EXHIBIT 10.99
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), is made as of
March 3, 1999, by and between American Biomed, Inc., a corporation organized
under the laws of the State of Delaware, U.S.A., with headquarters located at
00000 Xxxxxx'x Xxxx Xxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxx 00000 (the "Company")
and the buyer set forth on the execution page hereof (the "Buyer").
RECITALS
A. The Company and the Buyer are executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by the
provisions of Regulation D ("Regulation D") as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "1933 Act");
B. The Buyer desires to purchase from the Company, and the Company desires
to sell to the Buyer, for the amounts and upon the terms and conditions stated
in this Agreement, in a closing (the "Closing") as herein described, certain of
the Company's convertible debentures as listed in Recital B(i) immediately
below, along with certain warrants of the Company as listed in Recital B(ii)
below.
(i) At the Closing, the Company's Series 1999-A Nine Percent (9%)
Redeemable Convertible Debentures (the "Debentures"), which may
be converted into common stock of the Company, $.001 par value
per share ("Common Stock"), upon the terms hereof and upon the
terms of the Debentures. The form of the Debentures is as shown
on Exhibit A attached hereto. The aggregate principal face amount
of the Debentures to be issued and sold by the Company is Four
Hundred Thousand United States Dollars (US$400,000.00).
(ii) At the Closing, as additional consideration for Buyer's purchase
of the Debentures, a warrant (each a "Warrant" and collectively
the "Warrants") to purchase Common Stock at a purchase price
equal to one hundred twenty-five percent (125%) of the closing
bid price for the Common Stock on the date of such Closing, which
Warrants must be exercised if at all within three (3) years after
the date of issuance. The Warrants shall be substantially in the
form attached hereto as Exhibit B. The number of shares of Common
Stock into which each Warrant shall be exercisable shall be equal
to one share for each ten dollars ($10.00) in face amount of
Debentures purchased by the Buyer.
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The Common Stock into which Debentures may be convertible, in accordance
with their terms, shall be referred to herein as the "Conversion Shares." The
Common Stock received upon exercise of the Warrants shall be referred to as the
"Warrant Shares." Certain shares of Common Stock may (at the Company's option as
described in the Debentures) be issued to the Buyer in payment of interest (the
"Interest Shares"). The Conversion Shares, the Warrant Shares, the Interest
Shares (if any), and the Security Shares (defined below) may be collectively
referred to herein as the "Securities."
C. Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement (the "Registration Rights Agreement") substantially in the form of
Exhibit C attached hereto pursuant to which the Company has agreed to provide
certain registration rights under the 1933 Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.
AGREEMENTS
NOW, THEREFORE, in consideration of their respective promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the Company and the Buyer hereby
agree as follows:
1. PURCHASE AND SALE OF SECURITIES.
a. Purchase. The Buyer hereby agrees to purchase from the Company,
and the Company agrees to sell to the Buyer, at the Closing, Debentures in the
aggregate principal amount of US$400,000.00. The purchase price for the
Debentures purchased by the Buyer (the "Purchase Price") shall be equal to the
face amount of such Debentures, and shall be paid in full at the Closing.
b. The Closing. The date of the Closing shall be March 5, 1999,
or on such earlier or later date as is mutually agreed to in writing by the
Company and the Buyer. The Purchase Price for the Securities being purchased at
the Closing shall be delivered to the Escrow Agent (as defined in the Escrow
Agreement substantially in the form of Exhibit D attached hereto (the "Escrow
Agreement")) on behalf of the Company on or before the date specified herein for
such Closing. At the Closing, the Company shall deliver the Debentures and the
Warrants being sold at such Closing, duly issued and executed by the authorized
officers on behalf of the Company, to the Escrow Agent (as defined in the Escrow
Agreement) on behalf of the Buyer.
c. Form of Payment. The Buyer shall pay the Purchase Price for the
Debentures and Warrants purchased at the Closing by wire transfer of immediately
available funds in United States Dollars, to be deposited into the Escrow
Account as defined in the Escrow Agreement, against delivery to the Escrow Agent
of duly executed Debentures and Warrants being purchased by the Buyer hereunder
at such Closing. The Escrow Agent shall be responsible for delivery of the
Purchase Price to the Company and the Debentures and Warrants to the Buyer in
accordance with the terms of the Escrow Agreement and with the instructions of
the said parties.
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2. BUYER'S REPRESENTATIONS AND WARRANTIES.
The Buyer understands, agrees with, and represents and warrants to the
Company with respect to its purchase hereunder, that:
a. Investment Purposes; Compliance With 1933 Act. The Buyer is
purchasing the Securities for its own account for investment only and not with a
view towards, or in connection with, the public sale or distribution thereof,
except pursuant to sales registered under or exempt from the 0000 Xxx. The
Buyer is not purchasing the Securities for the purpose of covering short sale
positions in the Common Stock established on or prior to the date of the
relevant Closing. The Buyer agrees to offer, sell or otherwise transfer the
Securities only (i) in accordance with the terms of this Agreement and the
Debentures, as applicable, and (ii) pursuant to registration under the 1933 Act
or to an exemption from registration under the 1933 Act and any other applicable
securities laws. The Buyer does not by its representations contained in this
Section 2(a) agree to hold the Securities for any minimum or other specific term
and reserves the right to dispose of the Securities at any time pursuant to a
registration statement or in accordance with an exemption from registration
under the 1933 Act, in all cases in accordance with applicable state and federal
securities laws. The Buyer understands that it shall be a condition to the
issuance of the Conversion Shares, the Warrant Shares and the Interest Shares
(if any) that the Conversion Shares, the Warrant Shares and the Interest Shares
(if any) be and are subject to the representations set forth in this Section
2(a).
