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EXHIBIT 10.102
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of January
13, 2000, by and among BioShield Technologies, Inc., a Georgia corporation,
with headquarters located at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000 (the
"COMPANY"), and the investor listed on the Schedule of Buyers (the "SCHEDULE OF
BUYERS") attached hereto (individually, a "BUYER" or collectively "BUYERS").
WHEREAS:
A. The Company and the Buyers are executing and delivering this
Agreement in reliance upon the exemption from securities registration pursuant
to Section 4(2) and/or Regulation D ("REGULATION D") at the sole election of
Buyer in the event that a registration statement filed by the Company pursuant
to Section 2(a) of the Registration Rights Agreement (described below) is not
declared effective by the Registration Deadline (as defined therein) as
promulgated by the U.S. Securities and Exchange Commission (the "SEC") under
the Securities Act of 1933, as amended (the "1933 ACT");
B. The Company has authorized the following new series of its
Preferred Stock, no par value per share (the "PREFERRED STOCK"): the Company's
Series A Convertible Preferred Stock (the "SERIES A PREFERRED SHARES"), which
shall be convertible into shares of the Company's Common Stock, no par value
per share (the "COMMON STOCK") (as converted, the "CONVERSION SHARES"), in
accordance with the terms of the Company's Amendments to its Articles of
Incorporation, substantially in the form attached hereto as Exhibit "A" (the
"AMENDMENT");
C. The Buyer wishes to purchase, upon the terms and conditions
stated in this Agreement, an aggregate of 200 shares of Series A Preferred
Shares in the respective amounts set forth opposite each Buyer's name on the
Schedule of Buyers;
D. Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement substantially in the form attached hereto as Exhibit "B" (the
"REGISTRATION RIGHTS AGREEMENT") pursuant to which the Company has agreed to
provide certain registration rights under the 1933 Act and the rules and
regulations promulgated thereunder, and applicable state securities laws; and
E. The holders of Series A Preferred Shares shall receive stock
purchase warrants to acquire shares of common stock, par value $.0001, of
Electronic Medical Distribution, Inc. ("EMD") at an exercise price of 5.126 per
share the form attached as Exhibit "C" (the "WARRANTS").
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NOW THEREFORE, the Company and the Buyer hereby agree as
follows:
1. PURCHASE AND SALE OF SERIES A PREFERRED STOCK.
a. Purchase of Series A Preferred Stock. Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 6 and
7 below, the Company shall issue and sell to the Buyers and the Buyers
shall purchase from the Company an aggregate of 200 shares of Series A
Preferred Stock, in the respective amounts set forth opposite each
Buyer's name on the Schedule of Buyers (the "CLOSING").
b. Closing Date. The date and time of the Closing (the
"CLOSING DATE") shall be 10:00 a.m. Eastern Standard Time, within five
(5) business days following the date hereof, subject to notification
of satisfaction (or waiver) of the conditions to the Closing set forth
in Sections 6 and 7 below (or such later date as is mutually agreed to
by the Company and the Buyer). The Closing shall occur on the Closing
Date at the offices of Xxxx Xxxx Xxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 000, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000.
c. Form of Payment. On the Closing Date, (i) each Buyer shall
pay the purchase price to the Company for the Series A Preferred
Shares to be issued and sold to such Buyer at the Closing, by wire
transfer of immediately available funds in accordance with the Escrow
Agreement between the parties, dated as of January 6, 2000 and (ii)
the Company shall deliver to each Buyer, certificates representing
such Series A Preferred Shares which such Buyer is then purchasing (as
indicated opposite such Buyer's name on the Schedule of Buyers), duly
executed on behalf of the Company and registered in the name of such
Buyer or its designee (the "CERTIFICATES") and the Warrants.
2. BUYER'S REPRESENTATIONS AND WARRANTEES.
Each Buyer represents and warrants with respect to only itself that:
a. Investment Purpose. Such Buyer (i) is acquiring the Series
A Preferred Shares, (ii) upon conversion of the Series A Preferred
Shares, will acquire the Conversion Shares then issuable, (iii) will
acquire any Warrants issuable, and (iv) upon exercise of the Warrants,
will acquire the shares of common stock of EMD issuable upon exercise
thereof (the "WARRANT SHARES") for its own account for investment only
and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales
registered or exempted under the 1933 Act; provided, however, that by
making the representations herein, such Buyer does not agree to hold
any Series A Preferred Shares, Conversion Shares, Warrants, or Warrant
Shares for any minimum or other specific term and reserves the right
to dispose of Series A Preferred Shares, Conversion Shares,
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Warrants, or Warrant Shares at any time in accordance with or pursuant
to a registration statement or an exemption under the 1933 Act.
b. Accredited Investor Status. Such Buyer is an "accredited
investor" as that term is defined in Rule 501(a)(3) of Regulation D.
c. Reliance on Exemptions. Such Buyer understands that the
Series A Preferred Shares, the Conversion Shares, the Warrants, and
the Warrant Shares are being offered and sold 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 in part upon the truth and accuracy of, and such Buyer's
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Buyer set forth herein in
order to determine the availability of such exemptions and the
eligibility of such Buyer to acquire such securities.
