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Exhibit 10.2
EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the " Agreement "), dated
as of December 29, 2008, by and among Stereotaxis, Inc., a
Delaware corporation, with headquarters located at 4320 Forest Park
Avenue, Suite 100, St. Louis, Missouri 63108 (the "
Company "), and the investors listed on the Schedule of
Buyers attached hereto (individually, a " Buyer " and
collectively, the " Buyers ").
WHEREAS :
A. The Company and the Buyers desire to enter into this
transaction to purchase the Common Shares (as defined below) and
Warrants (as defined below) pursuant to the Registration Statement
(as defined below) which is currently effective, has at least
$65,820,600 of initial offering price of unallocated securities
available for sale as of the date hereof and has been declared
effective in accordance with the Securities Act of 1933, as amended
(the " 1933 Act "), by the United States Securities and
Exchange Commission (the " SEC "), and which is currently
effective.
B. Each Buyer wishes to purchase, and the Company wishes to
sell, upon the terms and conditions stated in this Agreement,
(i) that number of shares of the Common Stock, par value
$0.001 per share, of the Company (the " Common Stock "), set
forth opposite such Buyer’s name in column (3) on the
Schedule of Buyers attached hereto (which aggregate amount for all
Buyers shall be $9,392,562.04, and (ii) warrants, in
substantially the form attached hereto as Exhibit A-1 (the "
Warrants "), to acquire up to that number of additional
shares of Common Stock set forth opposite such Buyer’s name
in column (4) of the Schedule of Buyers (as exercised,
collectively, the " Warrant Shares "), which Warrant Shares
shall be issued pursuant to the Registration Statement or, if such
Registration Statement is not available at the time of issuance of
such Warrant Shares, shall be issued solely pursuant to the
cashless exercise provisions of the Warrant as securities exempt
from registration pursuant to Section 3(a)(9) of the 1933
Act.
C. The Common Shares, the Warrants and the Warrant Shares
collectively are referred to herein as the " Securities
."
NOW, THEREFORE , the Company and each Buyer hereby agree
as follows:
1. PURCHASE AND SALE OF COMMON SHARES AND WARRANTS .
(a) Purchase of Common Shares and Warrants .
(i) Common Shares and Warrants . Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 6
and 7 below, the Company shall issue and sell to each Buyer, and
each Buyer severally, but not jointly, shall purchase from the
Company on the Closing Date (as defined below), (x) the number
of Common Shares as is set forth opposite such Buyer’s name
in column (3) on the Schedule of Buyers, and (y) Warrants
to acquire up to that number of Warrant Shares as is set forth
opposite such Buyer’s name in column (4) on the Schedule
of Buyers.
(ii) Closing . The date of the Closing
(the " Closing Date ") shall be, on the date of notification
of satisfaction (or waiver) of the conditions to the Closing set
forth in Sections 6 and 7 below at the offices of Bryan Cave LLP,
One Metropolitan Square, Suite 3600, St. Louis, Missouri (unless
otherwise mutually agreed to by the Company and each Buyer). The
Closing shall be deemed to have occurred at 10:00 a.m., New York
City time on the Closing Date.
(iii) Purchase Price . The aggregate purchase price for
the Common Shares and the Warrants to be purchased by each such
Buyer at the Closing (the " Purchase Price ") shall be the
amount set forth opposite each Buyer’s name in column
(6) of the Schedule of Buyers, which shall be equal to $4.64
per Common Share and $0.125 per Warrant Share underlying the
Warrants.
(b) Form of Payment . On the Closing Date, (i) each
Buyer shall pay its Purchase Price to the Company for the Common
Shares and the Warrants to be issued and sold to such Buyer at the
Closing, by wire transfer of immediately available funds in
accordance with the Company’s written wire instructions and
(ii) the Company shall deliver to each Buyer the Common Shares
(allocated in the amounts as such Buyer shall request) which such
Buyer is then purchasing hereunder along with the Warrants
(allocated in the amounts as such Buyer shall request) which such
Buyer is purchasing, in each case duly executed on behalf of the
Company and registered in the name of such Buyer or its
designee.
