STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT made as of December ___, 1997 by and between
THERMOGENESIS CORP., a Delaware corporation ("Seller") and the undersigned
investor ("Buyer").
WHEREAS, Seller is offering (the "Offering") $3,250,000 of the
Seller's common stock, par value $.001 (individually "Common Stock") on a
best efforts basis at an estimated purchase price equal to $2.50 (the
"Purchase Price") per share, to Buyer and other investors in accordance
with the terms and subject to the conditions of this Agreement;
WHEREAS, subject to the terms and conditions set forth in this
Agreement, Buyer desires to subscribe for and purchase, and Seller desires
to issue and sell to Buyer a certain number of shares of Common Stock;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, the parties
hereto hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF SECURITIES.
1.1 PURCHASE AND SALE OF SECURITIES. In reliance upon the
representations and warranties made herein and subject to the terms and
conditions hereof, Buyer intending to be legally bound hereby agrees to
purchase from Seller and Seller agrees to issue and sell to Buyer on the
Closing Date the number of shares of Common Stock set forth beneath Buyer's
name on the signature page, at the Purchase Price per share of Common
Stock.
Seller proposes to enter into this same form of purchase agreement
with certain other investors (the "Other Buyers") and expects to complete
sales of the shares of Common Stock to them. The Buyer and the Other
Buyers are hereinafter sometimes referred to as the "Buyers." and this
Agreement and the agreements executed by the Other Buyers are hereinafter
sometimes referred to as the "Agreements." The shares of Common Stock are
hereinafter sometimes referred to as the "Securities."
1.2 PURCHASE PRICE AND PAYMENT FOR THE SECURITIES. Simultaneously with
the execution and delivery of this Agreement, the Buyer is delivering to
Gruntal & Co., L.L.C., the placement agent for the sale of shares of Common
Stock hereunder, an amount equal to the number of shares of Common Stock
purchased hereunder times the Purchase Price (the "Aggregate Purchase
Price"). Payment of the Aggregate Purchase Price to Gruntal & Co., L.L.C.
hereunder is being made by delivery of a certified or bank cashier's check
drawn payable to the order of the Company or by wire transfer of the
Aggregate Purchase Price to Gruntal & Co., L.L.C. or by other means
satisfactory to Gruntal & Co., L.L.C.. Prior to the Closing Date, all funds
received from Buyer by Gruntal & Co., L.L.C. under Section 1.2 shall be
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held by Gruntal & Co., L.L.C. as agent for the Buyer. Buyer agrees that on
the Closing Date, assuming the conditions specified in Section 7 are
satisfied or waived, Gruntal & Co., L.L.C. shall be authorized to make
payment to Seller of the Aggregate Purchase Price delivered to Gruntal &
Co., L.L.C. hereunder. In the event the closing does not occur on or prior
to the Closing Date, or in the event this subscription is rejected or this
Offering is terminated, Gruntal & Co., L.L.C. shall return to Buyer all
funds received from Buyer in respect of the Aggregate Purchase Price.
Buyer understands and agrees that Seller, in its sole discretion, reserves
the right to accept or reject any subscription for the purchase of shares
of Common Stock, in whole or in part, and to withdraw its offer to sell the
shares of Common Stock at any time prior to its acceptance of such
subscription to purchase. A subscription shall be deemed accepted by the
Seller when Seller executes and delivers to the undersigned a counterpart
of this Agreement.
1.3 TIME AND PLACE CLOSING. The Securities will be sold in one or more
closings at such place, date and time as may be fixed by mutual agreement
of Gruntal & Co., L.L.C., the placement agent for the shares of Common
Stock, and Seller (each such date referred to herein as the "Closing
Date"); provided, however, that the final Closing shall be no later than
December 29, 1997.
1.4 DELIVERY OF SHARES OF COMMON STOCK ON THE CLOSING DATE. On each
Closing date, Seller shall deliver, (i) against payment therefor,
certificates representing the shares of Common Stock purchased by Buyer,
and (ii) all other documents required to be delivered on the Closing Date
pursuant to the Agreements.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
2.1 CORPORATE ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with all requisite corporate power and authority to own, operate
and lease its properties and to carry on its business as it is now being
conducted, and is qualified or licensed to do business in good standing in
each jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification or
licensing necessary, except where its failure so to qualify to be licensed
would not have a material adverse effect on Seller.