b. Accredited Investor Status. The Buyer is an "accredited investor" as
that term is defined in Rule 501 (a) of Regulation D. The Buyer has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment made pursuant to this
Agreement. The Buyer is aware that it may be required to bear the economic risk
of an investment made pursuant to this Agreement for an indefinite period of
time, and is able to bear such risk for an indefinite period.
c. Reliance on Exemptions. The Buyer understands the Securities are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of the applicable United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Buyer's compliance with, the representations, warranties,
acknowledgments, understandings, agreements and covenants of the Buyer set forth
herein in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Securities.
d. Information. The Buyer and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Securities which
have been requested by the Buyer, and specifically (but without limitation) the
Company's 1997 Form 10-K as filed with the SEC for the fiscal year ended
December 31, 1997, and the Company's Form 10-Q as filed with the SEC for the
quarter ended September 30, 1998 (collectively, the "1998 Filings"). The Buyer
and its advisors, if any, have been afforded the opportunity to ask all such
questions of the Company as they have in their discretion
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deemed advisable. The Buyer understands that its investment in the Securities
involves a high degree of risk. The Buyer has sought such accounting, legal and
tax advice as it has considered necessary to an informed investment decision
with respect to the investment made pursuant to this Agreement.
e. No Government Review. The Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Securities or the
fairness or suitability of the investment in the Securities, nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
f. Transfer or Resale. The Buyer understands that: (i) except as
provided in the Registration Rights Agreement, the Securities have not been and
are not being registered under the 1933 Act or any state securities laws, and
may not be offered for sale, sold, assigned or transferred unless either (a)
subsequently registered thereunder or (b) the Buyer shall have delivered to the
Company an opinion by counsel reasonably satisfactory to the Company, in form,
scope and substance reasonably satisfactory to the Company, to the effect that
the securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration, (ii) any sale of
such securities made in reliance on Rule 144 (as hereafter defined) may be made
only in accordance with the terms of Rule 144 and further, if Rule 144 is not
applicable, any resale of such securities under circumstances in which the
seller (or the person though whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of the
SEC thereunder, and (iii) neither the Company nor any other person is under any
obligation to register such securities under the 1933 Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder (in each case, other than pursuant to this Agreement or the
Registration Rights Agreement).
g. Legend. The Buyer understands that the Debentures, and until such
time as the Conversion Shares, the Warrant Shares, the Security Shares and the
Interest Shares (if any) (collectively, the "Registrable Securities"), have been
registered under the 1933 Act as contemplated by the Registration Rights
Agreement or otherwise may be sold by the Buyer pursuant to Rule 144 (as
amended, or any applicable rule which operates to replace said Rule) promulgated
under the 1933 Act ("Rule 144"), the stock certificates representing the
Registrable Securities will bear a restrictive legend (the "Legend") in
substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
(COLLECTIVELY, THE "LAWS"). THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF
EITHER (I) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
LAWS, OR (II) AN OPINION OF COUNSEL PROVIDED TO THE ISSUER IN FORM, SUBSTANCE
AND SCOPE REASONABLY ACCEPTABLE TO THE ISSUER TO THE EFFECT THAT REGISTRATION
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IS NOT REQUIRED UNDER THE LAWS DUE TO AN AVAILABLE EXCEPTION TO OR EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE LAWS.
The Legend shall be removed and the Company will issue certificates without
the Legend to the holder of the Debentures or any Registrable Securities upon
which the Legend is stamped, in accordance with Section 5(b).
h. Authorization; Enforcement. This Agreement, the Registration Rights
Agreement and the Escrow Agreement have been duly and validly authorized,
executed and delivered by the Buyer and are each and collectively valid and
binding agreements of the Buyer enforceable in accordance with their terms,
subject as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the enforcement of
creditors' rights generally. Buyer (and Buyer's counsel) has examined this
Agreement and is satisfied in its sole discretion that this Agreement and the
accompanying Exhibits, Schedules and the Addenda, if any, are in accordance with
Regulation D and are effective to accomplish the purposes set forth herein and
therein.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company understands, agrees with, and represents and warrants to the
Buyer that:
a. Organization and Qualification: Reporting Company Status. The Company
and its subsidiaries are corporations duly organized and existing in good
standing under the laws of the respective jurisdictions in which they are
incorporated, except as would not have a Material Adverse Effect (as defined
below), and have the requisite corporate power to own their properties and to
carry on their business as now being conducted. Each of the Company and its
subsidiaries is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary and where the failure so to
qualify would have a Material Adverse Effect. "Material Adverse Effect" means
any material adverse effect on the operations, properties or financial condition
of the Company and its subsidiaries taken as a whole. The Company has registered
its Common Stock pursuant to Section 12 of the 1934 Act, and the Common Stock is
eligible for trading on the OTC Bulletin Board Market. The Company has received
no notice, either written or oral, with respect to the continued eligibility of
the Common Stock for such eligibility for trading, and the Company has
maintained all applicable requirements for the continuation of such eligibility
for trading, and the Company does not reasonably anticipate that the Common
Stock will be declared ineligible to trade on the OTC Bulletin Board Market for
the foreseeable future. Seller shall use its best efforts to continue to keep
its stock eligible for trading on the OTC Bulletin Board Market or a comparable
stock market or exchange. The Company has complied with all applicable
requirements (if any) of the National Association of Securities Dealers and the
OTC Bulletin Board Market with respect to the issuance of the Securities.
