SECURITIES PURCHASE AGREEMENT dated as of July 21, 2009 by and among SAFESTITCH MEDICAL, INC. AND THE PURCHASERS SET FORTH ON THE SIGNATURE PAGES HERETO
Exhibit
10.2
dated
as of July 21, 2009
by
and among
AND
THE
PURCHASERS SET FORTH ON
THE
SIGNATURE PAGES HERETO
THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated
as of July 21, 2009, by and between SafeStitch Medical, Inc. (the “Company”), a
corporation organized under the laws of the State of Delaware, with its
principal offices at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx X-000, Xxxxx, Xxxxxxx 00000
(the “Principal
Office”), and the purchasers whose names and addresses are set forth on
the signature pages hereto (the “Purchasers”). Certain
capitalized terms used but not defined herein shall have the respective meanings
set forth on Schedule
1 attached hereto.
IN
CONSIDERATION of the mutual covenants contained in this Agreement, and intending
to be legally bound hereby, the Company and the Purchasers agree as
follows:
SECTION
1. Authorization of Sale of the
Shares. Subject
to the terms and conditions of this Agreement, and the filing with the Secretary
of State of the State of Delaware of the Certificate of Designation of the
Powers, Preferences and Relative, Participating, Optional and Other Special
Rights of the 10.0% Series A Cumulative Convertible Preferred Stock, and
Qualifications, Limitations and Restrictions Thereof, substantially in the form
attached hereto as Exhibit A (the “Certificate of
Designation”), the Company has authorized the issuance and sale to the
Purchasers in a private placement of up to an aggregate of 2,000,000 shares of 10.0% Series A
Cumulative Convertible Preferred Stock, par value $0.01 per share, of the
Company (each, a “Share”).
SECTION
2. Agreement to Sell and
Purchase the Shares. Subject
to the terms and conditions of this Agreement, at the Closing (as defined in
Section 3), the Company shall issue and sell to each Purchaser, and such
Purchaser shall buy from the Company, the number of Shares set forth on such
Purchaser’s signature page hereto for an aggregate purchase price equal to the
number of such Shares purchased by such Purchaser multiplied
by the per-Share purchase price of $1.00 (the “Purchase
Price”).
SECTION
3. Closing
3.1 Delivery of the Shares at
the Closing. The
completion of the purchase and sale of Two Million (2,000,000) Shares (the
“Closing”)
shall occur, at the Company’s sole election and in its sole discretion, at the
Principal Office on any date on or prior to June 30, 2010, provided
that: (i) the Company shall have provided to the Purchasers written
notice of the Closing, together with a copy of the resolutions of the Board
approving the consummation of the Closing (certified by a duly authorized
officer of the Company) on or prior to the tenth (10th)
calendar day preceding the date of the Closing (the “Closing Date”); and
(ii) the Closing Conditions (as defined below) shall have been satisfied or
waived on or prior to the Closing Date.
3.2 Closing
Deliverables. At
the Closing, the Company shall deliver to each Purchaser one or more stock
certificates registered in the name of such Purchaser, or, if so indicated on
such Purchaser’s Stock Certificate Questionnaire, the form of which is attached
hereto as Appendix
I (the “Stock
Certificate Questionnaire”), in such other name(s) as designated by such
Purchaser, evidencing the number of Shares set forth on such Purchaser’s
signature page attached hereto, each bearing a restrictive legend, substantially
in the form set forth in Section 6.2.
1
3.3
Conditions to the Company’s
Obligations. The
Company’s obligation to complete the sale of the Shares at the Closing is
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions, unless otherwise waived (“Company Closing
Conditions”):
(a) receipt
by the Company of immediately available funds in the full amount of the
aggregate purchase price for all Shares being purchased at the
Closing;
(b) each
of the representations and warranties of each Purchaser set forth in Section 5
shall be true and correct on the date of the Closing;
(c) each
Purchaser shall have performed and complied with all covenants, agreements and
obligations contained in this Agreement that are required to be performed or
complied with by such Purchaser on or prior to the Closing; and
(d) the
Board shall have approved the consummation of the Closing.
