Exhibit 10.41
POLAR MOLECULAR CORPORATION
BRIDGE SECURITIES PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of the 30th day of January, 2001 by and
among Polar Molecular Corporation, a Utah corporation ("PMC"), and the investors
listed on Schedule A hereto, each of which is herein referred to as an
"Investor."
RECITALS:
A. PMC has engaged APS Financial Corporation ("APSF") to assist PMC in
raising additional capital. Pursuant to an engagement letter between PMC and
APSF, APSF has agreed to proceed with an immediate financing pursuant hereto
(the "Bridge Financing") and contemplates assisting with a second offering of
approximately $4,000,000 in the first quarter of 2001 (the "Secondary
Placement").
B. The Investors hereby agree to provide the Bridge Financing upon the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties agree as follows.
1. Purchase of Bridge Securities. Subject to the terms and conditions of
this Agreement and based upon the warranties and representations herein
contained, PMC agrees to sell to the Investors, a maximum of 32 units of PMC's
securities (the "Bridge Securities"), each unit consisting of 250 shares of
PMC's 10% Cumulative Redeemable Series B Preferred Stock (the "Series B
Preferred Stock") and 1 common stock purchase warrant to purchase 247,071 shares
of common stock (the "Bridge Warrant"). Each Unit will be sold for $25,000 for a
maximum offering of $800,000 if all 32 units are sold. Schedule A shows the
number of Units and aggregate purchase price paid by each Investor. The Series B
Preferred Stock will be issued in accordance with the Terms and Designations of
Series B Preferred Stock of PMC in the form attached hereto as Exhibit 1A and
the Bridge Warrant will be in the form attached hereto as Exhibit 1B. Subject in
part to the truth and accuracy of each Investor's representations set forth in
Section 3 of this Agreement, the offer, sale and issuance of the Series B
Preferred Stock as contemplated by this Agreement are exempt from the
registration requirements of any applicable state and federal securities laws,
and neither PMC nor any authorized agent acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
2. Representations and Warranties of PMC. PMC represents and warrants that,
except as set forth in the attached Schedule of Exceptions:
2.01. Organization and Good Standing. PMC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah and
has all requisite corporate power and is duly authorized, qualified, franchised
and licensed under all applicable laws, regulations, ordinances and orders of
public authorities to own its properties and assets and to carry on its business
as it is presently being conducted.
2.02. Articles and Bylaws. Attached hereto as Exhibit 2.02A is a copy of
PMC's Articles of Incorporation as they will be in effect at the closing of the
sale of the Bridge Securities (the "Closing"). Exhibit 2.02A includes the
provisions set forth in the attached Exhibit 1A. Attached hereto as Exhibit
2.02B is a copy of PMC's Bylaws as they will be in effect at the Closing. The
attached Exhibits 2.02A and 2.02B are complete and accurate copies of PMC's
Articles of Incorporation and Bylaws as will be in effect as of the Closing.
Those documents have been approved by all needed action of PMC's shareholders
and/or Board of Directors.
2.03. Authorization. The Board of Directors of PMC has approved this
Agreement and the agreements referred to in Section 5, including without
limitation, those agreements referred to in Sections 5.03, 5.08, 5.09 and 5.10
(this Agreement and those other agreements are collectively referred to herein
as the "Bridge Financing Agreements") and the transactions contemplated hereby
and thereby and has authorized the execution and delivery of this Agreement and
the other Bridge Financing Agreements by PMC. PMC has full power, authority and
legal right to enter into this Agreement and the other Bridge Financing
Agreements and to consummate the transactions contemplated therein. This
Agreement and the other Bridge Financing Agreements constitute legal, valid and
binding obligations of PMC enforceable in accordance with their terms. except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
2.04. Capitalization. The authorized capital stock of PMC consists of
150,000,000 shares of common stock, with $.001 par value and 10,000,000 shares
of preferred stock with $.001 par value. All outstanding shares are duly
authorized, fully paid, validly issued and nonassessable in accordance with
applicable law. Attached hereto as Exhibit 2.04 is a schedule showing all of the
currently outstanding shares of common stock and all shares of common stock that
are issuable upon the exercise of outstanding common stock warrants, options,
conversion and other acquisition rights of any kind (including without
limitation, royalties, debt, interest, compensation, Series A Preferred Stock
and consulting related conversion into equity) and all shares issuable upon a
proposed new officer and director options plan. Other than as set forth on
Exhibit 2.04 or as required pursuant to the Bridge Financing Agreements or any
agreements between PMC and APSF, PMC has no commitments or obligations to issue
any other shares of its common stock. Prior to the Closing, all shares of Series
A Preferred Stock and warrants sold with those shares of Series A Preferred
Stock will be converted into common stock so that there will be no shares of
Series A Preferred Stock outstanding and the former holders of the Series A
Preferred Stock will have no further rights with respect to those shares of
Series A Preferred Stock or those warrants. Because the shares that may be
issuable as shown on Exhibit 2.04 exceeds the currently authorized shares of
common stock, some of those shares will not be able to be issued until after the
amendment to PMC's Articles of Incorporation to be approved pursuant to Section
4.01. PMC will issue as many of those shares as possible before that amendment
to PMC's Articles of Incorporation but Exhibit 2.04 shows which of those shares
(the "Deferred Shares") will not be issued until after that amendment.
Accordingly, with respect to any provision of this Agreement that requires any
of the Deferred Shares to be issued by a
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certain date, that specified date will be extended until that amendment to PMC's
Articles is effective if those Deferred Shares cannot be issued prior to that
amendment.
2.05. Existing Indebtedness. Attached hereto as Exhibit 2.05 is a list
(showing the payee, amount of debt and type of debt) of all existing debt of
PMC, other than accounts payable.
2.06. Subsidiaries. PMC does not own, directly or indirectly, any interest
or investment, whether equity or debt, in any corporation, business, trust or
other entity.
2.07. Litigation. There is no action, suit, proceeding or investigation
pending or, to PMC's knowledge, currently threatened against PMC that questions
the validity of the Bridge Financing Agreements, or the right of PMC to enter
into such agreements, or to consummate the transactions contemplated hereby or
thereby, or that might result, either individually or in the aggregate, in any
material adverse changes in the assets, condition, affairs or prospects of PMC,
financially or otherwise, or any change in the current equity ownership of PMC,
nor is PMC aware that there is any basis for the foregoing. The foregoing
includes, without limitation, actions, suits, proceedings or investigations
pending or threatened (or any basis therefor known to PMC) involving the prior
employment of any of PMC's employees, their use in connection with PMC's
business of any information or techniques allegedly proprietary to any of their
former employers, or their obligations under any agreements with prior
employers. PMC is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by PMC
currently pending or that PMC intends to initiate.