b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform this Agreement, the
Registration Rights Agreement and the
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Escrow Agreement, to issue and sell the Debentures and the Registrable
Securities in accordance with the terms hereof, and to perform its obligations
under the Debentures and the Warrants in accordance with the requirements of the
same, (ii) the execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the Escrow Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its stockholders is
required, (iii) this Agreement, the Registration Rights Agreement, the Escrow
Agreement and, on the date of the Closing, the Debentures and Warrants sold at
such Closing, have been duly and validly authorized, executed and delivered by
the Company, (iv) the Debentures and the Warrants have been duly authorized by
the Company's Board of Directors to be issued and sold, to the extent such
authorization is necessary under the Company's By-laws (defined below) or
applicable law, and (v) this Agreement, the Registration Rights Agreement and
the Escrow Agreement constitute the valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting, generally, the enforcement of creditors' rights and remedies or by
other equitable principles of general application. The Company (and its legal
counsel) has examined this Agreement and is satisfied in its sole discretion
that this Agreement and the accompanying Exhibits, Schedules and the Addenda, if
any, are in accordance with Regulation D and are effective to accomplish the
purposes set forth herein and therein.
c. Capitalization. As of December 31, 1998, the authorized capital
stock of the Company consists of 50,000,000 shares of Common Stock of which
32,648,075 shares were issued and outstanding. All of such outstanding shares
have been validly issued and are fully paid and nonassessable. Except as
disclosed in Schedule 3(c), no shares of Common Stock are subject to preemptive
rights or any other similar rights or any liens or encumbrances. Except as
disclosed in Schedule 3(c) attached and in the 1998 Filings, as of the effective
date of this Agreement, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its subsidiaries, or arrangements by which the
Company or any of its subsidiaries is or may become bound to issue additional
shares of capital stock of the Company or any of its subsidiaries, (ii) there
are no outstanding debt securities, and (iii) there are no agreements or
arrangements under which the Company or any of its subsidiaries is obligated to
register the sale of any of its or their securities under the 1933 Act (except
as provided herein and in the Registration Rights Agreement). If requested by
the Buyer, the Company has furnished to the Buyer, and the Buyer acknowledges
receipt of same by its signature hereafter, true and correct copies of the
Company's Certificate of Incorporation, as amended, as in effect on the date
hereof ("Certificate of Incorporation"), and the Company's Bylaws, as in effect
on the date hereof (the "Bylaws").
d. Issuance of Securities. The Debentures and the Registrable Securities
are all duly authorized and reserved for issuance, and in all cases upon
issuance shall be validly issued, fully paid and non-assessable, free from all
taxes, liens and charges with respect to the issue thereof, and will not be
subject to preemptive rights or other similar rights of stockholders of the
Company.
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e. Acknowledgment Regarding Buyer's Purchase of the Securities. The
Company acknowledges and agrees that the Buyer is not acting as financial
advisor to or fiduciary of the Company (or in any similar capacity with respect
to this Agreement or the transactions contemplated hereby), that this Agreement
and the transactions contemplated hereby, and the relationship between the Buyer
and the Company, are and will be considered "arms-length" notwithstanding any
other or prior agreements or nexus between the Buyer and the Company, whether or
not disclosed, and that any statement made by the Buyer, or any of its
representatives or agents, in connection with this Agreement and the
transactions contemplated hereby is not advice or a recommendation, is merely
incidental to the Buyer's purchase of the Securities and has not been relied
upon in any way by the Company, its officers or directors. The Company further
represents to the Buyer that the Company's decision to enter into this Agreement
and the transactions contemplated hereby have been based solely upon an
independent evaluation by the Company, its officers and directors.
f. No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to buy any security
under circumstances which would prevent the parties hereto from consummating the
transactions contemplated hereby pursuant to an exemption from registration
under the 1933 Act and specifically in accordance with the provisions of
Regulation D. The transactions contemplated hereby are exempt from the
registration requirements of the 1933 Act, assuming the accuracy of the
representations and warranties contained herein of the Buyer.
g. No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby will not (i) result in a violation of the Certificate of
Incorporation or Bylaws or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any of its subsidiaries or by
which any property or asset of the Company or any of its subsidiaries is bound
or affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). Neither the Company nor any of its
subsidiaries is in violation of its Certificate of Incorporation or other
organizational documents, and neither the Company nor any of its/subsidiaries is
in default (and no event has occurred which, with notice or lapse of time or
both, would put the Company or any of its subsidiaries in default) under, nor
has there occurred any event giving others (with notice or lapse of time or
both) any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, except for possible defaults or rights as would not, in
the aggregate or individually, have a Material Adverse Effect. The business of
the Company and its subsidiaries is not being conducted, and shall not be
conducted so long as the Buyer owns any of the Securities, in violation of any
law, ordinance or regulation of any governmental entity, except for possible
violations which neither singly or in the
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aggregate would have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and as required under the 1933 Act and any
applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any
of its obligations under this Agreement, the Registration Rights Agreement or
the Escrow Agreement in accordance with the terms hereof and thereof, or to
perform its obligations with respect to the Debentures exactly as described
herein and in the Debentures.
