AVAX TECHNOLOGIES, INC. CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT Dated as of October 15, 2009
Exhibit
10.34
AVAX
TECHNOLOGIES, INC.
CONVERTIBLE
NOTE AND WARRANT
PURCHASE
AGREEMENT
Dated
as of October 15, 2009
-1-
AVAX
TECHNOLOGIES, INC.
CONVERTIBLE
NOTE AND WARRANT
PURCHASE
AGREEMENT
October
15, 2009
To
the Purchaser Listed on the Signature Page Hereto:
Sir:
AVAX
Technologies, Inc., a Delaware corporation (the “Company”), proposes, subject to
the terms and conditions contained herein, to sell to the Purchaser listed on
the signature page hereto (the “Purchaser”), $1,400,000.00 aggregate principal
amount of the Company’s 6% Convertible Secured Promissory Note due June 1, 2010
(the “Note”) and a warrant to purchase up to 93,333,333 fully paid and
non-assessable shares of common stock, par value $.004 per share, of the Company
(the “Common Stock”) for $0.015 per share (the “Warrant”) pursuant to this
Convertible Note and Warrant Purchase Agreement (the “Agreement”) and the
Intellectual Property Security Agreement between the Company and the Purchaser
dated October 15, 2009 (the “IP Security Agreement”). The Note will be
convertible into shares of Common Stock or other securities of the Company, as
more fully described therein.
The sale
of the Note and Warrant to the Purchaser will be made without registration of
the Note or Warrant under the Securities Act of 1933, as amended (the
“Securities Act”) in reliance upon an exemption from the registration
requirements of the Securities Act.
Section 1. Purchase
and Sale of Note and Warrant. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to the Purchaser,
and the Purchaser will purchase from the Company (i) the Note at a purchase
price of 100% of the principal amount of the Note (the “Purchase Price”) and
(ii) the Warrant. The Purchase Price is set forth on that Purchaser’s signature
page, and the number of shares of Common Stock subject to the Warrant issued to
each Purchaser is set forth on the signature page for that Purchaser. The Note,
the Warrant and the equity securities issuable upon conversion or exercise
thereof are collectively referred to herein as the “Securities.”
Section 2. Closing. The closing (the
“Closing”) of the purchase and sale of the Note and the Warrant (the
“Transaction”) will take place by telephone, facsimile and express mail on such
date as the Purchaser and the Company may agree. The date of the Closing for the
Purchaser is referred to as the “Closing Date.” At the Closing, the Purchaser
shall deliver to the Company, by check or wire transfer of immediately available
funds to the Company’s bank account, the Purchase Price, and the Company shall
issue and deliver to the Purchaser the Note and the Warrant against payment of
the Purchase Price.
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Section 3. Conditions to the
Obligations of Purchaser at Closing. The
obligation of the Purchaser to purchase and pay for the Note and
the Warrant at Closing is subject to the satisfaction on or prior to the Closing
Date of the following conditions, each of which may be waived by the
Purchaser:
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5.2
Reliance on Exemptions.
Purchaser understands that the Securities are being offered and sold to
it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying
in part upon the truth and accuracy of, and such Purchaser's compliance with,
the representations, warranties, agreements, acknowledgments and understandings
of such Purchaser set forth in this Agreement in order to determine the
availability of such exemptions and the eligibility of such Purchaser to acquire
the Securities.
(a)
“THE SHARES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION
OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933.”
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(b) Any
legend required by the securities laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
5.6
No General Solicitation. Purchaser is not purchasing the Note and the
Warrant as a result of any advertisement, article, notice or other communication
published in a newspaper or magazine or similar media or broadcast over
television or radio, whether closed circuit, or generally available, or any
seminar, meeting or other conference whose attendees were invited by any general
solicitation or general advertising.
5.7
Ability to Bear Economic Risk.
Purchaser acknowledges that investment in the Securities involves a high
degree of risk, and represents that it is able, without materially impairing its
financial condition, to hold the Securities for an indefinite period of time and
to suffer a complete loss of its investment.
5.8
Risk Factors. Purchaser
has carefully considered the potential risks relating to the Company and the
Securities. Purchaser fully understands that the Company is a development stage
company and that the Company is subject to all of the risks inherent in any
development stage company. Purchaser understands that Purchaser’s investment in
the Securities is a speculative investment which involves a high degree of risk
of loss of the Purchaser’s entire investment. Purchaser understands that the
Company has made no assurance that there will be any future financings or
liquidity in the Company.
