1
Exhibit 10.7
BIOFACTORS, INC.
SECURED NOTE AND WARRANT PURCHASE AGREEMENT
December 1, 1994
2
TABLE OF CONTENTS
Page
----
1. Purchase and Sale of the Notes......................................................................... 1
1.1 Sale and Issuance of the Notes.............................................................. 1
1.2 Closing..................................................................................... 1
2. Maturity............................................................................................... 2
3. Warrants............................................................................................... 2
3.1 Issue at Closing............................................................................ 2
3.2 Warrant Adjustments......................................................................... 2
3.3 Purchase Price.............................................................................. 2
4. Security Agreement..................................................................................... 2
5. Registration and Other Rights.......................................................................... 3
6. Representations and Warranties of the Company.......................................................... 3
6.1 Organization, Good Standing, Qualification and
Corporate Power............................................................................. 3
6.2 Capitalization.............................................................................. 3
6.3 Subsidiaries................................................................................ 4
6.4 Authorization............................................................................... 4
6.5 Valid Issuance of Notes, Warrants and Common
Stock....................................................................................... 4
6.6 Financial Statements........................................................................ 4
6.7 Governmental Consents....................................................................... 4
6.8 Litigation.................................................................................. 5
6.9 Patents and Trademarks...................................................................... 5
6.10 Compliance with Other Instruments........................................................... 5
7. Representations and Warranties of the Purchasers....................................................... 6
7.1 Authorization............................................................................... 6
7.2 Purchase Entirely for Own Account........................................................... 6
7.3 Restricted Securities....................................................................... 6
7.4 Accredited Purchaser Status................................................................. 6
7.5 Overseas Purchasers......................................................................... 6
7.6 Further Limitations on Disposition.......................................................... 7
7.7 Legends..................................................................................... 7
8. Conditions of Purchaser's Obligations at Closing....................................................... 8
8.1 Representations and Warranties.............................................................. 8
8.2 Performance................................................................................. 8
8.3 Compliance Certificate...................................................................... 8
8.4 Secretary's Certificate..................................................................... 8
8.5 Qualifications.............................................................................. 8
-i-
3
8.6 Consents and Waivers........................................................................ 8
8.7 Rights Agreement............................................................................ 8
8.8 Security Agreement.......................................................................... 9
9. Miscellaneous.......................................................................................... 9
9.1 Survival of Warranties...................................................................... 9
9.2 Successors and Assigns...................................................................... 9
9.3 Governing Law............................................................................... 9
9.4 Counterparts................................................................................ 9
9.5 Titles and Subtitles........................................................................ 9
9.6 Notices..................................................................................... 9
9.7 Entire Agreement; Amendments and Waivers.................................................... 10
9.8 Severability................................................................................ 10
SCHEDULES AND EXHIBITS
SCHEDULE A Schedule of Purchasers
SCHEDULE B Schedule of Exceptions
EXHIBIT A Form of Secured Promissory Note
EXHIBIT B Form of Warrant
EXHIBIT C Form of Security Agreement
EXHIBIT D Form of First Amendment to Investors' Rights
Agreement
-ii-
4
SECURED NOTE AND WARRANT PURCHASE AGREEMENT
THIS SECURED NOTE AND WARRANT PURCHASE AGREEMENT (this
"Agreement") is made as of the 1st day of December, 1994, by and between
BioFactors, Inc., a Delaware corporation (the "Company"), and the purchasers
listed on Schedule A hereto (referred to herein, singly, as a "Purchaser" and,
collectively, as the "Purchasers").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of the Notes.
1.1 Sale and Issuance of the Notes.
(a) The Company has authorized the issuance
to the Purchasers of the Company's Secured Promissory Notes in the form set
forth in Exhibit A hereto (collectively, the "Notes" and each, individually, a
"Note") in the aggregate principal amount of up to $750,000.
(b) Subject to the terms and conditions of
this Agreement, each Purchaser agrees, severally, but not jointly, to purchase
at the Closing (as defined below), and the Company agrees to sell and issue to
each Purchaser at the Closing, a Note in the principal amount set forth opposite
each Purchaser's name on the Schedule of Purchasers attached hereto as Schedule
A at a purchase price equal to the original principal amount of such Note.
1.2 Closing. The initial purchase and sale of the
Notes shall take place at 10:00 a.m. on December 1, 1994, at the offices of
Xxxxx, Xxxxxx & Xxxxxx, L.L.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, or at
such other date, time and place as shall be designated by the Company (the
"Closing"). At or promptly after the Closing, the Company shall deliver to such
Purchaser the Note that such Purchaser is purchasing against receipt of either
(a) a wire transfer of the purchase price to an account designated by the
Company not less than two (2) business days prior to the date of the Closing, or
(b) evidence of cancellation of indebtedness of the Company to the Purchaser in
an amount equal to or greater than the purchase price. If the Notes issued or
sold at the Closing represent, in the aggregate, less than the entire amount of
principal authorized as set forth in Section 1.1(a), the Company may issue
additional Notes at one or more subsequent closings held within sixty (60) days
of the Closing. Upon execution of counterpart signature pages to each of this
Agreement, the Rights Agreement (as defined below) and the Security Agreement
(as defined below), any additional purchaser purchasing a Note at any such
subsequent closing shall
5
be added to Schedule A and shall be deemed to be a Purchaser for purposes of
this Agreement.
2. Maturity. The Notes shall mature and become due and payable
in full at the close of business on the date which is 180 days after the
Closing.
3. Warrants. The Company has authorized the issuance of
warrants, the form of which is attached hereto as Exhibit B (the "Warrants"), to
purchase (subject to the succeeding sentence) up to an aggregate of 250,000
shares of the Common Stock of the Company at a purchase price of $3.00 per share
(the "Exercise Price"). The Company also has authorized the adjustment of the
Exercise Price and the aggregate number of shares of Common Stock issuable upon
exercise of the Warrants in the manner set forth in Section 3.2.
3.1 Issue at Closing. At the Closing, and at any
subsequent closing, the Company shall issue to each Purchaser purchasing a Note
against receipt of the Purchase Price (as defined in Section 3.3), a Warrant to
purchase (subject to adjustment pursuant to Section 3.2) such number of shares
of Common Stock as is derived by dividing by $3.00 the principal amount of the
Note so purchased by such Purchaser. The initial number of shares for which each
Purchaser's Warrant is exercisable is set forth opposite such Purchaser's name
on Schedule A.
3.2 Warrant Adjustments. If the offering price (on an
as-converted-to Common Stock basis) of securities issued in the Company's next
offering of Common Stock (or securities convertible into or exchangeable for
Common Stock) (the "Next Financing Price") is less than $4.00 per share, then
(a) the aggregate number of shares of Common Stock issuable upon exercise of the
Warrants shall be adjusted to equal the quotient obtained by dividing $750,000
by seventy-five percent (75%) of the Next Financing Price, (b) the number of
shares of Common Stock issuable upon exercise of each Warrant shall be adjusted
to equal the quotient obtained by dividing the initial principal amount of the
Note so purchased by such Purchaser by seventy-five percent (75%) of the Next
Financing Price and (c) the Exercise Price shall be adjusted so as to equal
seventy-five percent (75%) of the Next Financing Price.
3.3 Purchase Price. The purchase price for each
Warrant shall equal $.01 per share of Common Stock for which such Warrant is
exercisable (the "Purchase Price"), which is hereby agreed to be the fair market
value of such Warrant.
4. Security Agreement. The Company's obligations under the
Notes shall be secured by a security agreement between the Company and the
Purchasers in the form attached hereto as Exhibit C (the "Security Agreement").
-2-
6
5. Registration and Other Rights. Upon the amendment of the
Investors' Rights Agreement dated as of June 1, 1994, by and between the Company
and the holders of the Company's Series A Convertible Preferred Stock identified
therein (the "Rights Agreement"), to be effected by the First Amendment to
Investors' Rights Agreement attached hereto as Exhibit D (the "Amendment to
Rights Agreement"), the Purchasers will become parties to the Rights Agreement,
as so amended, and the shares of Common Stock issuable upon the exercise of the
Warrants shall become subject thereto.
6. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Purchaser that, except for the exceptions
set forth on the Schedule of Exceptions attached hereto as Schedule B and
furnished to each Purchaser, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
6.1 Organization, Good Standing, Qualification and
Corporate Power.
(a) The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted. The Company is duly
qualified to transact business, and is in good standing in each jurisdiction in
which the failure so to qualify would have a material adverse effect on its
business or properties.
(b) The Company has all requisite legal and
corporate power to execute and deliver this Agreement, the Security Agreement,
the Amendment to Rights Agreement, to issue and sell the Notes hereunder, and to
issue the Warrants hereunder and the Common Stock issuable upon exercise of such
Warrants, and to carry out and perform its obligations under the terms of this
Agreement, the Notes, the Security Agreement, the Rights Agreement and the
Warrants.
6.2 Capitalization.
(a) The authorized capital of the Company
consists of (i) Ten million (10,000,000) shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock"), of which three million, five hundred
thousand (3,500,000) shares have been designated "Series A Convertible Preferred
Stock" (the "Series A Preferred Stock"), of which 2,052,407 shares are issued
and outstanding and (ii) Ten million (10,000,000) shares of Common Stock, par
value $.01 per share (the "Common Stock"), of which 77,389 shares are issued and
outstanding.
