SECURITIES PURCHASE AGREEMENT
Exhibit
10.23
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated October
15,
2007 by
and between StatSure Diagnostic Systems, Inc., a Delaware corporation (the
“Company”),
and
IM US Holdings, LLC, a Delaware limited liability company (the “Purchaser”).
The
parties hereto agree as follows:
Article
I
Purchase
and Sale of Securities
1.1 Authorization;
Sale of Shares; Issuance of Warrant; Authorization.
The
Company has, or before the Closing (as defined in Section 1.2) will have, duly
authorized the sale and issuance of 1,428,571 shares (the “Shares”)
of
Common Stock, $0.001 par value, of the Company (the “Common
Stock”)
and a
Warrant to purchase Common Stock, in the form annexed herewith as Exhibit
A
hereto
(the “Warrant”)
to
purchase up to 1,071,428 Shares of Common Stock (the “Warrant
Shares”
and
collectively with the Shares and the Warrant, the “Securities”).
(b) Purchase
and Sale of Shares and Warrant.
Subject
to the terms and conditions of this Agreement, at the Closing the Company will
sell and issue to the Purchaser, and the Purchaser will purchase from the
Company, the Shares for the purchase price of $0.35 per share, or an aggregate
purchase price of $499,999.85 (the “Purchase
Price”).
In
connection with and in consideration for the purchase of the Shares, the Company
will issue the Warrant to the Purchaser for no additional
consideration.
(c) Use
of
Proceeds.
The
Company will use the proceeds from the sale of the Securities for general
corporate purposes.
1.2 Closing.
(a) The
Closing.
Subject
to the terms and conditions of this Agreement, the closing (the “Closing”)
of the
sale and purchase of the Shares and the Warrant under this Agreement shall
take
place simultaneously with the execution of this Agreement (the date of the
Closing, the “Closing
Date”),
at
the offices of Xxxxx Xxxx LLP, 000 Xxxxxxx Xxxx., Xxxxxx, Xxxxxxxxxxxxx 00000.
At the Closing:
(i) the
Company shall deliver to the Purchaser a certificate, as of a recent practicable
date, as to the corporate good standing of the Company issued by the Secretary
of State of the State of Delaware;
(ii) the
Company shall deliver to the Purchaser a certificate, as of a recent practicable
date, as to the qualification to do business and the corporate good standing
of
the Company issued by the Secretary of the Commonwealth of The Commonwealth
of
Massachusetts;
(iii) the
Company shall deliver to the Purchaser a certificate of the Secretary of the
Company, dated as of the Closing Date, as to (i) the resolutions adopted by
the
Board of Directors of the Company, authorizing and approving all matters in
connection with this Agreement
and the other Transaction Documents (as defined in Section 2.1(b)) and the
transactions contemplated hereby and thereby, (ii) the Charter (as defined
in
Section 2.1(c)), (iii) the Bylaws (as defined 2.1(c)), and (iv) the authority
and incumbency
of the
officers of the Company executing the Transaction Documents and any other
documents required to be executed or delivered in connection
therewith;
(iv) the
Company shall deliver to the Purchaser (i) one or more certificates for, in
the
aggregate, the Shares (collectively, the “Certificates”),
and
(ii) the Warrant; each of the Certificates and the Warrant shall be issued
in
the name of the Purchaser;
(v) The
Irrevocable Transfer Agent Instructions (as defined
in
Section 3.9),
shall have been delivered to and acknowledged in writing by the Company’s
transfer agent.
(vi) the
Purchaser shall pay to the Company, by wire transfer of immediately available
funds, the Purchase Price; provided, however, that the Closing shall not be
deemed to occur, and the Certificates and the Warrant shall not be deemed issued
to the Purchaser, but shall be deemed to be held in escrow, until the Purchaser
shall have tendered to the Company the payment in full of the Purchase Price
and
the Company shall have received the same.
Article
II
Representations
and Warranties
2.1 Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Purchaser, as of the Closing
Date
(except as set forth on the Schedule of Exceptions attached hereto with each
numbered Schedule corresponding to the section number herein), as
follows:
(a) Organization,
Good Standing and Power.
The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the requisite corporate
power to own, lease and operate its properties and assets and to conduct its
business as it is now being conducted. The Company and each such subsidiary
is
duly qualified as a foreign corporation to do business and is in good standing
in every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary except for any jurisdiction(s)
(alone or in the aggregate) in which the failure to be so qualified will
not
have a
Material Adverse Effect (as defined in Section 2.1(c)).
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(b) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and
perform this Agreement, the Warrant and the Irrevocable Transfer Agent
Instructions (collectively, the “Transaction
Documents”)
and to
issue and sell the Shares and the Warrant in accordance with the terms hereof.
The execution, delivery and performance of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated hereby
and
thereby have been duly and validly authorized by all necessary corporate action,
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required. This Agreement and each of the other Transaction
Documents has been duly executed and delivered by the Company. Each of the
Transaction Documents constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Company enforceable against
the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditor’s rights and remedies or by
other equitable principles of general application.
(c) Capitalization.
The
authorized capital stock of the Company and the shares thereof currently issued
and outstanding as of the date hereof are set forth in the SEC Documents. All
of
the outstanding shares of capital stock of the Company and the Shares have
been
duly and validly authorized. There are no contracts, commitments,
understandings, or arrangements by which the Company is or may become bound
to
issue additional shares of the capital stock of the Company or options,
securities or rights convertible into shares of capital stock of the Company.
Except with respect to the Company’s Series A Preferred Stock, the Company is
not a party to any agreement granting registration or anti-dilution rights
to
any person with respect to any of its equity or debt securities. The Company
is
not a party to, and it has no knowledge of, any agreement restricting the voting
or transfer of any shares of the capital stock of the Company. The offer and
sale of all capital stock, convertible securities, rights, warrants, or options
of the Company issued prior to the Closing complied with all applicable Federal
and state securities laws, and no stockholder has a right of rescission or
claim
for damages with respect thereto which would have a Material Adverse Effect
(as
defined below). The Company has furnished or made available to the Purchaser
true and correct copies of the Company’s Certificate of Incorporation as in
effect on the date hereof (the “Charter”),
and
the Company’s Bylaws as in effect on the date hereof (the “Bylaws”).
