EXHIBIT 4.3
BIOCIRCUITS CORPORATION
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
APRIL 15, 1997
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.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 15th day of April, 1997 (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") 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 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 First
Closing (as defined below) will have authorized the sale and issuance of (a) up
to 5,500,000 shares of its Common Stock (the "Common Stock") and (b) Warrants,
each in substantially the form attached hereto as EXHIBIT B (each a "Warrant"
and collectively the "Warrants"), to purchase up to 5,500,000 shares (the
"Warrant Shares") of the Company's Common Stock. The shares of Common Stock
sold hereunder and the Common Stock issuable upon exercise of the Warrants
together shall be referred to herein as the "Shares." The Shares and the
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 each 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 one dollar ($1.00) per "Unit," the number of "Units" set forth
below such Purchaser's name on the signature page for Purchaser attached hereto,
as reflected on the Schedule of Purchasers attached hereto as EXHIBIT A (the
"Schedule of Purchasers"). As used herein, a Unit is comprised of one share of
Common Stock and 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 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 CLOSINGS. The first closing of the purchase and sale of the Units
pursuant to this Agreement (the "First Closing") shall occur with respect to
21.25% of the total number of Units to be sold and purchased hereunder at the
offices of Cooley Godward LLP, 5 Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx, on April 15, 1997 or on such other date and place as may be
agreed to by the Company and the Purchasers.
The second closing of the purchase and sale of the Units pursuant to this
Agreement (the "Second Closing") shall occur with respect to the remaining
78.75% of the Units within five (5) days following satisfaction or waiver of
each of the closing conditions set forth in Sections 7, 8 and 9, or as soon as
practicable thereafter; provided, however, that the Second Closing shall occur
no later than July 8, 1997.
The First Closing and the Second Closing shall be referred to herein as the
"Closings" and singularly as a "Closing" and the date of each closing is
referred to herein as a "Closing Date."
The Company shall give at least three (3) business days prior written
notice of the Second Closing Date to the Purchasers, in a manner provided for in
Section 12 hereof, including the date, time and location of the Closing. At or
prior to each Closing, each Purchaser shall execute any related agreements or
other documents required to be executed hereunder, dated as of the appropriate
Closing Date.
3.2 ISSUANCE OF THE UNITS AT THE CLOSING. At each Closing, the Company
shall cause to be issued 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 such Closing as set forth in
the Schedule of Purchasers. The Company shall deliver such stock certificates
and Warrants to each Purchaser at the Closing or promptly thereafter. 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.
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 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 AGREEMENT. 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 (i) any law, (ii) the Company's Amended and Restated
Certificate of Incorporation, as amended, (iii) the Bylaws of the Company,
(iv) the Rules of the Nasdaq National Market (including rules relating to
listing criteria), or (v) 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 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 10.3 hereof may be legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES AND WARRANTS. When issued
and paid for in accordance with this Agreement or, if applicable, the Warrant,
the Securities will be validly issued and outstanding, fully paid and non-
assessable. In reliance on the Purchasers' representations set forth in
Section 5 hereof, the Company represents and warrants that, when issued and paid
for in accordance with this Agreement or, if applicable, the Warrant, the Shares
and the Warrants will be issued in compliance with all applicable federal and
state securities laws and the applicable rules of the National Association of
Securities Dealers. The Company agrees that, at all times, there shall be
reserved for issuance and delivery upon exercise of the Warrants all shares of
its Common Stock or other shares of capital stock of the Company from time to
time issuable upon exercise of the Warrants.
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, June 30, 1996 and
September 30, 1996 (without exhibits unless specifically requested);
(c) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (without exhibits unless specifically requested) (to be
furnished when available, prior to the Second Closing), a draft of which has
been or will, upon request, be provided to Purchasers prior to the First
Closing;
(d) Notice of Annual Meeting and Proxy Statement for the Company's
1996 Annual Meeting of Stockholders; and
(e) Notice of Annual Meeting and Proxy Statement for the Company's
1997 Annual Meeting of Stockholders (to be furnished when available, prior to
the Second Closing).
