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Exhibit 10.86
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of June 14,
2000, by and among BioShield Technologies, Inc., a Georgia corporation, with
headquarters located at 5655 Peachtree Parkway, Georgia 30092 (the "COMPANY"),
and the investor listed on the Schedule of Buyers (the "SCHEDULE OF BUYERS")
attached hereto (individually, a "BUYER" or collectively "BUYERS").
WHEREAS:
A. The Company and the Buyers are executing and delivering this
Agreement in reliance upon the exemption from securities registration pursuant
to Section 4(2) and/or Regulation D ("REGULATION D") at the sole election of
Buyer in the event that a registration statement filed by the Company pursuant
to Section 2(a) of the Registration Rights Agreement (described below) is not
declared effective by the Registration Deadline (as defined therein) as
promulgated by the U.S. Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 ACT");
B. The Company has authorized the following new series of its Preferred
Stock, no par value per share (the "PREFERRED STOCK"): the Company's Series B
Convertible Preferred Stock (the "SERIES B PREFERRED Shares"), which shall be
convertible into shares of the Company's Common Stock, no par value per share
(the "COMMON STOCK") (as converted, the "CONVERSION SHARES"), in accordance with
the terms of the Company's Amendments to its Articles of Incorporation,
substantially in the form attached hereto as Exhibit "A" (the "AMENDMENT");
C. The Buyer wishes to purchase, upon the terms and conditions stated
in this Agreement, an aggregate of 500 shares of Series B Preferred Shares in
the respective amounts set forth opposite each Buyer's name on the Schedule of
Buyers;
D. Contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
substantially in the form attached hereto as Exhibit "B" (the "REGISTRATION
RIGHTS AGREEMENT") pursuant to which the Company has agreed to provide certain
registration rights under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws; and
E. The holders of Series B Preferred Shares shall receive stock
purchase warrants to acquire shares of Common Stock of the Company at an
exercise price of $18.92 per share the form attached as Exhibit "C" (the
"WARRANTS").
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF SERIES B PREFERRED STOCK.
a. Purchase of Series B Preferred Stock. Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 6 and
7 below, the Company shall issue and sell to the
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Buyers and the Buyers shall purchase from the Company an aggregate of
500 shares of Series B Preferred Stock, in the respective amounts set
forth opposite each Buyer's name on the Schedule of Buyers (the
"CLOSING").
b. Closing Date. The date and time of the Closing (the
"CLOSING DATE") shall be at a time and place as is mutually agreed to
by the Company and the Buyer. The Closing shall occur on the Closing
Date at the offices of Sims Moss Kline & Davis LLP, 400 Northpark Town
Center, Suite 310, 1000 Abernathy Road, N.E., Atlanta, Georgia 30328.
c. Form of Payment. On the Closing Date, (i) each Buyer shall
pay the purchase price to the Company for the Series B Preferred Shares
to be issued and sold to such Buyer at the Closing, by wire transfer of
immediately available funds in accordance with the Escrow Agreement
between the parties, dated as of June 7, 2000, and (ii) the Company
shall deliver to each Buyer, certificates representing such Series B
Preferred Shares which such Buyer is then purchasing (as indicated
opposite such Buyer's name on the Schedule of Buyers), duly executed on
behalf of the Company and registered in the name of such Buyer or its
designee (the "CERTIFICATES") and the Warrants.
2. BUYER'S REPRESENTATIONS AND WARRANTEES.
Each Buyer represents and warrants with respect to only itself that:
a. Investment Purpose. Such Buyer (i) is acquiring the Series
B Preferred Shares, (ii) upon conversion of the Series B Preferred
Shares, will acquire the Conversion Shares then issuable, (iii) will
acquire any Warrants issuable, and (iv) upon exercise of the Warrants,
will acquire the shares of Common Stock upon exercise thereof (the
"WARRANT SHARES") for its own account for investment only and not with
a view towards, or for resale in connection with, the public sale or
distribution thereof, except pursuant to sales registered or exempted
under the 1933 Act; provided, however, that by making the
representations herein, such Buyer does not agree to hold any Series B
Preferred Shares, Conversion Shares, Warrants, or Warrant Shares for
any minimum or other specific term and reserves the right to dispose of
Series B Preferred Shares, Conversion Shares, Warrants, or Warrant
Shares at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
b. Accredited Investor Status. Such Buyer is an "accredited
investor" as that term is defined in Rule 501(a)(3) of Regulation D.
c. Reliance on Exemptions. Such Buyer understands that the
Series B Preferred Shares, the Conversion Shares, the Warrants, and the
Warrant Shares are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal
and state securities laws and that the Company is relying in part upon
the truth and accuracy of, and such Buyer's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of such Buyer set forth herein in order
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to determine the availability of such exemptions and the eligibility of
such Buyer to acquire such securities.
