SUBSCRIPTION AGREEMENT
You (the "Subscriber" or "Purchaser" or "Holder") hereby agree to
purchase, and BCAM International, Inc., a New York corporation (the "Company")
hereby agrees to issue and to sell to the Subscriber, the number of shares of
the Company's Common Stock, $.01 par value per share (the "Company Shares"), and
an amount of Common Stock Purchase Warrants (the "Warrants") designated on the
signature page hereof, in the form annexed hereto as Exhibit A. (The Company
Shares are sometimes referred to herein as the "Shares" or "Common Shares").
(The Company Shares, the Warrants and the shares of Common Stock issuable upon
exercise of the Warrants are collectively referred to herein as, the
"Securities"). Upon acceptance of this Agreement by the Subscriber, the Company
shall issue and deliver to the Subscriber the Company Shares and Warrants
against payment, by federal funds (U.S.) wire transfer of the amount designated
on the signature page hereof pursuant to the terms of a Funds Escrow Agreement
annexed hereto as Exhibit B.
The following terms and conditions shall apply to this subscription.
1. Subscriber's Representations and Warranties. The Subscriber hereby
represents and warrants to and agrees with the Company that:
(a) Information on Company. The Subscriber has been furnished with
and has read the Company's most recent Form 10-KSB for the year ended December
31, 1996 and subsequent Forms 10-Q and 8-K as filed with the U.S. Securities and
Exchange Commission (the "Commission") (collectively, with exhibits thereto,
hereinafter referred to as the "Reports"). In addition, the Subscriber has
received from the Company such other information concerning its operations,
financial condition and other matters as the Subscriber has requested, and
considered all factors the Subscriber deems material in deciding on the
advisability of investing in the Securities (such information in writing is
collectively, the "Other Written Information").
(b) Information on Subscriber. The Subscriber is an "accredited
investor", as such term is defined in Regulation D promulgated by the Commission
under the Securities Act of 1933, as amended, is experienced in investments and
business matters, has made investments of a speculative nature and has purchased
securities of United States publicly-owned companies in the past
and, with its representatives, has such knowledge and experience in financial,
tax and other business matters as to enable the Subscriber to utilize the
information made available by the Company to evaluate the merits and risks of
and to make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. The Subscriber has the
authority and is duly and legally qualified to purchase and own the Securities.
(c) Correctness of Representations. The Subscriber represents that
the foregoing representations and warranties are true and correct as of the date
hereof and, unless the Subscriber otherwise notifies the Company prior to the
Closing Date (as hereinafter defined), shall be true and correct as of the
Closing Date. The foregoing representations and warranties shall survive the
Closing Date.
2. Company Representations and Warranties. The Company represents and
warrants to and agrees with the Subscriber that:
(a) Due Incorporation. The Company and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation and has the requisite corporate power to own
its properties and to carry on its business as now being conducted. The Company
and each of its subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in each jurisdiction where the nature of the
business conducted or property owned by it makes such qualification necessary,
other than those jurisdictions in which the failure to so qualify would not have
a material adverse effect on the business, operations or prospects or condition
(financial or otherwise) of the Company.
(b) Outstanding Stock. All issued and outstanding shares of capital
stock of the Company and each of its subsidiaries has been duly authorized and
validly issued and are fully paid and non-assessable.
(c) Authority; Enforceability. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and the Company has full corporate power and
authority necessary to enter into this Agreement and to perform its obligations
hereunder.
(d) Additional Issuances. There are no outstanding agreements or
preemptive or similar rights affecting the Company's common stock and no
outstanding rights, warrants or options to acquire, or instruments convertible
into or exchangeable for, or agreements or understandings with respect to the
sale or issuance of, any shares of common stock or equity of the Company or
other equity interest in any of the subsidiaries of the Company, except as
described in the Reports or Other Written Information.
(e) Consents. No consent, approval, authorization or order of any
court, governmental agency or body or arbitrator having jurisdiction over the
Company, or any of its affiliates is required for execution of this Agreement,
including, without limitation issuance and sale of the Securities, or the
performance of the Company's obligations hereunder.
(f) No Violation or Conflict. Assuming the representations and
warranties of the Subscriber in Paragraph 1 are true and correct and the
Subscriber complies with its obligations under this Agreement, neither the
issuance and sale of the Securities nor the performance of its obligations under
this Agreement by the Company will:
(i) violate, conflict with, result in a breach of, or
constitute a default (or an event which with the giving of notice of the lapse
of time or both would be reasonably likely to constitute a default) under (A)
the articles of incorporation, charter or bylaws of the Company, or any of its
affiliates, (B) any decree, judgment, order, law, treaty, rule, regulation or
determination applicable to the Company, or any of its affiliates of any court,
governmental agency or body, or arbitrator having jurisdiction over the Company,
or any of its affiliates or over the properties or assets of the Company, or any
of its affiliates, (C) the terms of any bond, debenture, note or any other
evidence of indebtedness, or any agreement, stock option or other similar plan,
indenture, lease, mortgage, deed of trust or other instrument to which the
Company, or any of its affiliates is a party, by which the Company, or any of
its affiliates is bound, or to which any of the properties of the Company, or
any of its affiliates is subject, or (D) the terms of any "lock-up" or similar
provision of any underwriting or similar agreement to which the Company, or any
of its affiliates is a
3
party; or
(ii) result in the creation or imposition of any lien, charge
or encumbrance upon the Securities or any of the assets of the Company, or any
of its affiliates.
