.12. PROCEEDINGS AND OTHER DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated by this Agreement shall have
been taken and the Purchasers shall have received such other documents and
instruments in form and substance reasonably satisfactory to them and their
counsel, as to such other matters incident to the transaction contemplated
hereby as they may reasonably request.
5.13. OPINION OF COUNSEL. The Purchasers shall have received the opinion of
Hale and Dorr LLP, counsel for the Company, dated the Closing Date,
substantially in the form attached hereto as Exhibit E.
5.14. CONSENTS, WAIVERS, ETC. Prior to the Closing, the Company shall have
obtained all consents or waivers, if any, necessary to execute and deliver this
Agreement, issue the Securities and carry out the transactions contemplated
hereby and thereby, and all such consents and waivers shall be in full force and
effect.
5.15. OTHER MATTERS. The Company shall have delivered to the Purchasers (i)
certificates (in definitive form) in the denominations specified by the
respective Purchasers and registered in their respective names (or in the names
of their respective nominees) representing the Preferred
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Stock, (ii) Subordinated Notes (in definitive form) in the denominations
specified by the respective Purchasers and registered in their respective names
(or the names of their respective nominees), (iii) certificates (in definitive
form) in the denominations specified by the respective Purchasers and registered
in their respective names (or in the names of their respective nominees)
representing the Warrants and (iv) the following:
(a) A certified copy of the Company's certificate of incorporation and
all amendments thereto, appropriately authenticated;
(b) A copy of the Company's bylaws, as amended to date, certified as
being true by a principal officer of the Company; and
(c) A certificate of good standing and tax status of the Company as a
foreign corporation certified as of a recent date by the Secretary of State of
the Commonwealth of Massachusetts, and from every jurisdiction in which the
Company is qualified to do business.
5.16. SBIC DOCUMENTATION. The Company shall have executed and
delivered to each holder of Securities which is a "small business investment
company" under the Small Business Act the US Small Business Administration Size
Status Declaration and the US Small Business Administration Assurance of
Compliance for Nondiscrimination.
5.17. PAYMENT OF PURCHASE PRICE. Each of the other Purchasers shall
have paid to the Company the respective portion of the aggregate purchase price
set forth in Section 1.2 hereof for the shares of Preferred Stock, Subordinated
Notes and Warrants set forth opposite his or its name on Schedule 1 attached
hereto.
ARTICLE VI
CONDITIONS OF OBLIGATIONS OF THE COMPANY
The Company's obligations under this Agreement are subject to the
fulfillment to its reasonable satisfaction, or the waiver by the Company, on or
prior to the Closing Date of each of the following conditions:
6.1. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties of the Purchasers in Article IV hereof shall be true and correct in
all material respects on and as of the date hereof and shall be true and correct
in all material respects on and as of the Closing Date with the same force and
effect as if they had been made on and as of the Closing Date.
6.2. LEGAL INVESTMENT. At the time of the Closing, the purchase of the
Securities by the Purchasers hereunder shall be legally permitted by all
statutes, rules and regulations to which the Purchasers and the Company are
subject.
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6.3. PAYMENT OF PURCHASE PRICE. The Company shall have received payment in
full of the aggregate purchase price required to be paid under Article I.
6.4. PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with on or prior to the Closing Date
by the Purchasers shall have been performed or complied with in all respects on
or prior to the Closing Date.
ARTICLE VII
AFFIRMATIVE COVENANTS OF THE COMPANY
The Company hereby covenants and agrees, so long as the Purchasers are the
holders, in the aggregate, of (i) Securities convertible into, exercisable for
or representing at least five percent (5% ) (the "Minimum Percentage") of the
aggregate number of shares of Common Stock outstanding or issuable upon the
conversion, exchange or exercise of any convertible securities, options, rights
or warrants outstanding and (ii) any shares of Preferred Stock or any Notes
(unless a different duration is set forth in a particular section), as follows:
7.1. REPORTS. The Company will deliver to each of the Purchasers:
(a) FINANCIAL INFORMATION.
(i) within thirty (30) days after the end of each of the twelve
(12) monthly accounting periods in each fiscal year (or when furnished to
the Board of Directors, if earlier), unaudited consolidated and
consolidating statements of income and retained earnings and cash flows of
the Company and its subsidiaries, if any, for each monthly period and for
the period from the beginning of such fiscal year to the end of such
monthly period, together with consolidated and consolidating balance sheets
of the Company and its subsidiaries, if any, as at the end of each monthly
period, setting forth in each case comparisons to budget and to
corresponding periods in the preceding fiscal year which statements will be
prepared in accordance with GAAP, consistently applied subject to the
absence of footnotes and year-end adjustments;
(ii) within ninety (90) days after the end of each fiscal year,
consolidated and consolidating statements of income and retained earnings
and cash flows of the Company and its subsidiaries, if any, for the period
from the beginning of each fiscal year to the end of such fiscal year, and
consolidated and consolidating balance sheets as at the end of such fiscal
year, setting forth in each case in comparative form corresponding figures
for the preceding fiscal year, which statements will be prepared in
accordance with GAAP, consistently applied (except as approved by the
accounting firm examining such statements and disclosed by the Company) and
will be accompanied by:
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(A) a report on the consolidated statements of a public accounting
firm reasonably acceptable to the Purchasers or one of the public
accounting firms currently known as the "Big Six" (either, an "Approved
Accounting Firm"); and
(B) a report from such accounting firm, addressed to each
Purchaser, stating that in making the audit necessary to express their
opinion on such financial statements, nothing has come to their attention
which would lead them to believe that the Company is not in compliance with
all the financial covenants contained in this Agreement (an "Event of
Noncompliance") or, if such accountants have reason to believe that any
Event of Noncompliance has occurred, a letter specifying the nature thereof
(the Company shall use its best efforts to procure and deliver to the
Purchasers a similar report with respect to compliance with all the
financial covenants contained in any other agreement for Borrowed Money
Indebtedness); and
(C) the management letter of such accounting firm, if any;
(iii) within thirty (30) days after the end of each quarterly
accounting period in each fiscal year, a certificate of the Principal
Financial Officer of the Company stating on behalf of the Company that the
Company is in compliance in all material respects with the terms of this
Agreement and each of the Company and its subsidiaries, if any, is in
compliance in all material respects with every other material contract or
commitment to which the Company or any of such subsidiaries is a party, as
the case may be, or if a material Event of Noncompliance has occurred,
specifying the nature and period of noncompliance, and what actions the
Company or such subsidiary has taken and/or proposes to take with respect
thereto. Notwithstanding the foregoing, the certificate delivered at the
end of each fiscal year of the Company shall be signed on behalf of the
Company by both the Principal Executive Officer and the Principal Financial
Officer of the Company and shall be delivered within sixty (60) days after
the end of the fiscal year;
(iv) promptly upon receipt thereof, any additional reports or
other detailed information concerning significant aspects of the operations
and condition, financial or otherwise, of the Company and its subsidiaries,
if any, given to the Company by its independent accountants;
(v) by June 15, 1998 or at least thirty (30) days prior to the end
of each fiscal year thereafter, a detailed annual operating budget and
business plan for the Company and its subsidiaries, if any, for the balance
of fiscal 1998 or such other fiscal year thereafter, as the case may be.
Such budgets shall be prepared on a monthly basis, displaying consolidated
statements of anticipated income and retained earnings, consolidated
statements of anticipated cash flow and projected
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consolidated balance sheets, setting forth in each case the assumptions
(which assumptions and projections shall represent and be based upon the
good faith best judgment in respect thereof of the Chief Executive Officer
of the Company) behind the projections contained in such financial
statements, and which budgets shall have been approved by the Board of
Directors of the Company for fiscal 1998 or prior to the beginning of each
twelve-month period thereafter to which they pertain and, promptly upon
preparation thereof, any other budgets that the Company may prepare and any
revisions of such annual or other budgets;
(vi) within ten (10) days after transmission thereof, copies of
all financial statements, proxy statements, reports and other
communications which the Company sends to its stockholders, and copies of
all registration statements and all regular, special or periodic reports
which it files with the Securities and Exchange Commission (the "SEC") or
with any securities exchange on which any of the securities of the Company
are then listed or proposed to be listed, copies of all press releases and
other statements made generally available by the Company to the public
concerning material developments in the business of the Company and its
subsidiaries, if any, and copies of all material communications sent to and
received from any lender to the Company or any subsidiary of the Company;
and
(vii) with reasonable promptness such other information and
financial data concerning the Company as the Purchasers may reasonably
request, including, without limitation, information and financial data with
respect to the use of proceeds by the Company from the sale of the
Securities.
(b) NOTICE OF ADVERSE CHANGE. Promptly after the occurrence thereof (but in
any event within seven (7) days) after such occurrence is known to the Company)
notice of any condition or event which constitutes, or the occurrence of, any of
the following:
(i) any Event of Noncompliance; or
(ii) the institution or threatened institution of an action, suit or
proceeding against the Company or any of its subsidiaries by or before any
court, regulatory authority, administrative agency or any other
governmental agency or body, domestic or foreign, which, if adversely
decided, could have a Material Adverse Effect.
7.2. ACCOUNTS AND RECORDS. The Company shall keep true records and books of
account in which entries will be made of all dealings or transactions in
relation to the business and affairs of the Company and its subsidiaries, if
any, in accordance with GAAP, to the extent applicable, applied on a consistent
basis.
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7.3. INSPECTION. The Company shall permit Furman Selz Investments, LLC,
BancBoston Ventures Inc. or any of their officers, employees, representatives or
such other person as the Purchasers may designate (the "Purchaser
Representative") during regular business hours of the Company, upon reasonable
notice and as often as such Purchaser Representative may reasonably request, to
visit and inspect the offices and properties of the Company and to (i) review
and make extracts or copies of the books, accounts and records of the Company,
and (ii) discuss the affairs, finances and accounts of the Company, with the
Company's directors and officers, independent public accountants, consultants
and attorneys.
7.4. INDEPENDENT ACCOUNTANTS. The Company will retain an Approved
Accounting Firm to audit the Company's financial statements at the end of each
fiscal year. In the event the services of the Approved Accounting Firm shall be
terminated, the Company shall promptly notify the Purchasers of the occurrence
of such event and shall promptly thereafter request the firm of independent
public accountants whose services are terminated to deliver to the Purchasers a
letter of such firm setting forth its understanding as to the reasons for the
termination of its services and whether there were, during the two most recent
fiscal years or such period during which said firm had been retained by the
Company, any disagreements between it and the Company on any matter of
accounting principles or practices, financial statement disclosure, or auditing
scope or procedure. In its notice, the Company shall state whether the change of
accountants was recommended or approved by the Board of Directors or any
committee thereof. In the event of such termination, the Company will promptly
thereafter engage another Approved Accounting Firm approved by the holders of at
least 80% of the sum of (i) the aggregate outstanding principal amount of the
Notes outstanding and (ii) the aggregate liquidation preference of the shares of
Preferred Stock outstanding, which approval shall not be unreasonably withheld.
7.5. BOARD MEMBERS AND MEETINGS.
(a) The Company's Board of Directors shall consist of nine directors.
The Company agrees to hold meetings of its Board of Directors at least four
times a year, at least once per calendar quarter. The Purchasers shall have the
right to have one (1) nominee included on the Board of Directors' slate of
nominees to stand for election to the Board of Directors. The director of the
Company designated by the Purchasers pursuant to this Section 7.5(a) shall be
referred to hereinafter as the "Purchaser Director."
(b) If at any time the Board of Directors designates a committee or
committees to act on behalf of the Board, the Purchaser Director shall be a
member of such committee or committees.
(c) No more than three (3) of the members of the Company's Board of
Directors shall be employed, or otherwise be compensated (other than normal
director's compensation (I.E., meeting fees, expense reimbursements and stock
options)), by the Company.
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(d) The Company shall pay fees to the Purchaser Director in an amount
not less than the fees paid to any other director of the Company who is not an
executive officer of the Company, and shall reimburse such director for his or
her reasonable expenses incurred in attending each Board or committee meeting or
otherwise serving as a director.
(e) Notwithstanding any other provision of this Agreement, the
covenants and agreements of the Company set forth in this Section 7.5 shall
remain in full force and effect so long as the Purchasers are the holders, in
the aggregate, of shares of Common Stock or Securities convertible into,
exercisable for or representing at least ten percent (10%) of the aggregate
number of shares of Common Stock outstanding or issuable upon the conversion,
exchange or exercise of any convertible securities, options, rights or warrants
outstanding.
7.6. USE OF PROCEEDS. The Company shall use all the proceeds received from
the sale of the Securities pursuant to this Agreement (i) for the repayment of
the Triumph Notes, (ii) general corporate purposes, including capital
expenditures and working capital, (iii) the payment of any compensation to Cowen
and Company in connection with the transactions contemplated by this Agreement,
which compensation shall not exceed $400,000 in the aggregate and (iv) the
payment of reasonable legal fees and disbursements, accounting fees and fees
payable to The Nasdaq Stock Market, Inc. and to the Purchasers or their
representatives incurred in connection with the transactions contemplated by
this Agreement.
7.7. RIGHT OF FIRST REFUSAL. The Company hereby grants to the Purchasers
the right of first refusal to purchase (pro rata to their respective ownership
(assuming conversion of all Preferred Stock or Convertible Notes and exercise of
all Warrants as of the date of the commencement of the Exercise Period defined
below) of (i) Preferred Conversion Shares or Note Conversion Shares and (ii)
Warrant Shares or as the Purchasers may otherwise agree), all (or any part) of
the percentage (the "Purchasers' Share") of New Securities (as hereinafter
defined), corresponding to the percentage of outstanding Common Stock and Common
Stock issuable upon exercise, conversion or exchange of convertible securities,
options, rights and warrants then outstanding (excluding convertible securities,
options, rights of warrants, other than the Preferred Stock or Convertible Notes
and Warrants, which have a conversion price or exercise price in excess of the
Closing Price (as such term is defined in Section 12.1 of this Agreement) of the
Common Stock on the date of the commencement of the Exercise Period defined
below) represented by the (i) Preferred Conversion Shares or Note Conversion
Shares and (ii) Warrant Shares held (assuming conversion of all Preferred Stock
or Convertible Notes and exercise of all Warrants as of the date of the
commencement of the Exercise Period defined below) by them, which the Company
may, from time to time, sell and issue, provided that the Purchasers' Share
shall be calculated immediately before the sale or issuance of New Securities.