(b) Warrants to purchase a total of 263,938
shares of Common Stock, and options to purchase a total of 759,488 shares of
Common Stock, are currently outstanding. The
-3-
7
Company has reserved 2,052,407 shares of Common Stock for issuance upon
conversion of the Series A Preferred Stock, 263,938 shares of Common Stock for
issuance upon exercise of outstanding warrants and 759,488 shares of Common
Stock for issuance upon exercise of outstanding options.
6.3 Subsidiaries. The Company does not presently own
or control, directly or indirectly, any interest in any other corporation,
association, or other business entity.
6.4 Authorization. This Agreement, the Notes, the
Security Agreement, the Amendment to Rights Agreement and the Warrants have been
duly authorized, executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their respective terms.
6.5 Valid Issuance of Notes, Warrants and Common
Stock. The issuance, sale and delivery of the Notes, and the issuance and
delivery of the Warrants, have been duly authorized by all required corporate
action on the part of the Company, and when issued, sold, and delivered in
accordance with the terms hereof and thereof for the consideration expressed
herein and therein, will be duly and validly issued, fully paid and
non-assessable and, based in part upon the representations and warranties of the
Purchasers in this Agreement, will be issued in compliance with all applicable
federal and state securities laws. The Common Stock issuable upon Exercise of
the Warrants has been duly and validly reserved for issuance and, upon issuance
in accordance with the terms of the Warrants, shall be duly and validly issued,
fully paid, and non-assessable, and issued in compliance with all applicable
securities laws, as presently in effect, of the United States and each of the
states whose securities laws govern the issuance of any of the Warrants
hereunder. The Warrants (and the Common Stock issuable upon exercise thereof)
will be free and clear from any liens or encumbrances other than those created
by, or imposed upon, the holders thereof through no action of the Company;
provided, however, that the Warrants (and the Common Stock issuable upon
exercise thereof) be subject to restrictions on transfer under state and/or
federal securities laws as set forth herein.
6.6 Financial Statements. The Company has delivered
to each Purchaser its unaudited balance sheet and unaudited statements of
operations and cash flows as of August 31, 1994 (the "Financial Statements").
The Financial Statements fairly present the financial condition and results of
operations of the Company as of the date and during the period indicated
therein.
6.7 Governmental Consents. Except as listed on
Schedule B, no consent, approval, order, or authorization of, or registration,
qualification, designation, declaration or filing with, any United States
federal, state or local governmental
-4-
8
authority on the part of the Company is required in connection with the
consummation of the transactions contemplated by this Agreement.
6.8 Litigation. Except as described on Schedule B
hereto, (a) there is no action, suit, proceeding, or investigation pending or to
the Company's knowledge currently threatened against the Company (nor, to the
Company's knowledge, is there any reasonable basis therefor) which questions the
validity of this Agreement, the Notes, the Warrants, the Amendment to Rights
Agreement or the Security Agreement, or the right of the Company to enter into
such agreements or instruments, or to consummate the transactions contemplated
hereby or thereby, or which would, if adversely determined, result, either
individually or in the aggregate, in any material adverse change in the assets,
condition, affairs, or prospects of the Company, financially or otherwise, or
any change in the current equity ownership of the Company, including, without
limitation, actions pending or threatened involving the prior employment of any
of the Company's employees, their use in connection with the Company's business
of any information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers; (b)
the Company 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; and (c) there is no action, suit, proceeding or investigation
by the Company currently pending or which the Company intends to initiate.
6.9 Patents and Trademarks. The Company has
sufficient title and ownership, or other rights to, all patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights, and processes necessary for its business as now conducted. Except as
shown on Schedule B, there are no outstanding options, licenses, or agreements
of any kind relating to the foregoing, nor is the Company 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.
The Company has not received any communications or claims alleging that the
Company 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.
6.10 Compliance with Other Instruments. Except as
noted in Schedule B hereto, the Company is not in violation or default of any
provisions of its Certificate of Incorporation 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 its knowledge, of any provision of federal or state statute,
rule or regulation, license, or permit applicable to the Company, the
-5-
9
violation or default of which would have a material adverse effect on the
Company. The execution, delivery, and performance of this Agreement, the Notes,
the Security Agreement, the Warrants and the Amendment to Rights Agreement 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 which results in the creation of any lien, charge, or encumbrance upon
any assets of the Company. The Company does not have any knowledge of any
termination or material breach or anticipated termination or material breach by
the other parties to any material contract or commitment to which it is a party
or to which any of its assets is subject.
7. Representations and Warranties of the Purchasers. Each
Purchaser severally, but not jointly, hereby represents and warrants to the
Company that:
7.1 Authorization. Each of this Agreement, the
Security Agreement and the Rights Agreement (as amended) has been duly executed
and delivered by such Purchaser and constitutes the Purchaser's valid and
legally binding obligations, enforceable in accordance with their terms. Each
Purchaser represents that he or it has full power and authority to enter into
this Agreement, the Security Agreement and the Rights Agreement.
7.2 Purchase Entirely for Own Account. The Note and
the Warrant to be received by such Purchaser pursuant to the terms hereof and
the Common Stock issuable upon exercise of the Warrant (collectively, the
"Securities") will be acquired for investment for such Purchaser's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and such Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same.
7.3 Restricted Securities. Such Purchaser understands
that the Securities he or it is receiving hereunder are characterized as
"restricted securities" under the 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 of 1933, as amended (the
"Act"), only in certain limited circumstances.
7.4 Accredited Purchaser Status. Each Purchaser
represents and warrants that he or it is an "Accredited Investor" within the
meaning of Rule 501(a) of Regulation D, promulgated under the Act.
7.5 Overseas Purchasers. If such Purchaser's
principal address as set forth on Schedule A is a location
-6-
10
outside of the United States of America and its territories, and such Purchaser
is not an Accredited Investor, such Purchaser (an "Overseas Purchaser"):
(a) is not a U.S. person (as defined in
Securities Act Rule 902(o)) and is not acquiring the Note or the Warrant
hereunder for the account or benefit of any U.S. person;
(b) will resell the Note or the Warrant (or
Common Stock issued upon exercise of the Warrant) acquired hereunder only (i) in
accordance with the provisions of Regulation S promulgated under the Securities
Act (ii) pursuant to an effective registration statement under the Securities
Act, or (iii) pursuant to an available exemption from registration under the
Securities Act, and only in compliance with the terms and provisions of this
Agreement;
(c) will not offer or sell the Note or the
Warrant (or Common Stock issuable upon exercise of the Warrant) acquired
hereunder to a U.S. person or to or for the account or benefit of a U.S. person
prior to the expiration of the one-year period after the date of the Closing at
which such Purchaser acquired such Note or Warrant.
7.6 Further Limitations on Disposition. Without in
any way limiting the representations set forth above, such Purchaser further
agrees not to make any disposition of the Note or the Warrant (or the Common
Stock issuable upon the exercise of the Warrant) unless 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 such
Purchaser shall have notified the Company of the proposed disposition and shall
have furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and, if reasonably requested by the Company, such
Purchaser shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the Act. It is agreed that the Company will
not require opinions of counsel for transactions made pursuant to Rule 144
except if reasonably requested by the Company.
7.7 Legends. It is understood that the Notes and the
Warrants may bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. 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
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 PROMULGATED UNDER SUCH ACT."
-7-
11
(b) Any legend required by the laws of the
State of Delaware or applicable state securities laws.
8. Conditions of Purchaser's Obligations at Closing. The
obligations of each Purchaser under subsection 1.1(b) 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 Purchaser who
does not consent in writing thereto:
8.1 Representations and Warranties. The represen-
tations and warranties of the Company contained in Section 6 shall be true on
and as of the Closing Date with the same effect as though such representations
and warranties had been made on and as of the date of the Closing.
8.2 Performance. The Company 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.
8.3 Compliance Certificate. The President or
Treasurer of the Company shall deliver to each Purchaser who so requests at the
Closing a certificate certifying that the relevant conditions specified in
Sections 8.1 and 8.2 have been fulfilled.
8.4 Secretary's Certificate. The Secretary of the
Company shall deliver to each Purchaser who so requests at the Closing a
certificate certifying: (a) that attached thereto is a true and complete copy of
the Bylaws of the Company as then in effect; (b) that attached thereto is a true
and complete copy of all resolutions adopted by the Board of Directors of the
Company authorizing the transactions contemplated hereby; (c) that attached to
thereto is a true and correct copy of the Company's Certificate of Incorporation
as then in effect; and (d) to the incumbency and specimen signatures of each
officer of the Company executing this Agreement and the other agreements,
instruments and certificates contemplated hereby.
8.5 Qualifications. The Company shall have obtained
all necessary Blue Sky law permits and qualifications, or secured exemptions
therefrom, required by any state for the offer and sale of the Notes and the
issuance of the Warrants (and the sale and issuance of any Common Stock issuable
upon exercise of the Warrants).
8.6 Consents and Waivers. The Company shall have
obtained any and all consents and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement.
