EXHIBIT 10.3
------------
FORM OF
PRIVATE PLACEMENT AGREEMENT
This Private Placement Agreement (hereinafter referred
to as "Agreement"), is entered into as of the 5th day of
February, 1997, by and between Advanced Mammography Systems,
Inc., a Delaware corporation (the "Company"), and _____________
_____________________________________________________ (the
"Purchaser"), with reference to the following:
NOW, THEREFORE, IN CONSIDERATION of and in reliance
upon the respective representations and warranties, covenants,
terms and conditions herein contained, the parties agree as
follows:
1. STOCK PURCHASE Subject to the terms and
--------------
conditions herein, the Purchaser shall purchase from the Company,
and the Company shall sell to the Purchaser, 101,626 shares of
the Company's Common Stock, $.01 par value (the "Stock"),
together with 101,626 Warrants in the form attached hereto at an
exercise price of $1.93 per share (the "Warrants"), at a price of
$1.23 per share of Stock, or an aggregate purchase price of
$125,000. The Stock and the Warrants (sometimes collectively,
the "Securities") shall not be registered under the Securities
Act of 1933, as amended, (the "Securities Act"), by reason of the
private placement exemption under Regulation D. The Purchaser
shall deliver a check to the Company in the amount of $125,000
representing the purchase price for the Securities and the
Company shall deliver certificates for the Stock and the Warrants
to the Purchaser.
2. REPRESENTATIONS BY THE PURCHASER. The Purchaser
--------------------------------
hereby represents and warrants to the Company as follows:
(a) The Purchaser is acquiring the Securities for
investment for the Purchaser's own account and not with the view
to, or for resale in connection with any distribution thereof
(subject to the provisions of Section 4 hereof). She understands
that the Securities have not been registered under the Securities
Act by reason of specified exemption from the registration
provisions thereof which depends upon, among other things, the
bona fide nature of her investment intent as expressed herein.
She acknowledges that the Company may place restrictive legends
on, and stop transfer orders against, the certificates
representing the Securities being acquired by her.
(b) The Purchaser (or any advisor on her behalf)
is experienced in evaluating and investing in companies such as
the Company, and has such knowledge and experience in evaluating
the merits and speculative risks of the investment, and the
Purchaser has the ability to bear the economic risks of such
investment. The Purchaser is an "accredited investor", as such
term is defined in Regulation D under the Securities Act.
(c) The Purchaser is fully familiar with the
Company's business (including its prospects), operations and
financial history. She (or any advisor on her behalf) has had an
opportunity to discuss the Company's business, operations
(including prospects) and financial affairs with its management
and has received and read the Company's Form 10-K for the fiscal
year ended September 30, 1996. She is not relying upon any oral
representations by the Company's officers or representatives in
deciding to purchase the Securities.
(d) The Purchaser acknowledges that the Securities
must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration
is available. She has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act,
which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions and
that such Rule may not become available for resale of the Shares.
3. REPRESENTATIONS OF THE COMPANY. The Company
------------------------------
hereby represents and warrant to the Purchaser as follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware. The Company has the requisite corporate power to
enter into this Agreement, to sell the Securities and to carry
out and perform its obligations under the terms of this
Agreement. The execution and delivery of this Agreement has been
duly authorized by the Company.
(b) All of the Securities being issued to the
Purchaser pursuant to this Agreement (including the shares of
Common Stock underlying the Warrants when exercised pursuant to
the terms thereof) will be validly issued, fully paid and non-
assessable shares of Common Stock.
(c) The Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1996 presents fairly the
financial position and results of operations of the Company at
the dates and the periods to which they relate. Since September
30, 1996, there has been no material adverse changes in the
financial condition or prospects of the Company except as
disclosed or contemplated in its filings with the Securities and
Exchange Commission (the "SEC").
4. REGISTRATION. The Company shall use its best
------------
efforts to register the Stock by filing a registration statement
with the SEC on Form S-3 or other appropriate form (the "Form")
within 60 days after the closing of the purchase herein and to
file any amendments thereto within 30 days after receipt of an
SEC comment letter (subject to availability of audited financial
statements) and the Company agrees to keep the Form current and
effective so long as the Securities (including the Common Stock
underlying the Warrants) are owned by the Purchaser but not to
exceed three years from the date hereof. If the Company fails to
fulfill its obligations set forth in the preceding sentence as to
the Form, then the Company shall be required to issue to the
Purchaser within 30 days, an additional amount of Warrants equal
to 12.5% of the number of Warrants originally issued to the
Purchaser. The Purchaser shall enter into a customary agreement
with the Company regarding the sale of the Stock under the Form
and mutual indemnification.
