EXHIBIT 7
SUBSCRIPTION AGREEMENT
AS INDICATED ON THE SIGNATURE PAGE TO THIS SUBSCRIPTION AGREEMENT, THE
EXECUTION OF THIS SUBSCRIPTION AGREEMENT BY AN INVESTOR SHALL ALSO
SERVE AS A COUNTERPART SIGNATURE TO THE REGISTRATION RIGHTS AGREEMENT
CONTAINED IN APPENDIX C TO THE PRIVATE PLACEMENT MEMORANDUM OF WHICH
THIS SUBSCRIPTION AGREEMENT IS A PART.
THE SECURITIES ACQUIRED PURSUANT TO THIS SUBSCRIPTION
AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS, NOR HAVE THE
SECURITIES BEEN REGISTERED WITH ANY STATE SECURITIES
COMMISSION. THE REPRESENTATIONS MADE HEREIN WILL BE RELIED
UPON BY THE COMPANY IN COMPLYING WITH ITS OBLIGATIONS UNDER
APPLICABLE SECURITIES LAWS. THE SECURITIES MAY NOT BE
TRANSFERRED OR SOLD OR OFFERED FOR SALE OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN ABSENCE OF SUCH
REGISTRATION OR QUALIFICATION OR AN EXEMPTION THEREFROM
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS.
. Subscription. Biofield Corp. (the "Company") is offering
(the "Offering") shares of its Common Stock, par value $.001 per share
(the "Common Stock"), to accredited investors on the terms and
conditions described in the Confidential Private Placement Memorandum,
dated October 24, 1997, including the appendices thereto, as it may be
supplemented and amended from time to time (the "Memorandum"). The
undersigned, on behalf of itself and certain affiliates of the Xxxxxxx
Xxxxx Group, L.P. (together with the undersigned, the "GS Parties"),
hereby agrees to invest, in the aggregate, not less than $1 million in
the Offering if at least $6 million is invested in the Offering by
other investors, and agrees to invest, in the aggregate, not less than
$1.5 million in the Offering if at least $7 million is invested in the
Offering by other investors and not less than $2 million in the
Offering if at least $8 million is invested in the Offering by other
investors. The GS Parties hereby, jointly and severally, subscribe for
an aggregate of 730,157 shares of Common Stock at a price of $3.15 per
share.
Payment in full to the Company is tendered with this subscription
by wire transfer for the full purchase price of the Shares delivered
to the Company. Upon receipt, the Company will promptly forward all
subscription proceeds to an escrow account. All subscription proceeds
will be deposited and held in such account pending the closing of the
purchase. Upon receipt of notice from the Company that the closing is
being held, The Chase Manhattan Bank (the "Escrow Agent") will release
the subscription funds to the Company. If subscriptions for a minimum
of $7,000,000 of aggregate gross proceeds from the Offering are not
delivered on or before December 31, 1997 (subject to extension for up
to 30 days) or if the Offering is otherwise terminated or withdrawn,
the Company will promptly return to the GS Parties such subscription
proceeds held by the Escrow Agent in the escrow account, without
interest. The GS Parties acknowledge that this subscription shall not
become effective until it has been properly executed by the
undersigned and accepted by the Company.
THE COMPANY MAY REJECT THIS SUBSCRIPTION IN WHOLE OR IN PART FOR
ANY REASON AND AT ANY TIME PRIOR TO ACCEPTANCE. IN THE EVENT THE
COMPANY REJECTS THIS SUBSCRIPTION IN WHOLE OR IF A CLOSING IS NOT HELD
ON OR BEFORE DECEMBER 31, 1997 (SUBJECT TO EXTENSION FOR UP TO 30
DAYS), ALL OF THE OBLIGATIONS OF THE UNDERSIGNED AND THE COMPANY UNDER
THIS AGREEMENT SHALL TERMINATE.
. Confidential Private Placement Memorandum and SEC Filings.
