EXHIBIT 10.2
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OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
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THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT is executed
in reliance upon the transaction "safe harbor" afforded by
Regulation S ("Regulation S") as promulgated by the Securities
and Exchange Commission ("SEC"), under the Securities Act of
1933, as amended ("1933 Act").
This Agreement (hereinafter referred to as "Agreement"), is
entered into as of the __ ST day of February, 1997 by and between
Advanced Mammography Systems, Inc. (the "Issuer") and the buyer
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as setforth on page seven hereof (the "Buyer") with reference to
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the following:
NOW, THEREFORE, IN CONSIDERATION of and in reliance upon the
respective representations and warranties, covenants, terms and
conditions herein contained, the parties agree as follows:
1. PURCHASE OF STOCK AND WARRANTS. Buyer shall purchase
169,377 common shares of the Issuer $0.01 par value (the Stock )
of Issuer at $1.23 per share and 169,377 Warrants in the form
attached hereto at a Exercise Price of $1.93 per share (the
Warrant ). The Stock and the Warrants shall be issued under
Regulation S.
2. PAYMENT OF FEES. The Issuer agrees to pay to
InterFirst or its assigns a placement distribution fee of Ten
percent (10%) and the Investors Counsels fees of One and One
Quarter percent (1 1/4)( Fees ) of the gross proceeds in
connection with the sale of the Stock and the exercise of the
Warrant. The Fees shall be paid simultaneous with the funds
being transferred to the Issuer. InterFirst and Investors
Counsel, shall be entitled to advise and notify the Investor and
the Company of any Fees due to InterFirst and Investors Counsel
from the gross proceeds from any of the transactions under this
Agreement. InterFirst and Counsel shall be entitled to submit
directly to such Investor a demand or claim for the payment of
the fees at the closing of and transaction under this Agreement
and if not paid by the Investor then the Company shall pay the
Fees of InterFirst and Investors Counsel, assuming the Company
receives the gross proceeds.
3 SUBSCRIBER REPRESENTATIONS; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
a. Offshore Transaction. Buyer represents and
Warrant to Issuer as follows:
(i) Buyer does not have any of its securities
registered under the Securities Exchange Act of 1934 (the
"Exchange Act") and is not a U.S. Person and is not owned by U.S.
Persons as defined in Regulation S and herein;
(ii) At the time the buy order to purchase the
Stock and Warrant was originated, and at the time this Agreement
was executed and delivered, Buyer was outside the United States;
(iii) No offer to purchase the Stock and Warrant
was made in the United States nor were any "directed selling
efforts" as defined in Rule 902 of Regulation S made in the
United States by Buyer or any of its affiliates;
(iv) Buyer is purchasing the Stock and Warrant
for Buyer's own account and for investment purposes and not with
the view towards distribution. Buyer does not have any contract,
understanding or arrangement with any person to sell, transfer or
grant participation to such person or any third person with
respect to the Stock and Warrant;
(v) All subsequent offers and sales of the Stock
and Warrant shall be made in compliance with Regulation S,
pursuant to registration of the Stock and Warrant under the 1933
Act or pursuant to an exemption from such registration;
(vi) Buyer understands that the Stock and Warrant
are being offered and sold to Buyer in reliance on Regulation S
safe harbor from the registration requirements of the 1933 Act
and that the Issuer is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of Buyer set forth herein in order to determine
the applicability of such safe harbor and the suitability of
buyer to acquire the Stock and Warrant;
(vii) Buyer acknowledges that Buyer has received
and reviewed the information supplied by the Company pursuant to
Section 4 hereof;
(viii) Buyer agrees that from the date hereof
until the forty-first (41st) day after the purchase of the Stock
and Warrant offered pursuant to Regulation S (the "Restrictive
Period"), that the Buyer, or any successor, or any Professional
(as defined in Section 3a(x) hereof) (except for sales of any
Stock and Warrant registered under the 1933 Act or otherwise
exempt from such registration) (a) will not sell the Stock or the
Warrant to a U.S. Person or for the account or benefit of a U.S.
