FORM OF SECURITY PURCHASE AGREEMENT
EXHIBIT
4.11
FORM OF
SECURITY PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT, dated as of the date of acceptance set forth
below, is entered into by and between AMERICAN BIO MEDICA CORPORATION, a New
York corporation, with headquarters located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Company"), and the undersigned (the "Buyer").
WITNESSETH:
WHEREAS,
the Company and the Buyer are executing and delivering this Agreement in
accordance with and in reliance upon the exemption from securities registration
afforded by Rule 506 under Regulation D ("Regulation D") as promulgated by the
United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act"), and/or Section 4(2) of the
1933 Act; and
WHEREAS,
the Company has delivered to Buyer and Buyer acknowledges receipt of a copy of
the Confidential Private Placement Offering Memorandum, dated July 7, 2008,
bearing identification number ___________ (together with all exhibits and any
amendments or supplements thereto, the “Disclosure Document”); and
WHEREAS,
the Buyer wishes to purchase, upon the terms and subject to the conditions of
this Agreement, 10% Subordinated Convertible Debentures Series A of the Company
(the "Debentures"), which will be convertible into shares of Common Stock, $0.01
par value per share of the Company (the "Common Stock"), upon the terms and
subject to the conditions of such Debentures (the Common Stock and the
Debentures sometimes referred to herein as the "Securities"), and subject to
acceptance of this Agreement by the Company;
NOW
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
Capitalized
terms used herein shall have the same meanings as are ascribed to such terms in
the Disclosure Document unless otherwise defined herein.
2. AGREEMENT
TO PURCHASE; PURCHASE PRICE.
a. Purchase.
The undersigned hereby agrees to purchase from the Company Series A Debentures,
in the principal amount set forth on the signature page of this Agreement,
having the terms and conditions and being in the form attached hereto as Annex
I, out of a total offering of up to $1,500,000 of the Series A & Series B
Debentures. The purchase price for the Series A Debentures (the “Purchase
Price”) shall be as set forth on the signature page hereto and shall be payable
in United States Dollars.
b. Form
of Payment. The Buyer shall pay the purchase price for the Debentures by
delivering immediately available good funds in United States Dollars to ▇▇▇▇▇▇▇
Research, Inc. (the “Placement Agent”) in an amount equal to the principal
amount of Debentures being so purchased. Promptly following payment by the Buyer
to the Placement Agent of the purchase price of the Debentures, the Placement
Agent shall deliver the Debentures duly executed on behalf of the Company to the
Buyer.
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c. Closing
Date. The Closing Date shall be that date designated by the Placement Agent for
the delivery by the Company to the Placement Agent of the executed Series A
Debentures and the Private Placement Memoranda. The Closing Date shall not be
more than fourteen (14) days after the date of the Series A Debenture Placement
Agreement.
d. Series
A Completion Date. The Series A Completion Date shall be that date on which the
Placement Agent shall have notified the Company in writing that (i) it has
placed (and to the best of its knowledge, the Company has accepted the placement
of) $750,000 in principal amount of Series A Debentures, or (ii) after having
used its best efforts, it has placed all of the Series A Debentures that it is
able to place with investors willing to purchase the same; or (b) the Company
shall have notified the Placement Agent in writing that it is exercising the
Company's Limitation Right (as defined in the Series A Debenture Placement
Agreement).
e. The
Buyer understands that the funds which accompany this Purchase Agreement will be
held in escrow by the Placement Agent, in accordance with Securities and
Exchange Commission Rule 15c2-4, and will be returned promptly, together with
any net interest earned and received thereon, in the event that at least
$250,000 in principal amount of Debentures are not subscribed for and accepted
and the payments therefore are not received by July 28, 2008, unless such date
is extended by mutual agreement of the Company and the Placement
Agent.
3. BUYER
REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION; INDEPENDENT
INVESTIGATION.
