Exhibit 10.2
AUTOLOGOUS WOUND THERAPY, INC.
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Securities Purchase Agreement
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Shares of Common Stock
offered at $10.00 per share
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March 1, 2000
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is entered into as
of the day and year appearing on the signature page hereof by and between
AuTologous Wound Therapy, Inc., a Delaware corporation ("AuTologous" or the
"Company"), and the investor whose name appears at the end of this Agreement
(the "Purchaser").
R E C I T A L S:
In order to produce additional working capital for the Company, the
Company wishes to issue, and the Purchaser wishes to purchase shares of the
Company's common stock, $.0001 par value per share (the "Common Stock").
NOW, THEREFORE, in consideration of the premises hereof and the
agreements set forth herein below, the parties hereto hereby agree as follows:
1. Sale and Purchase of Shares.
(a) Subject to the terms and conditions hereof, on the date of
the Closing, as defined in Section 3 hereof, the Company agrees to issue and
sell, and the Purchaser agrees to purchase, that number of shares of Common
Stock as are indicated on the last page of this Agreement at a purchase price of
$10.00 per share (the "Shares").
(b) Restricted Securities. The shares of Common Stock of the
Company that are being offered hereby are "restricted securities" as that term
is defined under Rule 144 of the Securities Act of 1933, as amended (the "Act"),
and, accordingly, may not be offered for sale or sold or otherwise transferred
in a transaction which would constitute a sale thereof within the meaning of the
Act unless: (i) such security has been registered for sale under the Act and
registered or qualified under applicable state securities laws relating to the
offer and sale of securities; or (ii) exemptions from the registration
requirements of the Act and the registration or qualification requirements of
all such state securities laws are available and the Company shall have received
an opinion of counsel that the proposed sale or other disposition of such
securities may be effected without registration under the Act and would not
result in any violation of any applicable state securities laws relating to the
registration or qualification of securities for sale, such counsel and such
opinion to be satisfactory to the Company. As restricted securities, the resale
of the shares of Common Stock is subject to significant restrictions upon
resale. See Section 7 hereafter, "Understanding of Investment Risks."
(c) Voting Rights; Dividends. Holders of Common Stock of the
Company have equal rights to receive dividends when, as, and if declared by the
Board of Directors out of funds legally available therefor. Holders of Common
Stock of the Company have one vote for each share held of record and do not have
cumulative voting rights.
(d) Liquidation; Redemption. Holders of Common Stock of the
Company are entitled upon liquidation of the Company to share ratably in the net
assets available for distribution, subject to the rights, if any, of holders of
any preferred stock of the Company then outstanding. Shares of Common Stock of
the Company are not redeemable and have no preemptive or similar rights. All
outstanding shares of common stock of the Company are fully paid and
nonassessable.
2. Shares Offered in a Private Placement Transaction.
(a) The Shares offered by this Securities Purchase Agreement
are to be offered as part of a private placement transaction pursuant to Section
4(2) and Rule 506 of Regulation D of the Act (the "Offering") by the Company on
a "best efforts" basis to be offered to a number of sophisticated and accredited
investors. Accordingly, as of the date hereof, there can be no assurances as to
the number of shares of Common Stock that will be sold in the Offering. The
Company reserves the right to increase the number of shares of Common Stock sold
without notice to or consent of the subscribers or existing Company
stockholders.
(b) The shares of Common Stock are being offered to a limited
number of accredited and other sophisticated investors. The Company may utilize
the services of a placement agent in which case, a sales commission will be paid
to the placement agent.
(c) The purchase price ("Purchase Price") per share of Common
Stock is $10.00 payable in cash upon subscription.
(d) The Offering will generally be maintained by the Company
until the earlier of: (i) the sale of all of the shares of Common Stock offered
pursuant to such Securities Purchase Agreements (or such greater number of
shares as the Company elects to offer); or (ii) such date that the Company
chooses to terminate the Offering (hereinafter the "Offering Period").
3. Binding Effect of Securities Purchase Agreement; The Closing.
(a) This Securities Purchase Agreement shall not be binding
on the Company unless and until the Company has accepted the offer represented
by an executed signature page at the end hereof. The Company may accept or
reject this Securities Purchase Agreement in the Company's sole discretion, if
the Purchaser does not meet the suitability standards established herein or for
any other reason. In the event the Company rejects this Agreement, the
Purchaser's funds will be promptly returned without deduction of any costs and
without interest.
