EXHIBIT 4.4
FORM OF
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the ____ day of ______________,
1996 (the "Effective Date"), by and among BIOCIRCUITS CORPORATION, a Delaware
corporation with its principal place of business at 0000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Company"), Pacific Growth Equities, Inc. (the
"Placement Agent") and each of those persons and entities, severally and not
jointly, listed as a Purchaser on the Schedule of Purchasers attached as
EXHIBIT A hereto. Such persons and entities are hereinafter collectively
referred to herein as "Purchasers" and each individually as a "Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company, the Placement Agent and each Purchaser (severally and
not jointly) hereby agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES. Subject to the
terms and conditions of this Agreement, the Company has or before the Closing
(as defined below) will have authorized the sale and issuance of (a) up to
1,775,000 shares of its Common Stock (the "Common Stock"), (b) Warrants, each in
substantially the form attached hereto as EXHIBIT B (each a "Warrant" and
collectively the "Warrants"), to purchase up to 887,500 shares the "Warrant
Shares") of the Company's Common Stock, and (c) Warrants to purchase up to
142,000 shares of the Company's Common Stock for delivery to the Placement Agent
(the "PGE Warrants"). The shares of Common Stock sold hereunder and the Common
Stock issuable upon exercise of the Warrants and the PGE Warrants together shall
be referred to herein as the "Shares." The Shares, the Warrants and the PGE
Warrants shall be referred to herein as the "Securities."
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES.
2.1 SALE OF UNITS.
(a) At the Closing (as defined in Section 3), the Company will sell
to each Purchaser, and each Purchaser will purchase from the Company, at a
purchase price of seven dollars ($7.00) per "Unit," the number of Units set
forth next to such Purchaser's name on the Schedule of Purchasers attached
hereto as EXHIBIT A (the "Schedule of Purchasers"). As used herein, a Unit is
comprised of (i) two shares of Common Stock, and (ii) one warrant to purchase
one share of Common Stock.
2.2 SEPARATE AGREEMENT. Each Purchaser shall severally, and not jointly,
be liable for only the purchase of the Units that appear on EXHIBIT A hereto and
that relate to such
1.
Purchaser. The Company's agreement with each of the Purchasers is a separate
agreement, and the sale of Units to each of the Purchasers is a separate sale.
SECTION 3. CLOSING AND DELIVERY.
3.1 CLOSING. The Closing of the purchase and sale of the Units pursuant
to this Agreement (the "Closing") shall be held as soon as practicable after the
effectiveness of the Registration Statement, as set forth in Section 9.1(a)
hereof, to be filed with the Securities and Exchange Commission (the "SEC" or
"Commission"), and satisfaction or waiver of all other conditions to Closing, at
the offices of Cooley Godward LLP, 5 Palo Alto Square, 3000 El Camino Real, Palo
Alto, California, or on such other date and place as may be agreed to by the
Company and the Purchasers.
The Company shall give at least three (3) business days prior written
notice to the Purchasers, in a manner provided for in Section 11 hereof, of the
date, time and location of the Closing. At or prior to the Closing, each
Purchaser shall execute any related agreements or other documents required to be
executed hereunder, dated as of the date of the Closing (the "Closing Date").
3.2 DELIVERY OF THE UNITS AT THE CLOSING. At the Closing, the Company
shall deliver to each Purchaser stock certificates and Warrants registered in
the name of such Purchaser, or in such nominee name(s) as designated by such
Purchaser, representing the number of shares of Common Stock and Warrants to be
purchased by such Purchaser at the Closing as set forth in the Schedule of
Purchasers. The name(s) in which the stock certificates and Warrants are to be
issued to each Purchaser are set forth in the Stock Certificate and Warrant
Questionnaire in the form attached hereto as APPENDIX I, as completed by each
Purchaser. Also at the Closing, the Company shall deliver to the Placement
Agent the PGE Warrants.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto as
EXHIBIT C, the Company hereby represents and warrants to, and covenants with,
the Purchasers and the Placement Agent as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to conduct its
business as it is currently being conducted.
