Exhibit 1.1
PLACEMENT AGREEMENT
This PLACEMENT AGREEMENT (as amended or supplemented from time to time,
this "Agreement") dated as of the 24th day of March, 2006, by and between PURE
BIOSCIENCE, a California corporation (the "Company"), and TAGLICH BROTHERS, INC.
(the "Placement Agent").
W I T N E S S E T H:
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WHEREAS, in reliance upon the representations, warranties, terms and
conditions hereinafter set forth, the Placement Agent will use its best efforts
to privately place a minimum principal amount of $4,000,000 (the "Minimum
Amount") and a maximum principal amount of $7,000,000 (the "Maximum Amount") of
the Company's common stock, no par value per share (the "Common Stock"), at a
purchase price (the "Purchase Price") equal to eighty percent (80%) of the five
(5) day average closing bid price of the Common Stock prior to the Initial
Closing Date (as defined below), which will not exceed $1.65 per Share (as
defined below);
WHEREAS, the shares issued in connection with this Agreement (the "Shares")
are being issued pursuant to the Company's Confidential Private Placement
Memorandum and the Exhibits thereto, dated March 17, 2006 (as amended or
supplemented from time to time, collectively, the "Offering Materials"); and
WHEREAS, the Shares are being issued to investors (the "Investors")
pursuant to an exemption from the registration requirements of the Securities
Act of 1933, as amended (the "1933 Act").
NOW, THEREFORE, in consideration of the premises and the respective
promises hereinafter set forth, the Company and the Placement Agent hereby agree
as follows:
1. Sale and Purchase of Shares.
(a) Subject to the terms and conditions of this Agreement, the Company
shall sell the Shares to the Investors. The Placement Agent is hereby appointed
the exclusive placement agent of the Company for the purpose of the offering and
sale of the Shares.
(b) The Initial Closing (as defined below) shall take place at the offices
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such
other place as shall be acceptable to the Company and the Placement Agent on
such date or dates as the Placement Agent shall advise the Company on two (2)
business days notice or such shorter notice as shall be reasonably acceptable to
the Company. In no event shall the Initial Closing occur unless the Minimum
Amount of Common Stock is sold. Subsequent sales and purchases of the Shares, up
to the Maximum Amount, shall take place at one or more Closings held on such
dates and in such locations as the Company and the Placement Agent shall
mutually determine. All Closings pursuant to this Agreement shall occur not
later than March 31, 2006, unless such date is extended for up to thirty (30)
days by mutual agreement of the Company and the Placement Agent. The term
"Closing" means the purchase and sale of the Shares as described in Section 1(b)
of this Agreement. The initial Closing hereunder shall be referred to as
"Initial Closing"; the final Closing hereunder shall be referred to as "Final
Closing"; and the date of the Final Closing shall be referred to as the "Final
Closing Date".
(c) All capitalized terms used in this Agreement which are not otherwise
defined shall have the meanings ascribed to them in the Offering Materials.
2. Payment. At each Closing, the Company or its agent shall deliver to the
Placement Agent, on behalf of the Investors, the original executed and sealed
Common Stock certificates representing the Shares being purchased by the
Investors, against receipt by the Company of payment therefor by certified or
bank check drawn on a bank located in the United States or by Federal wire
transfer, in the amount of the aggregate purchase price for such Shares being
sold (less any fees payable to the Placement Agent pursuant to this Agreement).
All Shares being purchased by the Investors shall be issued in the respective
names of the Investors in accordance with instructions provided by the Placement
Agent.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to and covenants and agrees with the Placement Agent, as
of the date hereof and as of the date of each Closing, as follows:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of California and is qualified and in
good standing as a foreign corporation in each jurisdiction in which the nature
of the business conducted by the Company or the property owned or leased by the
Company requires such qualification. The Company has no subsidiaries and does
not own any equity interest and has not made any loans, advances or guarantees
of indebtedness to any person, corporation, partnership or other entity.
(b) The capital structure of the Company is as described in the Offering
Materials.
(c) The Company has the full right, power and authority to execute, deliver
and perform under this Agreement. This Agreement has been duly executed by the
Company and, at each Closing, the Shares being issued will have been duly
executed by the Company, and this Agreement and the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate action and
each constitute, the legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms.
(d) All of the issued and outstanding shares of Common Stock have been duly
and validly authorized and issued, are fully paid and nonassessable (with no
personal liability attaching to the holders thereof or to the Company) and are
free from preemptive rights or rights of first refusal held by any person. All
of the issued and outstanding shares of Common Stock have been issued pursuant
to either a current effective registration statement under the 1933 Act or an
exemption from the registration requirements thereof, and were issued in
accordance with all applicable Federal and state securities laws.
(e) The Shares to be issued at each Closing have been duly and validly
authorized for issuance and, when issued pursuant to this Agreement will be duly
and validly authorized and issued, fully paid and nonassessable and free from
preemptive rights or rights of first refusal held by any person.
