EXHIBIT 99.1
WARRANT EXERCISE STOCK PURCHASE AGREEMENT
DATED AS OF DECEMBER 20, 2001
AMONG
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
THAT NGO,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, M.D.
AS SELLERS
AND
▇▇▇▇▇▇▇ CAPITAL PARTNERS CORP.
AS AGENT FOR THE PURCHASERS
RELATING TO THE ACQUISITION OF
SHARES OF COMMON STOCK
OF
AMDL, INC.
--------------------------------------------------------------------------------
WARRANT EXERCISE STOCK PURCHASE AGREEMENT
This WARRANT EXERCISE STOCK PURCHASE AGREEMENT, dated as of December 20,
2001 (this "Agreement"), among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, That Ngo, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III, M.D. (collectively, the
"Sellers"), being the holders of warrants to purchase shares of common stock of
AMDL, Inc., a Delaware corporation ("AMDL"), on the one hand, and ▇▇▇▇▇▇▇
Capital Partners Corp., a Florida corporation ("▇▇▇▇▇▇▇"), as agent for the
purchasers to be identified on Schedule 2.1 (collectively, the "Purchasers"), on
the other hand. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ("Escrow Agent") joins as a
party for the purposes of the escrow arrangements set forth in Section 6. AMDL
joins as an additional party for the purposes of the registration provisions set
forth in Section 7.
WITNESSETH
WHEREAS, the Sellers desire to sell an aggregate of up to 450,099 shares
of AMDL Common Stock issuable upon exercise of certain warrants held by the
Sellers (the "Shares") in exchange for an aggregate purchase price of up to
$1,125,247.50 (the "Purchase Price"), on the terms and subject to the conditions
set forth in this Agreement;
WHEREAS, through an arrangement with ▇▇▇▇▇▇▇, UVEST Investment Services,
Inc. ("UVEST") will act as the placement agent for the Sellers in connection
with the sale of the Shares to the Purchasers pursuant to an offering registered
under the Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the Parties hereby agree as follows:
1. CERTAIN DEFINITIONS
The following terms used in this Agreement shall have the meanings
specified below.
"Affiliate" means, as to a specified Person, a Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Person specified.
"Agreement" means this Warrant Exercise Stock Purchase Agreement.
"AMDL" means AMDL, Inc., a Delaware corporation.
"AMDL Common Stock" means the common stock, $.001 par value, of AMDL,
Inc., a Delaware Corporation.
"AMEX" shall mean the American Stock Exchange.
"Closing" and "Closing Date" have the respective meanings given to those
terms in Section 3.1.
"Company" means AMDL and its successors.
"Escrow Agent" means ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, a Minnesota
limited liability partnership.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" means the $.68 per share exercise price of the
Warrants.
"Government" means (a) the government of the United States or the
government of any foreign country recognized by the government of the United
States; (b) the government of any state, province, county, municipality, city,
town or district of the United States, or any foreign country (whose national
government is so recognized); and any multi-county district; and (c) any agency,
department, authority, commission, administration, court, magistrate, tribunal,
arbitrator, instrumentality or political subdivision of, or within the
geographical jurisdiction of, any government described in the foregoing clauses
(a) and (b).
"Holder" shall mean each Person who holds Registrable Securities; and
each of the successors, assigns and transferees of each of such Holder.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Capital Partners Corp.
"Law" means any of the following of, or issued by, any Government, in
effect on or prior to the date hereof, any statute, law, act, ordinance, code,
resolution, rule, regulation, order, guideline, decree, judgment, license,
permit, certificate or certification, registration, concession, grant, franchise
or restriction; and any published official interpretation, or ruling (whether
designated as public or private, substantive or procedural).
"Lien" means any mortgage, lien, security interest, pledge, encumbrance,
restriction on transferability, defect of title, charge or claim of any nature
whatsoever on any property or property interest.
"Net Purchase Price" shall mean the Purchase Price less the Sales
Expenses and the Exercise Price.
"Party" means any one of the Purchasers, or any one of the Sellers,
AMDL, or the Escrow Agent as the context requires.
"Prospectus" shall mean the Prospectus included in the Shelf
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any Prospectus supplement, including
post-effective amendments, in each case including all material incorporated or
deemed to be incorporated by reference therein.
"Purchase Price" has the meaning set forth in Section 2.1(a).
2
"Purchasers" means the persons identified on or before the Closing Date
and identified on Schedule 2.1 to this Agreement.