d. Information. Such Buyer and its advisors, if any, have been
furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale
of the Series B Preferred Shares, the Conversion Shares, the Warrants,
and the Warrant Shares, which have been requested by such Buyer. Such
Buyer and its advisors, if any, have been afforded the opportunity to
ask questions of the Company. Neither such inquiries nor any other due
diligence investigations conducted by such Buyer or its advisors, if
any, or its representatives shall modify, amend or affect such Buyer's
right to rely on the Company's representations and warranties contained
in Section 3 below. Such Buyer understands that its investment in the
Series B Preferred Shares, the Conversion Shares, the Warrants, and the
Warrant Shares involves a high degree of risk. Such Buyer has sought
such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its acquisition of
the Series B Preferred Shares, the Conversion Shares, the Warrants, and
the Warrant Shares.
e. No Governmental Review. Such Buyer understands that no
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or
endorsement of the Series B Preferred Shares, the Conversion Shares,
the Warrants, and the Warrant Shares or the fairness or suitability of
the investment in the Series B Preferred Shares, the Conversion Shares,
the Warrants, or the Warrant Shares nor have such authorities passed
upon or endorsed the merits of the offering of the Series B Preferred
Shares, the Conversion Shares, the Warrants, or the Warrant Shares.
f. Transfer or Resale. Such Buyer understands that except as
provided in the Registration Rights Agreement: (i) the Series B
Preferred Shares, the Conversion Shares, the Warrants, and the Warrant
Shares have not been and are not being registered under the 1933 Act or
any state securities laws, and may not be offered for sale, sold,
assigned or transferred unless (a) subsequently registered thereunder,
(b) such Buyer shall have delivered to the Company an opinion of
counsel, in a generally acceptable form, to the effect that such
securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration, or (c)
such Buyer provides the Company with reasonable assurance that such
securities can be sold, assigned or transferred pursuant to Rule 144
promulgated under the 1933 Act, (ii) any sale of such securities made
in reliance on Rule 144 (or a successor rule thereto) ("RULE 144") may
be made only in accordance with the terms of Rule 144 and further, if
Rule 144 is not applicable, any resale of such securities under
circumstances in which the seller (or the person through whom the sale
is made) may be deemed to be an underwriter (as that term is defined in
the 1933 Act) may require compliance with some other exemption under
the 1933 Act or the rules and regulations of the SEC thereunder; and
(iii) neither the Company nor any other person is under any obligation
to register such securities under the 1933 Act or any state securities
laws or to comply with the terms and conditions of any exemption
thereunder.
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g. Legends. Such Buyer understands that the certificates or
other instruments representing the Series B Preferred Shares, the
Warrants and, until such time as the sale of the Conversion Shares have
been registered under the 1933 Act as contemplated by the Registration
Rights Agreement, the stock certificates representing the Conversion
Shares, and the Warrant Shares shall bear a restrictive legend in
substantially the following form (and a stop transfer order may be
placed against transfer of such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS,
OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144
UNDER SAID ACT.
The legend set forth above shall be removed and the Company
shall issue a certificate without such legend to the holder of the
Series B Preferred Shares, the Conversion Shares, the Warrants, or the
Warrant Shares upon which it is stamped, if, unless otherwise required
by state securities laws, (i) the sale of the Conversion Shares or the
Warrant Shares is registered under the 1933 Act, (ii) in connection
with a sale transaction, such holder provides the Company with an
opinion of counsel, in a generally acceptable form, to the effect that
a public sale, assignment or transfer of the Series B Preferred Shares,
the Conversion Shares, the Warrants, or the Warrant Shares may be made
without registration under the 1933 Act, or (iii) such holder provides
the Company with reasonable assurances that the Series B Preferred
Shares, the Conversion Shares, the Warrants, or the Warrant Shares can
be sold pursuant to Rule 144 without any restriction as to the number
of securities acquired as of a particular date that can then be
immediately sold.
h. Authorization, Enforcement. This Agreement has been duly
and validly authorized, executed and delivered on behalf of such Buyer
and is a valid and binding agreement of such Buyer enforceable in
accordance with its terms, subject as enforceability to general
principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating
to, or affecting generally, the enforcement of applicable creditors'
rights and remedies.
i. Residency. Such Buyer is a resident of that country
specified in its address on the Schedule of Buyers.
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j. No Scheme to Evade Registration. Buyer represents and
warrants to the Company that the acquisition of the Series B Preferred
Shares and the Conversion Shares is not a transaction (or any element
of a series of transactions) that is part of a plan or scheme by the
Buyer to evade the registration provisions of the 1933 Act.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that:
a. Organization and Qualification. The Company is a
corporation duly organized and validly existing in good standing under
the laws of the jurisdiction in which they are incorporated, and have
the requisite corporate power to own their properties and to carry on
their business as now being conducted. The Company is duly qualified as
a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes
such qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company taken as a whole.
