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EXHIBIT 10.85
SECURITIES PURCHASE AGREEMENT
THE PREFERRED STOCK AND WARRANTS BEING SUBSCRIBED FOR HEREIN AND THE
COMMON STOCK ISSUABLE UPON CONVERSION AND EXERCISE THEREOF HAVE NOT BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
COMMISSION OF ANY STATE UNDER ANY STATE SECURITIES LAW. SUCH SECURITIES ARE
BEING OFFERED PURSUANT TO THE SAFE HARBOR EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AFFORDED BY REGULATION S ("REGULATION S") PROMULGATED UNDER THE
SECURITIES ACT. SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN
REGULATION S) UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, OR SUCH OFFERS, SALES AND TRANSFERS ARE MADE
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE
LAWS.
THIS SECURITIES PURCHASE AGREEMENT DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES OFFERED
HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL. AN INVESTMENT IN SUCH SECURITIES INVOLVES A HIGH DEGREE OF
RISK. IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND THE RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED, APPROVED OR
DISAPPROVED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT REVIEWED, PASSED
UPON, CONFIRMED OR DETERMINED THE ACCURACY OR ADEQUACY OF THIS DOCUMENT OR ANY
INFORMATION PROVIDED BY THE COMPANY TO POTENTIAL INVESTORS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of November 7, 1996,
by and among AMERICAN BIOMED, INC., a Delaware corporation, with headquarters
located at 00000 Xxxxxxx'x Xxxx Xxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxx 00000
(the "COMPANY"), and each of the purchasers (individually, a "PURCHASER" and
collectively, the "PURCHASERS") set forth on the execution pages hereof (the
"EXECUTION PAGES").
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WHEREAS:
A. The Company and the Purchasers are executing and delivering this
Agreement in reliance upon the safe harbor exemption from securities
registration afforded by the provisions of Regulation S ("REGULATION S"), as
promulgated by the United States Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "SECURITIES ACT");
B. Each of the Purchasers desires to purchase, upon the terms and
conditions stated in this Agreement, the number of units (the "UNITS") set
forth immediately below such Purchaser's name on the Execution Pages, each Unit
consisting of (i) one (1) share of the Company's 1996 Series B Convertible
Preferred Stock, par value $.001 per share (the "SERIES B PREFERRED STOCK") and
(ii) one (1) warrant (the "WARRANT"), in the form attached hereto as Exhibit"B",
to purchase that number of shares of Common Stock (as defined below) equal to
the quotient obtained by dividing (x) the Purchase Price (as defined below) by
(y) the average of the Closing Price (as defined in the Certificate of
Designation (as defined below)) for the ten (10) consecutive trading days
immediately preceding the date of closing hereunder. The rights, preferences
and privileges of the Series B Preferred Stock, including the terms upon which
such Series B Preferred Stock is convertible into shares of the Company=s
common stock, par value $.001 per share (the "COMMON STOCK"), are set forth in
the form of Certificate of Designations, Preferences and Rights attached hereto
as EXHIBIT "A" (the "CERTIFICATE OF DESIGNATION"). The shares of Series B
Preferred Stock to be issued and sold hereunder are hereinafter referred to as
the "PREFERRED SHARES."
C. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights
Agreement, in the form attached hereto as EXHIBIT "C" (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company has agreed to provide certain
registration rights under the Securities Act and the rules and regulations
promulgated thereunder, and applicable state securities laws;
NOW THEREFORE, the Company and the Purchasers hereby agree as follows:
1. PURCHASE AND SALE OF UNITS.
a. Purchase of Units. Subject to the satisfaction (or waiver) of the
conditions set forth in Section 6 and Section 7 below, the Company shall issue
and sell to each Purchaser and each Purchaser shall purchase from the Company
the number of Units set forth immediately below each such Purchaser's name on
the Execution Pages, at a price equal to One Thousand Dollars ($1,000) per Unit
(the "PURCHASE PRICE").
b. Form of Payment. At or prior to the Closing (as hereinafter
defined), (i) each Purchaser shall pay the Purchase Price by wire transfer to
the Company, in accordance with the Company's written wiring instructions,
against delivery of duly executed certificates representing the Preferred
Shares and the Warrants comprising such Units, and (ii) the Company shall
deliver
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such certificates against delivery of such Purchase Price. The Purchase
Price payable by each Purchaser is set forth immediately below such Purchaser's
name on the Execution Pages.
c. Closing/Closing Date. Subject to the satisfaction (or waiver) of
the conditions thereto set forth in Section 6 and Section 7 below, closing
("CLOSING") shall be conducted on November ___, 1996 or such other date as the
parties shall agree. Such Closing shall occur at the offices of Klehr,
Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000. For the purposes of this Agreement and compliance with
Regulation S, the date on which the Closing takes place, and all Units offered
hereby have been purchased, shall be deemed to be the "CLOSING DATE."