h. SEC Documents; Financial Statements. Since at least January 1, 1998,
the Company has timely filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"1934 Act") (all of the foregoing filed prior to the date hereof and all
exhibits included therein and financial statements and schedules hereto and
documents (other than exhibits) incorporated by reference therein, being
hereinafter referred to as the "SEC Documents"). The Company has delivered to
the Buyer as requested by the Buyer true and complete copies of the SEC
Documents, except for such exhibits, schedules and incorporated documents. As
of their respective dates, the SEC Documents complied in all material respects
with the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). No other
information provided by or on behalf of the Company to the Buyer (including the
information referred to in Section 2(d) of this Agreement) contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstance under
which they are or were made, not misleading. Except as set forth in the
financial statements of the Company included in the SEC Documents, the Company
has no liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to the date of such
financial statements and (ii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in such financial statements, in
each case of clause (i) and (ii) next above which, individually or in the
aggregate, are not material to the financial condition, business, operations,
properties, operating results or prospects of the Company. The SEC Documents
contain a complete and accurate list of all material undischarged written and
oral contracts, agreements, leases or other instruments to which
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the Company or any subsidiary is a party or by which the Company or any
subsidiary is subject (each a "Contract"). None of the Company, its subsidiaries
or, to the best of the Company's knowledge, any of the other parties thereto, is
in breach or violation of any Contract, which breach or violation would have a
Material Adverse Effect. No event, occurrence or condition exists which, with
the lapse of time, the giving of notice, or both, or the happening of any
further event or condition, would become a default by the Company or its
subsidiaries thereunder which would have a Material Adverse Effect.
i. Absence of Certain Changes. Except as disclosed in the SEC Documents or
Schedule 3(i), since December 31, 1997, there has been no material adverse
change and no material adverse development in the business, properties,
operation, financial condition, results of operations or prospects of the
Company. The Company has not taken any steps, and does not currently have any
reasonable expectation of taking any steps, to seek protection pursuant to any
bankruptcy law nor does the Company have any knowledge that its creditors intend
to initiate involuntary bankruptcy proceedings. The Company shall, at least
until Buyer no longer holds any of the Securities, maintain its corporate
existence in good standing and shall pay all taxes when due except for taxes it
reasonably disputes.
j. Absence of Litigation. Except as set forth in the SEC Documents or
Schedule 3(j), there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body pending or, to the knowledge of the
Company, threatened against or affecting the Company, wherein an unfavorable
decision, ruling or finding would have a Material Adverse Effect or which would
adversely affect the validity or enforceability of, or the authority or ability
of the Company to perform its obligations under, this Agreement or any of the
documents contemplated herein.
k. Foreign Corrupt Practices. Neither the Company nor any of its
subsidiaries, nor any officer, director or other person acting on behalf of the
Company or any subsidiary has, in the course of his actions for or on behalf of
the Company, used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity, made any
direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or made
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to any foreign or domestic government official or employee.
l. Acknowledgment of Dilution. The number of Conversion Shares issuable
upon conversion of the Debentures may increase substantially in certain
circumstances, including the circumstance wherein the trading price of the
Common Stock declines. The Company's executive officers and directors have
studied and fully understand the nature of the securities being sold hereunder
and recognize they have a potential dilutive effect. The board of directors of
the Company has concluded in its good faith business judgment that such issuance
is in the best interests of the Company. The Company acknowledges that its
obligation to issue Conversion Shares upon conversion of the Debentures and
Warrant Shares upon exercise of the Warrants is binding upon it
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and enforceable regardless of the dilution that such issuance may have on the
ownership interests of other stockholders.
m. Eligibility to File Registration Statement. The Company is currently
eligible to file a registration statement with the SEC on Form S-1 under the
1933 Act.
4. COVENANTS.
a. Best Efforts. Each party shall use its best efforts timely to satisfy
each of the conditions to be satisfied by it as provided in Sections 6 and 7 of
this Agreement.
b. Securities Laws. The Company agrees to timely file a Form D (and any
equivalent form required by applicable state law) with respect to the Securities
if and as required under Regulation D and applicable state securities laws and
to provide a copy thereof to the Buyer promptly after such filing. The Company
shall, on or before the date of the Closing, take such action as is necessary to
sell the Securities being sold to the Buyer at the Closing under applicable
securities laws of the United States, and shall if specifically so requested
provide evidence of any such action so taken to the Buyer on or prior to the
Closing.
c. Reporting Status. So long as the Buyer beneficially owns any of the
Securities, the Company shall file all reports required to be filed with the SEC
pursuant to the 1934 Act, and the Company shall not terminate its status as an
issuer required to file reports under the 1934 Act even if the 1934 Act or the
rules and regulations hereunder would permit such termination.
d. Use of Proceeds. The Company will use the proceeds from the sale of the
Securities to pay off certain outstanding obligations of the Company and for the
Company's internal working capital purposes, including costs and expenses of the
Company's business operations, and to the extent deemed advisable by the
Company, for the purchase of new technologies for use by the Company and its
subsidiaries, and for the purchase of additional subsidiaries and the
development and marketing of their technologies.
e. Financial Information. At the request of the Buyer, until such time as
the Buyer no longer beneficially owns or is entitled to purchase Debentures, the
Company agrees to send the following reports to the Buyer: (i) after filing with
the SEC, a copy of each of its Annual Reports on Form 10-K, its quarterly
Reports on Form 10-Q, and any reports filed on Form 8-K; and (ii) as soon as
practicable after release thereof, copies of all press releases issued by the
Company or any of its subsidiaries.