Each Purchaser, which shall have exercised its right hereunder in full, shall
have a right of over-allotment such that if any Purchaser fails to exercise its
right hereunder to purchase its pro rata portion of the Purchasers' Share of New
Securities, such Purchasers may purchase the non-purchasing Purchaser's portion
on a pro rata basis within five (5) business days from the date such
non-purchasing Purchaser fails to exercise its right hereunder to purchase its
pro rata share of the
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Purchasers' Share of New Securities. This right of first refusal shall be
subject to the following provisions:
(a) "New Securities" shall mean any capital stock of the Company
whether now authorized or not and any securities convertible into or
exchangeable or exercisable for capital stock of the Company; provided that, the
term "New Securities" does not include (i) the Securities and the securities
issued upon conversion, exercise or exchange of any of the Securities purchased
under this Agreement, securities issued upon exercise of the Warrants or other
currently outstanding Derivative Securities; (ii) securities offered pursuant to
an effective registration statement under the Securities Act; (iii) securities
issued pursuant to the acquisition of another corporation by the Company by
merger, purchase of substantially all the assets or other reorganization
resulting in the ownership by the Company of not less than a majority of the
voting power of such corporation; (iv) securities issued incident to
transactions or series of transactions which consist solely of technology
licensing arrangements, strategic alliances with pharmaceutical companies,
product co-promotion or product distribution arrangements (such as partnerships
or joint ventures); (v) shares of Common Stock or rights, options or warrants to
acquire Common Stock issued to directors, employees or consultants of the
Company pursuant to a stock option plan, employee stock purchase plan,
restricted stock plan or other similar stock plan or agreement (and, in the case
of rights, options or warrants, the Common Stock issued or issuable upon
exercise thereof) and approved by the Board of Directors; and (vi) securities
issued as a result of any stock split, combination, dividend, distribution,
reclassification, exchange or substitution.
(b) In the event the Company proposes to undertake an issuance of New
Securities, it shall give each Purchaser written notice of its intention,
describing the type of New Securities, the price and the general terms upon
which the Company proposes to issue the same. Each Purchaser shall have fifteen
(15) business days from the date of receipt of any such notice (the "Exercise
Period") to agree to purchase all or a portion of its pro rata share of the
Purchasers' Share of such New Securities for the price and upon the general
terms specified in the notice by giving written notice to the Company, which
notice shall state the quantity of New Securities to be purchased by it and the
date on which such purchase shall occur (which shall be not less than ten (10)
nor more than fifteen (15) business days after the date of receipt of such
notice).
(c) In the event the Purchasers' right of first refusal is not
exercised within the Exercise Period and after the expiration of the five (5)
business day period for the exercise of the over-allotment provisions of this
Section 7.7 as to any or all of the New Securities (the "Remaining New
Securities"), the Company shall have one hundred and twenty (120) days after the
expiration of the Exercise Period (the "Offering Period") to sell or enter into
an agreement (pursuant to which the sale of the Remaining New Securities covered
thereby shall be closed, if at all, within ninety (90) days from the date of
said agreement) to sell the Remaining New Securities at a price and upon general
terms no more favorable to the purchasers thereof than specified in the
Company's notice. In the event the Company has not sold within the Offering
Period or entered into an agreement to sell the Remaining New Securities within
the Offering
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Period (or sold and issued Remaining New Securities in accordance with the
foregoing within ninety (90) days from the date of said agreement), the Company
shall not thereafter issue or sell any New Securities, without first offering to
the Purchasers the right to purchase their pro rata share of the Purchasers'
Share thereof, in the manner provided above.
(d) The right of first refusal granted under this Agreement shall
expire on the seventh anniversary of the Closing Date.
(e) The right of first refusal set forth in this Section 7.7 is
nonassignable, except that such right is assignable by a Purchaser to one or
more of its Affiliates (as such term is defined in Rule 144 under the Securities
Act) in connection with a transfer of Securities and in accordance with Section
17.3.
(f) Notwithstanding any other provision of this Agreement, the
covenants and agreements of the Company set forth in this Section 7.7 shall
remain in full force and effect until the earlier of (i) the seventh anniversary
of the Closing Date or (ii) such time as the Purchasers cease to be the holders,
in the aggregate, of shares of Common Stock or Securities convertible into,
exercisable for or representing at least five percent (5% ) of the aggregate
number of shares of Common Stock outstanding or issuable upon the conversion,
exchange or exercise of any convertible securities, options, rights or warrants
outstanding.
7.8. RULE 144A INFORMATION. In the event the Company is not subject to
Section 13 or 15(d) of the Securities and Exchange Act of 1934 (the "Exchange
Act"), the Company will (i) make available, upon request, to any holder of
Securities and any prospective purchaser thereof designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act and (ii) update such information from time
to time in order to prevent such information from becoming false and misleading
and will take such other actions as are necessary to ensure that the safe harbor
exemption from the registration requirements of the Securities Act under Rule
144A is and will be available for resales of the Securities conducted in
accordance with Rule 144A.
7.9. POST-CLOSING REVIEW. Within ninety (90) days following the Closing
Date, the Company shall deliver to each Purchaser a certificate of the President
of the Company stating that the proceeds from the sale of the Preferred Stock,
the Subordinated Notes and the Warrants were used for the purpose specified in
Section 7.6 hereof.
7.10. FURTHER ASSURANCES. From time to time the Company shall execute and
deliver to the holders of Securities such other instruments, certificates,
agreements and documents and take such other action and do all other things as
may be reasonably requested by such holders in order to implement or effectuate
the terms and provisions of this Agreement.
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ARTICLE VIII
NEGATIVE COVENANTS
The Company hereby covenants and agrees, that so long as the Purchasers are
the holders, in the aggregate, of (i) Securities convertible into, exercisable
for or representing at least the Minimum Percentage of the aggregate number of
shares of Common Stock outstanding or issuable upon the conversion, exchange or
exercise of any convertible securities, options, rights or warrants outstanding
and (ii) any shares of Preferred Stock or any Notes, it will not, and will not
suffer or permit any Subsidiary of the Company to, do any of the following:
8.1. BORROWED MONEY INDEBTEDNESS. Create, incur, suffer or permit to exist,
or assume or guarantee, directly or indirectly, or become or remain liable with
respect to any Borrowed Money Indebtedness, whether direct, indirect, absolute,
contingent or otherwise, except the following: (a) the Subordinated Notes and,
if issued, the Convertible Notes; (b) the liabilities existing on the date of
this Agreement and disclosed in the financial statements delivered on or prior
to the Closing Date pursuant to Section 3.7 hereof, and all renewals, extensions
and replacements (but not increases) of any of the foregoing, provided that the
accrual of interest on such liabilities, so long as it is not converted to
principal, shall not be deemed to increase such liabilities; (c) principal of up
to $3,000,000 of Borrowed Money Indebtedness from financial institutions in the
aggregate outstanding at any time; (d) purchase money indebtedness to the extent
allowed by the other provisions of this Agreement; (e) capitalized lease
obligations to the extent allowed by the other provisions of this Agreement; and
(f) principal of up to $3,000,000 of Borrowed Money Indebtedness outstanding at
any time so long as such debt shall rank pari passu or subordinate to the Notes.
8.2. LIENS. Create or suffer to exist any Lien upon any of its Property now
owned or hereafter acquired, or acquire any Property upon any conditional sale
or other title retention device or arrangement or any purchase money security
agreement; provided, however, that any the Company or any Subsidiary may create
or suffer to exist Permitted Liens.
8.3. CONTINGENT LIABILITIES. Directly or indirectly guarantee the
performance or payment or, or purchase or agree to purchase, or assume or
contingently agree to become or be secondarily liable in respect of, any
obligation or liability of any other Person except for (a) the endorsement of
checks or other negotiable instruments in the ordinary course of business; (b)
obligations disclosed to Purchasers in the financial statements delivered on or
prior to the Closing Date pursuant to Section 3.7 hereof (but not increases of
such obligations after the Closing Date, provided that the accrual of interest
on such obligations, so long as it is not converted to principal, shall not be
deemed to increase such obligations); (c) obligations in respect of employees
which shall not exceed an aggregate amount equal to $200,000 at any time
outstanding and (d) those liabilities permitted under Section 8.1 hereof.
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8.4. MERGERS, CONSOLIDATIONS AND DISPOSITIONS AND ACQUISITIONS OF ASSETS.
In any single transaction or series of related transactions, directly or
indirectly: (a) liquidate or dissolve; (b) be a party to any merger or
consolidation unless and so long as (i) no Default or Event of Default has
occurred that is then continuing; (ii) immediately thereafter and giving effect
thereto, no event will occur and be continuing which constitutes a Default;
(iii) the Company, or the Subsidiary, if any, is the surviving Person; and (iv)
the Purchasers are given at least twenty (20) days' prior notice of such merger
or consolidation; (c) sell, convey or lease all or any substantial part of its
assets, except for sale of Property in the ordinary course of business, or (d)
pledge, transfer or otherwise dispose of any equity interest in any Subsidiary,
if any exist, or issue or permit any Subsidiary, if any exist, to issue any
additional equity interests except to the Company or another Subsidiary. Nothing
in this Agreement shall prohibit the Company from selling obsolete equipment or
from replacing used equipment in the ordinary course of business.
8.5. REDEMPTION, DIVIDENDS AND DISTRIBUTIONS. At any time, except as
contemplated by this Agreement or the terms of the Securities: (a) redeem,
retire or otherwise acquire, directly or indirectly, any equity interest of the
Company or any Subsidiary or (b) make any distributions of any Property or cash
in respect of any of its capital stock.
8.6. NATURE OF BUSINESS. Change the nature of its business or enter into
any business which is substantially different from the business in which it is
presently engaged.
8.7. TRANSACTIONS WITH RELATED PARTIES. Enter into any transaction or
agreement with any officer, director or beneficial owner of five percent (5% )
or more of the outstanding Common Stock in the Company or any Subsidiary (or any
Affiliate of any such Person) unless the same is upon the best terms obtainable
from wholly unrelated sources (the best knowledge of the executive officers of
the Company or Affiliate, after making reasonable inquiry of the personnel and
records of the Company or Affiliate). The provisions of this Section 8.7 shall
not apply to (i) the fees and compensation paid or indemnity provided on behalf
of officers, directors, employees or consultants of the Company or any
Subsidiary, as determined by the Board of Directors of the Company or such
Subsidiary or the senior management thereof in good faith and (ii) transactions
exclusively between or among Subsidiaries provided such transactions are not
otherwise prohibited by this Agreement.
8.8. LOANS AND INVESTMENTS. Make any loan, advance, extension of credit or
capital contribution to, or make or have any Investment in, any Person, or make
any commitment to make any such extension of credit or Investment, except (a)
Permitted Investments, and (b) normal and reasonable advances in the ordinary
course of business to officers and employees.
8.9. SUBSIDIARIES. Without the consent of the Purchasers, form, create or
acquire any Subsidiary or permit any Person other than the Company or a
wholly-owned Subsidiary to hold an equity interest in any Subsidiary.
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8.10. ORGANIZATIONAL DOCUMENTS. Amend, modify, restate or supplement its
Certificate of Incorporation or Bylaws if such action could reasonably be
expected to materially and adversely affect the abilities of the Company to
perform its obligations under this Agreement or the Securities, unless such
action shall be consented to in writing by the holders of at least eighty
percent (80%) of the sum of (i) the aggregate outstanding principal amount of
the Notes outstanding and (ii) the aggregate liquidation preference of the
shares of Preferred Stock outstanding.
8.11. LEASE EXPENSES; PURCHASE MONEY INDEBTEDNESS. Permit aggregate
operating lease expenses (excluding lease payments under capital leases), for
the Company and its Subsidiaries in the aggregate in any fiscal year, to exceed
$500,000. Incur or create new capital lease obligations or purchase money
indebtedness in any fiscal year in excess of $200,000 in the aggregate for the
Company and its Subsidiaries. Permit aggregate capital lease obligations and
purchase money indebtedness outstanding at any one time to exceed $500,000 in
the aggregate for the Company and its Subsidiaries.
8.12. SALE/LEASEBACKS. Enter into any sale/leaseback transactions except as
permitted under the provisions of Section 8.11.
8.13. CONTROL CERTIFICATION. The Company shall do all such acts and furnish
to each holder of Securities which is a "small business investment company"
under the Small Business Act such certificates, corporate consents or other
documents as such holder may reasonably request from time to time in connection
with the preparation and implementation of any Control Certification which it
may from time to time be required to file with the Small Business Administration
in accordance with Section 107.865 of the regulations under the Small Business
Act, 13 C.F.R. ss.107.865.
8.14. DEFINITIONS. For purposes of this Article VIII, the following terms
shall have the meanings set forth in this Section 8.14.
AFFILIATE means any Person controlling, controlled by or under common
control with any other Person. For purposes of this definition, "CONTROL"
(including "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
BORROWED MONEY INDEBTEDNESS means, with respect to any Person,
without duplication, (i) all obligations of such Person for borrowed money, or
with respect to deposits or advances of any kind to such Person, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (iii) all obligations of such Person upon which interest charges
are customarily paid, (iv) all obligations of such Person under conditional sale
or other title retention agreements relating to Property purchased by such
Person, (v) all obligations of such Person issued or assumed as the deferred
purchase price of property or services (excluding
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obligations of such Person to creditors for raw materials, inventory, services
and supplies and deferred payment for services to employees and former employees
incurred in the ordinary course of such Person's business), (vi) all capital
lease obligations, (vii) all obligations of others secured by any Lien on
property or assets owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (viii) all outstanding letters of
credit issued for the account of such Person and (ix) all guarantees of such
Person.