In addition, the Company represents and warrants that any other information
provided by the Company to the Purchasers in writing in connection with the
transactions contemplated by this Agreement (the "Additional Written
Information") 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); provided, however, that the Company makes no representations with
respect to any projections contained in the Additional Written Information
except with respect to any non-projected factual information contained in such
projections.
4.5 NO MATERIAL CHANGE. There has been no material adverse change in the
financial condition, results of operations, business or prospects of the Company
since December 31, 1996, except as described in the draft of the Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 described in Section
4.4(c) hereof.
4.6 SEC REPORTS.
(a) The Company has timely filed and will continue to timely file
with the Securities and Exchange Commission (the "Commission") all reports ("SEC
Reports") required to be filed by it under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). All of the SEC Reports filed by or to be filed
by the Company comply or will comply in all material respects with the
requirements of the Exchange Act. None of the SEC Reports contains or will
contain, as of the respective date 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 or will be prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period indicated ("GAAP"). Each balance sheet presents or will present 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 or will present 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 December 31, 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 10 hereof, the
Company will use its 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 MATERIAL ADVERSE CHANGE WITH RESPECT TO BUSINESS PLAN. Since April
6, 1997, there has been no material adverse change in the Company's financial
condition, results of operations or prospects with respect to the Company's 1997
Business Plan, dated April 6, 1997.
4.9 REGISTRATION PURSUANT TO SECTION 10 HEREOF. To the Company's
knowledge, no fact or circumstance exists that will prevent the Company from
filing any Registration Statement required to be filed pursuant to Section 10
hereof.
4.10 SATISFACTION OF CLOSING CONDITIONS. The Company will use its best
efforts to cause the conditions to the Second Closing set forth in Section 9.2
and Section 9.3 hereof to be satisfied.
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:
5.1 INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS.
(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 Purchaser has
received all information requested by such Purchaser in connection with
Purchaser's 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 10.3 hereof may be legally unenforceable.
5.2 VOTING AGREEMENT. To the extent applicable, Purchaser agrees to vote
any shares of the Company's capital stock held by Purchaser in favor of any
proposal to approve the issuance of the Shares in the Second Closing or the
issuance of the Warrant Shares. Purchaser understands that, in accordance with
the requirements of the Nasdaq National Market, the Shares issued in the First
Closing will not be counted toward any such approval.
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 EACH 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 each
Closing as set forth in the Schedule of Purchasers.
7.2 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 as of the Closing Date.
7.3 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 EACH 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 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.
8.2 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.
8.3 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
the Purchasers or their counsel.
8.4 OFFICER'S CERTIFICATE. Purchasers shall have received a certificate
of the Company executed by the Chief Executive Officer of the Company, dated the
Closing Date, to the effect that the representations and warranties of the
Company set forth in Section 4 of this Agreement are true and correct as of the
date of this Agreement and as of the Closing Date, and the Company has satisfied
all the conditions to be performed or satisfied by the Company on or prior to
such Closing Date.
SECTION 9. CONDITIONS TO SECOND CLOSING. Each Purchaser's obligation
and, unless otherwise indicated, the Company's obligation to complete the Second
Closing shall additionally be subject to the following conditions to the extent
not waived by the Company and such Purchaser:
9.1 NO SALE OF THE COMPANY. The Company shall not have entered into any
agreement for a sale of a majority of its outstanding capital stock, a
consolidation or merger with another entity, or a sale of substantially all of
the Company's assets (any of the foregoing, a "Change in Control").
9.2 PLACEMENT OF GMP UNITS. The Company shall have installed in
physicians' offices during the three month period ended June 30, 1997 at least
eighty-eight (88) GMP units of the IOS system (instrument and disposable test
cartridges) that were sold directly or indirectly by the Company; provided,
however, that the Company's obligation to complete the Second Closing shall not
be subject to this condition set forth in this Section 9.2.
9.3 STOCKHOLDER APPROVAL. The Company's stockholders shall have approved
the sale of the Shares to be sold in the Second Closing, to the extent such
approval is required by the Rules of the Nasdaq Stock Market.