(f) The following financial statements of the Company (hereinafter
collectively, the "Financial Statements") are included in the Offering
Materials: (i) consolidated balance sheets as of July 31, 2005, and consolidated
statements of operations, shareholders' equity and cash flows for the fiscal
year ended July 31, 2005, and the related notes thereto, which have been audited
by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, independent certified public accountants, (ii)
consolidated balance sheets as of July 31, 2004, and consolidated statements of
operations, shareholders' equity and cash flows for the fiscal year ended July
31, 2004, and the related notes thereto, which have been audited by ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇, independent certified public accountants, and (iii) unaudited balance
sheet as of October 31, 2005, and January 31, 2006, and unaudited statement of
operations, stockholders' equity and cash flows for the fiscal quarter ended
October 31, 2005, and January 31, 2006, and the related notes thereto, which
have been prepared by the Company. The Financial Statements, which are included
in the Company's Form 10KSB Annual Report for the year ended July 31, 2005 (the
"Form 10KSB"), the Company's Form 10QSB Quarterly Report for the fiscal quarter
ended October 31, 2005, and the Company's Form 10QSB Quarterly Report for the
fiscal quarter ended January 31, 2006 (collectively the "Forms 10QSB"), were
prepared in accordance with generally accepted accounting principles
consistently applied and present and reflect fairly the financial position of
the Company at the respective balance sheet dates and the results of its
operations and cash flows for the periods then ended, provided, however, that
the financial statements included in the Forms 10QSB are subject to normal
year-end adjustments and lack footnotes and other presentation items. During the
period of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇'▇ engagement as the Company's independent
certified public accountants, there has been no disagreements between the
accounting firm and the Company on any matters of accounting principles or
practices, financial statement disclosure or auditing scope or procedure and no
events required to be reported on a current report on Form 8-K relating to the
relationship between the Company and the accounting firm. The Company has made
and kept books and records and accounts which are in reasonable detail and which
fairly and accurately reflect the activities of the Company, subject only to
year-end adjustments.
(g) The Company has good and marketable title to all of its material
property and assets and, except as set forth in the Offering Materials or the
Financial Statements, none of such property or assets of the Company are subject
to any lien, mortgage, pledge, encumbrance or other security interest.
(h) Since January 31, 2006, there has not been any material adverse change
in the financial condition or in the operations, business or prospects of the
Company from that shown in the Financial Statements or any damage or
destruction, not covered by insurance, which affects the business, property or
assets of the Company.
(i) Except as set forth in the Exhibits to the Offering Materials, the
Company has not filed any current reports on Form 8-K or any other reports with
the Securities and Exchange Commission (the "SEC") subsequent to January 31,
2006.
(j) Neither the execution or delivery of this Agreement, the Common Stock
or the Placement Agent Warrants (as defined below) by the Company nor the
performance by the Company of the transactions contemplated by this Agreement or
the Placement Agent Warrants: (i) requires the consent, waiver, approval,
license or authorization of or filing with or notice to any person, entity or
public authority (except any filings required by Federal or state securities
laws, which filings have been or will be made by the Company on a timely basis);
(ii) violates or constitutes a default under or breach of any law, rule or
regulation applicable to the Company; or (iii) conflicts with or results in a
breach or termination of any provision of, or constitutes a default under, or
will result in the creation of any lien, charge or encumbrance upon any of the
property or assets of the Company with or without the giving of notice, the
passage of time or both, pursuant to (A) the Company's articles of incorporation
(as amended) or by-laws, (B) any mortgage, deed of trust, indenture, note, loan
agreement, security agreement, contract, lease, license, alliance agreement,
joint venture agreement, or other agreement or instrument, or (C) any order,
judgment, decree, statute, regulation or any other restriction of any kind or
character to which the Company is a party or by which any of the assets of the
Company may be bound.
(k) The Company does not have any indebtedness to any officer, director,
five percent (5%) stockholder or other Affiliate (as defined in the Rules and
Regulations of the SEC under the ▇▇▇▇ ▇▇▇) of the Company.
(l) The Company is in compliance with all laws, rules and regulations of
all Federal, state, local and foreign government agencies having jurisdiction
over the Company or affecting the business, assets or properties of the Company,
except where the failure to comply has not and will not have a material adverse
effect on the business, financial condition or results of operations of the
Company, taken as a whole (a "Material Adverse Effect"). The Company possesses
all licenses, permits, consents, approvals and agreements (collectively,
"Licenses") which are required to be issued by any and all applicable Federal,
state, local or foreign authorities necessary for the operation of its business
and/or in connection with its assets or properties, except where the failure to
possess such Licenses has not and will not have a Material Adverse Effect.
(m) The Company is not in default under any note, loan agreement, security
agreement, mortgage, contract, franchise agreement, distribution agreement,
lease, alliance agreement, joint venture agreement, other agreement, license,
permit, consent, approval or instrument to which it is a party, and no event has
occurred which, with or without the lapse of time or giving of notice, or both,
would constitute such default thereof by the Company or would cause acceleration
of any obligation of the Company or would adversely affect the business,
operations, or financial condition of the Company, except where such default or
event, whether with or without the lapse of time or giving of notice, or both,
has not and will not have a Material Adverse Effect. To the best of the
knowledge of the Company, no party to any note, loan agreement, security
agreement, mortgage, contract, franchise agreement, distribution agreement,
lease, alliance agreement, joint venture agreement, other agreement, license,
permit, consent, approval or instrument with or given to the Company is in
default thereunder and no event has occurred with respect to such party, which,
with or without the lapse of time or giving of notice, or both, would constitute
a default by such party or would cause acceleration of any obligations of such
party.
(n) Except as set forth in the Offering Materials, to the best of the
Company's knowledge, no officer, director or five percent (5%) stockholder of
the Company and no Affiliate of any such person either (i) holds any material
interest in any corporation, partnership, business, trust, sole proprietorship
or any other entity which is engaged in a business similar to that conducted by
the Company (other than a passive immaterial interest in a public company
engaged in any such business) or (ii) engages in business with the Company
required to be disclosed in a filing with the SEC.
