EXHIBIT 10.44
AMDL, INC.
SECURITIES PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE OF SHARES...........................................1
1.1 Sale of Shares..................................................1
1.2 Purchase of Shares..............................................1
1.3 Separate Agreements.............................................1
1.4 Deliveries by Purchasers........................................2
2. CLOSING(S)............................................................2
2.1 Date and Time...................................................2
2.2 Deliveries......................................................2
2.3 Each Closing Identical..........................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................2
3.1 Organization and Good Standing..................................2
3.2 Capitalization..................................................2
3.3 Validity of Transactions........................................3
3.4 No Violation....................................................3
3.5 SEC Reports and Financial Statements............................3
3.6 Subsidiaries....................................................3
3.7 Litigation......................................................3
3.8 Taxes...........................................................4
3.9 Securities Law Compliance.......................................4
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS......................4
4.1 Legal Power.....................................................4
4.2 Due Execution...................................................4
4.3 Investment Representations......................................4
4.4 Receipt and Review of SEC Reports...............................5
4.5 Residence of Purchaser..........................................5
4.6 Accredited Investor.............................................5
4.7 Non-Affiliate; Resales by Affiliates............................5
5. CONDITIONS TO CLOSING.................................................6
5.1 Conditions to Obligations of the Purchaser......................6
5.2 Conditions to Obligations of the Company........................6
6. MISCELLANEOUS.........................................................7
6.1 Governing Law...................................................7
6.2 Successors and Assigns..........................................7
6.3 Entire Agreement................................................7
6.4 Separability....................................................7
6.5 Amendment and Waiver............................................7
6.6 Notices.........................................................7
6.7 Titles and Subtitles............................................8
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Exhibits:
A. [Form of] Escrow Agreement
B. AMDL SEC Reports: Form 10-KSB for the Year Ended December 31, 1997 and
Form 10-QSB for the Quarter Ended September 30, 1998
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AMDL, INC.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement") is made as of May 5, 1999,
but is only effective as of the date of acceptance of each "Purchaser Signature
Page" by and between AMDL, Inc., a Delaware corporation (the "Company"), with
its principal office at 00000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
00000 and the Purchasers (described herein). When each of the purchasers who
become signatories hereto (individually, a "Purchaser" and collectively, the
"Purchasers") execute a Purchaser Signature Page hereto, it shall form a
separate agreement between such Purchaser.
R E C I T A L S
- - - - - - - -
A. The Company desires to obtain funds from the Purchasers in order to
further the operations of the Company.
B. In order to obtain such funds, the Company is offering (the
"Offering") up to 1,250,000 shares of $.001 par value common stock ("Common
Stock") on the terms and subject to the conditions set forth herein.
A G R E E M E N T
- - - - - - - - -
It is agreed as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 Sale of Shares. The Company has authorized the sale and issuance of up
to 1,250,000 shares of Common Stock at a purchase price of $.68 per share (the
"Purchase Price").
1.2 Purchase of Shares. In reliance upon the representations and
warranties of the Company and each Purchaser contained herein and subject to the
terms and conditions set forth herein, each Purchaser hereby agrees to purchase
shares of Common Stock in the tranches ("Tranches") set forth on the Purchaser
Signature Page bearing such Purchaser's name at the Purchase Price. Each
Purchaser shall severally, and not jointly, be liable only for the purchase of
the number of shares of Common Stock that relates to the subscription of such
Purchaser as set forth on the Purchaser Signature Page.
1.3 Separate Agreements. The Company's agreement with each of the
Purchasers is a separate agreement, and the sale of the shares of Common Stock
to each of the Purchasers is a separate sale.
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1.4 Deliveries by Purchasers.
1.4.1 Each Purchaser shall deliver an executed completed
Purchaser Signature Page;
1.4.2 Each Purchaser shall deliver an executed signature page to
the Escrow Agreement in the form attached hereto as Exhibit "A."
2. CLOSING(S).
2.1 Date and Time. The purchase and sale of each Tranche shall take
place at the office of the Escrow Agent, on the date set forth on the Purchase
Signature Page for each Tranche (each a "Closing Date"); provided that no
Tranche shall be sold after May 31, 1999 (the "Final Closing Date"), unless
otherwise extended by the Company.