2.2 CAPITALIZATION. The authorized capital stock of Seller consists of
50,000,000 shares of Common Stock, and 2,000,000 shares of preferred stock,
both par value $.001. The issued and outstanding shares of the Seller's
capital stock is accurately reflected in its annual report on Form 10-K for
the year ended June 30, 1997, as of that date. Except as described in
Seller's annual report on Form 10-K for the year ended June 30, 1997, and
in the Private Placement Memorandum, there are no outstanding contracts,
agreements, calls, options, warrants, rights, subscriptions, obligations or
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other commitments of Seller, directly or indirectly, relating to or calling
for the authorization, issuance, transfer, sale or other disposition of any
share of the capital stock or other voting interests of Seller or
securities convertible, exercisable or exchangeable into or for any of the
foregoing. Seller does not own or control any stock, equity, voting
ownership or other interest in any corporation, partnership, joint venture
or other business association or entity.
2.3 AUTHORIZATION: VALIDITY. Seller has full corporate power and
authority to enter into the Agreements and to carry out its obligations
thereunder. When issued in accordance with the Agreements, the shares of
Common Stock will be validly issued, fully paid and nonassessable. The
execution and delivery of the Agreements and the consummation of the
transactions contemplated thereby have been duly authorized by the Board of
Directors of Seller, which authorization remains in full force and effect
and has not been modified or amended by any subsequent action of such Board
of Directors, and no other corporate actions or proceedings on the part of
Seller are necessary to authorize the Agreements or the transactions
contemplated thereby. The Agreements constitute the valid and binding
obligations of Seller enforceable in accordance with their terms.
2.4. NO VIOLATION. Except for any required filings under applicable
Federal and state securities laws, which Seller undertakes to make, the
execution, delivery and performance by Seller of the Agreements and the
consummation by it of the transactions contemplated thereby, including,
without limitation, the issuance, sale and delivery of the shares of Common
Stock, do not require the consent, waiver, approval, license or
authorization of or filing of any notice or report with any person, entity
or public authority and will not violate, result in a breach of or the
acceleration of any obligation under, or constitute a default under, any
provision of Seller's Certificate of Incorporation or By-laws or any
indenture, mortgage, lien, lease, agreement, contract, instrument, order,
judgment, decree, law, ordinance or regulation to which any property of
Seller is subject or by which Seller is bound or result in the creation or
imposition of any lien, claim, charge, restriction, equity or encumbrance
of any kind whatsoever upon, or give to any other person any interest or
right in or with respect to, any of the properties, assets, business,
agreements or contracts of Seller.
2.5 COMPLIANCE WITH LAW. To the best of its knowledge, Seller is in
compliance with the governmental laws, ordinances, codes, orders, rules,
regulations and requirements applicable to its business and conditions of
employment, except where noncompliance could not reasonably be expected to
have a material adverse effect on the business, assets, properties or
financial condition of Seller. Seller has obtained all permits, licenses,
variances, exemptions, orders, contracts and approvals from Federal, state,
local and foreign governmental and regulatory bodies which are material,
singularly or in the aggregate, to the operation of its business
(collectively, the "Permits" and each individually, a "Permit"). Seller is
in compliance with the material terms of each Permit and with all
requirements, standards and procedures of the federal, state, local and
foreign governmental or regulatory bodies which issued the Permits or any
of them and there does not exist under any of the Permits any default or
event of default or event which with notice or lapse of time or both would
constitute an event of default by Seller.
