Exhibit 10.02
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAW, AND MAY NOT BE OFFERED OR SOLD WITHOUT REGISTRATION UNDER
THE SECURITIES ACT AND AS REQUIRED BY APPLICABLE STATE SECURITIES LAWS IN EFFECT
AS TO SUCH TRANSFER, UNLESS AN EXEMPTION FROM SUCH REGISTRATION UNDER STATE AND
FEDERAL LAW IS AVAILABLE. THIS SUBSCRIPTION AGREEMENT DOES NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
REFERRED TO HEREIN.
AMENDED AND RESTATED
UNIT SUBSCRIPTION AGREEMENT
Amnis Systems Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Re: Amnis Systems Inc., a Delaware Corporation (the "Company")
Purchase of Units (the "Units") as described below.
Gentlemen:
This Amended and Restated Unit Subscription Agreement (the "Agreement") is
dated effective as of the date first written below, by and between the Company
and the undersigned ("Purchaser"), with respect to that certain Unit
Subscription Agreement dated as of February 15, 2002 between the Company and the
Purchaser which, in consideration of the respective representations, warranties,
covenants and agreements set forth in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the Company and the Purchaser, intending to be legally
bound hereby, agree to amend and restate to read in full as follows:
The Purchaser, by signing the signature page attached hereto, hereby
irrevocably tenders this subscription and applies to purchase the number of
Units (the "Designated Units") as set out under Purchaser's address on the
signature page hereto for a purchase price of $8.00 per Designated Unit and a
total purchase price for the Designated Units as set forth on the signature page
hereto, each Designated Unit consisting of ten shares (the "Common Shares") of
the Company's Common Stock, par value $0.0001 per share (the "Common Stock"),
and one warrant (a "Warrant") to purchase three shares of Common Stock (the
"Warrant Shares") at an exercise price per share set forth in the amended and
restated warrant agreement (the "Amended and Restated Warrant Agreement")
attached hereto as Exhibit A; provided however, for each Designated Unit, at the
option of Purchaser (the "Reset Option"), that (1) as of the date first written
below, the Reset Option shall be automatically exercised and the number of
Common
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Shares comprising such Designated Unit shall be increased by the difference
between (A) the purchase price per Designated Unit set forth on the signature
page hereto divided by $0.385, less (B) ten, and the Company will deliver the
certificates representing such additional Common Shares to Grushko & Xxxxxxx,
P.C. (the "Escrow Agent") pursuant to a Funds Escrow Agreement of even date
herewith by and among the Company, each Purchaser and the Escrow Agent; and (2)
at any time after the date first written below, from time to time but only one
time for each Designated Unit, until June 18, 2005, the Reset Option may be
exercised again by written notice to the Company, in which case the number of
Common Shares comprising such Designated Unit shall be increased by the
difference (rounded to the nearest whole share) between (A) the purchase price
per Designated Unit set forth on the signature page hereto divided by 70% of the
average of the three lowest intraday trading prices for the Common Stock on the
Principal Market for the 20 trading days prior to but not including the date of
such notice ("Principal Market" shall mean the OTC Pink Sheets, NASD OTC
Bulletin Board, NASDAQ SmallCap Market, NASDAQ National Market System, American
Stock Exchange, or New York Stock Exchange, as applicable, or if not then
trading on any of the foregoing, such other principal market or exchange where
the Common Stock is listed or traded), less (B) 21, and the Company will deliver
the certificates representing such additional Common Shares to Purchaser no
later than five business days after receipt of such written notice.
The Purchaser shall not be entitled to exercise the Reset Option at any
date ("Reset Date") in connection with that number of shares of Common Stock
which would be in excess of the sum of (i) the number of shares of Common Stock
beneficially owned by the Purchaser and its affiliates on a Reset Date, and
(ii) the number of shares of Common Stock issuable upon the exercise of the
Reset Option with respect to which the determination of this provision is being
made on a Reset Date, which would result in beneficial ownership by the
Purchaser and its affiliates of more than 9.99% of the outstanding shares of
Common Stock of the Company on such Reset Date. For the purposes of the
provision to the immediately preceding sentence, beneficial ownership shall be
determined in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, and Regulation 13d-3 thereunder. Subject to the foregoing,
the Purchaser shall not be limited to aggregate exercises of only 9.99% and
aggregate exercise by the Purchaser may exceed 9.99%. The Purchaser may void
the exercise limitation described in this paragraph upon 75 days prior written
notice to the Company. The Purchaser may allocate which of the equity of the
Company deemed beneficially owned by the Purchaser shall be included in the
9.99% amount described above and which shall be allocated to the excess above
9.99%.
