EXHIBIT 10.2
SECURITIES PURCHASE AGREEMENT
DATED AS OF
OCTOBER 23, 2000
BY AND BETWEEN
PHAGE THERAPEUTICS INTERNATIONAL INC.
AS THE ISSUER,
AND
THE PURCHASERS
(as defined)
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TABLE OF CONTENTS
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ARTICLE I: DEFINITIONS............................................................................................... 1
1.1 Definitions............................................................................................. 1
1.2 Accounting Terms and Determinations..................................................................... 4
ARTICLE II. PURCHASE AND SALE OF SECURITIES.......................................................................... 4
2.1 Purchase and Sale of Units.............................................................................. 4
2.2 Closing and Mechanics of Payment........................................................................ 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES.......................................................................... 4
3.1 Organization and Qualification.......................................................................... 4
3.2 Authorization and Execution............................................................................. 4
3.3 Capitalization.......................................................................................... 5
3.4 Governmental Authorization.............................................................................. 5
3.5 Issuance of Shares...................................................................................... 5
3.6 No Conflicts............................................................................................ 5
3.7 Financial Information................................................................................... 6
3.8 Litigation.............................................................................................. 6
3.9 Employees............................................................................................... 6
3.10 Environmental Matters.................................................................................. 6
3.11 Taxes.................................................................................................. 6
3.12 Not an Investment Company.............................................................................. 6
3.13 Full Disclosure........................................................................................ 6
3.14 No Solicitation; No Integration with Other Offerings................................................... 7
3.15 Permits................................................................................................ 7
3.16 Title.................................................................................................. 7
3.17 Intellectual Property Rights........................................................................... 7
3.18 Internal Accounting Controls........................................................................... 7
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS......................................................... 7
4.1 Investment Purpose...................................................................................... 7
4.2 Accredited Purchaser Status............................................................................. 8
4.3 Reliance on Exemptions.................................................................................. 8
4.4 Information............................................................................................. 8
4.5 No Governmental Review.................................................................................. 8
4.6 Transfer or Resale...................................................................................... 8
4.7 Legends................................................................................................. 9
4.8 Authorization, Enforcement.............................................................................. 9
4.9 Receipt of Documents.................................................................................... 9
4.10 Due Formation of Corporate and Other Purchasers........................................................ 9
4.11 Due Authorization of Fiduciary Purchasers.............................................................. 9
4.12 Further Representations by Foreign Purchasers......................................................... 10
4.13 No Legal Advice From Phage............................................................................ 10
ARTICLE V. CONDITIONS PRECEDENT TO PURCHASE OF SECURITIES........................................................... 10
5.1 Conditions Precedent to Purchaser's Obligations to Purchase............................................ 10
5.2 Conditions to Phage's Obligations...................................................................... 11
ARTICLE VI AFFIRMATIVE COVENANTS.................................................................................... 11
6.1 Information............................................................................................ 11
6.2 Payment of Obligations................................................................................. 11
6.3 Maintenance of Existence............................................................................... 12
6.4 Compliance with Laws................................................................................... 12
6.5 Inspection of Property, Books and Records.............................................................. 12
6.6 Investment Company Act................................................................................. 12
6.7 Use of Proceeds........................................................................................ 12
6.8 Compliance with Terms and Conditions of Material Contracts............................................. 12
6.9 Reserved Shares and Listings........................................................................... 12
6.10 Transfer Agent Instructions........................................................................... 13
6.11 Maintenance of Reporting Status; Supplemental Information............................................. 13
6.12 Form D; Blue Sky Laws................................................................................. 13
6.13 Election of Directors................................................................................. 13
6.14 Sales by the Purchasers............................................................................... 13
6.15 Unit Offering......................................................................................... 13
6.16 Form 10SB-12g......................................................................................... 13
ARTICLE VII. RESTRICTIVE LEGENDS.................................................................................... 13
7.1 Restrictions on Transfer............................................................................... 13
7.2 Notice of Proposed Transfers........................................................................... 14
ARTICLE VIII. ADDITIONAL AGREEMENTS AMONG THE PARTIES............................................................... 14
8.1 Registration Rights.................................................................................... 14
8.2 Due Diligence Expenses................................................................................. 14
ARTICLE IX. PURCHASERS' RIGHT OF FIRST REFUSAL...................................................................... 14
9.1 Right of First Refusal................................................................................ 14
ARTICLE X. MISCELLANEOUS............................................................................................ 15
10.1 Notices............................................................................................... 15
10.2 No Waivers; Amendments................................................................................ 15
10.3 Indemnification....................................................................................... 16
10.4 Expenses.............................................................................................. 17
10.5 Payment............................................................................................... 17
10.6 Successors and Assigns................................................................................ 17
10.7 Florida Law; Submission to Jurisdiction; Waiver of Jury Trial; Appointment of Agent................... 17
10.8 Entire Agreement...................................................................................... 18
10.9 Survival; Severability................................................................................ 18
10.10 Title and Subtitles.................................................................................. 18
10.11 Publicity............................................................................................ 18
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LIST OF SCHEDULES
Schedule I List of Purchasers
Schedule 3.3 List of Outstanding Stock Options and Warrants
LIST OF EXHIBITS
Exhibit A Form of Registration Rights Agreement
Exhibit B Form of Common Stock Purchase Warrant
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SECURITIES PURCHASE AGREEMENT
AGREEMENT, dated as of October 23, 2000, between Phage Therapeutics
International Inc. ("Phage") a Florida Corporation and the persons and entities
listed on Schedule I "Schedule of Purchasers" attached to this Agreement
(individually the "Purchaser" collectively the "Purchasers").