SECTION 10. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
10.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
(a) Within two weeks of the First Closing 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 (i) the Shares issued in the First Closing and (ii) the Warrant Shares
underlying the Warrants issued in the First Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
(b) Within two weeks of the Second Closing 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 (i) the Shares issued in the Second Closing and (ii) the Warrant Shares
underlying the Warrants issued in the Second Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
(c) The Company shall use reasonable best efforts to prepare and file
with the Commission (i) such amendments and supplements to each such
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 each Registration Statement continuously effective until
the second anniversary of the first date on which no Warrants remain unexercised
or unexpired or until the date on which no Shares registered on such
Registration Statement are outstanding or issuable and remain unsold pursuant to
such Registration Statement; provided, however, that in the event of a
Suspension Period (as defined below) or a Stand-Off Period (as defined in
Section 10.6 hereof), the Company shall extend the period of effectiveness of
such Registration Statement by the aggregate number of days of each such
Suspension Period or Stand-Off Period. The Company may suspend use of a
prospectus when it deems necessary, in its reasonable judgment, until such time
as the Company subsequently authorizes use of such prospectus (each such period,
including any time period during which a stop order issued by the Commission is
in effect with respect to such prospectus or related Registration Statement, 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 a 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 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.
(d) 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.
(e) The Company shall file documents required of the Company for 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.
(f) 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 in the next sentence and under Section 13.8 below,
the Company shall bear all expenses (exclusive of underwriting discounts and
commissions) in connection with the procedures in paragraphs (a) through (e) of
this Section 10.1. The Company shall bear the expenses of reasonable fees and
disbursements of a single special counsel for the Purchasers (including any
purchasers pursuant to the Common Stock Purchase Agreement of even date herewith
described in Section 13.9 hereof) reasonably acceptable to each of the
Purchasers in connection with each Registration Statement required to be filed
pursuant to this Section 10 not to exceed $15,000.
10.2 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 a 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.
10.3 INDEMNIFICATION. As used in this Section 10.3 the following terms
shall have the following respective meanings:
(a) "Selling Stockholder" shall mean a Purchaser of Securities under
this Agreement, and any transferee of such a Purchaser who is entitled to resell
Shares pursuant to a Registration Statement;
(b) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statements referred to in Section 10.1; and
(c) "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in a 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 each person, if any, who controls such Selling Stockholder within the
meaning of Section 15 of the Securities Act, and each officer and director
of such Selling Stockholder and each broker or dealer to or through whom such
Selling Stockholder's Shares are sold) from and against any losses, claims,
damages or liabilities to which such Selling Stockholder (or such controlling
person, officer or director or broker or dealer, as the case may be) 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 a
Registration Statement, or arise out of any failure by the Company to fulfill
any undertaking included in a Registration Statement and the Company will
reimburse such Selling Stockholder (or such controlling person, officer or
director or broker or dealer, as the case may be) 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 such controlling person,
officer or director or broker or dealer) 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 such controlling person, officer or director or broker
or dealer), specifically for use in preparation of such Registration Statement,
or the failure of such Selling Stockholder to comply with the covenants and
agreements contained in Section 10.1 or 10.2 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 prior to the
pertinent sale or sales by the Selling Stockholder.
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 a 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 10.1 or 10.2 hereof respecting sale of the Shares, or any Untrue
Statement contained in a 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 such 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 10.3 exceed the gross proceeds received by such Purchaser 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 10.3, 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 prejudicial, 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.
10.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Subsections 5.1(c) and (d) or Section 10.1(c) and Section 10.2 upon
the transferability of the Shares shall cease and 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.
10.5 INFORMATION AVAILABLE. So long as a Registration Statement is
required to be effective pursuant to this Section 10 covering the resale of
Shares owned by the Purchasers, the Company will furnish to the Purchasers:
(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, all exhibits excluded by the
parenthetical to subparagraph (a)(iii) of this Section 10.5, in the form
generally available to the public; and
(c) upon the reasonable request of any Purchaser, an adequate number
of copies of prospectuses to supply to any other party requiring such
prospectuses.
10.6 MARKET STAND-OFF. If requested by the underwriters in any proposed
underwritten public offering by the Company of Common Stock, Purchasers, or any
assignees thereof or transferees who are affiliates thereof, will not sell any
of the Shares for up to 90 days following the effective date of the registration
statement relating to such public offering (each such time period a "Stand-Off
Period").