(g) The Securities. The Securities upon issuance:
(i) are, or will be, free and clear of any security interests,
liens, claims or other encumbrances;
(ii) have been, or will be, duly and validly authorized and on
the date of issuance and on the Closing Date, as hereinafter defined, and the
date the Warrants are exercised according to their terms, as the case may be,
the Shares, and the Warrants and common stock issuable upon exercise of the
Warrants, will be duly and validly issued, fully paid and nonassessable, and if
permitted, free trading and unrestricted;
(iii) will not have been issued or sold in violation of any
preemptive or other similar rights of the holders of any securities of the
Company;
(iv) will not subject the holders thereof to personal
liability by reason of being such holders; and
(v) the Company Shares, are quoted on, and are listed for
trading on the NASDAQ SmallCap Market. The Company has received no notice,
either oral or written, with respect to the continued eligibility of the Common
Stock for such listing, and the Company has maintained all requirements for the
continuation of such listing.
(h) Litigation. There is no pending or, to the best knowledge of the
Company, threatened action, suit, proceeding or investigation before any court,
governmental agency or body, or arbitrator having jurisdiction over the Company,
or any of its affiliates that would materially affect the execution by the
Company or the performance by the Company of its obligations under this
Agreement.
(i) Reporting Company. The Company is a publicly-held company whose
common stock is (and has been for the past 90 days) registered pursuant to
Section 12(g) of the
4
Securities Exchange Act of 1934 (the "1934 Act") and is duly listed for trading
on the NASDAQ SmallCap Market. Pursuant to the provisions of the 1934 Act, the
Company has timely filed all reports and other materials required to be filed
thereunder with the Securities and Exchange Commission during the preceding
twelve months, and is eligible presently and as of the Closing Date to file a
Form S-1 to register the Company Shares.
(j) No Market Manipulation. The Company has not taken, and will not
take, directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or manipulation of the price of
the common stock of the Company to facilitate the sale or resale of the Company
Shares or affect the price at which the Reset Shares (as herein defined) may be
issued.
(k) Information Concerning Company. The Reports and Other Written
Information contain all material information relating to the Company and its
operations and financial condition as of their respective dates which
information is required to be disclosed therein. Since the date of the financial
statements set forth in the Reports, and except as modified in the Other Written
Information, there has been no material adverse change in the Company's
business, financial condition or affairs not disclosed in the Reports. The
Reports and Other Written Information do not contain any 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.
(l) Dilution. The number of Shares issuable upon Reset (as
hereinafter defined) may increase substantially in certain circumstances,
including, but not necessarily limited to, the circumstance wherein the trading
price of the Common Stock declines prior to the Reset (as herein defined). The
Company's executive officers and directors have studied and fully understand the
nature of the Securities being sold hereby and recognize that they have a
potential dilutive effect. The board of directors of the Company has concluded,
in its good faith business judgment, that such issuance is in the best interests
of the Company. The Company specifically acknowledges that its obligation to
issue the Shares upon Reset is binding upon the Company and enforceable
regardless of the dilution such issuance
5
may have on the ownership interests of other shareholders of the Company.
(m) Stop Transfer. The Company has not issued, and will not issue
any stop transfer order or other order impeding the sale and delivery of the
Securities.
(n) Defaults. Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or ByLaws. Except as described in
the Reports and Other Written Information, neither the Company nor any of its
subsidiaries is (i) in default under or in violation of any other material
agreement or instrument to which it is a party or by which it or any of its
properties are bound or affected, which default or violation would have a
material adverse effect on the Company, (ii) in default with respect to any
order of any court, arbitrator or governmental body or subject to or party to
any order of any court or governmental authority arising out of any action, suit
or proceeding under any statute or other law respecting antitrust, monopoly,
restraint of trade, unfair competition or similar matters, or (iii) in violation
of any statute, rule or regulation of any governmental authority material to its
business.
(o) No Integrated Offering. Neither the Comany, 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 any of
the Securities under the 1933 Act or cause the offering of the Securities
pursuant to this Agreement to be integrated with prior offerings by the Company
for purposes of the 1933 Act or any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of NASDAQ
SmallCap, as applicable, nor will the Company or any of its subsidiaries take
any action or steps that would require registration of the Securities under the
1933 Act or cause the offering of the Securities to be integrated with other
offerings. The Company has not conducted and will not conduct any offering that
will be integrated with the issuance of the Securities solely for purposes of
Rule 4460(i) of the NASDAQ Stock Market, Inc.'s Marketplace Rules.
(p) Intentionally Omitted.
6
(q) No General Solicitation. Neither the Company, nor any of its
affiliates, nor to its knowledge, 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 Act) in connection with the offer or sale of
the Securities.
(r) Correctness of Representations. The Company represents that the
foregoing representations and warranties are true and correct as of the date
hereof and, unless the Company otherwise notifies the Subscriber prior to the
Closing Date, shall be true and correct as of the Closing Date. The foregoing
representations and warranties shall survive the Closing Date.
3. Regulation D Offering. This Offering is being made pursuant to the
exemption from the registration provisions of the Securities Act of 1933, as
amended, afforded by Rule 506 of Regulation D promulgated thereunder. On the
Closing Date, the Company will provide an opinion acceptable to Subscriber from
the Company's legal counsel opining on the availability of the Regulation D
exemption as it relates to the offer and issuance of the Securities. A form of
the legal opinion is annexed hereto as Exhibit C.
4. Issuance of Securities. Each certificate representing the Securities
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO REGISTRATION UNDER
THE ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT AND APPLICABLE STATE SECURITIES LAWS."