2.2 Deliveries. On each Closing Date, the Escrow Agent (as defined in
the Escrow Agreement) shall deliver notice ("Notice") to the Company that it has
received good funds in the amount of the Purchase Price for each Tranche set
forth on the Purchaser Signature Page. Upon receipt of the Notice, the Company
shall cause to be issued and shall deliver to the Escrow Agent the certificates
representing the shares of Common Stock purchased by the Purchaser. Each such
share shall be in definitive form and registered in the name of each Purchaser,
as set forth on the Purchaser Signature Page. The delivery of the shares of
Common Stock to the Purchasers and the delivery of the Purchase Price to the
Company shall be completed in accordance with the terms of the Escrow Agreement.
2.3 Each Closing Identical. Each Closing shall be upon substantially
identical terms and conditions to those contained herein. Each Closing may be
effected at the Company's sole election until 1,250,000 shares of Common Stock
have been sold, provided that all of such Closings are held on or prior to the
Final Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to the Purchasers to enter into this Agreement and
to purchase the shares of Common Stock, the Company represents and warrants that
the following statements are true and correct in all material respects as of the
date hereof and will be true and correct in all material respects at Closing,
except as expressly qualified or modified herein.
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
Delaware and has full corporate power and authority to enter into and perform
its obligations under this Agreement, and to own its properties and to carry on
its business as presently conducted and as proposed to be conducted. The Company
is duly qualified to do business as a foreign corporation in every jurisdiction
in which the failure to so qualify would have a material adverse effect upon the
Company.
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3.2 Capitalization. The authorized capital stock of the Company as of
May 4, 1999 consists of 50,000,000 shares of Common Stock and 10,000,000 shares
of preferred stock, $.001 par value, of which approximately 270,000 shares of
Common Stock are issued and outstanding and no shares of preferred stock are
issued or outstanding. All share amounts contained herein have been adjusted to
reflect the one for 10 reverse split of the Company's Common Stock effected in
March 1999. All outstanding shares of Common Stock have been duly authorized and
validly issued, and are fully paid, nonassessable, and free of any preemptive
rights. Except as is set forth in the SEC Reports (as hereinafter defined) at
Closing, there will not be outstanding, nor will the Company be subject to any
agreement under which there may become outstanding, any right to purchase, or
security convertible into or exchangeable for, any capital stock of the Company,
including, but not limited to, options, warrants, or rights. Except as set forth
herein, the Company is under no obligation (contingent or otherwise) to purchase
or otherwise acquire or retire any of its securities. There are no agreements in
existence which require the Company to elect any person to its Board of
Directors or otherwise pertain to the voting of any capital stock of the
Company.
3.3 Validity of Transactions. This Agreement, and each document
executed and delivered by the Company in connection with the transactions
contemplated by this Agreement, have been duly authorized, executed and
delivered by the Company and is each the valid and legally binding obligation of
the Company, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency reorganization and moratorium laws and other
laws affecting enforcement of creditor's rights generally and by general
principles of equity.
3.4 No Violation. The execution, delivery and performance of this
Agreement has been duly authorized by the Company's Board of Directors and, to
the extent necessary, the shareholders of the Company, will not violate any law
or any order of any court or government agency applicable to the Company, as the
case may be, or the Certificate of Incorporation or Bylaws of the Company, and
will not result in any breach of or default under, or, except as expressly
provided herein, result in the creation of any encumbrance upon any of the
assets of the Company pursuant to the terms of any agreement or instrument by
which the Company or any of its assets may be bound. No approval of or filing
with any governmental authority is required for the Company to enter into,
execute or perform this Agreement.
3.5 SEC Reports and Financial Statements. The Company has delivered
to the Purchaser its annual report on Form 10-KSB for the fiscal year ended
December 31, 1997 and its report on Form 10-QSB for the quarter ended September
30, 1998 filed with the U.S. Securities and Exchange Commission (collectively,
the "SEC Reports") attached hereto as Exhibit "B." As of May 5, 1999, the
Company has no cash or other liquid assets and total liabilities in excess of
$1,000,000. No financial statements of the Company have been prepared since
September 30, 1998. The information in the SEC Reports, taken as a whole, is
true and correct in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except for the following: (i) That X. Xxx has
resigned as President and as a director of the Company; (ii) Xxxx X. Xxxxxx has
been elected as President of the Company; and (iii) Xx. Xxxxxx and Xxx Xxxxxx
have been elected as directors of the Company.
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3.6 Subsidiaries. The Company does not own, directly or indirectly,
any equity or debt securities of any corporation, partnership, or other entity,
other than its equity interests in Advanced Medical Diagnostics, Ltd. and ICD,
L.L.C. (the "Subsidiaries") and an approximate ten percent (10%) equity interest
in the common stock of Sino-American Medical, Inc.