"Registrable Securities" shall mean the Shares; provided, however, that
any Shares shall cease to be Registrable Securities when they shall have been
sold by a Holder pursuant to an effective Shelf Registration Statement or
pursuant to Rule 144.
"Registration Expenses" shall mean any and all expenses incident to the
performance by the Company of its obligations under this Agreement, including,
but not limited to: (i) all SEC and AMEX registration and filing fees; (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws; (iii) all expenses of printing and distributing the Shelf
Registration Statement, any Prospectus, and any amendments or supplements
thereto; and (iv) the fees and disbursements of counsel for the Company and of
the independent public accountants of the Company.
"Rule 144" means Rule 144 of the General Rules and Regulations
promulgated under the Securities Act or any successor rule.
"Sales Expenses" means an amount equal to 10% of the Purchase Price of
the shares sold hereunder which is payable by the Sellers to UVEST.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Sellers" means the persons identified in the introductory paragraph to
this Agreement.
"Shares" means the up to 398,533 shares of AMDL Common Stock to be
issued to the Sellers upon exercise of the Warrants and sold by the Sellers to
the Purchasers pursuant to this Agreement.
"Shelf Registration Statement" shall mean a registration statement on an
appropriate form under the Securities Act which covers the resale of the
Registrable Securities pursuant to Rule 415 of the General Rules and Regulations
promulgated under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such Shelf Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein and all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"Underwriter" shall have the meaning set forth in Section 7.5(a) hereof.
"UVEST" means UVEST Investment Services, Inc.
"Warrants" means those certain Stock Purchase Warrants issued by AMDL to
the Seller on July 1, 1999.
3
2. SALE AND PURCHASE OF THE SHARES
2.1. Sale and Purchase of Shares.
(a) Subject to the terms and conditions of this Agreement,
at the Closing, the Sellers shall sell to the Purchasers
and the Purchasers shall purchase from the Sellers the
number of Shares set forth opposite such Purchaser's
name on Schedule 2.1 hereto. The price to be paid by the
Purchasers to the Sellers for the Shares shall be $2.50
per share (an aggregate of up to $1,125,247.50) in cash
(the "Purchase Price"). In the event that the Purchasers
desire to purchase less than all of the Shares the
number of Shares sold by each Seller shall be reduced on
a pro rata basis.
(b) At least five (5) business days prior to the Closing
Date, ▇▇▇▇▇▇▇ shall deliver to Escrow Agent an updated
Schedule 2.1 which identifies the Purchasers and each of
the Sellers shall deliver to the Escrow Agent a fully
executed Notice of Exercise of Warrant in the form
attached hereto as Exhibit "A."
(c) At least two (2) business days prior to the Closing
Date, each of the Purchasers shall deliver to the Escrow
Agent, by wire transfer of immediately available funds
to the account designated by the Escrow Agent, the
amounts set forth below their names on Schedule 2.1.
Upon receipt of such funds, and the notices described in
paragraph (b) above, the Escrow Agent shall cause to be
transmitted to AMDL's transfer agent instructions to
issue certificates for the Shares in the names of the
Purchasers for delivery at a Closing.
2.2. Escrow Arrangements. Pursuant to the terms and conditions set
forth in Section 6 below, the Escrow Agent shall administer the
exercise of the Warrants, the receipt distribution of the
Purchase Price and the delivery and transfer of the Shares as
described herein.
2.3. Registration of Shares. Pursuant to the terms and conditions set
forth in Section 7 below, AMDL shall file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Shares.
3. CLOSING
3.1. Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at the offices of the Escrow Agent,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, at 10:00 a.m. local time on February 15, 2002, or at such
other time and place and on such other date, not later than
April 15, 2002 as the Parties shall mutually agree (the "Closing
Date").
3.2. Deliveries.
4
(a) At the Closing, subject to the provisions of this
Agreement, the Escrow Agent shall release and deliver to
each of the Purchasers the certificate or certificates
for the number of Shares indicated for such Purchaser on
Schedule 2.1.
(b) At the Closing, subject to the provisions of this
Agreement, the Escrow Agent shall release and deliver to
each of the Sellers the amount of Net Purchase Price
indicated for such Seller on Schedule 2.1.
