Exhibit 4.26
THIS AGREEMENT is made as of the 6th day of December, 1999, by and among Saliva
Diagnostic Systems Inc., a Delaware corporation, which has an address at 00000
X.X. 00XX XXXXXX,Xxxxxxxxx, XX 00000 ("Company"), and Xxxxxxx Xxxxxx
("Investor"), an individual with an address at 0000 Xxxx 0xx Xxxxxx ,Xxxxxxxx,
Xxx Xxxx ("Investor").
W I T N E S S E T H:
WHEREAS, the Company is desirous of borrowing funds from Sterling National Bank
and Investor desires to facilitate such loan to enter into a transaction upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Company and Investor, intending to be legally bound, agree
as fol1ow~:
1). Investor agrees to guaranty the Company's credit line with Sterling National
Bank and agrees to continue to guaranty or make such loans (in Investor's sole
discretion) up to the aggregate principal sum of $500,000 (the "Funds"). In
consideration for the foregoing, the Company agrees as follows:
a). The Funds will be repaid to Investor with interest at 12% per annum
commencing as of the respective funding date, repayable six (6) months from the
date of the loan or upon demand of the investor should Investor believe that the
Company will be in default under this Agreement or any other material agreement,
or Investor believes that the Company may not have the financial ability or
assets to repay the Funds;
b). The Company will issue such number of 1998-Series B Convertible Preferred
Stock and Warrants (collectively the "Shares"), based upon the amount of Funds
loaned from Sterling National Bank to the Company, calculated upon the same
formula as set forth in the Company's previous transactions.
c). To secure Investor's loan, the Company will execute and deliver a Security
Agreement and execute, deliver and file Uniform Commercial Code Financing
Statements pledging all assets of the Company in favor of Sterling National Bank
and/or the Investor or an assignee of Investor (it being understood however that
there may be prior liens on the assets of the Company.
2). The Company agrees to submit this transaction to its Board of Directors for
their approval forthwith and the Company will obtain all requisite approvals and
consents, as hereinafter may be required.
3). All expenses in connection with this transaction shall be borne by the
Company.
4). Further Assurances. Each party hereto shall cooperate and shall take such
further action and shall execute and deliver such further documents as may be
reasonably requested by any party in order to carry out the provisions and
purposes of this Agreement.
5). Representations of Investor. Investor, by executing and delivering this
Agreement hereby represents, warrants and covenants to the Company as follows:
5.1 (a) that the Investor is being issued, the Shares for investment only, for
her own account, and not with a view towards distribution thereof and (b) that
the Investor is aware (i) that the Shares are not registered under the
Securities Act of 1933, as amended (the "Act"), (ii) that the Shares may not be
sold or otherwise transferred unless they are registered under the Act (unless
an exemption from registration is available) and (iii) that one or more legends
setting forth the restrictions on the transferability of the Shares will appear
on the certificate(s) representing the Shares.
5.2 That she (i) has been provided with access to the Company's facilities and
any records which she has deemed necessary to fully investigate the Company and
its business operations, and (ii) fully understands and acknowledges that the
Company is a start-up operation and there is no assurance that the Company will
be successful in its manufacturing or marketing efforts.
5.3 That she has such knowledge, sophistication and experience in financial and
business matters that she is capable of (i) fully understanding the business and
financial condition of the Company and evaluating the merits and risks of an
investment in the Shares and (ii) that she has made an independent investigation
of the condition of the Company and its assets, financial and otherwise.
5.4 That she is an "accredited investor" as defined in Rule 501 (a) of the Act.
5.5 That she has been afforded an opportunity to ask questions and to receive
answers from the Company concerning the Company and to obtain any additional
information which the Company possesses or could acquire without unreasonable
effort or expense and has reviewed all previous annual and quarterly reports of
the Company on Form 10-KSB and 10-QSB.
5.6 The Investor will indemnify and hold the Company (its officers, directors,
employees and agents) harmless by reason of the breach of any of the terms and
conditions of this Agreement or any misleading or incorrect information
contained in any document provided by Investor to the Company.
5.7 Investor is under no restriction or prohibition from entering into this
transaction.
5.8 Investor is under no restriction or prohibition from entering into this
transaction.
5.9 The Investor is a resident of the State of New York. The Investor's federal
taxpayer identification number or social security number is
____________________. Under the penalties of perjury, the Investor certifies
that (i) the Investor is not subject to back-up withholding (ii) the Investor is
not a nonresident alien individual, a foreign partnership, a foreign corporation
or a foreign estate or trust, which would be a foreign person within the meaning
of Sections 1441, 1446, and 7701 (a) of the Internal Revenue Code of 1986, as
amended.
5.10 Investor has not received any general solicitation or general advertising
regarding the issuance of the Shares;
5.11 The Investor understands that no securities administrator of any state has
made any findings or determinations relating to the fairness for investment of
the Shares and that no securities administrator has or will recommend or indorse
any issuance of the Shares.
5.12 Investor acknowledges that the consideration for the Shares being issued
hereby has been arbitrarily determined and bears no relationship to the assets
or book value of the Company, or other customary investment criteria;
5.13 Investor has adequate means to provide for personal needs, and possesses
the ability to bear the economic risk of holding the Shares issued hereunder
indefinitely, and can afford a complete loss of the consideration; and
5.14 There is no finder in Connection with this transaction.
6. Miscellaneous.
6.1 Notices hereunder may be given either by hand delivery or by certified mail,
return receipt requested or overnight Courier service with guaranteed next day
delivery, by facsimile transmission, and shall be effective (a) in the case of
hand delivery, upon the date of delivery, (b) in the case of certified mail,
three (3) days after deposit in the postal system, first class postage pre-paid,
(c) in the case of telex or facsimile notices, when sent and confirmation of
receipt has been received by the transmitting party and (d) in the case of
delivery by courier service with guaranteed next day delivery, the next day or
the day designated for delivery, addressed at the addressed first set froth
above with a copy to:
Xxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attent1on: Xxx X. Xxxxx, Esq.
Any party may change the person or address to whom or which the notice are to be
given hereunder, but any such notice shall be effective only when actually
received by the party to whom it is addressed.
6.2 This Agreement shall be binding on and inure to the benefit of the
respective heirs, executors, administrators, legal representatives and
successors of the parties hereto.
6.3 This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
6.4 This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. The parties hereto hereby consent to the
exclusive jurisdiction of the Supreme Court of the State of New York and venue
for any action arising hereunder shall lie in New York County. The parties
hereto hereby waive any and all right to commence any action or proceeding
before any other court or judicial body or in any other venue with respect to
the subject matter of this Agreement.
6.5 This Agreement shall not be changed, modified or amended except by a writing
signed by the party to be charged and this Agreement may not be discharged
except by performance in accordance with its terms or by a writing signed by the
party to be charged.
6.6 Investor has had the opportunity to consult with her own lawyers and
financial advisors in connection with this Agreement. Xxx X. Xxxxx, Esq. of
Xxxxx & Xxxxxxxx, LLP has acted a counsel to the Company in connection with this
Agreement. Xxxxx & Xxxxxxxx, LLP also acts as special counsel to the Company on
certain matters. Investor and the Company have carefully read and fully
understands all of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties' duly authorized representatives have duly
executed this Agreement as of the day and year first above written.
The Companv:
Saliva Diagnostic Systems, Inc.
By:Xxx Xxxxxxx
----------------------------
Title: President
The Investor:
Xxxxxxx Xxxxxx
