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UNIT PURCHASE AGREEMENT
THIS AGREEMENT is made as of March 12, 1997, by and between Alpha 1
Biomedicals, Inc., a Delaware corporation (the "Company"), and each of the
investors listed in Schedule 1 attached hereto (hereinafter collectively
referred to as the "Investors" and individually as an "Investor"). Capitalized
terms used herein are defined in Section 8 hereof.
The parties hereto hereby agree as follows:
Section 1. Purchase and Sale of Units.
1.01 Purchase and Sale. At the Closing, the Company shall sell to the
Investor and each Investor shall purchase from the Company the number of Units,
each Unit consisting of (i) 500,000 shares (the "Unit Shares") of common stock,
par value $.001 per share, of the Company ("Common Stock") and (ii) warrants to
purchase 165,000 shares of Common Stock (the "Class D Warrants"), set forth
opposite the name of such Investor on Schedule 1 attached hereto at a purchase
price of $50,000 per Unit. The number of Units purchased by all Investors in
the aggregate shall not exceed seven Units.
1.03 The Closing. The closing of the purchase and sale of the Units (the
"Closing") shall take place at the offices of Xxxxxxxxx & Xxxxxxx, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, at 10:00 a.m. on such date
as the parties hereto shall mutually determine.
Section 2. Deliveries at Closing. At the Closing, the following deliveries
shall be made and agreements entered into:
2.01 Common Stock and Class D Warrants. The Company shall deliver to each
Investor:
(a) a copy of the resolutions of the Company's Board of Directors
authorizing the sale and issuance of the Units, certified by the Secretary of
the Company;
(b) a stock certificate registered in the name of the Investor evidencing
the number of Unit Shares purchased by the Investor; and
(c) a Class D Warrant certificate registered in the name of the Investor
evidencing the number of Class D Warrants purchased by the Investor.
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2.02 Cash Payment. Each Investor shall pay to the Company, by wire
transfer of immediately available funds to an account designated by the Company
or by certified or official bank check, the amount set forth opposite the name
of such Investor on Schedule 1 attached.
2.03 Registration Rights Agreement. The Company and the Investors shall
enter into a Registration Rights Agreement with respect to the registration for
resale of (i) the Unit Shares and (ii) the shares of Common Stock issuable upon
the exercise of the Class D Warrants in form attached hereto as Exhibit A (the
"Registration Rights Agreement") .
2.04 Warrant Agreement. The Company and the Investors shall enter into a
Warrant Agreement setting forth the terms of the Class D Warrants in the form
attached hereto as Exhibit B, (the "Warrant Agreement").
Section 3. Representations and Warranties of the Company.
The Company hereby represents and warrants to each of the Investors as
follows:
3.01. Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has all requisite corporate power and authority to carry on its
business as it currently is conducted and to own or lease and operate its
assets, properties and business.
3.02 Capitalization.
(a) As of the date of this Agreement, the authorized capital stock of the
Company consists of (i) 20,000,000 shares of Common Stock, 9,477,429 shares of
which are issued and outstanding, and (ii) 1,000,000 shares of Preferred Stock,
of which no shares are issued or outstanding.
(b) All of the issued and outstanding shares of Common Stock are duly
authorized, validly issued, fully paid and nonassessable.
(c) Except as set forth on Schedule 2, there are no outstanding
subscriptions, options, warrants, rights (including conversion or preemptive
rights), commitments, agreements, understandings or arrangements to which the
Company is a party, whether oral or written, pursuant to which the Company is
obligated to issue any shares of its capital stock.