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The
Company's execution, delivery and performance of this Agreement have been duly
authorized under Delaware law by all requisite corporate action by the Company,
and will not violate any law or the Company's Amended and Restated Certificate
of Incorporation or Bylaws of the Company or any provision of any material
indenture, mortgage, agreement, contract or other material instrument to which
the Company is a party or by which the Company or any of its properties or
assets is bound as of the date hereof, or result in a breach of or constitute
(upon notice or
2.
lapse of time or both) a default under any such indenture, mortgage, agreement,
contract or other material instrument or result in the creation or imposition of
any lien, security interest, mortgage, pledge, charge or other encumbrance, of
any material nature whatsoever, upon any properties or assets of the Company.
Upon the execution and delivery, and assuming the valid execution and delivery
of this Agreement by each of the Purchasers, this Agreement will constitute a
valid and binding obligation of the Company, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Company in Section 10.4 hereof may be
legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES AND THE WARRANTS. When
issued and paid for in accordance with this Agreement or the applicable form of
Warrant, the Securities will be validly issued and outstanding, fully paid and
non-assessable, and will be issued in compliance with all applicable federal and
state securities laws and the applicable rules of the National Association of
Securities Dealers.
4.4 ADDITIONAL INFORMATION. The Company represents and warrants that the
information contained in the following documents, which the Company has
furnished to the Purchasers, or will furnish if requested by the Purchasers
prior to the Closing, is or will be true and correct in all material respects as
of their respective filing dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (without exhibits unless specifically requested);
(b) the Company's Quarterly Reports on Form 10-Q required to be filed
with the SEC for the three-month periods ended March 31, 1996 and June 30, 1996
(without exhibits unless specifically requested);
(c) the Company's Current Reports on Form 8-K filed with the SEC
since December 31, 1995, if any; and
(d) Notice of Annual Meeting and Proxy Statement for the Company's
1996 Annual Meeting of Stockholders.
4.5 NO MATERIAL CHANGE. As of the date hereof, there has been no material
adverse change in the financial condition or results of operations of the
Company since June 30, 1996, except that the Company continues to incur losses.
4.6 SEC REPORTS.
(a) The Company has filed with the Commission all reports ("SEC
Reports") required to be filed by it under the Securities Exchange Act of 1934,
as amended (the "Exchange
3.
Act"). All of the SEC Reports filed by the Company comply in all material
respects with the requirements of the Exchange Act. None of the SEC Reports
contains, as of the respective dates thereof, any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. All financial statements contained in
the SEC Reports have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the period indicated
("GAAP"). Each balance sheet presents fairly in accordance with GAAP the
financial position of the Company as of the date of such balance sheet, and each
statement of operations, of stockholders' equity and of cash flows presents
fairly in accordance with GAAP the results of operations, the stockholders'
equity and the cash flows of the Company for the periods then ended.
(b) No event has occurred since June 30, 1996 requiring the filing of
an SEC Report that has not heretofore been filed and furnished to the
Purchasers.
(c) The SEC Reports and this Agreement taken together as a whole will
not, as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein, or necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading (other than information relating to the Placement
Agent furnished by the Placement Agent expressly for use in the Agreement as to
which the Company makes no representation or warranty).
4.7 MAINTENANCE OF LISTING. For so long as the Company is obligated to
keep in effect the Registration Statements provided under Section 9 hereof, the
Company will use its reasonable best efforts to maintain its listing on The
National Market of The Nasdaq Stock Market or a national securities exchange, as
defined in the Exchange Act.
4.8 NO WAIVER OF CONDITION TO CLOSING WITHOUT CONSENT OF PLACEMENT AGENT.
The Company covenants to the Placement Agent that it will not waive the
condition to closing set forth herein at Section 7.2 as to any Purchaser without
the prior written consent of the Placement Agent.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
Each Purchaser, severally and not jointly, represents and warrants to and
covenants with the Company that:
(a) Purchaser, taking into account the personnel and resources it can
practically bring to bear on the purchase of the Securities contemplated hereby,
either alone or together with the advice of such Purchaser's purchaser
representative, is knowledgeable, sophisticated and experienced in making, and
is qualified to make, decisions with respect to investments in shares presenting
an investment decision like that involved in the purchase of the Securities,
including investments in securities issued by the Company, and has requested,
received, reviewed and considered, either alone or with such Purchaser's
purchaser
4.
representative, all information Purchaser deems relevant in making an informed
decision to purchase the Securities.