2. BUYER’S REPRESENTATIONS AND WARRANTIES . Each
Buyer, severally and not jointly, represents and warrants with
respect to only itself that:
(a) No Sale or Distribution . Such Buyer is acquiring the
Common Shares and the Warrants in the ordinary course of its
business for its own account. Such Buyer does not presently have
any agreement or understanding, directly or indirectly, with any
Person to distribute any of the Common Shares or Warrants. For the
purpose of this Agreement, " Person " means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
(b) Organization; Authority . Such Buyer is an entity
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization with the requisite
power and authority to enter into and to consummate the
transactions contemplated by the applicable Transaction Documents
(as defined below) and otherwise to carry out its obligations
thereunder. The execution, delivery and performance by such Buyer
of the transactions contemplated by this Agreement has been duly
authorized by all necessary action on the part of such Buyer. This
Agreement has been duly executed by such Buyer, and when delivered
by such Buyer in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Buyer, enforceable
against it in accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification and
contribution provisions may be limited under the federal and state
securities laws and public policy, and (iii) that the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be
brought.
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(c) No Conflicts . The execution, delivery
and performance by such Buyer of this Agreement and the
consummation by such Buyer of the transactions contemplated hereby
will not (i) result in a violation of the organizational
documents of such Buyer or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which such Buyer is a party,
or (iii) result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities
laws) applicable to such Buyer, except in the case of clauses
(ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect
on the ability of such Buyer to perform its obligations
hereunder.
(d) Residency . Such Buyer is a resident of that
jurisdiction specified below its address on the Schedule of
Buyers.
The Company acknowledges and agrees that each Buyer does not
make or has not made any representations or warranties with respect
to the transactions contemplated hereby other than those
specifically set forth in this Section 2.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . The
Company represents and warrants to each of the Buyers that, as of
the date hereof and as of the Closing Date:
(a) Shelf Registration Statement . A "shelf" registration
statement on Form S-3 (File No. 333-137007) with respect to
the Securities has been prepared by the Company in conformity in
all material respects with the requirements of the 1933 Act, and
the rules and regulations (the " Rules and Regulations ") of
the SEC thereunder and has been filed with the SEC. The Company and
the transactions contemplated by this Agreement meet the
requirements and comply with the conditions for the use of Form
S-3. The Registration Statement (as defined below) meets the
requirements of Rule 415(a)(1)(x) under the 1933 Act and complies
in all material respects with said rule. Copies of such
registration statement, including any amendments thereto, the base
prospectus (meeting in all material respects the requirements of
the Rules and Regulations) contained therein and the exhibits,
financial statements and schedules, as finally amended and revised,
have heretofore been delivered by the Company to the Buyers. Such
registration statement, together with any registration statement or
amendment thereto filed by the Company pursuant to Rule 462(b)
under the 1933 Act, is herein referred to as the " Registration
Statement ", which shall be deemed to include all information
omitted therefrom in reliance upon Rules 430A, 430B or 430C under
the 1933 Act and contained in the Prospectus referred to below, has
become effective under the 1933 Act and, other than the amendment
to the Registration Statement filed or to be filed as of the date
hereof pursuant to Rule 462(b) under the 1933 Act, no
post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. The term "Prospectus" as
used in this Agreement means the form of base prospectus together
with the final prospectus supplement relating to the Securities
(the " Prospectus Supplement ") first filed with the SEC
pursuant to and within the time limits described in Rule 424(b)
under the 1933 Act. Any preliminary prospectus relating to the
Securities prior to the date hereof, if any, is referred to as a "
Preliminary Prospectus ". Any reference herein to the
Registration Statement, any Preliminary Prospectus or the
Prospectus or to any amendment or supplement to any of the
foregoing documents shall be deemed to refer to and include any
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documents incorporated by reference therein, and,
in the case of any reference herein to the Prospectus, also shall
be deemed to include any documents incorporated by reference
therein, and any supplements or amendments thereto, filed with the
SEC after the date of filing of the Prospectus Supplement under
Rule 424(b) under the 1933 Act and prior to the termination of the
offering of the Securities.
(b) Prospectus . As of the Applicable Time (as defined
below) and as of the Closing Date (as defined below), neither
(x) the General Use Free Writing Prospectus(es) (as defined
below) issued at or prior to the Applicable Time, the Statutory
Prospectus (as defined below), all considered together
(collectively, the " General Disclosure Package "), nor
(y) any individual Limited Use Free Writing Prospectus (as
defined below), when considered together with the General
Disclosure Package, included or will include any untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from any
Issuer Free Writing Prospectus, in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf
of the Buyers, specifically for use therein. As used in this
subsection and elsewhere in this Agreement:
(i) " Applicable Time " means 5:30 p.m. (New York time)
on the date of this Agreement or such other time as agreed to by
the Company and the Buyers.