GAAP means, as to a particular Person, such accounting practice as, in
the opinion of independent certified public accountants of recognized national
standing regularly retained by such Person, conforms at the time to generally
accepted accounting principles, consistently applied. GAAP means those
principles and practices (a) which are recognized as such by the Financial
Accounting Standards Board and its predecessors; and (b) which are consistently
applied for all periods after the Closing Date so as to present fairly the
financial condition, and results of operations and cash flows, of such Person.
INDEBTEDNESS means and include (a) all items which in accordance with
GAAP would be included on the liability side of a balance sheet on the date as
of which Indebtedness is to be determined (excluding capital stock, surplus,
surplus reserves and deferred credits); (b) all guaranties, letter of credit
contingent reimbursement obligations and other contingent obligations in respect
of, or any obligations to purchase or otherwise acquire, indebtedness of others,
and (c) all indebtedness secured by any Lien existing on any interest of the
Person with respect to which indebtedness is being determined in Property owned
subject to such Lien whether or not the indebtedness secured thereby shall have
been assumed.
INVESTMENT means the purchase or other acquisition of any securities
or Indebtedness of, or the making of any loan, advance, transfer of Property
(other than transfers in the ordinary course of business) or capital
contribution to, or the incurring of any liability, contingently or otherwise,
in respect of the Indebtedness of, any Person.
LIEN means any mortgage, pledge, charge, encumbrance, security
interest, collateral assignment or other lien or restriction of any kind,
whether based on common law, constitutional provision, statute or contract, and
shall include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions and other title exceptions.
PERMITTED INVESTMENTS shall mean: (i) readily marketable securities
issued or fully guaranteed by the United States of America with maturities of
not more than one year; (ii) commercial paper rated "Prime 1" by Moody's
Investors Service, Inc. or "A-1" by Standard and Poor's Ratings Services with
maturities of not more than 180 days; (iii) certificates of deposit or
repurchase obligations issued by any bank organized under the laws of the United
States of America or any state thereof having capital surplus of at least
$100,000,000 or by any other financial institution acceptable to the Purchasers,
all of the foregoing not having a maturity of
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more than one year from the date of issuance thereof, and (d) other Investments
not exceeding, in the aggregate, $50,000 in any fiscal year.
PERMITTED LIENS means each of the following: (a) artisans' or
mechanics' Liens arising in the ordinary course of business, and Liens for
taxes, but only to the extent that payment thereof shall not at the time be due
or if due, the payment thereof is being diligently contested in good faith and
adequate reserves computed in accordance with GAAP have been set aside therefor;
(b) Liens in effect on the Closing Date and disclosed to the Purchasers in the
financial statements delivered on or prior to the Closing Date pursuant to
Section 3.7 hereof, provided that neither the Borrowed Money Indebtedness
secured thereby nor the Property covered thereby shall increase after the
Closing Date without the prior written consent of the Purchasers, provided that,
for purposes of this clause (b), the accrual of interest on such Borrowed Money
Indebtedness, so long as it is not converted to principal, shall not be deemed
to increase such Borrowed Money Indebtedness; (c) normal encumbrances and
restrictions on title which do not secure Borrowed Money Indebtedness and which
do not have a material adverse affect on the value or utility of the applicable
Property; (d) Liens incurred or deposits made in the ordinary course of business
(1) in connection with workmen's compensation, unemployment insurance, social
security and other like laws, or (2) to secure insurance in the ordinary course
of business, the performance of bids, tenders, contracts, leases, licenses,
statutory obligations, surety, appeal and performance bonds and other similar
obligations incurred in the ordinary course of business, not, in any of the
cases specified in this clause (2), incurred in connection with the borrowing of
money, the obtaining of advances or the payment of the deferred purchase price
of Property; (e) Liens in connection with or to secure Borrowed Money
Indebtedness permitted under Section 8.1(c); (f) attachments, judgments and
other similar Liens arising in connection with the court proceedings, provided,
that the execution and enforcement of such Liens are effectively stayed and the
claims secured thereby are being actively contested in good faith with adequate
reserved made therefor in accordance with GAAP; (g) Liens imposed by law, such
as carriers', warehousemen's, mechanics', materialmen's and vendors' liens,
incurred in good faith in the ordinary course of business and securing
obligations which are not yet due or which are being contested in good faith by
appropriate proceedings if adequate reserves with respect thereto are maintained
in accordance with GAAP; (h) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, and restrictions on
the use of Property, and which do not in any case single or in the aggregate
materially impair the present use or value of the Property subject to any such
restriction or materially interfere with the ordinary conduct of the business of
the Company or any Subsidiary, if any; (i) Liens securing purchase money
Indebtedness permitted under Section 8.1 hereof and covering the Property so
purchased; (j) capital leases and sale/leaseback transactions permitted under
the other provisions of this Agreement, and (k) extensions, renewals and
replacements of Liens referred to in paragraphs (a) through (j) of this Section;
provided that any such extension, renewal or replacement Lien shall be limited
to the Property or assets(and, in the case of clause (e), categories of Property
or assets) covered by the Lien extended, renewed or replaced and that the
Borrowed Money Indebtedness secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the amount of the
Indebtedness secured by the Lien extended, renewed or replaced.
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PERSON means any individual, corporation, association, company,
business trust, partnership, joint venture, joint-stock company, limited
liability company, trust, unincorporated organization or association or
government or any agency or political subdivision thereof.
PROPERTY means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
SUBSIDIARY of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than fifty
percent (50%) of the voting stock or other equity interests (in the case of
Persons other than corporations), is owned or controlled directly or indirectly
by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof.
ARTICLE IX
REDEMPTION
9.1. REDEMPTION OF SUBORDINATED NOTES. The Company may, at its option,
prior to maturity, redeem the Subordinated Notes, in whole or in part without
premium or penalty, at a price equal to the principal amount thereof plus
accrued interest thereon to the date fixed for redemption. Any redemption
payments made pursuant to this Section 9.1 shall be applied first to the payment
of accrued but unpaid interest on the principal amount of the Subordinated Notes
to be redeemed and thereafter to the principal amount to be redeemed. Any
redemption payments of Subordinated Notes shall be made to the holders thereof
in proportion to the respective principal amounts of Subordinated Notes
outstanding held by them.
9.2. NOTICE OF REDEMPTION OF SUBORDINATED NOTES. The Company shall give
notice of redemption, signed on behalf of the Company by its President and by
its Treasurer or an Assistant Treasurer to the holders of the Subordinated Notes
not less than five (5) days prior to the date upon which the redemption is to be
made pursuant to Section 9.1 (the "Subordinated Redemption Notice"), specifying
(i) the accrued and unpaid interest on each Subordinated Note (to and including
the date upon which the redemption is to be made), (ii) the aggregate principal
amount of each Subordinated Note to be redeemed and (iii) the date of such
redemption. The Subordinated Note Redemption Notice having been so given, the
aggregate principal amount of the Subordinated Notes so specified in such
Subordinated Note Redemption Notice, and all accrued and unpaid interest hereon,
shall be come due and payable on the specified redemption date.
9.3. REDEMPTION UPON CHANGE OF CONTROL, ETC.
(a) The Company shall give notice of any anticipated Change of Control
or Unaffiliated Merger anticipated by the Company (as such terms are defined in
this Section 9.3),
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signed on behalf of the Company by the President and by its Treasurer or any
Assistant Treasurer, to the holders of record of the Convertible Notes, if
outstanding, and the Subordinated Notes not less than twenty (20) days prior to
the anticipated date of the Change of Control or Unaffiliated Merger. The
Company shall give notice of any Change of Control, signed on behalf of the
Company by its President and by its Treasurer or any Assistant Treasurer to the
holders of record of the Convertible Notes, if outstanding, and the Subordinated
Notes not less than five (5) days (or twenty (20) days in the case of a Change
of Control described in Section 9.3(d)(iii)) following the date of the
consummation of the Change of Control.
(b) If there is a Change of Control (as such term is defined in this
Section 9.3) any holder of record of the Convertible Notes or the Subordinated
Notes may require the Company to redeem, at any time, within thirty-five (35)
days (or fifty (50) days in the case of a Change of Control described in Section
9.3(d)(iii)) of the consummation of the Change of Control, its Convertible
Notes, if outstanding, or Subordinated Notes, at a price equal to the principal
amount thereof plus accrued interest thereon to the date fixed for redemption.
The Company may be required to redeem, at any time or from time to time,
pursuant to this Section 9.3 (b) all of the Convertible Notes, if outstanding,
and (ii) all of the Subordinated Notes.
(c) If there is a Change of Control or Unaffiliated Merger (as such
terms are defined in this Section 9.3), the Company may, at its option, prior to
maturity, redeem not later than five (5) days (or twenty (20) days in the case
of a Change of Control described in Section 9.3(d)(iii)) after the effective
date of such Change of Control or Unaffiliated Merger, its Convertible Notes, if
outstanding, in whole and not in part without premium or penalty, at a price
equal to the principal amount thereof plus accrued interest thereon to the date
fixed for redemption. If the Company redeems any Convertible Notes pursuant to
this Section 9.3, it must redeem all of the Convertible Notes, if outstanding.
The right of the Company to redeem all Convertible Notes, if outstanding,
pursuant to this Section 9.3(c) is conditional upon the issuance to each holder
of the Convertible Notes new warrants (the "New Warrants") to purchase the
number of shares of Common Stock or other securities, cash or property that
would have been issued to such holder had such holder converted its Convertible
Notes immediately prior to the effective date of the Change of Control at a
price equal to the Conversion Price then in effect, substantially in the form of
the Warrants and having an exercise price equal to the then Conversion Price (as
defined in Article XII of this Agreement) of the Convertible Notes on the date
specified for redemption and a term ending on the same date as the expiration
date of the Warrants.
(d) For purposes of this Section 9.3, "Change of Control" means (i)
the sale, lease or transfer of all or substantially all of the Company's assets
to any Person or Group (as such term is used in Section 13(d)(3) of the Exchange
Act), (ii) the liquidation or dissolution of the Company, (iii) any Person or
any Persons acting together which would constitute a "group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, together with any Affiliates (as
defined in the Exchange Act) or Related Persons thereof (other than an employee
benefit plan of the Company) beneficially owns at least fifty percent (50%) of
the aggregate voting power of all classes of capital stock of the Company
entitled to vote generally in the election of directors of
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the Company; or (iv) any Person or Group, together with any Affiliates or
Related Persons thereof, shall succeed in having a sufficient number of its or
their nominees elected to the Board of Directors of the Company such that such
nominees, when added to any existing directors remaining on the Board of
Directors of the Company after such election who is an Affiliate or Related
Person of such Person or Group, shall constitute a majority of the Board of
Directors of the Company. "Related Person" of any Person means any other Person
directly or indirectly owning (i) twenty percent (20%) or more of the
outstanding common stock of such Person (or, in the case of a Person that is not
a corporation, twenty percent (20%) or more of the equity interest in such
Person) or (ii) twenty percent (20%) or more of the combined voting power of the
voting capital stock of such Person.
For purposes of this Section 9.3, an "Unaffiliated Merger" means the merger
or consolidation of the Company with a Person (as such term is defined in
Section 8.14) which is not an Affiliate (as such term is defined in Section
8.14) of the Company.
9.4. NOTICE OF REDEMPTION UPON CHANGE OF CONTROL, ETC.
(a) Any holder of record of the Convertible Notes or Subordinated
Notes shall give notice of redemption pursuant to Section 9.3(b) to the Company
not less than fifteen (15) and not more than sixty (60) days prior to the date
upon which the redemption is to be made pursuant to Section 9.3 (each, a "Holder
Redemption Notice") specifying the date for such redemption. A Holder Redemption
Notice having been so given, the aggregate principal amount of all Convertible
Notes or all Subordinated Notes, as the case may be, specified in such Holder
Redemption Notice and all accrued interest thereon, shall become due and payable
on the specified redemption date.
(b) The Company shall give notice of redemption pursuant to Section
9.3(c), signed on behalf of the Company by its President and by its Treasurer or
an Assistant Treasurer to the holders of the Convertible Notes, if outstanding,
not less than five (5) days prior to the date upon which the redemption is to be
made pursuant to Section 9.3(c) (the "Company Redemption Notice"), specifying
(i) the accrued and unpaid interest on each Convertible Note, if outstanding (to
and including the date upon which the redemption is to be made), and (ii) the
date of such redemption. The Company Redemption Notice having been so given, the
aggregate principal amount of the Convertible Notes, if outstanding, and all
accrued and unpaid interest hereon, shall become due and payable on the
specified redemption date and the New Warrants issuable to the holders of the
Convertible Notes, if outstanding, shall be issued on the specified redemption
date.
The Company shall provide, or cause the issuer of the New Warrants to
provide, to the recipients of the New Warrants a written representation and
warranty dated the date of issuance of the New Warrants to the effect that the
New Warrants have been duly authorized for issuance and the shares of Common
Stock or other securities issuable upon exercise of the New Warrants (the "New
Warrant Securities") have been duly authorized and reserved for issuance prior
to the Closing and when the New Warrants have been duly executed and delivered
by the issuer of the
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New Warrants, (i) the New Warrants will constitute valid and legally binding
obligations of the issuer of the New Warrants enforceable against the issuer of
the New Warrants in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity, (ii) the New
Warrants are exercisable for the New Warrant Securities or other cash or
property described therein in accordance with their terms, and (iii) the New
Warrant Securities, when issued and delivered in accordance with the provisions
of the New Warrants, will be validly issued, fully paid and nonassessable.