2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser represents and warrants to the Company solely with
respect to such Purchaser that:
a. Investment Purpose. The Purchaser is purchasing the Units
(including the Preferred Shares, the shares of Common Stock issuable upon
conversion of the Preferred Shares (the "CONVERSION SHARES"), the Warrants and,
if applicable, the shares of Common Stock issuable upon exercise of the
Warrants (the "WARRANT SHARES") (collectively with the Units, the
"SECURITIES")) for its own account for investment only and not with a present
view towards the public sale or distribution thereof, except pursuant to sales
that are exempt from the registration requirements of the Securities Act and/or
sales registered under the Securities Act. Purchaser understands that Purchaser
must bear the economic risk of this investment indefinitely, unless the
Securities are registered pursuant to the Securities Act and any applicable
state securities or blue sky laws ("STATE ACTS") or an exemption from such
registration is available, and that the Company has no present intention of
registering any such Securities other than as contemplated by the Registration
Rights Agreement. Purchaser represents and warrants to the Company, as of the
date of this Agreement, that Purchaser has no present plan or intention to sell
the Securities in the United States or to a "U.S. PERSON" (as defined in
Regulation S) at any predetermined time, and has made no predetermined
arrangements to sell the Securities. Purchaser covenants that neither Purchaser
nor its affiliates nor any person acting on its or their behalf has entered,
has the intention of entering, or will enter into any put option, short
position or other similar instrument or position (through the use of options,
swaps or other derivative securities) with respect to the Securities
(collectively, "SELL SHORT" or "SOLD SHORT" as the context requires) at any
time after receipt of the term sheet concerning the transaction contemplated
thereby (the "TERM SHEET") until the expiration of the period commencing on the
Closing Date and ending sixty (60) days thereafter (the "LIMITATION PERIOD") or
for the intended purpose of lowering the price at which the Preferred Shares
are convertible into Conversion Shares and neither Purchaser nor any of its
affiliates nor any person acting on its or their behalf will at any time use
Conversion Shares or Preferred Shares to settle/cover any put option, short
position or other similar instrument or position entered into prior to the end
of the Limitation Period. In addition, upon the conclusion of the Limitation
Period, the Purchaser may Sell Short only as follows:
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(i) On any Trading Day that the average of the Closing Prices
(as defined in the Certificate of Designation) for the Common Stock for the
five (5) consecutive Trading Days immediately preceding such Trading Day is
greater than 100% of the Maximum Conversion Price (as defined in the
Certificate of Designation) then in effect but does not exceed 150% of the
Maximum Conversion Price then in effect, the Purchaser may only Sell Short
Conversion Shares to the extent that the number of Conversion Shares to be Sold
Short together with the aggregate number of Conversion Shares actually sold
(other than Conversion Shares sold to cover shares of Common Stock Sold Short
in accordance with the provisions set forth in this Section 2(a)) or Sold Short
by such Purchaser during the thirty (30) day period ending on the Trading Day
immediately preceding the Trading Day of such proposed short sale does not
exceed 0.50 multiplied by the number of Conversion Shares which would have been
issuable (based on the Conversion Price which would have been in effect on the
Closing Date) upon conversion in full of the Preferred Shares issued to or
acquired by the Purchaser at Closing or thereafter; or
(ii) On any Trading Day that the average of the Closing
Prices for the Common Stock for the five (5) consecutive Trading Days
immediately preceding such Trading Day is less than the Maximum Conversion
Price then in effect, the Purchaser may only Sell Short Conversion Shares to
the extent that the number of Conversion Shares to be Sold Short together with
the aggregate number of Conversion Shares actually sold (other than Conversion
Shares sold to cover shares of Common Stock Sold Short in accordance with the
provisions set forth in this Section 2(a)) or Sold Short by such Purchaser
during the thirty (30) day period ending on the Trading Day immediately
preceding the Trading Day of such proposed short sale does not exceed 0.25
multiplied by the number of Conversion Shares which would have been issuable
(based on the Conversion Price which would have been in effect on the Closing
Date) upon conversion in full of the Preferred Shares issued to or acquired by
the Purchaser at Closing or thereafter.
Further, as a condition to any transfer of any or all of the Preferred Shares,
any transferee shall agree to be bound by the restrictions contained in this
Section 2(a), which agreement shall be for the benefit of the Company and all
holders of Preferred Shares. Notwithstanding the foregoing, on any Trading Day
after the expiration of the Limitation Period that the average of the Closing
Prices for the Common Stock for the five (5) consecutive Trading Days ending on
the immediately preceding Trading Day is equal to or greater than 150% of the
Maximum Conversion Price, the restrictions contained in paragraphs (i) and (ii)
above shall not be applicable and the Purchaser and any subsequent transferee
may Sell Short without restriction.
b. Accredited Investor Status. The Purchaser is an "ACCREDITED
INVESTOR" as that term is defined in Rule 501(a) of Regulation D ("REGULATION
D") as promulgated by the SEC under the Securities Act.
c. Reliance on Exemptions. The Purchaser understands that the Units,
the Preferred Shares and the Warrants are being offered and sold to it in
reliance upon specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying upon
the truth and accuracy of, and the Purchaser's compliance with, the
representations,
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warranties, agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Units, the Preferred Shares and the
Warrants.
d. Information. The Purchaser and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Securities
which have been requested by the Purchaser or its advisors. The Purchaser and
its advisors, if any, have been afforded the opportunity to ask questions of
the Company and have received what the Purchaser believes to be satisfactory
answers to any such inquiries. Neither such inquiries nor any other due
diligence investigation conducted by Purchaser or any of its advisors or
representatives shall modify, amend or affect Purchaser's right to rely on the
Company's representations and warranties contained in Section 3 below. The
Purchaser understands that its investment in the Securities involves a high
degree of risk.
e. Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
f. Offshore Transaction. The Purchaser represents and warrants to the
Company that (i) the Purchaser is not a "U.S. PERSON" as that term is defined
in Rule 902(o) of Regulation S and, in that regard, further represents that (a)
it is organized under the laws of a jurisdiction other than the United States
and (b) if organized by a U.S. Person principally for the purpose of investing
in securities not registered under the Act, it was organized and is owned by
Accredited Investors who are not natural persons, estates or trusts; (ii) the
Units, Preferred Shares and Warrants were not offered to the Purchaser in the
United States and at the time of execution of this Subscription Agreement and
the time of any offer to the Purchaser to purchase Units, Preferred Shares or
Warrants hereunder, the Purchaser was physically outside the United States;
(iii) the Purchaser is purchasing the Securities for its own account and not on
behalf of or for the benefit of any U.S. person and the sale and resale of the
Securities have not been prearranged with any U.S. person or buyer in the
United States; (iv) the Purchaser agrees that all offers and sales of the
Securities prior to the expiration of the period commencing on the Closing Date
and ending forty (40) days thereafter (the "RESTRICTED PERIOD") shall not be
made to U.S. persons or for the account or benefit of U.S. persons and shall
otherwise be made in compliance with the provisions of Regulation S. Purchaser
is not a distributor or dealer with respect to the Securities.