10.7 CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to promptly
notify the Company of any changes in the information set forth in a Registration
Statement regarding Purchaser or such Purchaser's plan of distribution set forth
in such Registration Statement.
SECTION 11. BROKER'S FEE. The Company and each Purchaser (severally and
not jointly) hereby represent that, except for amounts to be paid to Pacific
Growth Equities, Inc., as Placement Agent (the "Placement Agent") by the Company
as described in Section 13.8 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.
SECTION 12. 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: Xxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy so mailed to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
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 in writing; and
(b) if to the Purchasers, 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 13. MISCELLANEOUS.
13.1 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.
13.2 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.
13.3 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.
13.4 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 performed entirely in California by California residents,
without regard to conflicts of law principles.
13.5 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.
13.6 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.
13.7 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.
13.8 PAYMENT OF FEES AND EXPENSES. Subject to Section 10.1(f) hereof, 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 transactions contemplated hereby and by the Common
Stock Purchase Agreement described in Section 13.9 hereof are jointly referred
to herein as the "Offering"). The Purchasers understand and acknowledge 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 & Rabkin
in connection with its acting as counsel to the Placement Agent, in an amount up
to $50,000 in the aggregate. Purchasers acknowledge that the Placement Agent
will receive a commission, to be paid by the Company, equal to six percent (6%)
of the purchase price of the Units or shares of Common Stock sold in the
Offering, except for any Shares sold to the Sprout Group or any affiliate
thereof, plus six percent (6%) of the exercise price of any Warrants exercised.
Purchasers further acknowledge that, in the event that the First Closing takes
place on or before April 15, 1997 and the Second Closing does not take place as
a result of a Change in Control, the Placement Agent will receive an additional
commission to be paid by the Company equal to $360,000 minus the amount of any
commission paid to the Placement Agent in connection with the sale of Units or
Shares in the First Closing (including the first closing of the transactions
described in Section 13.9 hereof). 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.
13.9 SIMULTANEOUS COMMON STOCK FINANCING. Purchasers acknowledge that the
Company intends to enter into a Common Stock Purchase Agreement substantially in
the form attached hereto as EXHIBIT D, pursuant to which the Company will issue
and sell shares of its Common Stock to one or more entities affiliated with the
Sprout Group, with which Xxxxxx Xxxxx, a director of the Company, is affiliated.
The Company may also issue and sell shares of its Common Stock to other
Purchasers under such Common Stock Purchase Agreement.
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser:
------------------------------
By: /s/ Xxxx Xxxxxx By:
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title:
Xxxxxxxxx, XX 00000 ----------------------------------
Facsimile: (000) 000-0000 Address:
--------------------------------
----------------------------------------
----------------------------------------
Facsimile:
----------------------------
Investment Amount: $
------------
Number of Units:
------------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Special Situations Cayman
Fund, L.P.
----------------------------
By:
---------------------------------
Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
Chief Executive Officer -------------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: Managing Director
Xxxxxxxxx, XX 00000 ----------------------------------
Facsimile: (000) 000-0000 Address: 000 X. 00xx Xxxxxx
--------------------------------
Xxx Xxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $300,000.00
-----------
Number of Units: 300,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Special Situations Fund
III, L.P.
-----------------------------
By:
---------------------------------
Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
Chief Executive Officer -------------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: Managing Director
Xxxxxxxxx, XX 00000 ----------------------------------
Address: 000 X. 00xx Xxxxxx
Facsimile: (000) 000-0000 --------------------------------
Xxx Xxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $ 1,200,000.00
------------
Number of Units: 1,200,000
---------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Special Situations Private
Equity Fund L.P.
------------------------------
By:
---------------------------------
Xxxx Xxxxxx
Chief Executive Officer By: /s/ Xxxxxx Xxxxx
-------------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 Title: Managing Director
----------------------------------
Facsimile: (000) 000-0000 Address: 000 X. 00xx Xxxxxx
--------------------------------
Xxx Xxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
-------------------------------
Investment Amount: $1,000,000.00
-------------
Number of Units: 1,000,000
---------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: H&Q Biocircuits Investors,
L.P.