3.03 Subsidiaries. The Company has no subsidiaries.
3.04 Financial Statements. The Company has delivered to the Investors
audited balance sheets of the Company at December 31, 1994 and 1995, and the
related statements of operations, stockholders' equity and cash flows for each
year then ended, including the notes thereto (the "Company Financial
Statements"), accompanied by the opinion
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thereon of Price Waterhouse L.L.P. The Company has also delivered to the
Investors the unaudited balance sheet of the Company at September 30, 1996, and
the related unaudited statements of operations, stockholders' equity and cash
flow for the nine months then ended, including the notes thereto (the "Company
Interim Financial Statements"). The Company Financial Statements present fairly
in all material respects the financial position of the Company as of December
31, 1994 and 1995, and the results of operations and changes in financial
position of the Company for the respective one-year periods then ended, and the
Company Interim Financial Statements present fairly in all material respects
the financial position of the Company as of September 30, 1996, and the results
of operations and changes in financial position for the nine-month period then
ended, in each case in conformity with generally accepted accounting principles
applied on a basis consistent with that of prior periods, except that the
Company Interim Financial Statements may be subject to normal year-end
adjustments that are not in the aggregate material.
3.05 SEC Reports. Since January 1, 1994, all reports and proxy statements
required to be filed by the Company with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities Exchange Act of 1934 (the "1934 Act")
complied in all material respects with the applicable requirements of the 1934
Act and the applicable rules and regulations thereunder, and did not include at
the time of filing any untrue statement of a material fact or omit to state a
material fact concerning the Company necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not misleading.
3.06 No Violation of Law. Except as will not have a Material Adverse
Effect, the Company's operations have been conducted in accordance with all
applicable laws, regulations and other requirements of all governmental bodies
having jurisdiction over the Company and the Company has all licenses, permits,
orders or approvals from governmental bodies required for the conduct of its
business. Except as will not have a Material Adverse Effect, none of the real
or personal property owned, leased, occupied or operated by the Company, or the
ownership, leasing, occupancy or operation thereof, is in violation of any
applicable law, code, rule, regulation, ordinance, license or permit
(including, but not limited to, those related to building, zoning,
environmental matters or employee health and safety). No notice from any
governmental body or other Person has been served upon the Company or upon any
property owned, leased, occupied or operated by the Company claiming any
violation of any such law, code, rule, regulation, ordinance, license or
permit, or requiring, or calling attention to the need for, any work, repairs,
construction, alterations or installation on or in connection with such
property, except such notices with which the Company has complied or except as
will not have a Material Adverse Effect.
3.07 Undisclosed Liabilities. Except as will not have a Material Adverse
Effect, the Company does not have any debts, liabilities or obligations of any
nature, secured or unsecured, whether accrued, absolute, contingent or
otherwise, whether due or to become due, including, but not limited to,
liabilities or obligations on account of taxes, other governmental charges,
duties, penalties, interest, pension plan obligations or indebtedness for
borrowed money, except:
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(a) to the extent set forth or reserved against the Company Financial
Statements or the Company Interim Financial Statements; and
(b) normal and usual current liabilities incurred, and normal and usual
obligations under agreements entered into, in the ordinary course of business
after September 30, 1996.
3.08 Absence of Certain Changes or Events. Except as disclosed in the SEC
Filings, since December 31, 1995, the business of the Company has been operated
only in the usual and ordinary course of business and there has not been:
(a) any damage, destruction or loss (whether or not covered by insurance)
of properties, assets or the business of the Company that has had a Material
Adverse Effect;
(b) any change in the accounting methods or practices followed by the
Company or any change in the accrual of liabilities or in depreciation,
amortization or inventory valuation policies, rates or methods theretofore used
or adopted;
(c) any sale, lease, abandonment or other disposition by the Company of
any interest in real property or, other than in the ordinary course of business
and other than those that will not have a Material Adverse Effect, of any
machinery, equipment or other operating property;
(d) any sale, assignment, transfer, license or other disposition by the
Company of any patent, trademark, servicemark, trade name, brand name,
copyright (or pending application for any patent, trademark, servicemark, trade
name or copyright), invention, process, know-how, formula, trade secret or
interest thereunder or other intangible asset, the transfer of which has had or
will have a Material Adverse Effect; or
(e) any declaration, setting aside or payment of any dividend or other
distribution on or in respect of shares of capital stock, or any direct or
indirect redemption, retirement, purchase or other acquisition by the Company
of any such shares of capital stock.