3.4 Conditions to Purchasers’
Obligations. Each
Purchaser’s obligation to purchase the Shares at the Closing is subject to the
fulfillment, at or prior to the Closing, of each of the following conditions,
unless otherwise waived (“Purchaser Closing
Conditions” and, together with the Company Closing Conditions, the “Closing
Conditions”):
(a) each
of the representations and warranties of the Company set forth in Section 4 that
is qualified by materiality or material adverse effect or words of similar
effect shall be accurate in all respects on the Closing Date (except to the
extent any such representations and warranties expressly relate to a specific
date, in which case such representations and warranties shall be accurate as of
such date), and each of the representations and warranties of the Company set
forth in Section 4 that is not so qualified shall be accurate in all material
respects as of the Closing Date (except to the extent such representations and
warranties expressly relate to a specific date, in which case such
representations and warranties shall be accurate in all material respects as of
such date);
(b) the
Company shall have performed and complied with all covenants, agreements and
obligations contained in this Agreement that are required to be performed or
complied with by the Company on or before the Closing;
(c) the
Certificate of Designation shall have been filed with, and accepted for filing
by, the Secretary of State of the State of Delaware; and
(d) the
Board shall have approved the consummation of the Closing.
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SECTION
4. Representations, Warranties
and Covenants of the Company. The
Company hereby represents and warrants to the Purchasers as
follows:
4.1 Issuance of
Shares. The
Company has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and the Company’s issuance and sale
of the Shares. The Shares, when issued and delivered and paid for as
provided herein, will be duly authorized, validly issued, fully paid and
nonassessable and will be issued free and clear of any Encumbrances (other than
as arising under applicable securities laws or this
Agreement). Assuming the accuracy of the representations and
warranties of the Purchasers set forth in Section 5 of this Agreement, the
Shares will be issued in compliance with all applicable federal and state
securities laws.
4.2 Organization and
Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as it is now being conducted and is duly qualified to do business in
any other jurisdiction by virtue of the nature of the businesses conducted by it
or the ownership or leasing of its properties, except where the failure to be so
qualified will not, when taken together with all other such failures, have a
Material Adverse Effect on the Company.
4.3 Charter and
Bylaws. The
Company’s Charter and Bylaws, as amended or restated to date, as filed with the
SEC, are a complete and correct copy of such documents as in effect on the date
hereof.
4.4 Capitalization. As
of the date hereof, the Company is authorized to issue 250,000,000 shares of
capital stock, consisting of 225,000,000 shares of common stock, par value
$0.001 per share (“Common Stock”), and
25,000,000 shares of preferred stock, par value $0.01 per share (“Preferred
Stock”). As of June 15, 2009, there were (i) 17,962,718
shares of Common Stock issued and outstanding, and (ii) no shares of the
Preferred Stock issued or outstanding. All such outstanding shares of
Common Stock have been duly authorized and are validly issued, fully paid and
nonassessable. Except as disclosed in the SEC Documents, as of the
date hereof, there are no outstanding options, warrants, rights to subscribe
for, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, shares of any class of capital
stock of the Company, or agreements, understandings or arrangements to which the
Company is a party, or by which the Company is or may be bound, to issue
additional shares of its capital stock or options, warrants or rights to
subscribe for, calls or commitment of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, any shares of any
class of its capital stock.
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4.5 Authorization,
Enforceability and Related Matters. (i)
The Company has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement; (ii) the making and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated herein will not violate any provision of the Company’s Charter or
Bylaws or, except to the extent that it would not have a Material Adverse Effect
on the Company or adversely affect the Company’s ability to consummate the
transactions contemplated hereby, conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or the passage of
time or both, a default under any material agreement, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which the
Company is a party, or any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory body, administrative
agency or other governmental agency or body applicable to the Company; (iii) no
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental agency or body is required in
respect of the Company’s execution and delivery of this Agreement or the
consummation by the Company of the transactions contemplated by this Agreement;
(iv) upon the execution and mutual delivery of this Agreement by the parties
hereto, this Agreement shall constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to the
enforcement of creditor’s rights and the application of equitable principles
relating to the availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities laws or the public
policy underlying such laws; and (v) there is not in effect any order enjoining
or restraining the Company from entering into or engaging in any of the
transactions contemplated by this Agreement.
