EXHIBIT 99.1
WARRANT AND OPTION EXERCISE STOCK PURCHASE AGREEMENT
DATED AS OF MARCH 22, 2002
AMONG
XXXXXX X. XXXXXX,
THAT NGO,
XXXXX XXXX
XXXXXXX X. XXXXXXXXX,
XXXXXX XXXXXX
AND
XXXXXXX X. XXXXXXXX, III, M.D.
AS SELLERS,
THE PURCHASERS LISTED ON THE SIGNATURE PAGE HERETO
AND
PCNA, S.A.
AS PLACEMENT AGENT
RELATING TO THE ACQUISITION OF
SHARES OF COMMON STOCK
OF
AMDL, INC.
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WARRANT AND OPTION EXERCISE STOCK PURCHASE AGREEMENT
This WARRANT AND OPTION EXERCISE STOCK PURCHASE AGREEMENT, dated as of
March 22, 2002 (this "Agreement"), among Xxxxxx X. Xxxxxx, That Xxx, Xxxxx Xxxx,
Xxxxxxx X. XxxXxxxxx, Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxxxxx III, M.D.
(collectively, the "Sellers"), being the holders of warrants to purchase shares
of common stock of AMDL, Inc., a Delaware corporation ("AMDL"), the purchasers
identified in Schedule 2.1 (collectively, the "Purchasers") and PCNA, S.A., a
Swiss corporation ("PCNA"), as placement agent. Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP
("Escrow Agent") joins as a party for the purposes of the escrow arrangements
set forth in Section 6. AMDL joins as an additional party for the purposes of
the registration provisions set forth in Section 7.
WITNESSETH
WHEREAS, the Sellers desire to sell an aggregate of 483,432 shares of
AMDL Common Stock issuable upon exercise of certain warrants and options held by
the Sellers (the "Shares") in exchange for an aggregate purchase price of
$1,450,296 (the "Purchase Price"), on the terms and subject to the conditions
set forth in this Agreement;
WHEREAS, PCNA will act as the placement agent for the Sellers in
connection with the sale of the Shares to the Purchasers pursuant to an offering
registered under the Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the Parties hereby agree as follows:
1. CERTAIN DEFINITIONS
The following terms used in this Agreement shall have the meanings
specified below.
"Affiliate" means, as to a specified Person, a Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Person specified.
"Agreement" means this Warrant and Option Exercise Stock Purchase
Agreement.
"AMDL" means AMDL, Inc., a Delaware corporation.
"AMDL Common Stock" means the common stock, $.001 par value, of AMDL,
Inc., a Delaware Corporation.
"AMEX" shall mean the American Stock Exchange.
"Closing" and "Closing Date" have the respective meanings given to those
terms in Section 3.1.
"Company" means AMDL and its successors.
"Escrow Agent" means Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP, a Minnesota
limited liability partnership.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" means the $.68 per share exercise price of the Warrants
and Options.
"Government" means (a) the government of the United States or the
government of any foreign country recognized by the government of the United
States; (b) the government of any state, province, county, municipality, city,
town or district of the United States, or any foreign country (whose national
government is so recognized); and any multi-county district; and (c) any agency,
department, authority, commission, administration, court, magistrate, tribunal,
arbitrator, instrumentality or political subdivision of, or within the
geographical jurisdiction of, any government described in the foregoing clauses
(a) and (b).
"Holder" shall mean each Person who holds Registrable Securities; and
each of the successors, assigns and transferees of each of such Holder.
"Law" means any of the following of, or issued by, any Government, in
effect on or prior to the date hereof, any statute, law, act, ordinance, code,
resolution, rule, regulation, order, guideline, decree, judgment, license,
permit, certificate or certification, registration, concession, grant, franchise
or restriction; and any published official interpretation, or ruling (whether
designated as public or private, substantive or procedural).
"Lien" means any mortgage, lien, security interest, pledge, encumbrance,
restriction on transferability, defect of title, charge or claim of any nature
whatsoever on any property or property interest.
"Net Purchase Price" shall mean the Purchase Price less the Sales
Expenses and the Exercise Price.
"Options" means those certain options to purchase AMDL Common Stock
issued by AMDL to Xxxxxxx X. XxxXxxxxx on June 30, 1999 pursuant to AMDL's 1999
Stock Option Plan.
"Party" means any one of the Purchasers, or any one of the Sellers,
AMDL, or the Escrow Agent as the context requires.