(o) There are no material (i.e., involving an asserted liability in excess
of twenty-five thousand dollars ($25,000)) claims, actions, suits, proceedings,
labor disputes, inquiries or investigations (whether or not purportedly on
behalf of the Company), pending or, to the best of the Company's knowledge,
threatened, against the Company, formal or informal, at law or in equity or by
or before any Federal, state, county, municipal or other governmental
department, the SEC, the National Association of Securities Dealers, Inc. (the
"NASD"), board, bureau, agency or instrumentality, domestic or foreign, whether
legal or administrative or in arbitration or mediation, nor is there any basis
for any such action or proceeding. Neither the Company, nor any of its assets
are subject to, nor is the Company in default with respect to, any order, writ,
injunction, judgment or decree that could adversely affect the financial
condition, business, assets or prospects of the Company. Within the past three
(3) years, there has been no correspondence between the Company and any Federal,
state, county, municipal or other governmental department, the SEC, the NASD,
board, bureau, agency or instrumentality, domestic or foreign, other than
filings required in the ordinary course of the Company's business and receipts
therefor.
(p) The accounts receivable of the Company represent receivables generated
from the sale of goods and services in the ordinary course of business. The
Company knows of no material disputes concerning accounts receivable of the
Company not disclosed in the Offering Materials.
(q) The accounts payable of the Company represent bona fide payables to
third parties incurred in the ordinary course of business and represent bona
fide debts for services and/or goods provided to the Company.
(r) Except as set forth in the Offering Materials, the Company does not
have (i) any written employment contracts or oral employment contracts not
terminable at will by the Company with any five percent (5%) shareholder,
officer or director of the Company; (ii) any consulting agreement or other
compensation agreement with any five percent (5%) shareholder, officer or
director of the Company; or (iii) any agreement or contract with any five
percent (5%) shareholder, officer or director of the Company that will result in
the payment by the Company or the creation of any commitment or obligation
(absolute or contingent), of the Company to pay any severance, termination,
"golden parachute," or similar payment to any present or former personnel of the
Company following termination of employment. No director, executive officer or
other key employee of the Company has advised the Company that he or she intends
to resign as director and/or executive officer of the Company or to terminate
his or her employment with the Company.
(s) Except as set forth in the Offering Materials, the Company is not a
party to a labor agreement with respect to any of its employees with any labor
organization, union, group or association and there are no employee unions (nor
any similar labor or employee organizations). There is no labor strike or labor
stoppage or slowdown pending, or, to the knowledge of the Company, threatened
against the Company, nor has the Company experienced in the last five (5) years
any work stoppage or other labor difficulty. The Company is in compliance with
all applicable laws, rules and regulations regarding employment practices,
employee documentation, terms or conditions of employment and wage and hours and
the Company is not engaged in any unfair labor practices, except where the
failure to comply has not and will not have a Material Adverse Effect. There are
no unfair labor practice charges or complaints against the Company pending
before the National Labor Relations Board or any other governmental agency.
(t) Except as disclosed in the Offering Materials, there are no employee
pension, retirement or other benefit plans, maintained, contributed to or
required to be contributed to by the Company covering any employee or former
employee of the Company. The Company has no material liability or obligation of
any kind or nature, whether accrued or contingent, matured or unmatured, known
or unknown, under any provision of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or any provision of the Internal Revenue Code of
1986, as amended, specifically relating to persons subject to ERISA.
(u) The Company has timely filed or will timely file with the appropriate
taxing authorities all returns in respect of taxes required to be filed through
the date hereof and has timely paid or will timely pay all taxes that it is
required to pay or has established an adequate reserve therefore. There are no
pending or, to the knowledge of the Company, threatened audits, investigations
or claims for or relating to any liability of the Company in respect of taxes.
(v) The Company has no liabilities of any kind or nature whether accrued or
contingent, matured or unmatured, known or unknown, except as set forth in the
Offering Materials and those liabilities incurred by the Company in the ordinary
course of business since January 31, 2006.
(w) There are no finder's fees or brokerage commissions payable with
respect to the transactions contemplated by this Agreement due to the actions of
the Company, except as provided in Section 12 of this Agreement or as otherwise
disclosed in the Offering Materials.
(x) Except as set forth in the Offering Materials, the Company is not
currently and has not during the past six (6) months been engaged in
negotiations with respect to: (i) any merger or consolidation of the Company
where the Company would not be the surviving entity; or (ii) the sale of the
Company or any of its assets other than sales in the ordinary course of
business.
(y) The Company has the right to conduct its business in the manner in
which its business has been heretofore conducted. To the knowledge of the
Company, the conduct of such businesses by the Company does not violate or
infringe upon the patent, copyright, trade secret or other proprietary rights of
any third party, and the Company has not received any notice of any claim of any
such violation or infringement.
(z) The Company is currently in compliance in all respects with all
applicable Environmental Laws (as defined below), including, without limitation,
obtaining and maintaining in effect all permits, licenses, consents and other
authorizations required by applicable Environmental Laws, and the Company is
currently in compliance with all such permits, licenses, consents and other
authorizations, except where the failure to comply does not and will not have a
Material Adverse Effect. The Company has not received notice from any property
owner, landlord, tenant or Governmental Authority (as defined below) that
Hazardous Wastes (as defined below) are being improperly used, stored or
disposed of at any property currently or formerly owned or leased by the Company
or that any soil or ground water contamination has emanated from any such
property. For purposes hereof, the term "Environmental Laws" means,
collectively, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization
Act of 1986, as amended, the Resource Conservation and Recovery Act, as amended,
the Toxic Substances Act, as amended, the Clean Air Act, as amended, the Clean
Water Act, as amended, any other "Superfund" or "Superlien" law or any other
Federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance, or material, as
now or at any time hereafter in effect. For purposes hereof, the term
"Governmental Authority" shall mean the Federal Government of the United States
of America, any state or any political subdivision of the Federal Government or
any state, including but not limited to courts, departments, commissions,
boards, bureaus, agencies, ministries or other instrumentalities. For purposes
hereof, the term "Hazardous Wastes" shall mean any regulated quantity of
hazardous substances as listed by the Environmental Protection Agency (the
"EPA") and the list of toxic pollutants designated by the United States Congress
and/or the EPA or defined by any other Federal, state or local statute, law,
ordinance, code, rule, regulation, order, or decree regulating, relating to or
imposing liability for standard of conduct concerning any hazardous, toxic
substance or material.