b. Authorization, Enforcement, Compliance with Other
Instruments. (i) The Company has the requisite corporate power and
authority to enter into and perform this Agreement, the Registration
Rights Agreement and any related agreements, and to issue the Series B
Preferred Shares, the Conversion Shares, and cause to be issued the
Warrants, and the Warrant Shares in accordance with the terms hereof
and thereof, (ii) the execution and delivery of this Agreement, the
Registration Rights Agreement and any related agreements by the Company
and the consummation by it of the transactions contemplated hereby and
thereby, including without limitation the issuance of the Series B
Preferred Shares and the Warrants and the reservation for issuance and
the issuance of the Conversion Shares and the Warrant Shares issuable
upon conversion or exercise thereof, have been duly authorized by the
Company's Board of Directors and no further consent or authorization is
required by the Company, its Board of Directors or its stockholders,
(iii) this Agreement and the Registration Rights Agreement and any
related agreements have been duly executed and delivered by the
Company, (iv) this Agreement, the Registration Rights Agreement and any
related agreements constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles of
equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of creditors' rights and remedies, and (v)
prior to the Closing Date, the Certificate of Designations has been
filed with the Secretary of State of the State of Georgia and will be
in full force and effect, enforceable against the Company in accordance
with its terms.
c. Capitalization. As of May 15, 2000, the authorized capital
stock of the Company consists of 50,000,000 shares of Common Stock, of
which as of the date hereof 7,981,714 shares were issued and
outstanding, and 10,000,000 shares of Preferred Stock of which 200
shares of Series A preferred stock were issued and outstanding. All of
such outstanding shares have been validly issued and are fully paid and
non-assessable. Except
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as disclosed in Schedule 3(c), no shares of Common Stock or preferred
stock are subject to preemptive rights or any other similar rights or
any liens or encumbrances suffered or permitted by the Company. Except
as disclosed in Schedule 3(c), as of the effective date of this
Agreement (i) there are no outstanding debt securities and (ii) there
are no agreements or arrangements under which the Company is obligated
to register the sale of any of their securities under the 1933 Act
(except the Registration Rights Agreement). There are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Series B Preferred Shares, the
Conversion Shares, the Warrants, or the Warrant Shares as described in
this Agreement. The Company has furnished to the Buyer true and correct
copies of the Company's Articles of Incorporation, as amended and as in
effect on the date hereof (the "ARTICLES OF INCORPORATION"), and the
Company's By-laws, as in effect on the date hereof (the "BY-LAWS"), and
the terms of all securities convertible into or exercisable for Common
Stock and the material rights of the holders thereof in respect
thereto.
d. Issuance of Securities. The Series B Preferred Shares are
duly authorized and, upon issuance in accordance with the terms hereof,
shall be (i) validly issued, fully paid and non-assessable, are free
from all taxes, liens and charges with respect to the issue thereof and
are entitled to the rights and preferences set forth in the Series B
Preferred Shares. The Conversion Shares issuable upon conversion of the
Series B Preferred Shares have been duly authorized and reserved for
issuance. Upon conversion or exercise in accordance with the Series B
Preferred Shares or the Warrants, the Conversion Shares and the Warrant
Shares will be validly issued, fully paid and non-assessable and free
from all taxes, liens and charges with respect to the issue thereof,
with the holders being entitled to all rights accorded to a holder of
Common Stock.
e. No Conflicts. Except as disclosed in Schedule 3(e), the
execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated
hereby will not (i) result in a material violation of the Articles of
Incorporation, any preferences and rights of any outstanding series of
preferred stock of the Company or By-laws or (ii) conflict with or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which the Company is a party, or
result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and
the rules and regulations of the principal market or exchange on which
the Common Stock is traded or listed) applicable to the Company or by
which any property or asset of the Company bound or affected. Except as
disclosed in Schedule 3(e), the Company is in violation of any term of
or in default under its Articles of Incorporation or Bylaws or their
organizational charter or by-laws, respectively, or any material
contract, agreement, mortgage, indebtedness, indenture, instrument,
judgment, decree or order or any statute, rule or regulation applicable
to the Company. To the knowledge of the Company, the business of the
Company are not being conducted, and shall not be conducted in
violation of any law, ordinance, or regulation of any governmental
entity. Except as specifically contemplated by this Agreement and as
required under the 1933 Act and any applicable state
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securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or
perform any of its obligations under or contemplated by this Agreement
or the Registration Rights Agreement in accordance with the terms
hereof or thereof except as disclosed in Schedule 3(e). All consents,
authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence have been
obtained or effected on or prior to the date hereof.
f. SEC Documents: Financial Statements. Since January 1, 1999,
the Company has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the "1934 ACT") (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and
schedules thereto and documents incorporated by reference therein,
being hereinafter referred to as the "SEC DOCUMENTS"). The Company has
delivered to the Buyer or its representative true and complete copies
of the SEC Documents. As of their respective dates, the financial
statements of the Company attached as Schedule 3(f) hereto (the
"FINANCIAL STATEMENTS") complied as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to
the extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
g. Absence of Certain Changes. Except as disclosed in Schedule
3(g), since January 1, 1999, there has been no material adverse change
and no material adverse development in the business, properties,
operations, financial condition, results of operations or prospects of
the Company. The Company has not taken any steps, and does not
currently expect to take any steps, to seek protection pursuant to any
bankruptcy law nor does the Company have any knowledge or reason to
believe that its creditors intend to initiate involuntary bankruptcy
proceedings.
h. Absence of Litigation. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company against or affecting the Company or
the Common Stock , wherein an unfavorable decision, ruling or finding
would (i) have a material adverse effect on the transactions
contemplated hereby (ii) adversely affect the validity or
enforceability of, or the authority or ability of the Company to
perform its obligations under, this Agreement or any of the documents
contemplated herein or (iii), except as expressly set forth in Schedule
3(h), have a material adverse effect on the business, operations,
properties, financial condition or results of operation of the Company
taken as a whole.