(c) At the Closing, the Escrow Agent shall release and
deliver to UVEST the total Sales Expenses as set forth
in Schedule 2.1
(d) At the Closing, the Escrow Agent shall release and
deliver to AMDL the total Exercise Price as set forth on
Schedule 2.1.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the Sellers. Each of the
Sellers hereby severally and not jointly represents and warrants
to the Purchasers as follows:
(a) Authority. Each of the Sellers represents and warrants
that he or she has the power and authority to enter into
this Agreement and to perform such Seller's obligations
hereunder and that this Agreement has been duly and
validly executed and delivered by such Seller and
constitutes a valid and binding agreement of such
Seller, enforceable against such Seller in accordance
with its terms.
(b) Consents, Approvals and Filings. Except for the
provisions of Section 7, there is no requirement
applicable to the Sellers or AMDL to make any filing or
registration with, or to obtain any permit,
authorization, consent or approval of, any Government as
a condition to the lawful execution, delivery and
performance of this Agreement and the consummation of
the transactions contemplated herein.
(c) Title to Shares. Each of the Sellers represents and
warrants that such Seller owns beneficially and of
record, free and clear of any Liens, all of the Shares
being transferred to the Purchasers by such Seller and
that, upon delivery of the payment for such Shares as
herein provided, such Seller will convey good title
thereto, free and clear of any Liens.
(d) No Broker. Except for the Sales Expenses as set forth in
Schedule 2.1, none of the Sellers have employed or
retained any broker, consultant or other intermediary in
connection with the transactions contemplated by this
Agreement who would be entitled to a broker's, finder's
or similar fee or commission in connection herewith.
5
4.2. Representations and Warranties of the Purchasers. On or before
the Closing Date, each of the Purchasers shall execute a
counterpart signature hereto and shall represent and warrant to
the Sellers as follows:
(a) Authority. Each of the Purchasers has the power and
authority to enter into this Agreement and to perform
such Purchase's obligations hereunder and that this
Agreement has been duly and validly executed and
delivered by such Purchaser and constitutes a valid and
binding agreement of such Purchaser, enforceable against
such Purchaser in accordance with its terms.
(b) Access to Information. Each Purchaser represents that
such Purchaser has been given full and complete access
to AMDL for the purpose of obtaining such information as
such Purchasers or its qualified representative has
reasonably requested in connection with the decision to
purchase the Shares. Each Purchaser represents that such
Purchaser has been afforded the opportunity to ask
questions of officers of AMDL regarding its business
prospects and the Shares, all as such Purchaser of such
Purchaser's qualified representative have found
necessary to make an informal investment decision to
purchase the Shares.
(c) Restricted Securities. In the event that the Shelf
Registration Statement has not been declared effective
by the SEC on or before the Closing Date, each Purchaser
represents and warrants that:
(i) Each of the Purchasers has been advised that the
Shares have not been registered under the
Securities Act or any other applicable
securities laws and that the Shares are being
offered and sold pursuant to Section 4(1)
exemption from registration under the Securities
Act, and that the Sellers' reliance upon the
Section 4(1) exemption from registration is
predicted in part on such Purchaser's
representations as contained herein. Each
Purchaser acknowledges that the Shares will be
"restricted securities" as defined by Rule 144
promulgated pursuant to the Securities Act. None
of the Shares may be resold in the absence of an
effective registration thereof under the
Securities Act and applicable state securities
laws unless an applicable exemption from
registration is available.
(ii) Each Purchaser represents that such Purchaser is
acquiring the Shares for such Purchaser's own
account, and not as nominee or agent, for
investment purposes only and not a view to, or
for sale in connection with, a distribution, as
that term is used in Section 2(11) of the
Securities Act, in a manner which would require
registration under the Securities Act or any
state securities laws.
6
(iii) Each Purchaser understands and acknowledges that
the certificates representing the Shares will
bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION THEREOF UNDER THE SECURITIES ACT
OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION OR ANY OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR ACTS.
(iv) Each Purchaser acknowledges that an investment
in the Shares is not liquid and is transferable
only under limited conditions. Each Purchaser
acknowledges that such securities must be held
indefinitely unless they are subsequently
registered under the Securities Act or an
exemption from such registration is available.
Each Purchaser is aware of the provisions of
Rule 144 promulgated under the Securities Act,
which permits limited resale of restricted
securities subject to the satisfaction of
certain conditions and that such Rule is not now
available and, in the future, may not become
available for resale of any of the Shares.
(v) Each Purchaser is an "accredited investor" as
defined under Rule 501 under the Securities Act.
(d) Purchaser Sophistication and Ability to Bear Risk of
Loss. Each Purchaser acknowledges that it is able to
protect its interests in connection with the acquisition
of the Shares and can bear the economic risk of
investment in the Shares without producing a material
adverse change in such Purchaser's financial condition.