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Section
6.
Representations and Warranties of the Company. The Company represents and warrants to
each Purchaser that as of the date hereof and the Closing Date:
6.1 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. The
Company has full corporate power and authority to own and hold its properties
and to conduct its business. The Company is duly licensed and qualified to do
business, and in good standing, in each jurisdiction in which the nature of its
business requires licensing, qualification or good standing, except for any
failure to be so licensed or qualified or in good standing that would not have a
material adverse effect on the Company or its business, properties, prospects,
results of operations, assets, condition (financial or otherwise), or on its
ability to perform its obligations (or the ability of any of its subsidiaries to
perform their obligations) under this Agreement or the IP Security
Agreement.
(b)
When the Note and the
Warrant are delivered and paid for pursuant to this Agreement on the Closing
Date, the Note will be convertible into Common Stock or other securities of the
Company in accordance with its terms and the Warrant will be exercisable for
shares of Common Stock in accordance with its terms; the Common Stock initially
issuable upon conversion of the Note and upon exercise of the Warrant has been
duly authorized and reserved for issuance upon such conversion or exercise and,
when and if issued upon such conversion of the Note or exercise of the Warrant,
will be validly issued, fully paid and nonassessable, and the stockholders of
the Company have no preemptive rights with respect to the
Securities.
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(b)
A copy of each
report, schedule, effective registration statement and definitive proxy
statement filed by the Company with the SEC (as the documents may have been
amended since the time of their filing, the “SEC Documents”), has also been made
available to the Purchaser via the SEC’s XXXXX System. As of their respective
filing dates, each SEC Document complied in all material respects with the
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), as applicable, and the rules and regulations of
the SEC thereunder applicable to the SEC Document. The SEC Documents, taken as a
whole, neither contain any untrue statement of a material fact nor omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(c)
The Company’s
obligation to file certain reports and forms with the SEC, including its
periodic and current reporting obligations pursuant to Sections 13 and 15 of the
Exchange Act, has been suspended upon filing a Form 15 on or about March 30,
2009. The deregistration and suspension of the Company’s reporting obligations
became effective 90 days after filing.
-7-
6.8 Liens. Other than certain
liens held by Cancer Treatment Centers of America, Inc., an Illinois corporation
(“CTCA”) over property pursuant to that certain Services, Loan and Security
Agreement made and entered into as of April 27, 2009 by and between the Company
and CTCA, and that certain Production Agreement previously entered into by the
Company and CTCA in 2007 (the “Production Agreement”), there are no liens senior
to those of CTCA on any of the personal property of the Company located at or
relating to the Lab, whether now owned or hereafter acquired or arising,
including all goods (including inventory, furniture, fixtures, equipment, and
any accessions thereto), general intangibles, insurance claims relating to the
foregoing and proceeds and products of the foregoing and all intellectual
property owned by the Company and used in connection with the Lab.
6.9 Subsidiary. The Company owns,
and shall not transfer, all of the outstanding securities of AVAX International
IP Holdings, Inc., a Delaware corporation (the “IP Sub”), and will do, or will
cause the IP Sub to do, any and all things as are required to fulfill the
obligations of the Company and of the IP Sub hereunder and under the terms of
the IP Security Agreement.
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(i)
remain current in the prompt payment of all of its operating expenses and
trade obligations relating to the Lab, including the payment of all taxes,
employment expenses, vendor obligations (including its landlord Rodin Partners
and all critical suppliers and utilities);
(ii)
discharge its obligations to (and/or obtain a release from) or otherwise
satisfy Xxxxxxx Xxxxxx with respect to his judgment claims;
(iii)
begin to produce in the Lab for CTCA’s patients the vaccines described in
the Production Agreement on or before December 2, 2009; provided
however, that such date
shall be extended by any period during which achievement of production of such
vaccines is delayed, impeded or rendered impossible by forces beyond the
Company’s control, including acts of war, terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and general
failure of any utility being supplied to the Lab (each a “Force Majeure
Event”);
(iv)
continue, until the discharge of the Company’s liabilities under the
Production Agreement, to produce at the Lab or otherwise all of CTCA’s ongoing
requirements for such vaccines as specified in the Production Agreement,
following December 2, 2009; provided however,
that the Company may halt such production for any period during which production
of such vaccines is delayed, impeded or rendered impossible by a Force Majeure
Event;
(v)
maintain the Lab open and operating during normal business hours at all
times; provided
however, that the Company may close the Lab for reasonable statutory or
customary holiday periods, and for any period during which the Lab’s operation
is impeded or rendered impossible by a Force Majeure Event; and
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(vi)
maintain the Lab in good working order, including all equipment and
systems located therein; provided however,
that the Company shall not be responsible for the impact of a Force Majeure
Event on the Lab, its equipment and systems or operations.