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2.6 MEMORANDUM AND SEC FILINGS. Seller previously has delivered to
Buyer a copy of its Private Placement Memorandum dated October 20, 1997
(the "Memorandum"). The Memorandum contains information concerning the
Offering and a copy of Seller's Annual Report on Form 10-K for its fiscal
year ended June 30, 1997 and amendment to such report Form 10-K/A-1 (the
"SEC Report") filed by Seller with the Securities and Exchange Commission
(the "SEC"). Since January 1, 1995, Seller has made all filings required
to be made by it under the Securities Act of 1933, as amended (the "1933
Act"), the Securities Exchange Act of 1934 (the "1934 Act") and the
securities laws of any state, and any rules and regulations promulgated
thereunder. The audited consolidated financial statements of Seller
included in the SEC Report have been prepared in accordance with generally
accepted accounting principles consistently applied (except as may be
indicated in the notes thereto) and fairly present the financial position
of Seller as at the dates thereof and the results of its operations and
changes in cash flows for the periods then ended. The information
contained in the Memorandum and the SEC Report is or was accurate and
complete as of the date given. Neither the Agreements, the Memorandum nor
the SEC Report, taken as a whole, contain any untrue statement of material
fact or omit to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
2.7 NASDAQ COMPLIANCE. Seller has taken all necessary actions to ensure
its continued inclusion in, and the continued eligibility of the Common
Stock for trading on, The Nasdaq Stock Market ("NASDAQ") under all
currently effective and currently proposed inclusion requirements.
2.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the
SEC Report and on SCHEDULE 2.2 hereto, since June 30, 1997, Seller has not:
(a) incurred any obligation or liability, whether fixed or contingent
(including, without limitation, any liability as a guarantor or otherwise
with respect to the liabilities of others), except those incurred in the
ordinary course of business, none of which is materially adverse, and
except in connection with the Agreements and the transactions contemplated
thereby;
(b) discharged or satisfied any lien or encumbrance or paid any
obligation or liability (fixed or contingent), other than in the ordinary
course of business;
(c) mortgaged, pledged or subjected to lien, charge, security interest
or to any other encumbrance any of its assets or properties, other than in
the ordinary course of business;
(d) transferred, leased or otherwise disposed of any of its assets or
properties except for a fair consideration in the ordinary course of
business or acquired any assets or properties, other than in the ordinary
course of business;
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(e) canceled or compromised any debt or claim, other than in the
ordinary course of business;
(f) waived or released any rights of material value, other than in the
ordinary course of business;
(g) suffered any casualty loss or damage (whether or not such loss or
damage shall have been covered by insurance) which materially and adversely
affects the ability of Seller to conduct its business as it is presently
conducted;
(h) declared any dividend or made any payment or distribution in
respect of its Common Stock;
(i) been the subject of any regulatory action, citation or comparable
action or entered into any consent order with government agencies with
regard to its operations or products;
(j) implemented any material change in accounting principles,
practices or methods; or
(k) experienced a material adverse change in its financial condition
or results of operation.
2.9 PRIVATE OFFERING. Subject to the accuracy of the representations of
Buyer in Section 3 hereof and the similar representations of the Other
Buyers in the Agreements, the offer, sale and issuance of the Shares of
Common Stock constitute transactions exempt from the registration
requirements of Section 5 of the 1933 Act and neither Seller nor anyone
acting on its behalf will take any action hereafter that would cause the
loss of such exemption.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer understands that the issuance and sale of the Shares of Common
Stock have not been registered under the 1933 Act, on the grounds that the
issuance and sale of such securities to the Buyer is exempt pursuant to
Section 4(2) of the 1933 Act and/or Regulation D promulgated under the 1933
Act, and that the reliance of Seller on such exemptions is predicated in
part on the Buyer's representations, warranties, covenants and
acknowledgments set forth in this Section 3.
3.1 AUTHORIZATION. If Buyer is a corporation, it represents and
warrants to Seller that it is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation; that it was not organized for the specific purpose of
purchasing the Shares of Common Stock to be purchased by it hereunder; that
it has full corporate power and authority to enter into this Agreement and
to carry out its obligations hereunder; that the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of such Buyer, which
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authorization remains in full force and effect and has not been modified or
amended by any subsequent action of such Board of Directors, and no other
corporate actions or proceedings on the part of such Buyer are necessary to
authorize this Agreement or the transactions contemplated hereby; and that
the transactions contemplated hereby will not violate any of the provisions
of such Buyer's Certificate of Incorporation or By-Laws. Buyer represents
and warrants to the Seller that this Agreement constitutes the valid and
binding obligation of such Buyer, enforceable in accordance with its
respective terms except to the extent that enforceability may be limited by
equity, bankruptcy, insolvency and other laws of general application
affecting the rights and remedies of creditors.