Each Purchaser otherwise has such knowledge and
experience in financial or business matters that such
Purchaser is capable of evaluating the merits and risks
of the investment in the Shares.
(e) Purchases by Groups. Each Purchaser represents, warrants
and covenants that it is not acquiring the Shares as
part of a group within the meaning of Section 13(d)(3)
of the Securities Act of 1934, as amended.
(f) No Broker. Except for the Sales Expenses as set forth in
Schedule 2.1, the Purchaser has not employed or retained
any broker, consultant or other intermediary in
connection with the transactions contemplated by this
7
Agreement who would be entitled to a broker's, finder's
or similar fee or commission in connection herewith.
5. CONDITIONS TO CLOSING
5.1. Conditions to Obligations of the Purchasers. The obligation of
the Purchasers to consummate the purchase of the Shares under
this Agreement is subject to the satisfaction of the following
express conditions, each of which may be waived by the
Purchasers.
(a) Representations and Warranties. The representations and
warranties of the Sellers contained herein and in all
agreements, documents and instruments executed and
delivered pursuant hereto shall be true and correct in
all material respects on and as of the Closing Date as
if made on and as of the Closing Date.
(b) Compliance with this Agreement. The Sellers shall have
performed and complied in all material respects with all
agreements, covenants, obligations and conditions
contained herein which are required to be performed or
complied with by the Sellers before or at the Closing.
(c) Closing Documents. The Sellers shall have delivered to
the Purchaser all documents to be delivered to the
Purchasers under Section 3.2 hereof.
5.2. Conditions to Obligations of the Sellers. The obligation of the
Sellers to consummate the sale of the Shares is subject to the
satisfaction of the following express conditions, each of which
may be waived by the Sellers.
(a) Representations and Warranties. The representations and
warranties of the Purchasers contained herein and in all
agreements, documents and instruments executed and
delivered pursuant hereto shall be true and correct in
all material respects on and as of the Closing Date as
if made on and as of the Closing Date.
(b) Compliance with this Agreement. The Purchasers shall
have performed and complied in all material respects
with all agreements, covenants, obligations and
conditions contained herein which are required to be
performed or complied with by the Purchasers before or
at the Closing.
(c) Purchase Price. The Purchasers shall have delivered the
Purchase Price to the Escrow Agent pursuant to Section
2.1 hereof
6. ESCROW ARRANGEMENTS
6.1. Appointment of Escrow Agent. The Sellers and the Purchasers
hereby appoint the Escrow Agent as escrow agent to perform the
duties specified in this Agreement.
8
6.2. Concerning the Escrow Agent
(a) The Escrow Agent shall not be under any duty to give the
property held by it hereunder any greater degree of care
than it gives its own similar property.
(b) This Escrow Agreement expressly sets forth all the
duties of the Escrow Agent with respect to any and all
matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against
the Escrow Agent. The Escrow Agent shall not be bound by
the provisions of any agreement between the parties
except this Agreement.
(c) The Escrow Agent shall not be liable, except for its own
gross negligence or willful misconduct and, except with
respect to claims based upon such gross negligence or
willful misconduct that are successfully asserted
against the Escrow Agent, AMDL, the Sellers and the
Purchasers shall indemnify and hold harmless the Escrow
Agent from and against any and all losses, liabilities,
claims, actions, damages and expenses, including,
without limitation, reasonable attorneys' fees and
disbursements, arising out of or in connection with this
Agreement.
(d) The Escrow Agent shall be entitled to rely upon any
order, judgment, certification, demand, notice,
instrument or other writing delivered to it hereunder
without being required to determine the authenticity or
the correctness of any fact stated therein or the
propriety or validity of the service thereof. The Escrow
Agent may act in reliance upon any instrument or
signature believed by it to be genuine and may assume
that any person purporting to give receipt or advice or
make any statement or execute any document in connection
with the provisions hereof has been duly authorized to
do so. The Escrow Agent shall be fully protected in any
action taken hereunder in good faith and shall not be
responsible for any failure or inability of the Parties
to honor any of the provisions of this Agreement. The
Escrow Agent shall be under no liability to the other
parties to any document (except this Agreement) or to
anyone else by reason of any failure on the part of any
such party to perform such party's obligations under
such agreement.
(e) The Escrow Agent may act pursuant to the advice of
counsel with respect to any matter relating to this
Agreement and shall not be liable for any action taken
or omitted in accordance with such advice.
