BIOCIRCUITS CORPORATION
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
JULY 2, 1997
TABLE OF CONTENTS
PAGE
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES . . . . . . . . . . . . . . . . . . 1
2.1 Sale of Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Separate Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. CLOSING AND DELIVERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Issuance of the Units at the Closing. . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. . . . . . . . . . . . . 2
4.1 Organization and Qualification. . . . . . . . . . . . . . . . . . . . . . . . . . 2
4.2 Due Execution, Delivery and Performance of the Agreement. . . . . . . . . . . . . 2
4.3 Issuance, Sale and Delivery of the Shares and Warrants. . . . . . . . . . . . . . 3
4.4 Additional Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.5 No Material Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.6 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.7 Maintenance of Listing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.8 Registration Pursuant to Section 9 Hereof . . . . . . . . . . . . . . . . . . . . 4
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS . . . . . . . . . . . 5
5.1 Investment Representations, Warranties and Covenants. . . . . . . . . . . . . . . 5
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. . . . . . . . . . . . . . 6
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING. . . . . . . . . . . . . . . . 6
7.1 Receipt of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.2 Representations and Warranties Correct. . . . . . . . . . . . . . . . . . . . . . 6
7.3 Covenants Performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT EACH CLOSING . . . . . . . . . . . . . . 6
8.1 Representations and Warranties Correct. . . . . . . . . . . . . . . . . . . . . . 6
8.2 Covenants Performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.3 Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.4 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.1 Registration Procedures and Expenses. . . . . . . . . . . . . . . . . . . . . . . 7
9.2 Transfer of Securities After Registration . . . . . . . . . . . . . . . . . . . . 8
i.
TABLE OF CONTENTS
(CONTINUED)
PAGE
9.3 Indemnification . . . . . . . . . . . . . . . . . . . . . . 9
9.4 Termination of Conditions and Obligations . . . . . . . . . 10
9.5 Information Available . . . . . . . . . . . . . . . . . . . 10
9.6 Market Stand-Off. . . . . . . . . . . . . . . . . . . . . . 11
9.7 Changes in Purchaser Information. . . . . . . . . . . . . . 11
SECTION 10. BROKER'S FEE. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 11. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 12
12.1 Waivers and Amendments. . . . . . . . . . . . . . . . . . . 12
12.2 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.3 Severability. . . . . . . . . . . . . . . . . . . . . . . . 12
12.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 12
12.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 12
12.6 Successors and Assigns. . . . . . . . . . . . . . . . . . . 12
12.7 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . 13
12.8 Payment of Fees and Expenses. . . . . . . . . . . . . . . . 13
ATTACHMENTS:
Exhibit A - Schedule of Purchasers
Exhibit B - Form of Warrant
Exhibit C - Schedule of Exceptions
Appendix I - Stock Certificate and Warrant Questionnaire
Appendix II - Registration Statement Questionnaire
Appendix III - Certificate of Subsequent Sale
ii.
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 2nd day of July, 1997 (the
"Effective Date"), by and among BIOCIRCUITS CORPORATION, a Delaware corporation
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 Closing
(as defined below) will have authorized the sale and issuance of (a) up to
8,000,000 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 8,000,000 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 equal to the Closing bid price of the Company's Common Stock, as
reported on the Nasdaq Stock Market on July 2, 1997, plus $0.13 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 CLOSING. The Closing of the purchase and sale of the Units pursuant
to this Agreement (the "Closing") shall take place at the offices of Cooley
Godward LLP, 5 Palo Alto Square, 3000 El Camino Real, Palo Alto, California, on
the 3rd day of July or on such other date and place as may be agreed to by the
Company and the Purchasers.