(aa) The information contained in the Offering Materials, taken together,
describe in all material respects the business and financial condition of the
Company, and such material, taken together, does not contain any misstatement of
a material fact or omit to state a material fact necessary to make the
information not misleading. The Investors and the Placement Agent shall be
entitled to rely on such material notwithstanding any investigation they or any
of them may have made.
(bb The Financial Statements included in the Offering Materials present
fairly the financial position of the Company as of the dates indicated and the
results of its operations for the periods specified. The historical financial
information included in the Offering Materials has been derived from the
accounting records of the Company and presents fairly the information shown
thereby. The assumptions underlying pro forma financial information included in
the Offering Materials are reasonable and are set forth in the Offering
Materials.
(cc) The Placement Agent Warrants have been authorized for issuance to the
Placement Agent or its designees. The Warrant Shares, when issued and delivered
against payment therefor in accordance with the terms thereof, will be duly and
validly issued, fully paid, nonassessable and free of preemptive rights or
rights of first refusal held by any person, and all corporate action required to
be taken for the authorization and issuance of the Placement Agent Warrants and
the Warrant Shares has been validly and sufficiently taken. The execution by the
Company of the Placement Agent Warrants has been duly authorized by all required
action of the Company and, when so executed and delivered, will constitute the
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
4. Representations, Warranties and Covenants of Placement Agent.
(a) The Placement Agent hereby represents and warrants that it is duly
authorized to execute this Agreement and perform its duties hereunder, and the
execution and delivery by the Placement Agent of this Agreement and the
consummation of the transactions contemplated by this Agreement have been
authorized by all necessary corporate action and will not result in any
violation of, or be in conflict with, or constitute a default under, the
Placement Agent's articles of incorporation or by-laws, any agreement or
instrument to which the Placement Agent is a party or by which the Placement
Agent's property is bound, or any judgment, decree, order or any statute, rule
or regulation applicable to the Placement Agent.
(b) In offering the Shares for sale, the Placement Agent will not offer the
Shares for sale, or solicit any offers to buy any Shares, or otherwise negotiate
with any person in respect of the Shares, on the basis of any communications or
documents relating to the Shares or any investment therein or to the Company or
investment therein, other than the Offering Materials and any other document
satisfactory in form and substance to the Company. The Placement Agent will
promptly deliver a copy of each amendment or supplement to the Offering
Materials (i) to all prospective investors then being or thereafter solicited by
the Placement Agent, and (ii) to each investor who has subscribed for Shares
prior to the receipt by such person of such amendment or supplement.
(c) In offering the Shares for sale, the Placement Agent shall conduct such
sales in the manner described in the Offering Materials.
5. Survival of Representations and Warranties and Indemnification. The
representations and warranties of the Company and the Placement Agent set forth
in Sections 3 and 4 of this Agreement shall survive the execution and delivery
of the Shares. The indemnification obligations of the Company as set forth in
the indemnification rider identified as Exhibit B (as amended or supplemented
from time to time, the "Indemnification Rider") to that certain engagement
letter between the Company and the Placement Agent, dated December 27, 2005 (as
amended or supplemented from time to time), is hereby incorporated by reference
in its entirety as if more fully set forth herein, and the provisions of the
Indemnification Rider shall apply and be applicable to, among other things, all
representations and warranties of the Company.
6. Use of Proceeds. The net proceeds to the Company from the sale of the
Minimum Amount of Common Stock and the Maximum Amount of Common Stock are
estimated to be approximately $3,625,000 and $6,380,000, respectively, after
deducting the fees and expenses associated with the offering of the Shares. The
net proceeds from the sale of the Shares will be used by the Company as
disclosed in the Offering Materials.
7. Unregistered Securities. None of the Shares or the Warrant Shares have
been registered under the 1933 Act, in reliance upon the applicability of
Section 4(2), 4(6) and/or Rule 506 of Regulation D of the 1933 Act to the
transactions contemplated hereby. The certificates representing the Shares and
the Warrant Shares will bear an investment legend stating that they are
"restricted securities" (as defined in Rule 144 under the Securities Act) and
may only be publicly offered and sold pursuant to an effective registration
statement filed with the SEC or pursuant to an exemption from the registration
requirements.