f. Reservation of Shares. The Company shall at all times have authorized,
and reserved for the purpose of issuance, a sufficient number of shares of
Common Stock to provide for the issuance of all of the Conversion Shares and the
Interest Shares (if any). Prior to complete conversion of the Debentures, the
Company shall not reduce the number of shares reserved for issuance hereunder
without the written consent of the Buyer except for a reduction proportionate to
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a reverse stock split effected for a business purpose other than affecting the
requirements of this Section, which reverse stock split affects all shares of
Common Stock equally.
g. Listing. Upon the Closing, the Company shall promptly secure the
listing of the Registrable Securities then underlying the Debentures purchased
by the Buyer upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance) and shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of shares of Registrable
Securities from time to time issued under the terms of this Agreement and the
Registration Rights Agreement. If at the relevant time the Company's Common
Stock trades on the OTC Bulletin Board Market, then the Company shall take any
steps necessary to ensure that the Registrable Securities are eligible to trade
on the OTC Bulletin Board Market. The Company shall at all times comply in all
respects with the Company's reporting, filing and other obligations under the
by-laws or rules of the National Association of Securities Dealers and the OTC
Bulletin Board Market (and such other national exchange on which the Common
Stock may be listed, as applicable), if any.
h. Prospectus Delivery Requirement. The Buyer understands that the 1933
Act requires delivery of a prospectus relating to the Common Stock in connection
with any sale thereof pursuant to a registration statement under the 1933 Act
covering any resale by the Buyer of the Common Stock being sold, and the Buyer
shall comply with any applicable prospectus delivery requirements of the 1933
Act in connection with any such sale. The Company shall deliver a copy of the
required prospectus to the Buyer immediately upon registration of the
Registrable Securities.
(i) Additional Security. As additional security for the Buyer's
undertakings as described in this Agreement, the Company has executed the pledge
and security agreement (the "Security Agreement") attached hereto as Exhibit F,
and the stock escrow and security agreement (the "Stock Escrow Agreement")
attached hereto as Exhibit G. The Stock Escrow Agreement requires that the
Company issue a number of shares of Common Stock (the "Security Shares"). The
Security Shares will be registered with the other Registrable Securities
pursuant to the Registration Rights Agreement, and administered in accordance
with the terms of the Stock Escrow Agreement.
j. Intentional Acts or Omissions. Neither party shall intentionally
perform any act which if performed, or omit to perform any act which if omitted
to be performed, would prevent or excuse the performance of this Agreement or
any of the transactions contemplated hereby.
k. No Shorting. As a material inducement for the Company to enter into
this Agreement, the Buyer represents that it has not as of the date hereof, and
covenants on behalf of itself and its affiliates that neither Buyer nor any
affiliate of Buyer will at any time in which the Buyer or any affiliate of the
Buyer beneficially owns any of the Securities, engage in any short sales of, or
hedging or arbitrage transactions with respect to, the Common Stock, or sell
"put" options or similar instruments with respect to the Common Stock.
11
1. Transfer Agent. The Company covenants that it will, within forty-five
(45) days after the date of the Closing, replace its current (that is, as of the
date of Closing) transfer agent with a new transfer agent. To ensure that the
Company complies with the covenants contained in this Section 1(l), the Escrow
Agent shall retain in escrow from the net proceeds of the sale of the Debentures
and Warrants the sum of US$25,000.00 (the "Trust"). If the Company has not
replaced its current transfer agent within such forty-five (45) day period, then
the Buyer shall inform the Escrow Agent of such fact and the Escrow Agent shall
release the Trust to the Buyer. Notwithstanding the above, if the Company
demonstrates to the reasonable satisfaction of the Buyer that it has used its
best efforts to replace its current transfer agent in accordance with this
Section 1(l), the Buyer may in its sole discretion inform the Escrow Agent in
writing of such fact, and the Company shall have another fifteen (15) days to
complete the replacement of its transfer agent as described herein. If the
Company replaces its current transfer agent as herein specified prior to the end
of such forty-five (45) day period (or to the end of any extensions granted by
the Buyer), the Company shall provide written notice of such fact to the Escrow
Agent and the Escrow Agent shall deliver the Trust to the Company as soon as
practicable thereafter.
m. Restriction on Below Market Issuance of Securities. Until the date
which is six (6) months from the date hereof, the Company shall not issue or
agree to issue {other than (i) to the Buyer or other buyers pursuant to the
transactions contemplated herein, (ii) pursuant to any employee stock option
plan or employee stock purchase plan of the Company in effect on December 31,
1998, (iii) pursuant to any existing security, option, warrant, scrip, call or
commitment or right in each case as disclosed on Schedule 3(c) hereof, or (iv)
with the consent of the Buyer, not to be unreasonably withheld} any equity
securities of the Company (or any security convertible into or exercisable or
exchangeable, directly or indirectly, for equity securities of the Company) or
debt securities of the Company if such securities are issued at a price (or
provide for a conversion, exercise or exchange price) which may be less than the
current market price for the Common Stock on the date of issuance (in the case
of Common Stock) or the date of conversion, exercise or exchange (in the case of
securities convertible into or exercisable or exchangeable, directly or
indirectly, for Common Stock). Except as provided with respect to the
transactions contemplated herein and in subsections (i), (ii), (iii), or (iv)
above of this Section 4(m), the Company shall not grant any additional so-called
"registration rights."