(b) The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall occur concurrently upon acceptance by the
Company of this Securities Purchase Agreement and deposit with the Company of
funds representing the Purchase Price. Notwithstanding the above, the Company
reserves the right to reject a subscription within ten (10) days of receipt of
the Purchase Price should the Company determine during that period that
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the Purchaser does not satisfy the subscriber qualifications or suitability
standards established hereafter.
4. Deliveries by the Company. Within ten (10) days after the Closing,
the Company shall deliver to the Purchaser a stock certificate bearing
applicable restrictive legends, duly executed by the appropriate officer (s) and
registered in Purchaser's name or its nominee.
5. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company as follows:
(a) Accredited Investor. The Purchaser has such knowledge and
experience in business and financial matters such that the Purchaser is capable
of evaluating the merits and risks of purchasing the Shares. The Purchaser is an
"accredited investor" as that term is defined in Rule 501 of Regulation D of the
Act and represents that he satisfies the suitability standards identified in
Section 9 hereof;
(b) Loss of Investment. The Purchaser's (i) overall commitment
to investments which are not readily marketable is not disproportionate to his
net worth; (ii) investment in the Company will not cause such overall commitment
to become excessive; (iii) can afford to bear the loss of his entire investment
in the Company; and (iv) has adequate means of providing for his current needs
and personal contingencies and has no need for liquidity in his investment in
the Company;
(c) Special Suitability. The Purchaser satisfies any special
suitability or other applicable requirements of his state of residence and/or
the state in which the transaction by which the Shares are purchased occurs;
(d) Investment Intent.
(i) the Purchaser hereby acknowledges that the
Purchaser has been advised that this offering has not been registered with, or
reviewed by, the Securities and Exchange Commission ("SEC") because this
offering is intended to be a non-public offering pursuant to Section 4(2) and
Rule 506 of Regulation D of the Act. The Purchaser represents that the Shares
are being purchased for the Purchaser's own account and not on behalf of any
other person, for investment purposes only and not with a view towards
distribution or resale to others. The Purchaser agrees that the Purchaser will
not attempt to sell, transfer, assign, pledge or otherwise dispose of all or any
portion of the Shares unless they are registered under the Act or unless in the
opinion of counsel an exemption from such registration is available, such
counsel and such opinion to be satisfactory to the Company. The Purchaser
understands that the Shares have not been registered under the Act by reason of
a claimed exemption under the provisions of the Act which depends, in part, upon
the Purchaser's investment intention; and
(ii) the Shares and any certificates issued in
replacement therefor shall bear the following legend, in addition to any other
legend required by law or otherwise:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN TAKEN BY
THE REGISTERED OWNER FOR INVESTMENT, AND WITHOUT A VIEW TO
RESALE OR DISTRIBUTION THEREOF, AND MAY NOT BE TRANSFERRED OR
DISPOSED OF WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER THAT SUCH TRANSFER OR DISPOSITION DOES NOT VIOLATE THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE RULES AND
REGULATIONS THEREUNDER."
(e) State Securities Laws. The Purchaser understands that no
securities administrator of any state has made any finding or determination
relating to the fairness of this investment and that no securities administrator
of any state has recommended or endorsed, or will recommend or endorse, the
offering of the Shares;
(f) Authority; Power; No Conflict. The execution, delivery and
performance by the Purchaser of the Agreement are within the powers of the
Purchaser, have been duly authorized and will not constitute or result in a
breach or default under, or conflict with, any order, ruling or regulation of
any court or other tribunal or of any governmental commission or agency, or any
agreement or other undertaking, to which the Purchaser is a party or by which
the Purchaser is bound, and, if the Purchaser is not an individual, will not
violate any provision of the charter documents, By-Laws, indenture of trust or
partnership agreement, as applicable, of the Purchaser. The signatures on the
Agreement are genuine, and the signatory, if the Purchaser is an individual, has
legal competence and capacity to execute the same, or, if the Purchaser is not
an individual, the signatory has been duly authorized to execute the same; and
the Agreement constitutes the legal, valid and binding obligations of the
Purchaser, enforceable in accordance with its terms;
(g) No General Solicitation. The Purchaser acknowledges that
no general solicitation or general advertising (including communications
published in any newspaper, magazine or other broadcast) has been received by
him and that no public solicitation or advertisement with respect to the
offering of the Shares has been made to him;
(h) Advice of Tax and Legal Advisors. The Purchaser has relied
solely upon the advice of its own tax and legal advisors with respect to the tax
and other legal aspects of this investment; and
(i) Access to Information. The Purchaser has had access to all
material and relevant information concerning the Company, its management,
financial condition, capitalization, market information, properties and
prospects necessary to enable Purchaser to make an informed investment decision
with respect to its investment in the Shares. Purchaser has carefully read and
reviewed, and is familiar with and understands the contents thereof and
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hereof, including, without limitation, the risk factors described in this
Agreement. See "UNDERSTANDING OF INVESTMENT RISKS." Purchaser acknowledges that
it has had the opportunity to ask questions of and receive answers from, and to
obtain additional information from, representatives of the Company concerning
the terms and conditions of the acquisition of the Shares and the present and
proposed business and financial condition of the Company, and has had all such
questions answered to its satisfaction and has been supplied all information
requested.