3.09 Tax Matters.
(a) The Company has duly, properly, accurately and timely filed all tax
returns required to be filed by it, and has paid, or will pay on a timely
basis, all taxes shown to be due and payable on such returns, all deficiencies
and assessments notices that have been received by it, and all other taxes due
and payable by it, except for taxes, deficiencies and assessments that are
being contested in good faith and for which appropriate reserves have been
established or the nonpayment of which would not have a Material Adverse
Effect.
(b) There are no liens for unpaid federal, state and local taxes on any of
the assets of the Company.
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3.10 Absence of Defaults. Except as will not have a Material Adverse
Effect, (i) the Company is not, nor is it alleged to be, in default under, or
in breach of any term or provision of, any contract, agreement, lease, license,
commitment, instrument, or fiduciary or other obligation and (ii) to the
knowledge of the Company, all material contracts, agreements, commitments and
obligations to which the Company is a party are valid and binding agreements of
the parties thereto and are in full force and effect. To the knowledge of the
Company, no other party to any contract, agreement, lease, license, commitment,
instrument, or fiduciary or other obligation to which the Company is party is
in default thereunder, or in breach of any term or provision thereof, except as
will not have a Material Adverse Effect.
3.11 Litigation. Except as set forth in the SEC Filings, there is no
material (i) suit, action or claim, (ii) investigation or inquiry by any
administrative agency or governmental body, or (iii) legal, administrative or
arbitration proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of the properties, assets or business of the
Company. There is no material outstanding order, writ, injunction or decree
against or relating to the Company or any of the capital stock, properties,
assets or business of the Company.
3.12 Validity and Authorization. The Company has full corporate power to
enter into this Agreement, the Registration Rights Agreement and the Warrant
Agreement and to perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Registration Rights Agreement and
the Warrant Agreement, and the consummation of the transactions contemplated
hereby and thereby, have been duly and validly authorized by all necessary
corporate action. This Agreement constitutes and, upon the execution and
delivery thereof by the parties thereto, each of the Registration Rights
Agreement and the Warrant Agreement will constitute a legal, valid and binding
agreement of the Company that is enforceable against the Company in accordance
with its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally.
3.13 No Conflicts. The execution and delivery by the Company of this
Agreement, the Registration Rights Agreement and the Warrant Agreement, and
compliance with the respective terms hereof and thereof, by the Company do not
and will not (i) conflict with or result in a breach of the terms, conditions
or provisions of, (ii) constitute a default under, (iii) result in the creation
of any lien, security interest, charge or encumbrance upon the Company's
capital stock or properties pursuant to, (iv) give any third party the right to
accelerate any obligation under, (v) result in a violation of, or (vi) except
for the registrations, qualifications and notices contemplated by the
Registration Rights Agreement, require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to the Certificate of Incorporation or Bylaws of the
Company, any law, statute, rule or regulation to which the Company is subject,
or any agreement, instrument, order, judgment or decree to which the Company is
subject or by which it is bound.
3.14 Authorization of Shares. The Unit Shares have been duly authorized
and, upon issuance in accordance with the terms of this Agreement, will be
validly issued,
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fully paid and nonassessable. 660,000 shares of Common Stock issuable upon the
exercise of the Class D Warrants have been duly authorized and reserved for
issuance and, upon issuance in accordance with the terms of the Class D
Warrants, will be validly issued, fully paid and nonassessable. No stockholder
of the Company is entitled to exercise any preemptive rights in connection with
the issuance of such shares of Common Stock.
3.15 Rights Agreement. Assuming the accuracy of the representation and
warranty of each of the Investors in Section 4.10 of this Agreement, the
execution, delivery and performance of this Agreement by the parties hereto
will not result in any Investor becoming an Acquiring Person (as such term is
defined in the Rights Agreement, dated as of April 29, 1994, between the
Company and American Stock Transfer & Trust Company, as Rights Agent).