3.7 Litigation. Except as set forth in the SEC Reports, there are no
suits or proceedings (including without limitation, proceedings by or before any
arbitrator, government commission, board, bureau or other administrative agency)
pending or, to the knowledge of the Company, threatened against or affecting the
Company or its Subsidiaries which, if adversely determined, would have a
material adverse effect on the consolidated financial condition, results of
operations, prospects or business of the Company, and neither the Company nor
the Subsidiaries are subject to or in default with respect to any order, writ,
injunction or decree of any federal, state, local or other governmental
department.
3.8 Taxes. Federal income tax returns and state and local income tax
returns for the Company and the Subsidiaries have been filed as required by law,
except that no state or federal income tax returns have been prepared or filed
for the year ended December 31, 1998; all taxes as shown on such returns or on
any assessment received subsequent to the filing of such returns have been paid,
and there are no pending assessments or adjustments or any income tax payable
for which reserves, which are reasonably believed by the Company to be adequate
for the payment of any additional taxes that may come due, have not been
established. All other taxes imposed on the Company and the Subsidiaries have
been paid and any reports or returns due in connection herewith have been filed.
3.9 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of Purchasers set forth in Section 4 of this
Agreement, the offer, issue, sale and delivery of the shares of Common Stock
will constitute an exempted transaction under the Securities Act of 1933, as
amended and now in effect ("Securities Act"), and registration of the shares of
Common Stock under the Securities Act is not required. The Company shall make
such filings as may be necessary to comply with the Federal securities laws and
the Blue Sky laws of any state, which filings will be made in a timely manner
prior to the offer and sale of the shares of Common Stock.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby represents, warrants and covenants with the Company
as follows:
4.1 Legal Power. Purchaser has the requisite individual, corporate,
partnership, trust or fiduciary power, as appropriate, and is authorized, if
Purchaser is a corporation, partnership or trust, to enter into this Agreement,
to purchase the shares of Common Stock hereunder, and to carry out and perform
its obligations under the terms of this Agreement.
4.2 Due Execution. This Agreement has been duly authorized, if
Purchaser is a corporation, partnership, trust or fiduciary, executed and
delivered by Purchaser, and, upon due
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execution and delivery by the Company, this Agreement will be a valid and
binding agreement of Purchaser.
4.3 Investment Representations. Each Purchaser represents and agrees
that Purchaser is acquiring the shares of Common Stock for his or its own
account, not as a nominee or agent, for investment and not with a view to or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act, except pursuant to an effective registration
statement under the Securities Act;
4.4 Receipt and Review of SEC Reports. Each Purchaser represents that
Purchaser has received and reviewed the SEC Reports and has been given full and
complete access to the Company for the purpose of obtaining such information as
the Purchaser or its qualified representative has reasonably requested in
connection with the decision to purchase shares of the Company's Common Stock.
Each Purchaser represents that such Purchaser has been afforded the opportunity
to ask questions of the officers of the Company regarding its business prospects
and the shares of the Company's Common Stock, all as Purchaser or Purchaser's
qualified representative have found necessary to make an informed investment
decision to purchase the shares of the Company's Common Stock.
4.5 Residence of Purchaser. Purchaser is a legal resident of the
state set forth on the Purchaser Signature Page.
4.6 Accredited Investor. Each Purchaser is an "accredited investor"
as defined in Rule 501(a) under the Securities Act of 1933, as amended, and
comes within at least one category as set forth in said Rule. The Purchaser
agrees to complete the Purchaser Signature Page truthfully and to furnish any
additional information which the Company deems necessary in order to verify that
each such Purchaser is an accredited investor.
4.7 Non-Affiliate; Resales by Affiliates.
4.7.1 Non-Affiliates. Each Purchaser represents, warrants and
covenants that it is not an "affiliate" of the Company, as that term is defined
in Rule 144(a)(1) of the Securities Act. Each Purchaser further represents,
warrants and covenants that:
(a) it is not acquiring the shares of Common Stock as part
of a group within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended;
(b) it does not directly, or indirectly through one or more
intermediaries, control, or is controlled by, or is under common control with,
the Company;
(c) it does not exercise any control over management of the
Company other than in connection with its position as a stockholder of the
Company; and
(d) it does not have any relationship with the Company
other in connection with its position as a stockholder of the Company.