2.08. Patents and Trademarks. To the best of its knowledge with respect to
copyrights, patents, trademarks, services marks and trade names only, PMC has
exclusive title and ownership of or exclusive licenses to all patents,
trademarks, service marks, trade names, copyrights, trade secrets, information,
proprietary rights and processes necessary for its business as now conducted and
as proposed to be conducted without any conflict with or infringement of the
rights of others. Attached hereto as Exhibit 2.08 is a complete list of
trademarks, copyrights, patents and pending patent applications of PMC showing
the type of right, identifying number (if any), stating whether domestic or
international (identifying countries) and expiration date. That exhibit also
indicates which of those rights were obtained by an assignment. Except as set
forth on Exhibit 2.08, there are no outstanding options, licenses, or agreements
of any kind relating to the foregoing, nor is PMC bound by or a party to any
options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity,
except, in either case, for standard end-user, object code, internal-use
software license and support/maintenance agreements. PMC has not received any
communications alleging that PMC has violated or, by conducting its business as
proposed, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
person or entity. PMC is not aware that any of its employees is obligated under
any contract (including licenses, covenants or commitments of any nature) or
other agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of his or her best
efforts to promote the interests of PMC or that would conflict with PMC's
business as proposed to be conducted. Neither the execution nor delivery of this
Agreement or the other Bridge Financing Agreements, nor the carrying on of PMC's
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business by the employees of PMC, nor the conduct of PMC's business as proposed,
will, to the best of PMC's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated. PMC
does not believe it is or will be necessary to utilize any inventions of any of
its employees (or people it currently intends to hire) made prior to or outside
the scope of their employment by PMC. Upon execution and delivery of the Patent
Assignment and Royalty Release Agreements to be executed pursuant to Section
5.09, PMC will not have any further obligations to pay royalties for the use of
the intellectual property listed in Exhibit 2.08 or any other intellectual
property used in PMC's business as currently conducted or currently contemplated
to be conducted.
2.09. Compliance with Other Instruments. PMC is not in violation or default
of any provision of its Restated Certificate or Bylaws, or of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound, or, to the best of its knowledge, of any provision of any federal or
state statute, rule or regulation applicable to PMC. The execution, delivery and
performance of this Agreement or the other Bridge Financing Agreements, and the
consummation of the transactions contemplated hereby and thereby will not result
in any such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event that results
in the creation of any lien, charge or encumbrance upon any assets of PMC or the
suspension, revocation, impairment, forfeiture, or nonrenewal of any material
permit, license, authorization, or approval applicable to PMC, its business or
operations or any of its assets or properties.
2.10. Agreements: Action.
(a) Except for agreements explicitly contemplated hereby and by the
other Bridge Financing Agreements or as set forth on the Schedule of
Exceptions, there are no agreements, understandings or proposed
transactions between PMC and any of its officers, directors, affiliates, or
any affiliate thereof.
(b) Except as set forth on the Schedule of Exceptions, there are no
agreements, understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which PMC is a party or by which it
is bound that may involve (i) obligations (contingent or otherwise) of, or
payments to PMC in excess of, $5,000 (other than those involving payments
to PMC entered into in the ordinary course of business, regardless of the
amount of such payments, and obligations of PMC not in excess of $5,000
entered into in the ordinary course of business), or (ii) the license of
any patent, copyright, trade secret or other proprietary right to or from
PMC, or (iii) provisions restricting or affecting the development,
manufacture or distribution of PMC's products or services, or (iv)
indemnification by PMC with respect to infringements of proprietary rights.
(c) Except as set forth on the Schedule of Exceptions, PMC has not (i)
declared or paid any dividends or authorized or made any distribution upon
or with respect to any class or series of its capital stock, (ii) incurred
any indebtedness for money borrowed or any other liabilities individually
in excess of $5,000 or, in the case of
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indebtedness and/or liabilities individually less than $5,000, but arising
from a related series of transactions in excess of $25,000 in the
aggregate, (iii) made any loans or advances to any person, other than
ordinary advances for business or travel expenses, or (iv) sold, exchanged
or otherwise disposed of any of its assets or rights, other than the sale
of its inventory in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments,
contracts and proposed transactions involving the same person or entity
(including persons or entities PMC has reason to believe are affiliated
therewith) shall be aggregated for the purpose of meeting the individual
minimum dollar amounts of such subsections.
(e) PMC is not a party to and is not bound by any contract, agreement
or instrument, or subject to any restriction under its Restated Certificate
or Bylaws that adversely affects its business as now conducted or as
proposed to be conducted, its properties or its financial condition.
(f) PMC has not engaged in the past three (3) months in any discussion
(i) with any representative of any person or entity regarding the
consolidation or merger of PMC with or into any such person or entity, (ii)
with any corporation, partnership, association or other business entity or
any individual regarding the sale, conveyance or disposition of all or
substantially all of the assets of PMC or a transaction or series of
related transactions in which more than fifty percent (50%) of the voting
power of PMC is disposed of, or (iii) regarding any other form of
acquisition, liquidation, dissolution or winding up of PMC.
2.11. Related-Party Transactions. Except as specifically set forth by party
and amount in the PMC Financial Statements or the Schedule of Exceptions, no
employee, officer, or director of PMC or member of his or her immediate family
is indebted to PMC, nor is PMC indebted (or committed to make loans or extend or
guarantee credit) to any of them. To the best of PMC's knowledge, none of such
persons has any direct or indirect ownership interest in any firm or corporation
with which PMC is affiliated or with which PMC has a business relationship, or
any firm or corporation that competes with PMC, except that employees, officers,
or directors of PMC and members of their immediate families may own less than 1%
of the outstanding stock of publicly traded companies that may compete with PMC.
Except as set forth on the Schedule of Exceptions, no member of the immediate
family of any officer or director of PMC is directly or indirectly interested in
any contract with PMC including obligations of $5,000 or more.