g. Signatory's Representation. The Purchaser represents and warrants
that the signatory to this Agreement is not a U.S. Person, and is not located
in the United States at the time of signing this Agreement.
h. No Scheme to Evade Registration. Purchaser's acquisition of the
Securities is not a transaction (or any element of a series of transactions)
that is part of a plan or scheme to evade the registration provisions of the
Securities Act.
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i. Authorization; Enforcement. This Agreement and the Registration
Rights Agreement have been duly and validly authorized, executed and delivered
on behalf of the Purchaser and are valid and binding agreements of the
Purchaser enforceable in accordance with their terms.
j. Residency. The Purchaser is a resident of the country set forth
immediately below its name on the Execution Pages.
k. Acknowledgments Regarding Placement Agent. Each of the Purchasers
acknowledges that Zanett Capital, Inc. is acting as placement agent (the
"PLACEMENT AGENT") for the Securities being offered hereby and will be
compensated by the Company for acting in such capacity. Each of the Purchasers
further acknowledges that the Placement Agent has acted solely as placement
agent in connection with the offering of the Securities by the Company, that
the information and data provided to each such Purchaser and referred to in
subsection (d) above have not been subjected to independent verification by the
Placement Agent and that the Placement Agent makes no representation or
warranty with respect to the accuracy or completeness of such information, data
or other related disclosure material.
l. Rank of Series B Preferred Stock. Each of the Purchasers
acknowledges and understands that the Series B Preferred Stock shall rank pari
passu with the Series A Preferred Stock and the New Securities (as such terms
are defined in the Certificate of Designation) with respect to distributions
available upon a liquidation or other winding up of the Company except that, in
the event of a Conversion Default (as such term is defined in the Certificate
of Designation of the Series A Preferred Stock (the "SERIES A CERTIFICATE OF
DESIGNATION")) with respect to the Series A Preferred Stock, the holders of
Series A Preferred Stock have been granted a first lien and security interest
in and to certain of the Company's intellectual property (the "COLLATERAL")
described in that certain Security Agreement dated as of the date hereof by and
between the Company and [Zanett Lombardier, Ltd.], as Collateral Agent, as
security for the Company's payment of Conversion Default redemption
obligations.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
a. Organization and Qualification. The Company and each of its
subsidiaries is a corporation duly organized and existing in good standing
under the laws of the jurisdiction in which it is incorporated, and has the
requisite corporate power to own its properties and to carry on its business as
now being conducted. The Company and each of its subsidiaries is duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary and where the failure so to qualify would have a
Material Adverse Effect. "MATERIAL ADVERSE EFFECT" means any material adverse
effect on the operations, properties, financial condition or prospects of the
Company or on the transactions contemplated hereby.
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b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform this Agreement, the
Registration Rights Agreement and the Warrants, to issue and sell the Units,
Preferred Shares and Warrants in accordance with the terms hereof and to issue
the Conversion Shares and Warrant Shares upon conversion of the Preferred
Shares and exercise of the Warrants, respectively, in accordance with the terms
thereof; (ii) the execution and delivery of this Agreement, the Registration
Rights Agreement and the Warrants by the Company and the consummation by it of
the transactions contemplated hereby and thereby (including without limitation
the issuance of the Units, Preferred Shares and the Warrants and the issuance
and reservation for issuance of the Conversion Shares and Warrant Shares
issuable upon conversion and exercise thereof) have been duly authorized by the
Company's Board of Directors and, except as set forth on SCHEDULE 3(B) hereof,
no further consent or authorization of the Company, its Board or Directors, or
its stockholders is required; (iii) this Agreement has been duly executed and
delivered by the Company; and (iv) this Agreement constitutes, and upon
execution and delivery by the Company of the Registration Rights Agreement and
the Warrants, such agreement will constitute a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
c. Capitalization. The capitalization of the Company as of the date
hereof, including the authorized capital stock, the number of shares issued and
outstanding, the number of shares reserved for issuance pursuant to the
Company's stock option plans, the number of shares reserved for issuance
pursuant to securities (other than the Preferred Shares and the Warrants)
exercisable for, or convertible into or exchangeable for any shares of Common
Stock and the number of shares to be reserved for issuance upon conversion of
the Preferred Shares and exercise of the Warrants is set forth on SCHEDULE
3(C). All of such outstanding shares of capital stock have been, or upon
issuance will be, validly issued, fully paid and nonassessable. No shares of
capital stock of the Company are subject to preemptive rights or any other
similar rights of the stockholders of the Company or any liens or encumbrances.
Except as disclosed in SCHEDULE 3(C), as of the date of this Agreement, (i)
there are no outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, any shares of capital stock of the
Company or any of its subsidiaries, or arrangements by which the Company or any
of its subsidiaries is or may become bound to issue additional shares of
capital stock of the Company or any of its subsidiaries, and (ii) there are no
agreements or arrangements under which the Company or any of its subsidiaries
is obligated to register the sale of any of its or their securities under the
Securities Act (except the Registration Rights Agreement). The Company has
furnished to the Purchaser true and correct copies of the Company's Restated
Certificate of Incorporation as in effect on the date hereof ("CERTIFICATE OF
INCORPORATION"), the Company's By-laws as in effect on the date hereof (the
"BY-LAWS"), the Certificate of Designation and all other instruments and
agreements governing securities convertible into or exercisable for Common
Stock of the Company. The Company shall provide the Purchaser with a written
update of this representation signed by the Company's Chief Executive Officer
or Chief Financial Officer on behalf of the Company as of the Closing Date.