8.7 Rights Agreement. The Company, the Purchasers and
such parties to the Rights Agreement as are
-8-
12
required to effect amendment thereof in accordance with its terms shall have
executed and delivered the Amendment to the Rights Agreement.
8.8 Security Agreement. The Company and the
Purchasers shall have executed and delivered the Security Agreement.
9. Miscellaneous.
9.1 Survival of Warranties. The warranties,
representations, and covenants of the Company and the Purchasers 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 Purchasers or the
Company.
9.2 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. 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.
9.3 Governing Law. This Agreement shall be governed
by and construed under the laws of the State of Colorado, disregarding any
Colorado principles of conflicts of laws that would otherwise provide for the
application of the substantive laws of another jurisdiction.
9.4 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 Agreement.
9.5 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.
9.6 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 four (4) days after deposit with the United States Post Office or air courier
in the case of non-U.S. Purchasers, 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.
-9-
13
9.7 Entire Agreement; Amendments and Waivers. This
Agreement, the Notes, the Warrants and the Security Agreement constitute the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof. 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 holders of a majority of the debt
represented by the Notes then outstanding. Any amendment or waiver effected in
accordance with this Section 9.7 shall be binding upon each holder of any
securities acquired under this Agreement at the time outstanding (including
securities for which any such securities are exercisable), each future holder of
all such securities, and the Company.
9.8 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.
IN WITNESS WHEREOF, the parties have executed this Secured
Note and Warrant Purchase Agreement as of the date first above written.
BIOFACTORS, INC.
By: /s/ XXXXXX X. XXXX
----------------------------------
Title: President
--------------------------------
Address: 0000 Xxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
-10-
14
SIGNATURE PAGE TO BIOFACTORS, INC.
SECURED NOTE AND WARRANT PURCHASE AGREEMENT
Purchaser:
By: /s/ XXXXXX X. XXXX, XX.
----------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
--------------------------------------
Title: Director
-------------------------------------
Address: 0000 X. Xxxxxxx #000
Xxxxxxxxx, XX 00000
Purchaser: Admiral Capital Corporation,
as Trustee
By: /s/ XXXX X. XXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------
Title: President
-------------------------------------
Address: X.X. Xxx 000
Xxxxxxxx, XX 00000
Purchaser: AFRO-ASIA (DIGITAL ONE) PTE LTD.
By: /s/ TAN CHIN HOON
----------------------------------------
Name: Tan Chin Hoon
--------------------------------------
Title: Director
-------------------------------------
Address: 00 Xxxxxxxx Xxxx #00-00,
Xxxx Asia Building
Singapore 0106
Purchaser:
By: /s/ XXXXX XXXXXX
----------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
Title:
-------------------------------------
Address: 00 Xx Xxxxx Xxxxxx
Xxxxxxxxx 0000
Purchaser:
By: /s/ XXX XXXXXXXXXX
----------------------------------------
Name: Xxx Xxxxxxxxxx
--------------------------------------
Title:
-------------------------------------
Address:
Purchaser:
By: /s/ XXXXX X. XXXXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
--------------------------------------
Title:
-------------------------------------
Address:
Purchaser:
By: /s/ XXXXXXX XXXXX
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address:
Purchaser:
By: /s/ CHAI XXXXX XXXX
----------------------------------------
Name: Chai Xxxxx Xxxx
--------------------------------------
Title:
-------------------------------------
Address: 00 Xxxxxxx Xxxxx
#00-000
Xxxxxxxxx 0000
Purchaser:
By: /s/ GOH XXXXX XXXX
----------------------------------------
Name: Goh Xxxxx Xxxx
--------------------------------------
Title:
-------------------------------------
Address: 000 Xxxxxx Xxx
#00-00 Xxxxxxxxx
Xxxxxxxxx 2159
Purchaser:
By: /s/ XXXXXX X. XXXX
----------------------------------------
Name: Xxxxxx X. Xxxx
--------------------------------------
Title: Self
-------------------------------------
Address: c/o BioFactors Inc.
Purchaser:
By: /s/ XXX X. XXXXXX
----------------------------------------
Name: Xxx X. Xxxxxx
--------------------------------------
Title:
-------------------------------------
Address: X.X Xxx 000
Xxxx, XX 00000
Purchaser:
By: /s/ XXXXX X. XXXX
----------------------------------------
Name: Xxxxx X. Xxxx
--------------------------------------
Title: Trustee
-------------------------------------
Address: 000 Xxxxx Xx Xxxxxx
Xxxxx Xxxxxx Xxxxxxx, XX 00000
Purchaser:
By: /s/ XXXXX XXXXXXX
----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title:
-------------------------------------
Address: 0000 Xxxxxx Xx.
Xxxxx, XX 00000
Purchaser:
By: /s/ KAYWE TJIO
----------------------------------------
Name: Kaywe Tjio
--------------------------------------
Title: F Leonaris Trust Ltd.
-------------------------------------
Address:
Purchaser:
By:
----------------------------------------
Name: Xxxxxx Xxx Xxxx Xxxxxx
--------------------------------------
Title:
-------------------------------------
Address: 00 Xxxxxx Xxxxx Xxxxx Xxx 0
00000 Xxxxxx
Xxxxxxxx
Xxxxxxxx
Purchaser:
By: /s/ DAVIDS XXXXXXXXX/XXXXXX X. XXXXXX
----------------------------------------
Name: Davids Xxxxxxxxx/Xxxxxx X. Xxxxxx
--------------------------------------
Title: Partners
-------------------------------------
Address: 0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Purchaser:
By: /s/ E. XXXXXXX XXXXX
----------------------------------------
Name: E. Xxxxxxx XxXxx
--------------------------------------
Title:
-------------------------------------
Address: 0000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Purchaser:
By: /s/ XXXXXXXXX XXXXX XXXXXXX
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address:
Purchaser:
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title: VP Product Management & Development
-------------------------------------
Address:
Purchaser:
For and on behalf of Proto Company Limited
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title: Authorised Signatory
-------------------------------------
Address: 1601 Wing On Centre
000 Xxxxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Purchaser:
By: /s/ SOON XXXX XXX
----------------------------------------
Name: Soon Xxxx Xxx
--------------------------------------
Title:
-------------------------------------
Address:
Purchaser:
By: /s/ XXXXXXX XXX KIAH TECK
----------------------------------------
Name: Xxxxxxx Xxx Xxxx Xxxx
--------------------------------------
Title:
-------------------------------------
Address:
Purchaser: Walnut Capital Corp.
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------------
Title: President
-------------------------------------
Address:
Purchaser:
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title:
-------------------------------------
Address: 000 Xxxxx Xx.
Xxxxxxx, XX 00000
Purchaser:
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
Address: X.X. Xxx 0000
000 Xxxxxxx Xxxxxxx, XX 00000
Purchaser:
By: /s/ X. X. XXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
Address: X.X. Xxx 0000
000 Xxxxxx Xxxxxxx, XX 00000
Purchaser:
By: /s/ XXXXXXXX ZAYU MOH
----------------------------------------
Name: Xxxxxxxx Zayu Moh
--------------------------------------
Title: Director
-------------------------------------
Address:
Purchaser:
By: /s/ XXXXXXX X. XXXX
----------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------
Title: Self
-------------------------------------
Address: 00 Xxxxxx Xxxxx Xx.
Xxxxxxxxx, XX 00000
Purchaser:
By: /s/ XXXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Lawyer
-------------------------------------
Address: 000-000 Xxxxxx xx Xxxxx Xxxxx
Xxxxxx XX XXX0XX
Xxxxxx
-11-
15
Schedule A
SCHEDULE OF PURCHASERS
NO. OF SHARES
PRINCIPAL FOR WHICH
NAME OF AMOUNT OF PURCHASE WARRANT
PURCHASER NOTE PRICE EXERCISABLE
--------- ---- ----- -----------
SA-1
16
FIRST AMENDMENT TO SECURED NOTE
AND WARRANT PURCHASE AGREEMENT
This First Amendment to Secured Note and Warrant Purchase
Agreement (this "Amendment") is entered into as of this ___ day of July, 1995,
by and among BioFactors, Inc., a Delaware corporation (the "Company") and the
parties named on the signature pages hereto (all of such parties other than the
Company, collectively, the "Majority Noteholders").
WHEREAS, the Majority Noteholders are holders of Secured
Promissory Notes ("Notes") and warrants to purchase the Company's Common Stock
(the "Warrants") issued pursuant to that certain Secured Note and Warrant
Purchase Agreement (the "Note Agreement") dated as of December 1, 1994, by and
among the Company and the Purchasers named on Schedule 1 thereto, and,
collectively, are the holders of Notes representing in excess of fifty percent
of the aggregate principal amount of all the Notes outstanding as of the date
hereof;
WHEREAS, the Company has entered into a Subscription Agreement
of even date by and among the Company and certain parties (the "New
Noteholders") providing for the purchase of the Company's units (the "Units"),
each Unit consisting of $50,000 secured promissory note of the Company (a "New
Note" and collectively, the "New Notes") and a warrant to purchase 50,000 shares
of the Company's Common Stock (a "Warrant" and collectively the "Warrants") (the
offering and sale of such Unites being hereinafter referred to as the "Bridge
Financing");
WHEREAS, in order to induce the New Noteholders to purchase
the Units and as a condition precedent to such purchases, the Company is
required to enter into this Amendment providing for the extension of the
maturity of the Notes; and
WHEREAS, the Company and the Majority Noteholders desire to
amend the Note Agreement to provide for an extension of the maturity date of the
Notes it being acknowledged that the closing of the Bridge financing will be of
substantial benefit to the Company and the Majority Noteholders;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms shall have the meanings given such terms in the Note Agreement.