The Buyer
represents and warrants to, and covenants and agrees with, the Company as
follows:
a. Without
limiting Buyer's right to sell the Common Stock pursuant to the Registration
Statement (as defined below), the Buyer is purchasing the Debentures and will be
acquiring the shares of Common Stock issuable upon conversion of the Debentures
(the “Shares”) for its own account for investment only and not with a view
towards the public sale or distribution thereof and not with a view to or for
sale in connection with any distribution thereof;
b. The
Buyer is (i) an "accredited investor" as that term is defined in Rule 501(a) of
Regulation D issued under the 1933 Act and (ii) experienced in making
investments of the kind described in this Agreement and the related documents,
(iii) able to understand and appreciate the risks of such investments, and, by
reason of the business and financial experience of its officers (if an entity)
and professional advisors (who are not affiliated with or compensated in any way
by the Company or any of its affiliates or selling agents), to protect its own
interests in connection with the transactions described in this Agreement, and
the related documents, and (iv) able to afford the entire loss of its investment
in the Securities;
c. All
subsequent offers and sales of the Debentures and the Shares by the Buyer shall
be made pursuant to registration of the Shares under the 1933 Act or pursuant to
an exemption from registration;
d. The
Buyer understands that the Debentures are being offered and sold, and the Shares
are being offered, to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Buyer's
compliance with, the representations, warranties, agreements, acknowledgements
and understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Debentures and to receive an offer of the Shares;
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e. The
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Debenture and the offer of the Shares, which have
been requested by the Buyer. The Buyer and its advisors, if any, have been
afforded the opportunity to ask questions of the Company and have received
complete and satisfactory answers to any such inquiries. Without limiting the
generality of the foregoing, the Buyer has also had the opportunity to obtain
and to review the Company's SEC Documents (as defined in Paragraph 4.g
below).
f. The
Buyer understands that its investment in the Securities involves a high degree
of risk;
g. The
Buyer understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Securities;
h. This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Buyer and is a valid and binding agreement of the Buyer enforceable in
accordance with its terms, subject as to enforceability to general principles of
equity and to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors' rights generally.
i. Neither
the Buyer, nor any affiliate of the Buyer, will enter into, any put option,
short position, or other similar position with respect to the Debentures or the
Shares.
j. Notwithstanding
the provisions hereof or of the Debentures, in no event, unless otherwise
provided herein, shall the holder be entitled to convert any Debenture to the
extent that, after such conversion, the sum of (1) the number of shares of
Common Stock beneficially owned by the Buyer and its affiliates (other than
shares of Common Stock which may be deemed beneficially owned through the
ownership of the unconverted portion of the Debenture), and (2) the number of
shares of Common Stock issuable upon the conversion of the Debenture with
respect to which the determination of this proviso is being made, would result
in beneficial ownership by the Buyer and its affiliates of more than 4.99% of
the outstanding shares of Common Stock. For purposes of the proviso to the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, the Company and Buyer agree that until the
Company either obtains shareholder approval of the issuance of the shares of
Common Stock upon conversion of the Debentures and exercise of the Warrants
herein described, or an exemption from NASDAQ’s corporate governance rules as
they may apply to such issuable shares, the Buyer may not and will not convert
the Debentures into more than 19.9% of the shares of Company's Common Stock
outstanding on the date hereof (the "Common Share Limit").
4. COMPANY
REPRESENTATIONS, ETC.
The
Company represents and warrants to the Buyer that:
a. Concerning
the Shares. The Company’s Certificate of Incorporation grants no preemptive
rights to any stockholder of the Company to acquire the Common
Stock.
b. Reporting
Company Status. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York, and has the
requisite corporate power to own its properties and to carry on its business as
now being conducted. The Company is duly qualified as a foreign corporation to
do business and is in good standing in each jurisdiction where the nature of the
business conducted or property owned by it makes such qualification necessary
other than those jurisdictions in which the failure to so qualify would not have
a material and adverse effect on the business, operations, properties, prospects
or condition (financial or otherwise) of the Company. The Company has registered
its Common Stock pursuant to Section 12 of the Exchange Act, and the Common
Stock is listed and traded on the NASDAQ Capital Market. The Company shall
promptly provide to holders of the Debentures copies of any notices it receives
regarding the continued eligibility of the Common Stock for listing on the
NASDAQ Capital Market.