8. Registration Rights and "Piggy-Back" Registration Rights.
(a) As soon as possible after the Final Closing Date, but in no event later
than thirty (30) days after the Final Closing Date (regardless of whether the
Maximum Amount of Common Stock shall have been sold), the Company shall, at its
sole cost and expense, file a registration statement (as amended or supplemented
from time to time, the "Registration Statement") on the appropriate form under
the 1933 Act with the SEC covering all of the Shares and the Warrant Shares
(collectively, the "Registrable Securities") for all holders of the Shares and
the Placement Agent Warrants (collectively, the "Registered Holders"), time
being of the essence. The Company will use best efforts to have the Registration
Statement declared effective, and to keep the Registration Statement effective,
until the earlier of (x) three years after the Final Closing Date, (y) the date
when all the Registrable Securities have been sold or (z) the date on which the
Registrable Securities may be sold without any restriction pursuant to the Rule
144. If the Registration Statement is not filed within thirty (30) days after
the Final Closing Date, (i) the Company will pay to each Investor a cash penalty
of two percent (2%) of such Investor's Purchase Price investment (to the extent
accepted) and (ii) the exercise price of the Placement Agent Warrants will be
reduced (and, concomitantly, the aggregate number of Warrant Shares issuable
upon the exercise of the Placement Agent Warrants shall increase) by two percent
(2%), in each case for each thirty (30) day period, or any part thereof beyond
said thirty (30) day period, until the Registration Statement is filed. In
addition, if the Registration Statement is not declared effective within 150
days of the filing date, (i) the Company will pay to each Investor a cash
penalty of two percent (2%) of such Investor's Purchase Price (to the extent
accepted) and (ii) the exercise price of the Placement Agent Warrants will be
reduced (and, concomitantly, the aggregate number of Warrant Shares issuable
upon the exercise of the Placement Agent Warrants shall increase) by two percent
(2%), in each case for each thirty (30) day period, or any part thereof, beyond
such 150 day period, until the Registration Statement is declared effective. The
maximum cash payments to each Investor, and the maximum reduction in the
exercise price of the Placement Agent Warrants (and, concomitantly, the maximum
increase in the aggregate number of Warrant Shares issuable upon the exercise of
the Placement Agent Warrants) pursuant to these provisions is thirty-six percent
(36%) of such Investor's Purchase Price (to the extent accepted) or the
aggregate exercise price of the Placement Agent Warrants (and, concomitantly,
the aggregate number of Warrant Shares), as the case may be.
(b) In the event the Company effects any registration under the 1933 Act of
any Registrable Securities pursuant to Section 7(a) or 7(g) of this Agreement,
the Company shall indemnify, to the extent permitted by law, and hold harmless
each Registered Holder whose Registrable Securities are included in the
registration statement associated with such registration (each, a "Seller"), any
underwriter, any officer, director, employee or agent of any Seller or
underwriter, and each other person, if any, who controls any Seller or
underwriter within the meaning of Section 15 of the 1933 Act, against any
losses, claims, damages, liabilities, judgment, fines, penalties, costs and
expenses, joint or several, or actions in respect thereof (collectively, the
"Claims"), to which each such indemnified party becomes subject, under the 1933
Act or otherwise, insofar as such Claims arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such registration statement or prospectus or any amendment or supplement thereto
or any document filed under a state securities or blue sky law (as amended or
supplemented from time to time, collectively, the "Registration Documents") or
insofar as such Claims arise out of or are based upon the omission or alleged
omission to state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made therein not misleading,
and will reimburse any such indemnified party for any legal or other expenses or
disbursements reasonably incurred by such indemnified party in investigating or
defending any such Claim; provided that the Company shall not be liable in any
such case to a particular indemnified party to the extent such Claim is based
upon an untrue statement or alleged untrue statement of a material fact or
omission or alleged omission of a material fact made in any Registration
Document in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such indemnified party specifically for use in
the preparation of such Registration Document.
(c) In connection with any registration statement in which a Seller is
participating, such Seller, severally and not jointly, shall indemnify, to the
extent permitted by law, and hold harmless the Company, each of its directors,
each of its officers who have signed such registration statement, each other
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act, each other Seller and each underwriter, any officer, director,
employee or agent of any such other Seller or underwriter and each other person,
if any, who controls such other Seller or underwriter within the meaning of
Section 15 of the 1933 Act against any Claims to which each such indemnified
party may become subject under the 1933 Act or otherwise, insofar as such Claims
(or actions in respect thereof) are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Document, or
insofar as any Claims are based upon the omission or alleged omission to state
in any Registration Document a material fact required to be stated therein or
necessary to make the statements made therein not misleading, and will reimburse
any such indemnified party for any legal or other expenses or disbursements
reasonably incurred by such indemnified party in investigating or defending any
such claim; provided, however, that such indemnification or reimbursement shall
be payable only if, and to the extent that, any such Claim arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Document in reliance upon and in
conformity with written information furnished to the Company by such Seller
specifically for use in the preparation thereof.
(d) Any person entitled to indemnification under Section 8(b) or 8(c) of
this Agreement shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Section 8(d), but the
omission of such notice shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
Section 8(b) or 8(c) of this Agreement, except to the extent that such failure
shall materially adversely affect any indemnifying party or its rights
hereunder. In case any action is brought against the indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it chooses, to assume the defense thereof with counsel reasonably satisfactory
to the indemnified party; and, after notice from the indemnifying party to the
indemnified party that it so chooses, the indemnifying party shall not be liable
for any legal or other expenses or disbursements subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that (i) if the indemnifying party
fails to take reasonable steps necessary to defend diligently the Claim within
twenty (20) days after receiving notice from the indemnified party that the
indemnified party believes it has failed to do so; (ii) if the indemnified party
who is a defendant in any action or proceeding which is also brought against the
indemnifying party reasonably shall have concluded that there are legal defenses
available to the indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all indemnified
parties in each jurisdiction, except to the extent any indemnified party or
parties reasonably shall have concluded that there are legal defenses available
to such party or parties which are not available to the other indemnified
parties or to the extent representation of all indemnified parties by the same
counsel is otherwise inappropriate under applicable standards of professional
conduct) and the indemnifying party shall be liable for any reasonable expenses
therefor; provided, that no indemnifying party shall be subject to any liability
for any settlement of a Claim made without its consent (which may not be
unreasonably withheld, delayed or conditioned). If the indemnifying party
assumes the defense of any Claim hereunder, such indemnifying party shall not
enter into any settlement without the consent of the indemnified party if such
settlement attributes liability to the indemnified party.