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4.7.2 Resales by Affiliates. Each Purchaser represents,
warrants and covenants that in the event Purchaser becomes an affiliate of the
Company, Purchaser shall resell the shares of Common Stock only in accordance
with the provisions of Rule 144 of the Securities Act.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Obligations of the Purchaser. Each Purchaser's
obligation to purchase the shares of Common Stock at the Closing is subject to
the fulfillment, at or prior to such Closing, of all of the following
conditions:
5.1.1 Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects on the Closing Date
with the same force and effect as if they had been made on and as of said date;
and the Company shall have performed all obligations and conditions herein
required to be performed by it on or prior to the Closing Date.
5.1.2 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Purchaser.
5.1.3 Qualifications, Legal and Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States including "blue sky" filings in any state that are required
in connection with the lawful sale and issuance of the shares of Common Stock
pursuant to this Agreement shall have been duly obtained and shall be effective
on and as of the Closing Date. No stop order or other order enjoining the sale
of the shares of Common Stock or the Company's Common Stock shall have been
issued and no proceedings for such purpose shall be pending or, to the knowledge
of the Company, threatened by the SEC, or any commissioner of corporations or
similar officer of any state having jurisdiction over this transaction. At the
time of the Closing, the sale and issuance of the shares of Common Stock shall
be legally permitted by all laws and regulations to which the Purchaser and the
Company are subject.
5.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the shares of Common Stock at the Closing is
subject to the fulfillment to the Company's satisfaction, on or prior to the
Closing, of the following conditions:
5.2.1 Representations and Warranties True. The representations
and warranties made by each Purchaser in Section 4 hereof shall be true and
correct at the Closing Date with the same force and effect as if they had been
made on and as of the Closing Date.
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5.2.2 Performance of Obligations. Each Purchaser shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by them on or before the Closing Date, and each
Purchaser shall have delivered payment to the Company in respect of its purchase
of shares of Common Stock.
5.2.3 Qualifications, Legal and Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States including "blue sky" filings in any state that are required
in connection with the lawful sale and issuance of the shares of Common Stock
pursuant to this Agreement shall have been duly obtained and shall be effective
on and as of the Closing Date. No stop order or other order enjoining the sale
of the shares of Common Stock shall have been issued and no proceedings for such
purpose shall be pending or, to the knowledge of the Company, threatened by the
SEC, or any commissioner of corporations or similar officer of any state having
jurisdiction over this transaction. At the time of the Closing, the sale and
issuance of the shares of Common Stock shall be legally permitted by all laws
and regulations to which each Purchaser and the Company are subject.
6. MISCELLANEOUS.
6.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware.
6.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.
6.3 Entire Agreement. This Agreement and the Exhibits hereto and
thereto, and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
6.4 Separability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
6.5 Amendment and Waiver. Except as otherwise provided herein, 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, either
retroactively or prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Company and the Purchasers, or,
to the extent such amendment affects only one Purchaser, by the Company and such
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individual Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon each future holder of any security purchased under
this Agreement (including securities into which such securities have been
converted) and the Company.
6.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective when delivered
personally, or sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested) in each case to the appropriate
address set forth below:
If to the Company: AMDL, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, President
If to a Purchaser: At the address set forth on each Purchaser's
Signature Page
6.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth on the Purchase Signature Page hereto.
PURCHASERS
(By Counterpart Form - SP Pages)
COMPANY
AMDL, INC.
By:_______________________________________
Xxxx X. Xxxxxx, President
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PURCHASER SIGNATURE PAGE
The undersigned Purchaser has read the Securities Purchase Agreement dated
as of May 5, 1999 and acknowledges that execution of this Purchaser Signature
Page shall constitute the undersigned's execution of such agreement.
I hereby subscribe for an aggregate of _________ shares at $.68 per share
and shall deliver good funds for the shares in the following Tranches:
Number of Shares Closing Date* Aggregate Purchase Price
----------------- ------------- ------------------------
*No later than May 31, 1999
I have executed and delivered the Escrow Agreement, Exhibit "A" hereto.
I am a resident of the State of __________________.
--------------------------------------------------------------------------------
Please print above the exact name(s) in which the shares of Common Stock
are to be held
My address is:
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PURCHASERS (Please initial one)
Category I The undersigned is an individual (not a partnership,
---------- corporation, etc.) whose individual net worth, or joint
net worth with the undersigned's spouse, presently
exceeds $1,000,000.
Explanation. In calculation of net worth the
undersigned may include equity in personal property and
real estate, including the undersigned's principal
residence, cash, short term investments, stocks and
securities. Equity in personal property and real estate
SP-1
should be based on the fair market value of such
property less debt secured by such property.