5. FEES. The Company agrees to pay InterFirst
----
Capital Corporation ("InterFirst) or its assigns a placement
distribution fee of ten percent (10%) and the Purchaser's counsel
fees of one and one-quarter percent (1-1/4%) (the "Fees") of the
gross proceeds in connection with the sale of the Stock and the
exercise of the Warrants. The Fees shall be paid simultaneously
with the funds being transferred to the Company. InterFirst and
Purchaser's counsel shall be entitled to advise and notify the
Purchaser and the Company of any Fees due to InterFirst and
Purchaser's counsel from the gross proceeds from any of the
transactions under this Agreement. InterFirst and Purchaser's
counsel shall be entitled to submit directly to the Purchaser a
demand or claim for the payment of the fees at the closing of and
transaction under this Agreement and if not paid by the Purchaser
then the Company shall pay the Fees of InterFirst and Purchaser's
counsel, assuming the Company receives the gross proceeds.
Except as set forth in this Section, neither party had directly
or indirectly retained any finder, broker or other person in
connection with the transactions herein who might be entitled to
a fee or commission herewith.
6. CONFIDENTIALITY. The Purchaser and the Company
---------------
agree that the contents and nature of this Agreement are to
remain strictly confidential between the Company and the
Purchaser only. Neither the Purchaser nor the Company shall
divulge or distribute the contents of this Agreement to anyone
else or use this Agreement in any way except as intended between
the parties hereto, other than as provided by the disclosure
obligations under the federal securities laws.
7. MISCELLANEOUS.
-------------
(a) ENTIRE AGREEMENT. This Agreement constitutes
----------------
the entire agreement between the parties pertaining to the
subject matter hereof. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by
all the parties. No waiver shall be binding unless executed in
writing by the party making the waiver.
(b) COUNTERPARTS. This Agreement may be executed
------------
simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument. Facsimile signatures may be
acceptable for the purpose of execution of this Agreement.
(c) ASSIGNMENT. The rights and obligations
----------
granted hereunder may not be assigned to any third party without
the prior written consent of the other party. Upon any valid
assignment, this Agreement shall be binding on, and shall inure
to the benefit of, the parties to it and their respective heirs,
legal representatives, successors and assigns.
(d) GOVERNING LAW. This Agreement shall be
-------------
construed in accordance with and governed by the laws of the
State of Delaware.
(e) SEVERABILITY. If any portion of this
------------
Agreement shall be declared or determined to be invalid, the
remainder hereof shall nevertheless remain in full force and
effect.
(f) NOTICE. All written notices, demands or
------
requests of any kind, which either party may be required or may
desire to serve on the other in connection with this Agreement,
must be served by registered or certified mail, with postage
prepaid and return receipt requested, and the following address:
If to the Purchaser, to:
If to the Company, to:
Advanced Mammography Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Chairman
or to such other address as either party hereto may duly give to
the other. In lieu of mailing, either party may cause delivery
of such notices, demands and requests to be made by personal
service, provided that acknowledgement of receipt is made.
Notice shall be deemed given upon personal delivery or three (3)
days after depositing in the U.S. Mail, postage prepaid.
(g) HEADINGS AND INTERPRETATION. Titles or
---------------------------
captions contained herein are inserted as a matter of convenience
and for reference, and in no way, define, limit, extend or
describe the scope of this Agreement or any provision thereof.
No provision in this Agreement is to be interpreted for or
against either party because that party or its legal
representative drafted such provision.
(h) FURTHER ASSURANCES. Each party agrees to
------------------
execute and acknowledge such other instruments as may be
reasonably necessary to effect the transactions contemplated
herein.
(i) GENDER AND NUMBER. As used in this
-----------------
Agreement, the masculine, feminine or neuter gender, and the
singular or plural number, shall each include the others whenever
the context so indicates.
IN WITNESS WHEREOF, the parties hereof have executed
this Agreement as of the date herein first written above.
Advanced Mammography Systems, Inc.
By:___________________________
_________________________________