"Person" means any individual or entity, whether incorporated or not,
including any partnership, limited liability company, limited liability
partnership or other organization recognized by applicable law.
"PCNA" means PCNA, S.A.
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"Prospectus" shall mean the Prospectus included in the Shelf
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any Prospectus supplement, including
post-effective amendments, in each case including all material incorporated or
deemed to be incorporated by reference therein.
"Purchase Price" has the meaning set forth in Section 2.1(a).
"Purchasers" means the persons identified on or before the Closing Date
and identified on Schedule 2.1 to this Agreement.
"Registrable Securities" shall mean the Shares; provided, however, that
any Shares shall cease to be Registrable Securities when they shall have been
sold by a Holder pursuant to an effective Shelf Registration Statement or
pursuant to Rule 144.
"Registration Expenses" shall mean any and all expenses incident to the
performance by the Company of its obligations under this Agreement, including,
but not limited to: (i) all SEC and AMEX registration and filing fees; (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws; (iii) all expenses of printing and distributing the Shelf
Registration Statement, any Prospectus, and any amendments or supplements
thereto; and (iv) the fees and disbursements of counsel for the Company and of
the independent public accountants of the Company.
"Rule 144" means Rule 144 of the General Rules and Regulations
promulgated under the Securities Act or any successor rule.
"Sales Expenses" means the total amount set forth in Schedule 2.1 as
expenses of the transaction.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers" means the persons identified in the introductory paragraph to
this Agreement.
"Shares" means the 483,432 shares of AMDL Common Stock to be issued to
the Sellers upon exercise of the Warrants and Options and sold by the Sellers to
the Purchasers pursuant to this Agreement.
"Shelf Registration Statement" shall mean the registration statement on
Form S-3 under the Securities Act which covers the resale of the Registrable
Securities pursuant to Rule 415 of the General Rules and Regulations promulgated
under the Securities Act filed on January 10, 2002 (Reg. No. 333-76548), and all
amendments and supplements to such Shelf Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein and all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
"Underwriter" shall have the meaning set forth in Section 7.5(a) hereof.
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"Warrants" means those certain Stock Purchase Warrants issued by AMDL to
the Seller on July 1, 1999.
2. SALE AND PURCHASE OF THE SHARES
2.1. Sale and Purchase of Shares; Pre Closing Deliveries.
(a) Subject to the terms and conditions of this Agreement,
at the Closing, the Sellers shall sell to the Purchasers
and the Purchasers shall purchase from the Sellers the
number of Shares set forth opposite such Purchaser's
name on Schedule 2.1 hereto. The price to be paid by the
Purchasers to the Sellers for the Shares shall be $3.00
per share (an aggregate of $1,450,296) in cash (the
"Purchase Price"). In the event that a Purchaser
purchases less than all of the Shares set forth on
Schedule 2.1, the number of Shares sold by each Seller
shall be reduced on a pro rata basis and the related
Sales Expenses shall be decreased proportionately.
(b) At least five (5) business days prior to the Closing
Date, PCNA shall deliver to Escrow Agent an updated
Schedule 2.1 which identifies the Purchasers, including
brokerage account information necessary for electronic
delivery of the Shares, and each of the Sellers shall
deliver to the Escrow Agent a fully executed Notice of
Exercise for the Warrants and Options.
(c) At least two (2) business days prior to the Closing
Date, each of the Purchasers shall deliver to the Escrow
Agent, by wire transfer of immediately available funds
to the account designated by the Escrow Agent, the
amounts set forth below their names on Schedule 2.1.
Upon receipt of such funds, and the notices described in
paragraph (b) above, the Escrow Agent shall cause to be
transmitted to AMDL's transfer agent instructions for
the electronic delivery of the Shares, free of any
restrictive legends in the names of the Purchasers on
the FAST/DWAC system with OTC on the Closing Date.
2.2. Escrow Arrangements. Pursuant to the terms and conditions set
forth in Section 6 below, the Escrow Agent shall administer the
exercise of the Warrants and Options, the receipt and
distribution of the Purchase Price and the delivery and transfer
of the Shares as described herein.
2.3. Registration of Shares. Pursuant to the terms and conditions set
forth in Section 7 below, and prior to the Closing, AMDL shall
file with the SEC a Shelf Registration Statement relating to the
offer and sale of the Shares. Such Shelf Registration Statement
shall have been declared effective prior to the Closing.