------------------------------
By: By: /s/ X. Xxxxxxxxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Title: Attorney-In-Fact
Address: 0000 Xxxxxxxxxx Xxxxxxx ----------------------------------
Xxxxxxxxx, XX 00000 Address: Xxx Xxxx Xxxxxx 00xx Xxxxx
--------------------------------
Facsimile: (000) 000-0000 Xxx Xxxxxxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $1,000,000.00
------------
Number of Units: 1,000,000
---------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Cove Investments Limited
Partnership
------------------------------
By: Purchaser: Cove Investments LLC
--------------------------------- ------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Its General Partner
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx By: /s/ K. Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000 -------------------------------------
Title: Manager
----------------------------------
Facsimile: (000) 000-0000
Address: X.X. Xxx 00000
--------------------------------
000 Xxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxx, XX 00000
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $334,000.00
-----------
Number of Units: 334,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Glenbrook Partners, L.P.
------------------------------
By: By: /s/ K. Xxxxxxxx Xxxxxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Chief Financial Officer
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Purchaser: Prim Ventures, Inc.
Xxxxxxxxx, XX 00000 ------------------------------
By: /s/ K. Xxxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000 -------------------------------------
Title: Chief Financial Officer
----------------------------------
Address: X.X. Xxx 00000
--------------------------------
000 Xxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxx, XX 00000
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $128,000.00
-----------
Number of Units: 128,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: EDJ Limited
------------------------------
By: By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Trading Adviser
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: c/o Deltec Panamerica Trust Co.
Xxxxxxxxx, XX 00000 --------------------------------
Deltec House/Xxxxxx Xxx
Facsimile: (000) 000-0000 ----------------------------------------
Xxx X-0000 Nassau, The Bahamas
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $100,000.00
-----------
Number of Units: 100,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxxxx Partners, L.P.
-----------------------------
By: By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Managing General Partner
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 000 Xxxxxxxxx Xxxxx 000X
Xxxxxxxxx, XX 00000 --------------------------------
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000 ----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $200,000.00
-----------
Number of Units: 200,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Kaiser Survivor Trust
------------------------------
By: By: /s/ Xxxx Xxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: Trustee
Xxxxxxxxx, XX 00000 ----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000 --------------------------------
Xxxxxxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $100,000.00
-----------
Number of Units: 100,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxxxx Family Trust
------------------------------
By: By: /s/ Xxx X. Xxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Trustee
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 00000 Xxxxxxx Xxx
Xxxxxxxxx, XX 00000 --------------------------------
Xxx Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000 ----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $100,000.00
-----------
Number of Units: 100,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: E&M RP Trust
------------------------------
By: By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Trustee
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 --------------------------------
Xxxxxx, XX 00000
Facsimile: (000) 000-0000 ----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION
Purchaser: Tahoe Partnership I
------------------------------
By: By: /s/ Xxxxx X. Xxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Custodian
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 --------------------------------
Xxxxxx, XX 00000
Facsimile: (000) 000-0000 ----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Lancaster Investment Partners
------------------------------
By: By: /s/ X.X. Xxxxxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Title: Manager, General Partner
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 Address: 000 X. Xxxxxxxxx Xxxxxx,
Xxxxx 000
Facsimile: (000) 000-0000 --------------------------------
Xxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxxx X. Xxxxxxxxx
------------------------------
By: By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title:
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 000 X. Xxxxxxxxx Xxx.,
Xxxxxxxxx, XX 00000 Suite 300
--------------------------------
Facsimile: (000) 000-0000 Xxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $30,000.00
----------
Number of Units: 30,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: C. Xxxx Xxxxx
------------------------------
By: By: /s/ C. Xxxx Xxxxx, Xx.
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title: Managing Director
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 16th Floor
--------------------------------
Facsimile: (000) 000-0000 Xxx Xxxxxxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Pacific Growth Equities, Inc.