2.12. Permits. PMC has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which could materially and adversely affect the business,
properties, prospects, or financial condition of PMC, and PMC believes it can
obtain, without undue burden or expense, any similar authority for the conduct
of its business as planned to be conducted. PMC is not in default in any
material respect under any of such franchises, permits, licenses, or other
similar authority.
2.13. Environmental and Safety Laws. To the best of its knowledge, PMC is
not in violation of any applicable statute, law or regulation relating to the
environment or occupational
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health and safety, and to the best of its knowledge, no material expenditures
are or will be required in order to comply with any such existing statute, law
or regulation.
2.14. Disclosure. PMC has fully provided each Investor with all the
information that such Investor has requested for deciding whether to purchase
the Bridge Securities and all information that PMC believes is reasonably
necessary to enable such Investor to make such decision. Neither this Agreement
or the other Bridge Financing Agreements, nor any other statements or
certificates made or delivered in connection herewith or therewith contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements herein or therein not misleading.
2.15. Business Plan and Cash Flow Forecast. The Business Plan updated as of
August, 2000 and attached hereto as Exhibit 2.15A and the Cash Flow Forecast
attached hereto as Exhibit 2.15B have been prepared in good faith by PMC and do
not contain any untrue statement of a material fact nor do they omit to state a
material fact necessary to make the statements made therein not misleading,
except that with respect to projections contained in the Business Plan and Cash
Flow Forecast, PMC represents only that such projections were prepared in good
faith and that PMC reasonably believes there is a reasonable basis for such
projections.
2.16. Registration Rights. Except as provided in the Investors' Rights
Agreement to be signed pursuant to Section 5.08, PMC has not granted or agreed
to grant any registration rights, including "piggyback", incidental or demand
registration rights, to any person or entity.
2.17. Title to Property and Assets. PMC owns its property and assets free
and clear of all mortgages, liens, loans and encumbrances, except such
encumbrances and liens that arise in the ordinary course of business solely by
operation of law and do not materially impair PMC's ownership or use of such
property or assets. With respect to the property and assets it leases, PMC is in
compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances. There are no
liens, claims or encumbrances whatsoever related to any of PMC's intellectual
property rights listed on Exhibit 2.08.
2.18. PMC Financial Statements. Attached hereto as Exhibit 2.18 is a copy
of PMC's unaudited financial statements (balance sheet and statement of
operations, statement of changes in stockholders' equity and statement of cash
flows, including notes thereto) at March 31, 2000 and for the fiscal year then
ended, and its unaudited financial statements (balance sheet and statement of
operations) as of October 31, 2000 and for the seven-month period then ended
(the "PMC Financial Statements). The PMC Financial Statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated and with each other, except
that the unaudited PMC Financial Statements may not Contain all footnotes
required by generally accepted accounting principles. The PMC Financial
Statements fairly present the financial condition and operating results of PMC
as of the dates, and for the periods, indicated therein, subject in the case of
the unaudited PMC Financial Statements to normal year-end audit adjustments.
Except as set forth in the PMC Financial Statements, PMC has no material
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to October 31, 2000 and (ii) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
the PMC Financial Statements,
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which, in both cases, individually or in the aggregate, are not material to the
financial condition or operating results of PMC. PMC is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation. PMC
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with generally accepted accounting
principles.
2.19. Employee Benefit Plans. PMC does not have any Employee Benefit Plan
as defined in the Employee Retirement Income Security Act of 1974.
2.20. Tax Returns, Payments and Elections. PMC has filed all tax returns
and reports (including information returns and reports) as required by law, with
the exception of the Federal and State income tax returns for the year ended
March 31, 2000. These returns will be filed when the audit of the financial
statements is concluded and no taxes will be due. These returns and reports are
true and correct in all material respects. PMC has paid all taxes and other
assessments due, except any contested by it in good faith that are listed in the
Schedule of Exceptions. The provision for taxes of PMC as shown in the PMC
Financial Statements is adequate for taxes due or accrued as of the date
thereof. PMC has not elected pursuant to the Internal Revenue Code of 1986, as
amended (the "Code"), to be treated as a Subchapter S corporation or a
collapsible corporation pursuant to Section 1362(a) or Section 341(f) of the
Code, nor has it made any other elections pursuant to the Code (other than
elections that relate solely to methods of accounting, depreciation or
amortization) that would have a material effect on PMC, its financial condition,
its business as presently conducted or proposed to be conducted or any of its
properties or material assets. PMC has never had any tax deficiency proposed or
assessed against it and has not executed any waiver of any statute of
limitations on the assessment or collection of any tax or governmental charge.
None of PMC's federal income tax returns and none of its state income or
franchise tax or sales or use tax returns has ever been audited by governmental
authorities. Since the date of the PMC Financial Statements, PMC has not
incurred any taxes, assessments or governmental charges other than in the
ordinary course of business and PMC has made adequate provisions on its books of
account for all taxes, assessments and governmental charges with respect to its
business, properties and operations for such period. PMC has withheld or
collected from each payment made to each of its employees, the amount of all
taxes (including, but not limited to, federal income taxes, Federal Insurance
Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be
withheld or collected therefrom, and has paid the same to the proper tax
receiving officers or authorized depositories.
2.21. Insurance. PMC has in full force and effect fire and casualty
insurance policies, with extended coverage, sufficient in amount (subject to
reasonable deductibles) to allow it to replace any of its properties that might
be damaged or destroyed. Because PMC leases its facilities and does not
currently own significant personal property, it does not believe any such
insurance policy is currently needed and therefore, does not have one.
2.22. Minute Books. PMC has provided APSF with true, complete and accurate
copies of all minutes of PMC's Shareholders and Board of Directors' meetings
that exist and are in PMC's possession for the period since PMC's completion of
its bankruptcy proceedings in December 1994. With respect to minutes that do not
exist or that are not in PMC's possession, PMC has made APSF aware in writing of
all activities at such meetings that are material to an investment decision by
the Investors.
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2.23. Labor Agreements and Actions: Employee Compensation. To the best of
its knowledge, PMC has complied in all material respects with all applicable
state and federal equal employment opportunity and other laws related to
employment. PMC is not a party to or bound by any currently effective employment
contract, deferred compensation agreement, bonus plan, incentive plan, profit
sharing plan, retirement agreement, or other employee compensation agreement.