6. Understanding of Investment Risks. An investment in the Shares
should not be made by a Purchaser who cannot afford the loss of its entire
Purchase Price. THE PURCHASER ACKNOWLEDGES THAT THE SHARES OFFERED HEREBY HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, OR
ANY STATE SECURITIES COMMISSIONS, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
SECURITIES PURCHASE AGREEMENT OR ANY EXHIBIT HERETO. An investment in the Shares
should not be made until the Purchaser has considered the following risk
factors:
(a) Arbitrary Offering Price. The price of the Shares offered
hereby has been arbitrarily determined by the Company without the benefit of an
arm's-length negotiation and is not based upon generally-recognized criteria,
such as earnings, price per share, net book value, etc. There can be no
assurances that the offering price is representative of the actual value of the
Shares.
(b) Dividends. The payment of dividends by the Company is not
contemplated in the foreseeable future. Earnings, if any, are expected to be
retained to finance and develop the business of the Company.
(c) Registration Rights; Restrictions Upon Resale. The Shares
have not been registered under the Act or any state securities or blue-sky law
and subscribers may not sell or otherwise transfer such securities except
pursuant to registration under the Act and any applicable state securities laws
or exemptions therefrom. Because of such restrictions, a subscriber for the
Shares must bear the economic risks of such investment for an indefinite period
of time.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants to Purchaser as follows:
(a) Organization and Standing of the Company. The Company is a
duly organized and validly existing corporation in good standing under the laws
of the State of Delaware with adequate power and authority to conduct the
business in which it is now engaged and has the corporate power and authority to
enter into this Agreement, and is duly qualified and licensed to do business as
a foreign corporation in such other states or jurisdictions as is
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necessary to enable it to carry on its business, except where failure to do
so would not have a material adverse effect on its business;
(b) Corporate Power and Authority. The execution and delivery
of this Agreement and the transactions contemplated hereby have been duly
authorized by the Board of Directors of the Company. No other corporate act or
proceeding on the part of the Company is necessary to authorize this Agreement
or the consummation of the transactions contemplated hereby. When duly executed
and delivered by the parties hereto, this Agreement will constitute a valid and
legally binding obligation of the Company enforceable against it in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization or other similar laws and legal and
equitable principles limiting or affecting the rights of creditors generally;
and/or (ii) general principles of equity, regardless of whether considered in a
proceeding in equity or at law;
(c) Noncontravention. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will not,
to the best of the Company's knowledge and belief, (i) permit the termination or
acceleration of the maturity of any material indebtedness or material obligation
of the Company; (ii) permit the termination of any material note, mortgage,
indenture, license, agreement, contract, or other instrument to which the
Company is a party or by which it is bound or the Certificate of Incorporation
or By-Laws of the Company; (iii) except as expressly provided in this Agreement
and except for state "blue sky" approvals that may be required and those
consents and waivers which already have been obtained by the Company, require
the consent, approval, waiver or authorization from or registration or filing
with any party, including but not limited to any party to a material agreement
to which the Company is a party or by which it is bound, or any regulatory or
governmental agency, body or entity except where failure to obtain such consent,
approval, waiver or authorization would not have a material adverse effect on
the Company's business; (iv) result in the creation or imposition of any lien,
claim or encumbrance of any kind or nature on any material properties or assets
of the Company; or (v) violate in any material aspect any statute, law, rule,
regulation or ordinance, or any judgment, decree, order, regulation or rule of
any court, tribunal, administrative or governmental agency, body or entity to
which the Company or its properties is subject except where such violation would
not have a material adverse effect on the Company's business; and
(d) Reservation of Securities. The requisite number of shares
of Common Stock of the Company have been duly authorized and reserved for
issuance upon the Company's receipt and acceptance of payment therefore, and no
further corporate action is required for the valid issuance of such Shares.