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d. Issuance of Shares. The Preferred Shares are duly authorized and,
upon issuance in accordance with the terms of this Agreement, the Preferred
Shares will be validly issued, fully paid and non-assessable, and free from all
taxes, liens and charges with respect to the issue thereof and will not be
subject to preemptive rights or other similar rights of stockholders of the
Company. The Conversion Shares and Warrant Shares are duly authorized and, upon
conversion of the Preferred Shares and exercise of the Warrants in accordance
with the terms thereof, the Conversion Shares and Warrant Shares will be
validly issued, fully paid and non-assessable, and free from all taxes, liens
and charges with respect to the issue thereof and will not be subject to
preemptive rights or other similar rights of stockholders of the Company.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrants by the Company
and the consummation by the Company of the transactions contemplated hereby and
thereby (including without limitation, the issuance of the Preferred Shares and
Warrants and the issuance and reservation for issuance of the Conversion Shares
and Warrant Shares) will not (i) result in a violation of the Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any of its subsidiaries or
by which any property or asset of the Company or any of its subsidiaries is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect). Neither the
Company nor any of its subsidiaries is in violation of its Certificate of
Incorporation, By-laws or other organizational documents and neither the
Company nor any of its subsidiaries is in default (and no event has occurred
which with notice or lapse of time or both would put the Company or any of its
subsidiaries in default) under, nor has there occurred any event giving others
(with notice or lapse of time or both) any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which the Company or any of its subsidiaries is a party, except for possible
defaults or rights as would not, individually or in the aggregate, have a
Material Adverse Effect. The businesses of the Company and its subsidiaries are
not being conducted, and shall not be conducted so long as a Purchaser owns any
of the Securities, in violation of any law, ordinance or regulation of any
governmental entity, except for possible violations which either singly or in
the aggregate do not have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and as required under the Securities Act and any
applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with,
any court or governmental agency or any regulatory or self regulatory agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement, the Registration Rights Agreement or the Warrants or to perform its
obligations under the Certificate of Designation, in each case in accordance
with the terms hereof or thereof.
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f. SEC Documents, Financial Statements. Since December 31, 1995, the
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it with the SEC pursuant to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "EXCHANGE Act") (all of
the foregoing filed prior to the date hereof and all exhibits included therein
and financial statements and schedules thereto and documents (other than
exhibits) incorporated by reference therein, being hereinafter referred to
herein as the "SEC DOCUMENTS"). The Company has delivered to the Purchaser true
and complete copies of the SEC Documents, except for such exhibits, schedules
and incorporated documents. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have
been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments). Except as
set forth in the financial statements of the Company included in the SEC
Documents, the Company has no liabilities, contingent or otherwise, other than
(i) liabilities incurred in the ordinary course of business subsequent to the
date of such financial statements and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in such financial
statements, which, individually or in the aggregate, are not material to the
financial condition or operating results of the Company. The Company has not
provided to any Purchaser any information which, according to applicable law,
rule or regulation, should have been disclosed publicly by the Company but
which has not been so disclosed.
g. Absence of Certain Changes. Since December 31, 1995 there has been
no material adverse change and no material adverse development in the business,
properties, operations, financial condition, results of operations or prospects
of the Company, except as disclosed in Schedule 3(g) or in the SEC Documents.
h. Absence of Litigation. There is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of
the Company or any of its subsidiaries, threatened against or affecting the
Company or any of its subsidiaries.
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i. Disclosure. All information relating to or concerning the Company
set forth in this Agreement and provided to the Purchaser pursuant to Section
2(d) hereof and otherwise in connection with the transactions contemplated
hereby is true and correct in all material respects and the Company has not
omitted to state any material fact necessary in order to make the statements
made herein or therein, in light of the circumstances under which they were
made, not misleading. No event or circumstance has occurred or exists with
respect to Company or its subsidiaries or their respective businesses,
properties, prospects, operations or financial conditions, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed.
j. Acknowledgment Regarding the Purchaser's Purchase of the Units. The
Company acknowledges and agrees that the Purchaser is not acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect
to this Agreement and the transactions contemplated hereby, and any advice
given by the Purchaser or any of its representatives or agents in connection
with this Agreement and the transactions contemplated hereby is merely
incidental to the Purchaser's purchase of the Units. The Company further
represents to Purchaser that the Company's decision to enter into this
Agreement has been based solely on the independent evaluation of the Company
and its representatives.
k. Current Public Information. The Company represents and warrants to
the Purchaser that the Company is a "DOMESTIC ISSUER" and a "REPORTING ISSUER"
as defined in Rule 902 of Regulation S. The Common Stock is registered under
Section 12(b) or 12(g) of the 1934 Act, and the Company has filed all the
materials required to be filed as reports pursuant to the 1934 Act for a period
of at least twelve months preceding the date hereof (or for such shorter period
as the Company was required by law to file such materials), and all such
filings have been made on a timely basis. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form S-3
under the Securities Act.
l. No Securities Offered in United States or to any U.S. Person.