------------------------------
By: By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: Chief Executive Officer -
Xxxxxxxxx, XX 00000 Chairman
----------------------------------
Facsimile: (000) 000-0000 Address: 000 Xxxxxxxxxx Xxxxxx,
00xx Floor
--------------------------------
Xxx Xxxxxxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxxxxx X. Xxxxxxxx
------------------------------
By: By: /s/ X. X. Xxxxxxxx
--------------------------------- -------------------------------------
Xxxx Xxxxxx
Chief Executive Officer Title:
----------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxxx Address: 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 16th Floor
--------------------------------
Facsimile: (000) 000-0000 Xxx Xxxxxxxxx, XX 00000
----------------------------------------
----------------------------------------
Facsimile: (000) 000-0000
------------------------------
Investment Amount: $30,000.00
----------
Number of Units: 30,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxx X. Xxxxxxx, Xx.
--------------------------
By: By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------- ---------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: x/x Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000 ------------------------------
Address: 000 Xxxxxxxxxx Xxxxxx,#0000
Facsimile: (000) 000-0000 ----------------------------
Xxx Xxxxxxxxx, XX 00000
-------------------------------------
-------------------------------------
Facsimile: (000) 000-0000
--------------------------
Investment Amount: $20,000.00
----------
Number of Units: 20,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxxxx X. Xxxxxxxx and
----------------------
Xxxxxxx X. Xxxxxxxx, Trustees of
--------------------------------
the Farinsky 1992 Trust
-----------------------
By: By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------- -------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: Trustee
Xxxxxxxxx, XX 00000 ----------------------------
Address: 00 Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000 --------------------------
Xxxxxxx Xxxxx, XX 00000
-----------------------------------
Telephone: (000) 000-0000
-------------------------
Facsimile: (000) 000-0000
------------------------
Total Investment Amount: $50,000.00
----------
First Closing Investment Amount:
$10,625.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Xxxxxx X. Xxxxx
------------------------
By: By: /s/ Xxxxxx X. Xxxxx
-------------------------------- -------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: Managing Director
Xxxxxxxxx, XX 00000 ----------------------------
Address: 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx: (000) 000-0000 Suite 1600
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
-----------------------------------
Facsimile: (000) 000-0000
------------------------
Investment Amount: $5,000.00
---------
Number of Units: 5,000
-----
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling Venture
Partners III, L.P.
------------------------
By: By: /s/ Xxxx X. Xxxxxxxxx
-------------------- -------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: General Partner
Xxxxxxxxx, XX 00000 ----------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxx: (000) 000-0000 Xxxxx 000
--------------------------
Xxxxx Xxxx, XX 00000
-----------------------------------
-----------------------------------
Facsimile: (000) 000-0000
------------------------
Investment Amount: $350,419
---------
Number of Units: 350,419
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling III Limited
Partnership
----------------------------
By: By: /s/ Xxxx X. Xxxxxxxxx
-------------------- -----------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: General Partner
Xxxxxxxxx, XX 00000 --------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxx: (000) 000-0000 Xxxxx 000
------------------------------
Xxxxx Xxxx, XX 00000
---------------------------------------
---------------------------------------
Facsimile: (000) 000-0000
----------------------------
Investment Amount: $181,520.00
-----------
Number of Units: 181,520
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling III
Biomedical, L.P.