Person or anyone believed to be a U.S. Person, (b) will not
engage in any efforts to sell the Stock or Warrant in the United
States, (c) will send to a Professional acting as agent or
principal, a confirmation or other notice stating that the
Professional is subject to the same restrictions on transfer to
U.S. Persons or for the account of U.S. Persons during the
Restrictive Period as provided herein , (d) has complied with the
"Offering Restrictions" as defined in Section 902(h)(1), and (e)
on and after the forty-first (41st) days after the purchase of
the Stock and Warrants will offer and sell the Stock and Warrants
in compliance with the safe harbor provisions contained in
Regulation S or pursuant to any exemption from registration under
the 1933 Act. Issuer will not honor or register and will not be
obligated to honor or register any transfer in violation of these
provisions; to assure full compliance with the restrictions
placed on the resale of securities offered pursuant to Regulation
S, the Issuer shall staple an attachment to the certificates
evidencing the Stock and Warrant, which shall bear the
restrictive legend attached hereto as Exhibit "A", and provided
the Issuer with a representation certificate certifying
compliance with Regulation S. The Stock and Warrant and the
Common Stock to be issued upon the exercise of the Warrant, shall
not make reference to the restrictive legend attached thereto,
and shall be freely transferable on the books and records of the
Issuer and its Transfer Agent, subject to the restrictions set
forth in this Agreement and in such Warrant. Issuer will not
honor or register, any transfer or exercise in violation of any
provision of the Act.
(ix) For purposes hereof, in general, a "U.S.
Person" means any natural person, resident of the United States;
any partnership or corporation organized or incorporated under
the laws of the United States or any state or territory thereof;
any estate of which any executor or administrator is a U.S.
Person; any trust of which any trustee is a U.S. Person; any
agency or branch of a foreign entity located in the United
States; any nondiscretionary account or similar account, other
than an estate or trust, held by a dealer or other fiduciary for
the benefit or account of a U.S. Person; any discretionary
account or similar account, other than an estate or trust, held
by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States; and any partnership or
corporation if organized or incorporated under the laws of any
foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities and not registered under
the 1933 Act unless it is organized and incorporated and owned by
"accredited investors," as defined under Rule 501(a) under the
1933 Act, who are not natural persons, estates or trusts. "U.S.
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Person" is further defined in Rule 902(o) under the 1933 Act;
(x) A "Professional" is a "distributor" as
defined in Rule 902(c) under the 1933 Act (generally any
underwriter, or other person, who participates, pursuant to a
contractual arrangement, in the distribution of the Stock and
Warrant); a dealer as defined in Section 2(12) of the Exchange
Act (encompassing those who engage in the business of trading or
dealing in securities as agent, broker, or principal); or a
person receiving a selling concession, fee or other remuneration
in respect of the Stock and Warrant sold.
(xi) Buyer acknowledges that at the
time of the purchase, Buyer does not have a short or hedge
position in the Stock, Warrant or the Common Stock or any
component thereof. During the Restrictive Period Buyer shall not
in the United States, effect short sales in the Stock, Warrant or
the Common Stock, nor shall Buyer hedge through short sales,
options or otherwise Buyer's purchase of such Stock, Warrant or
the Common Stock.
b. No Government Recommendation or Approval. Buyer
understands that no Federal, State or foreign governmental agency
has passed on or made any recommendation or endorsement of the
Stock and Warrant.
4. ISSUER REPRESENTATIONS AND COVENANTS.
c. Reporting Company Status. Issuer is a "reporting
company" as defined by Rule 902 of Regulation S. Issuer is in
full compliance, to the extent applicable, with all filing
obligations under Section 12(g) of the Exchange Act.
d. Current Public Information. Issuer has furnished
Buyer with copies of the Issuer's 10K for the fiscal year ended
September 30, 1996, as filed with the SEC, and all 8K's as filed
with the SEC during the last 12 months. There has been no
material adverse changes in the financial condition or prospects
of the Issuer except as disclosed in the filings with the SEC.
e. Offshore Transaction. Issuer has not offered
the Stock and Warrant which are the subject of this Agreement to
any person in the United States, any identifiable groups of U.S.
citizens abroad, or to any U.S. Person as that term is defined in
Regulation S.
f. No Directed Selling Efforts. In regard to the
transaction contemplated by this Agreement, the Issuer has not
conducted any "directed selling efforts" as that term is defined
in Rule 902 of Regulation S nor has Issuer conducted any general
solicitation relating to the offer and sale of the Stock and
Warrant which are the subject of this transaction to persons
resident within the United States or elsewhere.
g. Concerning the Stock and Warrant. The Stock and
Warrant when issued and delivered will be duly and validly
authorized and issued, fully paid and non-assessable and will not
subject the holders thereof to personal liability by reason of
being such holders. There are no preemptive rights of any
shareholder of the Company. The Company has reserved the number
of Common Shares required to be issued to the Buyers upon
purchase of the Stock and upon the exercise of the Warrant based
upon the current trading price of the Company's Common Stock.