2.24. Qualified Small Business Stock. As of the Closing: (i) PMC will be an
eligible corporation as defined in Section 1202(e)(4) of the Internal Revenue
Code of 1986, as amended (the "Code"), (ii) PMC will not have made any purchases
of its own stock during the one-year period preceding the Closing having an
aggregate value exceeding 5% of the aggregate value of all its stock as of the
beginning of such period and (iii) PMC's aggregate gross assets, as defined by
Code Section 1202(d)(2), at no time between PMC's inception and through the
Closing have exceeded or will exceed $50 million, taking into account the assets
of any corporations required to be aggregated with PMC in accordance with Code
Section 1202(d)(3).
2.25. Additional Product Information.
(a) Attached hereto as Exhibit 2.25(a) is a product comparison showing
a comparison of PMC's DurAlt FC product to existing competitive products
used for the bulk treatment of gasoline. Although all the information on
that Exhibit is not complete, to the best of PMC's knowledge there is no
data or reasonable estimations that can be made to fill in that missing
information. Other than as disclosed on Exhibit 2.25(a), to the best of
PMC's knowledge, there are no products that are used in bulk treating of
gasoline that provide the same or similar performance enhancing
capabilities as those of DurAlt FC.
(b) Attached hereto as Exhibit 2.25(b) is a summary of test results on
PMC's DurAlt FC(R) products. That summary is an accurate summary of the
material results of those product tests. PMC has not participated in any
tests of its current products that show results contrary to those shown on
that Exhibit.
(c) The total cost for chemicals and all processing to produce a
gallon of DurAlt FC by Grow Automotive is $7.48 per gallon (FOB Plant) as
of December 31, 2000.
2.26. No Voting Agreements. To the best of PMC's knowledge, there are no
voting agreements or other understanding of any kind, written or oral,
concerning the voting of PMC's shares, other than this Agreement.
3. Representations and Warranties of the Investors. Each Investor hereby
represents and warrants that:
3.01. Authorization. Such Investor has full power and authority to enter
into this Agreement and the other Bridge Financing Agreements to which it is a
party, and each such agreement constitutes its valid and legally binding
obligation, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as
8
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, and (iii) to the extent the indemnification
provisions contained in the Investors' Rights Agreement may be limited by
applicable federal or state securities laws.
3.02. Purchase Entirely for Own Account. This Agreement is made with such
Investor in reliance upon such Investor's representation to PMC, which by such
Investor's execution of this Agreement such Investor hereby confirms, that the
Bridge Securities to be received by such Investor and the Common Stock issuable
upon conversion or exercise thereof (collectively, the "Securities") will,
except as provided below, be acquired for investment for such Investor's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that such Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, such Investor further represents that,
except as provided below, such Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Securities. The Investor will have the right to have the Series B Preferred
Stock redeemed by PMC and, in accordance with Section 4.16, the right to convert
the Bridge Securities into the securities that are offered in the Secondary
Placement. Furthermore, each Investor will be permitted to assign its rights and
obligations hereunder and its Units to other parties who agree to become a party
to this Agreement and can make all of the warranties and representations set
forth in Section 3.
3.03. Disclosure of Information. Such Investor believes it has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Bridge Securities. Such Investor further represents that it has had
an opportunity to ask questions and receive answers from PMC regarding the terms
and conditions of the offering of the Bridge Securities and the business,
properties, prospects and financial condition of PMC and it has exercised
reasonable diligence in requesting such information. The foregoing, however,
does not limit or modify the representations and warranties of PMC in this
Agreement or the right of the Investors to rely thereon.
3.04. Investment Experience. Such Investor is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Bridge Securities. If other than an
individual, such Investor also represents it has not been organized for the
purpose of acquiring the Bridge Securities.
3.05. Accredited Investor. Such Investor is an "accredited investor" within
the meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation
D, as presently in effect.
3.06. Restricted Securities. Such Investor understands that the Securities
it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from PMC in a transaction
not involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the Act,
only in certain limited circumstances. In this connection, such Investor
represents
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that it is familiar with SEC Rule 144, as presently in effect, and understands
the resale limitations imposed thereby and by the Act.
3.07. Further Limitations on Disposition. Without in any way limiting the
representations set forth above, other than pursuant to a redemption or
reinvestment of any of the Bridge Securities in other securities of PMC, such
Investor further agrees not to make any disposition of all or any portion of the
Securities unless and until the transferee has agreed in writing for the benefit
of PMC to be bound by this Section 3, and any other Bridge Financing Agreements
to which the Investor is a party provided and to the extent this Section and
such agreements are then applicable, and:
(a) There is then in effect a Registration Statement under the Act
covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b)(i) Such Investor shall have notified PMC of the proposed
disposition and shall have furnished PMC with a detailed statement of the
circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by PMC, such Investor shall have furnished PMC with an opinion of
counsel, reasonably satisfactory to PMC that such disposition will not
require registration of such shares under the Act. It is agreed that PMC
will not require opinions of counsel for transactions made pursuant to Rule
144 except in unusual circumstances.
(c) Notwithstanding the provisions of Paragraphs (a) and (b) above, no
such registration statement or opinion of counsel shall be necessary for a
transfer by an Investor that is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the
date hereof, or to the estate of any such partner or retired partner or the
transfer by gift, will or intestate succession of any partner to his or her
spouse or to the siblings, lineal descendants or ancestors of such partner
or his or her spouse, or a potential transfer by an Investor that has
otherwise been agreed to by PMC in writing as of the date hereof, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he or she were an original Investor hereunder.
3.08. Legends. It is understood that the certificates evidencing the
Securities will bear the following legend:
"These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
satisfactory to PMC that such registration is not required or unless sold
pursuant to Rule 144 of such Act."
4. Covenants of PMC. PMC agrees that, so long as any of the shares of
Series B Preferred Stock being sold to the Investors hereunder remain
outstanding, then PMC will comply with the following provisions set forth in
this Section 4, providing that the provisions of Section 4.07 relating to the
search for a new Chairperson or CEO and the additional securities that may
10
be issued pursuant to that section will remain binding and enforceable even
after there are no shares of Series B Preferred Stock outstanding.
4.01. Shareholder Approvals. PMC agrees that within ten (10) days after the
Closing, it will send out proxies and then (within the minimum period of time
permitted by applicable law and PMC's organizational documents), obtain
shareholder approval for the following:
(a) A 1-for-9 reverse stock split on all outstanding common stock,
warrants and options (unless expressly stated otherwise, all references
herein to shares of common stock will be to shares prior to that reverse
split).