(b) Purchaser is acquiring the Securities being acquired by Purchaser
pursuant to this Agreement in the ordinary course of its business and for its
own account for investment only and with no present intention of distributing
any of such Securities or any arrangement or understanding with any other
persons regarding the distribution of such Securities, except in compliance with
Section 5(c).
(c) Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the securities purchased hereunder
except in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), applicable blue sky laws, and the rules and regulations
promulgated thereunder.
(d) Purchaser has completed or caused to be completed the Stock
Certificate and Warrant Questionnaire and the Registration Questionnaire,
attached hereto as APPENDIX I and APPENDIX II, respectively, for use in
preparation of the Registration Statements to be filed by the Company, and the
answers thereto are true and correct to the best knowledge of Purchaser as of
the date hereof and will be true and correct as of the effective date of the
applicable Registration Statement (provided that Purchaser shall be entitled to
update such information by providing notice thereof to the Company prior to the
effective date of such Registration Statement).
(e) Purchaser has, in connection with its decision to purchase the
Securities, relied with respect to the Company and its affairs solely upon the
information delivered to Purchaser as described in Sections 4.4 and 5(a) above
and the representations and warranties of the Company contained herein.
(f) Purchaser is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act.
(g) Purchaser has full right, power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. Upon the execution and delivery of this
Agreement by Purchaser, this Agreement shall constitute a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Purchaser in Section 9.3 hereof may be legally unenforceable.
5.
For purposes of this Section 5, the term "Purchaser" shall also refer to the
Placement Agent with respect to the Placement Agent's acquisition of the PGE
Warrants and the underlying Warrant Shares.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein and in the certificates for the securities delivered
pursuant hereto shall survive the execution of this Agreement, the delivery to
the Purchasers of the securities being purchased and the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING. The
Company's obligation to complete the sale and issuance of the Securities and
deliver shares of Common Stock and Warrants to each Purchaser, individually, as
set forth in the Schedule of Purchasers shall be subject to the following
conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Company shall have received payment, by check
or wire transfer of immediately available funds, in the full amount of the
purchase price for the number of Units being purchased by such Purchaser at the
Closing as set forth in the Schedule of Purchasers.
7.2 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement filed by
the Company pursuant to Section 9 shall have become effective, and no stop order
suspending the effectiveness thereof shall have been issued and no proceedings
therefor shall be pending or threatened by the Commission.
7.3 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by such Purchaser in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
7.4 COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by such Purchaser on or prior to the Closing
Date shall have been performed or complied with in all material respects.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Each
Purchaser's obligation to accept delivery of the Units and to pay for the
securities evidenced thereby shall be subject to the following conditions to the
extent not waived by such Purchaser:
8.1 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement required
pursuant to Section 9 shall have become effective no later than the close of
business on November 25, 1996; and no stop order suspending the effectiveness
thereof shall have been issued and no proceedings therefor shall be pending or
threatened by the Commission.
6.
8.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 4 hereof shall be true and correct
when made, and shall be true and correct as of the Closing Date.
8.3 COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by the Company shall have been performed or
complied with in all material respects.
8.4 LEGAL OPINION. Purchasers shall have received from Xxxxxx Godward
LLP, counsel to the Company, an opinion letter addressed to the Purchasers,
dated as of the Closing Date, in form and substance reasonably satisfactory to
counsel for the Purchasers.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
9.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
(a) As soon as practicable following the Effective Date, the Company
shall prepare and file with the Commission one or more registration statements
in order to register with the Commission the sale by the Purchasers, from time
to time, of the Shares through Nasdaq or the facilities of any national
securities exchange on which the Company's Common Stock is then traded, or in
privately-negotiated transactions (a "Registration Statement").
(b) The Company shall use reasonable best efforts to prepare and file
with the Commission (i) such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith, (ii) such SEC Reports
and (iii) such other filings required by the Commission, as may be necessary to
keep the Registration Statement continuously effective until the second
anniversary of the first date on which no Warrants remain unexercised or
unexpired; provided, however, that in the event of a Suspension Period (as
defined below), the Company shall extend the period of effectiveness of such
Registration Statement by the aggregate number of days of each such Suspension
Period. The Company may suspend use of the prospectus when it deems necessary,
in its reasonable judgment, until such time as the Company subsequently
authorizes use of the prospectus (each such period, a "Suspension Period").