4.6 Brokers or
Finders. No
broker, investment banker, financial advisor or other individual, corporation,
general or limited partnership, limited liability company, firm, joint venture,
association, enterprise, joint securities company, trust, unincorporated
organization or other person or entity is entitled to any broker’s, finder’s,
financial advisor’s or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company or any of its Affiliate.
4.7 SEC
Documents. The
Company has made available to the Purchasers true and complete copies of all SEC
Documents. As of their respective dates (or if amended, as of the
date of the last amendment filed prior to the date hereof), the SEC Documents
complied in all material respects with the requirements of the 1934 Act, and
rules and regulations of the SEC promulgated thereunder, and the SEC Documents
did not contain any untrue statement of a material fact or omit 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.
4.8 Company Financial
Statements. The
financial statements, together with any notes thereto, included in the Company’s
Annual Report on Form 10-K as filed with the SEC on March 27, 2009 and the
Company’s Quarterly Report on Form 10-Q as filed with the SEC on May 13, 2009
fairly present in all material respects, on the basis stated therein and on the
date thereof, the financial position of the Company at the respective dates
therein specified and its results of operations and cash flows for the periods
then ended. Such statements and related notes have been prepared in
accordance with generally accepted accounting principles in the United States
(“GAAP”)
applied on a consistent basis except as expressly noted therein and subject in
the case of the unaudited financial statements to year-end
adjustments.
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4.9 Material Changes;
Undisclosed Events, Liabilities or Developments. Since
March 31, 2009, except as specifically disclosed in any SEC Document filed
subsequent to March 31, 2009 and prior to the date hereof: (i) there
has been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect; (ii) the Company
has not incurred any material liabilities (contingent or otherwise) other than
(A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP; (iii) the
Company has not altered its method of accounting; (iv) the Company has not
declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock; and (v) the Company has not issued any equity
securities to any of its officers, directors or Affiliates. As of the
date hereof, except for the issuance of the Shares contemplated by this
Agreement, no event, liability or development has occurred or exists with
respect to the Company or its subsidiaries or their respective business,
properties, operations or financial condition that is required to be disclosed
by the Company under applicable securities laws.
4.10 Full
Disclosure. No
representation or warranty made by the Company in this Agreement contains any
untrue statement of a material fact, or omits to state a material fact necessary
to make the statements contained herein not misleading.
SECTION
5. Representations, Warranties
and Covenants of the Purchasers. Each
Purchaser severally, and not jointly with any other Purchaser, represents and
warrants to the Company that:
5.1 Experience. (i)
Such Purchaser is knowledgeable, sophisticated and experienced in financial and
business matters, and is making, and is qualified to make, decisions with
respect to investments in shares representing an investment decision like that
involved in the purchase of the Shares, including investments in securities
issued by the Company and/or comparable entities, has the ability to bear the
economic risks of an investment in the Shares and has had the opportunity to
request, receive, review and consider all information it deems relevant in
making an informed decision to purchase the Shares; (ii) such Purchaser is
acquiring the number of Shares set forth on such Purchaser’s signature page
attached hereto for its own account, solely for investment and with no present
intention to distribute any of such Shares and is subject to no arrangement or
understanding with any other persons regarding the distribution of such Shares;
(iii) such Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares, except in compliance
with the Securities Act of 1933, as amended (the “Securities Act”), and
the rules and regulations promulgated thereunder (the “Rules and
Regulations”) and any applicable state securities laws; (iv) such
Purchaser has, in connection with its decision to purchase the number of Shares
set forth on such Purchaser’s signature page attached hereto, relied solely upon
the representations and warranties of the Company contained in this Agreement;
(v) such Purchaser has had an opportunity to discuss this investment with
representatives of the Company and ask questions of them; and (vi) such
Purchaser is either a “qualified institutional buyer” as defined by Rule 144A
promulgated under the Securities Act or an “accredited investor” as defined by
Rule 501(a) of Regulation D promulgated under the Securities Act.
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5.2 Reliance on
Exemptions. Such
Purchaser understands that the Shares and the Common Stock issuable upon
conversion of the Shares (the “Conversion Shares”
and, together with the Shares, the “Securities”) are
being offered and sold to in reliance upon specific exemptions from the
registration requirements of the Securities Act and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Purchaser’s
compliance with, the representations, warranties, covenants, agreements,
acknowledgments and understandings of such Purchaser contained in this Agreement
in order to determine the availability of such exemptions and the eligibility of
the Purchaser to acquire the Securities.
