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EXHIBIT 4.1
STOCK PURCHASE AGREEMENT
Conceptus, Inc.
1021 Howard Avenue
San Carlos, CA 94070
Ladies & Gentlemen:
The undersigned,_____________________ (the "Investor"), hereby
confirms
its agreement with you as follows:
1. This
Stock Purchase Agreement (the "Agreement") is made effective as
of
February ___, 2004 between Conceptus, Inc.,
a Delaware corporation (the
"Company"), and the Investor.
2. The
Company has authorized the issuance and sale of up to 3,000,000
shares (the "Shares") of common stock of
the Company, $0.003 par value per share
(the "Common Stock"), subject to adjustment
by the Company's Board of Directors,
to certain investors in a private placement
(the "Offering").
3. The
Company and the Investor agree that the Investor will purchase
from
the Company and the Company will issue and
sell to the Investor ____________
Shares, for a purchase price of $__________
per share, or an aggregate purchase
price of $__________ , pursuant to the
Terms and Conditions for Purchase of
Shares attached hereto as Annex I and
incorporated herein by reference as if
fully set forth herein. Unless otherwise
requested by the Investor, certificates
representing the Shares purchased by the
Investor will be registered in the
Investor's name and address as set forth
below.
4. The
Investor represents that, except as set forth below, (a) it has
had
no position, office or other material
relationship within the past three years
with the Company or its affiliates, (b)
neither it, nor any group of which it is
a member or to which it is related,
beneficially owns (including the right to
acquire or vote) any securities of the
Company and (c) it has no direct or
indirect affiliation or association with
any NASD member. Exceptions:
(If no exceptions, write "none." If left blank, response will be
deemed
to be "none.")
Please confirm that the foregoing correctly sets forth the
agreement
between us by signing in the space provided
below for that purpose.
___________________________________________
"INVESTOR"
By: _______________________________________
Print Name: _______________________________
Title: ____________________________________
Address: __________________________________
Tax ID No.: _______________________________
Contact name: _____________________________
Telephone: ________________________________
Name in which shares should be registered
(if different):____________________________
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
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AGREED AND ACCEPTED:
-------------------
CONCEPTUS, INC.
By: ______________________________
Mark Sieczkarek
President and Chief
Executive Officer
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1.
Authorization and Sale of the Shares. Upon the terms and
subject to the conditions of this
Agreement, the Company has authorized the sale
of up to 3,000,000 Shares. The Company
reserves the right to increase or
decrease this number.
2.
Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 At the
Closing (as defined in Section 3), the Company
will sell to the Investor, and the Investor
will purchase from the Company, upon
the terms and subject to the conditions
hereinafter set forth, the number of
Shares set forth on the signature page
hereto at the purchase price set forth on
such signature page.
2.2 The
Company is entering into this same form of Stock
Purchase Agreement with certain other
investors (the "Other Investors")
effective as of the date hereof (the
"Subscription Date") and expects to
complete sales of Shares to them. (The
Investor and the Other Investors are
hereinafter sometimes collectively referred
to as the "Investors," and this
Agreement and the Stock Purchase Agreements
executed by the Other Investors are
hereinafter sometimes collectively referred
to as the "Agreements.")
3.