3.2 NO VIOLATION. Buyer represents and warrants to Seller that the
execution, delivery and performance by it of this Agreement and the
consummation by it of the transactions contemplated hereby do not require
the consent, waiver, approval, license or authorization of or filing of any
notice or report with any person or public authority, and will not violate,
result in a breach of or the acceleration of any obligation under, or
constitute a default under, any provision of any indenture, mortgage, lien,
lease, agreement, contract, instrument, order, judgment, decree, law,
ordinance or regulation to which any of its property is subject or by which
it is bound or result in the creation or imposition of any lien, claim,
charge, restriction, equity or encumbrance of any kind whatsoever upon, or
give to any other person any interest or right in or with respect to, any
of its properties, assets, business, agreements or contracts.
3.3 PURCHASE WITHOUT VIEW TO DISTRIBUTE. Buyer represents and
warrants to Seller that the Shares of Common Stock being purchased by it
are being acquired for its own account, not as a nominee or agent, and not
with a view to resale or distribution within the meaning of the 1933 Act
and the rules and regulations thereunder.
3.4 RESTRICTIONS ON TRANSFER.
(a) Buyer (i) acknowledges that the Securities are not registered
under the 1933 Act and that the Securities must be held indefinitely by it
unless they are subsequently registered under the 1933 Act or an exemption
from registration is available, (ii) is aware that any routine sales of ths
and in accordance with the terms and conditions of that Rule and that in
such cases where the Rule is not applicable, compliance with some other
registration exemption will be required, (iii) is aware that Rule 144 is
not presently available for use by Buyer for resale of any such Securities
and that there can be no assurance that Rule 144 will be available at any
time in the future, (iv) is aware that, except as provided in Section 5
hereof, Seller is not obligated to register under the 1933 Act any sale,
transfer or other disposition of the Securities, (v) is aware that Seller
shall not be required to register the transfer of the Securities on the
books of Seller unless Seller shall have been provided with an opinion of
counsel satisfactory to it prior to such transfer to the effect that
registration under the 1933 Act or any applicable state securities law is
not required in connection with the transaction resulting in such transfer,
and (vi) is aware that the Securities, and each certificate representing
the Securities and any shares of Common Stock or other securities issued in
respect of such Securities upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
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otherwise permitted by paragraph (b) of this Section 3.4) be stamped or
otherwise imprinted with the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNDER
APPLICABLE STATE SECURITIES LAWS."
(b) The restrictions on the transferability of the Securities shall
cease and terminate when such Securities shall have been registered under
the 1933 Act and sold or otherwise disposed of in accordance with the
intended method of disposition by the seller or sellers thereof set forth
in the registration statement covering such Securities, or when such
Securities are transferable in accordance with the provisions of Rule
144(k) promulgated under the 1933 Act. Whenever the restrictions on
transfer shall terminate as hereinabove provided with respect to any of the
Securities, the holder of any such Securities bearing the legend set forth
in paragraph (a) of this Section 3.4 as to which such conditions shall have
terminated shall be entitled to receive from Seller, without expense
(except for the payment of any applicable transfer tax) and as
expeditiously as possible, new stock certificates not bearing such legend.
3.5 ACCESS TO INFORMATION. Each Buyer acknowledges that it has been
provided with a copy of the Memorandum (including the SEC Reports) and has
carefully reviewed the same. Buyer further acknowledges that Seller has
made available to it the opportunity to ask questions of and receive
answers from Seller's officers and directors concerning the terms and
conditions of the Offering and the business and financial condition of the
Seller, and to acquire, and each Buyer has received to its satisfaction,
such information about the business and financial condition of Seller and
the terms and conditions of the offering as it has requested.
3.6 NO OTHER REPRESENTATIONS. No oral or written representations have
been made to Buyer in connection with Buyer's acquisition of the Shares of
Common Stock which were in any way inconsistent with the information
reviewed by Buyer. Buyer acknowledges that no representations or
warranties of any type or description have been made to it by any person
with regard to Seller, its business, propertipresentations and warranties
set forth in Section 2 hereof.