The amount of cash or good funds as tender of the purchase price for the
Designated Units, has been paid and, based on the price per Designated Unit set
forth on the signature page hereto, is in the aggregate amount set out under the
undersigned's address on the signature page hereto.
The Company has authorized the issuance, sale and delivery of up to 250,000
Units and intends to offer and sell other Units to other investors pursuant to
separate similar subscription agreements.
Purchaser hereby represents and warrants to, and covenants with, the
Company as follows, recognizing that the Company will rely to a material degree
upon such representations,
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warranties and covenants, each of which shall survive any acceptance of this
subscription in whole or in part by the Company and the issuance and sale of any
Designated Units to Purchaser:
1. DUE DILIGENCE. Purchaser acknowledges that Purchaser has received and
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reviewed a copy of the Company's Business Plan and that Purchaser has conducted
its own due diligence with respect to the information contained therein.
Purchaser understands and agrees that the Business Plan and the information
contained therein are not to be construed as representations, warranties or
promises of future performance.
2. COMPLIANCE WITH SECURITIES LAWS. Purchaser understands and agrees that
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the Common Shares and Warrants comprising the Designated Units and the Warrant
Shares have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), by reason of one or more specific exemptions from the
registration provisions thereof which depend upon, among other things, the bona
fide nature of the investment as expressed herein. Purchaser understands and
agrees that the Company may present this Agreement and the Investor
Questionnaire attached hereto to such parties as it deems advisable if called
upon to establish the availability under any federal or state securities laws of
an exemption from such registration.
3. INVESTOR QUESTIONNAIRE. All statements made by Purchaser in the Investor
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Questionnaire that is attached hereto are true, accurate and complete as of the
date hereof.
4. ACCREDITED INVESTOR. Purchaser is an "accredited investor" (as defined
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in Regulation D under the Securities Act and as described in Part B of the
Investor Questionnaire attached hereto).
5. RISK OF INVESTMENT. Purchaser has been informed and is aware that an
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investment in the Company involves a high degree of risk and speculation and is
suitable only for investors who can afford a loss of their entire investment and
who have no need for liquidity from their investment.
6. KNOWLEDGE AND EXPERIENCE. Purchaser confirms that Purchaser has such
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knowledge and experience in financial and business matters, including
investments in companies similar to the Company, that it is qualified to make
decisions with respect to investments in restricted securities such as this
Agreement and the Designated Units, and has requested, received, reviewed and
considered all information Purchaser deems relevant in making a decision to
execute this Agreement and to purchase the Designated Units. Purchaser
acknowledges that Purchaser is capable of evaluating the merits and risks of an
investment in the Designated Units.
7. ACCESS TO INFORMATION. Purchaser acknowledges that the Company has made
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available to Purchaser the opportunity to (A) discuss the Company's business,
management and financial affairs with its management, (B) ask questions and
receive answers concerning the terms and conditions of the offering of the
Units, and (C) obtain any additional information that the Company possesses or
can acquire without unreasonable effort or expense that is necessary to verify
the accuracy of the information furnished or to decide whether or not to
purchase the Designated Units.
8. SUITABILITY. Purchaser has carefully considered and has, to the extent
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Purchaser deemed necessary, discussed with Purchaser's own professional legal,
tax and financial advisers
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the suitability of an investment in the Designated Units for Purchaser's
particular tax and financial situation, and Purchaser has determined that the
Units are a suitable investment. Purchaser understands and acknowledges that no
federal or state agency has made any finding or determination as to the fairness
or suitability for investment in, or any recommendation or endorsement of, the
Company or the Units.
9. INVESTMENT. Purchaser is purchasing the Designated Units for Purchaser's
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own account for investment and not with a view to, or for resale in connection
with, any distribution thereof or of any interest therein. No person or entity
has any beneficial ownership or interest in the Designated Units, and the
Designated Units are not, and will not be, subject to any lien, pledge or
encumbrance of any kind.
10. RESTRICTIONS ON RESALES. Purchaser understands and agrees that because
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the Common Shares and Warrants comprising the Units and the Warrant Shares have
not been registered under the Securities Act, the Common Shares and Warrants
comprising the Designated Units and the Warrant Shares must be held indefinitely
unless subsequently registered under the Securities Act or an exemption from
such registration is available. Purchaser further understands and acknowledges
that the Securities Act prohibits resales of securities except pursuant to an
effective registration statement or an exemption from registration for which
such securities and Purchaser qualifies. Purchaser understands and acknowledges
that there can be no assurance that Purchaser will be able to qualify for such
an exemption from registration.