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c. Authorized
Shares. The Company has sufficient authorized and unissued Shares as may be
reasonably necessary to effect the conversion of the Debentures. The Shares have
been duly authorized and, when issued upon conversion of the Debentures, will be
duly and validly issued, fully paid and non-assessable and will not subject the
holder thereof to personal liability by reason of being such
holder.
d. Securities
Purchase Agreement; Registration Rights Agreement and Stock. This Agreement and
the Registration Rights Agreement, the form of which is attached hereto as Annex
II (the "Registration Rights Agreement"), and the transactions contemplated
thereby, have been duly and validly authorized by the Company, this Agreement
has been duly executed and delivered by the Company and this Agreement is, and
the Registration Rights Agreement, when executed and delivered by the Company,
will be, valid and binding agreements of the Company enforceable in accordance
with their respective terms, subject as to enforceability to general principles
of equity and to bankruptcy, insolvency, moratorium, and other similar laws
affecting the enforcement of creditors' rights generally; and the Debentures
will be duly and validly authorized and, when executed and delivered on behalf
of the Company in accordance with this Agreement, will be valid and binding
obligations of the Company in accordance with their terms, subject to general
principles of equity and to bankruptcy, insolvency, moratorium, or other similar
laws affecting the enforcement of creditors' rights generally.
e. Non-contravention.
The execution and delivery of this Agreement and the Registration Rights
Agreement by the Company, the issuance of the Securities, and the consummation
by the Company of the other transactions contemplated by this Agreement, the
Registration Rights Agreement, and the Debentures do not and will not conflict
with or result in a breach by the Company of any of the terms or provisions of,
or constitute a default under (i) the articles of incorporation or by-laws of
the Company, (ii) any indenture, mortgage, deed of trust, or other material
agreement or instrument to which the Company is a party or by which it or any of
its properties or assets are bound, including any listing agreement for the
Common Stock except as herein set forth, (iii) to its knowledge, any existing
applicable law, rule, or regulation or any applicable decree, judgment, or (iv)
to its knowledge, any order of any court, United States federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company or any of its properties or assets, except such
conflict, breach or default which would not have a material adverse effect on
the transactions contemplated herein. The Company is not in violation of any
material laws, governmental orders, rules, regulations or ordinances to which
its property, real, personal, mixed, tangible or intangible, or its businesses
related to such properties, are subject.
f. Approvals.
No authorization, approval or consent of any court, governmental body,
regulatory agency, self-regulatory organization, or stock exchange or market is
required to be obtained by the Company for the issuance and sale of the
Securities to the Buyer as contemplated by this Agreement, except such
authorizations, approvals and consents that have been obtained.
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g. SEC
Documents, Financial Statements. The Common Stock of the Company is registered
pursuant to Section 12(g) of the Exchange Act and, except as set forth in the
Disclosure Document, the Company has filed on a timely basis all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to Section 13(a) or 15(d), in addition to one or more
registration statements and amendments thereto heretofore filed by the Company
with the SEC under the Act (all of the foregoing including filings incorporated
by reference therein being referred to herein as the " Company’s SEC
Documents"). The Company, through its agent, has delivered to the Buyer true and
complete copies of any and all SEC Documents (except for exhibits and
incorporated documents) requested by the Buyer. The Company has not provided to
the Buyer any information which, according to applicable law, rule or
regulation, should have been disclosed publicly by the Company but which has not
been so disclosed, other than with respect to the transactions contemplated by
this Agreement.
As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Act or the Exchange Act as the case may be and the rules
and regulations of the SEC promulgated thereunder and other federal, state and
local laws, rules and regulations applicable to such SEC Documents, and none of
the SEC Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in the
SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except (i)
as may be otherwise indicated in such financial statements or the notes thereto
or (ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and fairly present
in all material respects the financial position of the Company as of the dates
thereof and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
h. Absence
of Certain Changes. Except as set forth in the Disclosure Document or the
Company’s SEC Documents, since December 31, 2007, there have been no material
adverse change and no material adverse development in the business, properties,
operations, financial condition, or results of operations of the
Company.