9.5. EFFECT OF REDEMPTION. On or prior to the redemption date, each holder
of Convertible Notes or Subordinated Notes to be redeemed shall surrender such
Notes to the Company, in the manner and at the place designated in the
Subordinated Note or Holder or Company Redemption Notice, as the case may be,
and thereupon the outstanding principal and accrued interest on such Notes shall
be payable to the order of the person whose name appears on such Notes as the
owner thereof and each surrendered Note shall be canceled. In the event less
than all the principal on any Subordinated Note is redeemed, a new Subordinated
Note shall be issued reflecting the unpaid principal thereon. From and after the
redemption date, unless there shall have been a default in the payment of the
redemption price or issuance of New Warrants, all rights of the holders of the
Notes designated for redemption as holders of Notes of the Company (except the
right to receive the redemption price without interest and (if applicable) the
New Warrants upon surrender of their Notes) shall cease with respect to such
Notes, and such Notes shall not thereafter be transferred on the books of the
Company or be deemed to be outstanding for any purpose whatsoever.
ARTICLE X
REGISTRATION RIGHTS
10.1. RESTRICTIVE LEGEND. Any certificates representing the Preferred
Stock, the Convertible Notes, the Subordinated Notes, the Warrants, the
Preferred Conversion Shares, the Note Conversion Shares, the Warrant Shares and
any other securities issued in respect of such securities upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
be stamped or otherwise imprinted with a legend in the following form (in
addition to any legend required under other applicable securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE 'ACT'), OR ANY STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
REASONABLY
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SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
10.2. CERTAIN DEFINITIONS. As used in this Article X, the following terms
shall have the following respective meanings:
"HOLDERS" shall mean the holders of Registrable Securities.
"INITIATING HOLDERS OF REGISTRABLE CONVERSION SHARES" shall mean any
persons who in the aggregate are holders of at least a majority of the
Registrable Conversion Shares.
"INITIATING HOLDERS OF REGISTRABLE WARRANT SHARES" shall mean any
persons who in the aggregate are holders of at least a majority of the
Registrable Warrant Shares which have not been sold to the public.
"REGISTRABLE CONVERSION SHARES" shall mean (i) the Preferred
Conversion Shares and the Note Conversion Shares and (ii) any other securities
issued in respect of the Preferred Conversion Shares or the Note Conversion
Shares upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, provided, however, that shares of Common Stock
which are Registrable Conversion Shares shall cease to be Registrable Conversion
Shares upon any sale pursuant to a Registration Statement, Section 4(1) of the
Securities Act or Rule 144 under the Securities Act, or any sale in any manner
to a person or entity which, by virtue of Section 17.3 of this Agreement is not
entitled to the rights provided by Article X or at such time as the Holder of
such shares may sell under Rule 144 under the Securities Act in a three-month
period all Registrable Securities then held by such Holder.
"REGISTRABLE SECURITIES" shall mean the Registrable Conversion Shares
collectively with the Registrable Warrant Shares.
"REGISTRABLE WARRANT SHARES" shall mean the Warrant Shares and any
other securities issued in respect of the Warrant Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event,
provided, however, that shares of Common Stock which are Registrable Warrant
Shares shall cease to be Registrable Warrant Shares upon any sale pursuant to a
Registration Statement, Section 4(1) of the Securities Act or Rule 144 under the
Securities Act, or any sale in any manner to a person or entity which, by virtue
of Section 17.3 of this Agreement is not entitled to the rights provided by
Article X or at such time as the Holder of such shares may sell under Rule 144
under the Securities Act in a three-month period all Registrable Securities then
held by such Holder.
The terms "register," "registered" and "registration" shall refer to
a registration effected by preparing and filing a registration statement (other
than a registration statement on Form S-4 or Form S-8, or their successors, or
any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation) in compliance
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with the Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of the effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in compliance with Sections 10.3 and 10.4 hereof, including, without
limitation, all registration and filing fees (including with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and the NASD Regulation, Inc.), printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses (including fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications), fees and disbursements of all independent certified public
accountants (including the expenses of any special audits and "comfort" letters
required by or incident to such performance), reasonable fees and disbursements
for one counsel for all the selling Holders, fees and expenses incurred in
connection with the listing of the securities on a securities exchange or
quotation system, rating agency fees and the fees and expenses of any special
experts, except for Selling Expenses.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear or bearing a legend which is the same as or similar to the
legend set forth in Section 10.1 hereof.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
"UNDERWRITTEN OFFERING" shall mean the offering and sale of
Registrable Securities in a registration pursuant to a firm commitment
underwriting to an underwriter at a fixed price for reoffering or pursuant to
agency or best efforts arrangements with a placement agent or underwriter.
10.3. REQUESTED REGISTRATION.
(a) REQUESTS FOR REGISTRATION OF REGISTRABLE CONVERSION SHARES. At
any time after July 1, 1998, the Initiating Holders of Registrable Conversion
Shares may request registration of all or part of their Registrable Conversion
Shares under the Securities Act. Within ten (10) days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders of Registrable Conversion Shares. The Company will include in
such registration all Registrable Securities with respect to which it has
received written requests for inclusion therein within fifteen (15) days after
receipt of the Company's notice. Any registration effected by the Company under
this Section 10.3 is referred to herein as the "Conversion Demand Registration."
The Holders of Registrable Conversion Shares will be entitled to one (1)
Conversion Demand Registration.
(b) REQUESTS FOR REGISTRATION OF REGISTRABLE WARRANT SHARES. At any
time after July 1, 1998, the Initiating Holders of Registrable Warrant Shares
may request registration of all or part of their Registrable Warrant Shares
under the Securities Act. Within ten (10) days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders of Registrable Warrant Shares. The Company will include in
such registration all
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Registrable Warrant Shares with respect to which it has received written
requests for inclusion therein within fifteen (15) days after receipt of the
Company's notice. Any registration effected by the Company under this Section
10.3 is referred to herein as the "Warrant Demand Registration." The Holders of
Registrable Warrant Shares will be entitled to one (1) Warrant Demand
Registration. The Conversion Demand Registration and the Warrant Demand
Registration shall be collectively known as the "Demand Registrations".
(c) UNDERWRITTEN OFFERING. If the Holders initiating the registration
intend to distribute the Registrable Securities by means of an underwriting,
they shall so advise the Company in their request. In the event such
registration is underwritten, the right of other Holders to participate shall be
conditioned on such Holders' participation in such underwriting.
(d) COOPERATION BY THE COMPANY. The Company shall and shall cause its
management to cooperate fully and to use its best efforts to effect the
registration of Registrable Securities and the sale of Registrable Securities
pursuant to a request for a Demand Registration as promptly as is practicable;
provided, however, in the event that the Company reasonably determines, that it
is not then eligible to use a registration statement on Form S-3 or other short
form registration statement under the Securities Act, and the Company furnishes
to the Holders a certificate of an executive officer of the Company stating that
the Company has determined that such registration would have a Material Adverse
Effect, then the Company's obligation to effect such registration shall be
deferred for a period not to exceed ninety (90) days. Cooperation by the Company
and its management shall include, but not be limited to, management's attendance
and reasonable presentations in respect of the Company at a reasonable number of
road shows with respect to the offering of Registrable Securities.
(e) EXPENSES. The Company will pay all Registration Expenses for any
Demand Registration. A registration will not count as a Demand Registration
until it has become effective. A registration will count as a Demand
Registration after it has become effective unless such registration statement
has been withdrawn prior to the sale of all Registrable Securities covered
thereby at the request of the Holders (other than as a result of (i) an action
or omission to act by the Company which adversely affects the market for, or the
price of, Registrable Securities or (ii) a material adverse change in the
business, financial condition or prospects of the Company occurring after the
effective date of the registration statement); provided, however, that in any
event the Company will pay all Registration Expenses in connection with any
registration so initiated; provided, further, however, that the holders of
Registrable Securities may withdraw a registration without having it count as a
Demand Registration only once in any twelve month period.
(f) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is an
Underwritten Offering, and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities requested to
be included exceeds the number which can be sold in such offering, the Company
will include in such registration such number of shares, which in the opinion of
such underwriters, may be sold, allocated among the Holders electing to
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participate pro rata in accordance with the amounts of securities requested to
be so included by the respective Holders.
10.4. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any
of its securities (other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration and contemplated
disposition of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice to all Holders of Registrable Securities of its
intention to effect such a registration so that such notice is received by each
Holder at least twenty (20) days before the anticipated filing date. The Company
will include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within ten
(10) calendar days after the receipt of the Company's notice; provided that the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this Section 10.4 without obligation to any Holder.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the Holders of
Registrable Securities in connection with a Piggyback Registration will be paid
by the Company.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the
distribution of the Registrable Securities to be included in the Piggyback
Registration concurrently with the securities being registered on behalf of the
Company would materially adversely affect the distribution of such securities by
the Company, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the holders of Registrable
Securities who have requested registration and other holders of shares of Common
Stock entitled, pursuant to agreements in effect on the date of this Agreement,
to include shares of Common Stock in such registration shall participate in the
underwriting pro rata based upon their total ownership of shares of Common Stock
of the Company on an as if-converted basis; and (iii) third, any other
securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration initiated by holders of the Company's
securities other than the holders of the Registrable Securities, and the
managing underwriters advise the Company in writing that in their opinion the
distribution of the Registrable Securities in a Piggyback Registration
concurrently with the securities being registered on behalf of holders of the
Company's securities would materially adversely affect the distribution of such
securities, the Company will include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration, (ii) second, the holders of Registrable Securities who have
requested registration and other holders of shares of Common Stock entitled,
pursuant to agreements in effect on the date of this Agreement, to include
shares of Common Stock in such registration shall participate in the
underwriting pro rata based upon their total ownership of shares of Common Stock
of the
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Company on an as if-converted basis, and (iii) third, any other securities
requested to be included in such registration.
(e) OTHER RESTRICTIONS. In connection with any registration under
this Section 10.4 involving an underwriting, the Company shall not be required
to include any Registrable Securities in such underwriting unless the holders
thereof accept the terms of the underwriting as agreed upon between the Company,
the parties initiating the registration (if other than the Company) and the
underwriters. The Company hereby agrees that if it has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 10.3 or pursuant to this Section 10.4, and if such previous registration
has not been withdrawn or abandoned (for purposes of this Agreement, a
registration statement which has been filed but has not been declared effective
within six (6) months of the date of filing shall be deemed abandoned), the
Company will not file or cause to be effected any other registration of any of
its equity securities or securities convertible or exchangeable into or
exercisable for its equity securities (except on Form S-8 or any other similar
form for employee benefit plans), whether on its own behalf or at the request of
any holder or holders of such securities, until (i) six (6) months has elapsed
from the effective date of such previous registration or (ii) sooner if all
Registrable Securities included in such previous registration have been sold.
(f) TRIUMPH REGISTRATION. The provisions of this Section 10.4 shall
not be applicable to the registration statement on Form S-3 which the Company is
required to file on or about June 1, 1998 pursuant to the Securities Purchase
Agreement dated as of January 31, 1997, as amended, by and among the Company,
Triumph-Connecticut Limited Partnership and the other purchasers named therein.
10.5. HOLDBACK AGREEMENTS.
(a) Each Holder of Registrable Securities which is a party to this
Agreement agrees not to effect any public sale or distribution of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the period commencing seven (7) days
prior to and ending ninety (90) days after the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or with the consent of the
managing underwriter). The commencement of such period shall be determined in
good faith by the managing underwriter and advised to the Holders, provided that
the executive officers and directors of the Company and each of the holders
(with which any officer of director of the Company is affiliated) of five
percent (5%) or more of the then outstanding shares of Common Stock on a fully
diluted basis (including for this purpose all shares issuable upon the
conversion, exchange or exercise of Derivative Securities) shall have entered
into similar agreements.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the period commencing
seven (7) days prior to and ending ninety (90) days after
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the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which a Holder participates (except (A) as part of
such underwritten registration, (B) with the consent of the managing underwriter
of such underwritten registration or (C) pursuant to registrations on Form S-8
or any other similar form for employee benefit plans), and (ii) to use its
reasonable best efforts to cause each officer or director of the Company or
holder of greater than 5% of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities with which
any officer or director of the Company is affiliated, to agree not to effect any
public sale or distribution of any such securities during such period to the
extent timely requested by the underwriters (except as part of such underwritten
registration, if otherwise permitted, or with the consent of the managing
underwriter). The commencement of such period shall be determined in good faith
by the managing underwriter.
10.6. REGISTRATION PROCEDURES. Whenever the Holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Article X, the Company will promptly use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities, and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to each of the Holders of Registrable Securities
covered by such registration and counsel selected by such Holders, copies of all
such documents proposed to be filed, which documents will be subject to their
prior review and reasonable approval and such review shall also be completed as
expeditiously as reasonably possible);
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for the period
set forth in Section 10.6(l) hereof and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement during such period in accordance with the
intended methods of disposition by the Holders thereof set forth in such
registration statement;
(c) furnish to each Holder of Registrable Securities covered by such
registration such number of copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
such Holder may reasonably request in order to facilitate the disposition of
such Registrable Securities;
(d) use its best efforts to register or qualify Registrable
Securities covered by such registration under such other securities or blue sky
laws of such jurisdictions as any Holder reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Holders thereof to consummate the disposition in such jurisdictions of the
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Registrable Securities as requested by such Holders (provided that the Company
will not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subsection,
(ii) subject itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each Holder of Registrable Securities covered by such
registration, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event of which the
Company has, or should have, knowledge as a result of which the prospectus
included in such registration statement (or any document incorporated therein by
reference) contains an untrue statement of a material fact or omits to state any
fact necessary to make the statements therein not misleading, and the Company
will prepare a supplement or amendment to such prospectus (or any document
incorporated therein by reference) as soon as practicable thereafter so that
such prospectus (or any document incorporated therein by reference) will not
contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities covered by such
registration to be listed on each securities exchange or automated quotation
system on which similar securities issued by the Company are then listed or
quoted;
(g) provide a transfer agent and registrar for all Registrable
Securities covered by such registration not later than the effective date of
such registration statement or such other document;
(h) enter into such customary agreements (including an underwriting
agreement) and take all such other actions as the Holders of a majority of the
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
(i) make available for inspection by any Holder of Registrable
Securities covered by such registration, any underwriter participating in any
disposition pursuant to such registration, and any attorney, accountant or other
agent retained by any such Holder or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney, accountant or
agent in connection with such registration statement or such other document;
(j) obtain a "comfort letter" from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by comfort letters and opinions of counsel from the Company's counsel in
customary form and covering such matters of the type customarily covered in a
public issuance of securities, in each case addressed to the Holders and any
underwriters;
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(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make generally available to its security
holders, earnings statements satisfying the provisions of Section 11(a) of the
Securities Act, no later than forty five (45) days after the end of any twelve
(12) month period (i) commencing at the end of any fiscal quarter in which an
applicable registration statement covering Registrable Securities becomes
effective and (ii) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the registration statement, which
statements shall cover said twelve (12) month periods; and
(l) keep each registration statement effective for one year from the
date of its effectiveness or for such period in excess of one year as to which
the Holders shall agree to pay all Registration Expenses in connection with
keeping such registration statement effective.