The Company agrees to reissue certificates representing the Securities without
the legend set forth above at such time as (a) the holder thereof is permitted
to dispose of such Securities pursuant to Rule 144(k) under the Act, (b) the
Securities are sold to a purchaser or purchasers who (in the opinion of counsel
to such purchasers, in form and substance reasonably satisfactory to the Company
and its counsel) are able to dispose of the Securities
7
publicly without registration under the Act, or (c) the Securities are
registered under the Act.
5. Redemption/Resale.
(a) The Company may not redeem the Securities without the consent of
the holder of the Securities.
(b) Until the 120th day after the Closing Date, the Subscriber may
not sell, transfer or convey the Securities, without the consent of the Company,
except by operation of law.
6. Legal Fees/Commissions. The Company shall pay to counsel to the
Subscriber its xxxx for $20,000 for services rendered to the Subscriber in
reviewing this Agreement and other subscription agreements for the aggregate
subscription amounts of up to $2,000,000. The Company will pay at the time of
Closing a cash commission of six and one-half percent (6-1/2%) to certain
placement agents. The commissions and legal fees will be payable out of funds
held pursuant to a Funds Escrow Agreement to be entered into by the Company and
Subscriber. Additional cash commissions of six and one-half percent (6-1/2%)
will be payable to the placement agents in connection with gross proceeds from
the Company's exercise of the Put described in Section 11 of this Subscription
Agreement.
7. Covenants of the Company. The Company covenants and agrees with the
Subscriber as follows:
(a) The Company will advise the Subscriber, promptly after it
receives notice of issuance by the Commission, any state securities commission
or any other regulatory authority of any stop order or of any order preventing
or suspending the use of any offering of any securities of the Company, or of
the suspension of the qualification of the common stock of the Company for
offering or sale in any jurisdiction, or the initiation of any proceeding for
any such purpose.
(b) The Company shall promptly secure the listing of the Company
Shares and Common Stock issuable upon the exercise of the Warrants upon each
national securities exchange other than the Boston Exchange, or automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official
8
notice of issuance) and shall maintain so long as any other shares of Common
Stock shall be so listed, such listing of all Common Stock from time to time
issuable upon exercise of the Warrants and upon Reset. The Company will obtain
and maintain the listing and trading of its Common Stock on NASDAQ SmallCap
Market, and will comply in all respects with the Company's reporting, filing and
other obligations under the bylaws or rules of the National Association of
Securities Dealers ("NASD") and such exchanges, as applicable. The Company shall
promptly provide to each Purchaser copies of any notices it receives regarding
the continued eligibility of the Common Stock for listing on such exchanges or
quotation systems, or any other exchange or quotation system on which the Common
Stock is then listed.
(c) The Company shall notify the SEC, NASD and applicable state
authorities, in accordance with their requirements, of the transactions
contemplated by this Agreement, and shall take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, for the legal and valid issuance of the Securities to the Subscriber
and promptly provide copies thereof to Subscriber.
(d) Until at least three (3) years after the effectiveness of the
Registration Statement on Form S-1 or such other Registration Statement
described in Section 10.1(iv) hereof, the Company will cause its Common Stock to
continue to be registered under Sections 12(b) or 12(g) of the Exchange Act,
will comply in all respects with its reporting and filing obligations under such
Exchange Act, will comply with all requirements related to any registration
statement filed pursuant to this Agreement and will not 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 suspend such registration or to terminate or
suspend its reporting and filing obligations under said Acts, except as
permitted herein. Until at least three (3) years after the Warrants have been
converted into Common Stock, the Company will take all action within its power
to continue the listing or trading of its Common Stock on the NASDAQ SmallCap
Market and will comply in all respects with the Company's reporting, filing and
other obligations under the bylaws or rules of the NASD and NASDAQ.
8. Covenants of the Company and Subscriber Regarding Indemnifications.
9
(a) The Company agrees to indemnify, hold harmless, reimburse and
defend Subscriber against any claim, costs, expense, liability, obligation, loss
or damage (including reasonable legal fees) of any nature, incurred by or
imposed upon Subscriber which results, arises out of or is based upon (i) any
misrepresentation by Company or breach of any warranty by Company in this
Agreement or in any Exhibits or Schedules attached hereto, or Reports or other
Written Information; or (ii) any breach or default in performance by Company of
any covenant or undertaking to be performed by Company hereunder.
(b) Subscriber agrees to indemnify, hold harmless, reimburse and
defend the Company at all times against any claim, costs, expense, liability,
obligation, loss or damage (including reasonable legal fees) of any nature,
incurred by or imposed upon the Company which results, arises out of or is based
upon (a) any misrepresentation by Subscriber in this Agreement or in any
Exhibits or Schedules attached hereto; or (b) any breach or default in
performance by Subscriber of any covenant or undertaking to be performed by
Subscriber hereunder.
9. Reset.
(a) The amount of Company Shares issuable to the Subscriber shall be
redetermined from time to time as described herein (the "Reset") and if
appropriate additional shares of Common Stock (the "Additional Shares") will be
issued and delivered to the Subscriber. The original purchase price set forth on
the signature page of this Subscription Agreement (the "Purchase Price") shall
be deemed the purchase price of all the Common Stock to be delivered pursuant to
this Subscription Agreement.