(ii) " Statutory Prospectus " as of any time means the
Preliminary Prospectus relating to the Securities that is included
in the Registration Statement immediately prior to that time.
(iii) " Issuer Free Writing Prospectus " means any
"issuer free writing prospectus," as defined in Rule 433 under the
1933 Act, relating to the Securities in the form filed or required
to be filed with the SEC or, if not required to be filed, in the
form retained in the Company’s records pursuant to Rule
433(g) under the 1933 Act.
(iv) " General Use Free Writing Prospectus " means any
Issuer Free Writing Prospectus that is identified on Schedule I to
this Agreement.
(v) " Limited Use Free Writing Prospectus " means any
Issuer Free Writing Prospectus that is not a General Use Free
Writing Prospectus.
(c) Organization . The Company has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and authority
to own or lease its properties and conduct its business as
described in the Registration Statement, the General Disclosure
Package and the Prospectus. The Company has no significant
subsidiaries (as such term is defined in Rule 1-02 of Regulation
S-X promulgated by the SEC) other than as listed in Exhibit 21.1 to
the Company’s Annual Report on Form 10-K for the year ended
December 31, 2007 (the " Annual Report ")
(collectively, the " Subsidiaries "). Each of the
Subsidiaries has been duly organized and is validly existing as an
entity in good standing under the laws of the jurisdiction of its
organization, with corporate power and authority to own or lease
its properties and conduct its business as described in the
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Registration Statement, the General Disclosure
Package and the Prospectus. The Subsidiaries are the only
subsidiaries, direct or indirect, of the Company. The Company and
each of the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their business requires
such qualification, except where the failure to be so qualified
would not reasonably be expected to (i) result in any material
adverse change in or affecting the business, results of operations,
or financial condition of the Company and of the Subsidiaries taken
as a whole, whether or not occurring in the ordinary course of
business, or (ii) prevent, burden or impair the consummation
of the transactions contemplated by this Agreement (collectively a
" Material Adverse Effect "). The outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable and are owned
by the Company or another Subsidiary free and clear of all liens,
encumbrances and equities and claims, except as described in the
Registration Statement and the Annual Report; and no options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations
into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(d) Authorization; Enforcement; Validity . The Company
has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement, the Irrevocable
Transfer Agent Instructions (as defined in Section 5(b)), the
Warrants and each of the other agreements entered into by the
parties hereto in connection with the transactions contemplated by
this Agreement (collectively, the " Transaction Documents ")
and to issue the Securities in accordance with the terms hereof and
thereof. The execution and delivery of the Transaction Documents by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Common Shares and the Warrants and the reservation
for issuance and the issuance of the Warrant Shares issuable upon
exercise of the Warrants have been duly authorized by the
Company’s Board of Directors, and no further filing, consent,
or authorization is required by the Company’s Board of
Directors or its stockholders. This Agreement and the other
Transaction Documents of even date herewith have been duly executed
and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and
remedies.
(e) Issuance of Securities . The outstanding shares of
Common Stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; the Securities to be
issued and sold by the Company have been duly authorized and when
issued and paid for as contemplated herein will be validly issued,
fully paid and non-assessable; and no preemptive rights of
stockholders exist with respect to any of the Securities or the
issue and sale thereof. As of the Closing, a number of shares of
Common Stock shall have been duly authorized and reserved for
issuance which equals or exceeds (i) the number of Common
Shares issuable as of the Closing Date and (ii) the maximum
number of Warrant Shares issuable upon exercise of the Warrants.
Neither the filing of the Registration Statement nor the offering
or sale of the Securities as contemplated by this Agreement gives
rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of
Common Stock. Upon exercise of the Warrants, the Warrant Shares
will be validly issued, fully paid and nonassessable and free from
all preemptive or
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similar rights, taxes, liens and charges with
respect to the issue thereof, with the holders being entitled to
all rights accorded to a holder of Common Stock.
(f) Equity Capitalization . As of the date hereof and as
of the Closing Date, the Company has or will have, as the case may
be, an authorized, issued and outstanding capitalization as is set
forth in the Registration Statement and the Prospectus (subject, in
each case, to the issuance of shares of Common Stock upon exercise
of stock options and warrants disclosed as outstanding in the
Registration Statement and the Prospectus and the grant or issuance
of options or shares under existing equity compensation plans or
stock purchase plans described in the Registration Statement or the
Prospectus), and such authorized capital stock conforms to the
description thereof set forth in the Registration Statement and the
Prospectus. All of the Securities conform to the description
thereof contained in the Registration Statement and the Prospectus.