11. COMPLIANCE WITH SECURITIES ACT. Purchaser will not, directly or
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indirectly, voluntarily offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) its rights under this Agreement, the Common Shares and Warrant Shares
comprising the Designated Units or any interest therein otherwise than in
compliance with the Securities Act, any applicable state securities or blue sky
laws, and the rules and regulations promulgated thereunder.
12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
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and warrants to Purchaser as follows:
(a) ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own, operate and lease its
properties and assets now owned or leased by it and to carry on its business as
now conducted. The Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which the failure to so
qualify would have a material adverse effect on the business, properties,
financial condition or result of operation of the Company and its subsidiaries
(on a consolidated basis).
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(b) CAPITAL STRUCTURE.
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(i) CAPITAL STRUCTURE. As of January 31, 2002, the authorized capital
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stock of the Company consists of 100,000,000 shares of Common Stock, of which
13,498,510 shares were outstanding and (B) 20,000,000 shares of preferred stock,
par value $0.0001 per share, none of which are outstanding.
(ii) OTHER OBLIGATIONS TO ISSUE CAPITAL STOCK. Except as set forth on
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SCHEDULE 12(B) (CAPITAL STRUCTURE), there exist no (A) outstanding options,
warrants or other rights to purchase or subscribe for any equity securities or
other ownership interests of the Company, (B) indebtedness or securities
directly or indirectly convertible into or exchangeable for any equity
securities of the Company, or (C) any other obligations, rights, agreement or
arrangements, whether absolute or contingent, with respect to the issuance of
any equity securities of the Company. The Company has no obligation, whether
absolute or contingent, to repurchase any of the issued and outstanding capital
stock or other securities of the Company.
(c) AUTHORITY, APPROVAL, ENFORCEABILITY.
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(i) AUTHORITY, APPROVAL. The Company has all requisite power and
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authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby have
been, or prior to the Closing Date will have been, duly and validly authorized
by all necessary corporate action on its part.
(ii) ENFORCEABILITY. This Agreement constitutes the valid, legal and
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binding obligation of the Company, enforceable against it in accordance with its
terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and subject to general equitable principles.
(d) NO CONFLICT. Neither the execution or delivery by the Company of this
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Agreement, nor the performance and consummation of the transactions contemplated
hereby, nor compliance by it with the terms, conditions and provisions hereof
conflicts with or results in or gives rise to (with or without the giving of
notice or the lapse of time or both) a breach or violation of, or default,
termination, forfeiture or acceleration or obligations under, any terms or
provisions of (1) its constitutional documents, (2) any statute, rule or
regulations, or any judicial, governmental, regulatory or administrative decree,
order or judgment applicable to the Company, or (3) any note, bond, mortgage,
deed of trust, commitment, indenture, lease, guaranty, franchise, license,
permit, agreement or any other instrument of obligation to which it is a party
or by which it or any of its assets may be bound
(e) REPORTS AND FINANCIAL STATEMENTS. The Company has filed all required
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reports, forms, statements and other documents required to be filed by it with
the Commission since April 16, 2001 (collectively, the "SEC Reports"). All of
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the SEC Reports, as of their respective dates (and, as of the date of any
amendment to such SEC Reports), complied as to form in all material respects
with the applicable requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder. None of the SEC
Reports as of their respective dates (and, if amended or superceded by a filing
prior to the date of this Agreement,
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then on the date of such filing), contained or will contain any untrue statement
of a material fact or omitted or will omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of the financial
statements (including the related notes) included in the SEC Reports presents
fairly, in all material respects, the consolidated financial position and
consolidated results of operations and cash flows of the Company and its
consolidated subsidiaries as of the respective dates or for the respective
period set forth therein, all in conformity with GAAP consistently applied
during the periods involved except as otherwise noted therein, and subject, in
the case of the unaudited interim financial statements, to the absence of notes
and normal year-end adjustments that have not been and are not expected to be
material in amount.
(f) THE SHARES. The Common Shares to be issued to Purchaser as contemplated
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hereunder are duly authorized, and when issued and paid for pursuant to the
terms of this Agreement will be validly issued, fully paid, non-assessable and
not subject to any preemptive rights.
(g) LITIGATION; COMPLIANCE WITH APPLICABLE LAWS.
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(i) LITIGATION. Except as disclosed in the SEC Reports and in the
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attached Litigation Schedule 12(g), the Company is not a party to any
litigation, claim, arbitration, investigation or other proceeding nor, to the
best knowledge of the Company, is there any such litigation, claim, arbitration,
investigation or other proceeding threatened against the Company which,
individually or in the aggregate, would reasonably be expected to have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries taken as a whole, or seeking to
enjoin or prohibit any of the transactions contemplated by this Agreement.