If the Company has delivered preliminary or final prospectuses to the
selling Holders and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall immediately
notify the selling Holders and, if requested, the selling Holders shall
immediately cease making offers of Registrable Securities and return all
prospectuses to the Company. The Company shall promptly provide the selling
Holders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Holders shall be free to resume making offers of the
Registrable Securities. The Company shall be obligated to keep the Registration
Statement effective for a period of additional days equal to the number of days
during which the Holders were required to cease making offers pursuant to this
paragraph.
10.7. INDEMNIFICATION.
(a) In the event of any registration of the Registrable Securities,
the Company will indemnify each Seller of Registrable Securities (a "Seller"),
each Seller's officers, directors and partners, and each person controlling such
Seller (within the meaning of the Securities Act and the rules and regulations
thereunder), against all claims, losses, damages, liabilities (or actions in
respect thereof) and expenses arising out of or based on any untrue or alleged
untrue statement of a material fact contained in any registration statement
under which such Registrable Securities were registered or, prospectus or
preliminary prospectus contained in such registration statement or any amendment
or supplement to such registration statement or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
the Securities Act, any rule or regulation thereunder and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each such Seller, such Seller's
officers, directors and partners, and each person controlling such Seller for
any legal and any other expenses incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, provided, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or action or expense arises out of or is based on any
untrue or alleged untrue statement or omission or alleged omission of material
fact based upon written information
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furnished to the Company by or on behalf of such Seller and stated to be
specifically for use therein.
(b) Each Seller will, severally and not jointly, if Registrable
Securities held by it are included in the securities as to which such
registration is being effected, indemnify the Company, each of the Company's
directors and officers and each person who controls the Company (within the
meaning of the Securities Act and the rules and regulations thereunder), each
other Seller whose securities are included in such registration and each of such
other Seller's officers, directors and partners and each person controlling such
other Seller, against all claims, losses, damages and liabilities (or actions in
respect thereof) and expenses arising out of or based on any untrue or alleged
statement of a material fact contained in any such registration statement,
prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company, its
officers and directors, each person controlling the Company, each other Seller,
and such other Seller's officers, directors, partners and control persons for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue or alleged
statement or omission or alleged omission is made in such registration
statement, prospectus or preliminary prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Seller and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 10.7
(an "Indemnified Party") shall give notice to the party required to provide
indemnification (an "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom provided that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be reasonably satisfactory to the Indemnified Party, and the
Indemnified Party may participate in such defense at its own expense, and
provided, further, that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Article X, except to the extent that the Indemnifying Party's ability
to conduct such defense shall have been materially prejudiced by such failure.
To the extent that, in the opinion of counsel to the Indemnified Party, a
conflict of interest exists between an Indemnified Party and the Indemnifying
Party such that representation of such Indemnified Party by counsel for the
Indemnifying Party would be inappropriate, then such Indemnified Party shall be
entitled to separate counsel at the expense of the Indemnifying Party; provided
that in no event shall the Indemnifying Party be required to pay the expense of
more than one such separate counsel per jurisdiction. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and any litigation
resulting therefrom.
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10.8. INFORMATION BY HOLDERS. Each Seller of Registrable Securities
included in any registration shall furnish to the Company such information
regarding such Seller and the distribution proposed by such Seller as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Article X.
10.9. LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES. From and after
the date of this Agreement, the Company shall not enter into any agreement with
any holder or prospective holder of any securities of the Company giving such
holder or prospective holder the right to require the Company to register any
securities of the Company more favorable than the rights granted under this
Article X, unless such action is consented to by a majority of the outstanding
Warrant Shares held by the Purchasers (and their assignees) and issuable to them
(or such assignees) upon exercise of the Warrants held by them and a majority of
the Conversion Shares held by the Purchasers (and their assignees) and issuable
to them (or such assignees) upon conversion of the Convertible Notes held by
them. Any right given by the Company to any holder or prospective holder of the
Company's securities in connection with the registration of securities shall be
conditioned such that it shall be consistent with the provisions of this Article
X and with the rights of the Holders provided in this Agreement and such holder
or prospective holder agrees that its registration rights shall be consistent
the terms of this Article X.
10.10. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the
Restricted Securities to the public without registration, the Company agrees, so
long as it is required to file reports with the SEC pursuant to the Exchange
Act, to:
(a) make and keep public information available as those terms are
understood and defined and interpreted in and under Rule 144 under the
Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and
(c) so long as the Purchasers own any Restricted Securities, furnish
to such Holders forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 and the Exchange Act,
a copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as such Holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing such Holder to
sell any such securities without registration.
10.11. SELECTION OF UNDERWRITERS. If any Demand Registration is an
underwritten offering, the Holders of a majority of the Registrable Securities
included in such registration shall have the right to select the investment
banker(s) and manager(s) to administer the offering, subject to the approval of
the Company (which approval will not be unreasonably withheld).
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ARTICLE XI
SUBORDINATION; SENIORITY
11.1. SENIOR INDEBTEDNESS. As used in this Article XI, "Senior
Indebtedness" shall mean the principal, premium, if any, and unpaid interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of indebtedness of the Company for money borrowed
from financial institutions in an aggregate principal amount not greater than
$3,000,000, whether any such indebtedness exists as of the date of this
Agreement or shall hereafter be created, incurred, assumed or guaranteed, unless
it is expressly stated in the instrument evidencing such bank indebtedness or in
the agreement pursuant to which it is outstanding that such indebtedness is not
Senior Indebtedness.
11.2. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
(a) The Company agrees, and each holder of Notes by his acceptance
thereof likewise agrees, that the payment of the principal of, premium, if any,
and interest on the Notes (all of the foregoing, a "Payment or Distribution") is
subordinated and junior in right of payment, to the extent and in the manner
provided in this Article XI to the prior payment in full of all Senior
Indebtedness whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed. A Payment or Distribution shall include any
asset of any kind or character, and may consist of cash, securities or other
property, by set-off or otherwise, and shall include, without limitation, any
purchase, redemption or other acquisition of the Notes or other making of any
deposit of funds or securities pursuant to this Agreement.
(b) The Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefit of these subordination provisions irrespective of
any amendment, modification or waiver or any term of any instrument relating to
refinancing of the Senior Indebtedness.
(c) All the provisions of this Agreement and the Notes shall be
subject to the provisions of this Article XI so far as they may be applicable
thereto.
(d) In the event that the Notes are declared due and payable before
their expressed maturity because of the occurrence of an Event of Default
hereunder or any required redemption of the Notes, the Company will give prompt
notice in writing of such happening to the holders of Senior Indebtedness.
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11.3. COMPANY NOT TO MAKE PAYMENTS WITH RESPECT TO NOTES IN CERTAIN
CIRCUMSTANCES.
(a) No Payment or Distribution shall be made by the Company on
account of the Notes, whether upon stated maturity, upon prepayment or
acceleration, or otherwise, or on account of the purchase, redemption or other
acquisition of Notes, whether upon stated maturity, prepayment, acceleration, or
otherwise, if there shall have occurred and be continuing a default with respect
to any Senior Indebtedness permitting the acceleration thereof or with respect
to the payment of any Senior Indebtedness and (i) such default is the subject of
a judicial proceeding or (ii) notice of such default in writing or by telegram
has been given to the Company by any holder or holders of any Senior
Indebtedness, unless and until the Company shall have received written notice
from such holder or holders that such default or event of default shall have
been cured or waived or shall have ceased to exist.
(b) Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or liquidation or reorganization of
the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full in cash, or payment thereof in
cash provided for to the satisfaction of the holders thereof, before any Payment
or Distribution is made on account of the Notes; and (subject to the power of a
court of competent jurisdiction to make other equitable provision, which shall
have been determined by such court to give effect to the rights conferred in
this Article upon the Senior Indebtedness and the holders thereof with respect
to the Notes or the holders thereof, by a lawful plan or reorganization or
readjustment under applicable law) upon any such dissolution or winding up or
liquidation or reorganization, any Payment or Distribution by the Company or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the holders of the Notes would be entitled
except for the provisions of this Article, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such Payment or Distribution directly to the holders of Senior
Indebtedness of the Company or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness, before any Payment or Distribution is made
to the Holders of the Notes.
(c) In the event that, notwithstanding the foregoing, any Payment or
Distribution by the Company of any kind or character, whether in cash, property
or securities, prohibited by the foregoing, shall be received by the holders of
the Notes before all Senior Indebtedness is paid in full, or provision is made
for such payment to the satisfaction of the holders thereof, and if such fact
shall then have been or thereafter be made known to such holders, then and in
such event such Payment or Distribution shall be paid over or delivered to the
holders of Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any
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indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent Payment or Distribution to or for the holders of such Senior
Indebtedness, and, until so delivered, the same shall be held in trust by any
holder of a Note as the property of the holders of Senior Indebtedness.
(d) The holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the holders of the Notes, without
incurring responsibility to the holders of the Notes and without impairing or
releasing the obligations of the holders of the Notes hereunder to the holders
of Senior Indebtedness: (i) change the manner, place or terms of payment or
change or extend the time of payment of, or renew or alter, Senior Indebtedness,
or otherwise amend in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
person liable in any manner for the collection of Senior Indebtedness; and/or
(iv) exercise or refrain from exercising any rights against the Company and any
other person.
11.4. SUBROGATION OF NOTES.
(a) Subject to the payment in full in cash of all amounts then due
(whether by acceleration of the maturity thereof or otherwise) on account of all
Senior Indebtedness at the time outstanding, the holders of the Notes shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
Payments or Distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of (and premium, if
any) and interest on the Senior Indebtedness shall be paid in full; and, for the
purposes of such subrogation, no Payments or Distributions to the holders of
Senior Indebtedness to which the holders of the Notes would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by holders of
the Notes, shall, as between the Company, the Company's creditors other than
holders of Senior Indebtedness, and the holders of the Notes, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of the Notes, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
(b) Nothing contained in this Article or elsewhere in this Agreement
or in the Notes is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Notes, the obligation of the Company, which is absolute and unconditional, to
make the Payment or Distribution on account of the Notes as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the holders of the Notes and creditors of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the holder of any Note from exercising all remedies
otherwise permitted by applicable law upon default under this
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Agreement, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article, the holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any dissolution, winding up, liquidation or reorganization proceedings are
pending, or certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered to
the holders of the Notes, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
11.5. NOTICES. The Company shall give prompt written notice to the holders
of the Notes of any facts known to it which would prohibit the making of any
payment of moneys to holders in respect of the Notes pursuant to the provisions
of this Article.
11.6. NO IMPAIRMENT OF SUBORDINATION. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or the holder of any of the Notes or by any act,
or failure to act, in good faith, by any such holder of Senior Indebtedness, or
by any noncompliance by the Company or the holder of any of the Notes with the
terms, provisions and covenants of this Agreement or the Notes, regardless of
any knowledge thereof which any such holder may have or otherwise be charged
with.
11.7. ARTICLE XI NOT TO PREVENT EVENTS OF DEFAULT. The failure to make a
payment on account of principal of (premium, if any) or interest on the Notes by
reason of any provision in this Article XI shall not be construed as preventing
the occurrence of an Event of Default.
11.8. AMENDMENT TO ARTICLE XI. The terms of this Article XI may be amended,
with the consent of holders of at least eighty percent (80%) in principal amount
of the Subordinated Notes and holders of at least eighty percent (80%) of the
shares of Preferred Stock (or holders of at least eighty percent (80%) in
principal amount of the Convertible Notes, if issued), which consent shall not
be unreasonably withheld, to conform to the commercially reasonable requirements
of a financial institution which proposes to provide Borrowed Money Indebtedness
to the Company to the extent permitted by Section 8.1. The Company shall not be
charged a fee for providing such consent.
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ARTICLE XII
CONVERSION OF THE CONVERTIBLE NOTES
12.1. CERTAIN DEFINITIONS. For purposes of this Article XII, the following
terms shall have the meanings set forth in this Section 12.1.
AFFILIATE means any Person controlling, controlled by or under common
control with any other Person. For purposes of this definition, "CONTROL"
(including "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
"CLOSING PRICE" shall mean with respect to the shares of Common Stock
of the Company on any day, (i) the last reported sales price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the Nasdaq National
Market, or (ii) if the shares of Common Stock are not listed or admitted to
trading on the Nasdaq National Market, the last reported sales price regular
way, or in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, on the principal national
securities exchange on which the shares of Common Stock are listed or admitted
to trading, or (iii) if the shares of Common Stock are not listed or admitted to
trading on the Nasdaq National Market or any national securities exchange, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange, Inc. member firm selected from time to
time by the Company for that purpose, or (iv) if such prices in the
over-the-counter market are not available, the fair market value set by, or in a
manner established by, the Board of Directors of the Company in good faith.
"CURRENT MARKET PRICE" per share of Common Stock at any date herein
specified shall mean the average daily Closing Prices for thirty (30)
consecutive trading days commencing forty-five (45) days before such date.
"PERSON" shall mean any individual, corporation, association,
company, business trust, partnership, joint venture, joint-stock company,
limited liability company, trust, unincorporated organization or association or
government or any agency or political subdivision thereof.