----------------------------
By: By: /s/ Xxxx X. Xxxxxxxxx
------------------------------- ---------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: General Partner
Xxxxxxxxx, XX 00000 --------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxx: (000) 000-0000 Xxxxx 000
------------------------------
Xxxxx Xxxx, XX 00000
---------------------------------------
---------------------------------------
Facsimile: (000) 000-0000
---------------------------
Investment Amount: $60,391.00
----------
Number of Units: 60,391
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
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: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling Ventures
Management
By: By: /s/ Xxxx X. Xxxxxxxxx
------------------------------ ----------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Address: 0000 Xxxxxxxxxx Xxxxxxx Title: General Partner
Xxxxxxxxx, XX 00000 -------------------------------
Address: 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxx: (000) 000-0000 Xxxxx 000
-----------------------------
Xxxxx Xxxx, XX 00000
---------------------------------------
---------------------------------------
Facsimile: (000) 000-0000
----------------------------
Investment Amount: $7,670.00
---------
Number of Units: 7,670
-----
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
UNITS FIRST UNITS SECOND
PURCHASED AT CLOSING PURCHASED CLOSING AGGREGATE AGGREGATE
FIRST PURCHASE AT SECOND PURCHASE NUMBER OF PURCHASE
PURCHASER CLOSING (1) PRICE ($) CLOSING PRICE ($) UNITS PRICE ($)
-------------------------------------------------------------------------------------------------------------------------------
Special Situations Cayman Fund, L.P. 63,750 63,750 236,250 236,250 300,000 300,000
-------------------------------------------------------------------------------------------------------------------------------
Special Situations Fund III, L.P. 255,000 255,000 945,000 945,000 1,200,000 1,200,000
-------------------------------------------------------------------------------------------------------------------------------
Special Situations Private Equity Fund, L.P. 212,500 212,500 787,500 787,500 1,000,000 1,000,000
-------------------------------------------------------------------------------------------------------------------------------
H&Q Biocircuits Investors L.P. 212,500 212,500 787,500 787,500 1,000,000 1,000,000
-------------------------------------------------------------------------------------------------------------------------------
Cove Investments Limited Partnership 70,975 70,975 263,025 263,025 334,000 334,000
-------------------------------------------------------------------------------------------------------------------------------
Glenbrook Partners, LP 27,200 27,200 100,800 100,800 128,000 128,000
-------------------------------------------------------------------------------------------------------------------------------
EDJ Limited 21,250 21,250 78,750 78,750 100,000 100,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Partners, L.P. 42,500 42,500 157,500 157,500 200,000 200,000
-------------------------------------------------------------------------------------------------------------------------------
Kaiser Survivor Trust 21,250 21,250 78,750 78,750 100,000 100,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Family Trust 21,250 21,250 78,750 78,750 100,000 100,000
-------------------------------------------------------------------------------------------------------------------------------
E&M RP Trust 10,625 10,625 39,375 39,375 50,000 50,000
-------------------------------------------------------------------------------------------------------------------------------
Tahoe Partnership I 10,625 10,625 39,375 39,375 50,000 50,000
-------------------------------------------------------------------------------------------------------------------------------
Lancaster Investment Partners 10,625 10,625 39,375 39,375 50,000 50,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx 6,375 6,375 23,625 23,625 30,000 30,000
-------------------------------------------------------------------------------------------------------------------------------
C. Xxxx Xxxxx, Xx. 10,625 10,625 39,375 39,375 50,000 50,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx III 10,625 10,625 39,375 39,375 50,000 50,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 6,375 6,375 23,625 23,625 30,000 30,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxx, Xx. 4,250 4,250 15,750 15,750 20,000 20,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, 10,625 10,625 39,375 39,375 50,000 50,000
Trustees of the Farinsky 1992 Trust
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 1,063 1,063 3,937 3,937 5,000 5,000
-------------------------------------------------------------------------------------------------------------------------------
Sanderling Venture Partners III, L.P. 74,464 74,464 275,955 275,955 350,419 350,419
-------------------------------------------------------------------------------------------------------------------------------
Sanderling III Limited Partnership 38,573 38,573 142,947 142,947 181,520 181,520
-------------------------------------------------------------------------------------------------------------------------------
Sanderling III Biomedical, L.P. 12,833 12,833 47,558 47,558 60,391 60,391
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
UNITS FIRST UNITS SECOND
PURCHASED AT CLOSING PURCHASED CLOSING AGGREGATE AGGREGATE
FIRST PURCHASE AT SECOND PURCHASE NUMBER OF PURCHASE
PURCHASER CLOSING (1) PRICE ($) CLOSING PRICE ($) UNITS PRICE ($)
-------------------------------------------------------------------------------------------------------------------------------
Sanderling Venture Management 1,630 1,630 6,040 6,040 7,670 7,670
-------------------------------------------------------------------------------------------------------------------------------
TOTAL 1,157,488 $1,157,488 4,289,512 $4,289,512 5,447,000 $5,447,000
-------------------------------------------------------------------------------------------------------------------------------
(1) Each Unit consists of one (1) share of Common Stock and a warrant to
purchase one share of Common Stock.