Based upon, among other things, the representations and warranties of the
Purchasers in this Agreement, the Company represents that it has not offered
the Securities being offered hereby to any Purchaser in the United States or to
any person in the United States or any U.S. Person.
m. No Directed Selling Efforts in Regard to this Transaction. Neither
the Company nor any distributor participating in the transaction contemplated
hereby (if any) nor any person acting for the Company, or any such distributor,
has conducted any "DIRECTED SELLING EFFORTS" in the United States, as such term
is defined in Rule 902 of Regulation S, or any "GENERAL SOLICITATION," as such
term is defined in Regulation D, with respect to any of the Securities being
offered hereby.
n. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any
-10-
11
security or solicited any offerers to buy any security under circumstances that
would require registration of the Securities being offered hereby under the
Securities Act.
o. No Brokers. The Company has taken no action which would give rise
to any claim by any person for brokerage commissions, finder's fees or similar
payments by any Purchaser relating to this Agreement or the transactions
contemplated hereby, except for dealings with the Placement Agent, whose
commissions and fees will be paid for by the Company.
4. COVENANTS.
a. Best Efforts. The parties shall use their best efforts timely to
satisfy each of the conditions described in Section 6 and 7 of this Agreement.
b. Reporting Status. So long as the Purchasers beneficially own any of
the Securities, the Company shall timely file all reports required to be filed
with the SEC pursuant to the Exchange Act, and the Company shall not terminate
its status as an issuer required to file reports under the Exchange Act even if
the Exchange Act or the rules and regulations thereunder would permit such
termination.
c. Use of Proceeds. The Company shall use the proceeds from the sale
of the Units (i) to redeem, on the Closing Date, the outstanding notes payable
to (A) Zanett Lombardier, Ltd., in the principal amount of $400,000, (B) Hariot
Holdings, Inc. in the principal amount of $217,788 and (C) Xxxxx Xxxxxxxx in
the principal amount of $217,788 (collectively, the "NOTES"); (ii) for the
Company's internal working capital purposes, at a rate not to exceed One
Hundred Thousand Dollars ($100,000.00) per month and (iii) to provide a minimum
of Six Hundred Fifty Thousand Dollars ($650,000.00) of funding for current FDA
trials and clinicals with respect to certain of the Company's products.
d. Financial Information. The Company agrees to send the following
reports to each Purchaser until such Purchaser transfers, assigns, or sells all
of the Securities: (i) within ten (10) days after the filing with the SEC, a
copy of its Annual Report on Form 10-K, its Quarterly Reports on Form 10-Q and
any Current Reports on Form 8-K; and (ii) within one (1) day after release,
copies of all press releases issued by the Company or any of its subsidiaries.
e. Reservation of Shares. At all times following the amendment of the
Company's Certificate of Incorporation as provided in Section 4(h) hereof, the
Company shall have authorized and reserved for the purpose of issuance two (2)
times the number of shares of Common Stock required to provide for the full
conversion of the outstanding Preferred Shares and issuance of the Conversion
Shares in connection therewith and the full exercise of the Warrants and the
issuance of the Warrant Shares in connection therewith (based on the conversion
price of the Preferred Shares and the exercise price of the Warrants in effect
from time to time). In that regard, on the Closing Date, the Company shall have
at least 5,000,000 shares of Common Stock (the "RESERVED SHARES") reserved for
issuance upon conversion of the Preferred Shares and exercise of the Warrants
-11-
12
(subject to adjustment in order to comply with the immediately preceding
sentence) and, following the amendment of the Certificate of Incorporation as
provided in Section 4(h) hereof, shall have increased the number of Reserved
Shares by such number of shares of Common Stock as required to comply with the
first sentence of this subsection; provided that the Company shall not reduce
the number of shares reserved for issuance upon conversion of the Preferred
Shares and the full exercise of the Warrants without the consent of each of the
Purchasers, which consent will not be unreasonably withheld.
f. Listing. The Company shall take all actions necessary to continue
the listing and trading of its Common Stock on the National Association of
Securities Dealers, Inc. ("NASD") OTC Bulletin Board (the "OTC BULLETIN
BOARD"), shall comply in all respects with the Company's reporting, filing and
other obligations under the bylaws or rules of the NASD until such time as such
Common Stock is listed on the NASDAQ Small Cap Market or another national
interdealer quotation system or stock exchange and thereafter shall comply in
all respects with the Company's reporting, filing and other obligations of such
interdealer quotation system or stock exchange.
g. Corporate Existence. So long as the Purchaser beneficially owns any
Preferred Shares or Warrants, the Company shall maintain its corporate
existence, except in the event of a merger, consolidation or sale of all or
substantially all of the Company's assets, as long as the surviving or
successor entity in such transaction (i) assumes the Company's obligations
hereunder and under the agreements and instruments entered into in connection
herewith regardless of whether or not the Company would have had a sufficient
number of shares of Common Stock authorized and available for issuance in order
to affect the conversion of all Preferred Shares and exercise in full of all
Warrants outstanding as of the date of such transaction and (ii) is a publicly
traded corporation whose common stock is listed for trading on the American
Stock Exchange, the New York Stock Exchange or the NASDAQ National Market
System.
h. Amendment to Certificate of Incorporation. The Company shall use
its best efforts to amend, as soon as practicable after the date hereof (and in
any event no later than November 30, 1996), the Company's Certificate of
Incorporation to increase the number of shares of Common Stock the Company is
authorized to issue to at least such amount as will allow the reservation for
issuance and issuance of (i) the full number of shares of Common Stock which
the Company has contractually obligated itself to issue under agreements
(including shares of Common Stock issuable upon conversion of the 1996 Series A
Convertible Preferred Stock) in effect prior to the date hereof (the
"AMENDMENT") and (ii) the number of shares of Common Stock the Company is
required to reserve for issuance pursuant to Section 3(e) hereof upon
conversion. In that regard, the Company shall present to its stockholders a
proposal to approve the Amendment at its next annual meeting of stockholders or
a special meeting of stockholders called for such purpose and shall prepare
proxy materials with respect thereto which contain the recommendation of the
Company's Board of Directors for the approval of the Amendment and which
comply, in all material respects, with the proxy rules promulgated pursuant to
the Exchange Act. Until the Amendment is effective and a sufficient number of
shares of Common Stock are reserved for issuance upon the full conversion of
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the 1996 Series A Convertible Preferred, the Company shall not issue any shares
of Common Stock upon the conversion of any shares of Series A Preferred Stock.