(ii) COMPLIANCE WITH APPLICABLE LAWS. To the best knowledge of the
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Company, the Company has complied and is in compliance in all material respects
with all laws, ordinances, regulations, rules, requirements and orders of all
governmental agencies or entities applicable to the Company, and the Company has
not received any notice of any asserted violation of any such laws, ordinances,
regulations, rules, requirements or orders.
(h) BROKERS. The Company is obligated for the payment of fees or expenses
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of certain finders in connection with the origin, negotiation or execution of
this Agreement or the transactions contemplated hereby.
(i) REPORTING REQUIREMENTS. From the Closing Date and until at least two
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(2) years after the effectiveness of the Registration Statement on Form SB-2 or
such other Registration Statement described in Section 13 hereof, the Company
will (i) cause its Common Stock to continue to be registered under Sections
12(b) or 12(g) of the Exchange Act, (ii) comply in all respects with its
reporting and filing obligations under the Exchange Act, (iii) comply with all
reporting requirements that are applicable to an issuer with a class of Shares
registered pursuant to Section 12(g) of the Exchange Act, and (iv) comply with
all requirements related to any registration statement filed pursuant to this
Agreement. The Company will use its best efforts not to take any action or file
any document (whether or not permitted by the Act or the Exchange Act or the
rules thereunder) to terminate or suspendsuch registration or to terminate or
suspend
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its reporting and filing obligations under said Acts until two (2) years after
the actual effective date of the Registration Statement on Form SB-2 or such
other Registration Statement described in Section 13 hereof. Until the later of
the resale of the Common Shares by the Purchaser without further transfer
restrictions or at least two (2) years after the Warrants have been exercised,
the Company will use its best efforts to continue the listing of the Common
Stock on the Bulletin Board and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of Bulletin
Board.
(j) INJUNCTION - POSTING OF BOND. In the event a Purchaser shall elect to
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exercise the Reset Option or part thereof, or sell or transfer the Common Shares
pursuant to the Registration Statement, the Company may not refuse exercise or
transfer based on any claim that such Purchaser or any one associated or
affiliated with such Purchaser has been engaged in any violation of law, or for
any other reason, unless, an injunction from a court, on notice, restraining and
or enjoining exercise of all or part of said Reset Option shall have been sought
and obtained and the Company posts a surety bond for the benefit of such
Purchaser in the amount of 130% of the amount of the purchase price of the
Common Stock subject to the Reset Option, which is subject to the injunction,
which bond shall remain in effect until the completion of arbitration/litigation
of the dispute and the proceeds of which shall be payable to such Purchaser to
the extent Purchaser obtains judgment; the foregoing notwithstanding if the
Company is required to abide by any order from a court or other governmental
entity then it shall not be required to post such surety bond for the benefit of
such Purchaser.
13. REGISTRATION RIGHTS.
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(a) REGISTRATION.
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(i) REGISTRATION. The Company will prepare and, on the later of (A)
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June 28, 2002 or (B) six weeks after the Company's registration statement in
respect of the securities subject to that certain securities purchase agreement
dated as of December 28, 2001 between the Company and Bristol Investment Fund,
Ltd. shall have been declared effective by the Commission, but in no event later
than July 17, 2002 (such filing date, hereinafter referred to as the "Filing
Date"), will file with the Commission a registration statement on Form SB-2 (or
such other form as may be available) (the "Registration Statement") with respect
----------------------
to the Common Shares (including, to the extent that the Reset Option has not
been exercised by Purchaser, a number of shares of Common Stock equal to an
additional 100% of the Common Shares then comprising the Designated Units and
the Units purchased by investors who have executed similar subscription
agreements, which the Company acknowledges represents a good faith estimate of
the maximum number of shares of Common Stock issuable upon exercise of the Reset
Option and the reset options granted to such other investors) and Warrant Shares
and the common shares and warrant shares comprising units purchased by such
other investors (collectively, the "Shares"), but no less than 27,000,000
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shares, and to effect registration (including the execution of an undertaking to
file post-effective amendments, appropriate qualifications under blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as would permit or facilitate the
sale and distribution of all of such Shares by Purchaser and such other
investors (collectively, the "Selling Stockholders") from time to time during
the period provided for in Section 13(b) on the over-the-counter market, in
other permitted public sales or in privately negotiated transactions; provided,
however, the Company
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shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act.