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i. Acknowledgment Regarding Buyer's Purchase of Series B
Preferred Shares. The Company acknowledges and agrees that the Buyer is
acting solely in the capacity of an arm's length purchaser with respect
to this Agreement and the transactions contemplated hereby.
j. No Undisclosed Events, Liabilities, Developments or
Circumstances. No event, liability, development or circumstance has
occurred or exists, or is contemplated to occur, with respect to the
Company's respective business, properties, prospects, operations or
financial condition, which could be material but which has not been
publicly announced or disclosed in writing to the Buyer.
k. No General Solicitation. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the 1933 Act) in connection
with the offer or sale of the Series B Preferred Shares, the Conversion
Shares, the Warrants, or the Warrant Shares.
1. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would require
registration of the Series B Preferred Shares, the Conversion Shares,
the Warrants, and the Warrant Shares under the 1933 Act or cause this
offering of Series B Preferred Shares, the Conversion Shares, the
Warrants, or the Warrant Shares to be integrated with prior offerings
by the Company for purposes of the 1933 Act or any applicable
stockholder approval provisions.
m. Employee Relations. The Company is involved in any labor
dispute nor, to the knowledge of the Company in any such dispute
threatened. The Company is not a member of a union and the Company
believe that their relations with their employees are good.
n. Title. The Company has good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company, in each case free and clear of all liens, encumbrances and
defects except such as are described in Schedule 3(n) or such as do not
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company .
Any real property and facilities held under lease by the Company are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company.
o. Regulatory Permits. The Company possess all material
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor
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any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit.
p. Tax Status. Except as set forth on Schedule 3(p), the
Company has made or filed all federal and state income and all other
tax returns, reports and declarations required by any jurisdiction to
which it is subject (unless and only to the extent that the Company has
set aside on its books provisions reasonably adequate for the payment
of all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown
or determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on its
books provision reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim.
q. Fees and Rights of First Refusal. The Company is not
obligated to offer the securities offered hereunder on a right of first
refusal basis or otherwise to any third parties including, but not
limited to, current or former shareholders of the Company,
underwriters, brokers, agents or other third parties.
r. Shareholder Approval. The Company covenants to submit to
its shareholders at its next shareholder meeting a proposal for
ratification of the issuance of the Series B Preferred Shares and the
Conversion Shares, if and as required by the rules of the National
Association of Securities Dealers, Inc. (the "NASD") applicable to the
transaction.
s. Dilution. The Company acknowledges that issuance of the
Conversion Shares upon conversion of the Series B Preferred Shares will
result in dilution of the outstanding shares of Common Stock , which
dilution may be substantial under certain market conditions. The
Company further acknowledges that its obligation to issue the
Conversion Shares upon conversion of the Series B Preferred Shares in
accordance with the terms of the Amendment is unconditional and
absolute, subject to the limitations set forth herein and in the
Amendment, regardless of the effect of any such dilution.
4. COVENANTS.
a. Best Efforts. Each party shall use its best efforts timely
to satisfy each of the conditions to be satisfied by it as provided in
Sections 6 and 7 of this Agreement.
b. Form D. The Company agrees to file a Form D with respect to
the Series B Preferred Shares and the Conversion Shares as required
under Regulation D and to provide a copy thereof to each Buyer promptly
after such filing. The Company shall, on or before the Closing Date,
take such action as the Company shall reasonably determine is necessary
to qualify the Series B Preferred Shares and the Conversion Shares for,
or obtain exemption for the Series B Preferred Shares and the
Conversion Shares for, sale to the Buyers at the Closing pursuant to
this Agreement under applicable securities or "Blue Sky" laws of the
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states of the United States, and shall provide evidence of any such
action so taken to the Buyers on or prior to the Closing Date.
c. Reporting Status. Until the earlier of (i) the date as of
which the Investors (as that term is defined in the Registration Rights
Agreement) may sell all of the Conversion Shares without restriction
pursuant to Rule 144(k) promulgated under the 1933 Act (or successor
thereto), or (ii) the date on which (A) the Investors shall have sold
all the Conversion Shares and (B) none of the Series B Preferred Shares
is outstanding (the "REGISTRATION PERIOD"), the Company shall file all
reports required to be filed with the SEC pursuant to the 1934 Act, and
the Company shall not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules and
regulations thereunder would otherwise permit such termination.
d. Use of Proceeds. The Company will use the proceeds from the
sale of the Series B Preferred Shares for substantially the same
purposes and in substantially the same amounts as indicated in Schedule
4(d).