12.2. RIGHT OF CONVERSION; CONVERSION PRICE. Any holder of Convertible
Notes shall have the right, at its option, at any time to convert, subject to
the terms and provisions of this Article XII, such Convertible Notes into shares
of Common Stock upon surrender of the Convertible Notes to be so converted,
accompanied by written notice of conversion duly executed, to the Company, and,
if so required by the Company, duly endorsed to the Company or in blank or
accompanied by proper instruments of transfer to the Company or in blank. The
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Convertible Notes shall be convertible at the conversion price of $4.75 per
share of Common Stock, or in case an adjustment of such price has taken place
pursuant to the provisions of this Article XII, the price as last adjusted (such
price or adjusted price being referred to herein as the "Conversion Price"). The
number of shares of Common Stock issuable upon such conversion shall be equal to
(a) the aggregate principal amount of the Convertible Note to be converted plus
accrued but unpaid interest thereon to the date of conversion, divided by (b)
the Conversion Price. Whenever the Conversion Price in effect shall be adjusted
pursuant to this Article XII, the Company shall promptly provide to each holder
of Convertible Notes a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price, which notice shall be
signed on behalf of the Company by the President and the Chief Financial Officer
of the Company and shall set forth in reasonable detail a calculation to the
nearest cent of the Conversion Price, the method of calculation and the facts
requiring such adjustment.
12.3. ISSUANCE OF SHARES ON CONVERSION. The Company will as soon as
practicable after the surrender, as herein provided, deliver to the holder or to
its nominee or nominees, certificates for the number of full shares of Common
Stock to which it shall be entitled as aforesaid, together with a cash
adjustment of any fraction of a share as hereinafter provided, if not evenly
convertible, and, if less than the entire principal amount of the Convertible
Note is converted, a new Convertible Note for the principal amount not so
converted, dated as of the last preceding date to which interest shall have been
paid. Subject to the following provisions of this paragraph, such conversion
shall be deemed to have been made as of the date of such surrender of the
Convertible Note and at the Conversion Price in effect at the date of such
surrender; and the person or persons entitled to receive the Common Stock
deliverable upon conversion of the Convertible Note shall be treated for all
purposes as the record holder or holders of such Common Stock on such date. The
Company shall not be required to convert the Convertible Note or any portion
thereof while the stock transfer books of the Company are closed for any
purpose; but the surrender of the Convertible Note for conversion during any
period while such books are so closed shall become effective for conversion
immediately upon reopening of such books, as if the conversion had been made on
the date the Convertible Note were surrendered, and at the Conversion Price in
effect at the date of such surrender.
No payment or adjustment to the Conversion Price in respect of dividends on
the shares of Common Stock shall be made upon the conversion of any of the
Convertible Notes.
12.4. ADJUSTMENT OF CONVERSION PRICE.
(a) In case the Company shall at any time issue or sell any shares of
Common Stock, for a consideration per share less than the Conversion Price in
effect immediately prior to the issuance or sale of such shares, or without
consideration, then, and thereafter successively upon each such issuance or
sale, the Conversion Price in effect immediately prior to such issuance or sale
shall forthwith be reduced to a price determined by dividing (i) an amount equal
to (X) the total number of shares of Common Stock outstanding immediately prior
to such issuance or sale multiplied by the Conversion Price in effect
immediately prior to such issuance or sale, plus (Y) the
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consideration, if any, received by the Company upon such issuance or sale, by
(ii) the total number of shares of Common Stock outstanding immediately after
such issuance or sale.
For the purposes of any computation to be made in accordance with the
provisions of this paragraph (a), the following shall be applicable:
(i) In case of the issuance or sale of shares of Common Stock for
a consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by
the Company for such shares (or, if such shares of Common Stock are offered
by the Company for subscription, the subscription price, or, if shares of
Common Stock shall be sold to underwriters or dealers for public offering
without a subscription offering, the public offering price) before
deducting therefrom any commissions or other expenses paid or incurred by
the Company for any underwriting of, or otherwise in connection with the
issuance of such shares;
(ii) In case of the issuance or sale of shares of Common Stock
for a consideration part or all of which shall be other than cash
(otherwise than as a dividend or other distribution on any shares of Common
Stock of the Company or on conversion, exercise or exchange of other
securities of the Company or upon acquisition of the assets or securities
of another company or upon merger or consolidation with another entity),
the amount of consideration therefor other than cash shall be the value of
such consideration as of the date of the issuance or sale of the shares of
Common Stock, irrespective of any accounting treatment, but as determined
by the Board of Directors of the Company in good faith. The
reclassification of securities other than Common Stock into Common Stock
shall be deemed to involve the issuance for a consideration other than cash
of such Common Stock immediately prior to the close of business on the date
fixed for the determination of security holders entitled to receive such
Common Stock;
(iii) In case of the issuance of shares of Common Stock upon
conversion or exchange of any obligations or of any securities of the
Company that shall be convertible into or exchangeable for shares of Common
Stock or upon the exercise of rights or options to subscribe for or to
purchase shares of Common Stock (other than upon conversion of the
Preferred Stock and the Notes), the amount of consideration received by the
Company for such shares of Common Stock shall be deemed to be the sum of
(A) the amount of the consideration received by the Company upon the
original issuance of such obligations, securities, rights or options, as
the case may be, plus (B) the consideration, if any, other than such
obligations, securities, rights or options, payable to the Company in
connection with such conversion, exchange, or exercise. The amount of the
consideration received by the Company upon the original issuance of the
obligations, securities, rights or options so converted, exchanged or
exercised and the amount of the consideration, if any, other than such
obligations, securities, rights or options, received by the Company upon
such conversion, exchange or exercise shall be determined in the same
manner provided in subparagraphs (i) and (ii) above with respect to the
consideration received by the Company
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in case of the issuance of shares of Common Stock; if such obligations,
shares, rights or options shall have been issued as a dividend upon any
securities of the Company, the amount of the consideration received by the
Company upon the original issuance thereof shall be deemed to be zero.
(iv) Shares of Common Stock issuable by way of dividend or other
distribution on any securities of the Company shall be deemed to have been
issued and to be outstanding at the close of business on the record date
fixed for the determination of security holders entitled to receive such
dividend or other distribution and shall be deemed to have been issued
without consideration. Shares of Common Stock issued otherwise than as a
dividend, shall be deemed to have been issued and to be outstanding at the
close of business on the date of issue;
(v) The number of shares of Common Stock at any time outstanding
shall not include any shares then owned or held by or for the account of
the Company, but shall include the aggregate number of shares deliverable
in respect of options, rights and convertible and exchangeable securities
at all times while such options, rights or securities remain outstanding
and unexercised, unconverted or unexchanged, as the case may be, and
thereafter to the extent such options, rights or securities have been
exercised, converted or exchanged; and
(vi) No adjustment shall be made to the Conversion Price then in
effect in case of the issuance of shares of Common Stock upon conversion or
exchange of any obligations or of any securities of the Company that shall
be convertible into or exercisable or exchangeable for shares of Common
Stock or upon the exercise of rights or options to subscribe for or to
purchase shares of Common Stock for which an adjustment in the Conversion
Price has previously been made in accordance with paragraph (b) of this
Section 12.4.
(vii) In the event that any payment is made to the holders of
warrants issued pursuant to the Securities Purchase Agreement dated as of
January 31, 1997 among the Company, Triumph-Connecticut Limited Partnership
and the other purchasers named therein pursuant to Section 8.3(b) (or
successor provision) of such Securities Purchase Agreement which does not
result in a modification pursuant to Section 12.8, the Company shall be
deemed to have issued without consideration as of the date of the event
giving rise to such payment a number of shares of Common Stock equal to the
amount of such payment divided by the Closing Price on the date of such
event.
(b) In case the Company shall at any time issue options or rights to
subscribe for shares of Common Stock, or issue any obligations or securities
convertible into or exchangeable for shares of Common Stock, otherwise than as
contemplated by Section 12.4(a)(vi) hereof, for a consideration per share less
than the Conversion Price in effect immediately prior to the issuance of such
options or rights or convertible or exchangeable securities, or without
consideration, the
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Conversion Price in effect immediately prior to the issuance of such options or
rights or securities shall be reduced to a price determined by making a
computation in accordance with the provisions of clause (a) of this Section
12.4, provided that:
(i) the aggregate maximum number of shares of Common Stock
deliverable under such options or rights shall be considered to have been
delivered at the time such options or rights were issued, and for a
consideration equal to the minimum purchase price per share of Common Stock
provided for in such options or rights, plus the consideration (determined
in the same manner as consideration received on the issue or sale of Common
Stock), if any, received by the Company for such options or rights;
(ii) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or exchange for any such obligations or
securities shall be considered to have been delivered at the time of
issuance of such securities, and for a consideration equal to the
consideration (determined in the same manner as consideration received on
the issue or sale of Common Stock) received by the Company for such
securities, plus the consideration, if any, to be received by the Company
upon the exchange or conversion thereof; and
(iii) on the expiration of such options or rights, or an increase
in the minimum exercise price thereof, or a decrease in the maximum number
of shares of Common Stock deliverable upon exercise or conversion of such
options, rights or convertible or exchangeable securities pursuant to the
terms thereof (and not as a result of exercise or conversion), or the
termination of such right to convert or exchange, the Conversion Price then
in effect shall forthwith be readjusted to such Conversion Price as would
have obtained (A) in the case of the expiration or termination of options
or rights or the termination of the right to convert or exchange
convertible or exchangeable securities, had no adjustments been made upon
the issuance of such options, rights or convertible or exchangeable
securities, or (B) in the case of an increase in the minimum exercise price
thereof, or a decrease in the maximum number of shares deliverable
thereunder, had the adjustments made upon the issuance of such options,
rights or convertible or exchangeable securities been made upon the basis
of the delivery of only the number of shares of Common Stock (A) actually
deliverable upon the exercise of such options or rights or upon conversion
or exchange of such securities, or (B) deliverable by reason of such
increase in price or decrease in number of shares.
(c) Notwithstanding Sections 12.4(a) and (b), no adjustment to the
Conversion Price shall be made in connection with the issuance of:
(i) the Securities and the securities issued or issuable upon
conversion or exercise of the Securities, or other currently outstanding
Derivative Securities; and
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(ii) shares of Common Stock or rights, options or warrants to
acquire Common Stock issued to directors, employees or consultants of the
Company pursuant to a stock option plan, employee stock purchase plan,
restricted stock plan or other similar stock plan or agreement (and, in the
case of rights, options, or warrants, the Common Stock issued or issuable
upon exercise thereof) and approved by the Board of Directors.
(d) In case the Company shall at any time subdivide or combine the
outstanding shares of Common Stock, the Conversion Price in effect shall
forthwith be proportionately decreased in the case of the subdivision or
proportionately increased in the case of combination to the nearest one cent.
Any such adjustment shall become effective at the close of business on the date
that such subdivision or combination shall become effective.
12.5. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(i) the Company shall declare any dividend (or any other
distribution) on shares of its Common Stock; or
(ii) the Company shall authorize the granting to holders of its
shares of Common Stock generally of rights or warrants entitling them to
subscribe for or purchase any shares of capital stock of the Company or of
any other rights or warrants; or
(iii) of any reclassification of the shares of Common Stock of
the Company, or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company, or of any compulsory share exchange whereby the
Common Stock will be converted into cash or other securities or property;
or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then the Company shall cause to be filed with the transfer agent for the
Convertible Notes, and shall cause to be mailed to all holders of Convertible
Notes at their last addresses as they shall appear on the stock transfer books
of the Company, at least fifteen (15) days prior to the applicable record date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption or granting of
rights or warrants, or, if a record is not to be taken, the date as of which the
holders of shares of Common Stock of record to be entitled to such dividend,
distribution, redemption, rights or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of shares of
Common Stock of record shall be
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entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding-up. Such notice
shall also state whether such transaction will result in any adjustment in the
Conversion Price applicable to the Convertible Notes and, if so, shall state
what the adjusted Conversion Price will be and when it will become effective.
Neither the failure to give the notice required by this Section, nor any defect
therein, to any particular holder of Convertible Notes shall affect the
sufficiency of the notice or the legality or validity of any such dividend,
distribution, redemption, right, warrant, reclassification, consolidation,
merger, sale, transfer, share exchange, liquidation, dissolution or winding-up,
or the vote on any action authorizing such with respect to the other holders.
12.6. TAXES ON CONVERSIONS.
The Company will pay any and all stamp or similar taxes that may be payable
in respect of the issuance or delivery of shares of Common Stock on conversion
of the Convertible Notes pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of shares of Common Stock in a name other than that
of the holder of the Convertible Notes to be converted, and no such issuance or
delivery shall be made unless and until the person requesting such issuance has
paid to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
12.7. FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares shall be
issued upon the conversion of the Convertible Notes. If any such conversion
would otherwise require the issuance of a fractional share an amount equal to
such fraction multiplied by the Current Market Price per share of Common Stock
on the day of conversion shall be paid to the holder in cash by the Company. All
conversions by the same holder on any particular day shall be aggregated.
12.8. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In the case of any reorganization or reclassification of the outstanding
shares of Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination) or in the case of any consolidation of the Company into, or
merger of the Company with another entity in which the Company is not the
surviving entity (or it is the surviving entity, but its shares of Common Stock
become shares of another entity), or in the case of any sale, lease or
conveyance of all, or substantially all, of the property, assets, business and
goodwill of the Company as an entirety, each holder of Convertible Notes shall
thereafter have the right to convert such Convertible Notes into the kind and
amount of securities, cash and other property receivable upon such
reorganization, reclassification, consolidation, merger or disposition by a
holder of the number of shares of Common Stock which the holder of Convertible
Notes would have received had it converted its
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shares of Series G Preferred Stock immediately prior to such reorganization,
reclassification, consolidation, merger or disposition, at a price equal to the
aggregate Conversion Price then in effect; provided, however, that the kind and
amount of such securities, cash and other property shall be determined as if any
payment made to the holders of warrants issued pursuant to the Securities
Purchase Agreement dated as of January 31, 1997 among the Company,
Triumph-Connecticut Limited Partnership and the other purchasers named therein
upon such reorganization, reclassification, consolidation, merger or disposition
in excess of the amount such holders would otherwise have been entitled to
receive under the terms of such warrants without regard to Section 8.3(b) (or
successor provision) of such Securities Purchase Agreement had not been made.