9.1 In
connection with the Offering, the Company anticipates filing a registration
statement with the SEC to register for reoffering and resale the securities sold
by the Company in the Offering. Upon completion of the Offering, the Purchaser
shall have the right, upon the same terms as the investors in the Offering, to
include in any registration statement of the Company filed in connection
therewith, all of the Registrable Securities held by the Purchaser. For the
purposes of this Agreement, “Registrable Securities” means the Common Stock or
other securities of the Company issuable upon conversion of the Note and the
Common Stock issuable upon exercise of the Warrant.
9.2 If
the Offering has not been completed by January 1, 2010, or if the Offering has
been completed by such date but does not obligate the Company to register the
securities issued thereby with the SEC, at any time thereafter, the Purchaser
may demand, and Company shall be required to (i) use its best efforts to conduct
an offering of the Registrable Securities in which such Registrable Securities
are sold to an underwriter for reoffering to the public, and (ii) upon written
request of the Purchaser (the “Registration Request”), that the Company prepare,
and, as soon as practicable but in no event later than 120 days after the date
of the Registration Request (the “Filing Deadline”), file with the SEC a
Registration Statement on Form S-3 covering the resale of all of the Registrable
Securities. In the event that Form S-3 is unavailable for such a registration,
the Company shall use such other form as is available for such a registration.
Any registration statement prepared pursuant hereto (including (in each case)
the prospectus, amendments and supplements to such registration statement or
prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statements, the “Registration Statement”) shall
register for resale all Registrable Securities held by Purchaser. The Company
shall use its best efforts to have the Registration Statement declared effective
by the SEC as soon as practicable, but in no event later than the date that is
120 days after Filing Deadline (the “Effectiveness Deadline”). The Company shall
use commercially reasonable efforts to keep the Registration Statement
continuously effective under the Securities Act until the fifth anniversary of
the date such Registration Statement is declared effective by the SEC or such
earlier date when all Registrable Securities covered by such Registration
Statement have been sold publicly or may be sold pursuant to paragraph (k) of
Rule 144 (the “Effectiveness Period”).
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9.3 If
at any time the SEC takes the position that the offering of some or all of the
Registrable Securities in a Registration Statement is not eligible to be made on
a delayed or continuous basis under the provisions of Rule 415 as a result of a
characterization by the SEC of the transaction described by the Registration
Statement as a primary offering by the Company, the Company shall use its
reasonable best efforts to persuade the SEC that the offering contemplated by
the Registration Statement is a valid secondary offering and not an offering “by
or on behalf of the issuer” as defined in Rule 415. In the event that, despite
the Company’s reasonable best efforts and compliance with the terms of this
Section 9, the SEC refuses to alter its position, the Company shall, upon
obtaining consent of the Purchaser, (i) remove from the Registration Statement
such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii)
agree to such restrictions and limitations on the registration and resale of the
Registrable Securities as the SEC may require to assure the Company’s compliance
with the requirements of Rule 415. Any Registrable Securities not able to be
included in a Registration Statement filed pursuant to this Section 9 shall
reduce the number of Registrable Securities of each Holder covered by such
Registration Statement on a pro-rata basis based on the number of
Registrable Securities purchased by each such Holder and the Company shall have
no liability to any Holder as a result of the Registration Statement covering
less than all of the Registrable Securities under the circumstances described in
this proviso. Within 9 months, or such earlier time as permitted by the SEC, of
the initial registration filed hereunder being declared effective, the Company
shall file an additional registration statement containing the Cut Back Shares.
With regard to the new Registration Statement, all of the provisions of this
Section 9 shall again be applicable to the Cut Back Shares.
9.4 In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) (i)
Prepare and file with the SEC such amendments, including post-effective
amendments, to each Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the SEC such additional Registration Statements
in order to register for resale under the Securities Act all of the Registrable
Securities; (ii) cause the related prospectus to be amended or supplemented by
any required prospectus supplement, and as so supplemented or amended to be
filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible,
and in any event within twenty-one days, to any comments received from the SEC
with respect to the Registration Statement or any amendment thereto and as
promptly as reasonably possible provide the Purchaser true and complete copies
of all correspondence from and to the SEC relating to the Registration
Statement; and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the applicable period in accordance
with the intended methods of disposition by the Purchaser thereof set forth in
the Registration Statement as so amended or in such prospectus as so
supplemented.