2. Amendment.
(a) Effective immediately prior to the closing of the
Bridge Financing, pursuant to Section 9.7 of the Note Agreement, Section 2 of
the Note Agreement is amended in its entirety to read as follows:
17
"The Notes shall mature and become due and payable as follows:
(i) all accrued and unpaid interest shall be due and payable
upon the closing of the Bridge Financing (as defined herein)
and (ii) fifty percent (50%) of the original principal amount
shall be due and payable together with accrued interest on
April 15, 1996 and the remaining fifty percent (50%) shall
be due and payable, together with accrued interest, on
August 15, 1996."
(b) Effective immediately prior to the closing of the
Bridge Financing, pursuant to Section 9.7 of the Note Agreement, each of the
Notes is hereby amended by substituting the following for the first sentence of
the second paragraph of each of the Notes:
"Principal and accrued interest under this Note shall be due
and payable as follows: (i) all accrued and unpaid interest
hereunder shall be due and payable upon the closing of the
Company's secured bridge note offering, described in that
certain Term Sheet dated July 17, 1995; (ii) fifty percent
(50%) of the original principal amount hereunder shall be due
and payable together with accrued interest, on April 15, 1996,
and the remaining fifty percent (50%) of the original
principal amount hereunder shall be due and payable, together
with accrued interest, on August 15, 1996."
(c) It shall be a condition subsequent to the
effectiveness of the foregoing amendments that all interest accrued to the date
of closing of the Bridge Financing on the Notes shall be paid in full within
five (5) business days after such closing.
3. Conversion. Effective immediately prior to the Closing of
the Bridge Financing, each of the Warrants shall be cancelled, and the Company
shall issue to each holder of Notes a new warrant substantially in the form of
Exhibit A hereto and exercisable for one (1) share of the Company's Common Stock
for each One Dollar in original principal amount of the Notes held by such
holder.
4. Consent to Xxxxxxx Transaction. The Majority Noteholders
hereby consent to (i) the Company's license of certain of its technology to
Xxxxxxx Ventures, Inc., substantially on the terms set forth in the letter of
intent dated July 14, 1995, a copy of which has been provided to each of the
undersigned Majority Noteholders, and (iii) the Company's execution, delivery
and performance of definitive agreements effecting such letter of intent.
5. Miscellaneous.
(a) Construction of Waiver. The Note Agreement shall
be deemed amended only to the extent set forth herein and remains in full force
and effect.
(b) Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which together shall constitute one and the same
instrument.
-2-
18
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Secured Note and Warrant Purchase Agreement to be duly executed as
of the day and year first above written.
BIOFACTORS, INC.
By: /s/ XXXXXX X. XXXX
-----------------------------------------
Title: President and CEO
--------------------------------------
-3-
19
SIGNATURE PAGE TO THE
FIRST AMENDMENT TO SECURED NOTE AND WARRANT PURCHASE AGREEMENT
------------------------------
(Name of Noteholder)
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Investors who signed:
/s/ Xxxxxx X. Xxxx, Xx.
/s/ Afro-Asia (Digital One) Pte. Ltd.
by Tan Chin Hoon, Director
/s/ Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxxxx
/s/ Chai Xxxxx Xxxx
/s/ Xxxxxx X. Xxxx
/s/ Goh Xxxxx Xxxx
/s/ Xxx X. Xxxxxx
/s/ Xxxxx X. Xxxx, Trustee of Xxxx
Revocable Trust
/s/ Xxxxx Xxxxxxx
/s/ Kan Xxxx Xxxx
/s/ Leonaris Trust Ltd. by Kayloe Tjio
/s/ Xxx Xxxxxx Xxxx Xxxxxx
/s/ E. Xxxxxxx XxXxx
/s/ Xxxxxxxxx Xxxxxxx
/s/ Soon Xxxx Xxx
/s/ Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxx Kiah Teck
/s/ Xxxxx X. Xxxxxx
/s/ X. X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
/s/ Xxxxxxxxx Xxx Xxx Yan
/s/ Illegible
-4-
20
AMENDMENT TO SECURED NOTE
AND WARRANT PURCHASE AGREEMENT
This Amendment to Secured Note and Warrant Purchase Agreement
(this "Amendment") is entered into as of the 1st day of December, 1995, by and
among BioFactors, Inc., a Delaware corporation (the "Company") and the parties
named on the signature pages hereto (all of such parties other than the Company,
collectively, the "Majority Noteholders") and amends that certain Secured Note
and Warrant Purchase Agreement dated as of December 1, 1994, by and among the
Company and the Purchasers named therein (the "Note Agreement").
WHEREAS, the Majority Noteholders are the holders of Secured
Promissory Notes (the "Notes") and warrants to purchase the Company's Common
Stock (the "Warrants") issued pursuant to the Note Agreement, which Notes are
secured by that certain Security Agreement dated as of December 1, 1994 by and
among the Debtor and the Secured Parties named therein (the "Security
Agreement"), and, collectively, are the holders of Notes representing in excess
of fifty percent of the aggregate principal amount of all the Notes outstanding
as of the date hereof and, as such, being "Majority Secured Parties" pursuant to
Section 2 of the Security Agreement;
WHEREAS, the Company has entered into a Secured Note and Stock
Purchase Agreement of even date herewith, by and among the Company and the
Purchasers named therein (the "Bridge Noteholders") providing for the purchase
of the Company's secured promissory notes in an original principal amount of
$350,000 (the "Bridge Notes") and 35,000 shares of the Company's common stock,
$0.01 par value per share (the "Bridge Shares") (the offering and sale of such
Bridge Notes and Bridge Shares being hereinafter referred to as the "Bridge
Financing");
WHEREAS, in order to induce the Bridge Noteholders to purchase
the Bridge Notes and Bridge Shares and as a condition precedent to such
purchases, the Company is required to enter into this Amendment providing for
(i) a waiver of the current default on the Notes, (ii) the extension of the
maturity of the Notes, (iii) the consent of the Majority Noteholders to the
mandatory conversion of the Notes into the Whale Notes (as defined herein), and
(iv) the consent of the Majority Noteholders to the creation of a prior security
interest in certain collateral in favor of the Bridge Noteholders; and
WHEREAS, the Company and the Majority Noteholders desire to
waive the current default on the Notes, to amend the Note Agreement to provide
for an extension of the maturity date of the Notes, and to consent to the
creation of the security interest in favor of the Bridge Noteholders and to the
mandatory conversion of the Notes into the Whale Notes, it being acknowledged
that the closing of the Bridge Financing will be of substantial benefit to the
Company and the Majority Noteholders;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms shall have the meanings given such terms in the Note Agreement.
2. Waiver. The Majority Noteholders hereby agree to waive the
current default on the Notes and to extend the maturity date thereof as set
forth herein.
21
3. Amendment. Pursuant to Section 9.7 of the Note Agreement,
Section 2 of the Note Agreement is hereby amended in its entirety to read as
follows:
"The Notes shall mature and become due and payable in full
together will all accrued interest at the close of business on
July 31, 1996."
4. Consent to Mandatory Conversion. The Majority Noteholders
hereby agree that upon the closing of a private placement (the "Whale
Transaction") of the Company's secured promissory notes (the "Whale Notes") for
which Whale Securities Co., LP is acting as placement agent, (a) all accrued
interest on the Notes shall be paid, and (b) all of the outstanding principal
amount and accrued interest on the Notes shall be converted into the Whale Notes
on the same terms and conditions as may be offered to the investors in the Whale
Transaction.
5. Consent to Prior Lien. The Majority Noteholders hereby
consent to (a) the Company's pledge and grant to the Bridge Noteholders of a
security interest in that certain Promissory Note in the original principal
amount of $950,000, dated August 30, 1995, between Xxxxxx International
Associates, Inc., the "Maker" thereof, and the Company, and any proceeds
therefrom (the "Pledged Collateral"), and (b) the Company's execution, delivery
and performance of that certain Pledge and Security Agreement of even date
herewith, by and among the Company and the Bridge Noteholders (the "Bridge
Security Agreement"), a copy of which has been provided to each of the
undersigned Majority Noteholders; it being understood and agreed by the Company
and the Majority Noteholders that the security interest created by the Bridge
Security Agreement shall have a first and prior lien on the Pledged Collateral,
prior to the lien created by the Security Agreement.
6. Miscellaneous.
(a) Construction of Waiver. The Note Agreement shall
be deemed amended only to the extent set forth herein and remains in full force
and effect.
(b) Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which together shall constitute one and the same
instrument.
-2-
22
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to Secured Note and Warrant Purchase Agreement to be duly executed as
of the day and year first above written.
BIOFACTORS, INC.