(b) The Reset shall be determined on the following dates (each a
"Reset Date") for the designated amounts of the Purchase Price. The initial
Reset Date shall be the effective date of the Registration Statement described
in Section 10.1(iv) of this Subscription Agreement or at the Subscriber's
election on the 180th day after the Closing Date if the Registration Statement
has not been declared effective by such date, ("Trigger Date"). In the event the
effective date of the Registration Statement described in Section 10.1(iv) of
this Subscription Agreement is sooner than the 120th day after the Closing Date,
then the Trigger Date shall be the 120th day after
10
the Closing Date. In the event any portion of the Common Shares comprising the
Registration Escrow (as hereinafter defined) is released to the Company pursuant
to Section 10.1(iv), then the Designated Portion of the Purchase Price shall
mean that portion of the Purchase Price set forth on the signature page to this
Subscription Agreement less the corresponding amount of Purchase Price returned
to the Subscriber. To the extent a Registration Escrow is held in escrow on a
Reset Date, then such Common Shares issuable in connection with such
Registration Escrow will be deposited in escrow to be held pursuant to the Funds
Escrow Agreement.
Designated Portion of
Purchase Price Date
-------------- ----
15% Trigger Date
15% 60 Days after Trigger Date
10% 90 Days after Trigger Date
10% 120 Days after Trigger Date
10% 150 Days after Trigger Date
10% 180 Days after Trigger Date
10% 210 Days after Trigger Date
10% 240 Days after Trigger Date
10% 270 Days after Trigger Date
(c) On each Reset Date a number of Company Shares will be calculated
for the designated portion of the Purchase Price by dividing the Designated
Portion of the Purchase Price by a number equal to seventy-seven percent (77%)
of the average closing bid price for the Common Stock on the NASDAQ SmallCap
Market, or on any securities exchange or other securities market on which the
Common Stock is then being traded, for the five trading days immediately
preceding, but not including, the Reset Date (the "Average Price"). If the
Average Price is less than $1.01 then the Company will issue to the Subscriber
the number of shares of Common Stock obtained by subtracting (y) the number of
shares obtained by dividing the Designated Portion of Purchase Price by $1.01
from (z) the number of shares obtained by dividing the Designated Portion of
Purchase Price by the Average Price.
(d) In no event will the Subscriber be required to return any
Company Shares to the Company. Each Reset calculation shall be made independent
of all other Reset
11
calculations.
(e) The Company agrees to deliver the Additional Shares to the
Subscriber in hand, no later than fourteen (14) days after the Reset Date (the
"Delivery Date"). The Company understands that a delay in the delivery of the
Additional Shares beyond the Delivery Date could result in economic loss to the
Subscriber. As compensation to the Subscriber for such loss, the Company agrees
to pay late payments to the Subscriber for late delivery of Additional Shares
beyond the Delivery Date, in the amount of $100 per business day after the
Delivery Date for each $10,000 of Designated Portion of Purchase Price for which
a Reset has been calculated. The Company shall pay any payments incurred under
this Section in immediately available funds upon demand. The late payment
charges described above shall be payable through the date the Additional Shares
are received in hand by the Subscriber.
(f) Company Shares as defined and employed in this Subscription
Agreement shall mean and include Additional Shares for all purposes including
but not limited to Section 10 of this Subscription Agreement.
(g) Nothing contained herein or in any document referred to herein
shall be deemed to establish or require the payment of a rate of interest or
other charges in excess of the maximum permitted by applicable law. In the event
that the rate of interest required to be paid or other charges hereunder exceed
the maximum permitted by such law, any payments in excess of such maximum shall
be credited against amounts owed by the Company to the Subscriber and thus
refunded to the Company.
100 Registration Rights; Procedure; Indemnification.
10.1. Registration Rights. The Company hereby grants the following
registration rights to holders of the Company Shares and the Warrants.
(i) On one occasion, for a period commencing 50 days after the
Closing Date, but not later than three years from the date hereof, the Company,
upon a written request
12
therefor from any record holder or holders of more than 50% of the aggregate of
the Company's Shares and Common Stock issuable upon exercise of the Warrants
(the Company Shares and Common Stock issuable upon exercise of the Warrants
being, the "Registrable Securities"), shall prepare and file with the SEC a
registration statement under the Act covering the Registrable Securities which
are the subject of such request. In addition, upon the receipt of such request,
the Company shall promptly give written notice to all other record holders of
the Registrable Securities that such registration statement is to be filed and
shall include in such registration statement Registrable Securities for which it
has received written requests within 20 days after the Company gives such
written notice. Such other requesting record holders shall be deemed to have
exercised their demand registration right under this Section 10.1. As a
condition precedent to the inclusion of Registrable Securities, the holder
thereof shall provide the Company with such information as the Company
reasonably requests. The obligation of the Company under this Section 10.1(i)
shall be limited to one registration statement.
(ii) If the Company at any time proposes to register any of
its securities under the Act for sale to the public, whether for its own account
or for the account of other security holders or both, except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Registrable Securities for sale to the public, provided the
Registrable Securities are not otherwise registered for resale by the Subscriber
pursuant to an effective registration statement, each such time it will give at
least 30 days' prior written notice to the record holder of the Registrable
Securities of its intention so to do. Upon the written request of the holder,
received by the Company within 30 days after the giving of any such notice by
the Company, to register any of the Registrable Securities, the Company will
cause such Registrable Securities as to which registration shall have been so
requested to be included with the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent required to
permit the sale or other disposition of the Registrable Securities so registered
by the holder of such Registrable Securities (the "Seller"). In the event that
any registration pursuant to this Section 10.1(ii) shall be, in whole or in
part, an underwritten public offering of common stock of the Company, the number
of shares of Registrable Securities to be included in such an underwriting may
be reduced
13
by the managing underwriter if and to the extent that the Company and the
underwriter shall reasonably be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein; provided, however, that the Company shall notify the Seller in writing
of any such reduction. Notwithstanding the forgoing provisions, the Company may
withdraw any registration statement referred to in this Section 10.1(ii) without
thereby incurring any liability to the Seller.