For
the purposes of this Agreement, “Material
Adverse Effect”
means
any material adverse effect on the business, operations, properties, or
financial condition of the Company and its subsidiaries and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere
with the ability of the Company to perform any of its obligations under any
Transaction Document in any material respect.
(d) Issuance
of Securities.
The
Shares and the Warrant to be issued at the Closing have been duly authorized
by
all necessary corporate action and the Shares, when paid for or issued in
accordance with the terms hereof, shall be validly issued and outstanding,
fully
paid and nonassessable. When the Warrant Shares are issued in accordance with
the terms of the Warrant, the Warrant Shares will be duly authorized by all
necessary corporate action and validly issued and outstanding, fully paid and
nonassessable, and the holders shall be entitled to all rights accorded to
a
holder of Common Stock.
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(e) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company,
and the consummation by the Company of the transactions contemplated herein
and
therein do not and will not (i) violate any provision of the Charter or Bylaws,
(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, mortgage, deed of trust, indenture, note, bond, license, lease
agreement, instrument or obligation to which the Company is a party or by which
it or its properties or assets are bound, (iii) create or impose a lien,
mortgage, security interest, charge or encumbrance of any nature on any property
of the Company under any agreement or any commitment to which the Company is
a
party or by which the Company is bound or by which any of its respective
properties or assets are bound, or (iv) result in a violation of any Federal,
state, local or foreign statute, rule, regulation, order, judgment or decree
(including Federal and state securities laws and regulations) applicable to
the
Company or any of its subsidiaries or by which any property or asset of the
Company or any of its subsidiaries are bound or affected, except, in all cases
other than violations pursuant to clauses (i) and (iv) above, for such
conflicts, defaults, terminations, amendments, accelerations, cancellations
and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect. The business of the Company and its subsidiaries is not being
conducted in violation of any laws, ordinances or regulations of any
governmental entity, except for possible violations which singularly or in
the
aggregate do not and will not have a Material Adverse Effect. The Company is
not
required under Federal, state or local law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration with,
any
court or governmental agency in order for it to execute, deliver or perform
any
of its obligations under the Transaction Documents, or issue and sell the
Shares, the Warrant and the Warrant Shares in accordance with the terms hereof
or thereof (other than any filings which may be required to be made by the
Company with the Commission or state securities administrators subsequent to
the
Closing, and any registration statement which may be filed pursuant hereto);
provided that, for purposes of the representation made in this sentence, the
Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Purchaser herein.
(f) Commission
Documents, Financial Statements.
The
Company is required to file periodic and other reports pursuant to Section
12(g)
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
and
the Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the United States Securities and
Exchange Commission (the “Commission”)
pursuant to the reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d) of the Exchange Act (all of the
foregoing including filings incorporated by reference therein are also included
when referring to the SEC Documents, as defined below). The Company has
delivered or made available to each of the Purchaser true and complete copies
of
the SEC Documents which are not otherwise available on the SEC’s XXXXX system.
The Company has not provided to the Purchaser any material non-public
information or other information which, according to applicable law, rule or
regulation, was required to have been disclosed publicly by the Company but
which has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. At the times of their respective filings, the
Company’s Form 10-KSB/A for the year ended December 31, 2006, including the
accompanying financial statements (the “Form
10-KSB/A”)
and
the Company’s Form 10-QSB/A for the fiscal quarter ended May 31, 2007 (the
“Form
10-KSB/A”
and
collectively with the Form 10-KSB/A, the “SEC
Documents”)
complied in all material respects with the requirements of the Exchange Act
and
the rules and regulations of the Commission promulgated thereunder and other
federal, state and local laws, rules and regulations applicable to such
documents, and, as of their respective dates, none of the Form 10-KSB/A and
the
Form 10-QSB/A contained any untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were
made, not misleading, unless the same has heretofore been amended or corrected
by a subsequent filing available on the SEC’s XXXXX system. The financial
statements of the Company included in the SEC Documents comply as to form in
all
material respects with applicable accounting requirements and the published
rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles
(“GAAP”)
applied on a consistent basis during the periods involved (except (i) as may
be
otherwise indicated in such financial statements or the notes thereto or (ii)
in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements), and fairly present in
all
material respects the financial position of the Company and its subsidiaries
as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
4
(g) No
Material Adverse Change.
Since
March 31, 2007, the Company has not experienced or suffered any Material Adverse
Effect except as disclosed in the SEC Documents.
(h) No
Undisclosed Liabilities.
Neither
the Company nor any of its subsidiaries has any liabilities, obligations, claims
or losses (whether liquidated or unliquidated, secured or unsecured, absolute,
accrued, contingent or otherwise) other than those incurred in the ordinary
course of the Company’s or its subsidiaries respective businesses since March
31, 2007 and which, individually or in the aggregate, do not and would not
have
a Material Adverse Effect.
(i) No
Undisclosed Events or Circumstances.
No
event or circumstance has occurred or exists with respect to the Company or
its
subsidiaries or their respective businesses, properties, operations or financial
condition, which, under applicable law, rule or regulation, requires public
disclosure or announcement by the Company but which has not been so publicly
announced or disclosed.
(j) Title
to Assets.
Each of
the Company and the subsidiaries has good and marketable title to all of its
real and personal property reflected in the Form 10-KSB/A, free and clear of
any
mortgages, pledges, charges, liens, security interests or other encumbrances,
except for those disclosed in the Form 10-KSB/A or such that, individually
or in
the aggregate, do not cause a Material Adverse Effect. All leases of the Company
and each of its subsidiaries are valid and subsisting and in full force and
effect.
(k) Actions
Pending.
There
is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or any other proceeding pending or, to the knowledge
of
the Company, threatened against the Company or any subsidiary which questions
the validity of this Agreement or any of the other Transaction Documents or
the
transactions contemplated hereby or thereby or any action taken or to be taken
pursuant hereto or thereto. Except as set forth in the SEC Documents, there
is
no action, suit, claim, investigation, arbitration, alternate dispute resolution
proceeding or any other proceeding pending or, to the knowledge of the Company,
threatened, against or involving the Company, any subsidiary or any of their
respective properties or assets. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or governmental or
regulatory body against the Company or any subsidiary or any officers or
directors of the Company or subsidiary in their capacities as such.
5
(l) Compliance
with Law.