(ii) FAILURE TO FILE REGISTRATION STATEMENT. If (A) the Company shall
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fail to file the Registration Statement by June 15, 2002, or (B) the
Registration Statement is not declared effective by the Commission on or prior
to 90 days after the Registration Statement has been filed, the Company will pay
to Purchaser, as liquidated damages and not as a penalty, a cash amount equal to
2% of the total purchase price of the Designated Units set forth on the
signature page hereto for each 30-day period (or portion thereof) after June 15,
2002 or the end of the aforementioned 90 days, as the case may be.
(iii) ADDITIONAL REGISTRATION.
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(A) ADDITIONAL REGISTRATION. To the extent that the number of
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Shares included in the Registration Statement shall not be sufficient cover
the additional Common Shares issuable upon exercise of the Reset Option,
the Company will prepare and, within 90 days after exercise by Purchaser of
the Reset Option (the "Additional Filing Date"), file with the Commission
an additional registration statement on Form SB-2 (or such other form as
may be available) (the "Additional Registration Statement") with respect to
such Common Shares and such additional shares of Common Stock issuable to
other Selling Stockholders who have exercised their reset option pursuant
to similar subscription agreements (the "Additional Shares") and to effect
registration (including the execution of an undertaking to file
post-effective amendments, appropriate qualifications under blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as would permit or facilitate
the sale and distribution of all of such shares by Purchaser and such other
Selling Stockholders from time to time during the period provided for in
Section 13(b) on the over-the-counter market, in other permitted public
sales or in privately negotiated transactions, and, for purposes of
Sections 13(b), 13(c) and 13(d) of this Agreement, the term "Registration
Statement" shall mean the Additional Registration Statement and the term
"Shares" shall mean the Additional Shares; provided, however, the Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section in any particular
jurisdiction in which the Company would be required to execute a general
consent to service of process in effecting such registration, qualification
or compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
(B) FAILURE TO FILE ADDITIONAL REGISTRATION STATEMENT. If (A)
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the Company shall fail to file the Additional Registration Statement by the
Additional Filing Date, or (B) the Additional Registration Statement is not
declared effective by the Commission on or prior to 90 days after the
Additional Registration Statement has been filed, the Company will pay to
Purchaser, as liquidated damages and not as a penalty, a cash amount equal
to 2% of the total purchase price of the Designated Units set forth on the
signature page hereto for each 30-day period (or portion thereof) after the
Additional
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Filing Date or the end of the aforementioned 90 days, as the case may be;
provided, however, that there shall be excluded from such period any delays
which are attributable to changes required by Purchaser in the Additional
Registration Statement with respect to information relating to Purchaser,
including without limitation, changes to the plan of distribution, or to
the failure of Purchaser to conduct its review of the Additional
Registration Statement in a reasonable promptly manner.
(b) REGISTRATION PROCEDURES. Subject to the provisions of this Section 13,
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the Company shall:
(i) Use its reasonable best efforts to cause the Registration Statement
to become and remain effective on or before the 90th day after the date of
filing thereof with the Commission (and if not effective by such date, as soon
as possible thereafter), provided the Company has timely received from the
Selling Stockholder the information necessary to such effectiveness, and, upon
such effectiveness, to cause the Registration Statement to remain effective for
a period (the "Selling Period") ending at the earlier of (A) 18 months from the
effective date of the Registration Statement, or (B) until all the Shares have
been sold pursuant thereto.
(ii) Furnish each Selling Stockholder such number of copies of the
prospectus contained in the registration statement filed under the Securities
Act (including each preliminary prospectus) in conformity with the requirements
of the Securities Act, and such other documents as the Selling Stockholders may
reasonably request in order to facilitate the disposition of the Shares held by
them which is covered by the registration statement; and
(iii) Notify each Selling Stockholder, at any time when a prospectus
relating to such Shares is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus in the
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and at the request
of the Selling Stockholders prepare and furnish to them any reasonable number of
copies of any supplement to or amendment of such prospectus as may be necessary
so that, as thereafter delivered, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(c) SELLING EXPENSES.
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(i) Except as otherwise set forth in subsection (ii) below or as
required by the Commission or any other federal or state regulatory authority,
the costs and expenses incurred in connection with the inclusion of the Shares
in the Registration Statement shall be borne by the Company, including, without
limitation, all costs and expenses arising from or related to the preparation
and filing of such Registration Statement, the prosecution of such filing to
effectiveness, the maintenance thereof for the Selling Period, all blue sky fees
and expenses, and up to $5,000 of the aggregate fees and disbursements of
separate counsel retained by the Selling Stockholders.