i. [Intentionally Omitted]
j. Legends. The Conversion Shares and Warrant Shares, and the
certificates evidencing the same, shall at all times be free of legends (except
as provided in Section 5 below), "STOCK TRANSFER RESTRICTIONS," or other
restrictions, except for covenants of the Purchasers expressly set forth in
this Agreement.
k. Expenses. Except as otherwise provided in Section 5 of the
Registration Rights Agreement, each party hereto shall be responsible for the
payment of its own expenses incurred in connection with the negotiation,
execution, delivery and performance of this Agreement.
l. Transfer of Preferred Shares. The Company shall take all actions
necessary to prevent transfers of shares of Preferred Shares unless the
restrictions with respect to such transfers provided for in Section 2(a) hereof
are fully complied with. Further, the Company shall not waive the requirements
contained in Section 2(a) hereof under any circumstances.
m. Redemption of Notes. The Company shall redeem the
outstanding Notes within five (5) business days after the Closing.
n. Additional Offers and Sales. The Company shall not offer or sell
any securities in an offering which would result in an extension of the 40
restricted period under Regulation S under the Securities Act with respect to
the Series B Preferred Stock to a date that is more than 61 days after the
Closing Date.
5. LEGENDS; SUBSEQUENT TRANSFERS.
a. Resales of Securities by Purchasers. Each Purchaser acknowledges,
covenants and agrees that the Securities may and will only be resold by it (a)
in compliance with Regulation S; or (b) pursuant to an exemption from
registration under the Securities Act other than Regulation S; or (c) pursuant
to an effective and current registration statement under the Securities Act.
Each Purchaser agrees that it shall not make any offers or sales of the
Securities prior to the expiration of the Restricted Period to any U.S. person
or for the account or benefit of any U.S. person and any such offers or sales
prior to such expiration shall otherwise be made in compliance with the
provisions of Regulation S. In connection with any sale or transfer of the
Securities prior to the end of the Restricted Period, the Purchaser
transferring such Securities will obtain and deliver to the Company a
certificate of the prospective transferee confirming that: (i) the prospective
transferee is not a U.S. person; (ii) the securities have been offered and sold
or transferred to the prospective transferee outside the United States, and the
prospective transferee has no present intention to reoffer or resell the
Securities to a U.S. person or in the United States; (iii) prior to the end of
the Restricted
-13-
14
Period, the prospective transferee will not offer to sell the Securities to a
U.S. person or for the account or benefit of a U.S. person or in the United
States; and (iv) if the prospective transferee effects any further transfer,
offer or sale of the Securities prior to the end of the Restricted Period, such
transfer, offer or sale shall comply with the terms of Regulation S and the
prospective transferee will obtain and deliver to the Company a certificate of
the subsequent transferee to the effect of clauses (i)-(iv) of this sentence.
b. Legends.
(i) The certificates representing the Preferred Shares, Warrants and
any Conversion Shares and Warrant Shares issued during the Restricted Period,
shall bear the following legend (the "REGULATION S LEGEND"):
"The securities represented hereby have been issued pursuant to
Regulation S promulgated under the Securities Act of 1933, as
amended (the "1933 ACT"), and have not been registered under the
1933 Act. Such securities may not be transferred, offered or sold
prior to the end of the forty (40) day period (the "RESTRICTED
PERIOD") commencing on _______ __, 1996 unless such transfer, offer
or sale is made in an "OFFSHORE TRANSACTION" and not to or for the
account of or benefit of a "U.S. PERSON" (as such terms are defined
in Regulation S) and is otherwise in accordance with the
requirements of Regulation S. Following expiration of the
Restricted Period, the securities represented hereby may not be
offered, sold or otherwise transferred in the United States or to a
U.S. Person unless the securities are registered under the 1933 Act
and applicable state securities laws, or such offers, sales and
transfers are made pursuant to an available exemption from the
registration requirements of those laws."
(ii) The certificates representing the Preferred Shares shall bear
the following legend (in addition to the Regulation S Legend)(the "SERIES B
LEGEND"):
"The shares of the Corporation's 1996 Series B Convertible
Preferred Stock represented by this certificate are subject to
restrictions on convertibility as more fully set forth in the
Certificate of Designations, Preferences and Rights with respect to
such shares of 1996 Series B Convertible Preferred Stock."
c. Removal of Legend Following the Expiration of the Restricted
Period. Following the expiration of the Restricted Period, the Company will
remove or will promptly instruct its transfer agent to remove the Regulation S
Legend from the Preferred Shares and Warrants and, if applicable, from the
Conversion Shares and Warrant Shares issued during the Restricted Period
-14-
15
(and will instruct its transfer agent to issue without the Legend, the
Conversion Shares and Warrant Shares issuable upon any conversion or exercise
occurring after the Restricted Period), if the Purchaser holding such
Securities or any other person in whose name such certificates have been or are
to be issued shall have delivered a certificate (a "REMOVAL CERTIFICATE") to
the Company to the following effect:
"The undersigned acknowledges that the securities to which this
certificate relates have not been registered under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and that offers,
sales or other transfers of such securities must be made in
compliance with Regulation S promulgated under the Securities Act,
pursuant to an effective registration statement under the
Securities Act or pursuant to an available exemption from
registration, and the undersigned certifies that the undersigned
has not made, nor will the undersigned make or cause to be made,
any offer, sale or other transfer of such securities in violation
of the Securities Act, other applicable securities laws or the
rules and regulations of the Securities and Exchange Commission."