3.16 Exemption from Registration. Assuming the accuracy of the
representations and warranties of each Investor set forth in Sections 4.04
through 4.08 of this Agreement, the offer and sale of the Units to each
Investor will be exempt from registration under the Securities Act of 1933, as
amended (the "1933 Act").
3.17 Brokerage. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions contemplated
by this Agreement based on any agreement or arrangement binding upon the
Company.
Section 4. Representations and Warranties of the Investors. Each of the
Investors hereby, severally and not jointly, represents and warrants to the
Company as follows:
4.01. Organization. If the Investor is a corporation, it is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and if the Investor is a partnership or
other organization, it is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
4.02. Authorization; No Breach. (i) If the Investor is a corporation, the
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Warrant Agreement have been duly authorized by all necessary
corporate action, (ii) if the Investor is a partnership or other organization,
the Investor is permitted under its partnership agreement or other governing
documents to enter into this Agreement, the Registration Rights Agreement and
the Warrant Agreement and to consummate the transactions contemplated hereby
and thereby, and all necessary consents and approvals required by the
partnership agreement or other governing documents have been obtained, and
(iii) this Agreement constitutes, and upon the execution and delivery thereof
by the parties thereto, each of the Registration Rights Agreement and the
Warrant Agreement will constitute, a legal, valid and binding agreement of the
Investor that is enforceable against the Investor in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally.
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4.03. No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrant Agreement do and
will not (i) violate any provision of the Investor's Certificate of
Incorporation or Bylaws (or comparable organizational documents), if the
Investor is a corporation, or the Investor's partnership agreement or other
governing documents, if the Investor is a partnership or other organization,
(ii) violate or breach any material contract or agreement to which the Investor
is a party, or (iii) violate, or require the authorization, consent or approval
of any court or any administrative or governmental body under, any law,
statute, rule or regulation to which the Investor is subject or any order,
judgment or decree by which the Investor is bound.
4.04. Accredited Investor. The Investor is an "accredited investor" as
defined in Rule 501 of Regulation D under the 1933 Act. The Investor has
knowledge and experience in financial and business matters such that the
Investor is capable of evaluating the merits and risks of an investment in the
Unit Shares and Class D Warrants.
4.05. Receipt of Information. The Investor (i) has received a copy of the
Private Placement Memorandum and has reviewed each of the documents included as
part thereof, (ii) has been given the opportunity to obtain from the Company
and to review each of the contracts and other documents that have been filed
with the SEC as exhibits to the filings included as part of the Private
Placement Memorandum, (iii) has been furnished with all such additional
information as the Investor has deemed necessary to make an informed investment
decision with respect to the Unit Shares and Class D Warrants and (iv) has been
afforded an opportunity to ask questions and receive answers from authorized
officers of the Company concerning the Company and the terms and conditions of
the offering of the Unit Shares and Class D Warrants.
4.06. Awareness of Risks. The Investor is aware that an investment in the
Unit Shares and Class D Warrants is highly speculative and subject to
substantial risks. The Investor is capable of bearing the economic risks of an
investment in the Unit Shares and Class D Warrants including, but not limited
to, the possibility of a complete loss of the Investor's investment, as well as
limitations on the transferability of the Unit Shares and Class D Warrants,
which may make the liquidation of an investment in the securities difficult or
impossible for the indefinite future.
4.07. Purchases for Investment. The Unit Shares and Class D Warrants are
being acquired solely for investment, and are not being purchased with a view
to a distribution or resale thereof otherwise than in compliance with the 1933
Act.
4.08. Restrictions on Transfer. The Investor understands that none of the
Unit Shares, the Class D Warrants or the shares of Common Stock issuable upon
the exercise of the Class D Warrants have been registered under the 1933 Act,
or any state securities laws, in reliance upon exemptions from registration for
non-public offerings. The Investor agrees that none of the Unit Shares, the
Class D Warrants or the shares of Common Stock issuable upon the exercise of
the Class D Warrants will be resold or otherwise transferred by the Investor
unless such securities have been registered under the 1933 Act and under
appropriate state
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securities laws or unless the Company receives an opinion of counsel reasonably
satisfactory to it that an exemption from registration is applicable.