8. IMPORTANT CONSIDERATIONS: SUITABILITY STANDARDS - WHO SHOULD
INVEST.
INVESTMENT IN THE SHARES INVOLVES A HIGH DEGREE OF RISK AND IS
SUITABLE ONLY FOR PERSONS OF SUBSTANTIAL FINANCIAL RESOURCES WHO HAVE NO NEED
FOR LIQUIDITY IN THEIR INVESTMENT.
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A substantial number of state securities commissions have
established investor suitability standards for the marketing within their
respective jurisdictions of restricted securities. Some have also established
minimum dollar levels for purchases in their states. The reasons for these
standards appear to be, among others, the relative lack of liquidity of
securities of such programs as compared with other securities investments.
Investment in the Shares involves a high degree of risk and is suitable only for
persons of substantial financial means who have no need for liquidity in their
investments.
The Company has adopted as a general investor suitability
standard the requirement that each Purchaser of Shares represents in writing
that he: (a) is acquiring the Shares for investment and not with a view to
resale or distribution; (b) can bear the economic risk of losing his entire
investment; (c) his overall commitment to investments which are not readily
marketable is not disproportionate to his net worth, and an investment in the
Shares will not cause such overall commitment to become excessive; (d) has
adequate means of providing for his current needs and personal contingencies and
has no need for liquidity in this investment in the Shares; (e) has evaluated
all the risks of investment in the Company; and (f) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of investing in the Company or is relying on his own purchaser
representative, in making an investment decision.
In addition, each of the Subscribers for Shares must be: (1) a
sophisticated investor with substantial net worth and experience in making
investments of this nature; and (2) an "accredited investor," as defined in Rule
501 of Regulation D under the Act, by meeting any of the following conditions:
(i) he has an individual income in excess of $200,000 in each
of the two most recent years or joint income with his spouse in excess of
$300,000 in each of those years, and he reasonably expects an income in excess
of the aforesaid levels in the current year, or
(ii) he has an individual net worth, or a joint net worth with
his spouse, at the time of his purchase, in excess of $1,000,000 (net worth for
these purposes includes homes, home furnishings and automobiles), or
(iii) he otherwise satisfies the Company that he is an
accredited investor, as defined in Rule 501 under the Act.
Other categories of investors included within the definition
of accredited investor include the following: certain institutional investors,
including certain banks, whether acting in their individual or fiduciary
capacities; certain insurance companies; federally registered investment
companies; business development companies (as defined under the Investment
Company Act of 1940); Small Business Investment Companies licensed by the Small
Business Administration; certain employee benefit plans; private business
development companies (as defined in the Investment Advisers Act of 1940); tax
exempt organizations (as defined in Section 501(c)(3) of the Internal Revenue
Code) with total assets in excess of $5,000,000; entities in which all the
equity owners are accredited investors; and certain affiliates of the Company.
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A partnership subscriber, which satisfies the requirements set
forth in clauses (a) through (f) above shall satisfy the suitability standards
if it is an accredited investor by reason of clause (iii) above, or if all of
its partners are accredited investors. A corporate subscriber, which satisfies
the requirements set forth in clauses (a) through (f) above shall satisfy the
investor suitability standards if it is an accredited investor by reason of
clause (iii) above, or if all of its shareholders are accredited investors.
Corporate subscribers must have net worth of at least three (3) times the amount
of their investment in the Shares.
The suitability standards referred to above represent minimum
suitability requirements for prospective purchasers and the satisfaction of such
standards by a prospective purchaser does not necessarily mean that the Shares
are a suitable investment for such purchaser. The Company may, in circumstances
it deems appropriate, modify such requirements. The Company may also reject
subscriptions for whatever reasons, in its sole discretion, it deems
appropriate.
A Purchaser who is a resident of certain state may be required
to meet certain additional suitability standards.