3. CLOSING
3.1. Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at the offices of the Escrow Agent,
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
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700, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, at 10:00 a.m. local time on
March 15, 2002, or at such other time and place and on such other
date, not later than April 15, 2002 as the Parties shall mutually
agree (the "Closing Date").
3.2. Deliveries at Closing.
(a) At the Closing, subject to the provisions of this
Agreement, the Escrow Agent shall cause to be released and
delivered to each of the Purchasers, free of restrictions,
via the FAST/DWAC system the number of Shares indicated
for such Purchaser on Schedule 2.1.
(b) At the Closing, subject to the provisions of this
Agreement, the Escrow Agent shall release and deliver to
each of the Sellers the amount of Net Purchase Price
indicated for such Seller on Schedule 2.1.
(c) At the Closing, the Escrow Agent shall release and deliver
to PCNA, Xxxxx-Xxxx Xxxxxxxxx and Xxxxxx Investments, S.A.
the portion of the total Sales Expenses as set forth in
Schedule 2.1 opposite their respective names.
(d) At the Closing, the Escrow Agent shall release and deliver
to AMDL the total Exercise Price as set forth on Schedule
2.1.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the Sellers. Each of the
Sellers hereby severally and not jointly represents and warrants
to the Purchasers as follows:
(a) Authority. Such Seller has the power and authority to
enter into this Agreement and to perform such Seller's
obligations hereunder and that this Agreement has been
duly and validly executed and delivered by such Seller and
constitutes a valid and binding agreement of such Seller,
enforceable against such Seller in accordance with its
terms.
(b) Consents, Approvals and Filings. Except for the provisions
of Section 7, there is no requirement applicable to the
Sellers or AMDL to make any filing or registration with,
or to obtain any permit, authorization, consent or
approval of, any Government as a condition to the lawful
execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein.
(c) Title to Shares. On the Closing Date such Seller owns
beneficially and of record, free and clear of any Liens,
all of the Shares being transferred to the Purchasers by
such Seller and that, upon delivery of the payment for
such Shares as herein provided, such Seller will convey
good title thereto, free and clear of any Liens.
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(d) No Broker. Except for the Sales Expenses as set forth in
Schedule 2.1, none of the Sellers have employed or
retained any broker, consultant or other intermediary in
connection with the transactions contemplated by this
Agreement who would be entitled to a broker's, finder's or
similar fee or commission in connection herewith.
4.2. Representations and Warranties of the Purchasers. Each of the
Purchasers represents and warrants, severally and not jointly, to
the Sellers as follows:
(a) Authority. Such Purchaser has the power and authority to
enter into this Agreement and to perform such Purchaser's
obligations hereunder and that this Agreement has been
duly and validly executed and delivered by such Purchaser
and constitutes a valid and binding agreement of such
Purchaser, enforceable against such Purchaser in
accordance with its terms.
(b) Access to Information. Such Purchaser has been given
access to AMDL for the purpose of obtaining such
information as such Purchaser or its qualified
representative has reasonably requested in connection with
the decision to purchase the Shares. Such Purchaser has
been afforded the opportunity to ask questions of officers
of AMDL regarding its business prospects and the Shares,
all as such Purchaser or such Purchaser's qualified
representative has found necessary to make an informal
investment decision to purchase the Shares.
(c) Purchaser Sophistication and Ability to Bear Risk of Loss.
Such Purchaser acknowledges that it is able to protect its
interests in connection with the acquisition of the Shares
and can bear the economic risk of investment in the Shares
without producing a material adverse change in such
Purchaser's financial condition. Such Purchaser otherwise
has such knowledge and experience in financial or business
matters that such Purchaser is capable of evaluating the
merits and risks of the investment in the Shares.
(d) Purchases by Groups. Such Purchaser is not acquiring the
Shares as part of a group within the meaning of Section
13(d)(3) of the Securities Act of 1934, as amended.
(e) No Broker. The Purchaser has not employed or retained any
broker, consultant or other intermediary in connection
with the transactions contemplated by this Agreement who
would be entitled to a broker's, finder's or similar fee
or commission in connection herewith.
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5. CONDITIONS TO CLOSING
5.1. Conditions to Obligations of the Purchasers. The obligation of
the Purchasers to consummate the purchase of the Shares under
this Agreement is subject to the satisfaction of the following
express conditions, each of which may be waived by the
Purchasers; provided, however, that if such closing conditions
are not met, the Escrow Agent shall immediately return to each
Purchaser the amount set forth opposite such Purchaser's name on
Schedule 2.1 and previously delivered to the Escrow Agent
pursuant to Section 2.1.