d. Information. Such 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 Series A Preferred Shares, the Conversion Shares, the
Warrants, and the Warrant Shares, which have been requested by such
Buyer. Such Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. Neither such inquiries
nor any other due diligence investigations conducted by such Buyer or
its advisors, if any, or its representatives shall modify, amend or
affect such Buyer's right to rely on the Company's representations and
warranties contained in Section 3 below. Such Buyer understands that
its investment in the Series A Preferred Shares, the Conversion
Shares, the Warrants, and the Warrant Shares involves a high degree of
risk. Such Buyer has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision
with respect to its acquisition of the Series A Preferred Shares, the
Conversion Shares, the Warrants, and the Warrant Shares.
e. No Governmental Review. Such 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 Series A Preferred Shares, the Conversion Shares,
the Warrants, and the Warrant Shares or the fairness or suitability of
the investment in the Series A Preferred Shares, the Conversion
Shares, the Warrants, or the Warrant Shares nor have such authorities
passed upon or endorsed the merits of the offering of the Series A
Preferred Shares, the Conversion Shares, the Warrants, or the Warrant
Shares.
f. Transfer or Resale. Such Buyer understands that except as
provided in the Registration Rights Agreement: (i) the Series A
Preferred Shares, the Conversion Shares, the Warrants, and the Warrant
Shares have not been and are not being registered under the 1933 Act
or any state securities laws, and may not be offered for sale, sold,
assigned or transferred unless (a) subsequently registered thereunder,
(b) such Buyer shall have delivered to the Company an opinion of
counsel, in a generally acceptable form, to the effect that such
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securities to be sold, assigned or transferred may be sold, assigned
or transferred pursuant to an exemption from such registration, or (c)
such Buyer provides the Company with reasonable assurance that such
securities can be sold, assigned or transferred pursuant to Rule 144
promulgated under the 1933 Act, (ii) any sale of such securities made
in reliance on Rule 144 (or a successor rule thereto) ("RULE 144") may
be made only in accordance with the terms of Rule 144 and further, if
Rule 144 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 defined
in the 0000 Xxx) may require compliance with some other exemption
under the 1933 Act or the rules and regulations of the SEC thereunder;
and (iii) neither the Company nor any other person is under any
obligation to register such securities under the 1933 Act or any state
securities laws or to comply with the terms and conditions of any
exemption thereunder.
g. Legends. Such Buyer understands that the certificates or
other instruments representing the Series A Preferred Shares, the
Warrants and, until such time as the sale of the Conversion Shares
have been registered under the 1933 Act as contemplated by the
Registration Rights Agreement, the stock certificates representing the
Conversion Shares, and the Warrant Shares shall bear a restrictive
legend in substantially the following form (and a stop transfer order
may be placed against transfer of such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR
AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID
ACT.
The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of the Series A
Preferred Shares, the Conversion Shares, the Warrants, or the Warrant
Shares upon which it is stamped, if, unless otherwise required by
state securities laws, (i) the sale of the Conversion Shares or the
Warrant Shares is registered under the 1933 Act, (ii) in connection
with a sale transaction, such holder provides the Company with an
opinion of counsel, in a generally acceptable form, to the effect that
a public sale, assignment or transfer of the Series A Preferred
Shares, the Conversion Shares, the Warrants, or the Warrant Shares may
be made without registration
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under the 1933 Act, or (iii) such holder provides the Company with
reasonable assurances that the Series A Preferred Shares, the
Conversion Shares, the Warrants, or the Warrant Shares can be sold
pursuant to Rule 144 without any restriction as to the number of
securities acquired as of a particular date that can then be
immediately sold.
h. Authorization, Enforcement. This Agreement has been duly
and validly authorized, executed and delivered on behalf of such Buyer
and is a valid and binding agreement of such Buyer enforceable in
accordance with its terms, subject as enforceability to general
principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
i. Residency. Such Buyer is a resident of that country
specified in its address on the Schedule of Buyers.
j. No Scheme to Evade Registration. Buyer represents and
warrants to the Company that the acquisition of the Series A Preferred
Shares and the Conversion Shares is not a transaction (or any element
of a series of transactions) that is part of a plan or scheme by the
Buyer to evade the registration provisions of the 1933 Act.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that:
a. Organization and Qualification. The Company and EMD are
corporations duly organized and validly existing in good standing
under the laws of the jurisdiction in which they are incorporated, and
have the requisite corporate power to own their properties and to
carry on their business as now being conducted. Each of the Company
and EMD is duly qualified as a foreign corporation to do business and
is in good standing in every jurisdiction in which the nature of the
business conducted by it makes such qualification necessary, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and EMD taken
as a whole.