e. Financial Information. The Company agrees to send the
following to each Buyer during the Registration Period: (i) within five
(5) days after the filing thereof with the SEC, a copy of its Annual
Reports on Form 10-KSB, its Quarterly Reports on Form 10-QSB, any
Current Reports on Form 8-KSB and any registration statements or
amendments filed pursuant to the 1933 Act; (ii) within one (1) day
after release thereof, copies of all press releases issued by the
Company or any of its subsidiaries and (ii) copies of the same notices
and other information given to the stockholders of the Company
generally, contemporaneously with the giving thereof to the
stockholders.
f. Reservation of Shares. The Company shall take all action
necessary to at all times have authorized, and reserved for the purpose
of issuance, no less than 100% of the number of shares of Common Stock
needed to provide for the issuance of the Conversion Shares and Warrant
Shares; provided that all shares of the Common Stock authorized and not
otherwise reserved for other purposes as of the date hereof shall be
reserved for the purpose of issuance of the Conversion Shares.
g. Listings. The Company shall promptly secure the listing of
all Registrable Securities (as defined in the Registration Rights
Agreement) upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then
listed (subject to official notice of issuance) and shall maintain, so
long as any other shares of Common Stock shall be so listed, such
listing of all Conversion Shares from time to time issuable under the
terms of this Agreement and the Registration Rights Agreement. The
Company shall maintain the Common Stock's authorization for quotation
in the over-the counter market. The Company shall promptly provide to
each Buyer copies of any notices it receives regarding the continued
eligibility of the Common Stock for trading on the Nasdaq SmallCap
Market.
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h. Expenses. Each of the Company and the Buyer shall pay all
costs and expenses incurred by such party in connection with the
negotiation, investigation, preparation, execution and delivery of this
Agreement and the Registration Rights Agreement.
i. Warrant Issuances. [INTENTIONALLY LEFT BLANK]
j. No Short Sales of the Common Stock. So long as (i) a Buyer
or any of its affiliates beneficially owns any of Series B Preferred
Shares, (ii) the Company has not issued any publicly traded convertible
securities and (iii) the Issuer is not in material default under the
terms of the Series B Preferred Shares, each Buyer and its affiliates
shall not directly or indirectly engage in any short sales or third
party short sales of the Company's Common Stock or hold a "put
equivalent position" with respect to the Common Stock (as defined in
Rule 16a-1 under the 1934 Act). A short sale "or put equivalent
position" shall not be deemed to have occurred if there is an
offsetting long position in the Common Stock by way of conversion of
any convertible securities of the Company or any Put Notice pursuant to
any private equity credit agreement with the Buyer. Notwithstanding the
foregoing restrictions on short sales, the foregoing restrictions shall
not apply in the event that there is a material adverse change with
respect to the Company which is likely to lead to the liquidation or
bankruptcy of the Company.
k. Right of First Refusal. The Company agrees to provide the
Buyer with a right of first refusal with respect to subsequent
financings, as follows: The Company shall not, without the prior
written consent of the Buyer (which consent shall not be unreasonably
withheld) sell any of its equity securities in a transaction intended
to be exempt or not subject to registration under the Securities Act (a
"Subsequent Placement") until June ___, 2001 other than (v) the
granting of options or warrants to employees, consultants, officers and
directors, and the issuance of shares upon exercise of options granted,
under any stock option plan heretofore or hereinafter duly adopted by
the Company, (w) shares of Common Stock issuable upon exercise of
currently outstanding options and warrants and upon conversion of any
currently outstanding convertible securities of the Company, (x) shares
of Common Stock issuable upon conversion of the Series A or B Preferred
Shares or any warrants issued in connection therewith, (y) any
transaction for the primary benefit of any person or entity other than
the Company such as Electronic Medical Distribution, Inc. or any other
subsidiary or affiliate of the Company and (z) shares of Common Stock
and other securities issued (i) in connection with mergers and
acquisitions and (ii) to strategic investors, unless (A) the Company
delivers to the Buyer a written notice (the "Subsequent Placement
Notice") of its intention to effect such Subsequent Placement, which
Subsequent Placement Notice shall describe in reasonable detail the
proposed terms of such Subsequent Placement, the amount of proceeds
intended to be raised thereunder, the entity with which such Subsequent
Placement shall be effected, and attached to which shall be a term
sheet or similar document relating thereto and (B) the Buyer shall not
have notified the Company by 5:30 p.m. (New York City time) on the
third business day after the delivery of the Subsequent Placement
Notice of its willingness to provide financing to the Company on the
same terms set forth in the Subsequent Placement Notice. If the Buyer
shall notify the Company of its
11
<PAGE> 12
willingness to so provide financing on such terms, the Buyer shall
provide such financing, but the Company shall not be required in any
event to accept financing from the Buyer in an amount less than or in
excess of the amount set forth in the Subsequent Placement Notice. If
the Buyer shall fail to notify the Company of its intention to provide
such financing, the Company may effect the Subsequent Placement
substantially upon the terms and to the entity or entities (or
affiliates thereof) set forth in the Subsequent Placement Notice;
provided, that the Company shall provide the Buyer with a second
Subsequent Placement Notice, and the Buyer shall again have the right
of first refusal as herein set forth, if the Subsequent Placement
subject to the initial Subsequent Placement Notice shall not have been
consummated for any reason on the terms set forth in such Subsequent
Placement Notice within sixty business days after the date of the
initial Subsequent Placement Notice].