The
business of the Company and the subsidiaries has been and is presently being
conducted in accordance with all applicable federal, state and local
governmental laws, rules, regulations and ordinances, except for such
noncompliance that, individually or in the aggregate, would not cause a Material
Adverse Effect. The Company and each of its subsidiaries have all franchises,
permits, licenses, consents and other governmental or regulatory authorizations
and approvals necessary for the conduct of its business as now being conducted
by it unless the failure to possess such franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(m) Taxes.
The
amount reflected in the most recent annual and, if any, subsequent quarterly
Company’s SEC Documents as provision for Taxes is sufficient in all material
respects for the payment of all unpaid Taxes for all periods ending on or before
the dates reflected in such Company’s SEC Documents. The Company has timely
filed or obtained presently effective extensions with respect to all Tax Returns
that are or were required to be filed by it; subject to the foregoing, such
Tax
Returns are complete and accurate in all material respects and all Taxes shown
thereon to be due have been timely paid. The Company has no knowledge of any
tax
deficiency which has been or might be asserted or threatened against it and
that
could reasonably be expected to have a Material Adverse Effect. All Taxes that
the Company is or was required by law to withhold or to collect have been duly
withheld or billed to others, and, to the extent required, have been timely
paid
to the proper Governmental Entity. The Tax Returns of the Company have not
been
audited by any Governmental Entity, and no controversy with respect to Taxes
is
pending or, to the best of the Company’s knowledge, threatened. For purposes of
this Agreement: (i) "Tax" or “Taxes” means all taxes, charges, fees, levies or
other similar assessments or liabilities, including without limitation income,
gross receipts, ad valorem, premium, value-added, excise, real property,
personal property, sales, use, transfer, withholding, employment, unemployment
insurance, social security, business license, business organization,
environmental, workers compensation, payroll, profits, license, lease, service,
service use, severance, stamp, occupation, windfall profits, customs, duties,
franchise and other taxes imposed by the United States or any state, local
or
foreign government, or any other Governmental Entity, and any interest, fines,
penalties, assessments or additions to tax resulting from, attributable to
or
incurred in connection with any tax or any contest or dispute thereof; and
(ii)
“Tax Returns” means all reports, returns, declarations, statements or other
information required to be supplied to a taxing authority in connection with
Taxes and any amendment thereof.
(n) Disclosure.
When
taken as a whole, neither this Agreement (together with the Schedules hereto)
nor any other documents, certificates or instruments furnished to the Purchaser
by or on behalf of the Company or any subsidiary in connection with the
transactions contemplated by this Agreement contain any untrue statement of
a
material fact or omit to state a material fact necessary in order to make the
statements made herein or therein, in the light of the circumstances under
which
they were made herein or therein, not misleading.
6
(o) Operation
of Business.
The
Company and each of the subsidiaries owns or possesses all patents, trademarks,
domain names (whether or not registered) and any patentable improvements or
copyrightable derivative works thereof, websites and intellectual property
rights relating thereto, service marks, trade names, copyrights, licenses and
authorizations as set forth in the Form 10-KSB, and all rights with respect
to
the foregoing, which are necessary for the conduct of its business as now
conducted without any conflict with the rights of others.
(p) Environmental
Compliance.
The
Company and each of its subsidiaries have obtained all material approvals,
authorization, certificates, consents, licenses, orders and permits or other
similar authorizations of all governmental authorities, or from any other
person, that are required under any Environmental Laws. The Form 10-KSB or
Form
10-QSB describes all material permits, licenses and other authorizations issued
under any Environmental Laws to the Company or its subsidiaries. “Environmental
Laws”
shall
mean all applicable laws relating to the protection of the environment
including, without limitation, all requirements pertaining to reporting,
licensing, permitting, controlling, investigating or remediating emissions,
discharges, releases or threatened releases of hazardous substances, chemical
substances, pollutants, contaminants or toxic substances, materials or wastes,
whether solid, liquid or gaseous in nature, into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
material or wastes, whether solid, liquid or gaseous in nature. The Company
has
all necessary governmental approvals required under all Environmental Laws
and
used in its business or in the business of any of its subsidiaries. The Company
and each of its subsidiaries are also in compliance with all other limitations,
restrictions, conditions, standards, requirements, schedules and timetables
required or imposed under all Environmental Laws. Except for such instances
as
would not individually or in the aggregate have a Material Adverse Effect,
there
are no past or present events, conditions, circumstances, incidents, actions
or
omissions relating to or in any way affecting the Company or its subsidiaries
that violate or may violate any Environmental Law after the Closing Date or
that
may give rise to any environmental liability, or otherwise form the basis of
any
claim, action, demand, suit, proceeding, hearing, study or investigation (i)
under any Environmental Law, or (ii) based on or related to the manufacture,
processing, distribution, use, treatment, storage (including without limitation
underground storage tanks), disposal, transport or handling, or the emission,
discharge, release or threatened release of any hazardous
substance.
(q) Books
and Records; Internal Accounting Controls.
The
books and records of the Company and its subsidiaries accurately reflect in
all
material respects the information relating to the business of the Company and
the subsidiaries, the location and collection of their assets, and the nature
of
all transactions giving rise to the obligations or accounts receivable of the
Company or any subsidiary. The Company and each of its subsidiaries maintain
a
system of internal accounting controls sufficient, in the judgment of the
Company, 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 GAAP 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
actions is taken with respect to any differences.
7
(r) Material
Agreements.
Except
for certain Distribution Agreements which contain conditions precedent to their
effectiveness, neither the Company nor any subsidiary is a party to any written
or oral contract, instrument, agreement, commitment, obligation, plan or
arrangement, a copy of which would be required to be filed with the Commission
as an exhibit to a registration statement on Form S-3 or applicable form
(collectively, “Material
Agreements”)
if the
Company or any subsidiary were registering securities under the Securities
Act.
The Company and each of its subsidiaries has in all material respects performed
all the obligations required to be performed by them to date under the foregoing
agreements, have received no notice of default and are not in default under
any
Material Agreement now in effect, the result of which could cause a Material
Adverse Effect.
(s) Transactions
with Affiliates.
Except
as set forth in the SEC Documents, there are no loans, leases, agreements,
contracts, royalty agreements, management contracts or arrangements or other
continuing transactions between (a) the Company or any subsidiary on the one
hand, and (b) on the other hand, any officer, employee, consultant or director
of the Company, or any of its subsidiaries, or any person owning any capital
stock of the Company or any subsidiary or any member of the immediate family
of
such officer, employee, consultant, director or stockholder or any corporation
or other entity controlled by such officer, employee, consultant, director
or
stockholder, or a member of the immediate family of such officer, employee,
consultant, director or stockholder.