b. Authorization, Enforcement, Compliance with Other
Instruments. (i) The Company has the requisite corporate power and
authority to enter into and perform this Agreement, the Registration
Rights Agreement and any related agreements, and to issue the Series A
Preferred Shares, the Conversion Shares, and cause to be issued the
Warrants, and the Warrant Shares in accordance with the terms hereof
and thereof, (ii) the execution and delivery of this Agreement, the
Registration Rights Agreement and any related agreements by the
Company and the consummation by it of the transactions contemplated
hereby and thereby, including without limitation the issuance of the
Series A Preferred Shares and the Warrants and the reservation for
issuance and the issuance of the Conversion Shares and the Warrant
Shares issuable upon conversion or exercise thereof, have been duly
authorized by
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the Company's Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors or
its stockholders, (iii) this Agreement and the Registration Rights
Agreement and any related agreements have been duly executed and
delivered by the Company, (iv) this Agreement, the Registration Rights
Agreement and any related agreements constitute the valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors'
rights and remedies, and (v) prior to the Closing Date, the
Certificate of Designations has been filed with the Secretary of State
of the State of Delaware and will be in full force and effect,
enforceable against the Company in accordance with its terms.
c. Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 50,000,000 shares of Common
Stock, of which as of the date hereof 6,495,828 shares were issued and
outstanding, and 10,000,000 shares of Preferred Stock of which no
shares of preferred stock were issued and outstanding. All of such
outstanding shares have been validly issued and are fully paid and
nonassessable. Except as disclosed in Schedule 3(c), no shares of
Common Stock or preferred stock are subject to preemptive rights or
any other similar rights or any liens or encumbrances suffered or
permitted by the Company. Except as disclosed in Schedule 3(c), as of
the effective date of this Agreement, (i) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company, or
contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of capital
stock of the Company or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of
the Company, (ii) there are no outstanding debt securities and (iii)
there are no agreements or arrangements under which the Company is
obligated to register the sale of any of their securities under the
1933 Act (except the Registration Rights Agreement). There are no
securities or instruments containing anti-dilution or similar
provisions that will be triggered by the issuance of the Series A
Preferred Shares, the Conversion Shares, the Warrants, or the Warrant
Shares as described in this Agreement. The Company has furnished to
the Buyer true and correct copies of the Company's Articles of
Incorporation, as amended and as in effect on the date hereof (the
"ARTICLES OF INCORPORATION"), and the Company's By-laws, as in effect
on the date hereof (the "BY-LAWS"), and the terms of all securities
convertible into or exercisable for Common Stock and the material
rights of the holders thereof in respect thereto.
d. Issuance of Securities. The Series A Preferred Shares are
duly authorized and, upon issuance in accordance with the terms
hereof, shall be (i) validly issued, fully paid and nonassessable, are
free from all taxes, liens and charges with respect to the issue
thereof and are entitled to the rights and preferences set forth in
the Series A Preferred Shares. The Conversion Shares issuable upon
conversion of the Series A Preferred Shares have been duly
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authorized and reserved for issuance. Upon conversion or exercise in
accordance with the Series A Preferred Shares or the Warrants, the
Conversion Shares and the Warrant Shares will be validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof, with the holders being entitled to all
rights accorded to a holder of Common Stock.
e. No Conflicts. Except as disclosed in Schedule 3(e), the
execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated
hereby will not (i) result in a material violation of the Articles of
Incorporation, any preferences and rights of any outstanding series of
preferred stock of the Company or By-laws or (ii) conflict with or
constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which the Company or EMD is a
party, or result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and
regulations and the rules and regulations of the principal market or
exchange on which the Common Stock is traded or listed) applicable to
the Company or EMD or by which any property or asset of the Company or
EMD is bound or affected. Except as disclosed in Schedule 3(e),
neither the Company nor EMD is in violation of any term of or in
default under its Articles of Incorporation or Bylaws or their
organizational charter or by-laws, respectively, or any material
contract, agreement, mortgage, indebtedness, indenture, instrument,
judgment, decree or order or any statute, rule or regulation
applicable to the Company or EMD. To the knowledge of the Company, the
business of the Company and EMD are not being conducted, and shall not
be conducted in violation of any law, ordinance, or regulation of any
governmental entity. Except as specifically contemplated by this
Agreement and as required under the 1933 Act and any applicable state
securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver
or perform any of its obligations under or contemplated by this
Agreement or the Registration Rights Agreement in accordance with the
terms hereof or thereof except as disclosed in Schedule 3(e). All
consents, authorizations, orders, filings and registrations which the
Company is required to obtain pursuant to the preceding sentence have
been obtained or effected on or prior to the date hereof.
f. SEC Documents: Financial Statements. Since January 1,
1999, the Company has filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the Securities Exchange Act of 1934,
as amended (the "1934 ACT") (all of the foregoing filed prior to the
date hereof and all exhibits included therein and financial statements
and schedules thereto and documents incorporated by reference therein,
being hereinafter referred to as the "SEC DOCUMENTS"). The Company has
delivered to the Buyer or its representative true and complete copies
of the SEC Documents. As of their respective dates, the financial
statements of the Company attached as Schedule 3(f) hereto (the
"FINANCIAL STATEMENTS") complied as to form in all
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material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied, 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 exclude 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 its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments).