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall issue irrevocable instructions to its transfer agent
to issue certificates, registered in the name of the Buyer or its respective
nominee(s), for the Conversion Shares and Warrant Shares in such amounts as
specified from time to time by the Buyer to the Company upon conversion of the
Series B Preferred Shares or exercise of the Warrants (the "IRREVOCABLE TRANSFER
AGENT INSTRUCTIONS"). Prior to registration of the Conversion Shares and Warrant
Shares under the 1933 Act, all such certificates shall bear the restrictive
legend specified in Section 2(g) of this Agreement. The Company warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred to
in this Section 5, and stop transfer instructions to give effect to Section 2(g)
hereof (in the case of the Conversion Shares and Warrant Shares, prior to
registration of such shares under the 1933 Act) will be given by the Company to
its transfer agent and that the Series B Preferred Shares, the Conversion
Shares, the Warrants, and the Warrant Shares shall otherwise be freely
transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Registration Rights Agreement. Nothing in
this Section 5 shall affect in any way the Buyer's obligations and agreement to
comply with all applicable securities laws upon resale of the Series B Preferred
Shares, the Conversion Shares, the Warrants, and the Warrant Shares. If the
Buyer provides the Company with an opinion of counsel, satisfactory in form and
substance to the Company, that registration of a resale by the Buyer of any of
the Series B Preferred Shares, the Conversion Shares, the Warrants, or the
Warrant Shares is not required under the 1933 Act, the Company shall permit the
transfer, and, in the case of the Conversion Shares or the Warrant Shares,
promptly instruct its transfer agent to issue one or more certificates in such
name and in such denominations as specified by the Buyer.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Series B
Preferred Shares to the Buyer at the Closing is subject to the satisfaction, at
or before the Closing Date, of each of the following conditions, provided that
these conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion:
a. The Buyer shall have executed this Agreement and the
Registration Rights Agreement and delivered the same to the Company.
12
<PAGE> 13
b. The Amendment shall have been filed with the Secretary of
State of the State of Georgia.
c. The Buyer shall have delivered to the Company the Purchase
Price for the Series B Preferred Shares being purchased by the Buyer at
the Closing by wire transfer of immediately available funds pursuant to
the wire instructions provided by the Company.
d. The representations and warranties of the Buyer shall be
true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date), and
the Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer at
or prior to the Closing Date.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer hereunder to purchase the Series B
Preferred Shares at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Buyer's sole benefit and may be waived by the Buyer at
any time in its sole discretion:
a. The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Buyer.
b. The Common Stock shall be authorized for quotation on the
Nasdaq SmallCap Market and trading in the Common Stock shall not have
been suspended for any reason and all of the Conversion Shares issuable
upon conversion of the Series B Preferred Shares shall be approved for
listing.
c. The representations and warranties of the Company shall be
true and correct in all material respects (except to the extent that
any of such representations and warranties is already qualified as to
materiality in Section 3 above, in which case, such representations and
warranties shall be true and correct without further qualification) as
of the date when made and as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or
complied with by the Company at or prior to the Closing Date. The Buyer
shall have received a certificate, executed by the Chief Executive
Officer of the Company, dated as of the Closing Date, to the foregoing
effect and as to such other matters as may be reasonably requested by
the Buyer including, without limitation an update as of the Closing
Date regarding the representation contained in Section 3(c) above.
13
<PAGE> 14
d. The Buyer shall have received the opinion of the Company's
counsel dated as of the Closing Date, in form, scope and substance
reasonably satisfactory to the Buyer and in substantially the form of
Exhibit "D" attached hereto.
e. The Company shall have executed and delivered to the Buyer
the Certificates (in such denominations as the Buyer shall request) for
the Series B Preferred Shares being purchased by the Buyer at the
Closing.
f. The Board of Directors of the Company shall have adopted
the resolutions in substantially the form of Exhibit "E" attached
hereto.
g. As of the Closing Date, the Company shall as of the Closing
Date have reserved out of its authorized and unissued Common Stock,
solely for the purpose of effecting the conversion of the Series B
Preferred Shares, such number of shares of Common Stock equal to or
greater than 100% of the number of shares of Common Stock for which are
issuable upon conversion of all of the Series B Preferred Shares, and
the Warrant Shares could be issued at any time under this Agreement.
h. The Irrevocable Transfer Agent Instructions, in form and
substance satisfactory to the Buyer, shall have been delivered to and
acknowledged in writing by the Company's transfer agent.