(t) Securities
Act of 1933.
Based
in material part upon the representations herein of the Purchaser, the Company
has complied and will comply with all applicable federal and state securities
laws in connection with the offer, issuance and sale of the Shares and the
Warrant hereunder. Neither the Company nor anyone acting on its behalf, directly
or indirectly, has or will sell, offer to sell or solicit offers to buy any
of
the Shares, the Warrant or similar securities to, or solicit offers with respect
thereto from, or enter into any preliminary conversations or negotiations
relating thereto with, any other person, or has taken or will take any action
so
as to bring the issuance and sale of any of the Shares and the Warrant Shares
under the registration provisions of the Securities Act and applicable state
securities laws, and neither the Company nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising within the meaning of Regulation D
(“Regulation
D”)
under
the Securities Act of 1933 as amended (the “Securities
Act”),
in
connection with the offer or sale of any of the Shares and the
Warrant.
(u) Governmental
Approvals.
Except
for the filing of any notice prior or subsequent to the Closing Date that may
be
required under applicable state and/or Federal securities laws (which if
required, shall be filed on a timely basis), including the filing of a Form
D
and a registration statement or statements pursuant to Section 3.3, no
authorization, consent, approval, license, exemption of, filing or registration
with any court or governmental department, commission, board, bureau, agency
or
instrumentality, domestic or foreign, is or will be necessary for, or in
connection with, the execution or delivery of the Shares and the Warrant, or
for
the performance by the Company of its obligations under the Transaction
Documents.
8
(v) Absence
of Certain Developments.
Since
March 31, 2007 (the “Last
Audited Date”)
there
has been no material adverse change and no Material Adverse Effect, except
as
disclosed in the Company’s SEC Documents. Since the Last Audited Date, except as
provided in the Company’s SEC Documents, the Company has not (i) discharged or
satisfied any material lien or encumbrance or paid any material obligation
or
liability (absolute or contingent), other than current liabilities paid in
the
ordinary course of business consistent with past practices; (ii) declared or
made any payment or distribution of cash or other property to shareholders
with
respect to its capital stock, or purchased or redeemed, or made any agreements
to purchase or redeem, any shares of its capital stock; (iii) sold, assigned
or
transferred any other tangible assets, or canceled any material debts owed
to
the Company by any third party or material claims of the Company against a
third
party, except in the ordinary course of business consistent with past practices;
(iv) suffered any substantial losses or waived any rights of material value,
whether or not in the ordinary course of business, or suffered the loss of
any
material amount of existing business; (v) made any increases in employee
compensation, except in the ordinary course of business consistent with past
practices; or (vi) experienced any material problems with labor or management
in
connection with the terms and conditions of their employment.
(w) Public
Utility Holding Company Act and Investment Company Act Status.
The
Company is not a “holding company” or a “public utility company” as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended.
The
Company is not, and as a result of and immediately upon the Closing will not
be,
an “investment company” or a company “controlled” by an “investment company,”
within the meaning of the Investment Company Act of 1940, as amended.
(x) ERISA.
No
liability to the Pension Benefit Guaranty Corporation has been incurred with
respect to any Plan (as defined below) by the Company or any of its subsidiaries
which is or would be materially adverse to the Company and its subsidiaries.
The
execution and delivery of this Agreement and the issuance and sale of the
Preferred Shares will not involve any transaction which is subject to the
prohibitions of Section 406 of ERISA or in connection with which a tax could
be
imposed pursuant to Section 4975 of the Internal Revenue Code of 1986, as
amended, provided that, if the Purchaser, or any person or entity that owns
a
beneficial interest in the Purchaser, is an “employee pension benefit plan”
(within the meaning of Section 3(2) of ERISA) with respect to which the Company
is a “party in interest” (within the meaning of Section 3(14) of ERISA), the
requirements of Sections 407(d)(5) and 408(e) of ERISA, if applicable, are
met.
As used in this Section 2.1(x), the term “Plan” shall mean an “employee pension
benefit plan” (as defined in Section 3 of ERISA) which is or has been
established or maintained, or to which contributions are or have been made,
by
the Company or any subsidiary or by any trade or business, whether or not
incorporated, which, together with the Company or any subsidiary, is under
common control, as described in Section 414(b) or (c) of the Code.
(y) Off-Balance
Sheet Arrangements.
There
is no transaction, arrangement or other relationship between the Company and
an
unconsolidated or other off-balance sheet entity that is required to be
disclosed by the Company under the Exchange Act and is not so disclosed or
that
otherwise could reasonably be expected to have a Material Adverse
Effect.
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(z) No
Integrated Offering.
Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales of any security
or
solicited any offers to buy any security under circumstances that would cause
the offering of the Shares pursuant to this Agreement to be integrated with
prior offerings by the Company for purposes of the Securities Act which would
prevent the Company from selling the Shares pursuant to Rule 506 under the
Securities Act, or any applicable exchange-related stockholder approval
provisions, nor will the Company or any of its affiliates or subsidiaries take
any action or steps that would cause the offering of the Shares to be integrated
with other offerings. The Company does not have any registration statement
pending before the Commission or currently under the Commission’s review and
since August 1, 2006, the Company has not offered or sold any of its equity
securities or debt securities convertible into shares of Common
Stock.
(aa) Xxxxxxxx-Xxxxx
Act.
The
Company is in compliance with the provisions of the Xxxxxxxx-Xxxxx Act of 2002
applicable to it (the “Xxxxxxxx-Xxxxx
Act”),
and
the rules and regulations promulgated thereunder, that are effective, and
intends to comply with other applicable provisions of the Xxxxxxxx-Xxxxx Act,
and the rules and regulations promulgated thereunder, upon the effectiveness
of
such provisions to the Company.
(bb) Foreign
Corrupt Practices.
Neither
the Company nor any director, officer, agent, employee or other person acting
on
behalf of the Company has, in the course of its actions for, or on behalf of,
the Company (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is
in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977,
as
amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic government
official or employee.
(cc) Transfer
Agent.
The
name, address, telephone number, fax number, contact person and email address
of
the Company’s transfer agent is American Stock Transfer and Trust Company, 00
Xxxxxx Xxxx, Xxx Xxxx, XX 00000, 000-000-0000.