Delivery of the Shares at Closing. The completion of the
purchase and sale of the Shares (the
"Closing") shall occur (the "Closing Date")
on the third business day after the
Subscription Date (or upon such earlier date
as the Company and the Investors shall
agree), at the offices of the Company's
counsel. At the Closing, the Company shall
deliver to the Investor one or more
stock certificates representing the number
of Shares set forth on the signature
page hereto, each such certificate to be
registered in the name of the Investor
or, if so indicated on the signature page
hereto, in the name of a nominee
designated by the Investor. The Company's
obligation to issue the Shares to the
Investor shall be subject to the following
conditions, any one or more of which
may be waived by the Company: (a) receipt
by the Company of a certified or
official bank check or wire transfer of
funds in the full amount of the purchase
price for the Shares being purchased
hereunder as set forth on the signature
page hereto; provided, however, that any
Investor subject to the Investment
Company Act of 1940, as amended (the
"Investment Act"), shall not be required to
deliver the applicable purchase price prior
to the physical delivery and review
by Investor of the certificates
representing the Shares purchased by such
Investor, in compliance with the provisions
of the Investment Act; (b)
completion of the purchases and sales under
the Agreements with the Other
Investors; and (c) the accuracy of the
representations and warranties made by
the Investors and the fulfillment of those
undertakings of the Investors to be
fulfilled prior to the Closing. The
Investor's obligation to purchase the Shares
shall be subject to the following
conditions, any one or more of which may be
waived by the Investor (provided that no
such waiver shall be deemed given
unless in writing and executed by the
Investor): (a) receipt by the Investor of
a counter-signed copy of this Agreement
executed by the Company; (b) receipt by
the Investor of one or more stock
certificates representing the number of Shares
set forth on the signature page hereto; (c)
receipt by the Investor of an
opinion letter, dated as of the Closing
Date, from Latham & Watkins LLP, counsel
to the Company, in form and substance
reasonably satisfactory to the Investor;
(d) the accuracy of the
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representations and warranties made by the
Company and the fulfillment of those
undertakings of the Company to be fulfilled
prior to the Closing; (e) on the
Closing Date, no legal action, suit or
proceeding shall be pending or threatened
which seeks to restrain or prohibit the
transactions contemplated by the
Agreements; (f) the Company shall have
delivered to the Investors its
certificate, dated the Closing Date, duly
executed by its Chief Executive
Officer to the effect set forth in clause
(d) above; (g) the receipt by the
Investors of a certificate, dated the
Closing Date, of the Secretary or
Assistant Secretary of the Company
certifying (i) the certificate of
incorporation and bylaws of the Company as
in effect on the Closing Date, (ii)
all resolutions of the board of directors
(and committees thereof) of the
Company relating to the Agreements and the
transactions contemplated thereby and
(iii) the incumbency of all officers of the
Company executing the Agreements and
any other agreement or document
contemplated thereby.
4.
Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to,
and covenants with, the Investor, as
follows:
4.1
Organization. Each of the Company and its
Subsidiaries is duly organized and validly
existing in good standing under the
laws of the jurisdiction of its
organization. Each of the Company and its
Subsidiaries (as defined in Rule 405 under
the Securities Act of 1933, as
amended (the "Securities Act")) has full
power and authority to own, operate and
occupy its properties and to conduct its
business as presently conducted and is
registered or qualified to do business and
in good standing in each jurisdiction
in which it owns or leases property or
transacts business and where the failure
to be so qualified would have a material
adverse effect upon the financial
condition or business, operations, assets
or prospects of the Company and its
Subsidiaries, considered as one enterprise,
and no proceeding has been
instituted in any such jurisdiction,
revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such
power and authority or qualification.
4.2 Due
Authorization. The Company has all requisite
power and authority to execute, deliver and
perform its obligations under the
Agreements, and the Agreements have been
duly authorized and validly executed
and delivered by the Company and constitute
legal, valid and binding agreements
of the Company enforceable against the
Company in accordance with their terms,
except as rights to indemnity and
contribution may be limited by state or
federal securities laws or the public
policy underlying such laws, except as
enforceability may be limited by applicable
bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditors' and contracting
parties' rights generally and except as
enforceability may be subject to general
principles of equity (regardless of whether
such enforceability is considered in
a proceeding in equity or at law).