8. INDEMNIFICATION.
In consideration of the Buyer's execution and delivery of this
Agreement and acquiring the Series B Preferred Shares, the Conversion Shares,
and the Warrants, and the Warrant Shares hereunder and in addition to all of the
Company's other obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Buyer and each other holder of the
Series B Preferred Shares, the Conversion Shares, and the Warrants, and the
Warrant Shares and all of their officers, directors, employees and agents
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "INDEMNITEES")
from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection
therewith (irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and including reasonable
attorneys' fees and disbursements (the "INDEMNIFIED LIABILITIES"), incurred by
the Indemnitees or any of them as a result of, or arising out of, or relating to
(a) any misrepresentation or breach of any representation or warranty made by
the Company in this Agreement, the Series B Preferred Shares, the Warrants, or
the Registration Rights Agreement or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in this Agreement, the
Certificate of Designations, the Warrants, or the Registration Rights Agreement
or any other certificate, instrument or document contemplated hereby or thereby,
or (c) any cause of action, suit or claim brought or made against such
Indemnitee and arising out of or resulting from the execution, delivery,
performance or enforcement of this Agreement or any other instrument, document
or agreement executed pursuant hereto by any of the Indemnities, any transaction
financed or to be financed in whole or in part,
14
<PAGE> 15
directly or indirectly, with the proceeds of the issuance of the Series
B Preferred Shares or the status of the Buyer or holder of the Series B
Preferred Shares, the Warrants, or the Conversion Shares or the Warrant
Shares, as an investor in the Company, except for any Indemnified
Liability which directly or primarily results from the particular
Indemnitee's gross negligence or willful misconduct for which such
holder shall indemnify the Company in the same manner as provided in
this Section 8. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
9. GOVERNING LAW: MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Georgia without
regard to the principles of conflict of laws. Any dispute or
controversy between the parties arising in connection with this
agreement or the subject matter contemplated by this agreement shall be
resolved by arbitration before a three-member panel of the American
Arbitration Association in accordance with the commercial arbitration
rules of said forum and the Federal Arbitration Act, 9 U.S.C. 1 et
seq., with the resulting award being final and conclusive. Said
arbitrators shall be empowered to award all forms of relief and damages
claimed, including, but not limited to, attorney's fees, expenses of
litigation and arbitration, exemplary damages, and prejudgment
interest. Notwithstanding the foregoing, Buyer may at any time and at
its option, whether or not an arbitration action is then pending,
initiate a civil action for temporary and permanent injunctive and
other equitable relief against Company. Company acknowledges that upon
any breach of Buyer's conversion rights hereunder, Buyer's resulting
injury may not be adequately compensated by a remedy at law.
Accordingly, upon such breach, Buyer, at its election and without
limitation of its other remedies, shall be entitled to pursue a claim
for specific performance of this Agreement, and Company hereby waives
the right to assert any defense thereto that Purchaser has an adequate
remedy at law. The parties further agree that any arbitration action
between them shall be heard in Atlanta, Georgia, and expressly consent
to the jurisdiction and venue of the Superior Court of Fulton County,
Georgia, and the United States District Court for the Northern District
of Georgia, Atlanta Division for the adjudication of any civil action
asserted pursuant to this Paragraph.
b. Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party. In the event any
signature page is delivered by facsimile transmission, the party using
such means of delivery shall cause four (4) additional original
executed signature pages to be physically delivered to the other party
within five (5) days of the execution and delivery hereof.
c. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
15
<PAGE> 16
d. Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction.
e. Entire Agreement, Amendments. This Agreement supersedes all
other prior oral or written agreements between the Buyer, the Company,
their affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with
respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor any
Buyer makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived
or amended other than by an instrument in writing signed by the party
to be charged with enforcement.
f. Notices. Any notices, consents, waivers, or other
communications required or permitted to be given under the terms of
this Agreement must be in writing and will be deemed to have been
delivered (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile, provided a copy is mailed by U.S.
certified mail, return receipt requested; (iii) three (3) days after
being sent by U.S. certified mail, return receipt requested, or (iv)
one (1) day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
5655 Peachtree Parkway
Atlanta, Georgia 30092
Attn: Chief Financial Officer
Telephone: (770) 246-2000
Facsimile: (770) 368-0784
With a copy to (which shall not constitute notice):
Raymond L. Moss, Esq.
Sims Moss Kline & Davis LLP
400 Northpark Town Center, Suite 310
1000 Abernathy Road, N.E.
Atlanta, Georgia 30328
Telephone: (770) 481-7201
Facsimile: (770) 481-7210
If to the Transfer Agent:
16
<PAGE> 17
American Stock Transfer
40 Wall Street
New York, New York 10005
Attn: Wallace Chun
Telephone: (718) 921-8206
Facsimile: (718) 921-8336
If to the Buyer, to its address and facsimile number on the Schedule of
Buyers, with copies to the Buyer's counsel as set forth on the Schedule
of Buyers. Each party shall provide five (5) days' prior written notice
to the other party of any change in address or facsimile number.
g. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors
and assigns. The Company shall not assign this Agreement or any rights
or obligations hereunder without the prior written consent of the
Buyer. The Buyer may assign its rights hereunder without the consent of
the Company, provided, however, that the Company is given written
notice by such holder at the time of such transfer, stating the name
and address of such transferee and any such assignment shall not
release the Buyer from its obligations hereunder unless such
obligations are assumed by such assignee and the Company has consented
to such assignment and assumption.