5.3 Confidentiality. Such
Purchaser understands that this Agreement, the information contained in all
materials provided to the Purchaser by the Company and its representatives,
including any information conveyed orally, in connection with the transactions
contemplated hereunder (“Confidential
Information”), is strictly confidential and proprietary to the Company
and is being provided to such Purchaser solely for such Purchaser’s confidential
use in connection with the transactions contemplated hereunder. Such
Purchaser agrees to use the Confidential Information solely for the purpose of
evaluating a possible investment in the Shares, and such Purchaser acknowledges
that it is prohibited from distributing, divulging or discussing any
Confidential Information, in whole or in part, with any Person, except to such
Purchaser’s financial, investment or legal advisors (such Persons, “Authorized
Advisors”), solely to the extent necessary for such Authorized Advisors
to assist such Purchaser with its proposed investment in the Shares. To the
extent that such Purchaser provides, directly or indirectly, any Confidential
Information to any Authorized Advisor, such Purchaser shall ensure that such
Authorized Advisor maintain the confidentiality of the Confidential Information
to the same extent applicable to such Purchaser as set forth in this Section
5.3. Confidential Information does not include any information that
is or becomes publicly available through no fault of such Purchaser, or that
such Purchaser is required to disclose pursuant to applicable law, regulation or
legal process; provided, however, that if such
Purchaser is requested or ordered to disclose any Confidential Information
pursuant to any court or other government order or any other applicable legal
procedure, it shall provide the Company with prompt notice of any such request
or order so that the Company may seek an appropriate protective
order.
5.4 Investment
Decision. Such
Purchaser understands that nothing in this Agreement or any other materials
presented to the Purchaser in connection with the purchase and sale of the
Shares constitutes legal, tax or investment advice. Such Purchaser
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of the Shares.
5.5 Risk of
Loss. Such
Purchaser understands that its investment in the Shares involves a significant
degree of risk, including a risk of total loss of such Purchaser’s investment,
and such Purchaser has full cognizance of and understands all of the risk
factors related to its purchase of the Shares, including, but not limited to,
those set forth in the SEC Documents. The Purchaser understands that
no representation is being made as to the future value of the
Securities.
5.6 Residency. Such
Purchaser’s principal executive offices, or primary residence, as applicable,
are in the jurisdiction set forth on such Purchaser’s signature page attached
hereto.
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5.7 Authorization,
Enforceability and Related Matters. (i)
Such Purchaser has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement; (ii) the making and performance of this Agreement by such
Purchaser and the consummation by such Purchaser of the transactions
contemplated herein will not violate any provision of the organizational
documents of such Purchaser (if not a natural person) or, except to the extent
that it would not have a Material Adverse Effect on such Purchaser’s ability to
consummate the transactions contemplated hereby, conflict with, result in the
breach or violation of, or constitute, either by itself or upon notice or the
passage of time or both, a default under any material agreement, mortgage, deed
of trust, lease, franchise, license, indenture, permit or other instrument to
which such Purchaser is a party, or any statute or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body;
administrative agency or other governmental agency or body applicable to such
Purchaser, (iii) no consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental agency or
body is required in respect of such Purchaser’s execution and delivery of this
Agreement or the consummation by such Purchaser of the transactions contemplated
by this Agreement; (iv) upon the execution and mutual delivery of this Agreement
by the parties hereto, this Agreement shall constitute a legal, valid and
binding obligation of such Purchaser, enforceable against such Purchaser in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to the enforcement of creditor’s rights and the application
of equitable principles relating to the availability of remedies, and except as
rights to indemnity or contribution may be limited by federal or state
securities laws or the public policy underlying such laws; and (v) there is not
in effect any order enjoining or restraining the Purchaser from entering into or
engaging in any of the transactions contemplated by this Agreement.
5.8 Brokers or
Finders. No
broker, investment banker, financial advisor or other individual, corporation,
general or limited partnership, limited liability company, firm, joint venture,
association, enterprise, joint securities company, trust, unincorporated
organization or other person or entity is entitled to any broker’s, finder’s,
financial advisor’s or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of such Purchaser or of its Affiliates.