(a) Representations and Warranties. The representations and
warranties of the Sellers contained herein and in all
agreements, documents and instruments executed and
delivered pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date as if made
on and as of the Closing Date.
(b) Compliance with this Agreement. The Sellers, the Company
and the Escrow Agent shall have performed and complied in
all material respects with all agreements, covenants,
obligations and conditions contained herein which are
required to be performed or complied with by the Sellers,
the Company and the Escrow Agent before or at the Closing.
(c) Closing Documents. The Sellers and the Escrow Agent shall
have delivered to the Purchaser all documents to be
delivered to the Purchasers under Section 3.2 hereof.
(d) Effectiveness of the Shelf Registration Statement. The
Shelf Registration Statement filed by the Company shall
have been declared effective.
5.2. Conditions to Obligations of the Sellers. The obligation of the
Sellers to consummate the sale of the Shares is subject to the
satisfaction of the following express conditions, each of which
may be waived by the Sellers.
(a) Representations and Warranties. The representations and
warranties of the Purchasers contained herein and in all
agreements, documents and instruments executed and
delivered pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date as if made
on and as of the Closing Date.
(b) Compliance with this Agreement. The Purchasers shall have
performed and complied in all material respects with all
agreements, covenants, obligations and conditions
contained herein which are required to be performed or
complied with by the Purchasers before or at the Closing.
(c) Purchase Price. The Purchasers shall have delivered the
Purchase Price to the Escrow Agent pursuant to Section 2.1
hereof.
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6. ESCROW ARRANGEMENTS
6.1. Appointment of Escrow Agent. The Sellers and the Purchasers
hereby appoint the Escrow Agent as escrow agent to perform the
duties specified in this Agreement.
6.2. Concerning the Escrow Agent
(a) The Escrow Agent shall not be under any duty to give the
property held by it hereunder any greater degree of care
than it gives its own similar property.
(b) This Escrow Agreement expressly sets forth all the duties
of the Escrow Agent with respect to any and all matters
pertinent hereto. No implied duties or obligations shall
be read into this Agreement against the Escrow Agent. The
Escrow Agent shall not be bound by the provisions of any
agreement between the parties except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own
negligence or willful misconduct and, except with respect
to claims based upon such negligence or willful misconduct
that are successfully asserted against the Escrow Agent,
AMDL and the Sellers shall indemnify and hold harmless the
Escrow Agent from and against any and all losses,
liabilities, claims, actions, damages and expenses,
including, without limitation, reasonable attorneys' fees
and disbursements, arising out of or in connection with
this Agreement.
(d) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or
other writing delivered to it hereunder without being
required to determine the authenticity or the correctness
of any fact stated therein or the propriety or validity of
the service thereof. The Escrow Agent may act in reliance
upon any instrument or signature believed by it to be
genuine and may assume that any person purporting to give
receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been
duly authorized to do so. The Escrow Agent shall be fully
protected in any action taken hereunder in good faith and
shall not be responsible for any failure or inability of
the Parties to honor any of the provisions of this
Agreement. The Escrow Agent shall be under no liability to
the other parties to any document (except this Agreement)
or to anyone else by reason of any failure on the part of
any such party to perform such party's obligations under
such agreement.
(e) The Escrow Agent may act pursuant to the advice of counsel
with respect to any matter relating to this Agreement and
shall not be liable for any action taken or omitted in
accordance with such advice.
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(f) The Escrow Agent does not have any interest in the
property deposited hereunder but is serving as escrow
holder only and having only possession thereof. AMDL shall
pay or reimburse the Escrow Agent upon request for any and
all expenses, if any, incurred by the Escrow Agent in
connection with this Agreement and transfer taxes or other
taxes relating to the Account incurred in connection
herewith and shall indemnify and hold harmless the Escrow
Agent from any amounts that it is obligated to pay in the
way of such expenses and taxes.
(g) The Escrow Agent makes no representation as to the
validity, value, or genuineness of any security or other
document or instrument held by or delivered to it.