d. Removal of Legend in Connection with Bona Fide Pledge. Upon the
submission by a Purchaser, at any time after the expiration of the Restricted
Period, of a written request for legend removal for the purpose of a bona fide
pledge or deposit of Preferred Shares with a margin account, together with the
certificates for which the legend removal is being requested, the Company will
reissue or will promptly instruct its transfer agent to reissue the
certificates representing the Preferred Shares to be so pledged or deposited
without the Regulation S Legend, and no Removal Certificate shall be required
to be delivered in connection therewith.
e. Irrevocable Instructions to Transfer Agent. The Company will issue
to its transfer agent an irrevocable instruction letter to issue Common Stock
upon conversion of the Preferred Shares (in accordance with the Certificate of
Designation) and upon exercise of the Warrants upon receipt of a valid Notice
of Conversion or Exercise Agreement from the Purchaser and the certificates
representing the Preferred Shares or Warrants. So long as Section 5(c) above is
complied with, the Conversion Shares and the Warrant Shares shall be issued
free of the Regulation S Legend.
f. Preservation of the Legend. Notwithstanding the provisions of this
Section 5, if with respect to the Company's receipt of a Removal Certificate
from any person, prior to any removal of the Regulation S Legend, there shall
have been after the date hereof any amendment to the Securities Act or
Regulation S or any no action letter or interpretative release shall have been
promulgated by the SEC after the date hereof which explicitly disallows the
removal of the Regulation S Legend under the circumstances in which the request
that it be removed is being made, then the Company shall have no obligation to
remove or to instruct its transfer agent to remove the Regulation S Legend,
unless the Company shall have received from the person requesting such removal
a written
-15-
16
letter of counsel to such person reasonably acceptable to the Company
and its counsel confirming that the Regulation S Legend may be so removed or
share certificates may be so issued without the Regulation S Legend without
violation of the Securities Act. If the person requesting a removal of the
Regulation S Legend is unable to supply the legal opinion referred to above,
then the Company shall, upon demand of such person, be obligated to register
the Common Stock for resale pursuant to the terms of the Registration Rights
Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Units to
each of the Purchasers at Closing is subject to the satisfaction, at or before
the date and time of such Closing, of each of the following conditions thereto,
provided that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion.
(i) The Purchaser shall have executed the signature page to
this Agreement and the Registration Rights Agreement, and delivered the same to
the Company.
(ii) The Purchaser shall have delivered the Purchase Price in
accordance with Section 1(b) above.
(iii) The representations and warranties of the Purchasers
shall be true and correct in all material respects as of the date when made and
as of the date and time of the Closing as though made at that time (except for
representations and warranties that speak as of a specific date), and the
Purchasers shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Purchasers at or
prior to such Closing.
(iv) No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each of the Purchasers hereunder to purchase the
Units at the closing is subject to the satisfaction, at or before the Closing
of each of the following conditions, provided that these conditions are for the
Purchasers' sole benefit and may be waived by a Purchaser at any time in its
sole discretion:
(i) The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Purchaser.
-16-
17
(ii) The Certificate of Designation shall have been filed
with the Secretary of State of the State of Delaware, and a copy thereof
certified by the Secretary of State shall have been delivered to the Purchaser.
(iii) The Company shall have delivered duly executed
certificates representing the Preferred Shares and Warrants being so purchased
to the Purchaser in accordance with Section 1(b) above.
(iv) The Common Stock shall be authorized for quotation on
the OTC Bulletin Board and trading in the Common Stock (or on the OTC Bulletin
Board generally) shall not have been suspended by the SEC or the OTC Bulletin
Board. (The Purchaser acknowledges that the Common Stock is authorized for
quotation on the OTC Bulletin Board as of the date hereof.)
(v) The representations and warranties of the Company shall
be true and correct in all material respects as of the date when made and as of
the Closing as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing. The Purchasers
shall have received a certificate, executed by the chief executive officer of
the Company, dated as of the Closing, to the foregoing effect and as to such
other matters as may be reasonably requested by the Purchasers.
(vi) No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
(vii) The Purchasers shall have received the officer's
certificate described in Section 3(c) above, dated as of the Closing.
(viii) The Purchasers shall have received evidence that each
of the holders of the Company's Series A Convertible Preferred Stock shall have
(i) consented to the creation of the Series B Preferred Stock and (ii)
consented that the sole remedy of the holder of Series A Convertible Preferred
Stock upon a Conversion Default shall be to execute upon, or receive the
proceeds from the sale of, the Collateral.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Delaware without regard to the
principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States Federal Courts located
-17-
18
in the County of Kent in the State of Delaware with respect to any dispute
arising under this Agreement, the agreements entered into in connection
herewith or the transactions contemplated hereby or thereby.
b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchasers make any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by an
instrument in writing signed by the party to be charged with enforcement.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier and shall be effective
five days after being placed in the mail, if mailed, or upon receipt or refusal
of receipt, if delivered personally or by courier, in each case addressed to a
party. The addresses for such communications shall be:
If to the Company:
American BioMed, Inc.
00000 Xxxxxxx'x Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
If to a Purchaser, to the address set forth immediately below such
Purchaser's name on the Execution Pages.
