EXHIBIT 10.42
DIRECTORS RULE 10(b)5-1
10(b)5-1 PURCHASE PLAN , dated DECEMBER 12TH, 2003 (the "Purchase Plan"),
between Hemagen Diagnostics, Inc., ("Buyer") and Xxxxxx Xxxxxx Partners LLC
("TWP").
WHEREAS, the Buyer desires to establish this Purchase Plan to buy shares of
common stock, par value $0.01 per share (the "Stock"), of Hemagen Diagnostics,
Inc. (the "Issuer") in the open market; and WHEREAS, the Buyer desires to engage
XXXXXX XXXXXX PARTNERS LLC to effect Purchases of shares of Stock in accordance
with the Purchase Plan; and WHEREAS, the Buyer desires to adopt this plan during
a "window" period pursuant to the company's xxxxxxx xxxxxxx policy;
NOW, THEREFORE, the Buyer and Xxxxxx Xxxxxx Partners LLC hereby agree as
follows:
1. For fiscal year ended September 30, 2003, the commencement of the
plan, TWP shall effect a buy (each a "Buy") of $34,000 worth of shares
in aggregate for the directors to be allocated in accordance with
SCHEDULE A, attached, on days the Nasdaq BB (the "Exchange") is open
and the Stock trades regular way on the Exchange but on any day or
number of days required to execute said trades during the period
beginning forty eight hours after the issuance of the press release
announcing Hemagen's financial results for the year ended September
30, 2003, but not later than March 31, 2004.
2. Commencing with the quarter beginning October 1, 2003 and ending
December 31, 2003, and each quarter thereafter TWP shall effect a buy
(each a "Buy") of shares per quarter per director of Stock as
prescribed in SCHEDULE B, on days the Nasdaq BB (the "Exchange") is
open and the Stock trades regular way on the Exchange but furthermore
on any day or number of days required to execute said trades during
the period following the fifteenth day after each quarter end, but not
later than the last day of the subsequent calendar quarter. The
purchase periods shall be January 15th through March 31st for fees
earned in the quarter ended December 31, April 15th through June 30th
for fees earned in the quarter ended March 31, July 15th through
September 30th for fees earned in the quarter ended June 30, and
October 15th through December 31st for fees earned in the quarter
ended September 30.
3. The express specifications of the buy are as follows:
- "Please buy shares per non-employee director as funded, prior to
purchase, at a price not to exceed $1.00 per share, AS DESCRIBED
IN SCHEDULES A&B OF THIS DOCUMENT. Such purchases shall be made
during the periods as described such amount is purchased in
total."
4. This Purchase Plan shall become effective on DECEMBER 12TH, 2003 and
shall terminate on notice from the company. This purchase plan shall
automatically terminate upon written notice from the Issuer to TWP
that trading activity in the Stock would either (a) have an adverse
effect on the company or (b) cause a violation of law.
5. Buyer understands that TWP may not be able to effect a Buy due to a
market disruption or a legal, regulatory or contractual restriction
applicable to TWP. If any Purchase executed as required by paragraph
1, due to a market disruption, a legal, regulatory or contractual
restriction applicable to TWP or any other event, TWP shall effect
such Purchase as promptly as practical after the cessation or
termination of such market disruption, applicable restriction or other
event.cannot be
6. Buyer represents and warrants that they are not aware of material,
nonpublic information with respect to the Issuer or any securities of
the Issuer (including the Stock) and is entering into this Purchase
Plan in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b5-1. TWP agrees (a) not to deviate from the
instructions provided in this Purchase Plan and (b) not to enter into
or alter a
corresponding or hedging transaction or position with respect to the
Stock, in both cases, even if requested to do so.
7. Buyer understands that this Purchase Plan may not be modified by Buyer
while Buyer is in possession of any material non-public information or
during periods specified by Issuer Corporate Counsel or by the
Issuer's written xxxxxxx xxxxxxx policy as restricted. TWP agrees to
comply with Rule 10b-18 in effecting any purchase of Stock pursuant to
this Purchase Plan.