i. Full
Disclosure. There is no fact known to the Company (other than general economic
conditions known to the public generally) or as disclosed in the documents
referred to in Section 3(e), that has not been disclosed in writing to the Buyer
that (i) would reasonably be expected to have a material adverse effect on the
business or financial condition of the Company or (ii) would reasonably be
expected to materially and adversely affect the ability of the Company to
perform its obligations pursuant to this Agreement.
j. Absence
of Litigation. Except as disclosed in the Company’s SEC Documents, which the
Buyer has reviewed, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of the Company, threatened against or affecting the Company, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the business or financial condition of the Company or the transactions
contemplated by this Agreement or any of the documents contemplated hereby or
which would adversely affect the validity or enforceability of, or the authority
or ability of the Company to perform its obligations under, this Agreement or
any of such other documents.
k. Absence
of Events of Default. Except as set forth in the Disclosure Document or the
Company’s SEC Documents, no Event of Default, as defined in the respective
agreement to which the Company is a party, and no event which, with the giving
of notice or the passage of time or both, would become an Event of Default (as
so defined), has occurred and is continuing, which would have a material adverse
effect on the Company's financial condition or results of
operations.
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l. Prior
Issues. During the twelve (12) months preceding the date hereof, the Company has
not issued any convertible securities.
5. CERTAIN
COVENANTS AND ACKNOWLEDGMENTS.
a. Transfer
Restrictions. The Buyer acknowledges that (1) the Debentures have not been and
are not being registered under the provisions of the 1933 Act and, except as
provided in the Registration Rights Agreement, the Shares have not been and are
not being registered under the 1933 Act, and may not be transferred unless (A)
subsequently registered thereunder or (B) the Buyer shall have delivered to the
Company an opinion of counsel, reasonably satisfactory in form, scope and
substance to the Company, to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration; (2) any sale of the Securities made in reliance on Rule 144
promulgated under the 1933 Act may be made only in accordance with the terms of
said Rule and further, if said Rule is not applicable, any resale of such
Securities under circumstances in which the seller, or the person through whom
the sale is made, may be deemed to be an underwriter, as that term is used in
the 1933 Act, may require compliance with some other exemption under the 1933
Act or the rules and regulations of the SEC thereunder; and (3) neither the
Company nor any other person is under any obligation to register the Securities
(other than pursuant to the Registration Rights Agreement) under the 1933 Act or
to comply with the terms and conditions of any exemption
thereunder.
b. Restrictive
Legend. The Buyer acknowledges and agrees that the Debentures, and, until such
time as the Shares has been registered under the 1933 Act as contemplated by the
Registration Rights Agreement and sold in accordance with an effective
registration statement ("Registration Statement"), the Shares issued to the
Holder upon conversion of the Debentures shall bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the Debentures and such Shares):
THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE 1933 ACT, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR
OTHER EVIDENCE ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.
c. Registration
Rights Agreement. The parties hereto agree to enter into the Registration Rights
Agreement, in substantially the form attached hereto as Annex II, simultaneously
with the signing of this Securities Purchase Agreement.
d. Filings.
The Company undertakes and agrees to make all necessary filings in connection
with the sale of the Debentures to the Buyer under any United States laws and
regulations, or by any domestic securities exchange or trading
market.
e. Reporting
Status. So long as the Buyer beneficially owns any of the Debentures, the
Company shall file all reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act, and the Company shall not terminate its
status as an issuer required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would permit such
termination.
f. Use
of Proceeds. The Company will use the proceeds from the sale of the Debentures
(excluding amounts paid by the Company for its costs of issuance in connection
with the sale of the Debentures) for working capital, and shall not, directly or
indirectly, use such proceeds for any loan to or investment in any other
corporation, partnership enterprise or other person.