4.09 Brokerage. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions contemplated
by this Agreement based on any agreement or arrangement binding upon the
Investor.
4.10 Beneficial Ownership. After giving effect to the purchase of the
Units, neither the Investor, nor any group (with the meaning of Section
13(d)(3) of the 0000 Xxx) of which the Investor is a member, will be the
beneficial owner of more than 25% of the then-outstanding shares of Common
Stock (calculated in the manner provided for in Rule 13d-3 under the 1934 Act).
Section 5. Termination.
5.01 Termination of Agreement. The parties hereto may terminate this
Agreement as provided below:
(a) Any individual Investor and the Company may terminate this Agreement
as between that Investor and the Company by mutual written consent at any time
prior to the Closing.
(b) Any individual Investor may terminate this Agreement as between that
Investor and the Company, by giving written notice to the Company at any time
prior to the Closing, in the event the Company is in breach of any
representation, warranty or covenant contained in this Agreement in any
material respect.
(c) The Company may terminate this Agreement as between itself and an
individual Investor, by giving written notice to the Investor at any time prior
to the Closing, in the event the Investor is in breach of any representation,
warranty or covenant contained in this Agreement in any material respect.
(d) Any individual Investor may terminate this Agreement as between that
Investor and the Company, by giving written notice to the Company at any time
prior to the Closing, if the Closing shall not have occurred on or before the
30th day following the date of this Agreement.
(e) The Company may terminate this Agreement as between itself and an
individual Investor, by giving written notice to the Investor at any time prior
to the Closing if the Closing, shall not have occurred on or before the 30th
day following the date of this Agreement.
5.02 Effect of Termination. If any party hereto terminates this Agreement
pursuant to Section 5.01, all obligations hereunder of the terminating party,
and of the other party to the terminating party, shall terminate and such
parties shall be released from all of their respective obligations hereunder.
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Section 6 Right of First Refusal.
The Company hereby covenants as follows:
(a) The Company shall not issue any debt or equity securities for cash in
private capital raising transactions (a "Future Offering") within the
three-year period after the date of the Closing ("Closing Date") without
delivering to the Investors prior written notice of its intent to conduct a
Future Offering (a "Future Offering Notice") setting forth the material terms
of the proposed Future Offering, including copies of all relevant documents and
agreements. For a period of twenty days, commencing on the date of receipt of
such Future Offering Notice (the "Offer Period"), each Investor shall have the
right irrevocably to commit, by written notice to the Company, to purchase the
Investor's Portion (as that term is defined below) of the securities being
offered in the Future Offering on the terms contained in the Future Offering
Notice. If, during the Offer Period, the Investor fails irrevocably to commit
to purchase the Investor's Portion of the securities that are the subject of
the Future Offering Notice, the Company shall be permitted to offer and sell
any such securities, on terms generally no less favorable to the Company than
are set forth in the Future Offering Notice, to any third party during a period
of 90 days following the termination of the Offer Period, after which 90-day
period the terms of this Section 6 shall again apply.
(b) The provision of paragraph (a) shall not apply to (i) any transaction
involving the Company's commercial banking arrangements, (ii) the issuance of
securities in connection with a merger, consolidation or sale of assets, or in
connection with a joint venture or an acquisition or disposition of a business,
a product or a license by the Company, or (iii) to the issuance of securities
to any employee, officer, director or consultant.
(c) The amount of securities that an Investor is entitled to purchase in a
Future Offering (the "Investor's Portion") shall be the number obtained by
multiplying the aggregate amount of securities being offered in the Future
Offering by a fraction, the numerator of which is the number of Units purchased
by the Investor pursuant to this Agreement (whether or not the Investor
continues to own the Unit Shares or the Warrants) and the denominator of which
is the number of Units purchased by all Investors pursuant to this Agreement.