(h) The Escrow Agent may at any time resign as such by
delivering the Account to any successor Escrow Agent
designated by a majority of the Sellers in writing, or to
any court of competent jurisdiction, whereupon the Escrow
Agent shall be discharged of and from any and all further
obligations arising in connection with this Agreement. The
resignation of the Escrow Agent will take effect on the
earlier of (a) the appointment of a successor (including a
court of competent jurisdiction) or (b) the day which is
30 days after the date of delivery of its written notice
of resignation to AMDL. If at that time the Escrow Agent
has not received a designation of a successor Escrow
Agent, the Escrow Agent's sole responsibility after that
time shall be to safekeep the escrowed property until
receipt of a designation of successor Escrow Agent or a
written disposition instruction by a majority of the
Sellers or a final order of a court of competent
jurisdiction.
(i) In the event of any disagreement resulting in adverse
claims or demands being made in connection with the
escrowed property, or in the event that the Escrow Agent
in good faith is in doubt as to what action it should take
hereunder, the Escrow Agent shall be entitled to retain
the escrowed property until the Escrow Agent shall have
received (i) a final non-appealable order of a court of
competent jurisdiction directing delivery of the escrowed
property or (ii) a written agreement executed by the
parties to the dispute directing delivery of the escrowed
property, in which event the Escrow Agent shall disburse
the escrowed property in accordance with such order or
agreement. Any court order shall be accompanied by a legal
opinion by counsel for the presenting party satisfactory
to the Escrow Agent to the effect that said opinion is
final and non-appealable.
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7. REGISTRATION STATEMENT
7.1. Shelf Registration; Suspension of Use of Prospectus.
(a) On January 10, 2002, AMDL originally filed with the SEC a
Shelf Registration Statement (as thereafter will be
amended on or about March 27, 2002) relating to the offer
and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of
distribution described in the Shelf Registration
Statement. AMDL shall use its best efforts to cause the
Shelf Registration Statement to be declared effective
under the Securities Act as soon as reasonably
practicable.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be used by
the Holders until the Closing Date (such period being
called the "Shelf Registration Period"). The Company shall
be deemed not to have used its best efforts to keep the
Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that
would result in Holders of Registrable Securities not
being able to offer and sell such securities pursuant to
the Shelf Registration Statement during that period,
unless such action is (i) required by applicable law or
(ii) pursuant to Section 7.1(c) hereof, and, in either
case, so long as the Company promptly thereafter complies
with the requirements of Section 7.2(i) hereof, if
applicable.
(c) The Company may suspend the use of the Shelf Registration
Statement for a period not to exceed 45 days in any 12
month period for valid business reasons (not including
avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, public
filings with the SEC, pending corporate developments and
similar events.
7.2. Registration Procedures. In connection with the Shelf
Registration Statement, the following shall apply:
(a) The Company shall ensure that (i) the Shelf Registration
Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement
thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder,
(ii) the Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, and (iii)
any Prospectus forming part of the Shelf Registration
Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary
in order to make the
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statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) (1) The Company shall advise the Holders and, if requested
by such Holder, confirm such advice in writing:
(i) when any amendment to the Shelf Registration
Statement has been filed with the SEC and when the
Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement or
the Prospectus included therein or for additional
information.
(2) The Company shall advise the Holders and, if requested
by any such Holder, confirm such advice in writing:
(i) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification
of the securities covered by the Shelf Registration
Statement for sale in any jurisdiction or the
initiation or threatening of any proceeding for
such purpose; and
(iii) of the suspension of the use of the Prospectus
pursuant to Section 7.1(c) hereof or of the
happening of any event that requires the making of
any changes in the Shelf Registration Statement or
the Prospectus so that, as of such date, the
statements therein are not misleading and do not
omit to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading (which advice shall be accompanied
by an instruction to suspend the use of the
Prospectus until the requisite changes have been
made).
(c) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement at the
earliest possible time.
(d) The Company shall furnish to each Holder, without charge,
at least one copy of the Shelf Registration Statement in
the form declared effective by the SEC and any
post-effective amendment thereto, including financial
statements and schedules (if incorporated by reference),
and, if the Holder so requests in writing, all exhibits
(including those incorporated therein by reference).
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(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder, without charge, as many copies of
the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use,
in compliance with the terms of this Agreement, of the
Prospectus or any amendment or supplement thereto by each
of the Holders of Registrable Securities in connection
with the offering and sale thereof.
(f) Prior to any offering of Registrable Securities pursuant
to the Shelf Registration Statement, the Company shall
register or qualify or cooperate with the Holders thereof
and their respective counsel in connection with the
registration or qualification of such securities for offer
and sale under the securities or blue sky laws of such
jurisdictions in the United States as any such Holders
reasonably request in writing, and do any and all other
acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Registrable
Securities; provided, however, that the Company will not
be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of
process or to taxation in any such jurisdiction where it
is not then so subject.