h. No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
i. Survival. The representations and warranties of the Company
and the Buyer contained in Sections 2 and 3, the agreements and
covenants set forth in Sections 4, 5 and 9, and the indemnification
provisions set forth in Section 8 shall survive for a period of one
year following the Closing. The Buyer shall be responsible only for its
own representations, warranties, agreements and covenants hereunder.
j. Publicity. The Company and the Buyer shall have the right to
approve before issuance any press releases or any other public
statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the
prior approval of the Buyer, to make any press release or other public
disclosure with respect to such transactions as is required by
applicable law and regulations (although the Buyer shall be consulted
by the Company in connection with any such press release or other
public disclosure prior to its release and shall be provided with a
copy thereof).
k. Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably
17
<PAGE> 18
request in order to carry out the intent and accomplish the purposes of
this Agreement and the consummation of the transactions contemplated
hereby.
1. Termination. In the event that the Closing shall not have
occurred with respect to the Buyer on or before five (5) business days
from the date hereof due to the Company's or the Buyer's failure to
satisfy the conditions set forth in Sections 6 and 7 above (and the
nonbreaching party's failure to waive such unsatisfied condition(s)),
the nonbreaching party shall have the option to terminate this
Agreement with respect to such breaching party at the close of business
on such date without liability of any party to any other party.
m. Placement Agent. The Company acknowledges that it has engaged
J.P. Carey Securities, Inc. and Greenfield Capital Partners, LLC as
agents in connection with the sale of the Series B Preferred Shares
(the "Placement Agents"). The Company shall be responsible for the
payment of any finder's fees (which includes cash and warrants to
purchase Common Stock) relating to or arising out of the transactions
contemplated hereby.
n. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be
applied against any party.
o. Independent Counsel. The parties to this Agreement
acknowledge that the Company has received independent counsel form the
law firm of Sims Moss Kline & Davis LLP which is acting as its counsel.
Buyers and the Placement Agents have been advised by Sims Moss Kline &
Davis LLP to seek independent advice with respect to the terms and
conditions of this Agreement and any related agreements before signing
them.
10. PUBLICITY.
The Company agrees that it will not issue any press release or other
public announcement of the transactions contemplated by this Agreement without
the prior consent of the Buyer, which shall not be unreasonably withheld nor
delayed by more than two trading days from its receipt of such proposed release;
provided, however, that if the Company is advised by its outside counsel that it
is required by law or the applicable rules of any Principal Market to issue any
such press release or public announcement, then, it may do so without the prior
consent of the Buyer, although it shall be required to provide prior notice
(which may be by telephone) to the Buyer that it intends to issue such press
release or public announcement. No release shall name the Buyer without its
express consent.
REMAINDER OF PAGE INTENTIONALLY BLANK
18
<PAGE> 19
IN WITNESS WHEREOF, the Buyer and the Company have caused this
Securities Purchase Agreement to be duly executed as of the date first written
above.
"COMPANY"
BIOSHIELD TECHNOLOGIES, INC.
By: ______________________________________
Name: Timothy C. Moses
Its: Chairman of the Board and Chief
Executive Officer
"BUYER"
WILSON LLC
By: ______________________________________
Name: ____________________________________
Title:____________________________________
19
<PAGE> 20
SCHEDULE OF BUYERS
<TABLE>
<CAPTION>
NUMBER OF SERIES B
BUYER'S NAME ADDRESS/FACSIMILE NUMBER OF BUYER PREFERRED SHARES
------------ --------------------------------- ------------------
<S> <C> <C>
WILSON LLC c/o Citco Trustees (Cayman) Ltd. 500
Attn: David Sims
Corporate Centre, Windwood One
West Bay Road
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
284-494-4771
</TABLE>
<PAGE> 21
SCHEDULE 3(c)
Capitalization
<PAGE> 22
SCHEDULE 3(e)
Conflicts
None.
<PAGE> 23
SCHEDULE 3(f)
Financial Statements
Reference is made to all public filings made by the Company with the SEC
available at http://www.sec.gov/.
<PAGE> 24
SCHEDULE 3(h)
Litigation
None.
<PAGE> 25
SCHEDULE 3(n)
Intellectual Property
None.
<PAGE> 26
SCHEDULE 3(n)
Liens
None.
<PAGE> 27
SCHEDULE 3(p)
Tax Status
None.
<PAGE> 28
SCHEDULE 4(d)
Use of Proceeds
Working capital.
<PAGE> 29
EXHIBIT A
Amendment to Articles of Incorporation
See Tab 2.
<PAGE> 30
EXHIBIT B
Registration Rights Agreement
See Tab 3.
<PAGE> 31
EXHIBIT C
Warrant Agreement
See Tab 4.
<PAGE> 32
EXHIBIT D
Legal Opinion
See Tab 6.
<PAGE> 33
EXHIBIT E
Board Resolutions
See attached.