3.7 INDEPENDENT DECISION. Buyer is not relying on Seller or on any
legal or other opinion in the materials reviewed by Buyer with respect to
the financial or tax considerations of Buyer relating to its investment in
the Shares of Common Stock. Buyer has relied solely on the
representations, warranties, covenants and agreements of Seller in this
Agreement and on its examination and independent investigation in making
its decision to acquire the Shares of Common Stock.
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3.8 ADDITIONAL REPRESENTATIONS OF BUYER. Buyer represents that (i) it
is an "accredited investor" as such term is defined in Rule 501 promulgated
under the 1933 Act (a copy of which is attached hereto as Exhibit B), (ii)
its financial situation is such that it can afford to bear the economic
risk of holding the Securities for an indefinite period of time and suffer
complete loss of its investment in the Securities, (iii) it has the funds
necessary to purchase the Shares of Common Stock immediately available to
it and (iv) its knowledge and experience in financial and business matters
are such that it is capable of evaluating the merits and risks of its
purchase of the Shares of Common Stock as contemplated by this Agreement.
SECTION 4. COVENANTS OF SELLER.
4.1 CONSUMMATION OF AGREEMENTS. Seller shall perform and fulfill all
conditions and obligations on its part to be performed and fulfilled under
the Agreements, to the end that the transactions contemplated by the
Agreements shall be carried out. To this end, Seller will obtain all
necessary authorizations or approvals of its Board of Directors to the
execution and performance of the Agreements, which shall include as
integral parts thereof the issuance to Buyer of the Securities upon the
terms and conditions set forth in the Agreements.
4.2 COMPLIANCE WITH REGULATION D. Seller agrees to file a Form D with
the SEC within fifteen days of the date of the Closing and to file, on a
timely basis, any amendments or supplements to such Form D as may be
required under Regulation D promulgated under the 1933 Act. Seller also
agrees to comply with the filing requirements of state securities laws
applicable to the sale of the Shares of Common Stock hereunder.
SECTION 5. REGISTRATION.
5.1 DEFINITIONS. As used herein:
(a) The terms "register," "registered" and "registration" refers to a
registration effected by preparing and filing a registration statement in
compliance with the 1933 Act and the declaration or ordering of the
effectiveness of such registration statement.
(a) For the purposes hereof, the term "Registrable Securities" means
the shares of Common Stock and any stock issued in respect of the shares of
Common Stock as a result of a stock split, stock dividend, recapitalization
or combination.
(a) The terms "Holder" or "Holders" mean any person or persons to whom
Registrable Securities were originally issued or qualifying transferees
under Section 5.6 hereof who hold Registrable Securities.
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5.2 FILING OF REGISTRATION STATEMENT. Within 45 days after the Closing
Date, the Seller will prepare and file a Registration Statement on Form S-3
(the "Registration Statement") with the SEC in order to register the sale
of the Registrable Securities by Buyers from time to time through
underwriters, agents or otherwise, in negotiated or market transaction or
through NASDAQ or the facilities of any national securities exchange on
which the Common Stock is then traded or in privately negotiated
transactions. Seller will use its best efforts to obtain a declaration of
effectiveness of such Registration Statement before the expiration of 120
days from the Closing Date and take all actions incidental thereto
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under the applicable
blue sky or other state securities laws and appropriate compliance with
exemptive regulations issued under the 1933 Act and any other governmental
requirements or regulations) as may be necessary to permit or facilitate
the public sale and distribution of the Registrable Securities by the
Holders.
5.3 EXPENSES OF REGISTRATION. All expenses incurred in connection with
any registration pursuant to this Section 5, including without limitation,
all registration, filing and qualification fees (including those
attributable to the Registrable Securities), printing expenses, fees and
disbursements of counsel for Seller and expenses of any comfort letters or
special audits of Seller's financial statements incidental to or required
by such registration shall be borne by Seller (excluding underwriting
discounts and selling commissions payable with respect to the sale of
Registrable Securities and fees of the Holders' counsel).
