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EXHIBIT 10.4
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SPECTRX, INC.
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Note and Warrant
Purchase Agreement
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November 6, 1995
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TABLE OF CONTENTS
Page
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1. The Notes and the Warrants. . . . . . . . . . . . . . . . . . 1
1.1 The Notes. . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 The Warrants . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Place and Date of Closing. . . . . . . . . . . . . . . . 1
1.4 Delivery . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Representations and Warranties of the Company . . . . . . . . 1
2.1 Organization and Standing. . . . . . . . . . . . . . . . 1
2.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Capitalization . . . . . . . . . . . . . . . . . . . . . 2
2.4 Authorization. . . . . . . . . . . . . . . . . . . . . . 2
3. Representations and Warranties of Investors . . . . . . . . . 3
3.1 Binding Obligation . . . . . . . . . . . . . . . . . . . 3
3.2 Investment Experience. . . . . . . . . . . . . . . . . . 3
3.3 Investment Intent. . . . . . . . . . . . . . . . . . . . 3
3.4 Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . 3
3.5 Discussions with Management. . . . . . . . . . . . . . . 3
4. Conditions to Closing . . . . . . . . . . . . . . . . . . . . 3
4.1 Conditions to Obligations of the Investors . . . . . . . 3
4.2 Conditions to Obligations of the Company . . . . . . . . 4
5. Subsequent Purchase By ▇▇▇▇▇▇▇ Medical Ventures . . . . . . . 4
6. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 4
6.1 Waivers and Amendments . . . . . . . . . . . . . . . . . 4
6.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . 5
6.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . 5
6.4 Successors and Assigns . . . . . . . . . . . . . . . . . 5
6.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . 5
6.6 Notices, etc.. . . . . . . . . . . . . . . . . . . . . . 5
6.7 Payment of Fees and Expenses . . . . . . . . . . . . . . 5
6.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . 6
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TABLE OF CONTENTS
(CONTINUED)
EXHIBITS Page
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A Schedule of Investors
B Form of Convertible Promissory Note
C Form of Stock Purchase Warrant
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SPECTRX, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
This Agreement is made as of November 6, 1995, among SpectRx, Inc., a
Delaware corporation (the "Company"), with its principal office at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and the investors set forth on the Schedule of
Investors attached hereto as Exhibit A (the "Investors").
1. The Notes and the Warrants.
1.1 The Notes. Each Investor severally agrees, on the terms and
conditions specified in this Agreement, to lend to the Company the sum set
forth in Column 1 of Exhibit A opposite such Investor's name (individually a
"Loan" and collectively the "Loans") at the Closing (as defined below). Each
Investor's loan shall be evidenced by a convertible promissory note
(individually a "Note" and collectively the "Notes") dated as of the date of
the Closing in the form of Exhibit B attached hereto.
1.2 The Warrants. Each Investor severally agrees, on the terms and
conditions specified in this Agreement, to purchase, for the warrant purchase
price set forth in Column 2 of Exhibit A opposite such Investor's name, a
warrant in the form of Exhibit C attached hereto (individually a "Warrant" and
collectively the "Warrants") with an aggregate exercise price as set forth
opposite such investor's name in Column 3 of Exhibit A.
1.3 Place and Date of Closing. The closing of these transactions (the
"Closing") will be held at the offices of Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ at 3:00 p.m. on November 6, 1995, or
at such other time and place as the parties shall mutually agree (the "Closing
Date"). At any time on or before the 120th day following the Closing, the
Company may sell additional Notes and Warrants to the Investors or to other
investors. Any such sales shall be made on the terms and conditions set forth
in this Agreement, and any Notes and Warrants sold shall be deemed to be
"Notes" and "Warrants" sold pursuant to this Agreement, and each such
additional investor shall be deemed to be an "Investor" for all purposes under
this Agreement.
1.4 Delivery. At the Closing, the Company will deliver to each
Investor a Note in the principal amount set forth opposite such Investor's name
in Column 1 of Exhibit A, and a Warrant with an aggregate exercise price as set
forth opposite such Investor's name in Column 3 of Exhibit A. At the Closing,
each Investor shall deliver to the Company the amount of such Investor's loan
and the amount of the warrant purchase price as set forth opposite such
Investor's name in Columns 1 and 2, respectively, of Exhibit A by check or wire
transfer.