(ii) Notwithstanding anything to the contrary set forth in subsection
(i) above, Purchaser shall bear the following costs and expenses incurred in
connection with the Registration Statement:
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(A) The fees and disbursements of any separate counsel retained by
Purchaser; in excess of Purchaser's pro rata portion of the aggregate fees and
disbursements of such separate counsel to be borne by the Company as provided in
subsection (i) above;
(B) Any underwriting discounts, commissions and expenses relating
to the Shares sold by Purchaser; and
(C) Any taxes payable with respect to the transfer by Purchaser.
(d) INDEMNIFICATION; CONTRIBUTION.
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(i) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
---------------------------------
and hold harmless, to the fullest extent permitted by law, Purchaser, its
officers, directors and each person who controls Purchaser (within the meaning
of the Securities Act), against all losses, claims, damages, liabilities and
expenses (including reasonable attorneys' fees and costs of investigation)
arising out of or based upon any untrue or alleged untrue statement of material
fact contained in the Registration Statement, any amendment or supplement
thereto, any prospectus or preliminary prospectus included therein or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same arise out of or are based upon any such untrue
statement or omission based upon information with respect to Purchaser furnished
in writing to the Company by or on behalf of Purchaser expressly for use
therein; provided that, in the event that the prospectus shall have been amended
or supplemented and copies thereof as so amended or supplemented, shall have
been furnished to Purchaser prior to the confirmation of any sales of Shares
included in the Registration Statement, such indemnity with respect to the
prospectus shall not inure to the benefit of Purchaser if the person asserting
such loss, claim, damage or liability and who purchased the Shares from
Purchaser did not, at or prior to the confirmation of the sale of the Shares to
such person, receive a copy of the prospectus as so amended or supplemented and
the untrue statement or omission of a material fact contained in the prospectus
was corrected in the prospectus as so amended or supplemented.
(ii) INDEMNIFICATION BY PURCHASER. Purchaser will furnish to the
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Company in writing such information with respect to the name and address of
Purchaser and such other information as may be reasonably required for use in
connection with the Registration Statement or prospectus included therein and
agrees to indemnify, to the full extent permitted by law, the Company, its
officers, directors and each person who controls the Company (within the meaning
of the Securities Act), and its agent and advisors against any losses, claims,
damages, liabilities and expenses resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
Registration Statement or prospectus included therein or any amendment thereof
or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue or alleged
untrue statement is contained in or such omission or alleged omission relates to
any information with respect to Purchaser so furnished in writing by Purchaser
specifically for inclusion in the Registration Statement or prospectus included
therein; provided, however, that Purchaser shall not be liable in any such case
to the extent that prior to the filing of the Registration Statement or
prospectus included therein or amendment thereof or supplement thereto,
Purchaser has furnished in writing to the Company information expressly for use
in the Registration Statement or prospectus or any
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amendment thereof or supplement thereto which corrected or made not misleading
information previously furnished to the Company. In no event shall the liability
of Purchaser hereunder be greater in amount than the dollar amount of the
proceeds received by it upon the sale of the Shares giving rise to such
indemnification obligation.
(iii) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled to
----------------------------------------
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such person will claim indemnification or contribution
pursuant to the provisions hereof and, unless in the judgment of counsel of such
indemnified party a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claim, permit the
indemnifying party to assume the defense of such claim. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld). No indemnifying party will consent
to entry of any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation. If the indemnifying party is not entitled to, or elects not to,
assume the defense of a claim, it will not be obligated to pay the fees and
expenses of more than one counsel (plus such local counsel, if any, as may be
reasonably required in other jurisdictions) with respect to such claim, unless
in the judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels. For the
purposes of this paragraph, the term "conflict of interest" shall mean that
there are one or more legal defenses available to the indemnified party that are
different from or additional to those available to the indemnifying party or
such other indemnified parties, as applicable, which different or additional
defenses make joint representation inappropriate.
(iv) CONTRIBUTION. If the indemnification from the indemnifying party
------------
provided for herein is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in subsection (g) (Selling
Expenses) above, any reasonable legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
11
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this subsection were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this subsection, Purchaser shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares of Purchaser were offered to the public exceeds the
amount of any damages which Purchaser has otherwise been required to pay by
reason of such untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(v) If indemnification is available under this subsection (d), the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in subsection (d)(i) and (d)(ii) without regard to the relative fault
of said indemnifying party or indemnified party or any other equitable
consideration provided for in subsection (d)(iv).