Category II The undersigned is an individual (not a partnership,
---------- corporation, etc.) who had an individual income in
excess of $200,000 in 1997 and 1998, or joint income
with the undersigned's spouse in excess of $300,000 in
1997 and 1998, and has a reasonable expectation of
reaching the same income level in 1999.
Category III The undersigned is a bank as defined in Section
---------- 3(a)(2) of the Securities Act or any savings and loan
association or other institution as defined in Section
3(a)(5)(A) of the 1933 Act, whether acting in its
individual or fiduciary capacity; a broker or dealer
registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined
in Section 2(13) of the Securities Act; 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 Securities Act; Small Business
Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; 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; an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974
if the investment decision is made by the 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 advisor, 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 who are
"Accredited Investors" as defined in Section 230.501(a)
of the Securities Act.
-------------------------------------------------------
-------------------------------------------------------
(describe entity)
Category IV The undersigned is a private business development
---------- company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
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-------------------------------------------------------
(describe entity)
SP-2
Category V The undersigned is an organization described in Section
--------- 501(c)(3) of the Internal Revenue Code, 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.
-------------------------------------------------------
-------------------------------------------------------
(describe entity)
Category VI --------- The undersigned is a director or executive officer of
the Company.
Category VII The undersigned is a trust, with total assets in
--------- excess of $5,000,000, not formed for the specific
purpose of acquiring the Notes offered, whose purchase
is directed by a "Sophisticated Person" as described in
Section 230.506(b)(2)(ii) of the Securities Act.
Category VIII The undersigned is an entity in which all of the
--------- equity owners are "accredited investors" as defined in
Section 230.501(a) of the Securities Act.
-------------------------------------------------------
-------------------------------------------------------
(describe entity)
SP-3
Executed this _____ day of _____________________, 1999 at ____________________,
________________.
SIGNATURES
INDIVIDUAL
Address to Which Correspondence Should be
Directed
____________________________________ __________________________________________
Signature (Individual) Name
__________________________________________
Street address
__________________________________________ __________________________________________
Signature (All record holders should sign) City, State and Zip Code
__________________________________________ ____________________________________________
Name(s) Typed or Printed Tax Identification or Social Security Number
( )
____________________________________________
Telephone Number
CORPORATION, PARTNERSHIP, TRUST, OR OTHER ENTITY
Address to Which Correspondence Should be
Directed:
__________________________________________
Name of Entity
__________________________________________ ____________________________________________
Type of Entity (i.e., corporation, Xxxxxx Xxxxxxx
partnership, etc.)
__________________________________________ _____________________________________________
State of Formation of Entity City, State and Zip Code
By: ______________________________________ _____________________________________________
*Signature Tax Identification or Social Security Number
( )
Its:______________________________________ _____________________________________________
Title Telephone Number
__________________________________________
Name Typed or Printed
SP-4
*If shares of Common Stock are being subscribed for by an entity, the
Certificate of Signatory must also be completed.
CERTIFICATE OF SIGNATORY
To be completed if shares of Common Stock are being subscribed for by an
entity.
I,___________________________________, am the ___________________________
of______________________________________(the "Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Securities Purchase Agreement and to purchase and
hold the shares of Common Stock. The Securities Purchase Agreement has been duly
and validly executed on behalf of the Entity and constitutes a legal and binding
obligation of the Entity.
IN WITNESS WHEREOF, I have hereto set my hand this ______ day of
_____________________, 1999.
_________________________
Signature
ACCEPTANCE
AGREED AND ACCEPTED:
AMDL, INC.
By:__________________________________________
Xxxx X. Xxxxxx, President
Date: _________________________, 1999
SP-5
EXHIBIT "A"
ESCROW AGREEMENT
THIS ESCROW AGREEMENT made and entered into this 12th day of May, 1999, by and
between AMDL, Inc., a Delaware Corporation, (hereinafter called "AMDL"); the
several Purchasers under the AMDL, Inc. Securities Purchase Agreement dated May
5, 1999 (hereinafter called "Purchasers" and the "Purchase Agreement"); San
Xxxxxx Consulting Group and Greenwich Avenue Finance, Inc. (hereinafter
"Purchasers Agents") and Xxxxxx Xxxxxxxxx, Attorney at Law, (hereinafter called
the "Escrow Agent").