(b) Increase in authorized shares of common stock to 40 (forty)
million shares after reflecting that reverse split.
(c) Approval of stock option plan for the issuance of 27,500,000
(pre-split) shares for officers and directors of the Company subject to the
terms and conditions of that plan and the Compensation Committee of the
Board of Directors.
(d) Election of members of the Board.
4.02. Composition of Board of Directors. In order to provide a balanced
combination of both inside and outside directors with both general business and
industry-specific expertise and contacts, PMC will work with financing sources
to ensure that the optimal balance and skills of persons are included on its
Board. The Board, as so constituted, should position PMC well so as to maximize
the probability of achieving its goals as well as gain the confidence of the
investor community and provide the optimal public profile for a later public
offering by PMC. Of the Board composition of 7 persons, which reflects a
reasonable number of persons for PMC at this stage of its development, the
following are the proposed arrangements.
(a) Two persons to be appointed by APSF at the Closing pursuant to
that certain letter agreement between APSF and the Company dated January
16, 2001 (the "APSF Engagement Letter"). APSF will relinquish one Board
seat pursuant to the terms of the APSF Engagement Letter, should an
appropriate financing source in the Secondary Placement desire Board
representation. Any persons appointed to PMC's Board pursuant to this
subsection are referred to herein as an "APSF Representative".
(b) The continuation of Xxxx Xxxxxx and Xxxx Xxxxx as management Board
members.
(c) The addition of a CFO as a Board member. PMC will seek to retain a
new CFO and appoint that CFO to the Board within twenty (20) days after the
Closing.
(d) The remaining two seats to be filled by appropriate persons as may
be selected by existing management of PMC or at the request of the existing
shareholders of PMC.
4.03. Super Majority Approval. The Board shall require a super majority
(80% or more) on major issues. Major issues will include:
11
(a) Selling, leasing, licensing or otherwise transferring all or
substantially all of the assets of PMC, or any asset(s) with a fair market
value exceeding $10,000 in a single transaction or series of related
transactions.
(b) Entering into any "Material Contracts" which shall be defined as
contracts involving dollar commitments in excess of $5,000, and all
employment related agreements.
(c) Borrowing or incurring any indebtedness or granting any collateral
or security (by way of guaranty or otherwise) for any indebtedness or
obligations other than open accounts payable to unaffiliated third parties
in the ordinary course of business.
(d) Direct or indirect equity sale of greater than 15% of the
outstanding stock through any single entity or through an offering.
(e) Amending PMC's Certificate of Incorporation or Bylaws.
(f) Amending or waiving any provisions of the Bridge Financing
Agreements.
(g) Causing a merger, consolidation or combination of PMC with another
entity, or engaging in any stock splits, reverse stock splits or
recapitalizations.
(h) Repurchasing any interest in the equity of PMC, other than the
Series B Preferred Stock.
(i) Dissolving, liquidating or filing bankruptcy or seeking relief
under any debtor relief law.
(j) Making any distributions, whether in cash or property, including
dividends, to any of the directors or shareholders of PMC (other than the
holders of the Series B Preferred Stock) with respect to their ownership
interests.
(k) Causing a change in the nature of the business or the legal name
of PMC.
(l) Other than the payment of up to $2,000 per month in the aggregate
to Xxxxxxx Xxxxxx and/or his affiliated company, Polar Research
Corporation, engaging in any transaction with any relative, affiliate or
related party of any equity owner, director, officer, or other member of
PMC's Board of Directors, including, without limitation, the employment of
any such party.
(m) Engaging in any transactions or negotiations with respect to
undertaking to make a registered public offering of any securities of PMC.
(n) The election or removal of Board members or a change in the size
of the Board, except that supermajority approval will not be required for
the election of members of the Board in the manner specified in Section
4.02 or for a change in the size of the Board in the manner specified in
Section 4.07(c).
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Notwithstanding the above supermajority provisions, in the event that PMC
receives a bona fide offer from a qualified purchaser that equals or exceeds Two
Hundred Fifty Million ($250 million) ("PMC Floor Valuation"), then such
supermajority provision shall be waived for that particular offer and
consideration of that particular offer shall be subject to vote of the majority
of the Board of Directors of PMC solely with respect to review and prospective
approval of such offer. The Board of Directors shall review on a quarterly basis
the PMC Floor Valuation and may adjust such valuation to not less than $100
million by majority vote of the Board of Directors, but may not decrease that
valuation to less than $100 million without the vote of at least 80% of the
Board of Directors, which super majority must include the affirmative vote of
the APSF Representative(s).
4.04. Compliance with Nasdaq Board Committee Requirements. PMC shall
operate with respect to full compliance with all standards and requirements for
all board committees of a publicly traded entity. This shall include at minimum,
establishing an Audit Committee (as soon as sufficient independent Board members
are available) and a Compensation Committee, which committees shall be
established and operate in accordance with the standards set forth for companies
whose securities are listed on the NASDAQ Small Cap Market, unless any such
provision shall be waived by an APSF Representative.
4.05. Compensation Committee and Process. An APSF Representative will be
automatically provided a seat on the Compensation Committee, which Committee
shall not be greater in number than three persons. The Compensation Committee
shall be established as of the Closing and, thereafter shall be required to
approve all compensation related matters.
4.06. Chief Financial Officer. As of the Closing, PMC will retain Xxxxxx X.
Xxxxxx as Chief Financial Officer of PMC on the terms outlined in Exhibit 4.06
hereto. The CFO will report to the President/CEO on an operating basis, and
periodically (but not less than quarterly) to the Board. Within twenty (20) days
after the Closing, PMC will enter into an employment agreement with Xx. Xxxxxx,
subject to approval of the Board, and then appoint Xx. Xxxxxx to the Board. The
CFO will be responsible for all the normal functions required of that position.
The CFO will ensure that periodic reports are prepared for the Board as to the
progress of PMC, any and all material risks facing PMC, and status of compliance
with all material prior obligations of PMC (and for pending material
obligations, the probability of future compliance). The CFO may be terminated by
the President/CEO only with the approval of a majority of the Board, which
majority must include the affirmative vote of the APSF Representative(s).