(e) If for any reason the indemnity provided in Section 8(b) or 8(c) of
this Agreement is unavailable, or is insufficient to hold harmless, an
indemnified party, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the transactions contemplated by this Agreement. If, however, the allocation
provided in the immediately preceding sentence is not permitted by applicable
law, or if the indemnified party failed to give the notice required by Section
8(d) of this Agreement, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the indemnifying party and the indemnified party as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable in respect of any Claim shall be deemed to include any legal or other
expenses or disbursements reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. Notwithstanding the
foregoing, no underwriter or controlling person thereof, if any, shall be
required to contribute, in respect of such underwriter's participation as an
underwriter in the offering, any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligation of any
underwriters to contribute pursuant to this Section 8(e) shall be several in
proportion to their respective underwriting commitments and not joint.
(f) The provisions of Sections 8(b) through 8(e) of this Agreement shall be
in addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
(g) The Registered Holders shall have certain "piggy-back" registration
rights with respect to the Registrable Securities as hereinafter provided:
(1) If, at any time or from time to time on or after the three-year
anniversary of the Final Closing Date, the Company determines to register
Common Stock for its own account for a public offering or for the account
of any of its stockholders to publicly sell their shares of Common Stock,
other than a registration on Form S-1 or S-8 relating solely to employee
stock option or purchase plans, the Company will promptly notify each
Registered Holder of such registration.
(2) If within five (5) days after such notice from the Company a
Registered Holder gives notice to the Company of such Registered Holder's
desires to have all of the Registered Holder's Registrable Securities
included in a registration statement, then the Company shall include such
Registered Holder's Registrable Securities in such registration statement,
at the Company's sole cost and expense, subject to the remaining terms of
this Section 8(g). If a Registered Holder fails to give such notice within
such period, such Registered Holder shall not have the right to have such
Registered Holder's Registrable Securities registered pursuant to such
registration statement.
(3) The Company at its expense will keep such registration effective
for a period of 180 days or until all of the selling securities holders
named in such registration statement relating thereto have completed the
distribution described in such registration statement, whichever first
occurs, and will furnish such number of prospectuses and other documents
incident thereto as such selling securities holders from time to time may
reasonably request.
(4) If a registration statement relates to an underwritten offering,
and the underwriter shall determine in writing that the total number of
shares of Common Stock to be included in the offering, including the
Registrable Securities, shall exceed the amount which the underwriter deems
to be appropriate for the offering, the number of shares of the Registrable
Securities shall be reduced in the same proportion as the remainder of the
shares in the offering and each Registered Holder's Registrable Securities
included in such registration statement will be reduced proportionately.
For this purpose, if other securities in such registration statement are
derivative securities, their underlying shares shall be included in the
computation. The Registered Holders shall enter into such agreements as may
be reasonably required by the underwriters and the Registered Holders shall
pay to the underwriters commissions relating to the sale of their
respective Registrable Securities.
(5) The Registered Holder shall furnish in writing to the Company such
information as the Company shall reasonably require in connection with any
registration statement.
(h) If and whenever the Company is required by the provisions of this
Section 8 to use its best efforts to register any Registrable Securities under
the 1933 Act, the Company shall, as expeditiously as possible under the
circumstances:
(1) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective as soon as possible after
filing and remain effective.
(2) Subject to Section 8(a) of this Agreement, prepare and file with
the SEC such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep
such registration statement current and effective and to comply with the
provisions of the 1933 Act, and any regulations promulgated thereunder,
with respect to the sale or disposition of all Registrable Securities
covered by such registration statement required to effect the distribution
of the securities, but in no event shall the Company be required to do so
for a period of more than three (3) years following the effective date of
such registration statement.
(3) Furnish to the Sellers participating in the offering, applicable
copies (in reasonable quantities) of summary, preliminary, final, amended
or supplemented prospectuses, in conformity with the requirements of the
1933 Act and any regulations promulgated thereunder, and other documents as
reasonably may be required in order to facilitate the disposition of the
securities, but only while the Company is required under the provisions
hereof to keep such registration statement current.
(4) Use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions of the United States as
the Sellers participating in the offering shall reasonably request, and do
any and all other acts and things which may be reasonably necessary to
enable each participating Seller to consummate the disposition of the
Registrable Securities in such jurisdictions.
(5) Notify each Seller selling Registrable Securities, at any time
when a prospectus relating to any such Registrable Securities covered by
such registration statement is required to be delivered under the 1933 Act,
of the Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an 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 the
light of the circumstances then existing, and promptly prepare and furnish
to each such Seller selling Registrable Securities a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(6) As soon as practicable after the effective date of such
registration statement, and in any event within eighteen (18) months
thereafter, make generally available to the Sellers participating in the
offering an earnings statement (which need not be audited) covering a
period of at least twelve (12) consecutive months beginning after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act, including,
at the Company's option, Rule 158 thereunder. To the extent that the
Company files such information with the SEC in satisfaction of the
foregoing, the Company need not deliver the above referenced earnings
statement to the Sellers.
(7) Upon request, deliver promptly to counsel of each Seller
participating in the offering copies of all correspondence between the SEC
and the Company, its counsel or auditors and all memoranda relating to
discussions with the SEC or its staff with respect to such registration
statement and permit each such Seller to do such investigation at such
Seller's sole cost and expense, upon reasonable advance notice, with
respect to information contained in or omitted from such registration
statement as it deems reasonably necessary. Each Seller agrees that it will
use its best efforts not to interfere unreasonably with the Company's
business when conducting any such investigation and each Seller shall keep
any such information received pursuant to this Section confidential.
(8) Provide a transfer agent and registrar located in the United
States for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement.