By: /s/ XXXXXX X. XXXX
---------------------------
Title: President
------------------------
-3-
23
SIGNATURE PAGE TO THE
AMENDMENT TO SECURED NOTE AND WARRANT PURCHASE AGREEMENT
------------------------------
(Name of Noteholder)
By:
---------------------------
Name:
-------------------------
Title:
------------------------
/s/ Xxxxxx X. Xxxx, Xx.
/s/ Admiral Capital Corporation as
Trustee by Xxxx X. Xxxxxx,
President
/s/ Afro-Asia (Digital One) Pte. Ltd.
by Tan Chin Hoon, Director
/s/ Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
/s/ Chai Xxxxx Xxxx
/s/ Xxxxxx X. Xxxx
/s/ Goh Xxxxx Xxxx
/s/ Xxxxx X. Xxxx, Trustee of the
Xxxx Revocable Trust
/s/ Leonaris Trust Ltd.
by Kayloe Tjio, Director
/s/ Xxxxxx Xxx Xxxx Xxxxxx
/s/ E. Xxxxxxx XxXxx
/s/ Xxxxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
/s/ Soon Xxxx Xxx
/s/ Xxxxxxx Xxx Kiah Teck
/s/ Xxxxx X. Xxxxxx
/s/ X. X. Xxxxxxxx
/s/ Zayucel Ltd. by Xxxxxxxx Zayu
Moh, Director
/s/ Xxxxxxx X. Xxxx
-4-
24
THIRD AMENDMENT TO SECURED NOTE
AND WARRANT PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO SECURED NOTE AND WARRANT PURCHASE
AGREEMENT (this "Amendment") is entered into as of the 1st day of March, 1996,
by and among BioFactors, Inc., a Delaware corporation (the "Company") and the
parties named on the signature pages hereto (all of such parties other than the
Company, collectively, the "Majority Noteholders") and amends that certain
Secured Note and Warrant Purchase Agreement dated as of December 1, 1994, by and
among the Company and the Purchasers named therein, as such agreement has from
time to time been amended (as amended, the "Note Agreement").
WHEREAS, the Majority Noteholders are the holders of the
Secured Promissory Notes (the "Notes") and warrants to purchase the Company's
Common Stock (the "Warrants") issued pursuant to the Note Agreement, and,
collectively, are the holders of Notes representing in excess of fifty percent
of the aggregate principal amount of all the Notes outstanding as of the date
hereof and, pursuant to Section 9.7 of the Note Agreement can bind each holder
of Notes or Warrants outstanding as of the date of this Amendment;
WHEREAS, the Company has entered into a letter of intent with
Xxxxxx Xxxxxxx & Company, L.P. ("Xxxxxx Xxxxxxx"), providing for the placement
by Xxxxxx Xxxxxxx of certain bridge notes to be issued by the Company (the
"Xxxxxx Xxxxxxx Bridge") and the underwriting of the Company's IPO (as defined
herein) (together, the"Underwriting");
WHEREAS, as a condition precedent to the Underwriting, the
Company is required to enter into this Amendment providing for the consent of
the Majority Noteholders to (a) the mandatory partial conversion of the Notes
into Common Stock, (b) the waiver of certain Warrant adjustments and (c) certain
other amendments to the Note Agreement; and
WHEREAS, the Company and the Majority Noteholders desire to
enter into this Amendment, it being acknowledged that the Underwriting will be
of substantial benefit to the Company and the Majority Noteholders.
NOW THEREFORE, in consideration of the above and the following
mutual covenants and consideration, the parties hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms shall have the meanings given such terms in the Note Agreement.
2. Maturity Date Extension. The Majority Noteholders hereby
agree to amend Section 2 of the Note Agreement to extend the maturity date of
the Notes to the earlier of (i) April 1, 1997 or (ii) a date one year after the
closing of the Xxxxxx Xxxxxxx Bridge.
25
3. Waiver and Termination. The Majority Noteholders hereby
agree to waive: (i) defaults, if any, on the Notes occurring prior to the Date
hereof; and (ii) Warrant adjustments, if any, pursuant to Section 3.2 of the
Note Agreement arising from any issuances of securities by the Company through
the date hereof. In addition, the Note Agreement is hereby amended by deleting
Section 3.2 in its entirety.
4. Principal Payment. The Company hereby agrees that upon the
closing of the underwritten initial public offering of the Company's securities
under the Securities Act of 1933 resulting in gross proceeds of at least
$5,000,000 (the "IPO"), the Company shall pay to the holders of the Notes all
accrued interest thereon and an aggregate amount of Four Hundred Fifty Thousand
Dollars ($450,000) of the outstanding principal thereof, such principal amount
to be paid pro rata in proportion to the respective outstanding principal
amounts of the Notes.
5. Conversion, Shares, Registration.
a. Consent to Mandatory Conversion. The Majority
Noteholders hereby agree that, upon the closing of the IPO, the remaining
aggregate outstanding principal of the Notes (Three Hundred Thousand Dollars
($300,000)) shall be automatically converted into Common Stock of the Company,
$0.01 par value per share (the "Common Stock") at a conversion price equal to
the price at which the Company's Common Stock is sold to the public in the IPO.
b. Issuance of Additional Shares. The Company hereby
agrees that upon the closing of the IPO, and the conversion of the Notes
pursuant to Section 5(a) hereof, the Company shall, for no additional
consideration, issue and deliver to each holder of Notes, two-tenths (0.2) of a
fully paid and nonassessable share (subject to adjustment for stock splits and
combinations affecting such shares) of its Common Stock for each One Dollar
($1.00) in original principal amount of such holder's Notes.
c. Registration, Lockup. Each of the holders of the
Notes shall be entitled to receive a certificate representing that number of
fully-paid and non-assessable shares of the Company's Common Stock issued
pursuant to Section 5(a) and (b) hereof upon surrender or delivery to the
Company of (i) such Note, accompanied by a proper assignment thereof to the
Company or in blank, (ii) surrender of such holder's Warrant, accompanied by
such an assignment, (iii) execution and delivery of a counterpart of a
Subscription and Registration Rights Agreement, in the form attached as EXHIBIT
A hereto, which provides for customary piggyback registration rights for the
shares of Company Common Stock issued pursuant to Sections 5 and 6 hereof, as
well as a "lockup" of the holder's shares of Common Stock and such other
provisions required by the underwriters of the Company's IPO (iv) a duly
executed U.C.C. termination statement terminating such holder's security
interest in the Company's assets, and (v) such other documents or instruments as
may reasonably be requested by the Company. No fractional shares of Common Stock
shall so be issued. Instead, the number of shares of Common Stock otherwise
issuable will be rounded up to the next whole share.
-2-
26
6. Construction of Waiver. The Note Agreement shall be deemed
amended only to the extent set forth herein and remains in full force and
effect.
Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this THIRD
AMENDMENT TO SECURED NOTE AND WARRANT PURCHASE AGREEMENT to be duly executed as
of the day and year first above written.
BIOFACTORS, INC.
By: /s/ XXXXXX X. XXXX
---------------------------
Title: PRESIDENT AND CEO
------------------------
-3-
27
SIGNATURE PAGE TO THE THIRD AMENDMENT TO
SECURED NOTE AND WARRANT PURCHASE AGREEMENT
------------------------------
(Name of Noteholder)
By:
---------------------------
Name:
-------------------------
Title:
------------------------
/s/ Xxxxxx X. Xxxx, Xx.
/s/ Admiral Capital Corporation By
Xxxx X. Xxxxxx, President
/s/ Afro-Asia (Digital One) Pte. Ltd.
by Tan Chin Hoon, Director
/s/ Xxxxx Xxxxxx
/s/ Xxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
/s/ Chai Xxxxx Xxxx
/s/ Xxxxxx X. Xxxx
/s/ Xxxxx X. Xxxx, Trustee of the Xxxx
Revocable Trust
/s/ Leonaris Trust Ltd.
by Kayloe Tjio, Director
/s/ Xxxxxx Xxx Xxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxxxx
/s/ Soon Xxxx Xxx
/s/ Xxxxxxx Xxx Kiah Teck
/s/ Xxxxx X. Xxxxxx
/s/ X. X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
-4-
28
BIOFACTORS, INC.
FOURTH AMENDMENT TO
SECURED NOTE AND WARRANT PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO SECURED NOTE AND WARRANT PURCHASE
AGREEMENT (this "Amendment") is entered into as of the 1st day of October, 1996,
by and among BioFactors, Inc., a Delaware corporation ("BioFactors" or the
"Company") and the parties named on the signature pages hereto (all of such
parties other than the Company, collectively, the "Majority Holders") and amends
that certain Secured Note and Warrant Purchase Agreement dated as of December 1,
1994, by and among the Company and the Purchasers named therein, as previously
amended (the "Note Agreement").