14. LEGENDS. Purchaser agrees that until such time as the Common Shares and
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Warrant Shares have been registered under the Securities Act as contemplated
hereby, the certificates representing the Common Shares and Warrants comprising
the Designated Units and the Warrant Shares shall bear the legends set forth
below, in addition to any other legends that may be imposed thereon which, in
the reasonable opinion of the Company's counsel, may be required by applicable
securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICIATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT AND QUALIFICATION
UNDER APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
The Company agrees to reissue certificates representing the Common Shares,
the Warrants and the Warrant Shares without the legends set forth above at such
time as (a) the holder thereof is permitted to and disposes of such Common
Shares, Warrants and Warrant Shares pursuant to Rule 144(d) and/or Rule 144(k)
under the 1933 Act in the opinion of counsel reasonably satisfactory to the
Company, or (b) upon resale subject to an effective registration statement after
the Securities are registered under the 0000 Xxx. The Company agrees to
cooperate with the Purchaser in connection with all resales pursuant to Rule
144(d) and Rule 144(k) and provide legal opinions necessary to allow such
resales provided the Company and its counsel receive reasonably requested
written representations from the Purchaser and selling broker, if any. Provided
the Purchaser provides required certifications and representation letters, if
any, if the Company unreasonably fails to remove any legend as required by this
section (a "Legend Removal Failure"), then beginning on the tenth (10th) day
following the date that the Purchaser has requested the removal of the legend
and delivered all items reasonably required by the Company to be delivered by
the Purchaser, the Company
12
continues to fail to remove such legend, the Company shall pay to each Purchaser
or assignee holding shares, subject to a Legend Removal Failure, as liquidated
damages and not a penalty an amount equal to one percent (1%) of the aggregate
consideration as set forth on the signature page hereof (the "Purchase Price")
of the shares subject to a Legend Removal Failure per day that such failure
continues.
15. NO FINDERS. Except as previously disclosed to the Company in writing,
-----------
Purchaser acknowledges that no finder, broker or other agent is acting on behalf
of Purchaser in connection with this subscription and hereby agrees to indemnify
and to hold the Company harmless from any claim or other liability (including
costs of investigation and defense and attorneys' fees) by any finder, broker or
other agent (other than as so disclosed) purporting to act on behalf of
Purchaser for any fees or other payments in connection with this subscription.
16. RELIANCE. Purchaser understands and acknowledges that the Company is
--------
relying on the accuracy of the representations and warranties of Purchaser
contained herein to establish compliance with federal and state securities laws.
If, prior to the sale of any Designated Units to Purchaser, there is a material
change in Purchaser's investment intention as expressed herein, or if there
occurs any change which would make either the representations or warranties made
by Purchaser herein or the information provided by Purchaser in the Investor
Questionnaire materially untrue or misleading, Purchaser agrees to immediately
so notify the Company, and any prior acceptance of the subscription of Purchaser
shall be voidable at the option of the Company.
17. INDEMNIFICATION. Purchaser hereby indemnifies and holds harmless the
---------------
Company and its officers, directors, stockholders, employees, agents and control
persons of any such entity, as the case may be, from and against any and all
damages suffered and liabilities incurred by any of them (including costs of
investigation and defense, attorneys' fees, judgments, fines and amounts paid in
settlement) arising out of any inaccuracy in, or breach of, the agreements,
representations, covenants and warranties made by Purchaser herein.
18. JOINT REPRESENTATION. If more than one person is signing this
---------------------
Agreement, each representation, warranty and agreement made herein shall be a
joint and several representation, warranty and agreement of each person. If
Purchaser is purchasing the Designated Units subscribed for hereby in a
fiduciary capacity, the above representations, warranties and agreements shall
be deemed to have been made on behalf of the person or persons for whom
Purchaser is so purchasing.
19. NO CANCELLATION. Purchaser hereby acknowledges and agrees that
----------------
Purchaser is not entitled to cancel, terminate or revoke this subscription or
any agreements of Purchaser hereunder and that such subscription and agreements
shall survive the death or disability of Xxxxxxxxx.
00
00. CLOSING.
-------
(a) CLOSING DATE. Subject to the satisfaction (or written waiver by the
-------------
party whose obligation is subject to such condition) of the conditions thereto
set forth in this Section, the closing of this subscription and the issuance and
sale of the Designated Units pursuant to this Agreement (the "Closing Date")
shall be 12:00 noon Pacific Standard Time on February 14, 2002 or such other
mutually agreed upon time. The closing of the subscription contemplated by this
Agreement (the "Closing") shall occur on the Closing Date at such location as
may be agreed by the parties.
(b) CONDITIONS TO THE OBLIGATION OF THE COMPANY TO SELL. The obligation
----------------------------------------------------
of the Company hereunder to issue and sell the Designated Units to Purchaser at
the Closing is subject to the satisfaction, at or before the Closing Date of
each of the following conditions hereto:
(i) Purchaser shall have executed this Agreement and delivered the same
to the Company.