Upon the declaration of a Suspension Period, the Company shall use reasonable
best efforts to end the Suspension Period as quickly as possible.
Notwithstanding the foregoing, the Company shall not allow a Suspension Period
to continue for more than 60 days unless the Company shall deliver to the
Purchasers a second notice, which shall have the effect of extending the
Suspension Period by up to an additional 30 days. In no event shall the Company
extend a Suspension Period beyond such 90 day period. The Company shall not
under any circumstances be entitled to exercise its rights under this
subparagraph to effect a Suspension Period more than two times in any 12 month
period. Each Purchaser agrees that such Purchaser will not sell any Shares
pursuant to the prospectus beginning at the time the Company gives such
Purchaser notice of the suspension of the prospectus and ending at the time
the Company gives
7.
such Purchaser notice of the termination of the Suspension Period. Each
Purchaser further agrees to promptly notify the Company of the sale of all of
such Purchaser's Securities.
(c) In order to facilitate the public sale or other disposition of
all or any of the shares by each Purchaser, the Company shall furnish to each
Purchaser with respect to the Shares registered under the Registration Statement
such number of copies of prospectuses and preliminary prospectuses as such
Purchaser reasonably requests in conformity with the requirements of the
Securities Act.
(d) The Company shall file documents required of the Company for
normal blue sky clearance in states specified in writing by each Purchaser;
PROVIDED, HOWEVER, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented.
(e) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers except as provided under Section 12.8 below, the Company shall bear
all expenses (exclusive of underwriting discounts and commissions) in connection
with the procedures in paragraphs (a) through (d) of this Section 9.1.
For purposes of this Section 9.1, the term "Purchaser" shall also refer to
the Placement Agent.
9.2 TRANSFER OF SECURITIES AFTER REGISTRATION. Each Purchaser agrees that
such Purchaser will not effect any disposition of the Shares or the Warrants
that would constitute a sale within the meaning of the Securities Act, except:
(i) pursuant to the Registration Statement, in which case such
Purchaser shall submit the certificates evidencing the Shares to the transfer
agent accompanied by a separate "Purchaser's Certificate" (A) in the form of
Appendix III attached hereto, (B) executed by such Purchaser or by an officer
of, or other authorized person designated by, such Purchaser, and (C) to the
effect that (1) the Shares have been sold in accordance with the Registration
Statement and (2) the requirement of delivering a current prospectus has been
satisfied; or
(ii) in a transaction exempt from registration under the
Securities Act, in which case such Purchaser shall, prior to effecting such
disposition, submit to the Company an opinion of counsel in form and substance
reasonably satisfactory to the Company to the effect that the proposed
transaction is in compliance with the Securities Act.
For purposes of this Section 9.2, the term "Purchaser" shall also refer to
the Placement Agent.
9.3 INDEMNIFICATION. As used in this Section 9.3 the following terms
shall have the following respective meanings:
8.
(a) "Selling Stockholder" shall mean a Purchaser of Securities under
this Agreement, including the Placement Agent, and any transferee of such a
Purchaser who is entitled to resell Shares pursuant to the Registration
Statement;
(b) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 9.1; and
(c) "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Stockholder
and the Placement Agent from and against any losses, claims, damages or
liabilities to which such Selling Stockholder or the Placement Agent may become
subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon, any Untrue Statement on or after the effective date of
the Registration Statement, or arise out of any failure by the Company to
fulfill any undertaking included in the Registration Statement and the Company
will reimburse such Selling Stockholder or the Placement Agent for any
reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim; PROVIDED,
HOWEVER, that the Company shall not be liable to such Selling Stockholder or the
Placement Agent in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an Untrue Statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling Stockholder
or the Placement Agent, respectively, specifically for use in preparation of the
Registration Statement, or the failure of such Selling Stockholder or the
Placement Agent, respectively, to comply with the covenants and agreements
contained in Section 9.1 or 9.2 hereof respecting sale of the Shares or any
statement or omission in any Prospectus that is corrected in any subsequent
Prospectus that was delivered to the Selling Stockholder or the Placement Agent,
respectively, prior to the pertinent sale or sales by the Selling Stockholder or
the Placement Agent, respectively.