WHEREAS, AMDL and the Purchasers have entered into the Purchase Agreement
attached hereto as Exhibit A and incorporated herein by reference. Terms defined
therein have the identical meaning when used herein unless other stated. ; and
WHEREAS, Section 2 of the Purchase Agreement entitled CLOSING(S) sets for that
AMDL shall deliver certificates registered in the name the Purchaser(s) upon
receipt of Notice to AMDL of the receipt of good funds by the Escrow Agent for
the respective Purchaser(s) and that the delivery of the shares of Common Stock
to the Purchaser(s) and the delivery of the Purchase Price to AMDL shall be
completed in accordance with the terms of this Escrow Agreement; and
WHEREAS, AMDL and the Purchasers Agents entered into a Financial Consulting
Agreements dated February 4, 1999 attached hereto as Exhibit B and C and
incorporated herein by reference. Terms defined therein have the identical
meaning when used herein unless other stated wherein the Purchasers Agents are
to receive compensation in cash and/or securities pursuant to the terms thereof.
NOW THEREFORE, in consideration of the premises and agreements set forth herein,
the parties hereto agree as follows:
1. Upon execution of this Escrow Agreement by all parties, AMDL and the
Purchasers Agents shall provide the Escrow Agent with written Wire Transfer
Instructions for the disbursement of funds thereto. In addition, the Escrow
Agent shall have established the following separate Colorado Lawyers Trust
Account Foundation Account for the receipt of the Purchase Price from the
Purchasers:
Bank One Colorado ABA # 102 001 017
Xxxxxx Xxxxxxxxx Attorney at Law Trust Account # 190 783 306
2. Thereafter, upon receipt of a duly executed Purchaser Signature Page and
receipt of good funds corresponding thereto, the Escrow Agent shall that
same day provide a
written Notice of Receipt of Funds and Intended Disbursement to AMDL with a
copy to the Purchasers Agents. Said Notice shall set forth the intended
disbursement of funds and securities to AMDL, the Purchasers and the
Purchasers Agents.
3. On or before the next business day, AMDL and the Purchasers Agents shall
provide a written Notice of Revision to the Escrow Agent of any revisions
to the intended disbursement. In the absence of such Notice of Revision,
the Notice of Receipt of Funds and Intended Disbursement shall be deemed
accepted by AMDL and the Purchasers Agents.
4. On or before the next business day following the delivery of the Notice of
Receipt of Funds and Intended Disbursement, the Purchasers Agents shall
deliver to the Escrow Agent and AMDL written notice ("Agent Notice") of
their election to receive payment of the cash portion of the Financing
Bonus in cash or Shares, pursuant to Section 3.2.1 of the Financial
Consulting Agreements, Exhibits B and C hereto. If the payment is to be
made in cash, the Financing Bonus shall be delivered to the respective
Purchasers Agent out of funds held by the Escrow Agent simultaneously with
the delivery of the Purchase Price to AMDL pursuant to Paragraph 5 herein.
If the payment of the cash portion of the Financing Bonus is to be made in
Shares, the Purchasers Agent shall deliver with the Agent Notice a
completed Purchasers Agent Signature Page in the form attached hereto as
Exhibit E. Upon receipt of the Agent Notice and the completed Purchasers
Agent Signature Page, AMDL shall deliver the corresponding number of Shares
registered in the name of the Purchasers Agent to the Escrow Agent for
delivery to the Purchasers Agent in accordance with Paragraph 5, herein.
5. Within three business days of delivery of the Notice of Receipt of Funds
and Intended Disbursement by the Escrow Agent and the Agent Notice to AMDL,
AMDL shall deliver to the Escrow Agent the following: (i) stock
certificates free of restrictive legend or notation representing the
corresponding number of Shares registered in the name of each Purchaser,
(ii) the restricted securities to be issued to either Purchasers Agent
registered in the name thereof pursuant to section 3.1.2 of the Financial
Consulting Agreements, Exhibits B and C hereto, and, if applicable, (iii)
stock certificates free of restrictive legend or notation representing the
corresponding number of Shares registered in the name of each Purchasers
Agent. Upon receipt of items (i) and (ii) and, if applicable (iii), the
Escrow Agent shall by the next business day wire transfer the Purchase
Price to AMDL less only the disbursement of funds to either Purchasers
Agent, if applicable, the cost of the wires and delivery of the
certificates to the Purchaser and the Purchasers Agent, by overnight
courier to the address specified by the Purchaser or Purchasers Agents and
less any fees owed to the Escrow Agent pursuant to paragraph 6, below. In
addition, the Escrow Agent shall wire transfer an aggregate of $6,000 to
Xxxxxxxxxxx Xxxxx & Xxxxxxxxx LLP out of the first funds received by the
Escrow Agent from the Purchasers. In the event, the certificates are not
received within three business days of Notice by the Escrow Agent of
receipt of good funds, or said certificates do not conform in all respects
to the
Purchaser Signature Page or the Purchasers Agent Signature Page, the Escrow
Agent shall notify the Purchasers Agent in writing by fax with a copy to
AMDL and upon written request of the Purchasers Agent, with a copy to AMDL,
return the Purchase Price to the Purchaser less the cost of returning the
funds.