h. Subscription Agreement. The Subscription Agreement
has been duly authorized, validly executed and delivered on
behalf of the Issuer and is a valid and binding agreement in
accordance with its terms, subject to general principles of
equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
i. Non-contravention. The execution and delivery of
the Subscription Agreement and the consummation of the issuance
of the Stock and Warrant and the transactions contemplated by the
Subscription Agreement do not and will not conflict with or
result in a breach by the Issuer of any of the terms or provision
of, or constitute a default under, the articles of incorporation
or bylaws of the Issuer or any indenture, mortgage, deed of trust
or other material agreement or instrument to which the Issuer is
a party or by which its or any of its respective properties or
assets are bound, or any existing applicable law, rule or
regulation or any applicable law, rule or regulation or any
applicable decree, judgment or order of any United States Court,
Federal or State regulatory body, administrative agency or other
governmental body having jurisdiction over the Issuer or any of
its properties or assets.
j. Approvals. Issuer is not aware of any
authorization, approval or consent of any governmental body which
is legally required for the issuance and sale of the Stock and
Warrant as contemplated by this Agreement.
i. Continuous Offering. The sale of the Stock and
Warrant pursuant to this Agreement is not a "continuous offering"
as defined in Rule 902(m) or if it is a continuous offering, the
sale of the Stock and Warrant hereunder is the last sale
thereunder and the "Restricted Period" as defined in Rule 902(m)
commences on the Effective Date as hereinafter defined. The
purchase of the Stock and Warrants is part of the sale of an
aggregate of 1,016,260 shares of Stock and 1,016,260 Warrants in
Regulation S placements.
5 SAFE HARBOR; RELIANCE ON REPRESENTATIONS. Buyer
understands that the offer and sale of the Stock and Warrant (or
any components thereof) are not being registered under the 1933
Act. Issuer is relying on the rules governing offers and sales
made outside the United States pursuant to Regulation S and
Buyer's representations hereunder.
6 TRANSFER AGENT INSTRUCTIONS. Issuer's transfer agent
will be instructed to issue one or more certificates representing
the Stock and Warrant without restrictive legend in the name of
Buyer and in such denominations to be specified prior to closing.
Issuer further warrant that no instructions other than these
instructions and instructions for a "stop transfer" instruction
until the end of the Restrictive Period for resales into the
United States have been given to the transfer agent and that such
Stock and Warrant shall otherwise be freely transferable on the
books and records of the Company. Nothing in these Sections,
however, shall affect in any way the Buyer's obligations and
agreement to comply with all applicable securities laws upon
resale of the Stock and Warrant and underlying Common Stock.
Notwithstanding anything herein to the contrary, an attachment
shall be stapled to the certi upon conversion fo the Stock and
exercise of the Warrant, which attachment shall bear the legend
attached hereto as Exhibit A.
7 CLOSING DATE. The date of the issuance and the sale of
the Stock and Warrant (the "Closing") shall be February 6, 1997
(the "Effective Date" or "Closing Date"), or such other mutually
agreed to time and place.
8 CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. Buyer
understands that Issuer's obligation to sell the Stock and
Warrant is conditioned upon:
a. The receipt and acceptance by Issuer of this
Subscription Agreement for all of the Stock and Warrant as
evidenced by execution of this Subscription Agreement by an
authorized person of the Issuer; and
b. Delivery to the Escrow Agent under the Escrow
Agreement by Buyer of immediately available funds as payment in
full for the purchase of the Stock and Warrant.
9 CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE. Issuer
understands that Buyer's obligation to purchase the Stock and
Warrant is conditioned upon:
a. Acceptance by Buyer of this Subscription Agreement
for the sale of the Stock and Warrant as evidenced by execution
of this Subscription Agreement by an authorized person of the
Buyer; and
b. Delivery of the Stock and Warrant without
restrictive legend other than as contained on the attachment
stapled to the certificates evidencing the Stock and Warrant as
described herein.
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Signatures on next page
IN WITNESS WHEREOF, this Offshore Securities Subscription
Agreement was duly executed on the date first written below.
Dated this 6th day of the month of February, 1997.
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
By:_____________________________________
Print Name:
Title:
Accepted this 6th day of the month of February, 1997.
Signature of Buyer:
By:____________________________________
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Exhibit A
"The Securities covered hereby have not been registered under the
Securities Act of 1933, as amended (the "Act") and may not be
offered or sold within the United States or to or for the account
or the benefit of U.S. persons (i) as part of a distribution at
any time or (ii) otherwise until March _____, 1997, except, in
either case, in accordance with Regulation S under the Act.
Terms used above have the meaning give to them by Regulation S."