Each Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure to comply with the covenants and agreements contained in
Section 9.1 or 9.2 hereof respecting sale of the Shares, or any Untrue Statement
contained in the Registration Statement on or after the effective date thereof
if such Untrue Statement was made in reliance upon and in conformity with
written information furnished by or on behalf of such Purchaser specifically for
use in preparation of
9.
the Registration Statement, and such Purchaser will reimburse the Company (or
such officer, director or controlling person), as the case may be, for any legal
or other expenses reasonably incurred in investigating, defending or preparing
to defend any such action, proceeding or claim; PROVIDED that in no event shall
any indemnity by a Purchaser under this Section 9.3 exceed the gross proceeds
received by such Purchaser from the sale of Shares covered by such Registration
Statement.
The Placement Agent agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 9.1 or 9.2 hereof
respecting sale of the Shares, or any Untrue Statement contained in the
Registration Statement on or after the effective date thereof if such Untrue
Statement was made in reliance upon and in conformity with written information
furnished by or on behalf of the Placement Agent specifically for use in
preparation of the Registration Statement, and the Placement Agent will
reimburse the Company (or such officer, director or controlling person), as the
case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; PROVIDED that in no event shall any indemnity by the Placement Agent
under this Section 9.3 exceed the gross proceeds received by the Placement Agent
from the sale of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 9.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; PROVIDED, HOWEVER, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; PROVIDED, HOWEVER, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
9.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Section 4, Section 5 or this Section 9 upon the transferability of
the Shares shall cease and
10.
terminate as to any particular number of the Shares when such Shares shall have
been sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Shares or at
such time as an opinion of counsel satisfactory to the Company shall have been
rendered to the effect that such conditions are not necessary in order to comply
with the Securities Act.
9.5 INFORMATION AVAILABLE. So long as the Registration Statement is
effective covering the resale of Shares owned by the Purchasers or the Placement
Agent, the Company will furnish to the Purchasers and the Placement Agent:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 120 days after the end of each
fiscal year of the Company), one copy of (i) its Annual Report to Stockholders
(which Annual Report shall contain financial statements audited in accordance
with generally accepted auditing standards certified by a national firm of
certified public accountants); (ii) its Annual Report on Form 10-K; (iii) its
quarterly reports on Form 10-Q (the foregoing, in each case, excluding
exhibits); and (iv) its current reports on Form 8-K, if any;
(b) upon the request of any Purchaser or the Placement Agent, all
exhibits excluded by the parenthetical to subparagraph (a)(iii) of this
Section 9.5, in the form generally available to the public; and
(c) upon the reasonable request of any Purchaser or the Placement
Agent, an adequate number of copies of the prospectuses to supply to any other
party requiring such prospectuses.
9.6 MARKET STAND-OFF. If requested by the underwriters in any proposed
underwritten public offering by the Company of Common Stock, Purchasers and the
Placement Agent, or any assignees thereof or transferees who are affiliates
thereof, will not sell any of the Securities for up to 90 days following the
effective date of the registration statement relating to such public offering.
9.7 CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding Purchaser or such Purchaser's plan of
distribution set forth in such Registration Statement. The Placement Agent
agrees to promptly notify the Company of any changes in the information set
forth in the Registration Statement regarding the Placement Agent or its plan of
distribution set forth in such Registration Statement.
SECTION 10. BROKER'S FEE. The Company and each Purchaser (severally and
not jointly) hereby represent that, except for amounts to be paid to the
Placement Agent by the Company as described in Section 12.8 hereof, there are no
brokers or finders entitled to compensation in connection with the sale of the
Units, and shall indemnify each other for any such fees for which they are
responsible.
11.
SECTION 11. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by confirmed
facsimile or mailed by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, and shall be
deemed given when so sent in the case of facsimile transmission, or when so
received in the case of mail or courier, and addressed as follows:
(a) if to the Company, to:
Biocircuits Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy so mailed to:
Cooley Godward LLP
Five Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person at such other place as the Company shall
designate to the Purchasers and the Placement Agent in writing; and
(b) if to the Purchasers or the Placement Agent, at the address as
set forth at the end of this Agreement, or at such other address or addresses as
may have been furnished to the Company in writing.