5.4 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Seller pursuant to this Section
5, Seller will, at its expense:
(a) keep such registration statement effective and file any necessary
post-effective amendments and use its best efforts to maintain the
effectiveness thereof until the earlier of (i) such time as Seller
reasonable determines, based upon an opinion of counsel, that the Holders
will be eligible to sell all of the Registrable Securities then owned by
the Holders without registration in the open market in compliance with the
1933 Act and without regard to volume restrictions or (ii) for a period of
36 months from the date of effectiveness of the Registration Statement.
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement as may be necessary to keep such registration,
qualification or compliance effective and comply with the provisions of the
1933 Act with respect to the disposition of all securities covered thereby
during the applicable period;
(c) update, correct, amend and supplement such registration,
qualification or compliance as necessary;
(d) furnish such number of preliminary and final prospectuses and
other documents incident thereto as a Holder from time to time may
reasonably request;
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(e) register or qualify such Registrable Securities for offer and sale
under the Blue Sky or securities laws of such jurisdictions as any Holder
may reasonable designate to enable it to consummate the disposition of the
Registrable Securities in such jurisdiction, except that Seller shall not
be required in connection therewith or as a condition thereof to qualify as
a foreign corporation or to execute a general consent to service of process
in any State;
(f) file all reports required to be filed by it under the 1933 Act or
the 1934 Act and the rules and regulations adopted by the SEC thereunder,
all to the extent required to enable each such Buyer to sell the
Registrable Securities without registration under the 1933 Act pursuant to
(i) Rule 144 adopted by the SEC under the 1933 Act, as such rule may be
amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC;
(g) take all action necessary to render the Registrable Securities
eligible for inclusion on NASDAQ for trading thereon; and
(h) upon the sale of any Registrable Securities pursuant to such
Registration Statement remove all restrictive legends from all certificates
or other instruments evidencing the Registrable Securities.
5.5 FURTHER INFORMATION. If Registrable Securities owned by a Holder are
included in the Registration Statement, such Holder shall furnish to Seller
such information regarding itself as Seller may reasonable request and as
shall be required in connection with any registration, qualification or
compliance referred to in this Section 5.
SECTION 6. INDEMNIFICATION.
6.1 INDEMNIFICATION OF BUYER. Seller agrees to indemnify and hold
harmless, to the extent permitted by law, Buyer against any and all losses,
claims, damages, liabilities and expenses caused by (i) any breach of the
representations, warranties, covenants and agreements of Seller contained
in the Agreements; or (ii) any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or
preliminary prospectus filed pursuant to Section 5 hereof or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same are caused by or contained in any information furnished
in writing to Seller by Buyer expressly for use in such registration
statement or prospectus.
6.2 INDEMNIFICATION OF SELLER. Buyer agrees to furnish to Seller in
writing such information and affidavits as Seller reasonably requests for
use in connection with any registration statement or prospectus and agrees
to indemnify and hold harmless, to the extent permitted by law, Seller, its
directors and officers and each person who controls Seller (within the
meaning of the 0000 Xxx) against any and all losses, claims, damages,
liabilities and expenses caused by (i) any breach of the representations,
warranties, covenants, and agreements of Buyer contained in this Agreement;
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or (ii) any untrue or alleged untrue statement of material fact or any
omission of a material fact required to be stated in any registration
statement, prospectus or preliminary prospectus filed pursuant to Section 5
hereof or necessary to make the statements therein not misleading, but only
to the extent that such untrue or alleged untrue statement or omission is
contained or omitted in any information or affidavit so furnished in
writing by such Buyer, and in no event will Buyer be obligated to indemnify
Seller, its directors, officers or any person who controls Seller in an
amount in excess of the proceeds to be derived from the sale of Securities
in the offering giving rise to a claim for indemnification.
6.3 DEFENSE OF ACTION. Any person entitled to indemnification hereunder
will (i) give prompt notice to the indemnifying party of any claim with
respect to which it seeks indemnification; and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit the indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is not assumed, the indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim.
SECTION 7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS.