RECITALS
WHEREAS, the Majority Holders are the holders of secured
promissory notes of the Company (the "Notes") and shares (the "Shares") of
common stock of the Company (the "Common Stock"), $0.01 par value per share,
issued pursuant to the Note Agreement and, collectively, are the holders of
Notes representing in excess of fifty percent of the aggregate principal amount
of all the Notes outstanding as of the date hereof and, pursuant to Section 9.7
of the Note Agreement, can bind each holder of Notes or Shares outstanding as of
the date of this Agreement;
WHEREAS, the Company has entered into a letter of intent with
Xxxxxxxxx Xxxx & Co. ("Xxxxxxxxx Xxxx"), providing for underwriting and
financial advisory services (the "Underwriting");
WHEREAS, as a condition precedent to the Underwriting, the
Company is required to enter into a definitive agreement with Voice Plus, Inc.,
a California corporation ("Voice Plus"), for the formation of a holding company
("Registrant") and the merger of each of BioFactors (the "BFI Merger") and Voice
Plus with and into separate, wholly-owned subsidiaries of Registrant,
concurrently with Xxxxxxxxx Xxxx'x Underwriting of the initial public offering
of Registrant's securities pursuant to a registration statement filed under the
Securities Act of 1933 (the "IPO");
WHEREAS, upon the consummation of the BFI Merger, the
Company's stockholders, including the Majority Holders, are to receive shares of
common stock of Registrant ("Registrant Common Stock") in exchange for the
BioFactors Common Stock held by them in a three-for-four (three shares of
Registrant Common Stock for every four shares of BioFactors Common Stock)
conversion, or such other ratio as Xxxxxxxxx Xxxx may determine is necessary;
WHEREAS, as a further condition precedent to the Underwriting,
the Company is required to enter into agreements amending the terms of
outstanding securities including, in particular, this Amendment providing for
the consent of the Majority Holders (a) to effect the mandatory conversion at
the IPO of all of the outstanding principal of and accrued interest on the Notes
into Registrant Common Stock, (b) to amend and coordinate the registration
rights granted in connection with the Shares and certain other shares of its
Common Stock and securities convertible into or exercisable for its Common
Stock, and (c) to effect certain other amendments to the Note Agreement;
WHEREAS, as consideration for the agreements herein, the
Company will cause Registrant to issue warrants to holders of the Notes; and
29
WHEREAS, the Company and the Majority Holders desire to enter
into this Amendment to facilitate the Underwriting, it being acknowledged that
the Underwriting will be of substantial benefit to the Company and to the
Majority Holders.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
following mutual covenants and agreements, the parties hereby agree as follows:
1. Definitions.
a. "Shares" shall mean the shares of Company Common
Stock issued pursuant to Section 5.b of the Third Amendment to the Secured Note
and Warrant Purchase Agreement dated as of March 1, 1996 by and among the
Company and the Majority Noteholders named therein (the "Third Amendment").
b. All capitalized terms used herein and not
otherwise defined shall have the meanings given such terms in the Note
Agreement.
2. Amendments. The Majority Holders hereby agree to amend the
Note Agreement as follows:
a. Warrants. Section 3 is hereby deleted in its
entirety, it being understood and acknowledged by the parties hereto that the
Purchasers agreed pursuant to the Third Amendment to cancel the Warrants, that
the Shares were issued in June 1996 and, accordingly, that the Warrants were
cancelled at that time.
b. Automatic Conversion. Section 5.a of the Third
Amendment is hereby deleted and superseded in its entirety. A new Section 3 is
hereby added to the Note Agreement, as follows:
"3. Automatic Conversion upon IPO. In the event the IPO
(defined below) is consummated prior to the maturity date set
forth in Section 2, the outstanding principal amount of the
Notes and all accrued interest thereon, calculated through the
IPO closing date, shall be converted into common stock of
Registrant (defined below) at a conversion price equal to the
price per share to the public in the IPO (the "IPO Price"). In
connection with such conversion, no fractional shares of
common stock shall be issued; instead, the number of shares of
common stock otherwise issuable will be rounded up to the next
whole share."
c. Registration Rights. Sections 5.b and 5.c of the
Third Amendment and Addendum A (which set forth the former registration rights)
are hereby deleted and superseded in their entirety. Section 5 of the Note
Agreement is hereby amended in its entirety, as follows:
"5. Planned Initial Public Offering; Registration Rights.
(a) The term "IPO" as used herein shall mean the
proposed initial public offering of the Company's securities,
or the securities of a
-2-
30
holding company formed to hold the capital stock of
BioFactors (such entity, whether the Company or a holding
company, being referred to herein as, the "Registrant"),
pursuant to an effective registration statement filed under
the Securities Act of 1933, as amended. The undersigned
understands and agrees that there can be no assurances that a
registration statement will be filed or, if filed, will be
declared effective by the Securities and Exchange Commission
(the "Commission") or, if the registration statement is
declared effective by the Commission, that the Registrant
will be able to consummate such IPO.
(b) Registration Rights. Upon the execution of the
Registration Rights Agreement, substantially in the form
attached hereto as EXHIBIT B (the "Rights Agreement"), the
Purchasers will become parties to the Rights Agreement and the
Shares, and any shares of common stock issuable upon the
exercise or conversion of any securities issued pursuant to
this Agreement, shall become subject thereto."
3. Automatic Conversion. The Majority Holders hereby consent
to the automatic conversion upon the consummation of the IPO of the outstanding
principal amount of and all accrued interest on the Notes, at a conversion price
and calculated as set forth in Section 3 of the Note Agreement as amended
hereby, into Registrant Common Stock.
4. Issuance of New Warrants. In consideration of the
agreements herein, the Company hereby agrees that, upon the closing of the IPO
and the conversion of the principal of and all accrued interest on the Notes,
the Company shall, for no additional monetary consideration, cause the
Registrant to issue and deliver to each holder of Notes, a warrant to purchase
fifty (50) shares of Registrant Common Stock for each One Thousand Dollars
($1,000) in original principal amount of such holder's Notes at an exercise
price equal to 120% of the IPO Price (the "New Warrants").
5. Proxy. The undersigned hereby irrevocably appoints Xxxxxx
Xxxx as the undersigned's attorney and proxy, with full power of substitution,
to vote or to consent in writing in lieu of a vote or meeting with respect to
all of the Shares held by the undersigned which the undersigned is entitled to
vote at any meeting of stockholders (whether annual or special and whether or
not an adjourned meeting) of the Company, or pursuant to written action taken in
lieu of any such meeting or otherwise, in such manner as to cause the BFI Merger
and any agreement effecting the BFI Merger to be approved. This proxy is
irrevocable, is coupled with an interest sufficient in law to support an
irrevocable proxy and is granted in consideration of and as an inducement to
cause the Company to issue the New Warrants. In connection with giving this
proxy, the undersigned understands and agrees that the BFI Merger effectively
will cause a reverse split of the Company's capital stock in that every four (4)
shares of BioFactors Common Stock issued and outstanding or held in treasury
immediately prior to the effective time of the BFI Merger shall, automatically
and without any action of the part of the respective holders thereof, be
converted into approximately three (3) shares of common stock of Registrant (or
such other number of shares as Xxxxxxxxx Xxxx and the Company shall determine).
6. Construction of Waiver. The Note Agreement shall be deemed
amended only to the extent set forth herein and remains in full force and
effect.
-3-
31
7. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
[The remainder of this page intentionally left blank.]
-4-
32
IN WITNESS WHEREOF, the parties hereto have caused this FOURTH
AMENDMENT TO SECURED NOTE AND WARRANT PURCHASE AGREEMENT to be duly executed as
of the day and year first above written.
BIOFACTORS, INC.
By: /s/ XXXXXX X. XXXX
--------------------------------
Title: President and CEO
-----------------------------
HOLDER:
-----------------------------------
(Signature)
-----------------------------------
(Print Name)
/s/ Xxxxxx X. Xxxx
/s/ Admiral Capital Corporation by Xxxx
X. Xxxxxx, President
/s/ Afro-Asia (Digital One) Pte. Ltd. by
Tan Chin Hoon, Director
/s/ Xxxxxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
/s/ Chai Xxxxx Xxxx
/s/ Xxxxxx X. Xxxx
/s/ Xxx X. Xxxxxx
/s/ Xxxxx X. Xxxx, Trustee
/s/ Xxxxx Xxxxxxx
/s/ Xxxxxx Xxx
/s/ Xxxxxxxxx Xxxxxxx
/s/ Xxxxxxxx Zayu Moh
/s/ Xxxxxxx Xxx Xxxx Xxxx
/s/ Xxxxx X. Xxxxxx
/s/ X. X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxx
-5-
33
AMENDED AND RESTATED SECURITY AGREEMENT
This AMENDED AND RESTATED SECURITY AGREEMENT (this
"Agreement") is entered into as of the day of July, 1995, by and among
BIOFACTORS, INC., a Delaware corporation, having its principal offices at 0000
Xxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (the "Debtor"), the parties
identified on Schedule A (the "Existing Holders") and the parties identified on
Schedule B hereto (the "New Holders") (each party identified on Schedule A and
Schedule B, as such Schedules may be amended from time to time, being,
individually, a "Secured Party" and, collectively, the "Secured Parties").
Unless otherwise provided, defined terms shall have the meanings given in the
Subscription Agreement.
RECITALS
A. The Debtor has entered into a Subscription Agreement of
even date herewith (the "Subscription Agreement"), by and among the Debtor and
the Purchasers as named therein (herein referred to as the "New Holders")
providing, subject to the terms and conditions thereof, for the purchase and
sale of the Company's Units, (consisting of a Note and a Warrant as defined in
the Subscription Agreement).
