ACKNOWLEDGEMENT AND CONFIRMATION
EXHIBIT 99.15
ACKNOWLEDGEMENT
AND CONFIRMATION
WHEREAS, Crestview Capital Master, LLC
(“Crestview”) has entered into a Common Stock
Purchase Agreement (the “Agreement”) dated as of
December 19, 2007 with Xxxxxx Xxxxxxxx
(“Xxxxxxxx”), a copy of which is attached hereto as
Exhibit A.
WHEREAS, Chembio Diagnostics, Inc. (the
“Company”) has received and reviewed a copy of the
Agreement;
RESOLVED, that the Company acknowledges and confirms that
it will follow the instructions given to it by Xxxxxxxx pursuant
to the terms of the Agreement, including any instruction to
issue unlegended shares of common stock to Crestview, and it
will fulfill its obligations under the Agreement.
/s/ Xxxxxxxx
X. Xxxxxxx
Chembio Diagnostics, Inc.
By: Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Date: December 19, 2007
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Exhibit A:
Common
Stock Purchase Agreement Dated December 19, 2007 by and
between
Crestview Capital Master, LLC and Xxxxxx Xxxxxxxx
Crestview Capital Master, LLC and Xxxxxx Xxxxxxxx
THIS COMMON STOCK PURCHASE AGREEMENT (this
“Agreement”), dated as of December 19,
2007, is by and between Crestview Capital Master, LLC (the
“Buyer”) and Xxxxxx X. Xxxxxxxx (the
“Seller”).
RECITAL
Seller desires to sell to the Buyer, and the Buyer desires to
purchase from Seller, Seller’s entire right, title and
interest in and to the number of shares of Common Stock (the
“Common Stock”) of Chembio Diagnostics, Inc., a
Nevada corporation (the “Issuer”) set forth on
the Buyer’s signature page hereto (such shares of Common
Stock are referred to herein as the “Shares”),
all in accordance with the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the representations,
warranties and agreements contained herein and for other good
and valuable consideration, the receipt and legal adequacy of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Agreement to Purchase. The Buyer
hereby agrees to purchase, and Seller hereby agrees to sell to
the Buyer, the Shares for a per share purchase price equal to
$0.42 per share, as set forth on the Buyer signature page hereto
(the “Purchase Price”), pursuant to the terms
and conditions set forth herein. Within 5 business days of the
date hereof, the Seller shall deliver to the Issuer a notice of
transfer as to such Shares duly signed by the Seller in the name
of the Buyer and instructions to re-issue such Shares to Buyer
(together, the “Transfer Documents”). Promptly
upon receipt of the Transfer Documents, the Issuer shall notify
the Buyer of such receipt. Upon the earlier of (i) notice
from the Issuer that the Issuer is in receipt of the Transfer
Documents or (ii) receipt from the Seller of a copy of the
Transfer Documents along with a confirmed delivery receipt from
a nationally recognized courier service that the Transfer
Documents have been delivered to the Issuer, the Buyer shall,
within 1 business day of such date, pay the Purchase Price to
the Seller via wire transfer of immediately available funds
pursuant to the wire instructions of the Seller set forth on the
signature page of the Seller attached hereto. The Issuer shall
promptly deliver to the Buyer a certificate representing the
Shares, without restrictive legends, to the address set forth on
the signature page of the Buyer attached hereto and return the
balance of any Shares to the Seller or its designee(s). Against
delivery of the Purchase Price for the Shares by Buyer, Seller
shall deliver the Shares to Buyer, free and clear of all liens,
charges or other encumbrances.
2. Representations and Warranties of
Buyer. The Buyer represents and warrants to
Seller as follows:
(a) Buyer has conducted its own due diligence with respect
to the Issuer and its purchase of the Shares, each to
Buyer’s satisfaction. The Buyer has received all
information regarding the Issuer that it deems necessary or
advisable to evaluate the risks and merits of an investment in
the Shares. It acknowledges that neither the Seller nor any of
its authorized representatives have made any representation or
warranty regarding the Issuer or an investment in the Shares,
other than as contained herein. The Buyer understands that its
investment in the Shares involves a significant degree of risk.
The Buyer has sufficient cash resources to enable it to pay the
Purchase Price.
(b) The Buyer represents that it is an “Accredited
Investor” as defined in Regulation D under the
1933 Act.
(c) This Agreement constitutes a valid and binding
agreement and obligation of Buyer enforceable against Buyer in
accordance with its terms, subject to limitations on enforcement
by general principles of equity and bankruptcy or other laws
affecting the enforcement of creditors’ rights generally.
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(d) This Agreement has been duly authorized, validly
executed and delivered by Buyer, and Buyer has full power and
authority to execute and deliver this Agreement and the other
agreements and documents contemplated hereby and to perform its
obligations hereunder and thereunder.