8. It is the intent of the parties that this Purchase Plan comply with
the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and
this Purchase Plan shall be interpreted to comply with the
requirements of Rule 10b5-1(c). Buyer has not relied upon TWP or any
person affiliated with TWP in connection with Buyer's adoption or
implementation of this Purchase Plan, and Buyer acknowledges that they
have not received or relied on any representations from TWP concerning
this Purchase Plan's compliance with Rule 10b5-1.
9. Buyer authorizes TWP and its agents and representatives to make
inquiry of the Issuer, the Issuer's transfer agent or counsel of which
you may deem advisable in connection with the proposed buy of the
security.
10. Buyer agrees to make all filings, if any, required under Sections
13(d) and 16 of the Exchange Act.
11. This Purchase Plan shall be governed by and construed in accordance
with the laws of the State of New York and may be modified or amended
only in accordance with Section 6 hereof and by a writing signed by
the parties hereto and the Issuer.
12. TWP and any of its employees or agents acting in good faith pursuant
to these instructions will be indemnified and held harmless by Buyer
with respect to the execution of these instructions.
13 Buyer represents and warrants that it is currently able to buy shares
of Stock in accordance with the Issuer's xxxxxxx xxxxxxx policies and
Buyer has obtained the approval of the Issuer's counsel to enter into
this Purchase Plan.
14. Xxxxxxxx-Xxxxx Provision:
a. Pension Fund Blackouts:
(i). Officers and directors can not buy, sell, or transfer any
stock acquired in connection with their service or employment during
pension fund blackout periods (as that term is defined in the
Xxxxxxxx-Xxxxx Act) and any profits realized from such transactions
will be recoverable by the Issuing Company.
(ii). The Buyer and/or Issuing Company holds the responsibility
for informing TWP of any pension fund blackout periods. If the Buyer
or the Issuing Company does not inform TWP of any pension fund
blackout periods; and if TWP buys, sells, or transfers any stock
acquired by the Buyer in connection with their service or employment
as a result of not being informed by Buyer of the pension fund
blackout period then the Buyer will be responsible for any and all
expenses associated with the cancellation or reversal of the
transaction by TWP effected on behalf of the Buyer.
IN WITNESS WHEREOF, the undersigned have signed this Purchase Plan as of the
date first written above. The issuer of these securities and the issuer's
counsel may rely on these representations as if they were made directly to the
issuer and the issuer's counsel.
/s/ Xxxx X. Xxxxx 12/4/03
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Xxxx X. Xxxxx, M.D., Director Date
/s/ Xxxxxx X. Xxxx 12/5/03
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Xxxxxx X. Xxxx, Director Date
/s/ Xxxxxxx X. Xxxxxxx 12/4/03
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Xxxxxxx X. Xxxxxxx, Director Date
/s/ Xxxxxxx X. Xxxxx 12/8/03
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Xxxxxxx X. Xxxxx, Director Date
/s/ Xxxxx X. XxXxx 12/5/03
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Xxxxx X. XxXxx, Former Director Date
/s/ Xxxxxx X. Xxxx 12/8/03
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Xxxxxx X. Xxxx, Director Date
/s/ Xxxxxx Xxxxxxx 12/12/03
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TWP Authorized Signature, Date
Chief Administrative Officer and Partner
SCHEDULE A
FEES EARNED PRIOR TO SEPTEMBER 30, 2003
TOTAL AMOUNT
DIRECTOR: OF PURCHASES
--------- ------------
Xxxx X. Xxxxx $ 8,000
Xxxxxx X. Xxxx $ 8,000
Xxxxxxx X. Xxxxxxx $ 8,000
Xxxxx X. XxXxx $ 6,000
Xxxxxx X. Xxxx $ 4,000
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Total $34,000
SCHEDULE B
FEES EARNED AFTER SEPTEMBER 30, 2003
AMOUNT
TOTAL AMOUNT PURCHASED
DIRECTOR: OF PURCHASES PER QUARTER
--------- ------------ -----------
Xxxx X. Xxxxx $ 8,000 $2,000
Xxxxxx X. Xxxx $ 8,000 $2,000
Xxxxxxx X. Xxxxxxx $ 8,000 $2,000
Xxxxxx X. Xxxx $ 8,000 $2,000
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Total $32,000 $8,000