SECTION
6. Restrictions on
Transfer.
6.1 Restrictions on
Transfer. The
Securities may be disposed of only in compliance with state and federal
securities laws. In connection with any transfer of any Securities
other than pursuant to an effective registration statement or Rule 144 under the
Securities Act, the Company may require the transferor thereof to provide to the
Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Securities under the Securities
Act. As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement.
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6.2 General
Legend. Each
Purchaser agrees that a restrictive legend, in substantially the following form,
shall be imprinted on the Securities:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR
ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE
OF REGISTRATION UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO SAFESTITCH MEDICAL, INC., A DELAWARE CORPORATION, AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
SECTION
7. Survival of Representations,
Warranties and Agreements. All
covenants, representations and warranties made by the Company and the Purchasers
herein and in any documents delivered pursuant hereto shall survive for a period
of one (1) year following the later of the execution of this Agreement or the
Closing.
SECTION
8. Independent Nature of
Purchasers’ Obligations and Rights. The
obligations of each Purchaser under this Agreement are several and not joint (or
joint and several) with the obligations of any other Purchaser hereunder, and no
Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser under this Agreement. The decision of a
Purchaser to purchase Shares pursuant to this Agreement has been made by such
Purchaser independently of any other Purchaser. Nothing contained in
this Agreement, and no action taken by any Purchaser pursuant thereto, shall be
deemed to constitute the Purchasers as a partnership, an association, a joint
venture or any kind of entity, or create a presumption that the Purchasers are
in any way acting in concert or as a group with respect to such obligations or
the transactions contemplated by this Agreement. Each Purchaser
acknowledges that no other Purchaser has acted as agent for such Purchaser in
connection with making its investment hereunder and that no other Purchaser will
be acting as agent of such Purchaser in connection with monitoring its
investment in the Securities or enforcing its rights under this
Agreement.
SECTION
9. Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon delivery to the party to be notified;
(ii) when received by confirmed facsimile or (iii) one (1) business day
after deposit with a nationally recognized overnight carrier, specifying next
business day delivery, with written verification of receipt. All
communications shall be sent to the Company and the Purchasers as follows or at
such other addresses as the Company or any Purchaser may designate upon ten (10)
days’ advance written notice to the other party:
(a) if
to the Company, to:
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0000
Xxxxxxxx Xxxxxxxxx
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Xxxxx
X-000
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0
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Xxxxx,
XX 00000
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Attn.:
Xxxx X. Xxxxxxx
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(b) if
to a Purchaser, at its address as set forth on such Purchaser’s signature page
attached hereto.
SECTION
10. Amendments. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and each of the Purchasers. No waiver
of any provision this Agreement shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
SECTION
11. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement.
SECTION
12. Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
SECTION
13. Governing
Law. This
Agreement and any disputes or claims arising out of or in connection with its
subject matter shall be governed by and construed in accordance with the laws of
the State of Florida without regard to the rules of conflict of laws of such
state that would cause the laws of another jurisdiction to apply. The parties
hereto acknowledge and agree that venue and jurisdiction for any claim, suit or
controversy related to or arising out of this Agreement shall lie in the state
or federal courts located in Miami-Dade County, Florida. THE PARTIES
HEREBY WAIVE THE RIGHT TO JURY TRIAL OF ANY MATTERS ARISING OUT OF THIS
AGREEMENT OR THE CONDUCT OF THE RELATIONSHIP BETWEEN THEM.
SECTION
14. Counterparts; Facsimile
Signatures. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other parties.
Facsimile or other electronically scanned and transmitted signatures shall be
deemed originals for all purposes of this Agreement.
SECTION
15. Entire
Agreement. This
Agreement (including the Exhibits, Schedules and Appendices attached hereto) and
the instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor any Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters.
SECTION
16. Fees and
Expenses. Except
as expressly set forth herein, the Company, on the one hand, and each Purchaser,
on the other hand, shall pay their respective fees and expenses related to the
transactions contemplated by this Agreement.
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SECTION
17. Parties. This
Agreement is made solely for the benefit of and is binding upon the Purchasers
and the Company, and no other person shall acquire or have any right under or by
virtue of this Agreement.