g. Absence of Certain Changes. Except as disclosed in Schedule
3(g), since January 1, 1999, there has been no material adverse change
and no material adverse development in the business, properties,
operations, financial condition, results of operations or prospects of
the Company or EMD. The Company has not taken any steps, and does not
currently expect to take any steps, to seek protection pursuant to any
bankruptcy law nor does the Company or EMD have any knowledge or
reason to believe that its creditors intend to initiate involuntary
bankruptcy proceedings.
h. Absence of Litigation. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its EMD against or
affecting the Company, the Common Stock or EMD, wherein an unfavorable
decision, ruling or finding would (i) have a material adverse effect
on the transactions contemplated hereby (ii) 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 the
documents contemplated herein or (iii), except as expressly set forth
in Schedule 3(h), have a material adverse effect on the business,
operations, properties, financial condition or results of operation of
the Company and EMD taken as a whole.
i. Acknowledgment Regarding Buyer's Purchase of Series A
Preferred Shares. The Company acknowledges and agrees that the Buyer
is acting solely in the capacity of an arm's length purchaser with
respect to this Agreement and the transactions contemplated hereby.
j. No Undisclosed Events, Liabilities, Developments or
Circumstances. No event, liability, development or circumstance has
occurred or exists, or is contemplated to occur, with respect to the
Company or EMD's respective business, properties, prospects,
operations or financial condition, which could be material but which
has not been publicly announced or disclosed in writing to the Buyer.
k. No General Solicitation. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the 0000 Xxx) in connection
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with the offer or sale of the Series A Preferred Shares, the
Conversion Shares, the Warrants, or the Warrant Shares.
1. No Integrated Offering. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that
would require registration of the Series A Preferred Shares, the
Conversion Shares, the Warrants, and the Warrant Shares under the 1933
Act or cause this offering of Series A Preferred Shares, the
Conversion Shares, the Warrants, or the Warrant Shares to be
integrated with prior offerings by the Company for purposes of the
1933 Act or any applicable stockholder approval provisions.
m. Employee Relations. Neither the Company nor EMD is involved
in any labor dispute nor, to the knowledge of the Company or EMD in
any such dispute threatened. Neither the Company nor EMD's employees
is a member of a union and the Company and EMD believe that their
relations with their employees are good.
n. Title. The Company and EMD have good and marketable title
in fee simple to all real property and good and marketable title to
all personal property owned by them which is material to the business
of the Company and EMD, in each case free and clear of all liens,
encumbrances and defects except such as are described in Schedule 3(n)
or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company and EMD. Any real property and facilities held
under lease by the Company and EMD are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and EMD.
o. Regulatory Permits. The Company and EMD possess all
material certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor
any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit.
p. Tax Status. Except as set forth on Schedule 3(p), the
Company and EMD has made or filed all federal and state income and all
other tax returns, reports and declarations required by any
jurisdiction to which it is subject (unless and only to the extent
that the Company and EMD has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being contested
in good faith and has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There
are no
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unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of
no basis for any such claim.
q. Fees and Rights of First Refusal. The Company is not
obligated to offer the securities offered hereunder on a right of
first refusal basis or otherwise to any third parties including, but
not limited to, current or former shareholders of the Company,
underwriters, brokers, agents or other third parties.
r. Shareholder Approval. The Company covenants to submit to
its shareholders at its next shareholder meeting a proposal for
ratification of the issuance of the Series A Preferred Shares and the
Conversion Shares, if and as required by the rules of the National
Association of Securities Dealers, Inc. (the "NASD") applicable to the
transaction.
s. Dilution. The Company acknowledges that issuance of the
Conversion Shares upon conversion of the Series A Preferred Shares
will result in dilution of the outstanding shares of Common Stock ,
which dilution may be substantial under certain market conditions. The
Company further acknowledges that its obligation to issue the
Conversion Shares upon conversion of the Series A Preferred Shares in
accordance with the terms of the Amendment is unconditional and
absolute, subject to the limitations set forth herein and in the
Amendment, regardless of the effect of any such dilution.
4. COVENANTS.
a. Best Efforts. Each party shall use its best efforts timely
to satisfy each of the conditions to be satisfied by it as provided in
Sections 6 and 7 of this Agreement.
b. Form D. The Company agrees to file a Form D with respect to
the Series A Preferred Shares and the Conversion Shares as required
under Regulation D and to provide a copy thereof to each Buyer
promptly after such filing. The Company shall, on or before the
Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Series A Preferred Shares and
the Conversion Shares for, or obtain exemption for the Series A
Preferred Shares and the Conversion Shares for, sale to the Buyers at
the Closing pursuant to this Agreement under applicable securities or
"Blue Sky" laws of the states of the United States, and shall provide
evidence of any such action so taken to the Buyers on or prior to the
Closing Date.