(d) The rights of each Investor under this Section 6 shall not be
transferable or assignable by the Investor without the prior written consent of
the Company.
Section 7 Transfer Restrictions on Common Stock.
7.01 The Company shall be under no obligation to effect the transfer of
the Unit Shares unless the holder thereof shall deliver written notice to the
Company describing in reasonable detail the proposed transfer and, in the case
of a transfer that is effected other than pursuant to an effective registration
statement under the 1933 Act or pursuant to Rule 144, an agreement in writing
of the transferee to be bound by the restrictions on transfer set forth in this
Section 7. For so long as the Unit Shares are Restricted Securities, the holder
also shall deliver to the Company an opinion of counsel, in form and substance
reasonably satisfactory to
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the Company, to the effect that such transfer may be effected without
registration under the 1933 Act.
7.02 For so long as any shares of Common Stock issuable upon the exercise
of the Class D Warrants are Restricted Securities, the Company shall not be
obligated to effect any transfer thereof unless the holder shall deliver to the
Company an opinion of counsel, in form and substance reasonably satisfactory to
the Company, to the effect that such transfer can be effected without
registration under the 0000 Xxx.
7.03 If at any time a holder of Unit Shares or shares of Common Stock
issued upon the exercise of the Class D Warrants delivers to the Company an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, that such shares of Common Stock are eligible for resale by the holder
thereof pursuant to Rule 144(k) under the 1933 Act, the Company shall, upon
surrender of the legended certificates, deliver to the holder new certificates
for such shares of Common Stock that do not bear the legend set forth in
Section 9.02.
Section 8. Definitions. For the purpose of this Agreement, the following
terms have the meanings set forth below:
"1933 Act" has the meaning set forth in section 3.17.
"1934 Act" has the meaning set forth in Section 3.05.
"Class D Warrants" has the meaning set forth in Section 1.01.
"Closing" has the meaning set forth in Section 1.03.
"Common Stock" has the meaning set forth in Section 1.01.
"Company" has the meaning set forth in the Preamble.
"Company Financial Statements" has the meaning set forth in Section 3.04.
"Company Interim Financial Statements" has the meaning set forth in Section
3.04.
"Investor" has the meaning set forth in the Preamble.
"Material Adverse Effect" means, with respect to the Company, a material
adverse effect on the business, properties, assets, condition (financial or
other), results of operations or prospects of the Company.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
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"Registration Rights Agreement" has the meaning set forth in Section 2.03.
"Restricted Securities" means (i) the Unit Shares hereunder; (ii) the
shares of Common Stock issued upon the exercise of the Class D Warrants; and
(iii) any securities issued with respect to the securities referred to in
clause (i) or (ii) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Restricted
Securities, such securities shall cease to be Restricted Securities when they
have (A) been sold pursuant to an effective registration statement under the
1933 Act or (B) become eligible for sale pursuant to Rule 144 (or any similar
provision then in force) under the 1933 Act.
"SEC" has the meaning set forth in Section 3.05.
"SEC Filings" means (i) the Annual Report of the Company on Form 10-K for
the year ended December 31, 1995, (ii) the Quarterly Reports of the Company on
Form 10-Q for the quarters ended March 31, June 30, and September 30, 1996, and
(iii) any Form 8-K filed by the Company since December 31, 1995.
"Unit Shares" has the meaning set forth in Section 1.01.
"Warrant Agreement" has the meaning set forth in Section 2.04.
Section 9. Miscellaneous.