(g) The Company shall use its reasonable best efforts to as
promptly as practicable list the Registrable Securities on
each national securities exchange on which the Shares are
then listed, subject to official notice of issuance.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates
representing the Registrable Securities free of any
restrictive legends and in such denominations and
registered in such names as Holders may request prior to
sales of Registrable Securities pursuant to the Shelf
Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
(b)(2)(iii) above, the Company shall, if required pursuant
to the Securities Act or paragraph (b)(2)(iii) above,
promptly prepare a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document
so that, as thereafter delivered to purchasers of the
Registrable Securities, the Prospectus will not include an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
(j) The Company may require each Holder to furnish to the
Company with such information regarding the Holder and the
distribution of such securities as the Company may from
time to time reasonably require for
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inclusion in such Shelf Registration Statement. Any Holder
who fails to provide such information within a reasonable
time after receiving such request shall not be entitled to
use the Prospectus.
(k) The Company shall enter into such agreements and take all
other appropriate actions in order to expedite or
facilitate the registration or the disposition of the
Registrable Securities.
(l) The Company shall (i) make reasonably available for
inspection by the Holders, and any attorney, accountant or
other agent retained by the Holders, all relevant
financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries in
connection with such Shelf Registration Statement as is
customary for similar due diligence examinations; and (ii)
cause the Company's officers directors and employees to
supply all relevant information reasonably requested by
the Holders or any such attorney, accountant or agent in
connection with such Shelf Registration Statement as is
customary for similar due diligence examinations;
provided, however, that any information that is designated
in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept
confidential by the Holders or any such attorney,
accountant or agent, unless disclosure thereof is made in
connection with a court proceeding or required by law, or
such information has become available (not in violation of
this agreement) to the public generally or through a third
party without an accompanying obligation of
confidentiality, and the Company shall be entitled to
request that such Holders sign a confidentiality agreement
to the foregoing effect.
7.3. Use of Prospectus. The Holders may not use the Prospectus, in
each case after notice by the Company of the applicable event,
(A) during any period of suspension referred to in Section
7.1(c), (B) during any period when a stop order is in effect as
referred to in Section 7.2(b)(2)(i), (C) in the applicable
jurisdiction during any period when the qualification of the
Registrable Securities has been suspended in such jurisdiction,
as referred to in Section 7.2(b)(2)(ii), and (D) during any
suspension period referred to in Section 7.2(b)(2)(iii).
7.4. Registration Expenses. The Company shall be responsible for, and
shall pay in due course, all Registration Expenses. The Company
shall not be responsible for the payment of any underwriting or
brokerage fees and discounts.
7.5. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement, the
Company agrees to indemnify and hold harmless each Holder,
each Affiliate of such Holder, the directors, partners,
officers, employees and agents of each such Holder and
each person who controls any such Holder within the
13
meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in
the Shelf Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the
Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein, (ii) the
Company will not be liable to any indemnified party under
this indemnity agreement with respect to any Shelf
Registration Statement or Prospectus to the extent that
any such loss, claim, damage or liability of such
indemnified party results from the use of the Prospectus
during a period when the use of the Prospectus has been
suspended in accordance with Section 7.1(c) hereof,
provided that Holders received prior notice of such
suspension; and (iii) the Company shall not be liable to
any indemnified party with respect to any preliminary
Prospectus to the extent that any such loss, claim, damage
or liability of such indemnified party results from the
fact that such indemnified party sold Registrable
Securities to a person as to whom there was not sent or
given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or of the Prospectus as
then amended or supplemented in any case where such
delivery is required by the Securities Act, if the loss,
claim, damage or liability of such indemnified party
results from an untrue statement or omission of a material
fact contained in the preliminary Prospectus which was
corrected in the Prospectus or in the Prospectus as then
amended or supplemented. This indemnity agreement will be
in addition to any liability which the Company may
otherwise have. The Company also agrees to indemnify and
provide contribution to each person who may be deemed to
be an underwriter (for purposes of the Securities Act)
with respect to the Registrable Securities
("Underwriters"), their officers and directors, and each
person who controls each such Underwriter, on
substantially the
14
same basis as that of the indemnification of and
contribution to the Holders provided in this Section
7.5(a).