3.2 ISSUANCE OF THE UNITS AT THE CLOSING. At the 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
2.
the indemnification agreements of the Company in Section 9.3 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 Quarterly Report on Form 10-Q for the three month
period ended March 31, 1997 (without exhibits unless specifically requested);
(b) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended (without exhibits unless specifically
requested);
(C) Notice of Annual Meeting and Proxy Statement for the Company's
1996 Annual Meeting of Stockholders; and
(d) Notice of Annual Meeting and Proxy Statement for the Company's
1997 Annual Meeting of Stockholders.
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 March 31, 1997,
3.
except as described in the Annual Report on Form 10-K, as amended, for the
fiscal year ended December 31, 1996 described in Section 4.4(b)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 or that will be furnished to the Purchasers upon request.
(C) The SEC Reports and this Agreement taken together as a whole will
not, as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein, or necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading (other than information relating to the Placement
Agent furnished by the Placement Agent expressly for use in the Agreement as to
which the Company makes no representation or warranty).
4.7 MAINTENANCE OF LISTING. For so long as the Company is obligated to
keep in effect the Registration Statements provided under Section 9 hereof, the
Company will use its 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 REGISTRATION PURSUANT TO SECTION 9 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 9
hereof.
4.
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.
5.
(g) Purchaser has full right, power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. Upon the execution and delivery of this
Agreement by Purchaser, this Agreement shall constitute a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Purchaser in Section 9.3 hereof may be legally unenforceable.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein and in the certificates for the securities delivered
pursuant hereto shall survive the execution of this Agreement, the delivery to
the Purchasers of the Securities being purchased and the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING. The
Company's obligation to complete the sale and issuance of the Securities and
deliver shares of Common Stock and Warrants to each Purchaser, individually, as
set forth in the Schedule of Purchasers shall be subject to the following
conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Company shall have received payment, by check
or wire transfer of immediately available funds, in the full amount of the
purchase price for the number of Units being purchased by such Purchaser at the
Closing as set forth in the Schedule of Purchasers.
7.2 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.
6.
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 ▇▇▇▇▇▇ 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. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
9.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
(a) Within two weeks after the 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 the Shares and the Warrant Shares underlying the Warrants issued 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) 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 9.6 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
7.
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.
(c) In order to facilitate the public sale or other disposition of
all or any of the Shares by each Purchaser, the Company shall furnish to each
Purchaser with respect to the Shares registered under the Registration Statement
such number of copies of prospectuses and preliminary prospectuses as such
Purchaser reasonably requests in conformity with the requirements of the
Securities Act.
(d) The Company shall file documents required of the Company for blue
sky clearance in states specified in writing by each Purchaser; PROVIDED,
HOWEVER, that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented.
(e) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers except as provided in the next sentence and under Section 12.8 below,
the Company shall bear all expenses (exclusive of underwriting discounts and
commissions) in connection with the procedures in paragraphs (a) through (d) of
this Section 9.1. 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 12.9 hereof) reasonably acceptable to each of the
Purchasers in connection with each Registration Statement required to be filed
pursuant to this Section 9 not to exceed $15,000.
9.2 TRANSFER OF SECURITIES AFTER REGISTRATION. Each Purchaser agrees that
such Purchaser will not effect any disposition of the Shares or the Warrants
that would constitute a sale within the meaning of the Securities Act, except:
(i) pursuant to 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
8.
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.
9.3 INDEMNIFICATION. As used in this Section 9.3 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 9.1; 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 9.1 or 9.2 hereof respecting sale of the Shares
or any statement or omission in any prospectus that is corrected in any
subsequent prospectus that was delivered to the Selling Stockholder 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
9.
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 9.1 or 9.2 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 9.3
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 9.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; PROVIDED, HOWEVER, that if there exists or shall exist a
conflict of interest that would make it 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.
9.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Subsections 5.1(c) and (d) or Section 9.1(c) and Section 9.2 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.
9.5 INFORMATION AVAILABLE. So long as a Registration Statement is
required to be effective pursuant to this Section 9 covering the resale of
Shares owned by the Purchasers, the Company will furnish to the Purchasers:
10.
(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 9.5, 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.
9.6 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").