2. Representations and Warranties of the Company.
2.1 Organization and Standing. The Company is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Company has all
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requisite corporate power and authority to own its properties and assets and to
carry on its business as presently conducted. The Company is qualified to do
business and is in good standing as a foreign corporation in Georgia. The
Company has not qualified to do business as a foreign corporation in any other
jurisdiction. The failure to be so qualified will not have a material adverse
effect on the Company's business as now conducted.
2.2 Subsidiaries. The Company does not presently control, directly or
indirectly, or have an ownership interest in any other corporation,
partnership, business trust, association or other business entity.
2.3 Capitalization. The authorized capital stock of the Company
consists of 10,000,000 shares of Common Stock and 7,120,000 shares of Preferred
Stock, of which 3,560,000 shares are designated as Series A Preferred Stock and
3,560,000 shares are designated Series A1 Preferred Stock. Immediately prior to
the Closing, 1,973,500 shares of Common Stock and 3,103,784 shares of Series A
Preferred Stock will be outstanding. All of the outstanding shares of Common
Stock and Series A Preferred Stock are duly authorized, validly issued, fully
paid and nonassessable. Immediately prior to the Closing, there will be
outstanding warrants to purchase 12,000 shares of the Company's Common Stock
and 360,000 shares of Series A Preferred Stock. The Company has granted a right
of first refusal to certain of the holders of Series A Preferred Stock pursuant
to a Series A Preferred Stock Purchase Agreement dated February 5, 1993 (the
"Series A Agreement"). The Company has 700,000 shares reserved for future
issuance pursuant to the Company's 1995 Incentive Stock Option Plan. The
Company has issued options to purchase 458,351 shares. There are no other
preemptive or other outstanding rights, subscriptions, options, warrants,
calls, contracts, demands, commitments, convertible securities, conversion
rights or agreements for the purchase or acquisition from the Company of any
shares of its capital stock or other securities of the Company. All of the
outstanding shares of Common Stock and Series A Preferred Stock of the Company
have been duly and validly issued in compliance with federal and state
securities laws.
2.4 Authorization. All corporate action on the part of the Company,
its directors and stockholders necessary for the sale and issuance of the
Notes, Warrants, the equity securities into which the Notes and Warrants are
convertible and exercisable (collectively the "Securities") and the performance
of the Company's obligations under this Agreement, the Notes and the Warrants
will be taken prior to the Closing. Each of this Agreement, the Notes and the
Warrants is a valid, binding and enforceable obligation of the Company, subject
to applicable bankruptcy, insolvency, reorganization or similar laws relating
to or affecting the enforcement of creditor's rights and to the availability of
the remedy of specific performance. The execution and delivery of the
Agreement, the Notes and the Warrants and the performance by the Company of its
terms do not violate, conflict with or result in a material breach of (i) the
Company's Certificate of Incorporation, as amended through the Closing Date;
(ii) the Company's Bylaws; (iii) any judgment, order or decree of any court or
arbitrator to which the Company is a party; or (iv) any contract, undertaking,
indenture or other agreement or instrument by which the Company is now bound or
to which it is now a party. The Company is not subject to any judgment, order
or decree of any court or arbitrator. Except for notices required or permitted
to be filed with certain state and federal securities commissions, which
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notices the Company agrees to file on a timely basis, the execution, delivery
and performance by the Company of this Agreement, the Notes and the Warrants in
compliance with their respective provisions do not require any governmental
consent or approval.
3. Representations and Warranties of Investors. Each Investor, for
that Investor alone, represents and warrants to the Company upon the
acquisition of the Note and the Warrant, upon conversion of the Note and upon
exercise of the Warrant as follows:
3.1 Binding Obligation. Each of this Agreement, the Note and the
Warrant is a valid, binding and enforceable obligation of the Investor, subject
to applicable bankruptcy, insolvency, reorganization or similar laws relating
to or affecting the enforcement of creditor's rights and to the availability of
the remedy of specific performance.
3.2 Investment Experience. The Investor is either an accredited
investor within the meaning of Regulation D prescribed by the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Act") or, by virtue of the Investor's experience in evaluating and investing
in private placement transactions of securities in companies similar to the
Company, the Investor is capable of evaluating the merits and risks of the
Investor's investment in the Company and has the capacity to protect the
Investor's own interests.