B. The Debtor entered into a Secured Note and Warrant Purchase
Agreement dated as of December 1, 1994, by and among the Debtor and the Existing
Holders (the "Existing Note Agreement") providing for the purchase and sale of
the Debtors secured promissory notes (the "Existing Notes"). The Existing
Notes are secured by a Security Agreement dated as of December 1, 1994, by and
between the Debtor and the Existing Holders (the "Existing Security
Agreement") to secure the payment of all of the Debtor's indebtedness and
performance of all of the Debtor's obligations under the Existing Note
Agreement and the Existing Notes.
C. In order to induce the New Holders to purchase the Units,
and as a condition precedent to such purchases, the Company is required to enter
into this Agreement with the Existing Holders amending certain provisions of the
Existing Security Agreement and adding the New Holders as parties thereto.
NOW, THEREFORE, in consideration of the foregoing and of the
following mutual covenants and agreements, the Existing Holders and the Debtor
hereby modify, supersede, amend in its entirety and restate the Existing
Security Agreement as provided herein, it being understood and agreed by the
Company, the Existing Holders and the New Holders that the obligations of the
Company under the Existing Note Agreement and the Existing Security Agreement on
the date hereof are continuing obligations, and that the security interests
established pursuant to the Existing Security
-1-
34
Agreement are continuing security interests and shall not be terminated hereby
or modified except as expressly provided herein or in documents or instruments
executed and delivered pursuant hereto and thereto; and, in consideration of
the foregoing and the following mutual covenants and agreements, the New
Holders and the Company hereby agree as follows:
AGREEMENT
1. Security Interest. Debtor hereby grants to the Secured
Parties a security interest in the following personal property of the Debtor,
wherever located, whether such property is now owned or existing or is hereafter
acquired or arising, and any and all additions, substitutions, accessions,
proceeds and products thereto and thereof (the "Collateral"):
(a) all accounts, contract rights and chattel paper
(as such terms are defined in the Uniform Commercial Code, C.R.S. Section
4-1-101 et seq. (the "U.C.C."); and
(b) all inventory (including raw materials, work in
process and finished goods); and
(c) all tangible and intangible personal property and
fixtures (including goods, machinery, equipment, motor vehicles, furniture and
fixtures), documents, instruments, and general intangibles (as such terms are
defined in the U.C.C.); and
(d) all goodwill, trade secrets, computer programs,
customer lists, trade names, trademarks and patents, all books and records
relating to the conduct of Debtor's business, including, without limitation,
those relating to accounts, and all deposit accounts maintained by the Debtor
with any bank, trust company, investment firm or fund, or any similar
institution or organization, and all tax refunds of every kind and nature.
2. Continuing Security Interest, Priority of Lien. It is
understood and agreed by the Debtor, the Existing Holders and the New Holders
that the obligations of the Debtor owed to the Existing Holders under the
Existing Security Agreement on the date hereof are continuing obligations, that
the security interests established pursuant to the Existing Security Agreement
(the "Existing Security Interests") are continuing security interests and shall
not be terminated hereby or modified except as expressly provided herein or in
documents or instruments executed and delivered pursuant hereto, and that the
security interests of the Existing Holders in the Collateral shall be pari passu
with, and shall not be prior to, the security interests of the New Holders in
the Collateral.
-2-
35
3. Majority Secured Parties. The Term "Majority Secured
Parties" shall mean, at any given time, the holders of Notes representing in
excess of fifty percent (50%) of the aggregate principal amount of the Notes
then outstanding.
4. Debtor's Covenants and Warranties. Debtor hereby warrants
and covenants that:
(a) Locations of Debtor and Collateral. The Debtor's
principal office and principal place of business is located at the Debtor's
address set forth in the preamble hereof, and the records relating to Debtor's
accounts are kept at the Debtor's address set forth in the preamble hereof. The
Collateral will be kept at the various locations listed on Schedule C hereto and
will not be removed from such locations until such time as written consent to a
change in location is obtained from the Majority Secured Parties, except that
the Debtor may move, relocate or sell inventory or other Collateral in the
ordinary course of business and certain items of equipment in non-material
amounts and for the fair market value of such items without the prior consent of
the Secured Parties.
(b) Absence of Liens. Except for the Existing
Security Interest, the security interest granted hereby and the security
interests in certain Collateral as set forth on Schedule D, Debtor is the owner
of the Collateral free from all encumbrances and will defend the Collateral
against the claims and demands of all persons other than persons holding the
liens and security interests described on Schedule D. Debtor will not pledge,
mortgage or create or suffer to exist a security interest in the Collateral,
other than purchase money security interests, in favor of any person other than
the Secured Parties.
(c) Inspections and Further Assurances. Debtor shall
at all reasonable times and from time to time allow the Representative(s) (as
defined herein) to examine or inspect the Collateral and make extracts from
Debtor's books and records and to arrange for verification of any accounts
receivable constituting Collateral under reasonable procedures, directly with
account debtors or by other methods, and shall do, make, execute and deliver all
such additional and further acts, things, deeds, assurances and instruments as
the Representative(s) may require more completely to vest in and assure to the
Secured Parties their rights hereunder or in any of the Collateral.
(d) Insurance, Use of Collateral and Payment of
Taxes. Debtor will keep the Collateral at all times insured against fire,
including so-called extended coverage, theft, and, in the case of any motor
vehicle, collision. Debtor will use the Collateral solely for business purposes,
will keep the Collateral in good order and repair, and will not use the same in
violation of law or any policy of insurance thereon. Debtor will pay promptly
when due all taxes and assessments upon the Collateral or for its use.
-3-
36
5. Covenants of the Secured Parties. The Secured Parties,
jointly and severally, hereby covenant and agree that they will at all times act
in a reasonable manner with respect to the enforcement or exercise of any rights
of either or any of the Secured Parties hereunder and under the Notes and the
Subscription Agreement.
6. Representatives.
(a) Except as otherwise provided in this Agreement
and the Subscription Agreement, any action taken in furtherance or exercise of
any rights granted hereunder and under the Notes and the Subscription Agreement
will be taken by one or more, but not more than three, representatives selected
from time to time by the Majority Secured Parties (the "Representative(s)"),
who shall act on behalf of, and shall have authority to bind, all of the
Secured Parties. Whenever the appointments of two or more Representatives are
effective concurrently, any action taken, to be effective on behalf of and
binding upon the Secured Parties, shall require the joint action of at least
two of such Representatives;
(b) The Majority Secured Parties will give notice to
the Debtor of the identity and address of any Representative(s) promptly upon
their selection of such Representative(s);
(c) The appointment of any Representative(s) shall,
as to each of them, be effective until (i) any of them resigns by written notice
given to the Company and the undersigned Majority Secured Parties, (ii) any of
them is removed by Secured Parties then constituting Majority Secured Parties in
accordance with the Security Agreement, or (iii) the date on which they have
taken all actions on behalf of the Secured Parties necessary under applicable
law to release the security interest in the Collateral (as defined in the
Security Agreement), whichever first occurs;
(d) The Majority Secured Parties agree that if any
Representative resigns or is removed prior to the date referenced in Subsection
(c), they will cooperate to appoint a replacement Representative as soon
thereafter as practicable; and
(e) The Representative(s) shall incur no liability to
the Company or the Secured Parties as a result of the performance of their duty
as Representatives, except for liabilities arising out of their gross
negligence, willful acts or omissions or their material breach of the Security
Agreement or the Subscription Agreement. The Company shall indemnify and hold
the Representative(s) harmless from and against all liabilities, including
damages, expenses and attorneys' fees, arising from the performance of their
obligations as Representatives, except to the extent such liabilities arise
from their gross negligence, willful acts or omissions or their material breach
of the Security Agreement or the Subscription Agreement.
-4-
37
7. Default. The occurrence of any of the following events or
conditions shall constitute an event of default ("Event of Default") hereunder
and under the Subscription Agreement and each of the Notes:
(a) the failure of Debtor to pay all outstanding
principal and accrued interest under any Note within ten (10) days after the
Maturity Date, as it may be extended in accordance with the Subscription
Agreement;
(b) any representation or warranty of the Debtor to
any Secured Party, whether contained in this Agreement, the Subscription
Agreement or any other document or instrument executed in connection with the
purchase of the Notes, proving false or erroneous in any material respect at
the time any such representation or warranty was made;
(c) loss, theft, material damage, destruction, sale
(other than inventory or other Collateral in the ordinary course of business or
in non-material amounts and for fair market value) or encumbrance of or to the
Collateral (other than purchase money security interests), or the making of any
levy thereon or seizure or attachment thereof by legal process;
(d) the institution of bankruptcy, reorganization,
liquidation, receivership or similar proceedings by or against the Debtor.