5. LEGEND AND TRANSFER INSTRUCTIONS.
a. Transfer Agent Instructions. The Company shall instruct its transfer
agent to issue certificates, registered in the name of the Buyer or its nominee,
for the Conversion Shares, the Warrant Shares and the Interest Shares (if any)
in accordance with the terms of the Debentures and Warrants, as applicable, and
in such amounts as specified from time to time by the Buyer to the Company, upon
conversion of the Debentures and exercise of the Warrants. All such certificates
shall bear the restrictive legend specified in Section 2(g) of this Agreement
only to the extent required by applicable law and as specified in the
Transaction Documents. The Company warrants that no instruction other than such
instructions referred to in this Section 5, and stop transfer instructions to
give effect to Section 2(f) hereof in the case of the Conversion Shares and the
Interest
12
Shares (if any) prior to the registration of same under the 1933 Act, will be
given by the Company to its transfer agent and that the Conversion Shares, the
Warrant Shares and the Interest Shares (if any) shall otherwise be freely
transferable on the books and records of the Company as and to the extent
permitted by applicable law and provided by this Agreement and the Registration
Rights Agreement. Nothing in this Section shall affect in any way the Buyer's
obligations and agreement to comply with all applicable securities laws upon
resale of the Conversion Shares, the Warrant Shares and/or the Interest Shares
(if any). If the Buyer (x) provides the Company with an opinion of counsel
reasonably satisfactory to Company, that is reasonably satisfactory in form,
substance and scope to the Company, that registration by the Buyer of the
Debentures, the Conversion Shares, the Warrant Shares and/or the Interest Shares
(if any) is not required under the 1933 Act, or (y) transfers Securities to an
affiliate which is an accredited investor (in accordance with the provisions of
this Agreement) or in compliance with Rule 144, then in either instance the
Company shall permit the said transfer, and if applicable promptly (and in all
events within two (2) trading days after receipt by the Company of each of the
original documents and things to be delivered by the Buyer to effect a
conversion of the applicable Debentures) instruct its transfer agent to issue
one or more certificates in such name and in such denominations as specified by
the Buyer.
b. Removal of Legends. The Legend shall be removed and the Company shall
issue a certificate without such Legend to the holder of any Security upon
which it is stamped, and a certificate for a security shall be originally issued
without the Legend, if, unless otherwise required by state securities laws, (x)
the sale of such Security is registered under the 1933 Act, or (y) such holder
provides the Company with an opinion by counsel reasonably satisfactory to the
Company, that is in form, substance and scope reasonably satisfactory to the
Company, to the effect that a public sale or transfer of such Security may be
made without registration under the 1933 Act or (z) such holder provides the
Company with assurances reasonably satisfactory to the Company and its counsel,
that such Security can be sold pursuant to Rule 144. The Buyer agrees that its
sale of all Securities, including those represented by a certificate(s) from
which the Legend has been removed, or which were originally issued without the
Legend, shall be made only pursuant to an effective registration statement (and
to deliver a prospectus in connection with such sale) or in compliance with an
exemption from the registration requirements of the 1933 Act. In the event the
Legend is removed from any Security or any Security is issued without the Legend
and thereafter the effectiveness of a registration statement covering the sales
of such Security is suspended or the Company determines that a supplement or
amendment thereto is required by applicable securities laws, then upon
reasonable advance notice to the holder of such Security, the Company shall be
entitled to require that the Legend be placed upon any such Security which
cannot then be sold pursuant to an effective registration statement or Rule 144
or with respect to which the opinion referred to in clause (y) next above has
not been rendered, which Legend shall be removed when such Security may be sold
pursuant to an effective registration statement or Rule 144 (or such holder
provides the opinion with respect thereto described in clause (y) next above.
c. Conversion of Debentures. The Buyer shall have the right to convert the
Debentures sold hereunder by delivering via facsimile an executed and completed
Notice of Conversion (as defined in the Debentures) to the Company and
delivering within two (2) business days thereafter
13
the original Notice of Conversion by express courier to the Company. Each date
on which a Notice of Conversion is telecopied to the Company in accordance with
the provisions hereof shall be deemed a "Conversion Date." The Company may, but
is not required to, request that the Buyer submit the original Debenture to the
Company for notation and/or cancellation and reissuance of a new Debenture of
like tenor, reflecting the partial conversion thereof. The Company will transmit
a certificate or certificates (collectively the "Certificate") representing the
shares of Common Stock issuable upon conversion of any Debentures converted
pursuant to such Notice of Conversion (along with a replacement Debenture if the
converted Debenture was submitted to the Company) to the Buyer via express
courier, within three (3) business days after the relevant Conversion Date (the
third business day after the relevant Conversion Date shall be referred to
hereinafter as the "Deadline"). With the mutual agreement of the Company and the
Buyer, the Company or a third party may (until and unless the Buyer in a
particular instance requests otherwise) hold the Debentures in trust, such that,
to effect a conversion of the Debentures, the Buyer shall deliver to the Company
via courier only the original Notice of Conversion as described in this Section
and the Company and the Buyer shall keep a record of the portion of Debentures
so converted. If either the Company or a third party holds the certificates
representing the Debentures in trust as described in the preceding sentence, the
Company will as required above deliver the Certificates directly to the Buyer
via express courier on or before the Deadline.