The undersigned acknowledges receipt of the Memorandum and the
publicly filed reports (the "Public Filings") of the Company attached
as Appendix A thereto. The undersigned has received no offering
materials other than the Memorandum and the Public Filings. The
undersigned further acknowledges that it or its representative has
read carefully and is familiar with the Memorandum and the Public
Filings and has had a reasonable opportunity to ask questions and,
prior to its execution of this Agreement, was given full access to all
information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to verify the
accuracy of information furnished to the undersigned, and all such
questions, if asked, have been answered satisfactorily and such
documents, if examined, have been found to be fully satisfactory. The
undersigned further acknowledges that, in making its investment
decision, it is relying upon its own investment judgment and the
Memorandum and Public Filings. No other representations have been made
to, or authorized to be made to, the undersigned.
. Representations and Warranties of the Undersigned. The
undersigned, on behalf of itself and the other GS Parties, hereby
represents and warrants to the Company as follows:
() The Shares are being subscribed for by the undersigned,
and each of the other GS Parties, each for its own account, for
investment only and not presently with a view toward resale or
distribution in a manner which would require registration of the
Shares under the Securities Act and will not be transferred by the
undersigned, or any of the other GS Parties, in violation of the
Securities Act and the rules and regulations promulgated thereunder or
applicable state securities laws.
() The undersigned, and each of the other GS Parties, if a
corporation, partnership, trust or other form of business entity, is
authorized and otherwise duly qualified to purchase and hold the
Shares. Such entity's principal place of business is as set forth on
the signature page hereof and if such entity has been formed for the
specific purpose of acquiring the Shares subscribed to hereunder, it
hereby agrees to supply any additional written information that may be
required by the Company.
() The undersigned, and each of the other GS Parties, is
an "Accredited Investor" as that term is defined in Rule 501 under the
Securities Act. The particular category or categories within which the
undersigned, and each of the other GS Parties, falls is marked with an
(X) in each of the applicable spaces provided.
____ (i) A bank as defined in Section 3(a)(2) of the
Securities Act, or a savings and loan
association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether
acting in its individual or fiduciary capacity;
____ (ii) A broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of
1934, as amended;
____ (iii) An insurance company as defined in Section
2(13) of the Securities Act;
____ (iv) An investment company registered under the
Investment Company Act of 1940 or a business
development company as defined in Section
2(a)(48) of that Act;
____ (v) A Small Business Investment Company licensed
by the United States Small Business
Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958;
____ (vi) A plan established and maintained by a
state, its political subdivisions, or any agency
or instrumentality of a state or its political
subdivisions for the benefit of its employees,
if such plan has total assets in excess of
$5,000,000;
____ (vii) An employee benefit plan within the
meaning of the Employee Retirement Income
Security Act of 1974, as amended, if the
investment decision is made by a plan fiduciary,
as defined in Section 3(21) of such Act, which
is either a bank, savings and loan association,
insurance company or registered investment
adviser, or if the employee benefit plan has
total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions
made solely by persons that are Accredited
Investors;
____ (viii) A private business development company as
defined in Section 202(a)(22) of the Investment
Advisors Act of 1940;
____ (ix) An organization described in Section
501(c)(3) of the Internal Revenue Code of 1986,
as amended, corporation, Massachusetts or
similar business trust, or partnership, not
formed for the specific purpose of acquiring the
securities offered, with total assets in excess
of $5,000,000;
____ (x) A director, executive officer, or general
partner of the issuer of the securities being
offered or sold, or director, executive officer,
or general partner of a general partner of that
issuer;
____ (xi) A natural person whose individual net
worth, or joint net worth with that person's
spouse, at the time of his purchase exceeds
$1,000,000;
____ (xii) A natural person who had an individual
income in excess of $200,000 in each of the two
most recent years or joint income with that
person's spouse in excess of $300,000 in each of
those years and has a reasonable expectation of
reaching the same income level in the current
year;
____ (xiii) A trust, with total assets in excess of
$5,000,000, not formed for the specific purpose
of acquiring the securities offered, whose
purchase is directed by a sophisticated person
who has such knowledge and experience in
financial and business matters that such person
is capable of evaluating the risks and merits of
an investment in the Shares (as described in
ss.230.506(b)(2)(ii) promulgated under the
Securities Act); or
____ (xiv) An entity in which all of the equity owners
are Accredited Investors.