The form of certificates for the Common Shares and the Warrant
Shares will conform to the corporate law of the jurisdiction of the
Company’s incorporation.
(g) Disclosure .
(i) The SEC has not issued an order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus relating to the proposed offering of
the Securities, and no proceeding for that purpose or pursuant to
Section 8A of the 1933 Act has been instituted or, to the
Company’s knowledge, threatened by the SEC. The Registration
Statement conforms, and the Prospectus and any amendments or
supplements thereto will conform to the requirements of the 1933
Act and the Rules and Regulations. The documents incorporated, or
to be incorporated, by reference in the Prospectus, at the time
filed with the SEC conformed in all material respects, or will
conform in all respects, to the requirements of the Securities
Exchange Act of 1934, as amended (the " 1934 Act ") or the
1933 Act, as applicable, and the Rules and Regulations. The
Registration Statement and any amendment thereto do not contain,
and on the Closing Date will not contain, any untrue statement of a
material fact and do not omit, and on the Closing Date will not
omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus and any amendments and supplements thereto do not
contain, and on the Closing Date will not contain, any untrue
statement of a material fact; and do not omit, and on the Closing
Date will not omit, to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement
or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of the Buyers, specifically for use
therein.
(ii) Each Issuer Free Writing Prospectus, as of its issue date
and at all subsequent times through the completion of the public
offer and sale of the Securities or until any earlier date that the
Company notified or notifies the Buyers as described in the next
sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein that has
not been superseded or modified. If at any time following issuance
of an Issuer Free Writing Prospectus, there occurred or occurs an
event or
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development as a result of which such Issuer Free
Writing Prospectus included or would include an untrue statement of
a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances, not misleading, the Company has notified or will
notify promptly the Buyers so that any use of such Issuer Free
Writing Prospectus may cease until it is amended or supplemented.
The foregoing two sentences do not apply to statements or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by the
Buyers specifically for use therein.
(h) Offering Materials . The Company has not, directly or
indirectly, distributed and will not distribute any offering
material in connection with the offering and sale of the Securities
other than any Preliminary Prospectus, the Prospectus, any
Permitted Free Writing Prospectus (as defined below) and other
materials, if any, permitted under the 1933 Act. The Company will
file with the SEC all Issuer Free Writing Prospectuses in the time
required under Rule 433(d) under the 1933 Act. The Company has
satisfied or will satisfy the conditions in Rule 433 under the 1933
Act to avoid a requirement to file with the SEC any electronic road
show.
(i) Ineligible Issuer Status . At the time of filing the
Registration Statement and (ii) as of the date hereof (with
such date being used as the determination date for purposes of this
clause (ii)), the Company was not and is not an "ineligible issuer"
(as defined in Rule 405 under the 1933 Act, without taking into
account any determination by the SEC pursuant to Rule 405 under the
1933 Act that it is not necessary that the Company be considered an
ineligible issuer), including, without limitation, for purposes of
Rules 164 and 433 under the 1933 Act with respect to the offering
of the Securities as contemplated by the Registration
Statement.
(j) Financial Statements . The consolidated financial
statements of the Company and the Subsidiaries, together with
related notes and schedules as set forth or incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus, present fairly in all material respects
the financial position and the results of operations and cash flows
of the Company and the consolidated Subsidiaries, at the indicated
dates and for the indicated periods. Such consolidated financial
statements and related schedules have been prepared in accordance
with generally accepted principles of accounting (" GAAP "),
consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The
summary and selected consolidated financial and statistical data
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
presents fairly in all material respects the information shown
therein, at the indicated dates and for the indicated periods, and
such data has been compiled on a basis consistent with the
financial statements presented therein and the books and records of
the Company. All disclosures, if any, contained in the Registration
Statement, the General Disclosure Package and the Prospectus
regarding "non-GAAP financial measures" (as such term is defined by
the Rules and Regulations) comply in all material respects with
Regulation G of the 1934 Act and Item 10 of Regulation S-K
under the 1933 Act, to the extent applicable. The Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations
or any "variable interest entities" within the meaning of Financial
Accounting Standards Board Interpretation No. 46), not
disclosed in the Registration Statement, the General Disclosure
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Package and the Prospectus. There are no
financial statements (historical or pro forma) that are required to
be included in the Registration Statement, the General Disclosure
Package or the Prospectus that are not included as
required.