(f) The Escrow Agent does not have any interest in the
property deposited hereunder but is serving as escrow
holder only and having only possession thereof. AMDL
shall pay or reimburse the Escrow Agent upon request for
any and all expenses, if any, incurred by the Escrow
Agent in connection with this Agreement and transfer
taxes or other taxes relating to the
9
Account incurred in connection herewith and shall
indemnify and hold harmless the Escrow Agent from any
amounts that it is obligated to pay in the way of such
expenses and taxes.
(g) The Escrow Agent makes no representation as to the
validity, value, or genuineness of any security or other
document or instrument held by or delivered to it.
(h) The Escrow Agent may at any time resign as such by
delivering the Account to any successor Escrow Agent
designated by a majority of the Sellers in writing, or
to any court of competent jurisdiction, whereupon the
Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with this
Agreement. The resignation of the Escrow Agent will take
effect on the earlier of (a) the appointment of a
successor (including a court of competent jurisdiction)
or (b) the day which is 30 days after the date of
delivery of its written notice of resignation to AMDL.
If at that time the Escrow Agent has not received a
designation of a successor Escrow Agent, the Escrow
Agent's sole responsibility after that time shall be to
safekeep the escrowed property until receipt of a
designation of successor Escrow Agent or a written
disposition instruction by a majority of the Sellers or
a final order of a court of competent jurisdiction.
(i) In the event of any disagreement resulting in adverse
claims or demands being made in connection with the
escrowed property, or in the event that the Escrow Agent
in good faith is in doubt as to what action it should
take hereunder, the Escrow Agent shall be entitled to
retain the escrowed property until the Escrow Agent
shall have received (i) a final non-appealable order of
a court of competent jurisdiction directing delivery of
the escrowed property or (ii) a written agreement
executed by the parties to the dispute directing
delivery of the escrowed property, in which event the
Escrow Agent shall disburse the escrowed property in
accordance with such order or agreement. Any court order
shall be accompanied by a legal opinion by counsel for
the presenting party satisfactory to the Escrow Agent to
the effect that said opinion is final and
non-appealable.
7. REGISTRATION STATEMENT
7.1. Shelf Registration; Suspension of Use of Prospectus.
(a) AMDL shall prepare and, not later than January 15, 2002,
shall file with the SEC, and thereafter shall use its
best efforts to cause to be declared effective under the
Securities Act as soon as possible thereafter, a Shelf
Registration Statement relating to the offer and sale of
the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution
described in the Shelf Registration Statement,
10
which shall be substantially as set forth on Schedule
7.1(a) attached hereto and made a part hereof.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be used
by the Holders for a period of 120 days from the Closing
Date or such shorter period that will terminate when all
the Registrable Securities have been sold pursuant to
the Shelf Registration Statement or Rule 144, if
applicable, (in any such case, such period being called
the "Shelf Registration Period"), provided, however, for
the purposes of this Section 7.1(b), if the Holders are
the Sellers, the Company shall only be required to keep
the Shelf Registration Statement continuously effective
until April 15, 2002. The Company shall be deemed not to
have used its best efforts to keep the Shelf
Registration Statement effective during the requisite
period if it voluntarily takes any action that would
result in Holders of Registrable Securities not being
able to offer and sell such securities pursuant to the
Shelf Registration Statement during that period, unless
such action is (i) required by applicable law or (ii)
pursuant to Section 7.1(c) hereof, and, in either case,
so long as the Company promptly thereafter complies with
the requirements of Section 7.2(i) hereof, if
applicable.
(c) The Company may suspend the use of the Shelf
Registration Statement for a period not to exceed 45
days in any 12 month period for valid business reasons
(not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of
assets, public filings with the SEC, pending corporate
developments and similar events.
7.2. Registration Procedures. In connection with any Shelf
Registration Statement, the following shall apply:
(a) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement
thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain 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, and (iii)
any Prospectus forming part of the Shelf Registration
Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
11
(b) (1) The Company shall advise the Holders and, if
requested by such Holder, confirm such advice in
writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the SEC
and when the Shelf Registration Statement or any
post-effective amendment thereto has become
effective; and
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement
or the Prospectus included therein or for
additional information.
(2) The Company shall advise the Holders and, if
requested by any such Holder, confirm such advice in
writing:
(i) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of
the qualification of the securities covered by
the Shelf Registration Statement for sale in any
jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus
pursuant to Section 7.1(c) hereof or of the
happening of any event that requires the making
of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such
date, the statements therein are not misleading
and do not omit to state a material fact
required to be stated therein or necessary to
make the statements therein not misleading
(which advice shall be accompanied by an
instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(c) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the
effectiveness of any Shelf Registration Statement at the
earliest possible time.