() The undersigned, and each of the other GS Parties,
understands that the Shares have not been registered under the
Securities Act. The undersigned, and each of the other GS Parties, is
fully aware of the restrictions on sale, transferability and
assignment of the Shares as set forth in the certificates of such
Shares, that the undersigned must bear the economic risk of the
undersigned's investment in the Company and that the Shares cannot be
offered or sold unless they are subsequently registered under the
Securities Act or an exemption from such registration is available.
The undersigned, and each of the other GS Parties, further understands
that the Shares will bear an appropriate legend to this effect.
() The undersigned, and each of the other GS Parties, is
aware of the following:
() The Shares are speculative investments which
involve a high degree of risk; and
() There are substantial restrictions on the
transferability of the Shares and the
undersigned agrees to be responsible for
compliance with all conditions on transfer
imposed by any state blue sky or securities law.
The foregoing representations and warranties are true and
accurate as of the date of delivery of the funds to the Company and
shall survive such delivery. If, in any respect, such representations
and warranties shall not be true and accurate prior to delivery of
funds, the undersigned shall give written notice of such fact to the
Company, specifying which representations and warranties are not true
and accurate and the reasons therefore.
. Representations and Warranties of the Company. The Company
hereby represents and warrants to the undersigned that the Shares,
when issued and delivered to and paid for by the undersigned, and/or
the other GS Parties, as provided herein, will have been duly
authorized and will be validly issued, fully paid and nonassessable.
. Transferability. Neither the undersigned, nor any of the
other GS Parties, will transfer or assign this Agreement, or any
interest of the undersigned, or of the other GS Parties, herein.
. Revocation. The undersigned will not cancel, terminate or
revoke this Agreement or any agreement made by the undersigned
hereunder and this Agreement shall survive the death or disability of
the undersigned, except as provided herein.
. High Risk. The undersigned, on behalf of itself and the
other GS Parties, warrants and represents that it, and each of the
other GS Parties, has such knowledge and experience in financial and
business matters, that it is capable of evaluating the merits and
risks of an investment in the Company, and that the undersigned, and
each of the other GS Parties, is able to bear the economic risks of
the investment for an indefinite period of time and at the present
time could afford a complete loss of such investment.
. Registration Rights. Upon the terms and subject to the
conditions of the Registration Rights Agreement (as defined in the
Memorandum) which has been provided to the Subscriber, the Company
shall prepare and file with the Securities and Exchange Commission as
soon as reasonably practicable after the closing of the Offering, a
registration statement on Form S-3 covering resale of the Shares, and
the Company shall use its best efforts to cause such registration
statement to become effective as soon as reasonably practicable and,
in any event, within seventy-five (75) days following such closing.
. Miscellaneous.
() All notices or other communications given or made
hereunder shall be in writing and shall be delivered or mailed by
registered or certified mail, return receipt requested, postage
prepaid, to the undersigned or the other GS Parties, at the address
set forth on the signature page hereto and to the Company at:
Biofield Corp.
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxxxxx
() This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Delaware without
giving effect to the principles of conflicts of law thereof.
() This Agreement together with the Registration Rights
Agreement and the Memorandum constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and may
be amended only by writings executed by all parties.
. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall constitute an original but all of
which taken together shall constitute one agreement.
. Third Party Beneficiary. The undersigned, on behalf of
itself and the other GS Parties, understands and agrees that Xxxxxxxxx
& Xxxxx LLC, as placement agent for the Offering (the "Placement
Agent"), is intended to be a third party beneficiary of the
representations and warranties of the undersigned, on behalf of itself
and the other GS Parties, contained in this Subscription Agreement,
that the Placement Agent shall be entitled to rely upon such
representations and warranties in connection with the Offering and
that such representations and warranties shall survive the closing of
the Offering.
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
The undersigned hereby executes this Agreement as of the date set
forth below. The undersigned's execution of this Agreement shall also
serve as a counterpart signature to the Registration Rights Agreement
contained in Appendix C to the Memorandum.
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., its general partner
Dated December 17, 1997 By: GS Advisors, Inc., its general partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
ADDRESS: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
ACCEPTED:
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Dated: December 17, 1997