9.7 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 10. 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 12.8 hereof, there are no brokers or finders entitled to
compensation in connection with the sale of the Units, and shall indemnify each
other for any such fees for which they are responsible.
SECTION 11. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by confirmed
facsimile or mailed by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, and shall be
deemed given when so sent in the case of facsimile transmission, or when so
received in the case of mail or courier, and addressed as follows:
(a) if to the Company, to:
Biocircuits Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11.
with a copy so mailed to:
▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least a
majority of the Shares.
12.2 HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
12.3 SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
12.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents,
without regard to conflicts of law principles.
12.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
12.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
12.
12.7 ENTIRE AGREEMENT. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
12.8 PAYMENT OF FEES AND EXPENSES. Subject to Section 9.1(e) 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 12.9 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, ▇▇▇▇ & 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.
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
13.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser:
-------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By:
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address:
---------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ -----------------------------------
-----------------------------------
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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇.
---------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------
-----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $51,468.75
---------
NUMBER OF UNITS: 68,625
---------
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: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
By: By: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
--------------------------
16th Floor
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 15,750
---------
NUMBER OF UNITS: 21,000
---------
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:
-------------------------
By: By:
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------
Building 4. Suite 270
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
DLJ CAPITAL CORPORATION Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- INVESTMENT AMOUNT: $ 19,402.50
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ---------
NUMBER OF UNITS: 25,870
ATTORNEY-IN-FACT ---------
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:
-------------------------
By: By:
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------
Building 4. Suite 270
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
ML VENTURE PARTNERS, II, L.P. Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BY: DLJ CAPITAL MANAGEMENT CORPORATION, -------------------------
ITS SUB-MANAGER
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
AUTHORIZED OFFICER
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ INVESTMENT AMOUNT: $ 125,000.00
----------
NUMBER OF UNITS: 166,667
----------
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:
-------------------------
By: By:
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------
Building 4. Suite 270
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
SPROUT CAPITAL VI, L.P. Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BY: DLJ CAPITAL CORPORATION, ------------------------
MANAGING GENERAL PARTNER
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ INVESTMENT AMOUNT: $ 122,520.00
ATTORNEY-IN-FACT ----------
NUMBER OF UNITS: 163,360
----------
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:
-------------------------
By: By:
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------
Building 4. Suite 270
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
SPROUT CAPITAL VI, L.P. Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BY: DLJ CAPITAL CORPORATION, ------------------------
MANAGING GENERAL PARTNER
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ATTORNEY-IN-FACT INVESTMENT AMOUNT: $ 233,077.50
----------
NUMBER OF UNITS: 310,770
----------
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/ [ILLEGIBLE]
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Trustee
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
----------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 39,375.00
---------
NUMBER OF UNITS: 52,500
---------
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/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Custodian
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
----------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 39,375.00
---------
NUMBER OF UNITS: 52,500
---------
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, LP
-------------------------
BY: Prim Ventures, Inc.
ITS: General Partner
By: By: /s/ K. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇ K. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
Title: Chief Financial Officer
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
PHONE: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 363,824.69 KMM
----------
NUMBER OF UNITS: 481,887 KMM
----------
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
----------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 787,500
----------
NUMBER OF UNITS: 1,050,500
----------
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/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Trustee
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
----------------------------------
Facsimile:
-------------------------
INVESTMENT AMOUNT: $ 78,975.00
---------
NUMBER OF UNITS: 105,300
---------
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/ [ILLEGIBLE]
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Managing General Partner
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., #▇▇▇
---------------------------
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ -----------------------------------
-----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------
INVESTMENT AMOUNT: $ 104,531.25
-----------
NUMBER OF UNITS: 139,375
-----------
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: [ILLEGIBLE]
------------------------
By: By:
----------------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title:
----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
--------------------------
c/o Pacific Growth Equities
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 32,718.75
----------
NUMBER OF UNITS: 43,625
----------
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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
By: By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: CEO - Chairman
----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: Pacific Growth
Equities, Inc.