4.3
Non-Contravention. The execution and delivery of the
Agreements, the issuance and sale of the
Shares to be sold by the Company under
the Agreements, the fulfillment of the
terms of the Agreements and the
consummation of the transactions
contemplated thereby will not (A) conflict with
or constitute a violation of, or default
(with or without the giving of notice
or the passage of time or both) under, (i)
any material bond, debenture, note or
other evidence of indebtedness, or under
any material lease, indenture,
mortgage, deed of trust, loan agreement,
joint venture or other agreement or
instrument to which the Company or any
Subsidiary is a party or by which it or
any of its Subsidiaries or their respective
properties are bound, (ii) the
charter, by-laws or
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other organizational documents of the
Company or any Subsidiary, or (iii) any
law, administrative regulation, ordinance
or order of any court or governmental
agency, arbitration panel or authority
applicable to the Company or any
Subsidiary or their respective properties,
or (B) result in the creation or
imposition of any lien, encumbrance, claim,
security interest or restriction
whatsoever upon any of the material
properties or assets of the Company or any
Subsidiary or an acceleration of
indebtedness pursuant to any obligation,
agreement or condition contained in any
material bond, debenture, note or any
other evidence of indebtedness or any
material indenture, mortgage, deed of
trust or any other agreement or instrument
to which the Company or any
Subsidiary is a party or by which any of
them is bound or to which any of the
property or assets of the Company or any
Subsidiary is subject. No consent,
approval, authorization or other order of,
or registration, qualification or
filing with, any regulatory body,
administrative agency, self-regulatory
organization, stock exchange or market, or
other governmental body in the United
States is required for the execution and
delivery of the Agreements and the
valid issuance and sale of the Shares to be
sold pursuant to the Agreements,
other than such as have been made or
obtained, and except for any securities
filings required to be made under federal
or state securities laws.
4.4 Reporting
Status. The Company has filed in a timely
manner all documents that the Company was
required to file under the Securities
Exchange Act of 1934, as amended (the
"Exchange Act"), during the 12 months
preceding the date of this Agreement. The
following documents complied in all
material respects with the SEC's
requirements as of their respective filing
dates, and the information contained
therein as of the date thereof did not
contain an untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein in
light of the circumstances under where they
were made not misleading, except to
the extent that information contained in
any such document has been revised or
superseded by a later filed SEC Document
(as defined below):
(i) The
Company's Annual Report on Form 10-K for the year
ended December 31, 2002, including the exhibits
thereto (the "Form 10-K"); and
(ii)
all other documents, including the exhibits thereto,
filed by the Company with the SEC since December 31,
2002 pursuant to the reporting requirements of the
Exchange Act (together with the Form 10-K, the "SEC
Documents").
The SEC Documents (together with press releases and other
documents made publicly available by the
Company), when taken together as a
whole, as of the date hereof, do not
contain an untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein in light of
the circumstances under which they
were made not misleading.
4.5
Capitalization. As of December 31, 2003, the
authorized capital stock of the Company
consists of 50,000,000 shares of Common
Stock and 3,000,000 shares of preferred
stock, par value $.003 per share, of the
Company (the "Preferred Stock"). As of
December 31, 2003, there were
approximately (i) 21,796,937 shares of
Common Stock issued and outstanding, (ii)
no shares of Preferred Stock issued and
outstanding, (iii) 4,558,414 shares of
Common Stock reserved for issuance under
the Company's 2001 Equity Incentive
Plan, 1993 Stock Plan and 1995 Directors'
Option Plan, including 4,317,126
shares issuable upon exercise of
outstanding stock options issued
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by the Company to current or former
employees, consultants and directors of the
Company and its Subsidiaries, (iv) an
aggregate of 8,034 shares of Common Stock
reserved for issuance pursuant to the
Company's 1995 Employee Stock Purchase
Plan, a portion of which are issued and
outstanding, and (v) no other shares or
options, warrants or other rights to
acquire shares of capital stock of the
Company or securities convertible into
capital stock of the Company. The Company
is, directly or indirectly, the registered
and beneficial owner of all of the
outstanding shares of capital stock of each
of its Subsidiaries. All outstanding
shares of Common Stock are duly authorized,
validly issued, fully paid and
nonassessable, free from any liens or any
other encumbrances created by the
Company with respect to the issuance and
delivery thereof and not subject to
preemptive rights. Other than as disclosed
in the SEC Documents, there are no
outstanding rights, options, warrants,
preemptive rights, rights of first
refusal agreements, commitments or similar
rights for the purchase or
acquisition from the Company of any
securities of the Company. The Shares to be
sold pursuant to the Agreements have been
duly authorized, and when issued and
paid for in accordance with the terms of
the Agreements will be duly and validly
issued, fully paid and nonassessable, free
and clear of all pledges, liens,
encumbrances and other restrictions (other
than those arising under federal or
state securities laws as a result of the
private placement of the Shares to the
Investors). No preemptive right, co-sale
right, right of first refusal or other
similar right exists with respect to the
Shares or the issuance and sale
thereof. No further approval or
authorization of any stockholder, the Board of
Directors of the Company or others is
required for the issuance and sale of the
Shares. Except as set forth in the SEC
Documents, no holder of any of the
securities of the Company or any of its
Subsidiaries has any rights ("demand,"
"piggyback" or otherwise) to have such
securities registered by reason of the
intention to file, filing or effectiveness
of a Registration Statement (as
defined in Section 7.1 hereof).