7.1 CONDITIONS. The obligations of Buyer to consummate the Agreements
and the transactions contemplated hereby are subject to the satisfaction of
the following conditions on or prior to the Closing Date except to the
extent that any such condition can be and is waived by Buyer:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of Seller contained in Section 2 hereof
shall be true and correct in all material respects as though made at the
time of and as of the Closing Date; Seller shall, at or before the Closing
Date, have performed all of its obligations hereunder which by the terms
hereof are to be performed on or before the Closing Date, and Seller shall
have delivered to Buyer a Certificate of its President or Vice President
dated as of the Closing Date to the foregoing effect.
(b) OPINION OF COUNSEL. At each Closing, Seller's General Counsel
shall have issued to Buyer an opinion of counsel as to this transaction's
compliance with or exemption from federal and applicable state securities
laws and as to such other matters as are customarily included in opinions
relating to transactions of this kind in form reasonably satisfactory to
Buyer.
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SECTION 8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
8.1 CONDITIONS. The obligations of Seller to consummate the Agreements
and the transactions contemplated hereby are subject to the satisfaction of
the following conditions on or prior to the Closing Date except to the
extent that any such condition can be and is waived by Seller:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of Buyer contained in Section 3 hereof shall
be true and correct in all material respects as though made at the time of
and as of the Closing; Buyer shall, at or before the Closing, have
performed all of its obligations hereunder which by the terms hereof are to
be performed on or before the Closing. Unless Seller receives written
notification to the contrary at the Closing, Seller shall be entitled to
assume the preceding is accurate at the Closing.
(b) MINIMUM SALES OF SHARES OF COMMON STOCK. Seller shall have
received the Aggregate Purchase Price for the shares of Common Stock sold
as of the Closing Date.
SECTION 9. MISCELLANEOUS.
9.1 LAW GOVERNING. This Agreement shall be construed under and
governed by the laws of the State of California applicable to contracts
made and to be fully performed therein.
9.2 BROKER OR FINDER. Buyer represents and warrants that no broker or
finder has acted for such party in connection with this Agreement or the
transactions contemplated by this Agreement and that no broker or finder is
entitled to any broker's or finder's fee or other commission in respect
thereof based in any way on agreements, arrangements or understandings made
by Buyer.
9.3 NOTICES. All notices, requests, demands or other communications
hereunder shall be deemed to have been duly given if delivered or mailed by
certified or registered mail if to Seller at 0000 Xxxx Xxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000, Attn: Chief Executive Officer, and if to the
Buyer at the address set forth on the signature page hereto, or to such
other address of which either party may notify the other party.
9.4 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Notwithstanding any investigation made by any party to this Agreement, all
representations, warranties, covenants and obligations made by Seller and
Buyer herein shall survive the execution of this Agreement and the sale and
delivery of the Shares of Common Stock.
9.5 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules referred to herein, is complete and all promises,
representations, understandings, warranties and agreements with reference
to the subject matter hereof, and all inducements to the making of this
Agreement relied upon by either party hereto, have been expressed herein or
in such exhibits and schedules.
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9.6 ASSIGNABILITY. This Agreement may not be assigned by either Buyer
or Seller without the prior written consent of the other party. This
Agreement shall be enforceable by and shall inure to the benefit of and be
binding upon the parties hereto and their successors and no others.
9.7 FEES AND EXPENSES. Each of the parties will bear its own expenses
in connection with the negotiation and consummation of the transactions
contemplated by this Agreement.
9.8 PUBLICITY AND DISCLOSURE. Except as may be required by federal
securities laws, no press release or public disclosure, either written or
oral, of the transactions contemplated by this Agreement, shall be made by
Buyer hereto without the prior approval of Seller.
9.9 COUNTERPARTS. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
9.10 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, any
provision in any of the Agreements may be amended or waived only if Seller
shall obtain the written consent of the holders of a majority in interest
of the Shares of Common Stock purchased from Seller pursuant to the
Agreements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date set forth above.
THERMOGENESIS CORP.
By:____________________________
Xxxxxx X. Xxxxxx, President & CEO
_____________________________
PRINT NAME OF BUYER
_____________________________
SIGNATURE OF BUYER
_____________________________
_____________________________
[Principal Address of Buyer]
_________________________
[Tax Identification Number]
Number of Shares of Common Stock
to be Purchased:
Price per share: $2.50
Aggregate Purchase
Price:
ADDENDUM TO STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT made as of December 31, 1997 by and between
THERMOGENESIS CORP., a Delaware corporation ("Seller") and the undersigned
investor ("Buyer"), is amended as follows. All capitalized terms not
otherwise defined herein shall have the meaning ascribed to such term in
the STOCK PURCHASE AGREEMENT.