d. Injunctive Relief for Breach. The Company acknowledges that the remedy
at law for a breach of its obligations under Sections 5(a), 5(b) and 5(c) above
will cause irreparable harm to the Buyer by vitiating the intent and purpose of
the transactions contemplated hereby. Accordingly the Company agrees that the
remedy at law for a breach of its obligations under such Sections would be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of such Sections, the Buyer shall be entitled, in
addition to all other remedies at law or in equity (including without limitation
those remedies specified in Section 5(e) below), to an injunction restraining
any breach and requiring immediate issuance and transfer, without the necessity
of showing economic loss and without any bond or other security being required.
e. Liquidated Damages for Non-Delivery of Certificates. In addition to the
provisions of Section 5(d) above, the Company understands and agrees that a
delay in the issuance of the Certificates beyond the Deadline could result in
economic loss and other damages to the Buyer. As partial compensation to the
Buyer for such loss, the Company agrees to pay liquidated damages (and which the
Company acknowledges is not a penalty) to the Buyer for issuance and delivery of
the Certificates after the Deadline, in accordance with the following schedule
(where "No. Business Days Late" is defined as the number of business days beyond
seven (7) business days from the date of delivery by the Buyer to the Company of
a facsimile Notice of Conversion (or, if later, from the date on which the
original Notice of Conversion is submitted to the Company in accordance with
this Agreement only if such necessary documentation has not been delivered to
the Company within the three (3) business day period after the facsimile
delivery to the Company of the Notice of Conversion required in this
Agreement)):
14
Liquidated Damages
No. Business Days Late (in US$)
---------------------- ------------------
1 $ 300
2 $ 400
3 $ 500
4 $ 600
5 $ 700
6 $ 800
7 $ 900
8 $1,000
9 $1,000
10 $1,500
11+ $1,500 + $500 for
each Business Day Late
beyond 11 days
The Company shall pay the Buyer any liquidated damages incurred as called
for under this Section 5(e) by certified or cashier's check upon the earlier of
(i) issuance of the Certificates to the Buyer or (ii) each monthly anniversary
of the receipt by the Company of the Buyer's Notice of Conversion. Nothing
herein shall limit the Buyer's right to pursue actual damages for the Company's
failure to issue and deliver the Certificates to the Buyer in accordance with
the terms of this Agreement or for breach by the Company of this Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to sell Debentures at the Closing
is subject to the satisfaction, on or before the date of the Closing, of each of
the following conditions, provided that these conditions are for the Company's
sole benefit and may be waived by the Company at any time in its sole
discretion:
a. The parties shall have executed this Agreement, the Registration Rights
Agreement and the Escrow Agreement, and the parties shall have delivered the
respective documents or signature pages thereof (via facsimile or otherwise as
permitted in the Escrow Agreement) to the Escrow Agent.
b. The Buyer shall have delivered to the Escrow Agent on behalf of the
Company the Purchase Price in full (subject to Section 1(a) above) for the
Debentures purchased at the Closing, by wire transfer of immediately available
funds pursuant to the wiring instructions provided by the Escrow Agent.
c. The representations and warranties of the Buyer shall be true and
correct in all material respects as of the date made and as of the date of the
Closing as though made at that time (except for representations and warranties
that speak as of a specific date), and the Buyer shall have
15
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Buyer at or prior to the date of the Closing.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self regulatory
organization having authority over the matters contemplated hereby which
restricts or prohibits the consummation of any of the transactions contemplated
herein.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer to purchase Debentures is subject to the
satisfaction, on or before the date of the Closing, of each of the following
conditions, provided that these conditions are for the sole benefit of the Buyer
and may be waived by the Buyer at any time in its sole discretion:
a. The parties shall have executed this Agreement, the Registration Rights
Agreement and the Escrow Agreement, and the parties shall have delivered the
respective documents or signature pages thereof (via facsimile or otherwise as
permitted in the Escrow Agreement), to the Escrow Agent on behalf of each other.
b. The representations and warranties of the Company shall be true and
correct in all material respects as of the date made and as of the date of the
Closing as though made at that time (except for representations and warranties
that speak as of a specific date) and the Company shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the date of the Closing. The Buyer may
require a certificate, executed by the Chief Executive Officer of the Company,
dated as of the date of the Closing, to the foregoing effect and as to such
other matters as may be reasonably requested by the Buyer.
c. With respect to the Closing, the Company shall have issued and have
duly executed by the authorized officers of the Company, and delivered to the
Escrow Agent on behalf of the Buyer, the original Debentures being sold thereat.
d. The Common Stock shall be authorized for quotation on the OTC Bulletin
Board Market and trading in the Common Stock on such market shall not have been
suspended by the SEC or other relevant regulatory agency.
e. The Company shall not have received, as of the date of the Closing,
from the National Association of Securities Dealers or any other relevant
regulatory agency, any written or oral communication as to its actual or
potential ineligibility for the Common Stock to continue trading on the OTC
Bulletin Board Market.
f. [Intentionally Omitted.]