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(c)
Use commercially reasonable efforts to avoid the issuance of
or, if issued, obtain the withdrawal of (i) any order suspending the
effectiveness of any Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, as soon as possible.
(e)
Furnish to the Purchaser, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested by
the Purchaser (including those previously furnished or incorporated by
reference) promptly after the filing of such documents with the
SEC.
(f)
Promptly deliver to the Purchaser, without charge, as many copies of the
prospectus or prospectuses (including each form of prospectus) as the Purchaser
may reasonably request. The Company hereby consents to the use of such
prospectus by the Purchaser in connection with the offering and sale of the
Registrable Securities covered by such prospectus.
(g)
(i) In the time and manner required by the Over the Counter Bulletin
Board, or any national securities exchange, market or trading or quotation
facility on which the Common Stock is then listed or quoted (each a “Trading
Market”), prepare and file with such Trading Market an additional shares listing
application covering all of the Registrable Securities; (ii) take all steps
necessary to cause such Registrable Securities to be approved for listing on
each Trading Market as soon as possible thereafter; (iii) provide to the
Purchaser evidence of such listing; and (iv) maintain the listing of such
Registrable Securities on each such Trading Market.
(h)
Prior to any public offering of Registrable Securities, use its best
efforts to register or qualify or cooperate with the Purchaser in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
the Purchaser requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by a
Registration Statement; provided however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise subject.
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(i)
Cooperate with the Purchaser to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration Statement,
which certificates shall be free, to the extent permitted by this Agreement, of
all restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as the Purchaser may
request.
(j)
As promptly as reasonably possible, prepare any appropriate
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, neither the
Registration Statement nor such prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(k)
Cooperate with any due diligence investigation undertaken by the Purchaser in
connection with the sale of Registrable Securities, including, without
limitation, by making available any documents and information requested by the
Purchaser; provided
however, that the Company will not deliver or make available to the
Purchaser material, nonpublic information unless the Purchaser specifically
requests in advance to receive material, nonpublic information in
writing.
(l)
Comply with all applicable rules and regulations of the
SEC.
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(b) In
connection with any Registration Statement in which the Purchaser may
participate, the Purchaser will furnish to the Company in writing the
information as is reasonably requested by the Company for use in the
Registration Statement or prospectus and will indemnify, to the extent permitted
by law, the Company, its directors and officers and each person or entity, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages, liabilities and expenses resulting
from any untrue statement of a material fact or any omission of a material fact
required to be stated in the shelf registration statement or prospectus or any
amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, but only to the extent the losses, claims, damages,
liabilities or expenses are caused by an untrue statement or by an omission made
in reliance upon and in conformity with the written information specifically
furnished by the Purchaser to the Company for use in connection with the
preparation of the shelf registration statement or prospectus; provided however,
that the indemnity will not apply to the extent that the loss, claim, damage,
liability or expense arises out of or is based upon a violation of this
Agreement by the Company. If the offering pursuant to any registration is made
through underwriters, the Purchaser agrees to enter into an underwriting
agreement in customary form with the underwriters and to indemnify the
underwriters, their officers and directors, if any, and each person or entity
who controls the underwriters within the meaning of the Securities Act to the
same extent as hereinabove provided with respect to indemnification by the
Purchaser. Notwithstanding the foregoing or any other provision of this
Agreement, in no event will the Purchaser be liable for any losses, claims,
damages, liabilities or expenses in excess of the net proceeds received by
Purchaser upon the disposition of Registrable Securities pursuant to the
registration statement giving rise to such claim.
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(c) Promptly
after receipt by an indemnified party under Section 10(a) or (b) of notice of
any claim as to which indemnity may be sought, including the commencement of any
action or proceeding, the indemnified party will, if a claim in respect thereof
may be made against the indemnifying party under this Section, promptly notify
the indemnifying party in writing of the commencement thereof; provided that the
failure of the indemnified party to so notify the indemnifying party will not
relieve the indemnifying party from its obligations under this Section except to
the extent that the indemnifying party is adversely affected by the failure. In
case any action or proceeding is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party and its counsel may conduct the defense of any action with counsel
approved by the indemnified party (which approval will not be unreasonably
withheld or delayed) although in such event the indemnified party will be
entitled to participate therein at the indemnified party’s expense, and after
notice from the indemnifying party to the indemnified party of its election to
so assume the defense thereof, the indemnifying party will not be liable to the
indemnified party under that Section for any legal or any other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof unless incurred at the written request of the indemnifying party.