(k) Accountants . Ernst & Young, LLP, who have
certified certain of the financial statements filed with the SEC as
part of, or incorporated by reference in, the Registration
Statement, the General Disclosure Package and the Prospectus, has
represented to the Company that it is an independent registered
public accounting firm with respect to the Company and the
Subsidiaries within the meaning of the 1933 Act and the applicable
Rules and Regulations and the Public Company Accounting Oversight
Board (United States) (the " PCAOB ").
(l) Weaknesses or Changes in Internal Accounting Controls
. Neither the Company nor any of the Subsidiaries is aware of
(i) any material weakness in its internal control over
financial reporting or (ii) change in internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
(m) Sarbanes-Oxley . Solely to the extent that the
Sarbanes-Oxley Act of 2002, as amended, and the rules and
regulations promulgated by the SEC and The NASDAQ Global Market
(the " Principal Market ") thereunder (collectively, the "
Sarbanes-Oxley Act ") has been applicable to the Company,
there is and has been no failure on the part of the Company to
comply in all respects with any provision of the Sarbanes-Oxley
Act. The Company has taken all necessary actions to ensure that it
is in compliance in all respects with all provisions of the
Sarbanes-Oxley Act that are in effect with respect to which the
Company is required to comply and is actively taking steps to
ensure that it will be in compliance with the other provisions of
the Sarbanes-Oxley Act which will become applicable to the
Company.
(n) Litigation . There is no action, suit, claim or
proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of the Subsidiaries before any court or
administrative agency or otherwise which if determined adversely to
the Company or any of the Subsidiaries would have, individually or
in the aggregate, a Material Adverse Effect, except as set forth in
the Registration Statement, the General Disclosure Package and the
Prospectus.
(o) Title . The Company and the Subsidiaries have good
and marketable title to all of the material properties and assets
reflected in the consolidated financial statements hereinabove
described or described in the Registration Statement, the General
Disclosure Package and the Prospectus, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements or described in the
Registration Statement, the General Disclosure Package and the
Prospectus or which are not material in amount or would not
materially interfere with the use to be made of such properties or
assets. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases conforming in all
material respects to the description thereof set forth in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(p) Taxes . The Company and the Subsidiaries have filed
all federal, state, local and foreign tax returns which have been
required to be filed and have paid all taxes indicated by such
returns and all assessments received by them or any of them to the
extent
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that such taxes have become due and are not being
contested in good faith and for which an adequate reserve for
accrual has been established in accordance with GAAP. All tax
liabilities have been adequately provided for in the consolidated
financial statements of the Company in accordance with GAAP, and
the Company does not know of any actual or proposed additional
material tax assessments.
(q) Absence of Certain Changes . Since the respective
dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as
each may be amended or supplemented, there has not been any
Material Adverse Effect, and there has not been any material
transaction entered into by the Company or the Subsidiaries, other
than transactions in the ordinary course of business and
transactions described in the Registration Statement, the General
Disclosure Package and the Prospectus, as each may be amended or
supplemented. The Company and the Subsidiaries have no material
contingent obligations which are not disclosed in the
Company’s consolidated financial statements which are
included in the Registration Statement, the General Disclosure
Package and the Prospectus.
(r) No Conflicts . Neither the Company nor any of the
Subsidiaries is or with the giving of notice or lapse of time or
both, will be, (i) in violation of its certificate of
incorporation, by-laws, or other organizational documents or
(ii) in violation of or in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it
is a party or by which it, or any of its properties, is bound and,
solely with respect to this clause (ii), which violation or default
would have a Material Adverse Effect. The execution and delivery of
this Agreement and the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or
any Subsidiary or any of their respective properties is bound, or
of the certificate of incorporation or by-laws of the Company or
any law, order, rule or regulation judgment, order, writ or decree
applicable to the Company or any Subsidiary of any court or of any
government, regulatory body or administrative agency or other
governmental body having jurisdiction, except to the extent that
such conflict, breach or default would not have a Material Adverse
Effect.