16
g. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self regulatory
organization having authority over the matters contemplated hereby which
restricts or prohibits the consummation of any of the transactions contemplated
herein.
h. The Escrow Agent shall have received on behalf of the Buyer the opinion
of Company counsel, dated as of the date of the Closing, in the form attached
hereto as Exhibit E.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
principles of conflict of laws. In the event of any litigation regarding the
interpretation or application of this Agreement, the parties irrevocably consent
to jurisdiction in any of the state or federal courts located in the State of
Delaware and waive their respective rights to object to venue in any such court,
regardless of the convenience or inconvenience thereof to any party. Service of
process in any civil action relating to or arising out of this Agreement
(including also all Exhibits or Addenda hereto) or the transaction(s)
contemplated herein may be accomplished in any manner provided by law. The
parties hereto agree that a final, non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
signature pages from such counterparts have been delivered to the Escrow Agent
on behalf of the other party. In the event any signature page is delivered by
facsimile transmission (which the parties agree is an acceptable form of
delivery), the party using such means of delivery shall cause three (3)
additional originally executed signature pages to be physically delivered to the
Escrow Agent on behalf of the other party within two (2) business days after the
execution and delivery hereof.
c. Headings; Gender, Etc. The headings of this Agreement are for
convenience of reference and shall not form a part of, or affect the
interpretation of this Agreement. As used herein, the masculine shall refer to
the feminine and neuter, the feminine to the masculine and neuter, and the
neuter to the masculine and feminine, as the context may require. As used
herein, unless the context clearly requires otherwise, the words "herein,"
"hereunder" and "hereby," shall refer to this entire Agreement and not only to
the Section or paragraph in which such word appears. If any date specified
herein falls upon a Saturday, Sunday or public or legal holidays, the date shall
be construed to mean the next business day following such Saturday, Sunday or
public or legal holiday. For purposes of this Agreement, a "business day" is
any day other than a Saturday, Sunday or public or legal holiday.
17
d. Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
f. Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by U. S. Mail or delivered personally or by
courier or via facsimile (if via facsimile, to be followed within three (3)
business days by an original of the notice document via U.S. Mail or courier)
and shall be effective five (5) days after being placed in the mail, if mailed,
certified or registered, return receipt requested, or upon receipt, if delivered
personally or by courier or by facsimile, in each case properly addressed to the
party to receive the same. The addresses for such communications shall be:
If to the Company: American Biomed, Inc.
10077 Xxxxxx'x Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxx, President & CEO
If to the Buyer, at the address on the signature page of this Agreement. Each
party shall provide written notice to the other party of any change in address.
g. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns.
Neither the Company nor the Buyer shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other (which
consent shall not be unreasonably withheld), and in any event any assignee of
the Buyer shall be an accredited investor (as defined in Regulation D), in the
written opinion of counsel who is reasonably satisfactory to Seller and in form,
substance and scope reasonably satisfactory to the Seller. Notwithstanding the
foregoing, if applicable, any of the entities constituting the Buyer (if greater
than one (1) entity) may assign its rights hereunder to any of its "affiliates,"
as that term is defined under the 1934 Act, without the consent of the Company;
provided, however, that any such assignment shall not release such assigning
entity from its obligations hereunder unless such obligations are assumed by
such affiliate and the Company has prior to such assignment and assumption
consented in writing to the same; and no such assignment shall be made unless it
is made in accordance with any applicable securities laws of any applicable
18
jurisdiction. Any request for an assignment made hereunder by the Buyer shall
be accompanied by an opinion by counsel reasonably satisfactory to the Company,
that is in form, substance and scope reasonably satisfactory to the Company,
that such assignment is proper under applicable law.
h. No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
i. Survival. Unless this Agreement is terminated under Section 8(1), the
representations and warranties of the Company and the Buyer contained in
Sections 2 and 3 and the agreements and covenants set forth in Sections 4, 5 and
8 shall survive the Closing of the purchase and sale of Securities purchased and
sold hereby for a period of twelve (12) months after such Closing.
j. Publicity. The Company and the Buyer shall have the right to review
before issuance by the other, any press releases or any other public statements
with respect to the transactions contemplated hereby; provided, however, that
the Company shall be entitled, without prior consultation with or approval of
the Buyer, to make any press release or other public disclosure with respect to
such transactions as is required by applicable law and regulations.
k. Further Assurance. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. Termination. In the event that the Closing shall not have occurred on
or before ten (10) business days from the date hereof, this Agreement shall
terminate at the close of business on such date. Neither party may unilaterally
terminate this Agreement after the Closing for any reason other than a material
breach of this Agreement by the non-terminating party. Such termination shall
not be the sole remedy for a breach of this Agreement by the non-terminating
party, and each party shall retain all of its rights hereunder at law or in
equity. Notwithstanding anything herein to the contrary, a party whose breach of
a covenant or representation and warranty or failure to satisfy a condition
prevented the Closing shall not be entitled to terminate this Agreement.
m. Remedies. No provision of this Agreement providing for any specific
remedy to a party shall be construed to limit such party to the specific remedy
described, and any other remedy that would otherwise be available to such party
at law or in equity shall be so available. Nothing in this Agreement shall
limit any rights a party may have with any applicable federal or state
securities laws with respect to the transactions contemplated hereby.
IN WITNESS WHEREOF, the Buyer and the Company have caused this Securities
Purchase Agreement to be duly executed as of the date first written above.
19
[SIGNATURE PAGE FOLLOWS]
20
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT DATED
MARCH 3, 1999]
COMPANY:
AMERICAN BIOMED, INC.
By: /s/ Xxxxxx X. Xxxx
___________________________________________
Xx. Xxxxxx X. Xxxx, President and CEO
BUYER:
THE AUGUSTINE FUND, L.P.
By: Augustine Capital Management, Inc., its General Partner
By: /s/ Xxx X. Xxxxxxxxx
____________________________________________
Xx. Xxx Xxxxxxxxx, President
BUYER'S ADDRESS: The Augustine Fund, LP
C/o Augustine Capital Management, Inc.
000 Xxxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier Number: 312.427.5396
Attn: Xx. Xxx Xxxxxxxxx
21