c. Reporting Status. Until the earlier of (i) the date as of
which the Investors (as that term is defined in the Registration
Rights Agreement) may sell all of the Conversion Shares without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or
successor thereto), or (ii) the date on which (A) the Investors shall
have sold all the Conversion Shares and (B) none of the Series A
Preferred Shares is outstanding (the "REGISTRATION PERIOD"), the
Company shall file all reports required to be filed with the SEC
pursuant to the 1934 Act, and the Company shall not terminate its
status as an issuer required
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to file reports under the 1934 Act even if the 1934 Act or the rules
and regulations thereunder would otherwise permit such termination.
d. Use of Proceeds. The Company will use the proceeds from
the sale of the Series A Preferred Shares for substantially the same
purposes and in substantially the same amounts as indicated in
Schedule 4(d).
e. Financial Information. The Company agrees to send the
following to each Buyer during the Registration Period: (i) within
five (5) days after the filing thereof with the SEC, a copy of its
Annual Reports on Form 10-KSB, its Quarterly Reports on Form 10-QSB,
any Current Reports on Form 8-KSB and any registration statements or
amendments filed pursuant to the 1933 Act; (ii) within one (1) day
after release thereof, copies of all press releases issued by the
Company or any of its subsidiaries and (ii) copies of the same notices
and other information given to the stockholders of the Company
generally, contemporaneously with the giving thereof to the
stockholders.
f. Reservation of Shares. The Company shall take all action
necessary to at all times have authorized, and reserved for the
purpose of issuance, no less than 100% of the number of shares of
Common Stock needed to provide for the issuance of the Conversion
Shares and Warrant Shares; provided that all shares of the Common
Stock authorized and not otherwise reserved for other purposes as of
the date hereof shall be reserved for the purpose of issuance of the
Conversion Shares.
g. Listings. The Company shall promptly secure the listing of
all Registrable Securities (as defined in the Registration Rights
Agreement) upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then
listed (subject to official notice of issuance) and shall maintain, so
long as any other shares of Common Stock shall be so listed, such
listing of all Conversion Shares from time to time issuable under the
terms of this Agreement and the Registration Rights Agreement. The
Company shall maintain the Common Stock's authorization for quotation
in the over-the counter market. The Company shall promptly provide to
each Buyer copies of any notices it receives regarding the continued
eligibility of the Common Stock for trading on the Nasdaq SmallCap
Market.
h. Expenses. Each of the Company and the Buyer shall pay all
costs and expenses incurred by such party in connection with the
negotiation, investigation, preparation, execution and delivery of
this Agreement and the Registration Rights Agreement.
i. Warrant Issuances. At Closing, the Company shall cause to
be issued to each Buyer warrants to acquire 50,000 shares of common
stock, par value $.001 of its majority owned subsidiary Electronic
Medical Distribution, Inc. for each one million dollars ($1,000,000)
invested in the form as attached as Exhibit "C" hereto (the "EMD
WARRANTS").
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The Company shall, in addition to the EMD Warrants otherwise issuable
hereunder, issue to each Buyer such Warrants (the "LOCK-UP WARRANTS")
as may be issuable to a Buyer pursuant to Section 2(i) of the
Amendment. Each Warrant issued hereunder (including pursuant to
Section 2(i) of the Amendment) shall be immediately exercisable and
shall expire (to the extent not exercised) on the fifth (5th)
anniversary of its issuance date.
j. No Short Sales of the Common Stock. So long as (i) a Buyer
or any of its affiliates beneficially owns any of Series A Preferred
Shares, (ii) the Company has not issued any publicly traded
convertible securities and (iii) the Issuer is not in material default
under the terms of the Series A Preferred Shares, each Buyer and its
affiliates shall not directly or indirectly engage in any short sales
or third party short sales of the Company's Common Stock or hold a
"put equivalent position" with respect to the Common Stock (as defined
in Rule 16a-1 under the 1934 Act).
k. Right of First Refusal. The Company agrees to provide the
Buyer with a right of first refusal with respect to subsequent
financings, as follows: The Company shall not, without the prior
written consent of the Buyer, offer or sell any of its equity
securities in a transaction intended to be exempt or not subject to
registration under the Securities Act (a "Subsequent Placement") until
the earlier of (i) the termination of the Pledge Agreement dated of
even date herewith by and among certain shareholders of the Company
and the Buyer, or (ii) the Registration Deadline, as such term is
defined in the Registration Rights Agreement, other than (x) the
granting of options or warrants to employees, officers and directors,
and the issuance of shares upon exercise of options granted, under any
stock option plan heretofore or hereinafter duly adopted by the
Company, (y) shares of Common Stock issuable upon exercise of
currently outstanding options and warrants and upon conversion of any
currently outstanding convertible securities of the Company, and (z)
shares of Common Stock issuable upon conversion of the Series A
Preferred Shares, unless (A) the Company delivers to the Buyer a
written notice (the "Subsequent Placement Notice") of its intention to
effect such Subsequent Placement, which Subsequent Placement Notice
shall describe in reasonable detail the proposed terms of such
Subsequent Placement, the amount of proceeds intended to be raised
thereunder, the entity with which such Subsequent Placement shall be
effected, and attached to which shall be a term sheet or similar
document relating thereto and (B) the Buyer shall not have notified
the Company by 5:30 p.m. (New York City time) on the third business
day after the delivery of the Subsequent Placement Notice of its
willingness to provide financing to the Company on the same terms set
forth in the Subsequent Placement Notice. If the Buyer shall notify
the Company of its willingness to so provide financing on such terms,
the Buyer shall provide such financing, but the Company shall not be
required in any event to accept financing from the Buyer in an amount
less than or in excess of the amount set forth in the Subsequent
Placement Notice. If the Buyer shall fail to notify the Company of its
intention to provide such financing, the Company may effect the
Subsequent Placement substantially upon the terms and to the entity or
entities (or affiliates thereof) set forth in the Subsequent Placement
Notice;
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provided, that the Company shall provide the Buyer with a second
Subsequent Placement Notice, and the Buyer shall again have the right
of first refusal as herein set forth, if the Subsequent Placement
subject to the initial Subsequent Placement Notice shall not have been
consummated for any reason on the terms set forth in such Subsequent
Placement Notice within sixty business days after the date of the
initial Subsequent Placement Notice .