(d) The Company shall furnish to each Holder, without
charge, at least one copy of the Shelf Registration
Statement in the form declared effective by the SEC and
any post-effective amendment thereto, including
financial statements and schedules (if incorporated by
reference), and, if the Holder so requests in writing,
all exhibits (including those incorporated therein by
reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder, without charge, as many copies
of the Prospectus (including each
12
preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the
Company consents to the use, in compliance with the
terms of this Agreement, of the Prospectus or any
amendment or supplement thereto by each of the Holders
of Registrable Securities in connection with the
offering and sale thereof.
(f) Prior to any offering of Registrable Securities pursuant
to any Shelf Registration Statement, the Company shall
register or qualify or cooperate with the Holders
thereof and their respective counsel in connection with
the registration or qualification of such securities for
offer and sale under the securities or blue sky laws of
such jurisdictions in the United States as any such
Holders reasonably request in writing, and do any and
all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the
Registrable Securities; provided, however, that the
Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so
qualified or to take any action which would subject it
to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(g) The Company shall use its reasonable best efforts to as
promptly as practicable list the Registrable Securities
on each national securities exchange on which the Shares
are then listed, subject to official notice of issuance.
(h) The Company shall cooperate with the Holders to
facilitate the timely preparation and delivery of
certificates representing the Registrable Securities
free of any restrictive legends and in such
denominations and registered in such names as Holders
may request prior to sales of Registrable Securities
pursuant to the Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by
paragraph (b)(2)(iii) above, the Company shall, if
required pursuant to the Securities Act or paragraph
(b)(2)(iii) above, promptly prepare a post-effective
amendment to the Shelf Registration Statement or an
amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities,
the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading.
(j) The Company may require each Holder to furnish to the
Company with such information regarding the Holder and
the distribution of such securities as the Company may
from time to time reasonably require for inclusion in
such Shelf Registration Statement. Any Holder who fails
to provide such information within a reasonable time
after receiving such
13
request shall not be entitled to use the Prospectus.
(k) The Company shall enter into such agreements and take
all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the
Registrable Securities.
(l) The Company shall (i) make reasonably available for
inspection by the Holders, and any attorney, accountant
or other agent retained by the Holders, all relevant
financial and other records, pertinent corporate
documents and properties of the Company and its
subsidiaries in connection with such Shelf Registration
Statement as is customary for similar due diligence
examinations; and (ii) cause the Company's officers
directors and employees to supply all relevant
information reasonably requested by the Holders or any
such attorney, accountant or agent in connection with
such Shelf Registration Statement as is customary for
similar due diligence examinations; provided, however,
that any information that is designated in writing by
the Company, in good faith, as confidential at the time
of delivery of such information shall be kept
confidential by the Holders or any such attorney,
accountant or agent, unless disclosure thereof is made
in connection with a court proceeding or required by
law, or such information has become available (not in
violation of this agreement) to the public generally or
through a third party without an accompanying obligation
of confidentiality, and the Company shall be entitled to
request that such Holders sign a confidentiality
agreement to the foregoing effect.
7.3. Use of Prospectus. The Holders may not use the Prospectus, in
each case after notice by the Company of the applicable event,
(A) during any period of suspension referred to in Section
7.1(c), (B) during any period when a stop order is in effect as
referred to in Section 7.2(b)(2)(i), (C) in the applicable
jurisdiction during any period when the qualification of the
Registrable Securities has been suspended in such jurisdiction,
as referred to in Section 7.2(b)(2)(ii), and (D) during any
suspension period referred to in Section 7.2(b)(2)(iii).
7.4. Registration Expenses. The Company shall be responsible for, and
shall pay in due course, all Registration Expenses. The Company
shall not be responsible for the payment of any underwriting or
brokerage fees and discounts.