3.3 Investment Intent. The Investor is acquiring the Securities for
investment for the Investor's own account and not with a view to, or for resale
in connection with, any distribution thereof. The Investor understands that the
Securities have not been registered under the Act by reason of a specific
exemption from the registration provisions of the Act that depends upon, among
other things, the bona fide nature of the investment intent as expressed
herein.
3.4 Rule 144. The Investor acknowledges that the Securities must be
held indefinitely unless subsequently registered under the Act, or unless an
exemption from such registration is available. The Investor is aware of the
provisions of Rules 144 and 144A promulgated under the Act that permit limited
resale of securities purchased in a private placement subject to the
satisfaction of certain conditions.
3.5 Discussions with Management. The Investor has had an opportunity
to discuss the Company's business, management, and financial affairs with the
Company's management and to review the Company's facilities.
4. Conditions to Closing.
4.1 Conditions to Obligations of the Investors. The Investor's
obligations at the Closing are subject to the fulfillment, on or prior to the
Closing Date, of all of the following conditions, any of which may be waived in
whole or in part by the Investors:
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(a) The representations and warranties made by the Company in
Section 2 shall be true and correct when made, and shall be true and correct on
the Closing Date with the same force and effect as if they had been made on and
as of the same date.
(b) Except for the notices required or permitted to be filed
after the Closing Date with certain federal and state securities commissions,
the Company shall have obtained all governmental approvals required in
connection with the lawful sale and issuance of the Securities.
(c) At the Closing, the sale and issuance by the Company, and
the purchase by the Investors, of the Securities shall be legally permitted by
all laws and regulations to which the Investors or the Company are subject.
(d) All corporate and other proceedings in connection with the
transactions contemplated at the Closing and all documents and instruments
incident to such transaction shall be reasonably satisfactory in substance and
form to the Investors and the Investors shall have received all such
counterpart originals or certified or other copies of such documents as they
may reasonably request.
4.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Securities at the Closing is subject to the
fulfillment to the Company's satisfaction on or prior to the Closing Date of
the following conditions, any of which may be waived in whole or in part by the
Company:
(a) Except for the notices required or permitted to be filed
after the Closing Date with certain federal and state securities commissions,
the Company shall have obtained all consents, approvals, permits and waivers
required in connection with the lawful sale and issuance of the Securities.
(b) At the Closing, the sale and issuance by the Company, and
the purchase by the Investors, of the Securities shall be legally permitted by
all laws and regulations to which the Investors or the Company are subject.
5. Subsequent Purchase By ▇▇▇▇▇▇▇ Medical Ventures. ▇▇▇▇▇▇▇ Medical
Ventures 1995 L.P., a Delaware limited partnership, an Investor hereunder,
hereby covenants and agrees that, within five (5) days after the Company and
Fibre Optics Medical Products, Inc. ("FOMP") have entered into an agreement
pursuant to which the Company will purchase substantially all of the assets of
FOMP, ▇▇▇▇▇▇▇ will grant an additional $250,000 Loan to the Company pursuant to
the terms of this Agreement.
6. Miscellaneous.
6.1 Waivers and Amendments. With the written consent of the record
holders of more than 50% of the shares issuable upon exercise of the Warrants
then outstanding, the obligations
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of the Company and the rights of the holders of the Securities under this
Agreement, the Notes and the Warrants may be waived (either generally or in a
particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter
into a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
the Notes and the Warrants; provided, however, that no such waiver or
supplemental agreement shall reduce the aforesaid percentage of the shares
issuable upon exercise of the Warrants which is required to consent to any
waiver or supplemental agreement. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated orally, but only by a
signed statement in writing.
6.2 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Delaware as such laws are applied to agreements
between Delaware residents entered into and to be performed entirely within
Delaware.
6.3 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Investor and
the Closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by
or on behalf of the Company pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the Company hereunder as of the date of such certificate or
instrument.