(iii) If, at the time any written request for registration is
received by the Company pursuant to Section 10.1(i), the Company has determined
to proceed with the actual preparation and filing of a registration statement
under the Act in connection with the proposed offer and sale for cash of any of
its securities for the Company's own account, such written request shall be
deemed to have been given pursuant to Section 10.1(ii) rather than Section
10.1(i), and the rights of the holders of Registrable Securities covered by such
written request shall be governed by Section 10.1(ii) except that the Company or
underwriter, if any, may not withdraw such registration or limit the amount of
Registrable Securities included in such registration.
(iv) The Company shall file with the Commission, within sixty
(60) days of the Closing Date, and use its reasonable commercial efforts to
cause to be declared effective a Form S-1 registration statement in order to
register for resale and distribution under the Act, and Company Shares and all
shares of Common Stock issuable upon exercise of the Warrants. The registration
statement described in this paragraph must be declared effective by the
Commission within 130 days of the Closing Date. The Company will register not
less than 20,000 shares of Common Stock in the S-1 registration statement for
each $10,000 of Purchase Price as set forth on the signature page hereto and one
share of Common Stock for each share of Common Stock issuable upon exercise of
the Warrants. These shares to be registered shall be reserved and set aside
exclusively for the benefit of the Subscriber and not issued, employed or
reserved for anyone other than the Subscriber. It is the intention of the
parties that these shares include the Additional Shares described in Section 9
hereof. Such registration statement will be promptly amended or additional
registration statements will be promptly filed by the Company as required to
register additional shares of Common Stock issuable upon Reset. In the event the
Company may employ an S-3 Registration Statement, then the
14
Company will file such form of registration statement in order to register the
Registrable Securities. One-quarter of the Purchase Price and one-quarter of the
Common Shares purchased as set forth on the signature page of this Subscription
Agreement shall be held in escrow pursuant to the Funds Escrow Agreement annexed
hereto as Exhibit B until the acceptance for filing by the Securities and
Exchange Commission of the registration statement described in this Section
10.1(iv) ("Registration Escrow"). In the event the registration statement
relating to the Registrable Securities is not filed within 60 days from the
Closing Date then the Registration Escrow shall be employed as a non-exclusive
remedy, to pay the damages described in Section 10.2(j) of this Subscription
Agreement. In the event the Registration Statement is not filed within 130 days
from the Closing Date, unless otherwise agreed to in writing by the Subscriber,
then one-quarter of the Purchase Price shall be released to the Subscriber, and
one-quarter of the Common Shares purchased as set forth on the signature page
hereof shall be returnable to the Company. In such event the Company shall not
be released from any of its obligations under this Subscription Agreement or any
agreement delivered in connection herewith including the Company's obligations
pursuant to this Section 10 and Reset provisions described in Section 9 of this
Subscription Agreement except that the Company shall no longer be required to
file a registration statement in connection with only those Common Shares
released to the Company and damages shall not accrue to the Subscriber in
relation to the Common Shares released to the Company from and after the date
the corresponding portion of the Purchase Price is returned to the Subscriber.
To the extent any part of the Purchase Price portion of the Registration Escrow
is released to a Subscriber, then that portion of the Registration Escrow may,
at the Subscriber's election, first be applied in satisfaction of payment by the
Company of damages accrued to such Subscriber under Section 9(e) and Section
10.2(j). Anything to the contrary herein or in the Funds Escrow Agreement
notwithstanding, the Company Shares component of the Registration Escrow will
not be released to the Company until all outstanding monetary obligations to the
Subscriber are satisfied. The Subscriber may elect to satisfy any such
outstanding Company obligations by demanding the release from escrow of cash
funds and/or Company Shares at a per share value equivalent to 77% of the lowest
bid price of the Company's Common Stock on the NASDAQ SmallCap Market or on any
exchange or other securities market on which the Common Stock is then being
traded, for the five trading days prior to the date notice of such election is
given to the
15
Company. It is not the intention of the Subscriber to appoint an underwriter in
connection with the S-1 registration statement described in this Section
10.1(iv).
10.2. Registration Procedures. If and whenever the Company is required by
the provisions hereof to effect the registration of any shares of Registrable
Securities under the Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided):
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Act with respect to the disposition of all of the Registrable Securities
covered by such registration statement in accordance with the Seller's intended
method of disposition set forth in such registration statement for such period;
(c) furnish to the Seller, and to each underwriter if any, such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or their disposition of the
securities covered by such registration statement;
(d) use its best efforts to register or qualify the Seller's
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the Seller or, in the
case of an underwritten public offering, the managing underwriter shall
reasonably request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such registration
statement with any securities exchange on which
16
the Common Stock of the Company is then listed;
(f) immediately notify the Seller and each underwriter under such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Act, of the happening of any event of which
the Company has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) make available for inspection by the Seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by the Seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by the seller, underwriter, attorney,
accountant or agent in connection with such registration statement.
(h) at the request of the Seller, provided a demand for registration
has been made pursuant to Section 10.1(i) or a request for registration has been
made pursuant to Section 10.1(ii), the Registrable Securities will be included
in a registration statement filed pursuant to this Section 10. In the event of a
firm commitment underwritten public offering in which the Registrable Securities
are so included, the lockup, if any, requested by the managing underwriter may
not exceed ninety (90) days after the effective date thereof.