4.6 Legal
Proceedings. There is no material legal or
governmental proceeding pending or, to the
knowledge of the Company, threatened
to which the Company or any Subsidiary or
any officer or director of the Company
or any Subsidiary in their capacity as such
officer or director is or may be a
party or of which the business or property
of the Company or any Subsidiary is
subject that is not disclosed in the SEC
Documents. There is no action, suit,
proceeding, inquiry or investigation before
or by any court, public board or
body (including, without limitation, the
SEC) pending or, to the knowledge of
the Company, threatened against or
affecting the Company or any of its
Subsidiaries wherein an unfavorable
decision, ruling or finding could adversely
affect the validity or enforceability of,
or the authority or ability of the
Company to perform its obligations under
the Agreements.
4.7 No
Violations. Neither the Company nor any Subsidiary
is in violation of its charter, bylaws, or
other organizational document, or in
violation of any law, administrative
regulation, ordinance or order of any court
or governmental agency, arbitration panel
or authority applicable to the Company
or any Subsidiary, which violation,
individually or in the aggregate, would be
reasonably likely to have a material
adverse effect on the business, operations,
assets or prospects or financial condition
of the Company and its Subsidiaries,
considered as one enterprise, or is in
default (and there exists no condition
which, with or without the passage of time
or giving of notice or both, would
constitute a default) in any material
respect in the performance of any bond,
debenture, note or any other evidence of
indebtedness in any indenture,
mortgage, deed of trust or any other
material agreement or instrument to which
the Company or any Subsidiary is a party or
by which the Company or any
Subsidiary is bound or by which the
properties of the Company or any
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Subsidiary are bound, which would be
reasonably likely to have a material
adverse effect upon the business,
operations, assets or prospects or financial
condition of the Company and its
Subsidiaries, considered as one enterprise. The
Company is in compliance with all
provisions of the Sarbanes-Oxley Act and the
rules and regulations promulgated
thereunder and with all provisions of the
NASD, in each case as to which the Company
is required to be in compliance.
4.8
Governmental Permits, Etc. With the exception of the
matters which are dealt with separately in
Section 4.1, 4.4, 4.12 and 4.13, each
of the Company and its Subsidiaries has all
necessary franchises, licenses,
certificates and other authorizations from
any foreign, federal, state or local
government or governmental agency,
department, or body that are currently
necessary for the operation of the business
of the Company and its Subsidiaries
as currently conducted, except where the
failure to currently possess could not
reasonably be expected to have a material
adverse effect upon the business,
operations, assets or prospects or
financial condition of the Company and its
Subsidiaries, considered as one
enterprise.
4.9
Intellectual Property. Each of the Company and its
Subsidiaries owns or possesses sufficient
rights to use all patents, patent
rights, trademarks, copyrights, licenses,
inventions, trade secrets, trade names
and know-how (collectively, "Intellectual
Property") that are necessary for the
conduct of its business as now conducted
except where the failure to currently
own or possess would not have a material
adverse effect on the financial
condition or business of the Company and
its Subsidiaries considered as one
enterprise. Except as set forth in the SEC
Documents, (i) neither the Company
nor any of its Subsidiaries has received
any notice of, or has any knowledge of,
any infringement of asserted rights of a
third party with respect to any
Intellectual Property that, individually or
in the aggregate, would have a
material adverse effect on the financial
condition or business, operations,
assets or prospects of the Company and its
Subsidiaries considered as one
enterprise and (ii) neither the Company nor
any of its Subsidiaries has received
any notice of any infringement rights by a
third party with respect to any
Intellectual Property that, individually or
in the aggregate, would have a
material adverse effect upon the business,
operations, assets or prospects or
financial condition of the Company and its
Subsidiaries, considered as one
enterprise.