8. Rights upon Default. Upon the occurrence of an Event of
Default, the Majority Secured Parties may by written notice to the Debtor
declare all of the Obligations to be immediately due and payable, and the
Secured Parties shall then have, in addition to all other rights and remedies,
the rights and remedies of a secured party under the U.C.C., including without
limitation thereof, the right to take possession of the Collateral. Debtor will
upon demand make the Collateral available to the Representative(s) at a place
and time designated by the Representative(s) which is mutually and reasonably
convenient. The Secured Parties will give Debtor at least ten days' prior
written notice (such notice being acknowledged hereby as reasonable) at the
address set forth in the Preamble hereof (or such other address as the Debtor
shall have specified to the Secured Parties in writing) of the time and place of
any public sale of the Collateral or of the time after which any private sale
thereof is to be made. From the proceeds of the sale, the Secured Parties shall
be entitled to retain (a) its reasonable expenses of retaking, holding,
preparing for sale and selling the Collateral, including reasonable attorneys'
fees incurred by it in connection herewith, with such sale or with the
collection or enforcement of the Debt, and (b) all sums secured hereby, in such
order of preference as the Secured Parties may determine.
9. Termination. This Agreement and all covenants hereunder
shall terminate, as to each Secured Party, on the date the Obligations to such
Secured Party are paid in full. Upon such termination the Secured Parties shall
release the Collateral from the security interest granted hereby and shall take
all actions as the Debtor reasonably may request to effect and evidence such
release.
-5-
38
10. Assigns. This Agreement shall be binding upon and inure to
the benefit of the respective heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto.
11. Entire Agreement; Amendment. This Agreement, the
Subscription Agreement and the Notes constitute the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof. Subject to Section 9, any term of this Agreement and the Notes
may be amended and the observance of any term hereof or thereof or any Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Debtor
and the Majority Secured Parties. Any amendment or waiver effected in
accordance with this Section 10 shall be binding (only as to Notes at the time
outstanding) upon each Secured Party and the Debtor.
12. Assignment. A Secured Party may transfer and assign his or
its Note (being an Existing Note in the case of the Existing Holders and a New
Note in the case of the New Holders) only in the manner set forth in the
Existing Note Agreement and the Subscription Agreement, respectively, and, upon
any such assignment, may assign such Secured Party's rights and obligations
under this Agreement to the assignee, who shall thereupon have all of the rights
and liabilities of such Secured Party.
13. Governing Law, Effect of Agreement. This Agreement and all
rights and obligations hereunder, including matters of construction, validity
and performance, shall be governed by the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this
Security Agreement as of the date first above written.
DEBTOR:
BIOFACTORS, INC.
By: /s/ XXXXXX X. XXXX
---------------------------
Name: Xxxxxx X. Xxxx
-------------------------
Title: President and CEO
------------------------
-6-
39
SIGNATURE PAGE
BIOFACTORS, INC.
AMENDED AND RESTATED SECURITY AGREEMENT
SECURED PARTY:
By: /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
SECURED PARTY: AFRO-ASIA (DIGITAL ONE) PTE LTD.
By: /s/ TAN CHIN HOON
----------------------------------------
Name: Tan Chin Hoon (Director)
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ CHAI XXXXX XXXX
----------------------------------------
Name: Chai Xxxxx Xxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXX X. XXXX
----------------------------------------
Name: Xxxxxx Xxxx
--------------------------------------
Title: Self
-------------------------------------
SECURED PARTY:
By: /s/ XXX X. XXXXXX
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXX XXXXXXX
----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY: LEONARIS TRUST LTD.
By: /s/ KAYLOE TJIO
----------------------------------------
Name: Kayloe Tjio
--------------------------------------
Title: Director
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXX XXX XXXX XXXXXX
----------------------------------------
Name: Xxxxxx Xxx Xxxx Xxxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXX XXXXX
----------------------------------------
Name: Xxxx XxXxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXXXXX XXXXXXX
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ SOON XXXX XXX
----------------------------------------
Name: Soon Xxxx Xxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXXXXX TAMLAY YAN
----------------------------------------
Name: Xxxxxxxxx Tamlay Yan
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXXX XXX XXXX XXXX
----------------------------------------
Name: Xxxxxxx Xxx Kiah Teck
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ X. X. XXXXXXXX
----------------------------------------
Name: X. X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title:
-------------------------------------
SECURED PARTY:
By: /s/ XXXXXXX X. XXXX
----------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------
Title: Self
-------------------------------------
-7-
40
BIOFACTORS, INC.
AMENDED AND RESTATED SECURITY AGREEMENT
SCHEDULE A
SCHEDULE OF EXISTING HOLDERS
PRINCIPAL AMOUNT OF
EXISTING NOTE
NAME OF HOLDER (AS AMENDED)
-------------- ------------
Xxxx Xx., Xxxxxx, F $ 80,000
Afro-Asia Pte. Ltd. 15,000
Xxxxxx, Xxxxx 24,362
Xxxxxxxxxx, Xxxxxx 2,000
Xxxxx, Xxxxxxx 30,000
Chai, Xxxxx Xxxx 25,000
Xxxx, Xxxxxx 30,000
Goh, Xxxxx Xxxx 30,000
Xxxxxx, Xxx 5,000
Xxxx, Xxxxx X. 14,010
Xxxxxxx, Xxxxx 10,000
Leonaris Trust Ltd. 25,000
Xxx, Xxxxxx Xxxx Xxxxxx 12,181
XxXxx, Xxxx 12,800
Xxxxxx, Xxxxxxx 25,000
Xxxxxxx, Xxxxxxxxx Xxxxx 5,000
Moh, Xxxxxxxx 100,000
Xxxxxx, Xxxx 100,000
Proto Company 50,000
Xxxxxxxxx, Xxxx 10,000
Soon, Xxxx Xxx 14,284
Xxxxxxxxx, Xxxxxx 35,000
Tan, Xxxxxxx Xxxx Teck -
Walnut Capital 35,000
Xxxxxx, Xxxxx 5,000
Xxxxxxxx, Xxxxxxx 25,000
Xxxx, Xxxxxxx 30,000
--------
TOTAL $749,637
--------
A-1
41
BIOFACTORS, INC.
AMENDED AND RESTATED SECURITY AGREEMENT
SCHEDULE B
SCHEDULE OF NEW HOLDERS
NAME OF HOLDER PRINCIPAL AMOUNT OF
-------------- NEW NOTE
--------
B-1
42
BIOFACTORS, INC.
AMENDED AND RESTATED SECURITY AGREEMENT
SCHEDULE C
LOCATIONS OF COLLATERAL
All of the Collateral (or documents evidencing intangibles constituting
Collateral) is located at 0000 Xxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxxxxx 00000
C-1
43
BIOFACTORS, INC.
AMENDED AND RESTATED SECURITY AGREEMENT
SCHEDULE D
OTHER SECURITY INTERESTS IN COLLATERAL
None.
D-1
44
BIOFACTORS, INC
SECURED PROMISSORY NOTE
$ December __, 1994
------------------------------
FOR VALUE RECEIVED, the undersigned, BIOFACTORS, INC., a
Delaware corporation ("Maker"), hereby promises to pay to the order of _________
___________, or registered assigns at such place as the holder of this Note may
from time to time designate in writing, the principal sum, or portion thereof,
of ______________________ ($_________) remaining outstanding, and to pay
interest on the unpaid balance of said principal from the date hereof until
payment in full at the rate of twelve percent (12%) per annum.
Principal and accrued interest under this Note shall be due
and payable in full on May 30, 1995. Interest shall be calculated on the basis
of a 365-day year for the actual number of days elapsed. The Company may prepay
this Note, with the consent of the holder of this Note, by paying the entire
outstanding principal balance hereof together with all accrued interest.
This Note is the Maker's "Note" and is issued pursuant to and
entitled to the benefit of that certain Secured Note and Warrant Purchase
Agreement dated as of December 1, 1994, between Maker and the Purchasers named
therein (the "Agreement"), as the same may be amended, modified or supplemented
from time to time. Capitalized terms used herein without definition shall have
the meanings set forth in the Agreement.
Principal and interest payments hereunder shall be made in
money of the United States of America, lawful at such times for the satisfaction
of public and private debts.
This Note is a registered Note and is transferable only by
surrender thereof at the principal offices of the Company, duly endorsed or
accompanied by a written instrument of transfer duly executed by the registered
holder of this Note or his attorney duly authorized in writing. Transfers are
subject to the restrictions set forth in the Agreement.
This Note is secured by a certain Security Agreement of even
date herewith by and between the Maker and parties named therein. Upon the
occurrence of an Event of Default (as defined in the Security Agreement), the
unpaid balance of the principal amount of this Note may become due, or may be
declared to be, due and payable in the manner, upon the conditions and with the
effect provided in the Security Agreement.
45
Maker hereby waives diligence, presentment, demand, protest
and notice of any kind whatsoever. Maker promises to pay costs of collection and
reasonable attorneys' fees if default is made in the payment of this Note, or in
the terms and provisions of the Agreement. The right to plead any and all
statutes of limitation as a defense to this Note or to any agreement to pay the
same, is hereby expressly waived by the undersigned to the full extent permitted
by law.
This Note, the Agreement and the Security Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed as of the ____ day of ________, 1994.
MAKER:
BIOFACTORS, INC.
By:
-----------------------------------------------
Xxxxxxx X. Xxxx
Its: Vice President of Finance/Secretary
and Chief Financial Officer
(Corporate Seal)
-2-