(9) List the Registrable Securities covered by such registration
statement on such exchanges and/or on the NASDAQ as the Common Stock is
then currently listed upon.
(10) Pay all Registration Expenses (as defined below) incurred in
connection with a registration of Registrable Securities, whether or not
such registration statement shall become effective; provided that each
Seller shall pay all underwriting discounts, commissions and transfer
taxes, and their own counsel and accounting fees, if any, relating to the
sale or disposition of such Seller's Registrable Securities pursuant to
such registration statement. As used herein, "Registration Expenses" means
any and all reasonable and customary expenses incident to performance of or
compliance with the registration rights set forth herein, including,
without limitation, (i) all SEC and stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees; (ii) all fees and
expenses of complying with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities but
no other expenses of or disbursements by the underwriters or their
counsel); (iii) all printing, messenger and delivery expenses; and (iv) the
reasonable fees and disbursements of counsel for the Company and the
Company's independent public accountants.
(i) The Company acknowledges that there is no adequate remedy at law for
failure by it to comply with the provisions of this Section 8 and that such
failure would not be adequately compensable in damages, and therefore agrees
that its obligations and agreements contained in this Section 8 may be
specifically enforced. In the event that the Company shall fail to file such
registration statement when required pursuant to Section 8(a) of this Agreement
or to keep any registration statement effective as provided in this Section 8 or
otherwise fails to comply with its obligations and agreements in this Section 8,
then, in addition to any other rights or remedies the Registered Holders may
have at law or in equity, including, without limitation, the right of
rescission, the Company shall indemnify and hold harmless the Registered Holders
from and against any and all manner or loss which they may incur as a result of
such failure. In addition, the Company shall also reimburse the Registered
Holders for any and all reasonable legal fees, expenses and disbursements
incurred by them in enforcing their rights pursuant to this Section 8,
regardless of whether any litigation was commenced; provided, however, that the
Company shall not be liable for the fees and expenses of more than one law firm,
which firm shall be designated by the Placement Agent.
9. Conditions. The following obligations of the Company shall be satisfied
or fulfilled on or prior to the date of each Closing, unless otherwise agreed to
in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Initial
Closing, (i) a currently-dated good standing certificate or telegram from the
Secretary of State where the Company is incorporated and each other jurisdiction
in which the Company is qualified to do business as a foreign corporation; (ii)
the articles of incorporation (as amended) of the Company, as currently in
effect, certified by the Secretary of State of the state where the Company is
incorporated; (iii) by-laws of the Company certified by the secretary of the
Company; and (iv) certified resolutions of the Board of Directors of the Company
approving this Agreement, the sale of the Common Stock and the Placement Agent
Warrants, and the registration of the Registrable Securities.
(b) There shall have occurred no event which has a Material Adverse Effect
on the Company or any of its businesses, assets, prospects or the Company's
securities since the date of this Agreement.
(c) No litigation or administrative proceeding shall have been threatened
or commenced against the Company which (i) seeks to enjoin or otherwise prohibit
or restrict the consummation of the transactions contemplated by this Agreement
or (ii) if adversely determined, would have a Material Adverse Effect on the
Company or the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate
of its principal executive and financial officers as to the matters set forth in
Sections 9(a), (b) and (c) of this Agreement and to the further effect that (i)
the Company is not in default, in any respect, under any note, loan agreement,
security agreement, mortgage, deed of trust, indenture, contract, alliance
agreement, lease, license, joint venture agreement, other agreement or other
instrument to which it is a party, except as disclosed in the Financial
Statements or the Memorandum and except where such default has not and will not
have a Material Adverse Effect; (ii) the Company's representations and
warranties contained in this Agreement are true and correct in all respects on
such date with the same force and effect as if made on such date, (iii) there
has been no amendment or changes to the Company's articles of incorporation or
by-laws or authorizing resolutions from those delivered pursuant to Section 9(a)
of this Agreement; and (iv) no event has occurred which, with or without the
lapse of time or giving of notice, or both, would constitute a breach of default
thereof by the Company, or would cause acceleration of any obligation of the
Company, or could adversely affect the business, operations, financial condition
or prospects of the Company.
(e) The Placement Agent shall have received the opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, counsel for the Company, dated as of the Closing Date in form and
substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have prepared and filed or delivered to counsel for
filing with the SEC and any states in which such filing is required, a Form D
relating to the sale of the Common Stock and such other documents and
certificates as are required.
(g) Subscriptions for at least the Minimum Amount of Common Stock shall
have been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this
Agreement and not consummate the transactions contemplated by this Agreement as
a result of the failure of the Company to comply with any of its obligations set
forth in this Agreement, this Agreement may be terminated by the Placement Agent
by written notice to the Company at any time prior to the Initial Closing if, in
the Placement Agent's sole judgment, (i) the Company shall have sustained a loss
that is material to the Company, whether or not insured, by reason of fire,
earthquake, flood, accident or other calamity, or from any labor dispute or
court or government action, order or decree; (ii) trading in securities on any
exchange or system shall have been suspended or limited either generally or
specifically with respect to the Common Stock; (iii) material governmental
restrictions have been imposed on trading in securities generally or
specifically with respect to the Common Stock (not in force and effect on the
date of this Agreement); (iv) a banking moratorium shall have been declared by
Federal or New York State authorities; (v) an outbreak of major international
hostilities or other national or international calamity shall have occurred;
(vi) the Congress of the United States or any state legislative body shall have
passed or taken any action or measure, or such bodies or any governmental body
or any authoritative accounting institute, or board, or any governmental
executive shall have adopted any orders, rules or regulations, which the
Placement Agent reasonably believes is likely to have a Material Adverse Effect
on the business, financial condition or financial statements of the Company or
the market for the Common Stock; (vii) the Common Stock shall have been delisted
from the exchange on which it currently listed, or the Company shall have
received notice from such exchange advising the Company of its intention to have
the Common Stock delisted from such exchange, whether conditional or otherwise,
or the Company shall fail to meet the requirements for continued listing on such
exchange; or (viii) there shall have been, in the Placement Agent's judgment, a
material decline in the Dow ▇▇▇▇▇ Industrial Index or the market price of the
Common Stock at any time subsequent to the date of this Agreement.