4.07. Search for New Chairman or President and CEO.
(a) PMC agrees that it will, at some point in the future, undertake a
search for an additional person to fill the position of Chairman of the
Board (or, at the option of Xxxx Xxxxxx, a President and CEO). As Chairman
of the Board, this person shall hold a non-executive (non-officer) position
and shall serve at the pleasure of the Board. The suggested profile of this
person is one of high standing and integrity, who has held a recognized
position of leadership with a highly reputable, leading company or
organization. The search for the Chairman of the Board shall be conducted
by Xxxx Xxxxxx who shall, should such a person be identified, recommend
such person to the Board. The approval of the majority of the Board shall
be required in order for such
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person to assume the Chairman position. This position shall be filled not
later than three months prior to the initial filing of a registered public
offering of securities by PMC.
(b) Should this person not be added as Chairman of the Board within
the above mentioned timeframe, then each investor in the Bridge Financing
and the Secondary Placement (as well as APSF with respect to any stock
and/or warrants it has received or is entitled to receive) shall be
immediately issued 33% additional warrants or shares as a percentage of the
total of all warrants that were received by these investors as a result of
their original investment (excluding the issuance of the additional 33%
itself). Such issuance shall be completed prior to completion of a
registered public offering and shall enable these investors to fully
participate in the sale of the underlying shares of the warrants as part of
the registered public offering, although subject to any reasonable
underwriter's restrictions as set forth in the Investor Rights' Agreement
to which they are a party. Such arrangements shall be provided
automatically to each and every investor who has invested in PMC in the
Bridge Financing or the Secondary Placement. There shall be a provision
that shall enable such 33% additional issuance to be waived if, on that
date upon which the 33% additional issuance would become binding, in the
sole estimation of the APSF Representative, such provision is not warranted
in the light of strength of the PMC management team.
(c) The Chairman of the Board will receive a Board seat. This Board
seat may either be an additional Board seat, which shall bring the Board to
8 persons, or shall replace one member of the Board (other than an APSF
Representative), as shall be determined by majority vote of the Board. If
the Board is increased to 8 persons, then an additional person shall be
added to the Board within six months by majority vote of the Board so that
the Board shall consist of an odd number of persons.
4.08. Back (Accrued Wages), Advances and Accrued Consulting Fees. Attached
hereto as Exhibit 4.08 is a schedule showing each payee and amount of back wages
and consulting fees owed to each payee, as well as all advances outstanding at
the Closing. With respect to all unpaid back wages and consulting fees, other
than those to Xxxx Xxxxxx, Xxxx Xxxxx and Xxxxxxx Xxxxxxx, such amounts shall be
paid in full, and PMC shall obtain written release in evidence thereof, on or
before January 31, 2001. With respect to unpaid back wages and consulting fees
to Xxxx Xxxxxx, Xxxx Xxxxx and Xxxxxxx Xxxxxxx, such individuals will forever
waive and release PMC, in writing, with respect to 85% of such amounts, and PMC
shall pay the remaining 15% to such persons in common stock, and obtain written
releases in evidence thereof, on or before January 31, 2001. Furthermore, all
advances outstanding will be resolved in writing, without any payment or
liability on the part of PMC in connection therewith, on or before February 15,
2001, in form and substance reasonably satisfactory to APSF.
4.09. Use of Proceeds and Treasury Functions.
(a) Attached hereto as Exhibit 4.09 is a schedule showing the use of
the proceeds from the sale of Bridge Securities. PMC shall spend the
proceeds of the Bridge Financing in compliance with Exhibit 4.09 and shall
provide the Investors and APSF with any information they request to verify
that compliance.
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(b) PMC management will operate under such cash management
restrictions and approvals as are reasonably acceptable to APSF.
4.10. Reporting Provisions.
(a) PMC agrees to make available to its shareholders, at minimum, all
information which a company with securities listed on the NASDAQ Small Cap
Market is required to provide to its shareholders. That information will be
provided when it would be required to be provided by a Nasdaq listed
company. This requirement will apply whether or not PMC has securities
listed on NASDAQ. However, unless and until PMC is subject to the reporting
requirements of the Securities Exchange Act of 1934, it will not be
required to prepare annual, quarterly or current reports in the form
required by the 1934 Act and the regulations promulgated thereunder.
(b) For each fiscal year, PMC shall ensure that audited financials are
prepared by an auditor experienced in public company reporting.
(c) In addition, PMC agrees to provide the following to each and every
Board Member:
(i) Each month a brief written update report to the Board of
Directors before the 15th day of the following month describing
generally the major events and activities of the prior month. Such
report shall make reference to (and in sufficient detail so as to be
fully and accurately explanatory of company progress or lack thereof)
the general activities with respect to PMC milestones, previews of any
upcoming material contracts or engagements, and proposed amendments to
the business plan or business model.
(ii) On or before the 15th day of the following month, a
compilation of the previous month's financial profit and loss and
balance sheets, as well as statement of cash flows. Any major future
expenditures contemplated that deviate from the previous budget shall
also be provided for Board review.
(iii) Within 30 days following the end of each fiscal year, a
financial report detailing prior year expenditures versus budget and
income statement, balance sheet and cash flow projections for the next
24 month period. Such budget shall be subject to the approval of the
Board of Directors.
4.11. Selection of Future Auditors. Future audit/accounting/tax work will
be prepared by an audit firm experienced in public company reporting and will be
selected by the Audit Committee subject to approval by the board. PMC will
select the new auditors within thirty (30) days after the Closing.
4.12. Compliance With Auditor's Report. PMC will retain their current
auditors, Xxxx & Associates, to prepare and deliver to PMC's Board of Directors,
within thirty (30) days after the Closing, a report regarding any changes (in
policy, procedures, or otherwise) that Xxxx & Associates believe should be
completed.
15
4.13. Completion of 2000 Audit. The unaudited financial statements of PMC
as of March 31, 2000 and for the year then ended that are included in Exhibit
2.18 are a draft of audited financial statements prepared by PMC's current
auditors. Those auditors have not finalized those financial statements because
they have unpaid fees outstanding. PMC will pay those outstanding fees from the
proceeds of the sale of the Bridge Securities and obtain and deliver to the
Investors the audited 2000 financial statements within 15 days after the
Closing. Those final audited financial statements will be in the same form as
the draft of the audited financial statements included in Exhibit 2.18 and will
include the auditor's opinion thereon which shall be qualified, if at all, only
based on "going concern" limitations.