4.10
Financial Statements. The financial statements of the
Company and the related notes thereto
included in the SEC Documents present
fairly, in accordance with generally
accepted accounting principles, the
financial position of the Company and its
Subsidiaries as of the dates
indicated, and the results of its
operations and cash flows for the periods
therein specified. Such financial
statements (including the related notes) have
been prepared in accordance with generally
accepted accounting principles
applied on a consistent basis throughout
the periods therein specified, except
as set forth in the SEC Documents and
subject in the case of unaudited financial
statements, to normal year-end audit
adjustments.
4.11
No Material Adverse Change. Except as disclosed in
the SEC Documents, since September 30, 2003
there has not been (i) any material
adverse change in the financial condition,
earnings or prospects of the Company
and its Subsidiaries considered as one
enterprise nor has any material adverse
event occurred to the Company or its
Subsidiaries, (ii) any material adverse
event affecting the Company or any of its
Subsidiaries, (iii) any obligation,
direct or contingent, that is material to
the Company and its Subsidiaries
considered as one enterprise, incurred by
the Company, except obligations
incurred in the ordinary course of
business, (iv) any
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dividend or distribution of any kind
declared, paid or made on the capital stock
of the Company or any of its Subsidiaries,
(v) any loss or damage (whether or
not insured) to the physical property of
the Company or any of its Subsidiaries
which has been sustained which has a
material adverse effect on the condition
(financial or otherwise), earnings,
operations, business or business prospects
of the Company and its Subsidiaries
considered as one enterprise or (vi) any
notice from or by the Securities and
Exchange Commission and/or any other state
or federal securities regulatory agency,
the NASD and/or the Nasdaq with respect
to (a) any investigation of the Company's
activities or financial results, (b)
the Company's compliance with applicable
laws, rules or regulations or (c)
issues regarding the continued trading of
the Common Stock on the Nasdaq
National Market. Except as disclosed in the
SEC Documents, neither the Company
nor any of its Subsidiaries has (i) sold,
assigned, transferred, abandoned,
mortgaged, pledged or subjected to lien any
of its material properties, tangible
or intangible, or rights under any material
contract, permit, license, franchise
or other agreement or (ii) waived or
cancelled any indebtedness or other
obligations owed to the Company or any such
Subsidiary.
4.12
NASDAQ Listing. The Company's Common Stock is
registered pursuant to Section 12(g) of the
Exchange Act and is listed on The
Nasdaq Stock Market, Inc. National Market
(the "Nasdaq National Market"),
trading in the Common Stock has not been
suspended, and the Company has taken no
action designed to, or likely to have the
effect of, terminating the
registration of the Common Stock under the
Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor
to the Company's knowledge is the
National Association of Securities Dealers,
Inc. ("NASD") currently
contemplating terminating such listing. The
Company and the Common Stock meet
the criteria for continued listing and
trading on the Nasdaq National Market.
4.13
Listing of the Shares. The Company shall comply with
all requirements of the National
Association of Securities Dealers, Inc. with
respect to the issuance of the Shares and
the listing thereof on the Nasdaq
National Market. In furtherance thereof,
the Company shall use its best efforts
to take such actions as may be necessary
and as soon as practicable and in no
event later than 20 days after the Closing
Date to file with the Nasdaq National
Market an application or other document
required by the Nasdaq National Market
and pay all applicable fees when due for
the listing of the Shares with the
Nasdaq National Market and shall provide
evidence of such filing to the
Investors. The Company knows of no reason
why the Shares will not be eligible
for listing on the Nasdaq National Market.
Company stockholder approval for the
transactions contemplated by this Agreement
will not be required.