SECTION
18. Assignment. Except
as otherwise expressly provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors and assigns. This Agreement and the rights of each
Purchaser hereunder may be assigned by said Purchaser only with the prior
written consent of the Company. The Company may not assign this
Agreement without the written consent of each of the Purchasers.
SECTION
19. Further
Assurances. Each
party agrees to cooperate fully with the other parties hereto and to execute
such further instruments, documents and agreements and to give such further
written assurance as may be reasonably requested by any other party to evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
SECTION
20. Liability Not Affected by
Knowledge or Waiver. The
right to recovery of losses or other remedy based upon breach of
representations, warranties or covenants will not be affected by any
investigation conducted, or knowledge acquired (or capable of being acquired) at
any time, whether before or after the execution and delivery of this Agreement,
with respect to the accuracy or inaccuracy of or compliance or noncompliance
with any such representation, warranty, or covenant.
[Signature
pages follow]
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IN WITNESS WHEREOF, the
undersigned have caused this Agreement to be executed by their duly authorized
representatives as of the day and year first above written.
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COMPANY:
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By:
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/s/ Xxxx X. Xxxxxxx
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Name:
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Xxxx X. Xxxxxxx
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Title:
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Chief Financial
Officer
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Company
Signature Page to Securities Purchase Agreement
IN WITNESS WHEREOF, the
undersigned have caused this Agreement to be executed by their duly authorized
representatives as of the day and year first above written.
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PURCHASER(S):
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If
a corporation or other entity:
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Brilliant Champion Resources
Limited
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(name
of corporation or entity)
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By:
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/s/ Xxx, Xxxx-Hsiang
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Name:
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Xxx,
Xxxx-Hsiang
|
||
|
Title:
|
Director
|
||
|
If
an individual:
|
|||
|
Name:
|
|||
|
Name
(co-purchaser, if any):
|
|
Number
of Shares Purchased:
|
1,000,000 Shares
|
|
Contact
Information
|
Address:
|
|
|
|
||
|
|
||
|
|
||
|
|
|
Telephone:
|
|
Facsimile:
|
|
E-mail:
|
Purchaser
Signature Page to Securities Purchase Agreement
|
PURCHASER(S):
|
|||
|
If
a corporation or other entity:
|
Frost Gamma Investments
Trust
|
||
|
(name
of corporation or entity)
|
|||
|
By:
|
/s/ Xxxxxxx Xxxxx, M.D.
|
||
|
Name:
|
Xxxxxxx
Xxxxx, M.D.
|
||
|
Title:
|
Trustee
|
||
|
If
an individual:
|
|||
|
Name:
|
|||
|
Name
(co-purchaser, if any):
|
|
Number
of Shares Purchased:
|
447,500 Shares
|
|
Contact
Information
|
Address:
|
|
|
|
||
|
|
||
|
|
||
|
|
|
Telephone:
|
|
Facsimile:
|
|
E-mail:
|
Purchaser
Signature Page to Securities Purchase Agreement
|
PURCHASER(S):
|
|||
|
If
a corporation or other entity:
|
Xxx Gamma Investment, L.P.
|
||
|
(name
of corporation or entity)
|
|||
|
By:
|
/s/ Xxxx X. Xxxxx, Ph.D.,
MBA
|
||
|
Name:
|
Xxxx X. Xxxxx, Ph.D., MBA
|
||
|
Title:
|
General
Partner
|
||
|
If
an individual:
|
|||
|
Name:
|
|||
|
Name
(co-purchaser, if any):
|
|
Number
of Shares Purchased:
|
447,500 Shares
|
|
Contact
Information
|
Address:
|
|
|
|
||
|
|
||
|
|
||
|
|
|
Telephone:
|
|
Facsimile:
|
|
E-mail:
|
Purchaser
Signature Page to Securities Purchase Agreement
|
PURCHASER(S):
|
|||
|
If
a corporation or other entity:
|
|||
|
(name
of corporation or entity)
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
If
an individual:
|
/s/ Xxxxxxx X. Xxxxxxxx
|
||
|
Name:
Xxxxxxx X. Xxxxxxxx
|
|||
|
Name
(co-purchaser, if any):
|
|
Number
of Shares Purchased:
|
100,000 Shares
|
|
Contact
Information
|
Address:
|
|
|
|
||
|
|
||
|
|
||
|
|
|
Telephone:
|
|
Facsimile:
|
|
E-mail:
|
Purchaser
Signature Page to Securities Purchase Agreement
|
PURCHASER(S):
|
|||
|
If
a corporation or other entity:
|
|||
|
(name
of corporation or entity)
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
If
an individual:
|
/s/ Xxxxx Xxxxxxxxx
|
||
|
Name:
Xxxxx Xxxxxxxxx
|
|||
|
Name
(co-purchaser, if any):
|
|
Number
of Shares Purchased:
|
5,000 Shares
|
|
Contact
Information
|
Address:
|
|
|
|
||
|
|
||
|
|
||
|
|
|
Telephone:
|
|
Facsimile:
|
|
E-mail:
|
Purchaser
Signature Page to Securities Purchase Agreement
Appendix
I
STOCK CERTIFICATE
QUESTIONNAIRE
Pursuant
to Section 3 of the Agreement, please provide us with the following
information:
|
1.