2.2 Representations
and Warranties of the Purchaser.
The
Purchaser hereby makes the following representations and warranties to the
Company:
(a) Organization
and Standing.
The
Purchaser is a limited liability company duly organized, validly existing and
in
good standing under the laws of the State of Delaware.
(b) Authorization
and Power.
The
Purchaser has the requisite power and authority to enter into and perform this
Agreement and to purchase the Shares and Warrant. The execution, delivery and
performance of this Agreement by the Purchaser and the consummation by it of
the
transactions contemplated hereby and thereby have been duly authorized by all
necessary limited liability company action, and no further consent or
authorization of the Purchaser or its governing body is required. This Agreement
has been duly authorized, executed and delivered by the Purchaser and
constitutes a valid and binding obligation of the Purchaser enforceable against
the Purchaser in accordance with the terms hereof.
10
(c) Acquisition
for Investment.
The
Purchaser is acquiring the Shares and the Warrant and, upon exercise of the
Warrant, the Warrant Shares solely for its own account for the purpose of
investment and not with a view to or for sale in connection with distribution.
The Purchaser does not have a present intention to sell the Shares or the
Warrant or the Warrant Shares, nor a present arrangement (whether or not legally
binding) or intention to effect any distribution of the Shares or the Warrant
or
the Warrant Shares to or through any person or entity; provided,
however,
that by
making the representations herein and subject to Section 2.2(g) below, the
Purchaser does not agree to hold the Shares or the Warrant or the Warrant Shares
for any minimum or other specific
term and reserves the right to dispose of the Shares or the Warrant or the
Warrant Shares at any time in accordance with Federal and state securities
laws
applicable to such disposition. The Purchaser acknowledges that it is able
to
bear the financial risks associated with an investment in the Shares and the
Warrant (and, upon exercise of the Warrant, the Warrant Shares) and that it
has
been given full access to such records of the Company and the subsidiaries
and
to the officers of the Company and the subsidiaries and received such
information as it has deemed necessary or appropriate to conduct its due
diligence investigation and has sufficient knowledge and experience in investing
in companies similar to the Company in terms of the Company’s stage of
development so as to be able to evaluate the risks and merits of its investment
in the Company.
(d) Status
of Purchaser.
The
Purchaser is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act. The Purchaser is not required to be registered as
a
broker-dealer under Section 15 of the Exchange Act and the Purchaser is not
a
broker-dealer.
(e) Opportunities
for Additional Information.
The
Purchaser acknowledges that the Purchaser has had the opportunity to ask
questions of and receive answers from, or obtain additional information from,
the executive officers of the Company concerning the financial and other affairs
of the Company, and to the extent deemed necessary in light of the Purchaser’s
personal knowledge of the Company’s affairs, the Purchaser has asked such
questions and received answers to the full satisfaction of the Purchaser, and
the Purchaser desires to invest in the Company.
(f) No
General Solicitation.
The
Purchaser acknowledges that the Shares and the Warrant were not offered to
the
Purchaser by means of any form of general or public solicitation or general
advertising, or publicly disseminated advertisements or sales literature,
including (i) any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media, or broadcast over
television or radio, or (ii) any seminar or meeting to which the Purchaser
was
invited by any of the foregoing means of communications. The
Purchaser acknowledges that it is not relying upon statements or representations
by any person, firm or corporation, other than the Company, in making its
decision to invest in the Company and it is not relying on any representations
of the Company other than those specifically set forth in this Agreement
(including, without limitation, all schedules hereto and all SEC
Documents).
(g) Rule
144.
The
Purchaser understands that the Shares and, when issued, the Warrant Shares
must
be held indefinitely unless they are registered under the Securities Act or
an
exemption from registration is available. The Purchaser acknowledges that the
Purchaser is familiar with Rule 144 of the rules and regulations of the
Commission, as amended, promulgated pursuant to the Securities Act
(“Rule
144”),
and
that the Purchaser has been advised that Rule 144 permits resales only under
certain circumstances. The Purchaser understands that to the extent that Rule
144 is not available, the Purchaser will be unable to sell any Shares or Warrant
Shares without either registration under the Securities Act or the existence
of
another exemption from such registration requirement.
11
(h) General.
The
Purchaser understands that the Shares and the Warrant and the Warrant Shares
are
being offered and sold in reliance on a transactional exemption from the
registration requirement of Federal and state securities laws and the Company
is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth herein
in order to determine the applicability of such exemptions and the suitability
of the Purchaser to acquire the Shares.
(i) Independent
Investment.
Except
as may be disclosed in any filings with the Commission by the Purchaser under
Section 13 and/or Section 16 of the Exchange Act, the Purchaser has not agreed
to act with any other purchaser for the purpose of acquiring, holding, voting
or
disposing of the Shares purchased hereunder for purposes of Section 13(d) under
the Exchange Act, and the Purchaser is acting independently with respect to
its
investment in the Shares.
(j) Tax
Matters.
The
Purchaser represents and warrants that it has reviewed and understands the
United States federal and any applicable state income tax aspects of its
purchase of the Shares and the Warrant and, if relevant, the Warrant Shares,
and
has received such advice in this regard as it deems necessary from qualified
sources such as attorneys, tax advisors or accountants, and is not relying
on
any representative or employee of the Company for such advice.
(k) Liquidity.
The
Purchaser presently has sufficient liquid assets to pay the Purchase Price
for
all securities to be purchased by the Purchaser hereunder, has adequate means
of
providing for its current needs and contingencies and has no need for liquidity
in its investment in the Company or for a source of income from the Company
and
is capable of bearing the economic risk and the burden of the investment
contemplated by this Agreement including, but not limited to, the possibility
of
the complete loss of the value of such securities and the limited
transferability of such securities, which may make the liquidation of such
securities impossible in the near future.
Article
III
Covenants
The
Company covenants with the Purchaser as follows, which covenants are for the
benefit of the Purchaser and its permitted assignees (as defined
herein).
3.1 Securities
Compliance. The
Company shall notify the Commission in accordance with their rules and
regulations, of the transactions contemplated by any of the Transaction
Documents, including filing a Form D with respect to the Shares, the Warrant
and
Warrant Shares as required under Regulation D, and shall take all other
necessary action and proceedings as may be required and permitted by applicable
law, rule and regulation, for the legal and valid issuance of the Shares, the
Warrant and the Warrant Shares to the Purchaser or subsequent holders.