6. The Escrow Agent shall receive a fee of $2,000 for his services under this
Agreement, which fee is deemed to be full and valid consideration to the
Stock Escrow Agent for its services hereunder upon execution of this
Agreement. The parties agree that the fees payable to the Escrow Agent
pursuant to this Paragraph 6 shall be paid out of the first funds received
by the Escrow Agent from the Purchasers.
7. AMDL, the Purchaser(s) and the Purchasers Agents shall indemnify and hold
harmless the Escrow Agent from any and all liability for performance under
this Agreement. The Escrow Agent shall have the right to file an
Interpleader Action in the Colorado State courts should any dispute arise
between the parties as to the right, title or interest in any funds or
securities deposited with the Escrow Agent as a result of this Agreement.
8. This Escrow Agreement shall terminate on May 31, 1999, unless extended by
AMDL, in its sole discretion, by written notice by AMDL to the Escrow Agent
and the Purchasers Agent.
9. Notices pursuant to this Agreement shall be sent as follows:
AMDL: Xxxx X. Xxxxxx, President
AMDL, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Phone: 000 000 0000 Fax: 000 000 0000
cc: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
Phone: 000 000 0000 Fax: 000 000 0000
Escrow Agent: Xxxxxx Xxxxxxxxx, Esq.
00000 X. 000xx Xx.
Xxxxxxxxxxx, XX 00000
Phone: 000 000 0000 Fax: 000 000 0000
Purchasers Agents: Xxxxxx Xxxxxx, General Manager
San Xxxxxx Consulting Group
000 Xxxxxxx Xx.
Xxx Xxxxxx, XX 00000
Phone: 000 000 0000 Fax: 000 000 0000
Xxxx Xxxxxx, President
Greenwich Avenue Finance, Inc.
0000 Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 000 000 0000 Fax: 000 000 0000
IN WITNESS WHEREOF the parties have caused this Escrow Agreement to be executed
and so each hereby warrant and represent that each respective signatory whose
signature appears below has been and is on the date of the Agreement, as and
when signed by them, duly authorized by all necessary and appropriate action to
execute the Agreement which shall be effective as to them as of the date so
indicated by each such party.
AMDL, INC. SAN XXXXXX CONSULTING GROUP
_________________________ _______________________________
Xxxx X. Xxxxxx, President Xxxxxx Xxxxxx, General Manager
Dated: May __, 1999 Dated: May __, 0000
XXXXXX XXXXX XXXXXXXXX XXXXXX FINANCE, INC.
______________________ _______________________________
Xxxxxx Xxxxxxxxx Xxxx Xxxxxx, President
Dated: May __, 1999 Dated: May __, 1999
PURCHASERS
By execution of the Purchaser Escrow Signature Page
In the Form Attached hereto as Exhibit D.
Exhibit D
PURCHASER ESCROW SIGNATURE PAGE
The undersigned Purchaser has read the Escrow Agreement, dated May 12,
1999, and acknowledges that the execution of this Purchaser Escrow Signature
Page shall constitute the undersigned's execution of such Agreement.
___________________________________
(Signature of Purchaser)
___________________________________
(Print Name of Purchaser)
$__________ Amount of Purchase Obligation
____________ Aggregate Number of Shares Issuable in Respect of
Such Purchase Obligation
Exhibit E
PURCHASERS AGENT SIGNATURE PAGE
The undersigned Purchasers Agent has read the Securities Purchase Agreement
dated as of May 5, 1999 and acknowledges that execution of this Purchasers Agent
Signature Page shall constitute the undersigned's execution of such agreement.
I hereby subscribe for an aggregate of _________ shares at $.68 per share
in consideration for the cancellation of indebtedness in the amount of
$___________________ payable by the Company pursuant to that certain Financial
Consulting Agreement dated February 4, 1999 between the undersigned and the
Company.
I have executed and delivered the Escrow Agreement, Exhibit "A" hereto.
I am a resident of the State of __________________.