(ii) Purchaser shall have delivered the aggregate purchase price for
the Designated Units.
(iii) Bristol Investment Fund, Ltd. shall have delivered to the Company
its written consent to the transaction contemplated by this Agreement.
(iv) No temporary restraining order, preliminary injunction or
permanent injunction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect.
(c) CONDITIONS TO THE OBLIGATION OF PURCHASER TO PURCHASE. The obligation
-------------------------------------------------------
of Purchaser hereunder to purchase the Designated Units at the Closing is
subject to the satisfaction, at or before the Closing Date of each of the
following conditions hereto:
(i) Purchaser shall have received an opinion of the Company's counsel,
dated as of the Closing Date, in form, scope and substance reasonably
satisfactory to Purchaser.
21. MISCELLANEOUS.
-------------
(a) SURVIVAL. The representations, warranties, covenants and agreements
--------
made herein shall survive the acceptance by the Company of the subscription
hereof.
(b) SEVERABILITY. The invalidity or unenforceability of any particular
------------
provision of this Agreement shall not affect or limit the validity or
enforceability of the remaining provisions of this Agreement.
(c) NOTICES. All notices and other communications required or permitted
-------
hereunder shall be in writing and shall be delivered personally, by messenger or
reputable overnight courier, or by electronic or facsimile transmission,
addressed to the address or facsimile number set forth under each party's
signature to this Agreement. Each such notice or other communication shall be
effective (i) if transmitted electronically or by facsimile machine, at the time
shown on the
14
sender's confirmation of transmission, or (ii) if given by any other means, when
delivered at the specified address. Any party by notice given to the other party
in accordance with this Section may designate another address (or facsimile
number) or person for receipt of notices hereunder. Notice by a party may be
given by counsel to such party.
(d) ENTIRE AGREEMENT. This Agreement and any attachments hereto constitute
-----------------
the full and entire understanding and agreement between and among the parties
with regard to the subject matter hereof and supersede any and all prior
agreements, understandings, negotiations and discussions with respect thereto.
(e) WAIVER; OTHER REMEDIES. Any of the terms, covenants, representations,
-----------------------
warranties or conditions of this Agreement may be waived only by a written
instrument signed by the party to this Agreement waiving compliance. No waiver
by any party to this Agreement of any condition or breach of any term, covenant,
representation or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or of the breach of any other term, covenant, representation or
warranty set forth in this Agreement. Except as otherwise provided herein, the
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies that any party may otherwise have at law or in equity.
(f) LAW GOVERNING THIS AGREEMENT. This Agreement shall be governed by and
------------------------------
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be
brought only in the state courts of New York or in the federal courts located in
the state of New York. Both parties and the individuals executing this
Agreement and other agreements on behalf of the Company agree to submit to the
jurisdiction of such courts and waive trial by jury. The prevailing party shall
be entitled to recover from the other party its reasonable attorney's fees and
costs. In the event that any provision of this Agreement or any other agreement
delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of any agreement.
(g) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
------------------------------------
any number of counterparts, each of which may be executed by less than all of
the parties to this Agreement, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one and the same agreement. The parties shall be entitled to rely
upon and enforce a facsimile of any authorized signature as if it were the
original.
IN WITNESS WHEREOF, Purchaser executes and agrees to be bound by this
Agreement by executing the signature page attached hereto on the date therein
indicated.
[Remainder of page intentionally left blank]
15
SIGNATURE PAGE
TO
SUBSCRIPTION AGREEMENT
(All information must be completed)
PURCHASER'S NAME:
_____________________________ ______________________________________
Print Name of Purchaser Print Name of joint owner (if any)
_____________________________ ______________________________________
Signature of Purchaser Signature of joint owner (if any)
PURCHASER'S ADDRESS If Joint Ownership, check one:
AND CONTACT DETAILS:
_____ Joint Tenants, with Right of Survivorship
_____________________________ _____ Tenants in Common
_____________________________ _____ Community Property
_____________________________
_____________________________
Telephone: _________________
Facsimile: _________________
E-mail: ____________________
PURCHASER'S SOCIAL SECURITY
NUMBER OR TAXPAYER I.D. NO.:
____________________________
PRICE PER DESIGNATED UNIT AGGREGATE NUMBER OF TOTAL PURCHASE PRICE
DESIGNATED UNITS
$8.00 $
DATE: ____________________, 2002
ACCEPTED AND AGREED:
AMNIS SYSTEMS INC.
By:________________________
Name:______________________
Title:_____________________
Date:, ____________ 2002
Facsimile:
E-Mail:
16