(i) In connection with each registration hereunder, the Seller will
furnish to the Company in writing such information with respect to itself and
the proposed distribution by it as reasonably shall be necessary in order to
assure compliance with federal and applicable state securities laws. In
connection with each registration pursuant to Section 10.1(i) or 10.1(ii)
covering an underwritten public offering, the Company and the Seller agree to
enter into a written agreement with the managing underwriter in such form and
containing such provisions as are customary in the securities business for such
an arrangement between such underwriter and companies of the Company's size and
investment stature.
17
(j) The Company and the Subscriber agree that the Seller will suffer
damages if any registration statement required under Section 10.1(i) or 10.1(ii)
above is not filed within 45 days after request by the Holder and not declared
effective by the Commission within 130 days after such request [or 45 days and
130 days, respectively, after the Closing Date in reference to the Registration
Statement on Form S-1 described in Section 10.1(iv)], and maintained in the
manner and within the time periods contemplated by Section 10 hereof, and it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, if (i) the Registration Statement described in Sections 10.1(i) or
10.1(ii) is not filed within 45 days of such request, or is not declared
effective by the Commission on or prior to the date that is 130 days after such
request, or (ii) the registration statement on Form S-1 described in Section
10.1(iv) is not filed within 60 days after the Closing Date or not declared
effective within 130 days of the Closing Date, or (iii) any registration
statement described in Sections 10.1(i), 10.1(ii) or 10.1(iv) is filed and
declared effective but shall thereafter cease to be effective (without being
succeeded immediately by an additional registration statement filed and declared
effective) for a period of time which shall exceed 30 days in the aggregate per
year but not more than 20 consecutive calendar days (defined as a period of 365
days commencing on the date the Registration Statement is declared effective)
(each such event referred to in clauses (i), (ii) and (iii) of this Section
10.2(j) is referred to herein as a "Registration Default"), then, for so long as
such default shall continue, the Company shall pay in cash as Liquidated Damages
to each holder of any Securities an amount equal to three (3%) percent per month
for each thirty (30) days or part thereof thereafter of the Purchase Price of
the Company Shares then owned of record by such holder together with the
aggregate amount of the exercise prices of the Warrants whether or not
exercised, as of immediately following the occurrence of such Registration
Default. Payments to be made pursuant to this Section 10.2(j) shall be due and
payable immediately upon demand in immediately available funds.
10.3. Expenses. All expenses incurred by the Company in complying with
Section 10, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or "blue sky"
18
laws, fees of the National Association of Securities Dealers, Inc., transfer
taxes, fees of transfer agents and registrars, fee of one counsel, if any, to
represent all the Sellers, and costs of insurance are called "Registration
Expenses". All underwriting discounts and selling commissions applicable to the
sale of Registrable Securities, including any fees and disbursements of any
special counsel to the Seller, are called "Selling Expenses". The Seller shall
pay the fees of its own counsel, if any.
The Company will pay all Registration Expenses in connection with
the registration statement under Section 10. All Selling Expenses in connection
with each registration statement under Section 10 shall be borne by the Seller
in proportion to the number of shares sold by the Seller relative to the number
of shares sold under such registration statement or as all Sellers thereunder
may agree.
10.4. Indemnification and Contribution.
(a) In the event of a registration of any Registrable Securities
under the Act pursuant to Section 10, the Company will indemnify and hold
harmless the Seller, each officer of the Seller, each director of the Seller,
each underwriter of such Registrable Securities thereunder and each other
person, if any, who controls such Seller or underwriter within the meaning of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which the Seller, or such underwriter or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Registrable Securities was
registered under the Act pursuant to Section 10, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged
19
untrue statement or omission or alleged omission so made in conformity with
information furnished by any such Seller, the underwriter or any such
controlling person in writing specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Registrable
Securities under the Act pursuant to Section 10, the Seller will indemnify and
hold harmless the Company, and each person, if any, who controls the Company
within the meaning of the Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the Act pursuant to Section 10, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such Seller, as such, furnished in writing to the Company by such Seller
specifically for use in such registration statement or prospectus, and provided,
further, however, that the liability of the Seller hereunder shall be limited to
the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the Registrable
Securities sold by the Seller under such registration statement bears to the
total public offering price of all securities sold thereunder, but not in any
event to exceed the gross proceeds
20
received by the Seller from the sale of Registrable Securities covered by such
registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 10.4(c) and shall only
relieve it from any liability which it may have to such indemnified party under
this Section 10.4(c) if and to the extent the indemnifying party is prejudiced
by such omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 10.4(c) for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected,
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified parties
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution in the
event of joint liability under the Act in any case in which either (i) the
Seller, or any controlling person of the Seller, makes a claim for
indemnification pursuant to this Section 10.4 but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right
21
of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 10.4 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of the
Seller or controlling person of the Seller in circumstances for which
indemnification is provided under this Section 10.4; then, and in each such
case, the Company and the Seller will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that the Seller is responsible only for the
portion represented by the percentage that the public offering price of its
securities offered by the registration statement bears to the public offering
price of all securities offered by such registration statement, provided,
however, that, in any such case, (A) the Seller will not be required to
contribute any amount in excess of the public offering price of all such
securities offered by it pursuant to such registration statement; and (B) no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 10(f) of the Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
11.1. Future Offerings.
(a) Offering Restriction. Until 270 days after the delivery of all
Common Stock issuable upon Reset pursuant to Section 9 hereof, the Company and
its subsidiaries will not issue any equity, or convertible debt or other
securities or conduct any public or private offering without the consent of the
Subscriber if such offering would or could result in the issuance of Common
Stock or any other security of the Company that would be freely tradable on the
books of the Company, with or without registration with the Securities and
Exchange Commission or in reliance on any exemption from registration prior to
the effective date of a Registration Statement described in Section 10.1(iv)
relating to all the Registrable Securities. The foregoing restriction shall not
apply in connection with an offering, to raise no more than $5,500,000 on terms
more favorable to the investor, than the terms described herein, for the sole
purpose of purchasing the Wexford BCAM interest.