4.14. Transfer Agent Engaged. On or before February 15, 2001, PMC will
select a Registrar and Transfer Agent (acceptable to APSF) and allocate all
stock registration and transfer functions to that Transfer Agent for all common
and preferred stock. Such Transfer Agent shall prepare and distribute to APSF a
full and complete stock ledger which shall include the name address, certificate
number, certificate type and number of shares of each shareholder prior to the
earlier of the completion of the Secondary Placement or February 28, 2001.
4.15. Directors and Officer's Insurance. PMC will obtain directors and
officers liability insurance in such amounts and with such carriers as are
agreed to between PMC and APSF. PMC's CFO will be authorized and directed to
obtain that insurance as soon as possible after the date hereof. PMC's other
officers and directors will cooperate and assist the CFO in his efforts to
obtain that insurance as soon as possible.
4.16. Right to Convert. The Investors will be given the opportunity to
convert the Bridge Securities into securities in the contemplated Secondary
Placement. PMC will notify each Investor of the commencement of the Secondary
Placement and the description of the securities being offered thereunder (the
"Secondary Securities"). If any Investor wants to exercise that option to
convert the Bridge Securities into the Secondary Securities, it must give notice
of its intent to convert at least five (5) days before the closing of the sale
of the minimum amount of Secondary Securities to be sold in the Secondary
Placement. In the event of such a conversion, the Bridge Warrants and Series B
Preferred Stock (and all accrued and unpaid dividends thereon) will be
surrendered and the Investor will receive: (1) the number of shares of common
stock that would have been received if those Bridge Warrants (including any
additional Bridge Warrants received pursuant to Section 4.07 or as a result of
PMC's extension of the redemption date of the Series B Preferred Stock) had been
fully exercised on that date and (2) an amount of Secondary Securities equal to
$25,000 per Unit that is converted divided by the purchase price of those
Secondary Securities.
4.17. Management Contracts. All key members of the management group (Xxxx
Xxxxxx, Xxxx Xxxxx, and Xxxxxxx Xxxxxxx) shall, prior to the inception of the
Secondary Offering, execute and deliver (i) Employment Contracts in form and
substance approved by the Board pursuant to Section 4.03(b), and (ii) Invention
Assignment and Non-Competition Agreements with PMC in the form attached hereto
as Exhibit 4.17.
4.18. Conversion of Debt Into Common Stock. Within 30 days after the
Closing, all amounts on Exhibit 2.05 that are not specifically listed to be paid
from the proceeds pursuant to
16
Exhibit 4.09 or specifically listed as to remain an outstanding debt will be
converted to common stock unless such requirement is waived in writing by APSF
in its sole discretion.
4.19. Maximum Shares to be Issued for All Obligations. PMC will issue not
more than 35 million shares (pre-reverse split) of its common stock to satisfy
all of its obligations hereunder to issue shares for conversion of debt, the
resolution of royalty obligations, payment of unpaid back salaries, consulting
fees and advances, the conversion of the Series A Preferred Stock, the payment
of accrued interest and the settlement of any other liability or obligation of
PMC as of the Closing that is to be taken care of by the issuance of common
stock.
5. Conditions of Investors' Obligations at Closing. The obligations of each
Investor under Section 1 of this Agreement are subject to the fulfillment on or
before the Closing of each of the following conditions, the waiver of which
shall not be effective against any Investor who does not consent thereto in
writing:
5.01. Representations and Warranties. The representations and warranties of
PMC contained in Section 2 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of such Closing.
5.02. Performance. PMC shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.03. Compliance Certificate. The President of PMC shall deliver to each
Investor at the Closing a certificate stating that the conditions specified in
Sections 5.01, 5.02 and 5.08-5.10 have been fulfilled and stating that there
shall have been no adverse change in the business, affairs, prospects,
operations, properties, assets or condition of PMC since the date of the PMC
Financial Statements.
5.04. Qualifications. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
5.05. Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investors and they shall have received all such counterpart original and
certified or other copies of such documents as they may reasonably request. This
may include, without limitation, good standing certificates and certification by
PMC's Secretary regarding PMC's Certificate of Incorporation and Bylaws and
Board of Director and stockholder resolutions relating to this transaction.
5.06. Board of Directors. At Closing, the Board of Directors of PMC shall
consist of 7 persons. Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxx XxxXxxxxx
and Xxxxx Xxxxxxx shall continue as directors and the other existing directors
shall have submitted resignations, creating two vacancies on the Board of
Directors to be filled by persons designated by APSF. When Xxxxxx X. Xxxxxx is
retained as CFO, Xxxxx Xxxxxxx will resign from the Board to create a vacancy to
be filled by Xxxxxx X. Xxxxxx.
17
5.07. Opinions of Company Counsel. Each Investor shall have received from
Xxxxx Xxxxxxx, P.C., counsel for PMC, an opinion, dated as of the Closing, in
the form attached hereto as Exhibit 5.07.
5.08. Investors' Rights Agreement. PMC and each Investor shall have entered
into the Investors' Rights Agreement in the form attached as Exhibit 5.08.
5.09. Royalty Obligations. The Xxxxxx Family will execute Patent Assignment
Affirmation and Royalty Release Agreements in the form attached hereto as
Exhibit 5.09, wherein: (a) any and all outstanding obligations for royalties
shall be fully released by the Xxxxxx family; (b) the Xxxxxx family shall agree
to release PMC with respect to any further royalty interests of any kind related
to the technology; (c) the Xxxxxx family will reaffirm that the licenses and/or
assignments are all binding and enforceable in favor of PMC; and (d) the Xxxxxx
family releases their security interest in the patents.
5.10. Security Agreement. PMC shall execute a Security Agreement in the
form attached hereto as Exhibit 5.10 giving the Investors a security interest in
the collateral specified therein to secure the amounts owed with respect to the
Series B Preferred Stock. PMC will also execute and file financing statements
with the States of Colorado and Michigan, and other necessary offices, to
perfect that security interest.
6. Conditions of PMC's Obligations at Closing. The obligations of PMC to
each Investor under this Agreement are subject to the fulfillment on or before
the Closing of each of the following conditions by that Investor:
6.01. Representations and Warranties. The representations and warranties of
the Investors contained in Section 3 shall be true on and as of the Closing with
the same effect as though such representations and warranties had been made on
and as of the Closing.
6.02. Payment of Purchase Price. Each Investor shall have delivered their
respective purchase price specified on Schedule A attached hereto.