EXHIBIT B
FORM OF WARRANT
Filed as Exhibit 4.4 to this Registration Statement.
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
In accordance with Rule 12b-25 promulgated under the Securities Exchange
Act of 1934, as amended, the Company intends to file its Annual Report on Form
10-K for the fiscal year ended December 31, 1996 not later than April 15, 1997.
EXHIBIT D
FORM OF COMMON STOCK PURCHASE AGREEMENT
Filed as Exhibit 4.2 to this Registration Statement
SUMMARY INSTRUCTION SHEET FOR PURCHASER
(TO BE READ IN CONJUNCTION WITH THE ENTIRE
PURCHASE AGREEMENT WHICH FOLLOWS)
A. Complete the following items on the Purchase Agreement, copies of which are
attached hereto for your convenience:
1. Signature Page.
2. Appendix I - Stock Certificate and Warrant Questionnaire:
Provide the information requested by the Stock Certificate and Warrant
Questionnaire.
3. Appendix II - Registration Statement Questionnaire:
Provide the information requested by the Registration Statement
Questionnaire.
4. Return the properly completed and signed Purchase Agreement including
the properly completed and signed Appendix I and Appendix II to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
PLEASE RETURN THE COMPLETED AND SIGNED PURCHASE AGREEMENT BY FACSIMILE
WITH ALL OF THE ORIGINAL DOCUMENTS FOLLOWING BY OVERNIGHT COURIER OR
MAIL.
B. The purchase price for the Units may be paid by wire transfer as follows:
Wiring Instructions
-------------------
Cupertino National Bank
0 Xxxx Xxxx Xxxxxx, #000
Xxxx Xxxx, XX 00000
Bank Contact Person: Xx. Xxxxx Xxxxxxxxx at (000) 000-0000
Routing #: 000000000
Account Name: Biocircuits Corporation
Account: 003104087
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective as described in the Purchase
Agreement, each Purchaser:
(i) must deliver a current prospectus, and annual, quarterly and
current reports of the Company (Forms 10-K, 10-Q and 8-K) to the
buyer (prospectuses, and annual, quarterly and current reports
may be obtained from the Company at the Purchaser's request); and
(ii) must send a letter in the form of Appendix III to the Company so
that the Shares may be properly transferred.
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
Warrants. 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 Statements, please
provide us with the following information:
1. Please state your or your organization's name exactly as it should
appear in the Registration Statements:
2. Please provide the following information, with your current ownership
information as of April 7, 1997:
(a) Number of shares you are purchasing which are to be included in
the Registration Statements: ______________.
__________ (Common Stock); _______ (Warrant Shares).
(b) Number of shares of the Company's Common Stock and Series A
Preferred Stock (excluding the shares you are purchasing) that
you own: ________________ (Common Stock); ______________
(Preferred Stock).
(c) Number of shares of the Company's Common and Preferred Stock
subject to warrants you own: _______________ (Common Stock
Warrants); ____________ (Preferred Stock Warrants).
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 most recent Annual Meeting of Stockholders?
Yes No
---- ----
If yes, please indicate the nature of any such relationships:_____________
_______________________________________________________________________________
4. In what states do you request the Company qualify the shares for
resale (i.e. in what states do you plan to sell the Shares)? _______________
Signature:
-----------------------------------
Print Name:
-----------------------------------
Title:
-----------------------------------
APPENDIX III
CERTIFICATE OF SUBSEQUENT SALE
The undersigned, duly authorized by _________________________________,
hereby certifies (1) that _______________________________________ is the
Purchaser of the Shares evidenced by Common Stock Certificate No. ____________
for shares (A COPY OF WHICH, FRONT AND BACK, IS ATTACHED HERETO),
(2) that said Purchaser sold of such Shares on
______________________ in accordance with registration statement number
____________________________ and (3) that 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)
selling the Shares: _____________________________________
Name of Individual representing
Purchaser selling the Shares
(if an Institution): _____________________________________
Title of Individual representing
Purchaser selling the Shares
(if an Institution): ______________________________________
SIGNATURE BY:
Individual Purchaser selling the
Shares or Individual representing
Purchaser selling the Shares: _______________________________________