9.01 Certain Expenses. The Company agrees to pay, and hold the Investors
harmless against liability for the payment of, stamp and other similar taxes
which may be payable in respect of (i) the execution and delivery of this
Agreement, the Registration Rights Agreement and the Warrant Agreement, (ii)
the issuance, sale and delivery of the shares of Common Stock and Class D
Warrants comprising the Units, and (iii) the issuance, sale and delivery to a
holder of Class D Warrants of the shares of Common Stock issued upon the
exercise of the Class D Warrants. The Company agrees to pay or reimburse Xxxxx
X. Xxxxx for up to $7,000 in legal fees and disbursements incurred in
connection with the purchase of the Units and in connection with any legal
opinions with respect to the application of the 1933 Act that are required to
effect a transfer of the shares of Common Stock and Class D Warrants comprising
the Units or the shares of Common Stock issued upon the exercise of the Class D
Warrants.
9.02 Securities Legend.
Each certificate for Unit Shares and each certificate for shares of Common
Stock issued upon the exercise of the Class D Warrants shall be imprinted with
a legend in substantially the following form for so long as such shares
continue to be Restricted Securities:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED FOR
SALE, SOLD OR
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OTHERWISE TRANSFERRED, OTHER THAN IN ACCORDANCE WITH AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION."
9.03 Amendments. The provisions of this Agreement may be amended only with
the written consent of the Company and each Investor. No other course of
dealing between the Company and any Investor or any delay in exercising any
rights hereunder shall operate as a waiver of any rights of an Investor or the
Company.
9.04 Survival of Representation and Warranties. All representations and
warranties contained herein shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby for a
period of three years after the Closing.
9.05 Successors and Assigns. This Agreement and the rights and obligations
hereunder may not be assigned by either party hereto (by operation of law or
otherwise) without the prior written consent of the other.
9.06 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, and to the extent permitted by
law shall not invalidate the remainder of this Agreement.
9.07 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
9.08 Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and shall not affect the
meaning of this Agreement. The use of the word "including" in this Agreement
shall be by way of example rather than by limitation.
9.09 Governing law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Maryland without giving effect to any
choice of law or conflict of law provision.
9.10 Notices.
(a) All notices, requests, demands, claims and other communications
hereunder will be in writing and shall be made by hand-delivery, certified
mail, return receipt requested, overnight or two-day courier, or facsimile
transmission, addressed to the intended recipient as set forth below:
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If to the Company:
Alpha 1 Biomedicals, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
Copy (which shall not constitute notice) to:
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
If to the Investors:
To the address set forth on Schedule 1
Each party hereto may change the address for such communication by notice to
the other party (to the Company in the case of each Investor and to the
Investor in the case of the Company) in the manner contemplated hereby.
(b) All such notices, requests, demands, claims and other communications
shall be deemed to have been duly given (i) when delivered by hand, if
personally delivered, (ii) five days after being deposited in the mail, if
mailed, (iii) upon receipt, if sent by overnight or two day courier and (iv)
upon receipt, if sent by facsimile transmission, except in the case of Xxxxx X.
Xxxxx, no notice, request, demand, claim or other communication shall be deemed
given unless (x) actually received by Xxxxx X. Xxxxx or (y) given in the manner
provided above to the person to whom copies are to be delivered.
9.11 Entire Agreement. This Agreement, together with the Registration
Rights Agreement and the Warrant Agreement, constitutes the entire agreement of
the parties hereto with respect to the subject matter thereof and supersedes
all prior agreements of the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
ALPHA 1 BIOMEDICALS,
INC.
By
-----------------------------------
Xxxxxxx Xxxxxx
President and Chief
Executive Officer
-------------------------------------
XXXXX X. XXXXX
-------------------------------------
[Name of Investor]
-------------------------------------
[Name of Investor]
-------------------------------------
[Name of Investor]
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EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
See attached executed Registration Rights Agreement
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EXHIBIT B
WARRANT AGREEMENT
See attached executed Warrant Agreement
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SCHEDULE 1
Name of Investor Number of Total Purchase Number of Number of
---------------- Units Price Shares Warrants
--------- -------------- --------- ---------
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SCHEDULE 2
OUTSTANDING OPTIONS/WARRANTS
PPM-UNIT MARCH 5, 1997