Notwithstanding the above, the indemnified party will have the right to employ
counsel of its own choice in any action or proceeding (and be reimbursed by the
indemnifying party for the reasonable fees and expenses of the counsel and other
reasonable costs of the defense) if representation of the indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests or conflicts between the indemnified
party and any other party represented by the counsel in the action or proceeding
or counsel to the indemnified party is of the opinion that it would not be
desirable for the same counsel to represent both the indemnifying party and the
indemnified party because the representation might result in a conflict of
interest; provided
however, that the indemnifying party will not in connection with any one
action or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all indemnified parties, except to the extent that local counsel, in
addition to regular counsel, is required in order to effectively defend against
the action or proceeding. An indemnifying party will not be liable to any
indemnified party for any settlement or entry of judgment concerning any action
or proceeding effected without the consent of the indemnifying
party.
(d) If
the indemnification provided for in Section 10(a) or (b) is held by a court of
competent jurisdiction to be unavailable under applicable law to an indemnified
party in respect of any losses, claims, damages or liabilities referred to
therein, then each applicable indemnifying party, in lieu of indemnifying the
indemnified party, will contribute to the amount paid or payable by the
indemnified party as a result of the losses, claims, damages or liabilities in
the proportion as is appropriate to reflect the relative fault of the Company on
the one hand and of the indemnified party on the other in connection with the
statements or omissions which resulted in the losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations including
the relative benefits to the parties. The relative fault of the Company on the
one hand and of the indemnified party on the other will be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company or by the indemnified party and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent the statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above will be
deemed to include, subject to the limitations set forth in Section 10(c), any
legal or other fees or expenses reasonably incurred by the party in connection
with investigating or defending any action or claim. No person or entity guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity that
is not guilty of fraudulent misrepresentation.
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11.1 Notices.
Any notice or other communication given hereunder will be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, or delivered by hand against written receipt therefor, or
sent by confirmed facsimile, addressed to:
If to the
Company or to the IP Sub:
AVAX
Technologies, Inc.
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxx Xxxxxxxxxxx
Facsimile:
(000) 000-0000
With a
copy to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Chrysler
Center
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxxx
Facsimile:
(000) 000-0000
If to the
Purchaser:
Firebird
Global Master Fund, Ltd.
c/o
Trident Trust Company
(Cayman)
Limited
One
Capital Place, P.O. Box 847
Xxxxxx
Town, Grand Cayman
KY1-1103
Cayman Islands
With a
copy to:
FGS
Advisors, LLC
000 Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxx
Facsimile:
(000) 000-0000
-16-
Notices
will be deemed to have been given or delivered on the date of mailing, except
notices of change of address, which will be deemed to have been given or
delivered when received.
11.4
Governing Law. The terms and provisions hereof will be construed in
accordance with and governed by the laws of the State of Delaware without regard
to that State’s conflicts of law principles.
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IN WITNESS WHEREOF, the
undersigned have duly executed this Note Purchase Agreement as of the date first
above written.
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FIREBIRD
GLOBAL
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AVAX
TECHNOLOGIES, INC.
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MASTER
FUND, LTD.
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By:
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/s/ Xxxxx Xxxxxx |
By:
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/s/ Xxxx Xxxxxxxxxxx | |
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Name:
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Xxxxx Xxxxxx | Xxxx Xxxxxxxxxxx | ||
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Title:
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Director | Executive Chairman | ||
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Dated: October
28, 2009
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Dated: October
28, 2009
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AVAX
INTERNATIONAL IP HOLDINGS, INC.
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||||
|
Address:
Firebird Global Master Fund, Ltd.
c/o Trident Trust Company
(Cayman) Limited
One Capital Place, P.O. Box 847
Xxxxxx Town, Grand Cayman
XX0-0000 Xxxxxx Islands
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Facsimile:
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By:
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/s/ Xxxx Xxxxxxxxxxx | ||
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Tax
Id No.:
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Xxxx
Xxxxxxxxxxx
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Executive
Chairman
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Principal
Amount of Note Purchased:
$1,400,000.00
Warrant
to purchase 93,333,333 shares of Common Stock
Purchase
Price: $1,400,000
Closing
Date: October 15, 2009