Each party shall provide notice to the other party of any change in
address.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Neither
the Company nor the Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
-18-
19
other. Notwithstanding the foregoing, each of the Purchasers may assign its
rights hereunder to any of its "AFFILIATES," as that term is defined under the
1934 Act, without the consent of the Company. This provision shall not limit a
Purchaser's right to transfer the Securities pursuant to the terms of the
Certificate of Designation, Warrants and this Agreement or to assign its rights
hereunder to any such transferee.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
i. Acknowledgment. Each of the Purchasers acknowledges and agrees that
an affiliate (the "PURCHASING AFFILIATE") of the Placement Agent may subscribe
for Securities pursuant hereto and that neither the Placement Agent nor any of
its affiliates shall be under any obligation to advise the Purchasers or the
Company of the activities of the Purchasing Affiliate with respect to such
Securities following the Closing. Each of the Purchasers further acknowledges
and agrees that the Purchasing Affiliate will act independently of the
Placement Agent and may take action with respect to its investment in the
Securities which may be inconsistent or contrary to any action or interest of
the Placement Agent, the Company or the Purchasers. The acknowledgments set
forth in the preceding sentences shall not act as a waiver of any obligation
required by any law by which the Purchasing Affiliate is bound or any written
agreement to which the Purchasing Affiliate is a party.
j. Survival. The representations and warranties of the Company and the
agreements and covenants set forth in Sections 3, 4, 5 and 8 shall survive the
Closing hereunder notwithstanding any due diligence investigation conducted by
or on behalf of the Purchasers. The Company agrees to indemnify and hold
harmless each of the Purchasers and each of its officers, directors, employees,
partners, agents and affiliates for loss or damage arising as a result of or
related to any breach or alleged breach by the Company of any of its
representations set forth in Section 3 hereof, including advancement of
expenses as they are incurred.
k. Publicity. The Company and each of the Purchasers shall have the
right to approve before issuance any press releases, SEC or NASD filings, or
any other public statements with respect to the transactions contemplated
hereby; provided, however, that the Company shall be entitled, without the
prior approval of the Purchaser, to make any press release or SEC or NASD
filings with respect to such transactions as is required by applicable law and
regulations (although the Purchasers shall be consulted by the Company in
connection with any such press release prior to its release and shall be
provided with a copy thereof).
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20
l. Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
m. Termination. In the event that a closing shall not have occurred on
or before ninety (90) days from the date hereof, unless the parties agree
otherwise, this Agreement shall terminate at the close of business on such
date.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
AMERICAN BIOMED, INC.
By: /s/ XXXXXX X. XXXX
--------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: President & CEO
-----------------------------------
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21
PURCHASER:
NAME: Wood Gundy London Ltd.
SIGNATURE:
------------------------------------
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Associate Director Bond Operations
ADDRESS:
Xxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx 0X 0XX
Xxxxxxx
PLACE OF EXECUTION OF AGREEMENT:
------------------------
IF PURCHASER IS NOT A NATURAL PERSON
COUNTRY OF ORGANIZATION:
--------------------------------
ADDRESS TO WHICH SECURITIES SHOULD BE SENT (IF DIFFERENT FROM ABOVE
ADDRESS):
Xxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx 0X 0XX
Xxxxxxx
AGGREGATE SUBSCRIPTION AMOUNT:
Number of Units: 800
Purchase Price: $1,000
Date: 28 Oct 96
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22
PURCHASER:
NAME: Shoham Investments Ltd.
SIGNATURE:
------------------------------------
By: /s/ A. I. Gesundheit
---------------------------------------
Name: A. I. Gesundheit
Title: President
ADDRESS:
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx 00000 Xxxxxx
PLACE OF EXECUTION OF AGREEMENT: Jeruselem, Israel
IF PURCHASER IS NOT A NATURAL PERSON
COUNTRY OF ORGANIZATION: Israel
ADDRESS TO WHICH SECURITIES SHOULD BE SENT (IF DIFFERENT FROM ABOVE
ADDRESS):
c/o Xxxxxx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx 0X
XXXXXXXXX XXXXXXXXXXXX XXXXXX:
Number of Units: 250
Purchase Price: $250,000
Date: 10/30/96
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23
PURCHASER:
NAME: Otata Limited Partnership
SIGNATURE:
------------------------------------
By: /s/ Rihal X. Xxxxxxxxx
---------------------------------------
Name: Rihal X. Xxxxxxxxx
Title: Authorized Signature
ADDRESS:
x/x Xxxxxxxxx & Xxxxxxx Xxx.
X.X. Xxx 0000 XX
Xxxxx Caymen, B.W.I.
PLACE OF EXECUTION OF AGREEMENT: Grand Caymen, B.W.I.
IF PURCHASER IS NOT A NATURAL PERSON
COUNTRY OF ORGANIZATION: Grand Caymen, B.W.I.
ADDRESS TO WHICH SECURITIES SHOULD BE SENT (IF DIFFERENT FROM ABOVE
ADDRESS):
Xxxxxxx Xxxxx International Ltd.
Ropemaker Place
00 Xxxxxxxxx Xxxxx
Xxxxxx XX0X0XX
Attn: Maitane Xxxxxxxxx xx Xxxxxxxx
AGGREGATE SUBSCRIPTION AMOUNT:
Number of Units: 250
Purchase Price: $250,000
Date: October 25, 1996
-23-
24
PURCHASER:
NAME: Ailouros Ltd.
SIGNATURE:
------------------------------------
By: /s/ XXXXXXX XXXX
---------------------------------------
Name: Xxxxxxx Xxxx
Title: Director
ADDRESS:
000x Xxxxxx Xxxx
Xxxxxx X.X. XX0 GSN
PLACE OF EXECUTION OF AGREEMENT: London, England
IF PURCHASER IS NOT A NATURAL PERSON
COUNTRY OF ORGANIZATION: Antigua
ADDRESS TO WHICH SECURITIES SHOULD BE SENT (IF DIFFERENT FROM ABOVE
ADDRESS):
-------------------------
-------------------------
-------------------------
AGGREGATE SUBSCRIPTION AMOUNT:
Number of Units: 200
Purchase Price: $200,000 - US $
Date: Oct. 28, 1996
-24-