12
3.2 Registration
and Listing. The
Company shall cause its Common Stock to be registered under Sections 12(b)
or
12(g) of the Exchange Act to comply in all respects with its reporting and
filing obligations under the Exchange Act, to comply with all requirements
related to any registration statement filed pursuant to this Agreement, and
to
not take any action or file any document (whether or not permitted by the
Securities Act or the rules promulgated thereunder) to terminate or suspend
such
registration or to terminate or suspend its reporting and filing obligations
under the Exchange Act or Securities Act, except as permitted herein. The
Company will take all action necessary to continue the listing or trading of
its
Common Stock on at least one of the OTC Bulletin Board or other exchange or
market on which the Common Stock is trading. Subject to the terms of the
Transaction Documents, the Company further covenants that it will take such
further action as the Purchaser may reasonably request, all to the extent
required from time to time to enable the Purchaser to sell the Shares and the
Warrant Shares without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 promulgated under the
Securities Act. Upon the request of the Purchaser, the Company shall deliver
to
the Purchaser a written certification of a duly authorized officer as to whether
it has complied with such requirements.
3.3 Piggy-Back
Rights; Other Registration Rights; Rule 144.
(a) The
Purchaser shall have piggy-back registration rights with respect to the Shares
and the Warrant Shares and any shares of Common Stock issued thereon, such
as
shares issued as stock dividends or in connection with a stock split or any
other recapitalization (the “Registrable
Securities”)
subject to the conditions set forth below. If the Company participates (whether
voluntarily or by reason of an obligation to a third party) in the registration
of any shares of the Company’s stock (other than a registration on Form S-8 or
on Form S-4) filed after the date hereof, the Company shall give written notice
thereof to the Purchaser (a “Piggyback
Notice”)
and
the Purchaser shall have the right, exercisable within ten (10) Trading Days
(as
defined
in
Section 3.11)
after
receipt of such notice, to demand inclusion of all or a portion of the
Purchaser’s Registrable Securities then still held by the Purchaser (or still
subject to issuance upon exercise of the Warrant) in such registration
statement. If the Purchaser exercises such election, the Registrable Securities
so designated shall be included in the registration statement (without any
holdbacks) at no cost or expense to the Purchaser (other than any commissions,
if any, relating to the sale of such shares).
(b) Notwithstanding
the
provisions of Section 3.3(a), at any time after the date which is six (6)
months from the Closing Date and before the Company has given the Purchaser
a
Piggyback Notice, the Purchaser shall have the right to give a written notice
to
the
Company demanding that the Company file a registration statement covering the
resale of the Purchaser’s Registrable Securities then still held by the
Purchaser (or still subject to issuance upon exercise of the Warrant) and to
use
its best efforts to cause such registration statement to be declared effective
by the SEC and remain in effect for at least one year thereafter. If the Company
has given a Piggyback Notice but subsequently does not file or withdraws such
registration statement, it shall be deemed as if no Piggyback Notice had been
given.
13
(c) The
Purchaser’s rights under this Section 3.3 shall expire at such time as the
Purchaser can sell all of such Purchaser’s remaining Registrable Securities
under Rule 144 (as defined below) without volume or
other
restrictions or limit.
3.4 Compliance
with Laws.
The
Company shall comply, and cause each subsidiary to comply, with all applicable
laws, rules, regulations and orders, noncompliance with which could have a
Material Adverse Effect.
3.5 Keeping
of Records and Books of Account.
The
Company shall keep and cause each subsidiary to keep adequate records and books
of account, in which complete entries will be made in accordance with GAAP
consistently applied, reflecting all financial transactions of the Company
and
its subsidiaries, and in which, for each fiscal year, all proper reserves for
depreciation, depletion, obsolescence, amortization, taxes, bad debts and other
purposes in connection with its business shall be made.
3.6 Reporting
Requirements.
If the
Commission ceases making periodic reports filed under the Exchange Act available
via the Internet, then at the Purchaser’s request the Company shall furnish the
following to the Purchaser so long as the Purchaser shall be obligated hereunder
to purchase the Shares or shall beneficially own any Shares:
(a) Quarterly
Reports filed with the Commission on Form 10-QSB as soon as practical after
the
document is filed with the Commission, and in any event within five (5) days
after the document is filed with the Commission;
(b) Annual
Reports filed with the Commission on Form 10-KSB as soon as practical after
the
document is filed with the Commission, and in any event within five (5) days
after the document is filed with the Commission; and
(c) Copies
of
all notices and information, including without limitation notices and proxy
statements in connection with any meetings, that are provided to holders of
shares of Common Stock, contemporaneously with the delivery of such notices
or
information to such holders of Common Stock.
3.7 Other
Agreements.
The
Company shall not enter into any agreement in which the terms of such agreement
would restrict or impair the right or ability to perform of the Company or
any
subsidiary under any Transaction Document.
3.8 Reservation
of Shares.
So long
as any portion of the Warrant remains outstanding, the Company shall take all
action necessary to at all times have authorized, and reserved for the purpose
of issuance, no less than one hundred percent (100%) the aggregate number of
shares of Common Stock needed to provide for the issuance of the Warrant Shares
and, if declared, that number of additional shares as is necessary to issue
dividends in shares of Common Stock.
14
3.9 Transfer
Agent Instructions.
The
Company shall issue irrevocable instructions to its transfer agent, and any
subsequent transfer agent, to issue certificates, registered in the name of
the
Purchaser or its nominee(s), for the Warrant Shares in such amounts as specified
from time to time by the Purchaser to the Company upon exercise of the Warrant
in the form of Exhibit B attached hereto (the “Irrevocable Transfer Agent
Instructions”). Prior to registration of the Warrant Shares under the Securities
Act, all such certificates shall bear the restrictive legend specified in
Section 4.1.