7.5. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement, the
Company agrees to indemnify and hold harmless each
Holder, each Affiliate of such Holder, the directors,
partners, officers, employees and agents of each such
Holder and each person who controls any such Holder
within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or
14
any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration
Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or Prospectus,
or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i)
the Company will not be liable in any case to the extent
that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with
written information furnished to the Company by or on
behalf of any such Holder specifically for inclusion
therein, (ii) the Company will not be liable to any
indemnified party under this indemnity agreement with
respect to any Shelf Registration Statement or
Prospectus to the extent that any such loss, claim,
damage or liability of such indemnified party results
from the use of the Prospectus during a period when the
use of the Prospectus has been suspended in accordance
with Section 7.1(c) hereof, provided that Holders
received prior notice of such suspension; and (iii) the
Company shall not be liable to any indemnified party
with respect to any preliminary Prospectus to the extent
that any such loss, claim, damage or liability of such
indemnified party results from the fact that such
indemnified party sold Registrable Securities to a
person as to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy
of the Prospectus or of the Prospectus as then amended
or supplemented in any case where such delivery is
required by the Securities Act, if the loss, claim,
damage or liability of such indemnified party results
from an untrue statement or omission of a material fact
contained in the preliminary Prospectus which was
corrected in the Prospectus or in the Prospectus as then
amended or supplemented. This indemnity agreement will
be in addition to any liability which the Company may
otherwise have. The Company also agrees to indemnify and
provide contribution to each person who may be deemed to
be an underwriter (for purposes of the Securities Act)
with respect to the Registrable Securities
("Underwriters"), their officers and directors, and each
person who controls each such Underwriter, on
substantially the same basis as that of the
indemnification of and contribution to the Holders
provided in this Section 7.5(a).
15
(b) By its participation in the Shelf Registration
Statement, each Holder shall be deemed to have agreed to
indemnify and hold harmless (i) the Company, (ii) each
of its directors, (iii) each of its officers who signs
such Shelf Registration Statement and (iv) each person
who controls the Company within the meaning of either
the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such
Holder, but only with respect to written information
relating to such Holder furnished to the Company by or
on behalf of such Holder specifically for inclusion in
the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have. Each
Holder shall also be deemed to have agreed to indemnify
and contribute to each Underwriter, their officers and
directors, and each person who controls each such
Underwriter, on substantially the same basis as that of
the indemnification of and contribution to the Company
provided in this Section 7.5(b). Anything in this
Agreement contained to the contrary notwithstanding, the
liability of each Holder for indemnification or
contribution hereunder shall be limited to the amount of
proceeds received by such Holder in the offering giving
rise to such liability.
(c) Promptly after receipt by an indemnified party under
this Section 7.5 of notice of the commencement of any
action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying
party under this Section 7.5, notify the indemnifying
party in writing of the commencement thereof; but the
failure so to promptly notify the indemnifying party
will not relieve the indemnifying party from liability
under Section 7.5(a) or 7.5(b) hereof unless and to the
extent that it is materially prejudiced thereby. The
indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in
any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party
shall have the right to employ separate counsel
(including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use
of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably
concluded that there may be legal defenses available to
it and/or other indemnified parties which are different
from or additional to those available to the
indemnifying party,
16
(iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the
indemnifying party. An indemnified party shall not
settle or compromise any action for which it seeks
indemnification or contribution hereunder without the
prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld. An
indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each
indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in Section
7.5(a) or 7.5(b) is unavailable to or insufficient to
hold harmless an indemnified party for any reason, then
each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to
the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred
in connection with investigating or defending same)
(collectively "losses") to which such indemnified party
may be subject in such proportion as is appropriate to
reflect the relative benefits received by such
indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Shelf
Registration Statement which resulted in such losses.
(e) The provisions of this Section 7.5 shall remain in full
force and effect regardless of any investigation made by
or on behalf of any Holder or the Company or any other
persons who are entitled to indemnification pursuant to
the provisions of this Section 7.5, and shall survive
the sale by a Holder of Registrable Securities pursuant
to the Shelf Registration Statement.
8. MISCELLANEOUS
8.1. Governing Law; Submission to Jurisdiction. This Agreement shall
be construed in accordance with and governed by the laws of the
State of California (other than the choice of law principles
thereof). To the extent permitted by applicable law, the Parties
hereby irrevocably submit in any suit, action or proceeding
arising out of or related to this Agreement or any of the
transactions contemplated hereby to the jurisdiction of the
United States District Court for the Central District of
California and the jurisdiction of any court of the State of
California located in
17
Orange County and waive any and all objections to jurisdiction
that they may have under the laws of the State of California or
the United States.
8.2. Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned by
any Party without the prior written consent of the other
Parties. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding
upon, the successors and permitted assigns of the Parties
hereto.
8.3. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the Parties with regard to
the subjects hereof and thereof and this Agreement replaces and
supersedes all prior agreements and understandings between the
Parties with respect to such subject matter.