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall issue irrevocable instructions to its transfer agent
to issue certificates, registered in the name of the Buyer or its respective
nominee(s), for the Conversion Shares and Warrant Shares in such amounts as
specified from time to time by the Buyer to the Company upon conversion of the
Series A Preferred Shares or exercise of the Warrants (the "IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS"). Prior to registration of the Conversion Shares
and Warrant Shares under the 1933 Act, all such certificates shall bear the
restrictive legend specified in Section 2(g) of this Agreement. The Company
warrants that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 5, and stop transfer instructions to
give effect to Section 2(g) hereof (in the case of the Conversion Shares and
Warrant Shares, prior to registration of such shares under the 0000 Xxx) will
be given by the Company to its transfer agent and that the Series A Preferred
Shares, the Conversion Shares, the Warrants, and the Warrant Shares shall
otherwise be freely transferable on the books and records of the Company as and
to the extent provided in this Agreement and the Registration Rights Agreement.
Nothing in this Section 5 shall affect in any way the Buyer's obligations and
agreement to comply with all applicable securities laws upon resale of the
Series A Preferred Shares, the Conversion Shares, the Warrants, and the Warrant
Shares. If the Buyer provides the Company with an opinion of counsel,
satisfactory in form and substance to the Company, that registration of a
resale by the Buyer of any of the Series A Preferred Shares, the Conversion
Shares, the Warrants, or the Warrant Shares is not required under the 1933 Act,
the Company shall permit the transfer, and, in the case of the Conversion
Shares or the Warrant Shares, promptly instruct its transfer agent to issue one
or more certificates in such name and in such denominations as specified by the
Buyer.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Series A
Preferred Shares to the Buyer at the Closing is subject to the satisfaction, at
or before the Closing Date, of each of the following conditions, provided that
these conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion:
a. The Buyer shall have executed this Agreement and the
Registration Rights Agreement and delivered the same to the Company.
b. The Amendment shall have been filed with the Secretary of
State of the State of Georgia.
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c. The Buyer shall have delivered to the Company the Purchase
Price for the Series A Preferred Shares being purchased by the Buyer
at the Closing by wire transfer of immediately available funds
pursuant to the wire instructions provided by the Company.
d. The representations and warranties of the Buyer shall be
true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date), and
the Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Buyer at or prior to the Closing Date.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer hereunder to purchase the Series A
Preferred Shares at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions, provided that these
conditions are for the Buyer's sole benefit and may be waived by the Buyer at
any time in its sole discretion:
a. The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Buyer.
b. The Common Stock shall be authorized for quotation on the
Nasdaq SmallCap Market and trading in the Common Stock shall not have
been suspended for any reason and all of the Conversion Shares
issuable upon conversion of the Series A Preferred Shares shall be
approved for listing.
c. The representations and warranties of the Company shall be
true and correct in all material respects (except to the extent that
any of such representations and warranties is already qualified as to
materiality in Section 3 above, in which case, such representations
and warranties shall be true and correct without further
qualification) as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties
that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to
the Closing Date. The Buyer shall have received a certificate,
executed by the Chief Executive Officer of the Company, dated as of
the Closing Date, to the foregoing effect and as to such other matters
as may be reasonably requested by the Buyer including, without
limitation an update as of the Closing Date regarding the
representation contained in Section 3(c) above.
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d. The Buyer shall have received the opinion of the Company's
counsel dated as of the Closing Date, in form, scope and substance
reasonably satisfactory to the Buyer and in substantially the form of
Exhibit "D" attached hereto.
e. The Company shall have executed and delivered to the Buyer
the Certificates (in such denominations as the Buyer shall request)
for the Series A Preferred Shares being purchased by the Buyer at the
Closing.
f. The Board of Directors of the Company shall have adopted
the resolutions in substantially the form of Exhibit "E" attached
hereto.
g. As of the Closing Date, the Company shall as of the
Closing Date have reserved out of its authorized and unissued Common
Stock, solely for the purpose of effecting the conversion of the
Series A Preferred Shares, such number of shares of Common Stock equal
to or greater than 100% of the number of shares of Common Stock for
which are issuable upon conversion of all of the Series A Preferred
Shares, and the Warrant Shares could be issued at any time under this
Agreement.
h. The Irrevocable Transfer Agent Instructions, in form and
substance satisfactory to the Buyer, shall have been delivered to and
acknowledged in writing by the Company's transfer agent.