The
Company warrants that, subject to such restrictive legend, no instruction other
than the Irrevocable Transfer Agent Instructions referred to in this Section
3.9 will be given by the Company to its transfer agent and that
the
Shares shall otherwise be freely transferable on the books and records of the
Company as and to the extent provided in this Agreement. If the Purchaser
provides the Company with an opinion of counsel, in a generally acceptable
form,
to the effect that a public sale, assignment or transfer of Shares or Warrant
Shares may be made without registration under the Securities Act or the
Purchaser provides the Company with reasonable assurances that Shares and
Warrant Shares can be sold pursuant to Rule 144 without any restriction as
to
the number of securities acquired as of a particular date that can then be
immediately sold, the Company shall permit the transfer, and, in the case of
the
Shares and Warrant Shares, promptly instruct its transfer agent to issue one
or
more certificates in such name and in such denominations as specified by the
Purchaser and without any restrictive legend. The Company acknowledges that
a
breach by it of its obligations under
this
Section 3.9 will cause irreparable harm to the Purchaser by vitiating the
intent and purpose of the transaction contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations
under this Section 3.9 will be inadequate and agrees, in the event of a breach
or threatened breach by the Company of the provisions of this Section 3.9, that
the Purchaser shall be entitled, in addition to all other available remedies,
to
an order and/or injunction restraining
any
breach and requiring immediate issuance and transfer, without the necessity
of
showing economic loss and without any bond or other security being
required.
3.10 Reporting
Status.
So long
as the Purchaser beneficially owns any of the Shares, the Warrant or the Warrant
Shares the Company shall timely file all reports required to be filed with
the
Commission pursuant to the Exchange Act, and the Company shall not terminate
its
status as an issuer required to file reports under the Exchange Act even if
the
Exchange Act or the rules and regulations thereunder would permit such
termination.
3.11 Disclosure
of Transaction.
If
required under applicable law, the Company shall file with the Commission a
Current Report on Form 8-K (the “Form
8-K”)
describing the material terms of the transactions contemplated hereby, which
Form 8-K shall be subject to prior review and comment by the Purchaser. When
used in this Agreement, “Trading
Day”
means
any day during which the OTC Bulletin Board (or other principal exchange on
which the Common Stock is then traded) shall be open for trading.
3.12 Disclosure
of Material Information.
The
Company covenants and agrees that neither it nor any other person acting on
its
behalf has provided or will provide the Purchaser or its agents or counsel
with
any information that the Company believes constitutes material non-public
information, unless prior thereto the Purchaser shall have executed a written
agreement regarding the confidentiality and use of such information. The Company
understands and confirms that the Purchaser shall be relying on the foregoing
representations in effecting transactions in securities of the
Company.
3.13 Pledge
of Securities.
Without
limiting the provisions of Section 6.7, the Company acknowledges
and agrees that the Shares, the Warrant and the Warrant Shares may be pledged
by
the Purchaser in connection with a bona fide margin agreement or other loan
or
financing arrangement that is secured by such Securities. The pledge of such
Securities shall not be deemed to be a transfer, sale or assignment of such
Securities, and the Purchaser shall not be required to provide the Company
with
any notice thereof or otherwise make any delivery to the Company pursuant to
this Agreement or any other Transaction Document. At the Purchaser’s expense,
the Company hereby agrees to execute and deliver such documentation as a pledgee
of such Securities may reasonably request in connection with a pledge of such
Securities to such pledgee by the Purchaser.
15
3.14 Form
SB-2 Eligibility.
The
Company currently meets the “registrant eligibility” and transaction
requirements set forth in the general instructions to Form SB-2 applicable
to
“resale” registrations on Form SB-2 and the Company shall file all reports
required to be filed by the Company with the Commission in a timely
manner.
Article
IV
Stock
Certificate Legend
4.1 Legend.
Each
certificate representing the Shares and the Warrant, and, if appropriate, the
Warrant Shares, shall be stamped or otherwise imprinted with a legend
substantially in the following form (in addition to any legend required by
applicable state securities or “blue sky” laws):
THESE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR STATSURE DIAGNOSTIC SYSTEMS, INC. SHALL HAVE RECEIVED
AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES
ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
The
Company agrees to reissue certificates representing any of the Shares or Warrant
Shares, without the legend set forth above if at such time, prior to making
any
transfer of any such securities, such holder thereof shall give written notice
to the Company describing the manner and terms of such transfer and removal
as
the Company may reasonably request. Such proposed transfer and removal will
not
be effected until: (a) either (i) the Company has received an opinion of counsel
reasonably satisfactory to the Company, to the effect that the registration
of
the Shares or Warrant Shares under the Securities Act is not required in
connection with such proposed transfer, (ii) a registration statement under
the
Securities Act covering such proposed disposition has been filed by the Company
with the Commission and has become effective under the Securities Act, (iii)
the
Company has received other evidence reasonably satisfactory to the Company
that
such registration and qualification under the Securities Act and state
securities laws are not required, or (iv) the holder provides the Company with
reasonable assurances that such security can be sold pursuant to Rule 144 under
the Securities Act; and (b) either (i) the Company has received an opinion
of
counsel reasonably satisfactory to the Company, to the effect that registration
or qualification under the securities or “blue sky” laws of any state is not
required in connection with such proposed disposition, or (ii) compliance with
applicable state securities or “blue sky” laws has been effected or a valid
exemption exists with respect thereto. The Company will respond to any such
notice from a holder within five (5) business days. In the case of any proposed
transfer under this Section 4.1,
the
Company will use reasonable
efforts to comply with any such applicable state securities or “blue sky” laws,
but shall in no event be required, (x) to qualify to do business in any state
where it is not then qualified, (y) to take any action that would subject it
to
tax or to the general service of process in any state where it is not then
subject, or (z) to comply with state securities or “blue sky” laws of any state
for which registration by coordination is unavailable to the Company. The
restrictions on transfer contained
in this
Section 4.1 shall be in addition to, and not by way of limitation of, any other
restrictions on transfer contained
in any
other section of this Agreement. Whenever a certificate representing the Shares
or Warrant Shares is required to be issued to the Purchaser without a legend,
in
lieu of delivering physical certificates representing the Shares or Warrant
Shares (provided that a registration statement under the Securities Act
providing for the resale of the Shares and Warrant Shares is then in effect
and
such request is in connection with a sale), the Company shall cause its transfer
agent to electronically transmit the Shares or Warrant Shares to the Purchaser
by crediting the account of such Purchaser’s Prime Broker with the Depository
Trust Company (“DTC”)
through its Deposit Withdrawal Agent Commission (“DWAC”)
system
(to the extent not inconsistent with any provisions of this Agreement) provided
that the Company and the Company’s transfer agent are participating in DTC
through the DWAC system.
16
Article
V
Indemnification
5.1 General
Indemnity.
