EXHIBIT 10.35
OFFICER AND DIRECTOR WARRANT PURCHASE AGREEMENT
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THIS OFFICER AND DIRECTOR WARRANT PURCHASE AGREEMENT ("Agreement") is
made as of the 17th day of August, 2007 by and among INTRAOP MEDICAL
CORPORATION, a Nevada corporation (the "Company"), and the persons listed on
Exhibit A attached hereto (each a "Purchaser" and collectively the
"Purchasers").
Recitals
A. The Company and the Purchasers have agreed that the Company shall
issue and sell to the Purchasers at the First Closing (as defined below), for an
aggregate purchase price of $92,000.00, warrants to purchase an aggregate of
1,150,000 shares of the Company's Common Stock.
B. The Company and the Purchasers have further agreed that the
Purchasers shall exercise such warrants in full at the Second Closing (as
defined below).
C. This Agreement shall be binding upon the Company and the Purchasers
only upon delivery of the signatures pages hereto by the Company and the
Purchasers.
Agreement
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere
in this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings set forth below:
"First Closing" shall have the meaning set forth in the
Purchase Agreement.
"Officer and Director Warrants" means warrants in
substantially the form attached hereto as Exhibit B.
"Officer and Director Warrant Shares " means the shares of the
Company's Common Stock issuable upon exercise of the Officer and Director
Warrants.
"Purchase Agreement" means the Common Stock and Warrant
Purchase Agreement dated as of August 17, 2007 by and among the Company and the
other persons set forth on the schedule of purchasers attached thereto.
"Second Closing" shall have the meaning set forth in the
Purchase Agreement.
"Securities" means the Officer and Director Warrants and the
Officer and Director Warrant Shares.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Officer and Director Warrants.
2.1 Officer and Director Warrants. Upon the terms and subject
to the conditions set forth in this Agreement, at the First Closing, each of the
Purchasers shall, severally and not jointly, purchase, and the Company shall
sell and issue to the Purchasers, an Officer and Director Warrant for the
purchase of that number of Officer and Director Warrant Shares set forth next to
such Purchaser's name on Exhibit A attached hereto in consideration for the
purchase price, payable in cash, set forth next to such Purchaser's name on
Exhibit A.
2.2 Exercise of the Officer and Director Warrants. At or
within ten (10) days after the Second Closing, each Purchaser shall exercise in
full the Officer and Director Warrant issued to such Purchaser.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchasers that:
3.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
carry on its business as now conducted and to own its properties.
3.2 Authorization. The Company has full corporate power and
authority and has taken all requisite action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of this Agreement, (ii) the authorization of the
performance of all obligations of the Company hereunder and (iii) the
authorization, issuance, sale and delivery of the Securities, subject in the
case of the Officer and Director Warrant Shares to stockholder approval and
filing of an amendment to the Company's Amended and Restated Articles of
Incorporation authorizing an increase in the number of shares of Common Stock
issuable by the Company to 500,000,000 (as adjusted for stock splits,
combinations or other similar transactions). This Agreement constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally.
3.3 Valid Issuance. The Securities have been duly and validly
authorized. The Officer and Director Warrant Shares have been reserved for
issuance, subject to stockholder approval and filing of an amendment to the
Company's Amended and Restated Articles of Incorporation authorizing an increase
in the number of shares of Common Stock issuable by the Company to 500,000,000
(as adjusted for stock splits, combinations or other similar transactions), and,
upon issuance pursuant to the Officer and Director Warrants, will be duly and
validly issued and fully paid and nonassessable.
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3.4 Consents. The execution, delivery and performance by the
Company of this Agreement to which it is a party and the offer, issuance and
sale of the Securities requires no consent of, action by or in respect of, or
filing with, any person, governmental body, agency, or official other than
filings that have been made pursuant to applicable state securities laws and
post-sale filings pursuant to applicable state and federal securities laws which
the Company undertakes to file within the applicable time periods.
3.5 Private Placement. Subject to the accuracy of each
Purchaser's representations in Section 4 hereof, the offer and sale of the
Securities to the Purchasers as contemplated hereby is exempt from the
registration requirements of the Securities Act.
4. Representations and Warranties of the Purchasers. Each of the
Purchasers hereby, severally and not jointly, represents and warrants to the
Company that:
4.1 Enforceability. This Agreement constitutes the valid and
legally binding obligation of such Purchaser, enforceable against such Purchaser
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability,
relating to or affecting creditors' rights generally.
4.2 Purchase Entirely for Own Account. The Securities to be
received by such Purchaser hereunder will be acquired for such Purchaser's own
account, not as nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the Securities Act, and such
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same in violation of the Securities Act.