________________________________________________________________________________
Please print above the exact name(s) in which the shares of Common Stock
are to be held
My address is: ___________________________________________
___________________________________________
___________________________________________
PURCHASERS AGENT (Please initial one)
Category I __________ The undersigned is an individual (not a partnership,
corporation, etc.) whose individual net worth, or joint
net worth with the undersigned's spouse, presently
exceeds $1,000,000.
Explanation. In calculation of net worth the undersigned
may include equity in personal property and real estate,
including the undersigned's principal residence, cash,
short term investments, stocks and securities. Equity in
personal property and real estate should be based on the
fair market value of such property less debt secured by
such property.
Category II __________ The undersigned is an individual (not a partnership,
corporation, etc.) who had an individual income in
excess of $200,000 in 1997 and 1998, or joint income
with the undersigned's spouse in excess of
$300,000 in 1997 and 1998, and has a reasonable
expectation of reaching the same income level in 1999.
Category III __________ The undersigned is a bank as defined in Section
3(a)(2) of the Securities Act or any savings and loan
association or other institution as defined in Section
3(a)(5)(A) of the 1933 Act, whether acting in its
individual or fiduciary capacity; a broker or dealer
registered pursuant to Section 15 of the Securities
Exchange Act of 1934; an insurance company as defined
in Section 2(13) of the Securities Act; 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 Securities Act; Small
Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958; 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; an employee benefit plan within the
meaning of the Employee Retirement Income Security Act
of 1974 if the investment decision is made by the 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 advisor,
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 who are
"Accredited Investors" as defined in Section
230.501(a) of the Securities Act.
______________________________________________________
______________________________________________________
(describe entity)
Category IV __________ The undersigned is a private business development
company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
______________________________________________________
______________________________________________________
(describe entity)
Category V __________ The undersigned is an organization described in
Section 501(c)(3) of the Internal Revenue Code,
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.
_____________________________________________________
_____________________________________________________
(describe entity)
Category VI __________ The undersigned is a director or executive officer of
the Company.
Category VII __________ The undersigned is a trust, with total assets in
excess of $5,000,000, not formed for the specific
purpose of acquiring the Notes offered, whose
purchase is directed by a "Sophisticated Person" as
described in Section 230.506(b)(2)(ii) of the
Securities Act.
Category VIII __________ The undersigned is an entity in which all of the
equity owners are "accredited investors" as defined
in Section 230.501(a) of the Securities Act.
_____________________________________________________
_____________________________________________________
(describe entity)
Executed this _____ day of _____________________, 1999 at ____________________,
________________.
SIGNATURES
INDIVIDUAL
Address to Which Correspondence Should be
Directed
____________________________________ __________________________________________
Signature (Individual) Name
__________________________________________
Street address
____________________________________ __________________________________________
Signature (All record holders should City, State and Zip Code
sign)
____________________________________ ____________________________________
Name(s) Typed or Printed Tax Identification or Social Security
Number
(_______)_________________________________
Telephone Number
CORPORATION, PARTNERSHIP, TRUST, OR OTHER ENTITY
Address to Which Correspondence Should be
Directed:
____________________________________
Name of Entity
____________________________________ _________________________________________
Type of Entity (i.e., corporation, Xxxxxx Xxxxxxx
partnership, etc.)
____________________________________ _________________________________________
State of Formation of Entity City, State and Zip Code
By: _________________________________ _________________________________________
*Signature Tax Identification or Social Security
Number
Its: ________________________________ (_______)_______________________________
Title Telephone Number
______________________________________
Name Typed or Printed
*If shares of Common Stock are being subscribed for by an entity, the
Certificate of Signatory must also be completed.
CERTIFICATE OF SIGNATORY
To be completed if shares of Common Stock are being subscribed for by an entity.
I,________________________________, am the ___________________________ of
_____________________________________________(the "Entity").
I certify that I am empowered and duly authorized by the Entity to execute
and carry out the terms of the Securities Purchase Agreement and to purchase and
hold the shares of Common Stock. The Securities Purchase Agreement has been duly
and validly executed on behalf of the Entity and constitutes a legal and binding
obligation of the Entity.
IN WITNESS WHEREOF, I have hereto set my hand this ______ day of
_____________________, 1999.
____________________________________
Signature
ACCEPTANCE
AGREED AND ACCEPTED:
AMDL, INC.
By: ___________________________
Xxxx X. Xxxxxx, President
Date: _________________________, 1999
EXHIBIT "B"
[AMDL SEC REPORTS]