(s) Contracts . There is no document, contract or other
agreement required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required by the 1933
Act or the Rules and Regulations. Each description of a contract,
document or other agreement in the Registration Statement and the
Prospectus accurately reflects in all material respects the terms
of the underlying contract, document or other agreement. Each
contract, document or other agreement described in the Registration
Statement and Prospectus or listed in the exhibits to the
Registration Statement or incorporated by reference is in full
force and effect and is valid and enforceable by and against the
Company in accordance with its terms (except as rights to indemnity
and contribution thereunder may be limited by federal or state
securities laws and matter of public policy and except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and by general
equitable principle and except for those agreements that have
expired by their terms). Neither the Company nor any of its
Subsidiaries nor, to the Company’s knowledge, any other party
is in default in the observance or performance of any term or
obligation to be performed by it under any
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such agreement or any other agreement or
instrument to which the Company or its Subsidiaries is a party or
by which the Company or its Subsidiaries or their respective
properties or businesses may be bound, and no event has occurred
which with notice or lapse of time or both would constitute such a
default, in any such case in which the default or event,
individually or in the aggregate, would have a Material Adverse
Effect.
(t) Regulatory Approvals . Each approval, consent, order,
authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body necessary in
connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by
the SEC, the Financial Industry Regulatory Authority, Inc. (the "
FINRA ") or such additional steps as may be required under
state securities or Blue Sky laws) has been obtained or made and is
in full force and effect.
(u) Intellectual Property . Except as described in the
Registration Statement or in any document incorporated by reference
therein, the Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities
which are necessary to the conduct of their businesses in the
manner in which they are being conducted; the Company and the
Subsidiaries each own or possess the right to use all patents,
patent rights, trademarks, trade names, service marks, service
names, copyrights, license rights, know-how (including trade
secrets and other unpatented and unpatentable proprietary or
confidential information, systems or procedures) and other
intellectual property rights (" Intellectual Property ")
necessary to carry on their business in all material respects in
the manner in which it is being conducted; to the Company’s
knowledge, neither the Company nor any of the Subsidiaries has
infringed, and none of the Company or the Subsidiaries have
received notice of conflict with, any Intellectual Property of any
other person or entity. The Company has taken all steps reasonably
necessary to secure ownership interests in Intellectual Property
created for it by any contractors. There are no outstanding
options, licenses or agreements of any kind relating to the
Intellectual Property of the Company that are required to be
described in the Registration Statement, the General Disclosure
Package and the Prospectus and are not described therein in all
material respects. The Company is not a party to or bound by any
options, licenses or agreements with respect to the Intellectual
Property of any other person or entity that are required to be set
forth in the Prospectus and are not described therein in all
material respects. None of the technology employed by the Company
and material to the Company’s business has been obtained or
is being used by the Company in violation of any contractual
obligation binding on the Company or, to the Company’s
knowledge, any of its officers, directors or employees or, to the
Company’s knowledge, otherwise in violation of the rights of
any persons; the Company has not received any written or oral
communications alleging that the Company has violated, infringed or
conflicted with, or, by conducting its business as set forth in the
Registration Statement, the General Disclosure Package and the
Prospectus, would violate, infringe or conflict with, any of the
Intellectual Property of any other person or entity. The Company
knows of no infringement by others of Intellectual Property owned
by or licensed to the Company.
(v) FDA; Studies . Since the respective dates as of which
information is set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, (i) all of the
descriptions of the Company’s legal and governmental
proceedings and procedures before the United States Food and Drug
Administration (the " FDA ") or any other national,
departmental, state or local
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governmental body exercising comparable authority
are true and correct in all material respects, (ii) the
studies, tests and preclinical and clinical trials (if any)
conducted by or on behalf of the Company and its Subsidiaries that
are described in the Registration Statement, the General Disclosure
Package and the Prospectus were and, if still pending, are
(a) with respect to the foregoing conducted by employees of
the Company or any of its Subsidiaries (" Company Studies
"), being conducted in accordance with experimental protocols,
procedures and controls pursuant to, where applicable, accepted
professional scientific standards, in each case in all necessary
respects and in all material respects; and (b) with respect to
the foregoing conducted on behalf of the Company or independently
by others using the Company’s or any of its
Subsidiaries’ technologies, products or product candidates ("
Independent Studies "), to the Company’s knowledge,
after due inquiry, being conducted in accordance with experimental
protocols, procedures and controls pursuant to, where applicable,
accepted professional scientific standards, in each case in all
necessary respects and in all material respects; (iii) the
descriptions of the resu
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