The foregoing provisions of this Section shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers and dispositions.
12.9. COVENANT TO RESERVE SHARES.
The Company covenants that it will at all times reserve and keep available,
free from preemptive rights, out of its authorized shares of Common Stock,
solely for the purpose of issuance upon conversion of the Convertible Notes as
herein provided, such number of shares of Common Stock as shall then be issuable
upon the conversion of all outstanding Convertible Notes. The Company covenants
that all shares of Common Stock which shall be so issuable shall be, when
issued, duly and validly issued and fully paid and non-assessable. For purposes
of this Section 12.9, the number of shares of Common Stock which shall be
deliverable upon the conversion of all outstanding Convertible Notes shall be
computed as if at the time of computation all outstanding Convertible Notes were
held by a single holder.
12.10. RULE 13e-3 TRANSACTIONS .
In case the Company or any Affiliate of the Company shall propose to engage
in a "Rule 13e-3 Transaction" as defined in Rule 13e-3 promulgated under the
Exchange Act the Company shall, no later than the date on which any information
with respect to such Rule 13e-3 Transaction is first required to be given to the
Securities and Exchange Commission or any other person pursuant to such Rule
13e-3, cause to be mailed to all holders of Convertible Notes at their last
addresses as they shall appear on the books of the Company, a copy of all
information required to be given to the Securities Exchange Commission or such
other person pursuant to such Rule 13e-3. The information required to be given
under this paragraph shall be in addition to and not in lieu of any other
information required to be given by the Company pursuant to this Article.
12.11. AUTOMATIC CONVERSION. The Convertible Notes shall automatically
convert into shares of Common Stock at the applicable Conversion Price, in
accordance with this Article XII, in the event that the average daily Closing
Price of the Common Stock for thirty (30) consecutive trading days beginning any
time after three years from the date of issuance of the Convertible Notes is
greater than $12.00 per share, subject to adjustment for stock splits, stock
dividends, combinations and other similar recapitalizations, so long as the
average daily trading volume
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during the preceding thirty (30) days is at least 35,000 shares. The date upon
which the foregoing condition is satisfied is hereinafter referred to as the
"Mandatory Conversion Date."
All holders or record of Convertible Notes will be given written notice of
the Mandatory Conversion Date and the place designated for mandatory conversion
of all such Convertible Notes pursuant to this Section 12.11. Such notice need
not be given in advance of the occurrence of the Mandatory Conversion Date. Such
notice shall be sent by first class or registered mail, postage prepaid, to each
record holder of Convertible Notes at such holder's address last shown on the
records of the transfer agent for the Convertible Notes (or the records of the
Company, if it serves as its own transfer agent). Upon receipt of such notice,
each holder of Convertible Notes shall surrender his or its Convertible Notes to
the Company at the place designated in such notice, and shall thereafter receive
certificates for the number of shares of Common Stock to which such holder is
entitled pursuant to this Section 12.11. On the Mandatory Conversion Date, all
rights with respect to the Convertible Notes so converted, including the rights,
if any, to receive notices and vote, will terminate, except only the rights of
the holders thereof, upon surrender of their Convertible Notes therefor, to
receive certificates for the number of shares of Common Stock into which such
Convertible Notes have been converted. If so required by the Company,
Convertible Notes surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments or transfer, in form satisfactory to the
Company, duly executed by the registered holder or by his or its attorney duly
authorized in writing. As soon as practicable after the Mandatory Conversion
Date and the surrender of the Convertible Notes, the Company shall cause to be
issued and delivered to such holder a certificate or certificates for the number
of full shares of Common Stock into which the Convertible Notes have been
converted and cash as provided herein with respect to any fraction of a share of
Common Stock otherwise issuable upon such conversion.
All Convertible Notes which are required to be surrendered for conversion
in accordance with the provisions hereof shall, from and after the Mandatory
Conversion Date, be deemed to have been retired and cancelled and the
Convertible Notes represented thereby converted into Common Stock and cash as
provided herein for all purposes, notwithstanding the failure of the holder or
holders thereof to surrender such Convertible Notes on or prior to such date.
ARTICLE XIII
EVENTS OF DEFAULT
13.1. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(a) the Company shall default in the payment of (i) any part of the
principal of any Note, when the same shall become due and payable, whether at
maturity or at a date fixed for prepayment, acceleration or otherwise; or (ii)
the interest on any Note, when the same shall become due and payable and shall
not pay such interest within five (5) days thereafter; or
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(b) the Company shall default in the performance of any of the
covenants contained in Section 7.6 or Article VIII of this Agreement; or
(c) the Company shall default in the performance of any of the
covenants contained in this Agreement (other than the covenants contained in
Section 7.6 or Article VIII hereof) and such default shall have continued for
the period and after the notice specified in the penultimate paragraph of this
Section 13.1 (the "Default Notice") without cure (the Company to give forthwith
to all other holders of the Notes at the time outstanding written notice of the
receipt of such Default Notice, specifying the default referred to therein); or
(d) any representation or warranty made in this Agreement shall prove
to have been incorrect in any material respect when made; or
(e) any default shall occur under any indenture, mortgage, agreement,
instrument or commitment evidencing or under which there is at the time
outstanding any indebtedness of the Company or any Subsidiary, in excess of
$200,000, or which results in such indebtedness, in an aggregate amount (with
other defaulted indebtedness) in excess of $200,000 becoming due and payable
prior to its due date and if such indenture, mortgage, agreement, instrument or
commitment so requires, the holder or holders thereof (or a trustee on their
behalf) shall have declared such indebtedness due and payable; or
(f) the Company or any of its Subsidiaries shall default in the
observance or performance of any term or provision of a material agreement to
which it is a party or by which it is bound, which default is reasonably
expected to have a Material Adverse Effect on the Company, and such default is
not waived or cured within the applicable grace period; or
(g) an outstanding unsatisfied final judgment which, either alone or
together with other outstanding unsatisfied final judgments, against the Company
and its Subsidiaries exceeds an aggregate of $200,000 (to the extent not covered
by insurance) shall be rendered against the Company or any Subsidiary and such
judgment shall have continued undischarged or unstayed for thirty (30) days
after entry thereof; or
(h) the Company or any Subsidiary shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to pay its
debts; or the Company or any Subsidiary shall suffer a receiver or trustee for
it or substantially all of its assets to be appointed; or the Company or any
Subsidiary shall suffer proceedings under any law relating to bankruptcy,
insolvency or the reorganization or relief of debtors to be instituted by or
against it, and, if contested by it, not to be dismissed or stayed within ninety
(90) days; or the Company or any Subsidiary shall suffer any writ of attachment
or execution or any similar process to be issued or levied against it or any
significant part of its property which is not released, stayed, bonded or
vacated within ninety (90) days after its issue or levy; or the Company or any
Subsidiary takes corporate action in furtherance of any of the aforesaid
purposes or conditions.
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A default under paragraph (c) of this Section 13.1 is not a default unless
the holders of at least eighty percent (80%) of the aggregate principal amount
then outstanding under the Notes notify the Company of the default and the
Company does not cure the default within twenty (20) days after receipt of such
notice. The notice must specify the default and demand that it be remedied.
A "Default" means any of the events specified in this Section 13.1,
regardless of whether there shall have occurred any passage of time or giving of
notice or both that would be necessary in order to constitute such event an
Event of Default.
13.2. REMEDIES.
(a) Upon the occurrence of an Event of Default (other than an Event
of Default specified in paragraph (h) of Section 13.1), holders of at least
eighty percent (80%) in aggregate principal amount of the Notes at the time
outstanding may at any time (unless all defaults shall theretofore have been
remedied) at their option, by written notice or notices to the Company declare
all the Notes to be due and payable, whereupon the same shall forthwith mature
and become due and payable, together with interest accrued thereon, without
presentment, demand, protest or notice, all of which are hereby waived;. If an
Event of Default specified in paragraph (h) of Section 13.2 occurs, all
principal of and interest on the Notes shall automatically become and be
immediately due and payable without any declaration or other act.
(b) Notwithstanding anything contained in Section 13.2(a), in the
event that at any time after the principal of the Notes shall so become due and
payable and prior to the date of maturity stated in the Notes all arrears of
principal of and interest on the Notes (with interest at the rate specified in
the Notes on any overdue principal and, to the extent legally enforceable, on
any interest overdue) shall be paid by or for the account of the Company, then
holders of at least eighty percent (80%) in aggregate principal amount of the
Notes then outstanding, by written notice or notices to the Company, may (but
shall not be obligated to) waive such Event of Default and its consequences and
rescind or annul such declaration, but no such waiver shall extend to or affect
any subsequent Event of Default or impair any right resulting therefrom. If any
holders of Notes shall give any notice or take any other action with respect to
a claimed default, the Company, forthwith upon receipt of such notice or
obtaining knowledge of such other action will give written notice thereof to all
other holders of the Notes then outstanding, describing such notice or other
action and the nature of the claimed default.
13.3. ENFORCEMENT. In case any one or more Events of Default shall occur
and be continuing, the holder of a Note then outstanding may proceed to protect
and enforce the rights of such holder by an action at law, suit in equity or
other appropriate proceeding, whether for the specific performance of any
agreement contained herein or in such Note or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of
any power granted hereby or thereby or by law. Each holder agrees that it will
give written notice to the other holders
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prior to instituting any such action. In case of a default in the payment of any
principal of or interest on any Note, the Company will pay to the holder thereof
such further amount as shall be sufficient to cover the cost and expense of
collection, including, without limitation, reasonable attorneys' fees, expenses
and disbursements. No course of dealing and no delay on the part of any holder
of any Note in exercising any rights shall operate as a waiver thereof or
otherwise prejudice such holder's rights. No right conferred hereby or by any
Note upon any holder thereof shall be exclusive of any other right referred to
herein or therein or now available at law, in equity, by statute or otherwise.
ARTICLE XIV
AMENDMENT AND WAIVER
This Agreement may not be amended or modified (or any provision hereof
waived), except that the Company and the Purchasers (and permitted assignees of
the Purchasers) holding at least eighty percent (80%) of the Preferred Stock and
Preferred Conversion Shares issuable upon conversion of the Preferred Stock, at
least eighty percent (80%) in principal amount of the Convertible Notes, if
issued, and the Note Conversion Shares issuable upon conversion of the
Convertible Notes, at least eighty percent (80%) in principal amount of the
Subordinated Notes and at least eighty percent (80%) of the Warrants and Warrant
Shares issued upon exercise of the Warrants may by written instrument amend,
modify or waive any term or condition of this Agreement relating to the rights
or obligations of such holders; provided that (i) any provision of Article VII,
VIII and XI may be amended, modified or waived with the written consent of the
Company and the holders of at least eighty percent (80%) of the sum of (a)
aggregate outstanding principal amount of the Notes outstanding and (b) the
aggregate liquidation preference of the shares of Preferred Stock outstanding;
(ii) any provision of Article IX and XIII may be amended, modified or waived
solely with the written consent of the Company and the holders of at least
eighty percent (80%) of the aggregate principal amount of the Notes outstanding;
(iii) any provision of Article X may be amended, modified or waived with the
written consent of the Company and the holders of at least eighty percent (80%)
of the Registrable Securities (assuming conversion of all Preferred Stock or
Convertible Notes); (iv) any provision of Article XII may be amended, modified
or waived with the written consent of the Company and the holders of at least
eighty percent (80%) of the aggregate liquidation preference of the shares of
Preferred Stock outstanding or at least eighty percent (80%) of the aggregate
principal amount of the Convertible Notes outstanding. However, without the
consent of each holder of a Note, the provisions of this Agreement and the Notes
may not be amended or waived to:
(1) reduce the amount of holders who must consent to an amendment,
supplement or waiver of this Agreement and the Notes;
(2) reduce the rate of or change the time for payment of interest on
any Note;
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(3) reduce the principal of or change the fixed maturity of any Note
or alter the redemption provisions with respect thereto;
(4) waive a default in the payment of the principal of or interest on
any Note; or
(5) make any Note payable in money other than that stated in such
Note.
After an amendment, supplement or waiver of a provision of this Agreement
and the Notes becomes effective, the Company shall mail to the holders affected
thereby a notice briefly describing the amendment, supplement or waiver.
In no event shall the obligation of any holder of Securities, Preferred
Conversion Shares, Notes, Conversion Shares or Warrant Shares hereunder be
increased, except upon the written consent of each such holder. In addition,
notwithstanding the other provisions of this Article XIV, no amendment,
modification or waiver of any provision of this Agreement that adversely affects
the rights of any holder of Securities, Preferred Conversion Shares, Notes,
Conversion Shares or Warrant Shares in a manner different from the rights of the
other holders thereof shall be effective against such holder unless approved in
writing by such holder.
The Company and each holder of Securities (including any Preferred
Conversion Shares, Note Conversion Shares and Warrant Shares) shall be bound by
any amendment or waiver effected in accordance with the provisions of this
Article XIV, whether or not such securities shall have been marked to indicate
such modification, but any securities issued thereafter shall bear a notation as
to any such modification. Promptly after obtaining the written consent of the
holders herein provided, the Company shall transmit a copy of such modification
to all holders of Securities.
ARTICLE XV
LOST OR MUTILATED CERTIFICATES
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of any certificate for Securities and, in the case of
any such loss, theft, or destruction, upon delivery of a bond of indemnity
satisfactory to the Company (provided that if the holder is a financial
institution, its own agreement will be satisfactory), or in the case of any such
mutilation, upon surrender and cancellation of such certificate, the Company
will issue a new certificate of like tenor as if the lost, stolen, destroyed or
mutilated certificate were then surrendered for exchange in lieu of such lost,
stolen, destroyed or mutilated certificate.