8.4. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered
by hand, transmitted via facsimile or mailed by first-class
mail, postage prepaid, addressed:
(a) if to the Purchasers at the address(es) supplied by
▇▇▇▇▇▇▇ at the Closing.
(b) if to the Sellers:
▇▇▇▇▇▇▇ Capital Partners Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
(c) if to the Escrow Agent:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(d) if to AMDL:
AMDL, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other addresses as a Party shall have furnished to the other Party in
writing.
8.5. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to the Parties upon any breach or
default by the another Party under this Agreement, shall impair
any such right, power or remedy of the non-breaching Parties,
nor shall it be construed to be a waiver of any such breach or
18
default, or any acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on
the part of any Party of any breach or default under this
Agreement or any waiver on the part of another Party of any
provisions or conditions of this Agreement, must be in writing
and shall be effective only to the extent specifically set forth
in writing. All remedies, either under this Agreement, or by law
or otherwise afforded to a Party, shall be cumulative and not
alternative.
8.6. Publicity. No Party shall issue any public statement or
communication regarding this Agreement or the transactions
contemplated hereby without the consent of the other Party,
which consent shall not be unreasonably withheld or delayed,
except that any Party may make such disclosures as are required
to comply with applicable law, in which case that Party will
notify the other Parties of such disclosure before it is made.
Notwithstanding the foregoing, after the Closing, the Purchaser
shall be permitted to make any public statement or communication
regarding this Agreement, the transactions contemplated hereby
or the Companies without the consent of the Sellers.
8.7. Titles and Subtitles. The titles of the sections, paragraphs and
subparagraphs of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
8.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
8.9. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent
permitted by law) not invalidate or render unenforceable such
provision in any other jurisdiction.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed on its behalf either by itself or by one of its officers thereunto
duly authorized, all as of the date and year first above written.
SELLERS:
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
That Ngo
19
--------------------------------
▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III, M.D.
AMDL:
AMDL, Inc.
a Delaware corporation
By:
------------------------------
ESCROW AGENT:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
By:
------------------------------
▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ CAPITAL PARTNERS CORP.
a _________________ corporation
By:
------------------------------
20
SCHEDULE 2.1
SELLERS
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. That ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. Total
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Rounds ▇▇▇▇▇▇▇▇
III, M.D.
-------------------------------------------------------------------------------------------------------------------------------
# of Shares
Sold 92,322 117,910 54,504 20,250 48,900 116,213 450,099
-------------------------------------------------------------------------------------------------------------------------------
Gross
Purchase Price $ 230,805.00 $ 294,775.00 $ 136,260.00 $ 50,625.00 $ 122,250.00 $ 290,532.50 $1,125,247.50
-------------------------------------------------------------------------------------------------------------------------------
Exercise
Price $ 62,778.96 $ 80,178.80 $ 37,062.72 $ 13,770.00 $ 33,252.00 $ 79,024.84 $ 306,067.32
-------------------------------------------------------------------------------------------------------------------------------
Sales
Expenses $ 23,080.50 $ 29,477.50 $ 13,626.00 $ 5,062.50 $ 12,225.00 $ 29,053.25 $ 112,524.75
-------------------------------------------------------------------------------------------------------------------------------
Net Purchase
Price $ 144,945.54 $ 185,118.70 $ 85,571.28 $ 31,792.50 $ 76,773.00 $ 182,454.41 $ 706,655.43
-------------------------------------------------------------------------------------------------------------------------------
PURCHASERS
-------------------------------------------------------------------------------------------------------------------------------
[Name] [Name] [Name] Total
-------------------------------------------------------------------------------------------------------------------------------
# of Shares Purchased 450,099
-------------------------------------------------------------------------------------------------------------------------------
Purchase Price $1,125,247.50
-------------------------------------------------------------------------------------------------------------------------------
21
SCHEDULE 7.1(a)
PLAN OF DISTRIBUTION
The Registrable Securities may be sold by the Holders from time to time to or
through persons who may be deemed to be underwriters within the meaning of the
Securities Act, directly to other purchasers, or through agents. The Shelf
Registration Statement is not the exclusive means for resales of Registrable
Securities (e.g., they may be sold pursuant to Rule 144). The sale of the
Registrable Securities may be effected from time to time in one or more
transactions at a fixed price or prices (which may be changed), or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, or at negotiated prices, on such national securities exchange on
which the Registrable Securities may be listed or have unlisted trading
privileges, or in negotiated transactions, or in a combination of such methods
of sale.
22