SECTION 12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least a
majority of the Shares.
12.2 HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
12.3 SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
12.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and
12.
performed entirely in California by California residents, without regard to
conflicts of law principles.
12.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
12.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
12.7 ENTIRE AGREEMENT. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
12.8 PAYMENT OF FEES AND EXPENSES. Each of the Company and the Purchasers
shall bear its own expenses and legal fees incurred on its behalf with respect
to this Agreement and the transactions contemplated hereby (the "Offering");
PROVIDED, that the Company shall reimburse the Placement Agent for all
reasonable out-of-pocket expenses incurred by the Placement Agent in connection
with the Offering and the reasonable fees and expenses of Howard, Rice,
Nemerovski, Canady, Xxxx & Xxxxxx in connection with its acting as counsel to
the Placement Agent. The fees and expenses of the Placement Agent for which the
Company shall be liable hereunder shall in no event exceed $50,000 in the
aggregate. Purchasers acknowledge that the Placement Agent will receive a
commission equal to $0.35 per Unit sold in the Offering and will be entitled to
receive a warrant to purchase the number of shares of the Company's Common Stock
equal to sixteen percent (16%) of the number of Units sold in the Offering upon
substantially the same terms and conditions as the Warrants; PROVIDED, HOWEVER,
that the PGE Warrants will contain a cashless exercise provision. If any action
at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
13.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PLACEMENT AGENT:
BIOCIRCUITS CORPORATION PACIFIC GROWTH EQUITIES, INC.
By:
---------------------------
By:
---------------------------
Xxxxxx X. Xxxxxxxxx Name:
Chief Financial Officer -------------------------
Title:
Address: 0000 Xxxxxxxxxx Xxxxxxx ------------------------
Xxxxxxxxx, XX 00000
Address: 000 Xxxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
EXHIBIT B
FORM OF WARRANT
16.
EXHIBIT C
SCHEDULE OF EXCEPTIONS
THE INCLUSION OF ANY MATTER AS PART OF THIS SCHEDULE SHOULD NOT BE
INTERPRETED AS INDICATING THAT THE COMPANY HAS DETERMINED THAT SUCH MATTER IS
NECESSARILY MATERIAL TO THE PURCHASER.
SECTIONS 4.4; 4.5; AND 4.6
ADDITIONAL INFORMATION; NO MATERIAL CHANGE; SEC REPORTS
The Company recently determined that certain of its year-to-date product
sales were contingent sales. In light of the contingent nature of such sales,
the Company will increase its reserves up to $68,000 for the quarter ending
September 30, 1996 as necessary to account for any contingent amounts still
outstanding.
The Company is currently negotiating with Xxxxxxx Instruments, Inc.
("Xxxxxxx") to eliminate Xxxxxxx'x right to convert its convertible promissory
note into equity under the terms of this financing, and to provide Xxxxxxx with
certain registration rights.
APPENDIX I
BIOCIRCUITS CORPORATION
STOCK CERTIFICATE AND WARRANT QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares and Warrants are to be registered in (this
is the name that will appear on your stock certificate(s) and warrant(s)).
You may use a nominee name if appropriate:
-------------------------------
2. The relationship between the Purchaser of the Securities and the Registered
Holder listed in response to item 1 above:
-------------------------------
3. The mailing address of the Registered Holder listed in response to item 1
above:
-------------------------------
-------------------------------
-------------------------------
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in the response to item 1 above:
-------------------------------
Signature:
---------------------
Print Name:
---------------------
Title:
---------------------
APPENDIX II
BIOCIRCUITS CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the following information, as of September 24, 1996:
(1) (2)
Number of shares, if any, which
will be owned after completion
Number of Shares of sale of Shares
which are being included included in the
in the Registration Statement Registration Statement
----------------------------- --------------------------------
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the Proxy Statement in connection with the
Company's 1996 Annual Meeting of Stockholders?