|
The
exact name that your Shares are to be registered in (this is the name that
will appear on your stock certificate(s)). You may use a
nominee name if appropriate:
|
||
|
2.
|
The
relationship between the Purchaser of the Shares and the Registered Holder
listed in response to item 1 above:
|
||
|
3.
|
The
mailing address of the Registered Holder listed in response to item 1
above:
|
||
|
4.
|
The
Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
|
||
|
PURCHASER
|
|
|
By:
|
|
|
Its:
|
|
Schedule
1
CERTAIN DEFINED
TERMS
Definitions. The
following terms, whenever used herein, shall have the following respective
meanings for all purposes of this Agreement.
“1934 Act” means the
Securities Exchange Act of 1934, as amended.
“Affiliate” means as
to any Person (a) any Person which directly or indirectly controls, is
controlled by, or is under common control with such Person, and (b) any
Person who is a director, officer, partner or principal of such Person or of any
Person which directly or indirectly controls, is controlled by, or is under
common control with such Person. For purposes of this definition,
“control” of a
Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by ownership of
voting stock, by contract or otherwise.
“Bylaws” means the
Amended and Restated Bylaws of the Company, as may be amended from time to
time.
“Charter” means the
Amended and Restated Certificate of Incorporation of the Company, as may be
amended from time to time.
“Encumbrances” means
any and all liens, encumbrances, charges, mortgages, deeds of trust, options,
pledges, restrictions on transfer, preemptive rights, rights of first refusal or
offer, security interests, hypothecations, easements, rights-of-way or
encroachments of any nature whatsoever, whether voluntarily incurred or arising
by operation of law.
“Governmental
Authority” means any nation or country (including but not limited to the
United States) and any state, commonwealth, territory or possession thereof and
any political subdivision of any of the foregoing, including but not limited to
courts, departments, commissions, boards, bureaus, agencies, ministries or other
instrumentalities.
“Material Adverse
Effect” means a material adverse effect on the business, results of
operations, properties or assets of a Person; provided, however, that “Material Adverse
Effect” shall not include the impact on such business, results of
operations, properties or assets of a Person arising out of or attributable to
(i) economic conditions affecting the United States generally,
(ii) conditions or effects affecting the capital markets in the United
States generally or (iii) effects relating to the announcement of the
execution of this Agreement or otherwise to the pendency of the transactions
contemplated hereby, except to the extent that the impact of any of the
conditions or events described in the foregoing clauses (i), (ii) or (iii)
disproportionally affects such Person.
“Person” means any
individual, corporation (including any not-for-profit corporation), general or
limited partnership, limited liability partnership, joint venture, estate,
trust, firm, company (including any limited liability company or joint stock
company), association, organization, entity or Governmental
Authority.
S-1-1
“SEC” means the United
States Securities and Exchange Commission.
“SEC Documents” means
each form, report, schedule, statement and other document filed or required to
be filed by the Company with the SEC pursuant to the 1934 Act through the date
hereof, including any filed amendment to such document, whether or not such
amendment is required to be so filed. “SEC Documents” does not
include any information furnished to the SEC, including, but not limited to,
information under Items 2.02, 7.01 or 9.01 of Form 8-K.
S-1-2