4.3 Investment Experience. Such Purchaser acknowledges that it
can bear the economic risk and complete loss of its investment in the Securities
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
Securities contemplated hereby.
4.4 Disclosure of Information. Such Purchaser has had an
opportunity to receive all information related to the Company requested by it
and to ask questions of and receive answers from the Company regarding the
Company, its business and the terms and conditions of the offering of the
Securities.
4.5 Restricted Securities. Such Purchaser understands that the
Securities are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from the Company 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 Securities Act only in certain limited circumstances.
4.6 Legends. It is understood that, except as provided below,
certificates evidencing the Securities may bear the following or any similar
legend:
(a) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. THE SECURITIES REPRESENTED HEREBY MAY NOT BE
TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO
THE SECURITIES ACT, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144(K), OR
(III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS."
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(b) If required by the authorities of any state in
connection with the issuance of sale of the Securities, the legend required by
such state authority.
4.7 Accredited Investor. Such Purchaser is an "accredited
investor" as defined in Rule 501(a) of Regulation D under the Securities Act.
4.8 No General Solicitation. Such Purchaser did not learn of
the investment in the Securities as a result of any public advertising or
general solicitation.
5. Miscellaneous.
5.1 Successors and Assigns. This Agreement may not be assigned
by a party hereto without the prior written consent of the Company or the
Purchasers holding a majority of the Securities, as applicable. The provisions
of this Agreement shall inure to the benefit of and be binding upon the
respective permitted successors and assigns of the parties. 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.
5.2 Counterparts; Faxes. 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. This Agreement may
also be executed via facsimile or PDF, which shall be deemed an original.
5.3 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.
5.4 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
facsimile or electronic mail, then such notice shall be deemed given upon
receipt of confirmation of complete transmittal, (iii) if given by mail, then
such notice shall be deemed given upon the earlier of (A) receipt of such notice
by the recipient or (B) three (3) days after such notice is deposited in first
class mail, postage prepaid, and (iv) if given by an internationally recognized
overnight air courier, then such notice shall be deemed given one (1) Business
Day after delivery to such carrier. All notices shall be addressed to the party
to be notified at the address as follows, or at such other address as such party
may designate by ten (10) days' advance written notice to the other party:
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If to the Company:
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx & Xxxx, LLC
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
If to the Purchasers, to the addresses on file with
the Company.
5.5 Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith.
5.6 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 the Company and the Purchasers holding a
majority of the Securities. 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, each future holder of all such
Securities and the Company.
5.7 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
5.8 Entire Agreement. This Agreement, including the exhibits,
constitute the entire agreement among the parties hereof with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.
5.9 Further Assurances. The parties shall execute and deliver
all such further instruments and documents and take all such other actions as
may reasonably be required to carry out the transactions contemplated hereby and
to evidence the fulfillment of the agreements herein contained.
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5.10 Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of Delaware without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of California located in Santa
Xxxxx County and the United States District Court for the Northern District of
California for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
(Signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Officer and
Director Warrant Purchase Agreement as of the date first above written.
The Company: Intraop Medical Corporation
By: /s/ Xxxxxx X. Goer
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Name: Xxxxxx X. Goer
Title: President and CEO
IN WITNESS WHEREOF, the parties have executed this Officer and Director
Warrant Purchase Agreement as of the date first above written.
The Purchasers: /s/ Xxxxx Xxxxxxxx
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(Signature)
Xxxxx Xxxxxxxx
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(Print Name)
/s/ M. Xxxx Xxxxxxx
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(Signature)
M. Xxxx Xxxxxxx
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(Print Name)
/s/ Xxxxxxx X. Xxxxxxx
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(Signature)
Xxxxxxx X. Xxxxxxx
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(Print Name)
/s/ Xxxx X. Xxxxxx
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(Signature)
Xxxx X. Xxxxxx
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(Print Name)
/s/ Xxxxxx Xxxx
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(Signature)
Xxxxxx Xxxx
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(Print Name)
EXHIBIT A
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Officers and Directors
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Name Number of Warrant Shares Purchase Price
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Xxxxx Xxxxxxxx 625,000 $50,000.00
M. Xxxx Xxxxxxx 125,000 $10,000.00
Xxxxxxx X. Xxxxxxx 125,000 $10,000.00
Xxxx X. Xxxxxx 125,000 $10,000.00
Xxxxxx Xxxx 150,000 $12,000.00
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TOTAL: 1,150,000 $92,000.00
EXHIBIT B
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Form of Officer and Director Warrant
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