NOBLE MEDICAL TECHNOLOGIES, INC. SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (the “Agreement”) is made as of
December 29, 2010 by and between NOBLE MEDICAL TECHNOLOGIES, INC., a
Delaware corporation (the “Company”) and XXXX XXXXXXXXX
(“Purchaser”).
RECITALS
The
Company desires to issue and sell and the Purchaser desires to purchase a senior
promissory note in substantially the form attached to this Agreement as Exhibit A (“Note”) and a warrant in
substantially the form attached to this Agreement as Exhibit B (“Warrant”) to purchase shares
of the Company’s common stock (the “Common Stock”) on the terms
stated therein. The Note, the Warrant, and the Common Stock issuable
upon exercise of the Warrant are collectively referred to herein as the “Securities.”
AGREEMENT
In
consideration of the mutual promises contained herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties to
this Agreement agree as follows:
SECTION
1
PURCHASE
AND SALE OF THE NOTE
1.1 Sale and Issuance of the
Note. Subject to the terms and conditions of this Agreement,
each Purchaser agrees to purchase at the Closing and the Company agrees to sell
and issue to Purchaser a Note in the principal amount of $100,000 and a Warrant
exercisable into 333,333 shares of Common Stock. The purchase price
of the Note and the Warrant shall be equal to 100% of the principal amount of
such Note.
1.2 Closing;
Delivery.
(a) The
purchase, sale and issuance of the Note and Warrant shall take place at the
offices of Xxxxxxxxx Xxxxx, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx, at 10:00 a.m., on the date first set forth above, or at such other
time and place as the Company and the Purchaser mutually agree upon, orally or
in writing. At the Closing, the Company shall deliver to the
Purchaser the Note and the Warrant against payment of the purchase price
therefor by wire transfer to the following account.
Beneficiary
Account Name: Noble Medical Technologies, Inc.
Beneficiary
Account Number:
Beneficiary
Bank:
1
SECTION
2
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company hereby represents and warrants to the Purchaser that:
2.1 Organization, Good Standing and
Qualification. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to carry on its business as
now conducted and as proposed to be conducted.
2.2 Authorization. All
corporate action on the part of the Company necessary for the authorization,
execution and delivery of this Agreement and the authorization, sale, issuance
and delivery of the Note and the Warrant and the shares of the Company’s Common
Stock issuable on conversion or exercise of the Warrant, and the performance of
all obligations of the Company under this Agreement, the Note and the Warrant
has been taken or will be taken prior to the Closing. The Agreement
and the Note and the Warrant, when executed and delivered by the Company, shall
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors’ rights generally, as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable
remedies.
SECTION
3
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
hereby represents and warrants to the Company that:
3.1 Purchase Entirely for Own
Account. The Securities to be acquired by the Purchaser will
be acquired for investment for the Purchaser’s own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Purchaser
has not been formed for the specific purpose of acquiring any of the
Securities.
3.2 Knowledge. The
Purchaser is aware of the Company’s business affairs and financial condition and
has acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the securities.
3.3 Investment
Experience. The Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company and acknowledges that the Purchaser can protect
its own interests. The Purchaser has such knowledge and experience in
financial and business matters so that the Purchaser is capable of evaluating
the merits and risks of its investment in the Company.
3.4 Speculative Nature of
Investment. The Purchaser understands and acknowledges that
the Company has a limited financial and operating history and that an investment
in the Company is highly speculative and involves substantial
risks. The Purchaser can bear the economic risk of the investment and
is able, without impairing the Purchaser’s financial condition, to hold the
Securities for an indefinite period of time and to suffer a complete loss of the
investment.
2
3.5 Restricted
Securities. The Purchaser understands that the Securities have
not been, and will not be, registered under the Securities Act of 1933, as
amended (the “Act”), by
reason of a specific exemption from the registration provisions of the Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser’s representations as expressed
herein. The Purchaser understands that the Securities are “restricted securities” under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold the Securities indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for
resale. The Purchaser further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period for the Securities, and on requirements relating to the Company
which are outside of the Purchaser’s control, and which the Company is under no
obligation and may not be able to satisfy.
3.6 No Public
Market. The Purchaser understands that no public market now
exists for any of the securities issued by the Company, that the Company has
made no assurances that a public market will ever exist for the
Securities.
3.7 Legends. The
Purchaser understands that the Securities, and any securities issued in respect
thereof or exchange therefor, may bear one or more of one the following
legends:
(a) “THE
SECURITIES REPRESENTED BY THIS INSTRUMENT [OR CERTIFICATE] HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT OR SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE
RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT
BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A
COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED
BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
WITH SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH SAID AGREEMENT WILL BE VOID.”
(b) Any
legend required by the Blue Sky laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
3.8 Accredited
Investor. The Purchaser is an accredited investor as defined
in Rule 501(a) of Regulation D promulgated under the Act.
3
SECTION
4
CONDITIONS
OF THE PURCHASER’S OBLIGATIONS AT CLOSING
The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
4.1 Representations and
Warranties. The representations and warranties of the Company
contained in Section
2 shall be true on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Closing.
4.2 Qualifications. All
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Securities pursuant to this
Agreement shall be obtained and effective as of the Closing.
SECTION
5
CONDITIONS
OF THE COMPANY’S OBLIGATIONS AT CLOSING
The
obligations of the Company to each Purchaser under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 Representations and
Warranties. The representations and warranties of each
Purchaser contained in Section 3 shall be
true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the
Closing.
5.2 Qualifications. All
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Securities pursuant to this
Agreement shall be obtained and effective as of the Closing.
SECTION
6
MISCELLANEOUS.
6.1 Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.2 Governing Law. This
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such State. Each of the Company and the Purchaser agrees to
submit to the exclusive jurisdiction and venue of the United States District
Court for the Southern District of New York for any civil action, suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. To the extent permitted by applicable law, each
of the Company and the Purchaser hereby unconditionally waives trial by jury in
any civil legal action or proceeding relating to the Agreement or the
transactions contemplated hereby or thereby.
4
6.3 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
6.4 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.5 Amendments and
Waivers. Any term of this Agreement may be amended or waived
only with the written consent of the Company and the Purchaser.
6.6 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as
possible to that under the provision rendered unenforceable. In the
event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
6.7 Entire
Agreement. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
existing between the parties hereto are expressly canceled.
[SIGNATURE
PAGES FOLLOW]
5
IN
WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement as of the date first written above.
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COMPANY:
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NOBLE
MEDICAL
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TECHNOLOGIES,
INC.
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By
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx,
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Chief
Executive Officer
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PURCHASER:
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/s/
Xxxx Xxxxxxxxx
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Xxxx
Xxxxxxxxx
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[Signature
page to Securities Purchase Agreement]
EXHIBIT
A
PROMISSORY
NOTE
Exhibit
A
EXHIBIT
B
FORM
OF WARRANT
Exhibit
B