The
Company agrees to indemnify and hold harmless the Purchaser (and its directors,
officers, managers, partners, members, shareholders, affiliates, agents,
successors and assigns) from and against any and all losses, liabilities,
deficiencies, costs, damages and expenses (including, without limitation,
reasonable attorneys’ fees, charges and disbursements) incurred by the Purchaser
as a result of any inaccuracy in or breach of the representations, warranties
or
covenants made by the Company herein. The Purchaser agrees to indemnify and
hold
harmless the Company and its directors, officers, affiliates, agents, successors
and assigns from and against any and all losses, liabilities, deficiencies,
costs, damages and expenses (including, without limitation, reasonable
attorneys’ fees, charges and disbursements) incurred by the Company as result of
any inaccuracy in or breach of the representations, warranties or covenants
made
by the Purchaser herein. The maximum aggregate liability of the Purchaser
pursuant to its indemnification obligations under this Article V shall not
exceed the aggregate purchase price for the Shares paid by the Purchaser
hereunder.
Article
VI
Miscellaneous
6.1 Fees
and Expenses.
Each
party shall pay the fees and expenses of its advisors, counsel, accountants
and
other experts, if any, and all other expenses, incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this
Agreement.
6.2 Specific
Enforcement, Consent to Jurisdiction.
(a) The
Company and the Purchaser acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the other
Transaction Documents were not performed in accordance with their specific
terms
or were otherwise breached. It is accordingly agreed that the parties shall
be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement or the Warrant and to enforce specifically the
terms and provisions hereof or thereof, this being in addition to any other
remedy to which any of them may be entitled by law or equity.
17
(b) Each
of
the Company and the Purchaser (i) hereby irrevocably submits to the jurisdiction
of the United States District Court sitting in the Commonwealth of Massachusetts
and the courts of the State of Massachusetts located in Middlesex County for
the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Transaction Documents or the transactions
contemplated hereby or thereby and (ii) hereby waives, and agrees not to assert
in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such court, that the suit, action or proceeding
is brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Each of the Company and the Purchaser consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this Section 6.2
shall affect or limit any right to serve process
in
any other manner permitted by law.
6.3 Entire
Agreement; Amendment.
This
Agreement and the Transaction Documents contain the entire understanding and
agreement of the parties with respect to the matters covered hereby and, except
as specifically set forth herein or in the Transaction Documents, neither the
Company nor the Purchaser makes any representations, warranty, covenant or
undertaking with respect to such matters and they supersede all prior
understandings and agreements with respect to said subject matter, all of which
are merged herein. No provision of this Agreement may be amended other than
by a
written instrument signed by the Company and the Purchaser, and no provision
hereof may be waived other than by an a written instrument signed by the party
against whom enforcement of any such waiver is sought.
6.4 Notices.
Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telex (with correct answer back received), telecopy or facsimile
at
the address or number designated below (if delivered on a business day during
normal business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a business
day
during normal business hours where such notice is to be received) or (b) on
the
second business day following the date of mailing by express courier service,
fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such communications
shall be:
| If to the Company: |
0000
Xxxxxxxxx Xx, #000
Xxxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
Tel.
No.:
(000) 000-0000
Fax
No.:
(000) 000-0000
18
| with copies to: |
Xxxxxx
X. Xxxxxxx, Esq.
|
Xxxxxxx
& Prager LLP
00
Xxxxxxxx, Xxxxx 000
Xxx
Xxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
| If to the Purchaser: |
Inverness
Medical Innovations, Inc.
|
00
Xxxxxx
Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Legal Department
Facsimile:
(000) 000-0000
| with copies to: |
Xxxxxxx
X. Xxxx, Esq.
|
Xxxxx
Xxxx LLP
000
Xxxxxxx Xxxxxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Any
party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other party
hereto.
6.5 Waivers.
No
waiver by either party of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver
in
the future or a waiver of any other provisions, condition or requirement hereof,
nor shall any delay or omission of any party to exercise any right hereunder
in
any manner impair the exercise of any such right accruing to it
thereafter.
6.6 Headings.
The
article, section and subsection headings in this Agreement are for convenience
only and shall not constitute a part of this Agreement for any other purpose
and
shall not be deemed to limit or affect any of the provisions
hereof.
6.7 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns. Without limiting the generality of the foregoing,
the Purchaser may, at any time and from time to time, without any consent of
or
notice to the Company, assign all or any of its rights under this Agreement
and
under the Warrant to any one or more of the Purchaser’s affiliates (including,
without limitation, to the Purchaser’s parent corporation or any subsidiary
thereof) or to any one or more of its lenders (or to any one or more of the
lenders of Purchaser’s parent corporation), and in connection therewith the
Purchaser may also pledge any of the Shares, the Warrant and the Warrant Shares
to any one or more of such lenders.
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6.8 No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
6.9 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the Commonwealth of Massachusetts, without giving effect to any of
the
conflicts of law principles which would result in the application of the
substantive law of another jurisdiction. This Agreement shall not be interpreted
or construed with any presumption against the party causing this Agreement
to be
drafted.
6.10 Survival.
The
representations and warranties of the Company and the Purchaser shall survive
the execution and delivery hereof and the Closing until the second anniversary
of the Closing Date, except the agreements and covenants set forth in Articles
I, III, IV, V and VI shall survive the execution and delivery hereof and the
Closing hereunder.
6.11 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
6.12 Publicity.
The
Company agrees that it will not disclose, and will not include in any public
announcement, the name of the Purchaser without the consent of the Purchaser
unless and until such disclosure is required by law or applicable regulation,
and then only to the extent of such requirement.
6.13 Severability.
The
provisions of this Agreement and the Transaction Documents are severable and,
in
the event that any court of competent jurisdiction shall determine that any
one
or more of the provisions or part of the provisions contained in this Agreement
or the Transaction Documents shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision
of
this Agreement or the Transaction Documents and such provision shall be reformed
and construed as if such invalid or illegal or unenforceable provision, or
part
of such provision, had never been contained herein, so that such provisions
would be valid, legal and enforceable to the maximum extent
possible.
6.14 Further
Assurances.
From
and after the date of this Agreement, upon the request of the Purchaser or
the
Company, each of the Company and the Purchaser shall execute and deliver such
instrument, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement, the Shares, the Warrant and the Warrant Shares.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized officer as of
the
date first above written.
| STATSURE DIAGNOSTIC SYSTEMS, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| IM US HOLDINGS, LLC | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
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