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ARTICLE XVI
TRANSFER OF SECURITIES
16.1. TRANSFER OF SECURITIES.
(a) No sale or other disposition shall be made with respect to any
Securities; any shares of Common Stock issuable upon conversion or exercise of
any Securities or any other securities issued in respect of the Securities, upon
any stock split, stock dividend, recapitalization, merger, consolidation or
similar event unless (i) the holder shall have supplied to the Company an
opinion of counsel for the holder reasonably acceptable to the Company to the
effect that no registration under the Securities Act or other applicable law is
required with respect to such sale or other disposition, or (ii) an appropriate
registration statement with respect to such sale or other disposition shall have
been filed by the Company and declared effective by the SEC. The Company may
endorse on all certificates for such Securities the legend in Section 10.1
hereof restricting their transfer expect upon compliance with this Article XVI,
and provided, further, that if an opinion of counsel satisfactory to the Company
concludes that the legend is no longer necessary, the Company will deliver upon
transfer such Securities without such legends. Each transferee of such
securities shall agree in writing to be bound by the terms of this Agreement.
(b) Any transferee (other than a Purchaser who is a signatory to this
Agreement) to whom rights hereunder are transferred shall, as a condition to
such transfer, deliver to the Company a written instrument by which such
transferee agrees to be bound by the obligations imposed upon Purchasers under
this Agreement, to the same extent as if such transferee were a party hereto.
(c) A transferee to whom rights are transferred pursuant to this
Section 16.1 may not again transfer such rights to any other person or entity,
other than as provided in this Section 16.1.
(d) Any transferee to whom a transfer is made in accordance with this
Section 16.1 shall be deemed a "Purchaser" for purposes of this Agreement,
except as provided in Section 17.3.
16.2. LIMITATION ON NUMBER OF HOLDERS. No sale or other disposition shall
be made with respect to any Securities if, as a result thereof, there would be
more than twenty one (21) holders of Securities; provided that this limitation
shall cease to be applicable to a Purchaser and its transferees and successive
transferees if such Purchaser distributes Securities in kind to its partners or
members; provided, however, that the foregoing limitation shall not be
applicable to any Securities or securities issued upon conversion or exercise of
the Securities which have been sold in a registered offering under the
Securities Act or pursuant to Section 4(1) of the Securities Act or Rule 144
under the Securities Act; provided, further, however, that, prior to
registration under the Securities Act, the Securities initially issued to Furman
Selz Investors II L.P., FS Employee
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Investors LLC and FS Parallel Fund L.P. may be held by up to fifteen (15)
holders and the Securities initially issued to BancBoston Ventures Inc. may be
held by up to five (5) holders.
ARTICLE XVII
MISCELLANEOUS
17.1. GOVERNING LAW. This Agreement and the rights of the parties hereunder
shall be governed in all respects by the laws of the State of New York, without
giving effect to the provisions thereof relating to conflicts of law.
17.2. SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive (i) any investigation made by the Purchasers and (ii)
the Closing.
17.3. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding upon
and enforceable by and against, the successors, assigns, heirs, executors and
administrators of the parties hereto; provided, however, that the Company may
not assign its rights hereunder, except to an affiliated corporation as a result
of a merger or consolidation in which the Company is not the surviving
corporation, and, provided further, that if a Purchaser should assign its rights
and benefits under this Agreement to a person that is not an Affiliate of such
Purchaser, such assignee shall not be deemed a "Purchaser" for purposes of
Section 7.5 of this Agreement.
17.4. ENTIRE AGREEMENT. This Agreement (including the Schedules and
Exhibits hereto) and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof.
17.5. NOTICES ETC. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if delivered
either personally or by a United States nationally recognized courier service
marked for next business day delivery or sent by facsimile or in a sealed
envelope by first class mail, postage prepaid and either registered or
certified, addressed as follows:
(a) if to the Company;
Ascent Pediatrics, Inc.
187 Ballardvale Street
Suite B125
Wilmington, MA 01887
Attention: President
Telephone: (978) 658-2500
Facsimile: (978) 658-3939
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with a copy to:
Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: David Redlick
Telephone: (617) 526-6434
Facsimile: (617) 526-5000
(b) if to the Purchasers:
FS Private Investments LLC, Manager
230 Park Avenue
New York, New York 10169
Attention: James L. Luikart, Managing Member
Telephone: (212) 309-8223
Facsimile: (212) 692-9147
with a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Attention: Melvin Epstein
Telephone: (212) 806-5400
Facsimile: (212) 806-6006
and to:
BancBoston Ventures Inc.
175 Federal Street, 10th Floor
Boston, MA 02110
Attention: Marcia Bates
Telephone: (617) 434-1951
Facsimile: (617) 434-1153
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
Attention: Robert M. Wolf
Telephone: (617) 951-8000
Facsimile: (617) 951-8736
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or to such other address with respect to any party hereto as such party may from
time to time notify (as provided above) the other parties hereto. Any such
notice, demand or communication shall be deemed to have been received (i) on the
date of delivery, if delivered personally, (ii) one business day after delivery
to a nationally recognized overnight courier service, if marked for next day
delivery, (iii) five business days after the date of mailing, if mailed or (iv)
on the date of transmission, if sent by facsimile provided that if such date is
not a business day, on the next succeeding business day.
17.6. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any holder of any Securities or Warrant Shares upon
any breach or default of the Company under this Agreement shall impair any such
right, power or remedy of such holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence, therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement must be, made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
17.7. SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
17.8. AGENT'S FEES. Except as set forth on Schedule 17.8 attached hereto,
the Company hereby represents and warrants to the Purchasers that it has not
retained a finder or broker in connection with the transactions contemplated by
this Agreement. The Purchasers each hereby represent and warrant to the Company
that they have retained no finder or broker in connection with the transactions
contemplated by this Agreement.
17.9. INFORMATION CONFIDENTIAL; NO SOLICITATION.
(a) Each Purchaser acknowledges that the information received by it
pursuant hereto may be confidential and for its use only, and such Purchaser
agrees that it will not use such confidential information or reproduce, disclose
or disseminate such information to any other person (other than its employees,
agents or attorneys having a need to know the contents of such information and
bound to maintain the confidentiality of such information), except in connection
with the exercise of rights under this Agreement, unless the Company has made
such information available to the public generally or such Purchaser is required
to disclose such information by a governmental body or pursuant to legal
proceedings. For purposes herein, "confidential information" shall mean and
include any non-public financial, operational, technical and other proprietary
information relating to the business and affairs of the Company, whether such
information is provided in written, oral, graphic, pictorial or recorded form or
stored on computer
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discs, hard drives or magnetic tapes or in digital or any other electronic
medium which such Purchaser may obtain from the Company pursuant to non-public
financial statements, reports and other materials submitted to the Purchaser
pursuant to this Agreement, pursuant to inspection rights granted hereunder, or
otherwise.
(b) Each Purchaser agrees that it will not, either alone or in
conjunction with any person, firm, corporation, association or other entity,
solicit or attempt to solicit any employee of the Company to leave his or her
employment and accept employment elsewhere or solicit any person who was an
employee of the Company to accept employment elsewhere within three (3) months
of the termination of such employee's employment with the Company.
17.10. EXPENSES. The Company shall bear its own expenses and legal fees
incurred on its behalf with respect to the negotiation, execution and
consummation of the transactions contemplated by this Agreement, and the Company
will pay all of the legal fees and disbursements of counsel and any other
reasonable out-of-pocket expenses for each of the Purchasers, upon receipt of an
itemized statements therefor, but not more than $75,000 in the aggregate if the
transactions contemplated by Article I of this Agreement are not consummated.
17.11. LITIGATION. Each party to this Agreement hereby consents to personal
jurisdiction, service of process and venue in any court in which any claim is
brought against any of the parties hereto or any other person entitled to the
benefits of Section 10.7 of this Agreement, provided that such party or person
has the right to seek indemnification under such section.
17.12. TITLES AND SUBTITLES. The titles of the articles, sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
17.13. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Agreement to be executed and delivered by their respective officers thereunto
duly authorized.
Very truly yours,
ASCENT PEDIATRICS, INC.
By: /s/ Alan R. Fox
---------------------------------
Name: Alan R. Fox
Title: President and CEO
FURMAN SELZ INVESTORS II L.P.
FS EMPLOYEE INVESTORS LLC
FS PARALLEL FUND L.P.
By: FS PRIVATE INVESTMENTS LLC,
MANAGER
By: /s/ Brian P. Friedman
----------------------------------
Name: Brian P. Friedman
Title: Manageing Member
BANCBOSTON VENTURES INC.
By: /s/ Marcia T. Bates
----------------------------------
Name: Marcia T. Bates
Title: Managing Director
FLYNN PARTNERS
By: /s/ James E. Flynn
----------------------------------
Name: James E. Flynn, General
Partner Flynn Partners
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Schedule 1
Purchasers
Number of Shares of Principal Amount of Number of
Preferred Stock Subordinated Notes to be Warrants Aggregate Purchase
Name of Purchaser to be Purchased: Purchased: to be Purchased: Price
- ------------------------------------------------------------------------------------------------------------------------------------
Furman Selz Investors II L.P. 4,628 $5,950,285.71 1,399,611 $10,578,285.71
FS Employee Investors LLC 397 510,428.57 120,062 907,428.57
FS Parallel Fund L.P. 225 289,285.72 68,045 514,285.72
BancBoston Ventures Inc. 1,663 2,138,142.86 502,929 3,801,142.86
Flynn Partners 87 111,857.14 26,311 198,857.14
----- ------------- --------- ---------------
Total 7,000 $9,000,000.00 2,116,958 $16,000,000.00
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EXHIBIT A
CERTIFICATE OF DESIGNATION OF PREFERRED STOCK
Included as Exhibit 3.1 to the Current Report on Form 8-K of Ascent Pediatrics,
Inc. dated June 1, 1998.
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EXHIBIT B
FORM OF CONVERTIBLE NOTE
Included as Exhibit 10.2 to the Current Report on Form 8-K of Ascent Pediatrics,
Inc. dated June 1, 1998.
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EXHIBIT C
FORM OF 8.0% SUBORDINATED NOTE DUE JUNE __, 2005
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD
OR OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
$_________ ____________, 1998
NEW YORK, NEW YORK
FOR VALUE RECEIVED, ASCENT PEDIATRICS, INC., a Delaware
corporation (the "undersigned"), hereby promises to pay to the order
of____________, or registered assigns, the principal amount of _______________
Dollars ($__________) on May __, 2005, and to pay interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid principal amount
hereof at the rate of 8.0% per annum until the unpaid principal amount hereof
shall become due and payable, and to pay, on demand, interest on any overdue
principal, including any overdue prepayment of principal and premium, if any, at
the rate of 12% per annum.
Payments of principal, premium, if any, and interest shall be
made to the registered holder hereof in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, at the office of the Company at 187
Ballardvale Street, Suite B125, Wilmington, Massachusetts 01887, subject to the
right of the registered holder hereof under the Purchase Agreement referred to
below to receive direct payment in immediately available funds.
Accrued interest shall be paid by the undersigned semiannually on
June 1 and December 1 of each year, commencing on December 1, 1998; provided,
however, that payment of 40% of the accrued interest otherwise payable on
December 1, 1998 and June 1, 1999 shall be payable, with interest thereon at the
rate of 8.0% per annum, on December 1, 2001 and June 1, 2002, respectively, and
payment of 40% of the accrued interest otherwise payable on December 1, 1999 and
June 1, 2000 shall be payable, with interest thereon at the rate of 8.0% per
annum, on December 1, 2002 and June 1, 2003, respectively; provided, further,
however, that all such
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deferred interest payments and interest thereon shall be due and payable, if not
previously paid, upon the acceleration of the maturity of this Note.
If any amounts under this Note become due and payable on a day
that banks in the State of New York are not open for business, such amounts
shall be paid on the next succeeding day that such banks shall be open for
business.
This Note has been issued pursuant to, and is one of a series of
subordinated notes (the "Subordinated Notes") issued pursuant to, and is subject
to all of the provisions of, the Securities Purchase Agreement dated as of May
13, 1998 between the undersigned and the Purchasers named therein (the "Purchase
Agreement"). Capitalized terms herein are used as defined in the Purchase
Agreement unless otherwise defined herein.
This Note may be redeemed by either the undersigned or the holder
as provided in Article IX of the Purchase Agreement.
This Note is a general unsecured obligation of the undersigned
and is subordinated to all Senior Indebtedness in accordance with Article XI of
the Purchase Agreement. Upon the occurrence of any one or more Events of
Default, all amounts then remaining unpaid on this Note may be declared to be
immediately due and payable subject to and as provided in the Purchase
Agreement.
This Note may be amended and the provisions hereof may be waived
only in accordance with Article XIV of the Purchase Agreement.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, ASCENT PEDIATRICS, INC. has caused this Note
to be duly executed.
ASCENT PEDIATRICS, INC.
(CORPORATE SEAL)
ATTEST: By: ------------------------------
Name:
Title:
- ----------------------------
Name:
Title: Secretary
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EXHIBIT D
FORM OF WARRANT TO PURCHASE COMMON STOCK
Included as Exhibit 10.3 to the Current Report on Form 8-K of Ascent Pediatrics,
Inc. dated June 1, 1998.
D-1
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EXHIBIT E
FORM OF OPINION OF HALE AND DORR LLP
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SUBSCRIPTION FORM
(To be Executed by the Registered Holder
upon Exercise of the Warrant)
TO: ASCENT PEDIATRICS, INC.
The undersigned hereby elects to exercise the right to purchase
_________ shares of Common Stock represented by the attached Warrant, as
provided therein, and tenders herewith payment of the purchase price in full in
the amount of $__________. [Such payment is hereby made by the cancellation of a
portion of the attached Warrant as computed pursuant to Section 2.4(c).]
Please issue a certificate or certificates for such Common Stock
in the name of:
Name:___________________________________________
(Please print name and address)
Signature:______________________________________
And if said number of shares shall not be all the shares purchasable under the
attached Warrant, a new Warrant is to be issued in the name of said undersigned
for the balance remaining of the shares purchasable thereunder.