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8. INDEMNIFICATION.
In consideration of the Buyer's execution and delivery of this
Agreement and acquiring the Series A Preferred Shares, the Conversion Shares,
and the Warrants, and the Warrant Shares hereunder and in addition to all of
the Company's other obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Buyer and each other holder of the
Series A Preferred Shares, the Conversion Shares, and the Warrants, and the
Warrant Shares and all of their officers, directors, employees and agents
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "INDEMNITEES")
from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection
therewith (irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and including reasonable
attorneys' fees and disbursements (the "INDEMNIFIED LIABILITIES"), incurred by
the Indemnitees or any of them as a result of, or arising out of, or relating
to (a) any misrepresentation or breach of any representation or warranty made
by the Company in this Agreement, the Series A Preferred Shares, the Warrants,
or the Registration Rights Agreement or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in this Agreement, the
Certificate of Designations, the Warrants, or the Registration Rights Agreement
or any other certificate, instrument or document contemplated hereby or
thereby, or (c) any cause of action, suit or claim brought or made against such
Indemnitee and arising out of or resulting from the execution, delivery,
performance or enforcement of this Agreement or any other instrument, document
or agreement executed pursuant hereto by any of the Indemnities, any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Series A Preferred Shares
or the status of the Buyer or holder of the Series A Preferred Shares, the
Warrants, or the Conversion Shares or the Warrant Shares, as an investor in the
Company, except for any Indemnified Liability which directly or primarily
results from the particular Indemnitee's gross negligence or willful misconduct
for which such holder shall indemnify the Company in the same manner as
provided in this Section 8. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
9. GOVERNING LAW: MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Georgia
without regard to the principles of conflict of laws. Any dispute or
controversy between the parties arising in connection with this
agreement or the subject matter contemplated by this agreement shall
be resolved by arbitration before a three-member panel of the American
Arbitration Association in accordance with the commercial arbitration
rules of said forum and the Federal Arbitration Act, 9 U.S.C. 1 et
seq., with the resulting award being final and conclusive. Said
arbitrators shall be empowered to award all forms of relief and
damages claimed, including, but not limited to, attorney's fees,
expenses of litigation and arbitration, exemplary damages, and
16
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prejudgment interest. Notwithstanding the foregoing, Buyer may at any
time and at its option, whether or not an arbitration action is then
pending, initiate a civil action for temporary and permanent
injunctive and other equitable relief against Company. Company
acknowledges that upon any breach of Buyer's conversion rights
hereunder, Buyer's resulting injury may not be adequately compensated
by a remedy at law. Accordingly, upon such breach, Buyer, at its
election and without limitation of its other remedies, shall be
entitled to pursue a claim for specific performance of this Agreement,
and Company hereby waives the right to assert any defense thereto that
Purchaser has an adequate remedy at law. The parties further agree
that any arbitration action between them shall be heard in Atlanta,
Georgia, and expressly consent to the jurisdiction and venue of the
Superior Court of Xxxxxx County, Georgia, and the United States
District Court for the Northern District of Georgia, Atlanta Division
for the adjudication of any civil action asserted pursuant to this
Paragraph.
b. Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party. In the event
any signature page is delivered by facsimile transmission, the party
using such means of delivery shall cause four (4) additional original
executed signature pages to be physically delivered to the other party
within five (5) days of the execution and delivery hereof
c. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
d. Severability. 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 in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other
jurisdiction.
e. Entire Agreement, Amendments. This Agreement supersedes
all other prior oral or written agreements between the Buyer, the
Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and the
instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the
Company nor any Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in
writing signed by the party to be charged with enforcement.
f. Notices. Any notices, consents, waivers, or other
communications required or permitted to be given under the terms of
this Agreement must be in writing and will be deemed to have been
delivered (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile, provided a copy is mailed by U.S.
certified mail, return receipt requested; (iii) three (3) days after
being sent by U.S. certified mail, return receipt requested, or (iv)
one (1) day after deposit with a nationally recognized overnight
delivery service, in
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each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
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If to the Company:
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice):
Xxxxxxx X. Xxxx, Esq.
XXXX XXXX XXXXX & XXXXX LLP
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Transfer Agent:
American Stock Transfer
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Buyer, to its address and facsimile number on the Schedule
of Buyers, with copies to the Buyer's counsel as set forth on the
Schedule of Buyers. Each party shall provide five (5) days' prior
written notice to the other party of any change in address or
facsimile number.
g. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and assigns. The Company shall not assign this Agreement or
any rights or obligations hereunder without the prior written consent
of the Buyer. The Buyer may assign its rights hereunder without the
consent of the Company, provided, however, that the Company is given
written notice by such holder at the time of such transfer, stating
the name and address of such transferee and any such assignment shall
not release the Buyer from its obligations hereunder unless such
obligations are assumed by such assignee and the Company has consented
to such assignment and assumption.