(b) Right of First Refusal. The Subscriber shall be given not less
than fifteen (15) business days prior written notice of any proposed sale by the
Company of its common stock or other securities in offerings made pursuant to
the last sentence
22
of Section 11.1(a) above. The Subscriber shall have the right during the ten
(10) business days following the notice to agree to purchase an amount of
securities in the same proportion as being purchased in the aggregate offering
to which this Subscription Agreement relates (i.e. $2,000,000 in the aggregate),
of those securities proposed to be issued and sold, in accordance with the terms
and conditions set forth in the notice of sale. In the event such terms and
conditions are modified during the notice period, the Subscriber shall be given
prompt notice of such modification and shall have the right during the original
notice period or for a period of fifteen (15) business days following the notice
of modification, whichever is longer, to exercise such right.
11.2. Obligation To Purchase.
(a) Until two years from the Closing Date, the Subscriber agrees to
purchase from the Company additional shares of Common Stock of the Company (the
"Put Shares") for the aggregate consideration designated on the signature page
hereof (the "Put").
(b) The agreement to purchase the Put Shares is contingent on the
Company registering the Put Shares with the Securities and Exchange Commission
on the Form S-3 or such other registration statement described in Section
10.1(iv) of this Subscription Agreement or another form suitable for such
purpose and with such States designated by the Purchaser on or before 130 days
from the Closing Date, and such registration statement being declared effective
by the Securities and Exchange Commission on or before 130 days from the Closing
Date.
(c) The agreement to purchase is further contingent on the
following:
(1) As of the effective date of the registration statement
described in Section 11.2(b), the Company will be a full reporting company with
the class of Shares registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934.
23
(2) The Company's Common Stock will have traded at an average
daily trading volume of 75,000 shares for the thirty trading days prior to the
effective date of the registration statement described in Section 11.2(b) above,
with an average daily closing bid price of not less than $1.30 per share for the
same period.
(3) The Company's financial condition will be at least
equivalent to the Company's financial condition as reported in the Company's
most recent financial statements included in the Reports and Other Information.
(4) None of the following events of default ("Event of
Default") shall have occurred or be continuing:
(i) The Company shall make an assignment for the benefit
of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for a substantial part of its property or business; or such a
receiver or trustee shall otherwise be appointed.
(ii) Any money judgment, writ or similar process shall
be entered or filed against Company or any of its property or other assets for
more than $50,000, and shall remain unvacated, unbonded or unstayed for a period
of forty-five (45) days.
(iii) Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings or relief under any bankruptcy law
or any law for the relief of debtors shall be instituted by or against the
Company.
(iv) Delisting of any of the Company's securities from
the NASDAQ SmallCap Market or such other principal exchange on which such
security is listed for trading, except for the Boston Exchange.
(v) A concession by the Company of a default under any
one or more obligation in an aggregate monetary amount in excess of $50,000.
(vi) An SEC stop trade order or NASDAQ trading
suspension, if either applies for a period of ten days or longer.
(vii) Any representation or warranty of the Company made
in this Subscription Agreement or in connection
24
herewith, or in any agreement, statement or certificate given in writing
pursuant hereto or in connection herewith shall be false or misleading.
(viii) The occurrence of a Registration Default as
described in Section 10.2(j) of this Subscription Agreement.
(ix) Any default by the Company of any covenant or
undertaking described in this Subscription Agreement or any document delivered
in connection herewith.
(5) A Closing shall have occurred on the aggregate $2,000,000
offering described in this Subscription Agreement.
(6) The Put Shares will be free-trading, unrestricted,
unlegended and not subject to volume resale limitations.
(7) Such other terms and condition as would reasonably and
customarily be included in an Underwriter's Firm Commitment or Best Efforts
underwriting agreement.
(d) The Subscriber is required to purchase Put Shares within ten
(10) business days of notice by the Company that the Company is exercising the
Put ("Put Notice"). The date notice is given is the "Put Date". The Company's
right to give a Put Notice expires two years from the Closing Date. The Company
may not give such notice more often than once each twenty-one (21) days, nor
within ten (10) days prior to nor within ten (10) days subsequent to a Reset
Date, as defined in Section 9 of this Subscription Agreement. Unless otherwise
agreed to by the Subscribers, Put Notices must be given to all Subscribers in
the same proportion to the amounts agreed to be purchased by all Subscribers
undertaking to purchase Put Shares. Payment for the Put Shares will be made upon
receipt of the Put Shares by the Subscriber or an escrow agent to be designated
by the Company and Subscriber.
(e) The price per common share for each Put Share shall be 77% of
the lowest bid price of the Company's Common Stock on the NASDAQ SmallCap
Market, or on any securities exchange or other securities market on which the
Common Stock is then being traded, for the five trading days commencing two
25
trading days prior to the Put Date and ending two trading days after the Put
Date (the "Put Price").