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g. Call
Option. The Company shall have the right to redeem any Debentures which have not
theretofore been surrendered for conversion, which right shall be exercised by
delivering a notice of redemption to the Holder, at any time within ninety (90)
days after any date upon which the closing price of the Common Stock on the
NASDAQ Capital Market for a period of twenty (20) consecutive trading days has
equaled or exceeded $2.00 per share. The redemption price shall be an
amount equal to the Debenture’s face value plus $0.05 per underlying common
share, or $525 for each $500 in principal amount of the Debentures. The Company
shall give the Buyer sixty (60) days notice to either convert the Debenture to
Shares of Common Stock or the Company will redeem as set forth
above.
h. Available
Shares. The Company shall have at all times authorized and reserved for
issuance, free from preemptive rights, shares of Common Stock sufficient to
yield the number of shares of Common Stock issuable at conversion as may be
required to satisfy the conversion rights of the Buyer pursuant to the terms and
conditions of the Debentures.
i. Right
of Participation. As long as the Debentures remain outstanding and payable to
the Buyer, the Company shall provide reasonable prior written notice to the
Buyer, through ▇▇▇▇▇▇▇ Research, Inc. as its agent, of any new offering of
securities undertaken by the Company, and the Buyer shall have an opportunity to
participate in such offering, if qualified.
j. Non-Public
Information. The Company shall in no event disclose non-public information to
the Buyer, advisors to or representatives of the Buyer unless prior to
disclosure of such information the Company marks such information as "Non-Public
Information - Confidential" and provides the Buyer, such advisors and
representatives with a reasonable opportunity to accept or refuse to accept such
non-public information for review. Nothing herein shall require the Company to
disclose non-public information to the Buyer or its advisors or representatives,
and the Company represents that it does not disseminate non-public information
to any Buyers who purchase stock in the Company in a public offering, to money
managers or to securities analysts; provided, however, that notwithstanding
anything herein to the contrary, the Company will, as hereinabove provided,
immediately notify the advisors and representatives of the Buyer and, if any,
underwriters, of any event or the existence of any circumstance (without any
obligation to disclose the specific event or circumstance) of which it becomes
aware, constituting non-public information (whether or not requested of the
Company specifically or generally during the course of due diligence by such
persons or entities), which, if not disclosed in the prospectus included in the
registration statement, would cause such prospectus to include a material
misstatement or to omit a material fact required to be stated therein in order
to make the statements, therein, in light of the circumstances in which they
were made, not misleading. Nothing herein shall be construed to mean that such
persons or entities other than the Buyer (without the written consent of the
Buyer prior to disclosure of such information) may not obtain non-public
information in the course of conducting due diligence in accordance with the
terms of this Agreement and nothing herein shall prevent any such persons or
entities from notifying the Company of their opinion that based on such due
diligence by such persons or entities, that the Registration Statement contains
an untrue statement of a material fact or omits a material fact required to be
stated in the Registration Statement or necessary to make the statements
contained therein, in light of the circumstances in which they were made, not
misleading.
k. Additional
Covenant. As long as there are Debentures outstanding and payable to Buyers, the
Company shall be prohibited from issuing any variable priced equity linked
securities.
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6. CONVERSION
PROCEDURES
a. Each
$500 in principal amount of the Debentures shall be convertible into 666.67
shares of Common Stock.
b. In
order to effect the conversion of all or part of the Debenture, the Debenture
holder shall issue a notice of conversion substantially in the form attached
hereto as Exhibit A to Annex I (the "Notice of Conversion") which may
be by facsimile and surrender the Debenture for conversion if the Debenture is
not already in possession of the Company. Each conversion of all or any portion
of the Debenture will be deemed to have been effected as of the close of
business on the date on which such Notice of Conversion is delivered to the
principal office of the Company via facsimile. At such time as such conversion
has been effected, to the extent that any portion of the Debenture is converted,
the rights of the Debenture holder with respect to such portion of the Debenture
shall cease and the Debenture holder shall be deemed to have become the holder
of record of the shares of Common Stock represented thereby.
c. No
fractional shares of Common Stock shall be issued upon conversion of the
Debenture. In lieu of any fractional share to which the holder would otherwise
be entitled, the Company shall round up to the nearest whole of Common
Share.