(e) Buyer has been fully and adequately represented by
independent representatives in connection with the transactions
contemplated by this Agreement.
3. Representations and Warranties and Covenants of
Seller. Seller represents and warrants to the
Buyer as follows:
(a) This Agreement has been duly authorized, validly
executed and delivered by Seller and is a valid and binding
agreement and obligation of Seller enforceable against Seller in
accordance with its terms, subject to limitations on enforcement
by general principles of equity and by bankruptcy or other laws
affecting the enforcement of creditors’ rights generally,
and Seller has full power and authority to execute and deliver
this Agreement and the other agreements and documents
contemplated hereby and to perform its obligations hereunder and
thereunder.
(b) Seller has been fully and adequately represented by
independent representatives in connection with the transactions
contemplated by this Agreement.
(c) The Seller is not, as of the date of this
representation, and has not been for the last one hundred and
90 days, an employee, officer, director or direct or
indirect beneficial owner of more than ten percent (10%) of any
class of equity security of the Issuer, or of any entity,
directly or indirectly, controlling, controlled by or under
common control with the Issuer.
4. Expenses. Each of the parties hereto
agrees to pay its own expenses incident to this Agreement and
the performance of its obligations hereunder.
5. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the internal laws
of the State of New York, without reference to the choice of law
principles thereof. Service of process in connection with any
such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each
of the parties hereto irrevocably consents to the jurisdiction
of any such court in any such suit, action or proceeding and to
the laying of venue in such court. Each party hereto irrevocably
waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient
forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST
A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT
AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS
TO THIS WAIVER.
6. Notices. All notices and other
communications provided for or permitted hereunder shall be made
in writing by hand delivery, express overnight courier,
registered first class mail, overnight courier, or facsimile,
initially to the address set forth on the signature page hereto,
and thereafter at such other address, notice of which is given
in accordance with the provisions of this section. All such
notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five
(5) business days after being deposited in the mail,
postage prepaid, if mailed; the next business day after being
deposited with an overnight courier, if deposited with a
nationally recognized, overnight courier service (with next day
delivery specified); when a transmission confirmation report is
generated, if sent via facsimile.
7. Entire Agreement. This Agreement
(including Exhibit A hereto) constitutes the entire
understanding and agreement of the parties with respect to the
subject matter hereof and supersedes all prior
and/or
contemporaneous oral or written proposals or agreements relating
to such subject matter, all of which are merged herein. This
Agreement may not be amended or any provision hereof waived in
whole or in part, except, in the case of an amendment, by a
written amendment signed by both of the parties or, in the case
of waiver, in writing signed by the party giving the waiver. The
parties make no representations, warranties or disclosures to
each other, except as contained in this Agreement, and any and
all prior representations and warranties made by Seller or Buyer
or any of their respective representatives, whether verbally or
in writing, are deemed to have been merged into this
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Agreement, it being intended that no such prior representations
or warranties shall survive the execution and delivery of this
Agreement. The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied
against any party.
8. Assignment; Successors and Assigns; No Third Party
Rights. This Agreement may not be assigned by
operation of law or otherwise, and any attempted assignment
shall be null and void. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, successors, permitted assigns and legal representatives.
This Agreement shall be for the sole benefit of the parties to
this Agreement and their respective heirs, successors, permitted
assigns and legal representatives and is not intended, nor shall
be construed, to give any Person, other than the parties hereto
and their respective heirs, successors, assigns and legal
representatives, any legal or equitable right, remedy or claim
hereunder.
9. Counterparts. This Agreement may be
executed in two or more identical 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. In the event that any signature is
delivered by facsimile transmission or by an
e-mail which
contains a portable document format (.pdf) file of an executed
signature page, such signature page shall create a valid and
binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if
such signature page were an original thereof.
[signature page follows]
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IN WITNESS WHEREOF, this Common Stock Purchase Agreement was
duly executed on the date first written above.
BUYER:
Crestview Capital Master, LLC
By: Crestview Capital Partners, LLC
Its: Sole Manager
| By: |
/s/ Xxxxxx
Xxxx
|
Name: Xxxxxx Xxxx
Title: Manager
| Address: | c/o Crestview Capital Partners, LLC |
00 Xxxxxx Xxxxx, Xxx. X
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile:
(000) 000-0000
Shares of Common Stock: 216,667
Aggregate Purchase Price: $91,000.14
[SIGNATURE PAGE OF SELLER TO FOLLOW]
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[SIGNATURE
PAGE OF SELLER]
IN WITNESS WHEREOF, the undersigned have caused this Common
Stock Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
Name of Seller: Xxxxxx X. Xxxxxxxx
| Signature of Authorized Signatory of Seller: | /s/ Xxxxxx X. Xxxxxxxx |
Name of Authorized Signatory: Xxxxxx X. Xxxxxxxx
Address for Notice of Seller:
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