--------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 80,000.00
----------
NUMBER OF UNITS: 106,667
----------
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: ▇▇▇▇▇▇ Family Trust
------------------------
By: By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: ▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 20,000.25
----------
NUMBER OF UNITS: 26,667
----------
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
Caqmas Find, L.P.
-------------------------
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Mg. Dir.
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇. ▇▇ ▇▇.
--------------------------
▇▇▇ ▇▇▇▇ ▇.▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
10022
----------------------------------
Facsimile:
-------------------------
INVESTMENT AMOUNT: $ 400,000.25
----------
NUMBER OF UNITS: 533,333
----------
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: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Mg. Dir.
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇. ▇▇ ▇▇.
--------------------------
▇▇▇ ▇▇▇▇ ▇.▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
10022
----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 1,300,000.25
------------
NUMBER OF UNITS: 1,733,333.00
------------
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
-------------------------
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Mg. Dir.
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇. ▇▇ ▇▇.
--------------------------
51st Floor
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇
----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
------------------------
INVESTMENT AMOUNT: $ 1,300,000.25
------------
NUMBER OF UNITS: 1,733,333.00
------------
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: /s/ C. ▇▇▇▇ ▇▇▇▇▇
-------------------------
By: By: /s/ C. ▇▇▇▇ ▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Managing Director
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
--------------------------
▇▇ ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 20,000
----------
NUMBER OF UNITS: 26,490
----------
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: [ILLEGIBLE]
-------------------------
By: By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Title: Institutional Equity Sales
-----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
--------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
94133
----------------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------
INVESTMENT AMOUNT: $ 6,656.25
----------
NUMBER OF UNITS: 8,875
----------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AGGREGATE
PURCHASER UNITS PURCHASED PURCHASE PRICE ($)
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 68,625 51,468.75
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 21,000 15,750.00
--------------------------------------------------------------------------------
DLJ Capital Corporation 25,870 19,402.50
--------------------------------------------------------------------------------
ML Venture Partners, II, L.P. 166,667 125,000.00
--------------------------------------------------------------------------------
Sprout Capital VI, L.P. 163,360 122,520.00
--------------------------------------------------------------------------------
Sprout Capital VII, L.P. 310,770 233,077.50
--------------------------------------------------------------------------------
E&M RP Trust 52,500 39,375.00
--------------------------------------------------------------------------------
Tahoe Partnership I 52,500 39,375.00
--------------------------------------------------------------------------------
Glenbrook Partners, LP 485,100 363,825.00
--------------------------------------------------------------------------------
H&Q Biocircuits Investors, L.P. 1,050,000 787,500.00
--------------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇, Trustee of the
Survivor's Trust under the
Kaiser Living Trust UAD
March 7, 1991 105,300 78,975.00
--------------------------------------------------------------------------------
Lancaster Investment Partners 139,375 104,531.25
--------------------------------------------------------------------------------
Massoca, ▇▇▇▇▇▇▇ ▇. 43,625 32,718.75
--------------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 106,667 80,000.00
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Family Trust 26,667 20,000.25
--------------------------------------------------------------------------------
Special Situations Cayman Fund, L.P. 533,333 400,000.00
--------------------------------------------------------------------------------
Special Situations Fund III, L.P. 1,733,333 1,300,000.00
--------------------------------------------------------------------------------
Special Situations Private Equity Fund 1,733,333 1,300,000.00
--------------------------------------------------------------------------------
▇▇▇▇▇, C. ▇▇▇▇ 26,667 20,000.00
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇. 8,875 6,656.25
--------------------------------------------------------------------------------
TOTAL: 6,853,567 5,140,175.25
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT B
FORM OF WARRANT
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.
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:
Cooley Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: A. ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
1.
Bank Contact Person: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇
Routing #: ▇▇▇▇▇▇▇▇▇
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.
2.
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 (thisis 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 July 2, 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:
----------------------------------