6.4 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
6.5 Entire Agreement. This Agreement (including the exhibits attached
hereto) and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
6.6 Notices, etc. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, overnight delivery
service or U.S. mail, in which event it may be mailed by first-class, certified
or registered, postage prepaid, addressed (i) if to a Investor, at such
Investor's address set forth in the Schedule of Investors, or at such other
address as such Investor shall have furnished the Company in writing, or (ii)
if to the Company, at its address set forth at the beginning of this Agreement,
or at such other address as the Company shall have furnished to the Investor
and each such other holder in writing.
6.7 Payment of Fees and Expenses. The Company and each of the
Investors shall each bear their own expenses incurred with respect to this
transaction.
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6.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
SPECTRX, INC.
By:
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Title:
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INVESTORS:
▇▇▇▇▇▇▇ MEDICAL VENTURES 1995 L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇/Dover Limited
Partnership, General Partner
By: Wilmington Securities, Inc.,
Its Sole General Partner
By:
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Title:
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NORO-▇▇▇▇▇▇▇ PARTNERS II, L.P.
A GEORGIA LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ & Company, II,
General Partner
By:
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▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
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POWERVISION, INC.
By:
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Title:
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▇▇▇▇▇▇ ▇▇▇▇▇
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SIGNATURE PAGE TO
NOTE AND WARRANT PURCHASE AGREEMENT
November 6, 1995
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▇▇▇▇ ▇▇▇▇▇▇, M.D.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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SIGNATURE PAGE TO
NOTE AND WARRANT PURCHASE AGREEMENT
November 6, 1995
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EXHIBIT A
SCHEDULE OF INVESTORS
Number of Shares
Warrant Purchasable
Name Note Amount Purchase Price Under Warrant
-------------------------------------- ------------- ------------- ----------------
FIRST CLOSING
▇▇▇▇▇▇▇ Medical Ventures 1995 L.P. $250,000.00 $ 5,000.00 75,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Noro-▇▇▇▇▇▇▇ Partners II, L.P. $250,000.00 $ 5,000.00 75,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇. ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
----------- ----------- -----------
FIRST CLOSING TOTAL $500,000.00 $ 10,000.00 150,000
SECOND CLOSING
Dr. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 11,275.00 $ 225.00 3,383
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, M.D 25,000.00 500.00 7,500
The ▇▇▇▇ Eye Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D 25,000.00 500.00 7,500
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 100,000.00 2,000.00 30,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 59,804.00 1,196.00 17,941
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ 24,500.00 490.00 7,350
Marco Technologies
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Number of Shares
Warrant Purchasable
Name Note Amount Purchase Price Under Warrant
-------------------------------------- ------------- ------------- ----------------
PowerVision, Inc. 50,000.00 1,000.00 15,000
Genesis Building
3rd Floor
Grand Cayman
Cayman Islands
British West Indies
▇▇▇▇▇▇ ▇▇▇▇▇ 24,500.00 490.00 7,350
▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 100,982.00 2,019.64 30,295
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ 5,000.00 100.00 1,500
Dicon
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 50,000.00 1,000.00 15,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇ 100,000.00 2,000.00 30,000
c/o ▇▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 25,000.00 500.00 7,500
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 25,000.00 500.00 7,500
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 10,000.00 200.00 3,000
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 50,000.00 1,000.00 15,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Number of Shares
Warrant Purchasable
Name Note Amount Purchase Price Under Warrant
-------------------------------------- ------------- ------------- ----------------
▇▇▇▇▇ ▇▇▇▇▇▇ 50,000.00 1,000.00 15,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 50,000.00 1,000.00 15,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Medical Ventures 1996, L.P. 98,040.00 1,960.00 29,412
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Noro-▇▇▇▇▇▇▇ Partners II, L.P. 98,040.00 1,960.00 29,412
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇. ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
============= ============= =======
SECOND CLOSING TOTAL $ 982,141.00 $ 19,640.64 294,643
============= ============= =======
COMBINED TOTAL $1,482,141.00 $ 29,640.64 444,643
15
EXHIBIT B
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION THEREOF. THE SECURITIES
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
AND QUALIFICATION WITHOUT, EXCEPT UNDER CERTAIN SPECIFIC LIMITED CIRCUMSTANCES,
AN OPINION OF COUNSEL FOR THE HOLDER, CONCURRED IN BY COUNSEL FOR THE COMPANY
THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
SPECTRX, INC.