(f) The aggregate purchase price of Put Shares for which each Put
Notice may be given to all Subscribers is as follows:
Average Per Common Average Daily Aggregate Dollar
Share Closing Common Stock Purchase Price of
Bid Price For Trading Volume For Put Shares For
15 Trading Days 15 Trading Days All Put Notices
Prior to Put Date Prior to Put Date On a Put Date
------------------ ------------------ -----------------
Between $1.30 Not Less Than Up to $500,000
and $1.60 75,000 Common Shares
Between $1.61 Not Less Than Up to $750,000
and $1.90 100,000 Common Shares
More than $1.90 Not Less Than Up to $1,000,000
125,000 Common Shares
(g) The Put Price and number of Common Shares to be issued pursuant
to this Section shall be subject to adjustment from time to time upon the
happening of certain events while the Put right remains outstanding, as follows:
(1) Stock Splits, Combinations and Dividends. If the shares of
Common Stock are subdivided or combined into a greater or smaller number of
shares of Common Stock, or if a dividend is paid on the Common Stock in shares
of Common Stock, the Put Price shall be proportionately reduced in case of
subdivision of shares or stock dividend or proportionately increased in the case
of combination of shares, in each such case by the ratio which the total number
of shares of Common Stock outstanding immediately after such event bears to the
total number of shares of Common Stock outstanding immediately prior to such
event.
(2) Share Issuance. Subject to the provisions of this Section,
if the Company at any time shall issue any shares of Common Stock prior to the
exercise of the aggregate Put amounts (otherwise than as provided in Section
26
11.2(f)(1) or this subparagraph 11.2(f)(2) for a consideration less than the Put
Price that would be in effect at the time of such issue, then, and thereafter
successively upon each such issue, the Put Price shall be reduced as follows:
(i) the number of shares of Common Stock outstanding immediately prior to such
issue shall be multiplied by the Put Price in effect at the time of such issue
and the product shall be added to the aggregate consideration, if any, received
by the Company upon such issue of additional shares of Common Stock; and (ii)
the sum so obtained shall be divided by the number of shares of Common Stock
outstanding immediately after such issue. The resulting quotient shall be the
adjusted Put Price. For purposes of this adjustment, the issuance of any
security of the Company carrying the right to convert such security into shares
of Common Stock or of any warrant, right or option to purchase Common Stock
shall result in an adjustment to the Put Price upon the issuance of shares of
Common Stock upon exercise of such conversion or purchase rights.
(h) The Company shall not be entitled to exercise the Put without
the consent of the Subscriber, 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 Subscriber and its affiliates on a Put
Date, and (ii) the number of shares of Common Stock issuable upon the exercise
of the Put with respect to which the determination of this proviso is being made
on a Put Date, which would result in beneficial ownership by the Subscriber and
its affiliates of more than 4.99% of the outstanding shares of Common Stock of
the Company. For the purposes of the proviso to the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3
thereunder, except as otherwise provided in clause (i) of such proviso.
12. Miscellaneous.
(a) Notices. All notices or other communications given or made
hereunder shall be in writing and shall be personally delivered or deemed
delivered the day telecopied (with copy mailed by regular, certified or
registered mail, or overnight courier) to the party to receive the same at its
address set forth below or to such other address as either party shall hereafter
give to the other by notice duly made under this Section: (i) if to the Company,
to BCAM International, Inc.,
27
1800 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, telecopier number: (516)
752-3558; and (ii) if to the Subscriber, to the name, address and telecopy
number set forth on the first page hereof.
(b) Closing. The consummation of the transactions contemplated
herein shall take place at the offices of Grushko & Xxxxxxx, 000 Xxxxxxxx, Xxxxx
000, Xxx Xxxx, Xxx Xxxx 00000, upon the satisfaction of all conditions to
Closing set forth in this Agreement. The closing date shall be the date one-half
of the subscriber funds are transmitted by wire transfer to the Company and the
other-half retained in escrow pursuant to Section 10.1(iv) hereof (the "Closing
Date").
(c) Entire Agreement; Assignment. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by both parties. No right
or obligation of either party shall be assigned by that party without prior
notice to and the written consent of the other party.
(d) Execution. This Agreement may be executed by facsimile
transmission, followed by delivery of an executed original copy.
(e) Law Governing this Agreement. This Agreement shall be governed
by and construed in accordance with the laws of the United States of America and
the State of New York. 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 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.
28
(f) Cancellation. Until a Closing actually takes place, either or
both the Company or Subscriber may withdraw without penalty from the
transactions described herein.
(g) Automatic Termination. This Agreement shall automatically
terminate without any further action of either party hereto if the Closing shall
not have occurred by the seventh (7th) business day following the date this
Agreement is accepted by the Subscriber, provided, however, that any such
termination shall not terminate the liability of any party which is then in
breach of the Agreement.
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
Very truly yours,
BCAM INTERNATIONAL, INC.
By:
--------------------------------
Dated: April ____, 1998
Accepted:
BALMORE FUNDS X.X.
Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxx
Fax: 000-000-000-0000
By:
------------------------
Dated as of Xxxxx 00, 0000
Xxxxxxxx Price: $850,000.00
29
Common Shares Purchased: 841,584
Common Stock Purchase Warrants Obtained: 106,250
Aggregate Put Consideration: $1,275,000.00
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
Very truly yours,
BCAM INTERNATIONAL, INC.
By:
-------------------------------
Dated: April ____, 1998
Accepted:
BEESTON INVESTMENTS LTD.
000 Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxx
Fax: 000-000-00000000
By:
------------------------
Dated as of Xxxxx 00, 0000
Xxxxxxxx Price: $200,000.00
Common Shares Purchased: 198,020
Common Stock Purchase Warrants Obtained: 25,000
Aggregate Put Consideration: $300,000.00