Yes No
--- ---
If yes, please indicate the nature of any such relationships:
--------------
--------------------------------------------------------------------------------
Signature:
---------------------------------
Print Name:
---------------------------------
Title:
---------------------------------
APPENDIX III
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized
by hereby
---------------------------------------------------------------
[fill in official name of individual or institution]
certifies that he/she is the Purchaser of the Shares evidenced by the attached
stock certificate(s) and as such, sold such Shares on in
----------------------
[date]
accordance with registration statement number ______________________________
[fill in the number of or otherwise identify registration statement]
and the requirement of delivering a current prospectus and current annual,
quarterly and reports (Forms 10-K, 10-Q, and 8-K) by the Company has been
complied with in connection with such sale.
PRINT OR TYPE:
Name of Purchaser (Individual or Institution):
----------------------------------
Name of Individual representing Purchaser
(if an Institution):
----------------------------------
Title of Individual representing Purchaser
(if an Institution):
----------------------------------
SIGNATURE BY:
Individual Purchaser or Individual
representing Purchaser:
----------------------------------
BIOCIRCUITS CORPORATION
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL
BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
NOTICE TO FLORIDA PURCHASERS:
THE SECURITIES REFERRED TO HEREIN MAY BE SOLD TO, AND ACQUIRED BY, THE HOLDER IN
A TRANSACTION EXEMPT UNDER Section 517.061 OF THE FLORIDA SECURITIES ACT. THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER SAID ACT IN THE STATE OF FLORIDA. IN
ADDITION, ALL FLORIDA RESIDENTS SHALL HAVE THE PRIVILEGE OF VOIDING THE PURCHASE
WITHIN THREE (3) DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH
PURCHASER TO THE ISSUER, AN AGENT OF THE ISSUER, OR AN ESCROW AGENT OR WITHIN
THREE (3) DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH
PURCHASER, WHICHEVER OCCURS LATER.
TABLE OF CONTENTS
PAGE
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES....................... 1
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES................. 1
2.1 Sale of Units................................................. 1
2.2 Separate Agreement............................................ 1
SECTION 3. CLOSING AND DELIVERY.......................................... 2
3.1 Closing....................................................... 2
3.2 Delivery of the Units at the Closing.......................... 2
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY...... 2
4.1 Organization and Qualification................................ 2
4.2 Due Execution, Delivery and Performance of the Agreements..... 2
4.3 Issuance, Sale and Delivery of the Shares and the Warrants.... 3
4.4 Additional Information........................................ 3
4.5 No Material Change............................................ 3
4.6 SEC Reports................................................... 3
4.7 Maintenance of Listing........................................ 4
4.8 No Waiver of Condition To Closing Without Consent of
Placement Agent............................................... 4
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS... 4
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS........ 6
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING............ 6
7.1 Receipt of Payment............................................ 6
7.2 Registration Statement Effective.............................. 6
7.3 Representations and Warranties Correct........................ 6
7.4 Covenants Performed........................................... 6
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.......... 6
8.1 Registration Statement Effective.............................. 6
8.2 Representations and Warranties Correct........................ 7
8.3 Covenants Performed........................................... 7
8.4 Legal Opinion................................................. 7
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT. 7
9.1 Registration Procedures and Expenses.......................... 7
i.
TABLE OF CONTENTS
(CONTINUED)
PAGE
9.2 Transfer of Securities After Registration..................... 8
9.3 Indemnification............................................... 8
9.4 Termination of Conditions and Obligations..................... 10
9.5 Information Available......................................... 11
9.6 Market Stand-Off.............................................. 11
9.7 Changes in Purchaser Information.............................. 11
SECTION 10. BROKER'S FEE.................................................. 11
SECTION 11. NOTICES....................................................... 12
SECTION 12. MISCELLANEOUS................................................. 12
12.1 Waivers and Amendments........................................ 12
12.2 Headings...................................................... 12
12.3 Severability.................................................. 12
12.4 Governing Law................................................. 12
12.5 Counterparts.................................................. 13
12.6 Successors and Assigns........................................ 13
12.7 Entire Agreement.............................................. 13
12.8 Payment of Fees and Expenses.................................. 13
ATTACHMENTS:
Exhibit A - Schedule of Purchasers
Exhibit B - Form of Warrant
Exhibit C - Schedule of Exceptions
Appendix I - Stock Certificate and Warrant Questionnaire
Appendix II - Registration Statement Questionnaire
Appendix III - Purchaser's Certificate of Subsequent Sale
ii.