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
Palo Alto, California
November 6, 1995
1. Principal and Interest
SPECTRX, INC. (the "Company"), a Delaware corporation, for value
received, hereby promises to pay to the order of or holder ("Payee") in
lawful money of the United States at the address of Payee set forth below, the
principal amount of , together with simple interest at the rate of ten
percent (10%) per annum.
The principal of and accrued interest on this Note is due and payable
thirty (30) days after written demand for such payment has been made by Payee,
provided, however, that no such demand may be made prior to November 6, 1996.
This Note may be prepaid without penalty, in whole or in part, at any time.
Upon payment in full of all principal and interest payable hereunder,
this Note shall be surrendered to the Company for cancellation.
2. Subordination
(a) "Senior Indebtedness" means the principal of and premium, if any,
and interest on indebtedness of the Company for money borrowed from commercial
banks, equipment lessors or other financial institutions under a secured or
unsecured line of credit, term loan or equipment lease.
16
(b) The Company agrees and the holder of each Note, by acceptance
thereof, agrees, expressly for the benefit of the present and future holders of
Senior Indebtedness, that, except as otherwise provided herein, upon (i) an
event of default under any Senior Indebtedness, or (ii) any dissolution,
winding up, or liquidation of the Company, whether or not in bankruptcy,
insolvency or receivership proceedings, the Company shall not pay, and the
holder of such Note shall not be entitled to receive, any amount in respect of
the principal and interest of such Note unless and until the Senior
Indebtedness shall have been paid or otherwise discharged. Upon (1) an event of
default under any Senior Indebtedness, or (2) any dissolution, winding up or
liquidation of the Company, any payment or distribution of assets of the
Company, which the holder of this Note would be entitled to receive but for the
provisions hereof, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution directly to the holders of Senior
Indebtedness ratably according to the aggregate amounts remaining unpaid on
Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of Senior Indebtedness. Subject to the payment in
full of the Senior Indebtedness and until this Note is paid in full, the holder
of this Note shall be subrogated to the rights of the holders of the Senior
Indebtedness (to the extent of payments or distributions previously made to the
holders of Senior Indebtedness pursuant to this paragraph 2(b) to receive
payments or distributions of assets of the Company applicable to the Senior
Indebtedness.
(c) This Section 2 is not intended to impair, as between the Company,
its creditors (other than the holders of Senior Indebtedness) and the holder of
this Note, the unconditional and absolute obligation of the Company to pay the
principal of an interest on the Note or affect the relative rights of the
holder of this Note and the other creditors of the Company, other than the
holders of Senior Indebtedness. Nothing in this Note shall prevent the holder
of this Note from exercising all remedies otherwise permitted by applicable law
upon default under the Note, subject to the rights, if any, of the holders of
Senior Indebtedness in respect to cash, property or securities of the Company
received upon the exercise of any such remedy.
3. Conversion.
(a) The outstanding principal balance of this Note and all interest
accrued and unpaid thereon shall be automatically converted upon the closing of
the Company's next equity financing (the "Next Financing") involving the
receipt by the Company of more than $5,000,000 (including amounts received on
conversion of debt) into the securities issued in the next equity financing
(the "Securities") at the purchase price paid for the Securities by the
investors in the Next Financing; provided, however that if the closing of the
Next Financing has not occurred by 5:00 p.m. Pacific Time on November 6, 1996,
the outstanding principal balance of this Note and all interest accrued and
unpaid thereon shall be, upon the election of the Payee, converted into shares
of Common Stock of the Company at a conversion price of $1.00 per share.
(b) Upon automatic conversion of this Note, the outstanding principal
and accrued interest of the Notes shall be converted automatically without any
further action by the holder and whether or not the Note is surrendered to the
Company or its transfer agent. The Company shall not be obligated to issue
certificates evidencing the shares of the securities issuable upon conversion
-2-
17
unless such Notes are either delivered to the Company or its transfer agent, or
the holder notifies the Company or its transfer agent that such Note has been
lost, stolen or destroyed and executes an agreement satisfactory to the Company
to indemnify the Company from any loss incurred by it in connection with such
Note. The Company shall, as soon as practicable after such delivery, or such
agreement and indemnification, issue and deliver at such office to such holder
of such Note, a certificate or certificates for the securities to which the
holder shall be entitled and a check payable to the holder in the amount of any
cash amounts payable as the result of a conversion into fractional shares of
the Securities. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of closing of the transaction
causing automatic conversion. The person or persons entitled to receive
securities issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such securities on such date.