(b) By its participation in the Shelf Registration Statement,
each Holder shall be deemed to have agreed to indemnify
and hold harmless (i) the Company, (ii) each of its
directors, (iii) each of its officers who signs such Shelf
Registration Statement and (iv) each person who controls
the Company within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with
respect to written information relating to such Holder
furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any such Holder may
otherwise have. Each Holder shall also be deemed to have
agreed to indemnify and contribute to each Underwriter,
their officers and directors, and each person who controls
each such Underwriter, on substantially the same basis as
that of the indemnification of and contribution to the
Company provided in this Section 7.5(b). Anything in this
Agreement contained to the contrary notwithstanding, the
liability of each Holder for indemnification or
contribution hereunder shall be limited to the amount of
proceeds received by such Holder in the offering giving
rise to such liability.
(c) Promptly after receipt by an indemnified party under this
Section 7.5 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this
Section 7.5, notify the indemnifying party in writing of
the commencement thereof; but the failure so to promptly
notify the indemnifying party will not relieve the
indemnifying party from liability under Section 7.5(a) or
7.5(b) hereof unless and to the extent that it is
materially prejudiced thereby. The indemnifying party
shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the
indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the
indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses
of such separate counsel (and local counsel) if (i) the
use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and
15
the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other
indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party.
An indemnified party shall not settle or compromise any
action for which it seeks indemnification or contribution
hereunder without the prior written consent of the
indemnifying party, which consent shall not be
unreasonably withheld. An indemnifying party will not,
without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in Section 7.5(a)
or 7.5(b) is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each
applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the aggregate
losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "losses")
to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from
the Shelf Registration Statement which resulted in such
losses.
(e) The provisions of this Section 7.5 shall remain in full
force and effect regardless of any investigation made by
or on behalf of any Holder or the Company or any other
persons who are entitled to indemnification pursuant to
the provisions of this Section 7.5, and shall survive the
sale by a Holder of Registrable Securities pursuant to the
Shelf Registration Statement.
8. MISCELLANEOUS
8.1. Governing Law; Submission to Jurisdiction. This Agreement shall
be construed in accordance with and governed by the laws of the
State of California (other than the choice of law principles
thereof). To the extent permitted by applicable law, the Parties
hereby irrevocably submit in any suit, action or proceeding
arising out
16
of or related to this Agreement or any of the transactions
contemplated hereby to the jurisdiction of the United States
District Court for the Central District of California and the
jurisdiction of any court of the State of California located in
Orange County and waive any and all objections to jurisdiction
that they may have under the laws of the State of California or
the United States.
8.2. Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned by any
Party without the prior written consent of the other Parties.
Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the
successors and permitted assigns of the Parties hereto.
8.3. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the Parties with regard to
the subjects hereof and thereof and this Agreement replaces and
supersedes all prior agreements and understandings between the
Parties with respect to such subject matter.
8.4. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered by
hand, transmitted via facsimile or mailed by first-class mail,
postage prepaid, addressed:
(a) if to the Purchasers at the address(es) supplied by PCNA
at the Closing.
(b) if to the Sellers:
PCNA, S.A.
---------------------------------------
---------------------------------------
Attn: Xxxxxx Xxxxxx, Executive Director
---------------------------------
(c) if to the Escrow Agent:
Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
(d) if to AMDL:
AMDL, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
or to such other addresses as a Party shall have furnished to the other Party in
writing.
17
8.5. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to the Parties upon any breach or
default by the another Party under this Agreement, shall impair
any such right, power or remedy of the non-breaching Parties, nor
shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on
the part of any Party of any breach or default under this
Agreement or any waiver on the part of another Party of any
provisions or conditions of this Agreement, must be in writing
and shall be effective only to the extent specifically set forth
in writing. All remedies, either under this Agreement, or by law
or otherwise afforded to a Party, shall be cumulative and not
alternative.
8.6. Publicity. No Party shall issue any public statement or
communication regarding this Agreement or the transactions
contemplated hereby without the consent of the other Party, which
consent shall not be unreasonably withheld or delayed, except
that any Party may make such disclosures as are required to
comply with applicable law, in which case that Party will notify
the other Parties of such disclosure before it is made.
Notwithstanding the foregoing, after the Closing, the Purchaser
shall be permitted to make any public statement or communication
regarding this Agreement, the transactions contemplated hereby or
the Companies without the consent of the Sellers.