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h. No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
i. Survival. The representations and warranties of the Company
and the Buyer contained in Sections 2 and 3, the agreements and
covenants set forth in Sections 4, 5 and 9, and the indemnification
provisions set forth in Section 8 shall survive for a period of one
year following the Closing. The Buyer shall be responsible only for
its own representations, warranties, agreements and covenants
hereunder.
j. Publicity. The Company and the Buyer shall have the right
to approve before issuance any press releases or any other public
statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the
prior approval of the Buyer, to make any press release or other public
disclosure with respect to such transactions as is required by
applicable law and regulations (although the Buyer shall be consulted
by the Company in connection with any such press release or other
public disclosure prior to its release and shall be provided with a
copy thereof).
k. Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
1. Termination. In the event that the Closing shall not have
occurred with respect to the Buyer on or before five (5) business days
from the date hereof due to the Company's or the Buyer's failure to
satisfy the conditions set forth in Sections 6 and 7 above (and the
nonbreaching party's failure to waive such unsatisfied condition(s)),
the nonbreaching party shall have the option to terminate this
Agreement with respect to such breaching party at the close of
business on such date without liability of any party to any other
party.
m. Placement Agent. The Company acknowledges that it has
engaged Xxxxxxx.xxx, Inc. as an agent in connection with the sale of
the Series A Preferred Shares. The Company shall be responsible for
the payment of any finder's fees (which includes cash and warrants to
purchase Common Stock) relating to or arising out of the transactions
contemplated hereby.
n. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be
applied against any party.
o. Independent Counsel. The parties to this Agreement
acknowledge that the Company has received independent counsel form the
law firm of Xxxx Moss Kline & Xxxxx LLP which is acting as its
counsel. Buyers have been advised by Xxxx Moss Kline & Xxxxx
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LLP to seek independent advice with respect to the terms and
conditions of this Agreement and any related agreements before signing
them.
10. CONFIDENTIALITY.
(a) As much of the information and other material furnished
under or in connection with this Agreement (whether furnished before,
on or after the date hereof) as constitutes or contains confidential
business, financial or other information of the Company or its
subsidiaries, each Buyer covenants for itself, and, as applicable, for
its directors, officers, affiliates and partners, that it will use due
care to prevent its officers, directors, partners, employees, counsel,
accountants and other representatives from disclosing such information
to persons other than their respective authorized employees, counsel,
accountants, shareholders, partners, limited partners and other
authorized representatives. Notwithstanding the foregoing, if a Buyer
is advised by such counsel that such disclosure or delivery is
required by law, regulation or judicial or administrative order, then
they may disclose or deliver such information or other after giving
written notice to the Company of such requirements.
For purposes of this Section 10(a), "due care" means at least
the same level of care that a Buyer would use to protect the
confidentiality of its own sensitive or proprietary information, and
this obligation shall survive termination of this Agreement.
(b) To the extent that any of the information furnished by
the Company to the Buyers hereof would constitute material, nonpublic
information for purposes of the Exchange Act, Buyers agree not to
engage in any purchase or sale of securities while in possession of
such information and prior to the time that such information is made
generally known to the public and Buyers agree to use due care to
prevent their officers, directors, partners, employees, counsel and
other representatives, who have been given access to such material,
nonpublic information, from engaging in any such purchase or sale
during such period.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Buyer and the Company have caused this
Securities Purchase Agreement to be duly executed as of the date first written
above.
"COMPANY"
BIOSHIELD TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Chairman of the Board and Chief Executive
Officer
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Its: Executive Vice President
"BUYER"
XXXXXX LLC
By: Navigator Management Ltd.
--------------------------------------------
Name: By: Xxxxx X. Xxxx
------------------------------------------
Title: Director
-----------------------------------------
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SCHEDULE OF BUYERS
------------------------------------------------------------------------------
NUMBER OF SERIES
A PREFERRED
BUYER'S NAME ADDRESS/FACSIMILE NUMBER OF BUYER SHARES
------------------------------------------------------------------------------
XXXXXX LLC x/x Xxxxx Xxxxxxxx (Xxxxxx) Ltd. 200
Attn: Xxxxx Xxxx
Corporate Centre, Windwood One
West Bay Road
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
000-000-0000
------------------------------------------------------------------------------
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SCHEDULE 3(c)
Capitalization
None.
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SCHEDULE 3(e)
Conflicts
None.
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SCHEDULE 3(f)
Financial Statements
Reference is made to all public filings made by the Company with the SEC
available at xxxx://xxx.xxx.xxx/.
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SCHEDULE 3(h)
Litigation
None.
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SCHEDULE 3(n)
Intellectual Property
None.
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SCHEDULE 3(n)
Liens
None.
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30
SCHEDULE 3(p)
Tax Status
None.
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SCHEDULE 4(d)
Use of Proceeds
Working capital.
31