6.03. Qualifications. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
7. Miscellaneous.
7.01. Indemnification.
(a) PMC agrees to indemnify and hold harmless each Investor, its
parent companies, subsidiaries, affiliates and their respective officers,
directors, employees, agents, attorneys and controlling persons (each an
"Indemnified Person") from and against any and all losses, claims, damages,
liabilities and expenses, joint or several, to which any such Indemnified
Person may become subject arising out of or in connection with the
transactions contemplated by this Agreement, or any claim, litigation,
investigation or proceedings relating to the foregoing ("Proceedings")
regardless of
18
whether any of such Indemnified Persons is a party thereto, and to
reimburse such Indemnified Persons for any legal or other expenses as they
are incurred in connection with investigating or defending any of the
foregoing, provided that the foregoing indemnification will not, as to any
Indemnified Person, apply to losses, claims, damages, liabilities or
expenses to the extent that they are finally judicially determined to have
resulted from the willful misconduct or gross negligence of such
Indemnified Person. If for any reason the foregoing indemnification is
unavailable to any Indemnified Person or insufficient to hold it harmless,
then PMC shall contribute to the amount paid or payable by such Indemnified
Person as a result of such loss, claim, damage, liability or expense in
such proportion as is appropriate to reflect not only the relative benefits
received by PMC on the one hand and such Indemnified Person on the other
hand but also the relative fault of PMC and such Indemnified Person, as
well as any relevant equitable considerations. The indemnity, reimbursement
and contribution obligations of PMC under this Section shall be in addition
to any liability which PMC may otherwise have to an Indemnified Person and
shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of PMC and any Indemnified Person.
(b) Promptly after receipt by an Indemnified Person of notice of the
commencement of any Proceedings, such Indemnified Person will, if a claim
in respect thereof is to be made against PMC, notify PMC in writing of the
commencement thereof; provided that (i) the omission to so notify PMC will
not relieve it from any liability which it may have hereunder except to the
extent it has been materially prejudiced by such failure and (ii) the
omission to so notify PMC will not relieve it from any liability which it
may have to an Indemnified Person otherwise than on account of this
indemnity agreement. In case any such Proceedings are brought against any
Indemnified Person and it notifies PMC of the commencement thereof, PMC
will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Person, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified
Person; provided that if the defendants in any such Proceedings include
both the Indemnified Person and PMC and the Indemnified Person shall have
concluded that there may be legal defenses available to it which are
different from or additional to those available to PMC, the Indemnified
Person shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such Proceedings on
behalf of such Indemnified Person. PMC will be liable to such Indemnified
Person for expenses incurred by the Indemnified Person in connection with
the defense thereof.
(c) Each Investor agrees to indemnify and hold harmless PMC, its
subsidiaries, affiliates and their respective officers, directors,
employees, agents, attorneys and controlling persons (each a "Company
Indemnified Person") from and against any and all losses, claims, damages,
liabilities and expenses, joint or several, to which any such Company
Indemnified Person may become subject arising out of or in connection with
the transactions contemplated by this Agreement, or any Proceedings
relating to the foregoing, regardless of whether any of such Company
Indemnified Persons is a party thereto, and to reimburse such Company
Indemnified Persons for any legal or other expenses as they are incurred in
connection with investigating or defending any of the foregoing, provided
that the foregoing indemnification will not apply unless,
19
and only to the extent that, the amounts for which PMC Indemnified Persons
are seeking indemnification are finally and judicially determined to have
resulted from that Investor violating any of its representations or
warranties contained in this Agreement. Except as otherwise provided for in
this paragraph, the procedures for indemnification by the Investors, and
the obligations of PMC Indemnified Persons with respect thereto, shall be
the same as provided above with respect to the indemnity obligations of
PMC.
7.02. Survival of Warranties. The warranties, representations and covenants
of PMC and the Investors contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the Closing and shall
in no way be affected by any investigation of the subject matter thereof made by
or on behalf of the Investors or PMC.
7.03. Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Securities). Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.04. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Texas as applied to agreements among Texas
residents entered into and to be performed entirely within Texas.
7.05. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.06. Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
7.07. Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
7.08. Finder's Fee. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction, other than fees to be paid by PMC to APSF. Each Investor agrees to
indemnify and to hold harmless PMC from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which such Investor
or any of its officers, partners, employees, or representatives is responsible.
PMC agrees to indemnify and hold harmless each Investor from any liability for
any commission or compensation in the nature of a finders' fee (and the costs
and expenses of defending against such liability or asserted liability) for
which PMC or any of its officers, employees or representatives is responsible.
20
7.09. Expenses. Irrespective of whether the Closing is effected, PMC shall
pay all costs and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement. If any action at law or
in equity is necessary to enforce or interpret the terms of this Agreement or
the other Bridge Financing Agreements, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
7.10. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of PMC and the holders of 80% of the Common Stock issuable
or issued upon conversion of the Series B Preferred Stock. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any securities purchased under this Agreement at the time outstanding
(including securities into which such securities are convertible), each future
holder of all such securities, and PMC.
7.11. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7.12. Aggregation of Stock. All shares of the Series B Preferred Stock held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any, rights under this Agreement
7.13. Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
7.14. Knowledge of PMC. Any reference herein to items within the knowledge
of PMC shall include items within the actual knowledge of Xxxx Xxxxxx, Xxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxx or Xxxxxxx Xxxxxxx.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, President
INVESTOR
Number of Units : 8 /s/ E. Xxxxx XxXxxxxxx
----------------------------------
Total Purchase Price $200,000 E. Xxxxx XxXxxxxxx, M.D.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, President
INVESTOR
CAMBRIDGE STRATEGIES
GROUP, LLC
Number of Units : 16 By: /s/
----------------------------------
Total Purchase Price $400,000 Name:
----------------------------------
Its:
----------------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, President
INVESTOR
Number of Units : 5 /s/ Xxxxx X. Xxxx
----------------------------------
Total Purchase Price $125,000 Xxxxx X. Xxxx
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, President
INVESTOR
XXXXXXXX FAMILY PARTNERS
Number of Units : 2 By: /s/
----------------------------------
Total Purchase Price $50,000 Name:
----------------------------------
Its:
----------------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, President
INVESTOR
Number of Units : 1 /s/ C. Don Van Wart
----------------------------------
Total Purchase Price $25,000 C. Don Van Wart