8.7. Titles and Subtitles. The titles of the sections, paragraphs and
subparagraphs of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
8.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
8.9. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent
permitted by law) not invalidate or render unenforceable such
provision in any other jurisdiction.
8.10. Dollars. All references in this Agreement to dollars or "$" means
United States dollars.
18
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed on its behalf either by itself or by one of its officers thereunto
duly authorized, all as of the date and year first above written.
SELLERS:
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
/s/ THAT NGO
------------------------------------------
That Ngo
/s/ XXXXX XXXX
------------------------------------------
Xxxxx Xxxx
/s/ XXXXXXX X. XXXXXXXXX
------------------------------------------
Xxxxxxx X. XxxXxxxxx
/s/ XXXXXX XXXXXX
------------------------------------------
Xxxxxx Xxxxxx
/s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx III, M.D.
AMDL:
AMDL, Inc.
a Delaware corporation
By: /s/ XXXX X. XXXXXX
---------------------------------------
Xxxx X. Xxxxxx, President
(Signatures Continued on Next Page)
19
ESCROW AGENT:
XXXXXXXXXXX XXXXX & XXXXXXXX LLP
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Xxxxxxx X. Xxxxx, Partner
PCNA:
PCNA, S.A.
a Swiss corporation
By: /s/ XXXXXX XXXXXX
-----------------------------------
Xxxxxx Xxxxxx, Executive Director
PURCHASERS:
CRANSHIRE CAPITAL L.P.
By: /s/ XXXXXXXX X. XXXXX
-------------------------------------
Its: President-Downsview Capital
-------------------------------------
The General Partner
PHOTON GLOBAL LTD.
By: /s/ XXXXXXXX X. XXXXX
-----------------------------
Its: Director/Authorized Signatory
-----------------------------
(Signatures Continued on Next Page)
20
EFG EUROFINANCIERE D'INVESTISSEMENTS
By: /s/ Signature Unreadable
-------------------------------------
Its: Authorized Agent
-------------------------------------
IPE, S.A.
By: /s/ Xxxxx-Xxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Its: Administrators
-----------------------------
21
SCHEDULE 2.1
SELLERS
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Xxxxxx V. Xxxxxxx X. Xxxxxx X. Xxxxxxxx
Xxxxxx That Xxx Xxxxx Xxxx XxxXxxxxx Rounds III, M.D. Total
-------------------------------------------------------------------------------------------------------------------
# of Shares Sold 92,322 117,910 54,504 53,583 48,900 116,213 483,432
Gross Purchase
Price $ 276,966.00 $ 353,730.00 $ 163,512.00 $ 160,749.00 $ 146,700.00 $ 348,639.00 $1,450,296.00
Exercise
Price $ 62,778.96 $ 80,178.80 $ 37,062.72 $ 36,436.44 $ 33,252.00 $ 79,024.84 $ 328,733.76
PCNA, S.A.
Sales Expenses $ 27,696.60 $ 35,373.00 $ 16,351.20 $ 16,074.90 $ 14,670.00 $ 34,863.90 $ 145,029.60
Xxxxxx
Investments,
S.A. Sales
Expenses $ 33,235.92 $ 42,447.60 $ 19,621.44 $ 19,289.88 $ 17,604.00 $ 41,836.68 $ 174,035.52
Xxxxx-Xxxx
Xxxxxxxxx
Sales Expenses $ 8,308.98 $ 10,611.90 $ 4,905.36 $ 4,822.47 $ 4,401.00 $ 10,459.17 $ 43,508.88
Total Sales
Expenses $ 69,241.50 $ 88,432.50 $ 40,878.00 $ 40,187.25 $ 36,675.00 $ 87,159.75 $ 362,574.00
Net Purchase
Price $ 144,945.54 $ 185,118.70 $ 85,571.28 $ 84,125.31 $ 76,773.00 $ 182,454.41 $ 758,988.24
-------------------------------------------------------------------------------------------------------------------
PURCHASERS
-------------------------------------------------------------------------------------------------------------
EFG
Cranshire Photon Global Eurofinanciere
Capital L.P. Ltd. d'Investissements IPE, S.A. Total
-------------------------------------------------------------------------------------------------------------
# of Shares Purchased 280,000 100,000 100,000 3,432 483,432
Purchase Price $840,000.00 $300,000.00 $300,000.00 $10,296.00 $1,450,296.00
-------------------------------------------------------------------------------------------------------------
22