1. Section 1.1 of the STOCK PURCHASE AGREEMENT is amended to read as
follows in its entirety:
1.1. PURCHASE AND SALE OF SECURITIES. In reliance upon the
representations and warranties made herein and subject to the terms
and conditions hereof, Buyer intending to be legally bound hereby
agrees to purchase from Seller and Seller agrees to issue and sell
Buyer on the Closing Date the number of shares equal to ten percent
(10%) of the number of Shares of Common Stock purchased by such Buyer
in the Offering (collectively referred to herein as the "Common
Stock") set forth beneath Buyer's name on the signature page, at the
Purchase Price per share of Common Stock. The three year warrant will
be exercisable at $3.00 per share, but may not be exercised until such
time as the shares of Common Stock underlying the warrant are
registered with the SEC, as provided in Section 5.2. A copy of the
Form of warrant is attached as Exhibit A to the STOCK PURCHASE
AGREEMENT.
Seller proposes to enter into this same form of purchase agreement
with certain other investors (the"Other Buyers") and expects to
complete sales of the shares of Common Stock to them. The Buyer and
the Other Buyers are hereinafter sometimes referred to as the "Buyers."
and this Agreement and the agreements executed by the Other Buyers are
hereinafter sometimes referred to as the "Agreements." The shares of
Common Stock, the three year warrant and the shares of Common Stock
underlying the warrant are hereinafter sometimes referred to as the
"Securities."
To the extent consistent with the Seller's obligation to deliver a
three year warrant, as described in this Section 1.1., the remaining
terms and provisions of the STOCK PURCHASE AGREEMENT are also amended,
as appropriate, to include the warrant and the shares of common stock
underlying the warrant as part of the definition of "Common Stock".
2 . Section 1.3 of the STOCK PURCHASE AGREEMENT is amended to read as
follows in
its entirety.
1.3. TIME AND PLACE CLOSING. The Securities will be sold in one or
more closings at such place, date and time as may be fixed by mutual
agreement of Gruntal & Co., L.L.C., the placement agent for the shares
of Common Stock, and Seller (each such date referred to herein as the
"Closing Date"); provided, however, that the final Closing shall be no
later than December 31, 1997.
3. Section 5.2 of the STOCK PURCHASE AGREEMENT is amended to read as
follows in its entirety:
5.2. FILING OF REGISTRATION STATEMENT. Within 45 days after the
Closing Date, the Seller will prepare and file a Registration
Statement on Form S-3 (the "Registration Statement") with the SEC in
order to register the sale of the Registrable Securities by Buyers
from time to time through underwriters, agents or otherwise, in
negotiated or market transaction or through NASDAQ or the facilities
of any national securities exchange on which the Common Stock is then
traded or in privately negotiated transactions. Seller will use its
best efforts to obtain a declaration of effectiveness of such
Registration Statement before the expiration of 120 days from the
Closing Date and take all actions incidental thereto (including,
without limitation, the execution of an undertaking to file post-
effective amendments, appropriate qualifications under the applicable
blue sky or other state securities laws and appropriate compliance
with exemptive regulations issued under the 1933 Act and any other
governmental requirements or regulations) as may be necessary to
permit or facilitate the public sale and distribution of the
Registrable Securities by the Holders. If Seller does not cause the
Registration Statement to be filed with the SEC within the 45 day
period provided, then Seller shall cause to be issued to each Buyer a
five year warrant representing the right to acquire an additional
amount of Common Stock equal to five percent (5%) of the number of
shares of Common Stock purchased by such Buyer hereunder. The warrant
shall be exercisable at a price of $2.50 per share upon registration
of the shares underlying the warrant with the SEC.
4. All other terms, covenants, representations and warranties in the
STOCK PURCHASE AGREEMENT shall remain in full force and effect, and are not
changed by this Addendum.