4. Attorneys Fees. If the indebtedness represented by this Note or any
part thereof is collected in bankruptcy, receivership or other judicial
proceedings or if this Note is placed in the hands of attorneys for collection
after default, Company agrees to pay, in addition to the principal and interest
payable hereunder, reasonable attorneys' fees and costs incurred by Payee.
SPECTRX, INC.
By:
------------------------------------
Title:
---------------------------------
-3-
18
EXHIBIT C
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.
No. STOCK PURCHASE WARRANT
To Purchase Shares of Common Stock of
SPECTRX, INC.
THIS CERTIFIES that, for value received, (the "Investor"), is entitled,
upon the terms and subject to the conditions hereinafter set forth, at any time
on or after the date hereof and on or prior to November 6, 2000, but not
thereafter, to subscribe for and purchase, from SPECTRX, INC. a Delaware
corporation (the "Company"), _______________ shares of Common Stock. The
purchase price per share shall be equal to twenty percent (20%) of the price
per share of equity securities paid in the Company's next private offering of
equity securities, the aggregate gross proceeds from which exceeds $5,000,000
(whether in one transaction or in a series of transactions). The purchase price
and the number of shares for which the Warrant is exercisable shall be subject
to adjustment as provided herein.
1. Title of Warrant. Prior to the expiration hereof and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company,
referred to in Section 2 hereof, by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant together with the
Assignment Form annexed hereto properly endorsed.
2. Exercise of Warrant. The purchase rights represented by this Warrant
are exercisable by the registered holder hereof, in whole or in part, at any
time before the close of business on November 6, 2000 by the surrender of this
Warrant and the Subscription Form annexed hereto duly executed at the office of
the Company, in Norcross, Georgia (or such other office or agency of the
Company as it may designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of the Company),
and upon payment of the purchase price of the shares thereby purchased (by cash
or by check or bank draft payable to the order of the Company or by
cancellation of indebtedness of the Company to the holder hereof, if any, at
the time of exercise in an amount equal to the purchase price of the shares
thereby purchased); whereupon the holder of this Warrant shall be entitled to
receive a certificate for the number of shares of Common Stock so
19
purchased. The Company agrees that if at the time of the surrender of this
Warrant and purchase the holder hereof shall be entitled to exercise this
Warrant, the shares so purchased shall be and be deemed to be issued to such
holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been exercised as aforesaid.
Certificates for shares purchased hereunder shall be delivered to the
holder hereof within a reasonable time after the date on which this Warrant
shall have been exercised as aforesaid.
The Company covenants that all shares of Common Stock which may be issued
upon the exercise of rights represented by this Warrant will, upon exercise of
the rights represented by this Warrant, be fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such
issue).
3. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon the exercise
of this Warrant, an amount equal to such fraction multiplied by the then
current price at which each share may be purchased hereunder shall be paid in
cash to the holder of this Warrant.
4. Charges, Taxes and Expenses. Issuance of certificates for shares of
Common Stock upon the exercise of this Warrant shall be made without charge to
the holder hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the holder of this Warrant or in such name or names as may be directed by
the holder of this Warrant; provided, however, that in the event certificates
for shares of Common Stock are to be issued in a name other than the name of
the holder of this Warrant, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the holder
hereof; and provided further, that upon any transfer involved in the issuance
or delivery of any certificates for shares of Common Stock, the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse
it for any transfer tax incidental thereto.
5. No Rights as Shareholders. This Warrant does not entitle the holder
hereof to any voting rights or other rights as a stockholder of the Company
prior to the exercise thereof.
6. Exchange and Registry of Warrant. This Warrant is exchangeable, upon
the surrender hereof by the registered holder at the above-mentioned office or
agency of the Company, for a new Warrant of like tenor and dated as of such
exchange.
The Company shall maintain at the above-mentioned office or agency a
registry showing the name and address of the registered holder of this Warrant.
This Warrant may be surrendered for exchange, transfer or exercise, in
accordance with its terms, at such office or agency of the Company,
-2-
20
and the Company shall be entitled to rely in all respects, prior to written
notice to the contrary, upon such registry.
7. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor and dated as of such cancellation,
in lieu of this Warrant.
8. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or a Sunday or shall be a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day not a
legal holiday.
9. Early Termination and Dilution.
(a) Merger, Sale of Assets, etc. If at any time the Company proposes
to (i) effect a merger, reorganization or sale of substantially all of the
assets of the Company in which the stockholders of the Company immediately
prior to the transaction will hold less than 50% of the surviving entity (or
its parent) immediately after the transaction, or (ii) effect a registered
public offering of the Company's shares, then the Company shall give the holder
of this Warrant thirty days notice of the proposed effective date of such
transaction and if the Warrant has not been exercised by the effective date of
such transaction it shall terminate.
(b) Reclassification, etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise, change
any of the securities to which purchase rights under this Warrant exist into
the same or a different number of securities of any class or classes, this
Warrant shall thereafter be to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such subdivision, combination, reclassification or other
change. If shares of the Company's Common Stock are subdivided or combined into
a greater or smaller number of shares of Common Stock, the purchase price under
this Warrant shall be proportionately reduced in case of subdivision of shares
or proportionately increased in the case of combination of shares, in both
cases by the ratio which the total number of shares of Common Stock to be
outstanding immediately after such event bears to the total number of shares of
Common Stock outstanding immediately prior to such event.
(c) Cash Distributions. No adjustment on account of cash dividends or
interest on the Company's Common Stock or other securities purchasable
hereunder will be made to the purchase price under this Warrant.
-3-
21
(d) Authorized Shares. The Company covenants that during the period
the Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of
Common Stock upon the exercise of any purchase rights under this Warrant. The
Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of the
Company's Common Stock upon the exercise of the purchase rights under this
Warrant.
10. Miscellaneous.
(a) Issue Date. The provisions of this Warrant shall be construed and
shall be given effect in all respect as if it had been issued and delivered by
the Company on the date hereof. This Warrant shall be binding upon any
successors or assigns of the Company. This Warrant shall constitute a contract
under the laws of the State of Delaware and for all purposes shall be construed
in accordance with and governed by the laws of said state.
(b) Restrictions. The holder hereof acknowledges that the Common
Stock acquired upon the exercise of this Warrant may have restrictions upon its
resale imposed by state and federal securities laws.
(c) Waivers and Amendments. With the consent of the Holders (as
defined below) holding rights to purchase more than 50% of the shares issuable
upon exercise of the then outstanding Warrants (as defined below), the
obligations of the Company and the right of the Holders may be waived (either
generally or in a particular instance, either retroactively or prospectively
and either for a specified period of time or indefinitely), and with the same
consent the Company may enter into a supplementary agreement for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Warrants; provided, however, that no such waiver or
supplemental agreement shall reduce the aforesaid percentage which is required
for consent to any waiver or supplemental agreement, without the consent of all
of the Holders of the then outstanding Warrants. As used in this Section 10(c),
(i) the "Warrants" shall be the warrants issued pursuant to the Company's Note
and Warrant Purchase Agreement of even date herewith, as amended before or
after the date hereof, and (ii) the "Holders" shall be the record holders of
the Warrants.
(d) Investment Representation Statement. If requested by the Company,
the Holder, upon exercise of this Warrant, agrees to execute an investment
representation statement containing representations substantially similar to
those set forth in Section 3 of the Company's Note and Warrant Purchase
Agreement of even date herewith.
-4-
22
IN WITNESS WHEREOF, SPECTRX, INC. has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: November 6, 1995
SPECTRX, INC.
By
-----------------------------
Title
---------------------------
-5-
23
NOTICE OF EXERCISE
To: SPECTRX, INC.
(1) The undersigned hereby elects to purchase ____________ shares of
Common Stock of SPECTRX, INC. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price in full, together with all
applicable transfer taxes, if any.
(2) Please issue a certificate of certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
--------------------------
(Name)
-------------------------
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
-------------------------- --------------------------------
(Date) (Signature)
-6-
24
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
-------------------------------------------------------------------
(Please Print)
whose address is
--------------------------------------------------
(Please Print)
------------------------------------------------------------------
Dated: ______________, 19__.
Holder's Signature:
---------------------
Holder's Address:
---------------------
-----------------
Signature Guaranteed:
--------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