10. Covenants of the Company. The Company agrees at all times as long as
the Placement Agent Warrants may be exercised, to keep reserved from the
authorized and unissued Common Stock, such number of shares of Common Stock as
may be, from time to time, issuable upon exercise of the Placement Agent
Warrants.
11. Indemnification.
(a) Indemnification by Company. The Company agrees to indemnify and hold
harmless Placement Agent, its officers, directors and agents from and against
any and all loss, liability, claim, damage and expense whatsoever arising out of
(1) a breach or alleged breach by the Company of any warranty set forth in
Section 3 of this Agreement, (2) failure or alleged failure by the Company to
comply with the provisions of Section 3 of this Agreement, (3) claims for
finder's fees or brokerage commissions payable with respect to the transactions
contemplated by this Agreement, except as provided in Section 12 of this
Agreement, or (4) any untrue statement or alleged untrue statement of a material
fact contained in the Offering Materials or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission contained in the material furnished to the Company by
Placement Agent on Placement Agent's behalf, specifically for inclusion therein,
which relates to Placement Agent's activities pursuant to this Agreement.
(b) Indemnification by Placement Agent. Placement Agent agrees to indemnify
and hold harmless the Company (its officers, directors and agents) and each
person, if any, who controls any of the foregoing within the meaning of the 1933
Act to the same extent as the indemnity from the Company described above against
any and all loss, liability, claim, damage and expense whatsoever (or actions in
respect thereto) arising out of or based upon any misrepresentation or alleged
misrepresentation, failure or alleged failure by Placement Agent to comply with
the covenants and agreements set forth in Section 4 of this Agreement.
12. Fees.
(a) As disclosed in the Offering Materials, a fee (the "Success Fee") equal
to 7.2% of the gross proceeds through the sale of the Shares shall be payable to
the Placement Agent.
(b) In addition to the sums payable to the Placement Agent as provided
elsewhere herein, the Placement Agent shall be entitled to receive at the
Closing, as additional compensation for its services, warrants (as amended, or
supplemented from time to time, the "Placement Agent Warrants") with a five (5)
year term for the purchase of an amount of Common Stock equal to nine percent
(9%) of the Shares sold in this offering. The exercise price of the Placement
Agent Warrants will initially be equal to one-hundred twenty percent (120%) of
the closing bid price of the Common Stock on the Final Closing Date, subject to
adjustment as provided in the Placement Agent Warrants.
(c) Upon closing, the Company will reimburse the Placement Agent for up to
$35,000 of its actual and reasonable out-of-pocket expenses incurred in
connection with the offering of the Shares, including fees and expenses of its
counsel.
(d) The Company shall pay any fees required in connection with the
qualification of the sale of the Shares under the state securities or blue sky
laws of any state which the Placement Agent reasonably deems necessary.
(e) All payments in connection with the sale of the Shares shall be made
pursuant to the terms and conditions of the escrow agreement between Placement
Agent and CSC Trust Company of Delaware, an executed copy of which has been
delivered to and acknowledged by the Company.
13. Notices. All notices provided for in this Agreement shall be in writing
signed by the party giving such notice, and delivered personally or sent by
overnight courier or messenger against receipt thereof or sent by registered or
certified mail, return receipt requested, or by facsimile transmission, if
confirmed by mail as provided in this Section 13. Notices shall be deemed to
have been received on the date of personal delivery or facsimile or, if sent by
certified or registered mail, return receipt requested, shall be deemed to be
delivered on the third business day after the date of mailing. Notices shall be
sent to the following addresses:
To the Company:
PURE BIOSCIENCE
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attorney at Law
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Placement Agent:
TAGLICH BROTHERS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address as any party shall designate in the manner provided in
this Section 13.
14. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof and supercedes any and all prior or
contemporaneous oral and prior written agreements and understandings. This
Agreement may not be modified or amended nor may any right be waived except by a
writing which expressly refers to this Agreement, states that it is a
modification, amendment or waiver and is signed by all parties with respect to a
modification or amendment or the party granting the waiver with respect to a
waiver. No course of conduct or dealing and no trade custom or usage shall
modify any provisions of this Agreement.
(b) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within such state. Each party hereby consents to the
exclusive jurisdiction of the Federal and state courts situated in New York
County, New York in connection with any action arising out of or based upon this
Agreement and the transactions contemplated by this Agreement.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective personal representatives, successors and
permitted assigns.
(d) In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
(e) Each party shall, without payment of any additional consideration by
any other party, at any time on or after the date of any Closings take such
further action and execute such other and further documents and instruments as
the other party may request in order to provide the other party with the
benefits of this Agreement.
(f) The captions and headings contained herein are solely for convenience
and reference and do not constitute a part of this Agreement.
(g) All references to any gender shall be deemed to include the masculine,
feminine or neuter gender, the singular shall include the plural and the plural
shall include the singular.
(h) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
PURE BIOSCIENCE TAGLICH BROTHERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President Title: Vice President
EXHIBIT A
Names, Addresses and Social Security
or Employer Identification Number
of Investors Number of Shares
--------------------------------------- ----------------------------