d. The
Company shall, immediately upon receipt of a Notice of Conversion, issue and
deliver to or upon the order of such Debenture holder, against delivery of the
Debentures which have been converted, a certificate or certificates for the
number of shares of Common Stock to which such holder shall be entitled and such
certificate or certificates shall not bear any restrictive legend; provided (a)
the shares of Common Stock evidenced thereby are sold pursuant to an effective
registration statement under the 1933 Act, (b) the holder provides the Company
with an opinion of counsel reasonably acceptable to the Company to the effect
that a public sale of such shares may be made without registration under the
1933 Act, or (c) such holder provides the Company with reasonable assurance that
such shares can be sold free of any limitations imposed by Rule 144, promulgated
under the 1933 Act. The Company shall cause such issuance and delivery to be
effected within five (5) business days and shall transmit the certificates by
messenger or overnight delivery service, or via the DWAC system, to reach the
address designated by such holder within five (5) business days after the
receipt of such notice.
7. GOVERNING
LAW: MISCELLANEOUS.
This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New York. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the City of Albany or the
state courts of the State of New York sitting in the City of Albany in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on forum non conveniens, to the bringing of any such proceeding in such
jurisdictions. A facsimile transmission of this signed Agreement shall be legal
and binding on all parties hereto. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original. The headings of this
Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement. If any provision of this Agreement shall
be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction. This Agreement may be amended only by an instrument
in writing signed by the party to be charged with enforcement. This Agreement
supersedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
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8. NOTICES.
Any notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be deemed effectively given, (i) on the
date delivered, (a) by personal delivery, or (b) by fax or electronic messaging
(with confirmation of receipt), (ii) seven business days after deposit in the
United States Postal Service by regular or certified mail, or (iii) three
business days mailing by international express courier, with postage and fees
prepaid, addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
(10) days advance written notice to each of the other parties
hereto.
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AMERICAN
BIO MEDICA CORPORATION
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▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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ATTN:
Corporate Secretary/Chief Compliance Officer
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Telephone:
▇▇▇-▇▇▇-▇▇▇▇
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Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
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Email:
▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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With
a copy (which shall not constitute notice) to:
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▇▇▇▇▇
& ▇▇▇▇▇▇, LLP
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▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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ATTN:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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Telephone:
▇▇▇-▇▇▇-▇▇▇▇
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Facsimile:
518-432-3123
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Email:
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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BUYER:
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At
the address set forth on the signature page of this
Agreement.
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9. SURVIVAL
OF REPRESENTATIONS AND WARRANTIES. Company's representations and warranties
shall survive the execution and delivery hereof of this Agreement and the
delivery of the Debentures and the Purchase Price, and shall inure to the
benefit of the Buyer and the successors and assigns thereof.
10. SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
(signature
page follows)
9
SIGNATURE(S)
FOR INDIVIDUALS
IN
WITNESS WHEREOF, the undersigned represents that the foregoing statements are
true and correct and that it has caused this Agreement to be duly executed on
this ____ day of ______, 2008.
Printed
Name of Buyer:
Address: C/O
Cantone Research, Inc.
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Telephone:
▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇▇▇▇▇ Research, Inc.)
Social
Security No.:_______________________________
Signed
by:________________________________
AGGREGATE
PURCHASE PRICE OF DEBENTURE: ___________
SIGNATURE(S)
FOR ENTITIES
IN
WITNESS WHEREOF, the undersigned represents that the foregoing statements are
true and correct and that it has caused this Agreement to be duly executed on
its behalf by the Buyer or one of its officers this ____ day of ______,
2008.
Printed
Name of Buyer:
Address: C/O
Cantone Research, Inc.
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Telephone:
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EIN:__________________________________
Signed
by:________________________________
Printed
Name & Title:_________________________________
AGGREGATE
PURCHASE PRICE OF DEBENTURE:____________________
This
Agreement has been accepted as of the date set forth below.
AMERICAN
BIO MEDICA CORPORATION
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By:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇, Chief Executive
Officer
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10
ANNEX
I
FORM OF
SERIES A DEBENTURE
(FILED
WITH THIS REGISTRATION STATEMENT AS EXHIBIT 4.12)
11
ANNEX
II
REGISTRATION
RIGHTS AGREEMENT
(FILED
WITH THIS REGISTRATION STATEMENT AS EXHIBIT 4.13)
12