THE ACCEPTANCE OF A SUBSCRIPTION FOR SHARES BY THE COMPANY
DOES NOT CONSTITUTE A DETERMINATION BY THE COMPANY THAT AN INVESTMENT IN THE
SHARES IS SUITABLE FOR A PROSPECTIVE PURCHASER. THE FINAL DETERMINATION OF THE
SUITABILITY OF INVESTMENT IN THE SHARES MUST BE MADE BY THE PROSPECTIVE
PURCHASER AND HIS ADVISERS.
9. State Law Considerations.
IN MAKING AN INVESTMENT DECISION, THE PURCHASER MUST RELY ON
HIS OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THESE SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL
OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE
FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY
OF THE DESCRIPTION OF BUSINESS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
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10. Notices. All notices, requests, consents or other communications
required or permitted hereunder shall be in writing and shall be hand delivered
or mailed first class postage prepaid, registered or certified mail, to the
following addresses:
If to the Company:
Autologous Wound Therapy, Inc.
0000 Xxxxxx Xxxx, Xxxxx X
Xxxxxx Xxxx, XX 00000
With a copy to:
Price Xxxxxxx, Esquire
Friday, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
In the case of Purchaser:
To the address set forth at the end of this Agreement or to
such other addresses as may be specified in accordance herewith from time to
time.
Unless specified otherwise, such notices and other
communications shall for all purposes of this Agreement be treated as being
effective upon being delivered personally or, if sent by mail, five days after
the same has been deposited in a regularly maintained receptacle for the deposit
of United States mail, addressed as set forth above, and postage prepaid.
11. Survival of Representations and Warranties. Representations and
warranties contained herein shall survive the execution and delivery of this
Agreement.
12. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and permitted assigns of the parties hereto, provided that
this Agreement and the interests herein may not be assigned by either party
without the express written consent of the other party.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
14. Sections and Other Headings. The section and other headings
contained in this Agreement are for the convenience of reference only, do not
constitute part of this Agreement or otherwise affect any of the provisions
hereof.
15. Counterpart and Facsimile Signatures. This Agreement may be signed
in counterparts and all counterparts together shall become effective only when
the counterpart(s) have been executed and delivered by and on behalf of the
Company and the Purchaser. Facsimile signatures to this Agreement shall be
deemed to be original signatures.
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IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have caused this Agreement to be signed by their duly authorized officers.
Purchaser:
By:
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Shares/$
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Number and dollar amount Name
of Shares purchased -
Purchase Price Address of Purchaser:
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Social Security Number:
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Accredited Investor Certification
(Place initials on the appropriate line(s))
[ ] (i) I am a natural person who had individual income of more than $200,000
in each of the most recent two years or joint income with my spouse in
excess of $300,000 in each of the most recent two years and reasonably
expect to reach that same income level for the current year ("income",
for purposes hereof, should be computed as follows: individual
adjusted gross income, as reported (or to be reported) on a federal
income tax return, increased by (1) any deduction of long-term capital
gains under section 1202 of the Internal Revenue Code of 1986 (the
"Code"), (2) any deduction for depletion under Section 611 et seq. of
the Code, (3) any exclusion for interest under Section 103 of the Code
and (4) any losses of a partnership as reported on Schedule E of Form
1040);
[ ] (ii) I am a natural person whose individual net worth (i.e., total assets
in excess of total liabilities), or joint net worth with my spouse,
will at the time of purchase of the Shares be in excess of $1,000,000;
[ ] (iii) The Purchaser is a "Qualified Institutional Buyer" as the term is
defined under Rule 144A of the Act.
[ ] (iv) The Purchaser is an investor satisfying the requirements of Section
501(a)(1), (2) or (3) of Regulation D promulgated under the Securities
Act, which includes but is not limited to, a self-directed employee
benefit plan where investment decisions are made solely
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by persons who are "accredited investors" as otherwise defined in
Regulation D;
[ ] (v) The Purchaser is a trust, which trust has total assets in excess of
$5,000,000, which is not formed for the specific purpose of acquiring
the Shares offered hereby and whose purchase is directed by a
sophisticated person as described in Rule 506(b)(ii) of Regulation D
and who has such knowledge and experience in financial and business
matters that it is capable of evaluating the risks and merits of an
investment in the Shares;
[ ] (vi) I am a director or executive officer of the Company; or
[ ] (vii) The Purchaser is an entity (other than a trust) in which all of the
equity owners meet the requirements of at least one of the above
subparagraphs.
Agreed and Accepted by
AUTOLOGOUS WOUND THERAPY, INC.
By:
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Name:
Title:
DATED:
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