4.14
No Manipulation of Stock. The Company has not taken
and will not, in violation of applicable
law, take, any action designed to or
that might reasonably be expected to cause
or result in stabilization or
manipulation of the price of the Common
Stock to facilitate the sale or resale
of the Shares.
4.15
S-3 Status. The Company meets the requirements for
the use of Form S-3 for the registration of
the resale of the Shares by the
Investors and will use its best efforts to
maintain S-3 status with the SEC
during the Registration Period (as defined
in Section 7.1(c)).
4.16
Insurance. The Company maintains and will continue to
maintain insurance against loss or damage
by fire or other casualty and such
other insurance, including, but not
limited
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to, product liability insurance, in such
amounts and covering such risks as is
reasonably adequate consistent with
industry practice for the conduct of its
business and the value of its properties,
all of which insurance is in full
force and effect.
4.17
Tax Matters. The Company has filed all material
federal, state and local income and
franchise and other tax returns required to
be filed and has paid all taxes due in
accordance therewith, and no tax
deficiency has been determined adversely to
the Company which has had (nor does
the Company have any knowledge of any tax
deficiency which, if determined
adversely to the Company, might have) a
material adverse effect on the condition
(financial or otherwise), earnings,
operations, business or prospects of the
Company and its Subsidiaries considered as
one enterprise .
4.18
Investment Company. The Company is not an "investment
company" within the meaning of such term
under the Investment Company Act of
1940 and the rules and regulations of the
SEC thereunder.
4.19
No Registration. Assuming the accuracy of the
representations and warranties made by, and
compliance with the covenants of,
the Investors in Section 5 hereof, no
registration of the Shares under the
Securities Act is required in connection
with the offer and sale of the Shares
by the Company to the Investors as
contemplated by the Agreements.
4.20
Internal Accounting Controls. The Company and its
Subsidiaries maintain a system of internal
accounting controls sufficient, in
the judgment of the Company's board of
directors, to provide reasonable
assurance that (i) transactions are
executed in accordance with management's
general or specific authorizations, (ii)
transactions are recorded as necessary
to permit preparation of financial
statements in conformity with generally
accepted accounting principles and to
maintain asset accountability, (iii)
access to assets is permitted only in
accordance with management's general or
specific authorization and (iv) the
recorded accountability for assets is
compared with the existing assets at
reasonable intervals and appropriate action
is taken with respect to any
differences.
4.21
Form D. The Company agrees to file one or more Forms
D with respect to the Shares on a timely
basis as required under Regulation D
under the Securities Act to claim the
exemption provided by Rule 506 of
Regulation D and to provide a copy thereof
to the Investors and their counsel
promptly after such filing.
4.22
Certain Future Financings and Related Actions.
(a) The
Company will not sell, offer to sell,
solicit offers to buy or otherwise
negotiate in respect of any "security" (as
defined in the Securities Act) that is or
could be integrated with the sale of
the Shares in a manner that would require
the registration of the Shares under
the Securities Act.
(b) The
Company shall not offer, sell, contract
to sell or issue (or engage any person to
assist the Company in taking any such
action) any equity securities or securities
convertible into, exchangeable for
or otherwise entitling the holder to
acquire, any Common Stock
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during the period from the date of this
Agreement to the effective date of the
Registration Statement; provided, however,
that nothing in this Section 4.22(b)
shall prohibit the Company from issuing
securities (v) to employees, directors,
officers, advisors or consultants of the
Company; (w) upon exercise of
conversion, exchange, purchase or similar
rights issued, granted or given by the
Company and outstanding as of the date of
this Agreement; (x) pursuant to a
public offering underwritten on a firm
commitment basis registered under the
Securities Act; (y) for the purpose of
funding the acquisition of securities or
assets of any entity in a single
transaction or a series of related
transactions; or (z) pursuant to a
strategic partnership or alliance agreement,
loan agreement, equipment lease or similar
commercial agreement (including
licensing and similar arrangements).
4.23
Use of Proceeds. The Company will use the net
proceeds from the sale of the Shares for
working capital and other general
corporate purposes.
4.24
Disclosure. The Company confirms that neither it nor
any officers, directors or affili