R E C I T A L S:
WHEREAS:
A. Phage desires to sell and issue to the Purchasers, and the Purchasers
desire to purchase from Phage, 2,142,857 units for an aggregate purchase price
of $1,500,000;
B. Each "Unit" will consist of one share of Phage's common stock with a
par value of $0.001 per share (the "Common Stock") and one Common Stock purchase
warrant (the "Warrant"). For every one and a half Warrants the holder will
entitle the holder to acquire one additional share of Commons Stock of Phage at
an exercise price of $0.70 per share;
C. The Purchasers have agreed to invest an additional One Million Five
Hundred Thousand Dollars ($1,500,000) in equity into Phage within seven (7) days
from the date Phage files a Form 10SB-12g with the Securities and Exchange
Commission. In consideration of this investment Phage has agreed to issue to the
Purchasers an additional 2,142,857 Units ("Second Investment");
D. Phage will deliver the Form 10SB-12g to Mr. Robert Miller at least two
(2) business days prior to filing the Form 10SB-12g with the Securities and
Exchange Commission; and
E. Purchasers will have certain registration rights with respect to
such shares of Common Stock issuable as interest under the Units (the "Unit
Shares") and on exercise of the Warrants (the "Warrant Shares,")( the Unit
Shares and the Warrant Shares being collectively referred to herein as the
"Shares") as set forth in the Registration Rights Agreement in the form attached
hereto as Exhibit A;
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I: DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the following
meanings: "Affiliate" means, with respect to any Person (the "Subject
Person"), (i) any other Person (a "Controlling Person") that directly, or
indirectly through one or more intermediaries, Controls the Subject Person
or (ii) any other Person (other than the Subject Person or a Consolidated
Subsidiary of the Subject Person) which is Controlled by or is under common
Control with a Controlling Person.
"Agreement" means this Securities Purchase Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of Seattle are authorized or
required by law to close.
"Closing Bid Price" will mean for any security as of any date, the
lowest closing bid price as reported by Bloomberg, L.P. ("Bloomberg")
on the principal securities exchange or trading market where such
security is listed or traded or, if the foregoing does not apply, the
lowest closing bid price of such security in the over-the-counter
market on the electronic bulletin board for such security as reported
by Bloomberg, or, if no lowest trading price is reported for such
security by Bloomberg, then the average of the bid prices of any market
makers for such securities as reported in the "Pink Sheets" by the
National Quotation Bureau, Inc. If the lowest closing bid price cannot
be calculated for such security on such date on any of the foregoing
bases, the lowest closing bid price of such security on such date will
be the fair market value as mutually determined by The Purchasers and
Phage for which the calculation of the closing bid price requires, and
in the absence of such mutual determination, as determined by the Board
of Directors of Phage in good faith.
"Commission" means the Securities and Exchange Commission or any entity
succeeding to all of its material functions.
"Common Stock" means the common stock, $0.001 par value per share, of
Phage.
"Company Corporate Documents" means the articles of organization and
bylaws of Phage.
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"Consolidated Subsidiary" means at any date with respect to any Person
or Subsidiary, any Person the accounts of which would be consolidated
with those of such Person or Subsidiary in its consolidated financial
statements if such statements were prepared as of such date.
"Control" (including, with correlative meanings, the terms
"Controlling," "Controlled by" and under "common Control with"), as
used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership
of voting securities, by contract or otherwise.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes, or other similar
instruments issued by such Person, (iii) all obligations of such Person
as lessee which (y) are capitalized in accordance with GAAP or (z)
arise pursuant to sale-leaseback transactions, (iv) all reimbursement
obligations of such Person in respect of letters of credit or other
similar instruments, (v) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an
obligation of such Person and (vi) all Debt of others Guaranteed by
such Person.
"Default" means any event or condition which constitutes an Event of
Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Directors" means the individuals then serving on the Board of
Directors or similar such management council of Phage.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the cleanup
or other remediation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" has the meaning set forth in Section 1.2.
"Initial Closing Date" means the date of this Agreement or as otherwise
agreed to by the parties.
"Intellectual Property" has the meaning set forth in Section 3.17.
"Lien" means any lien, mechanic's lien, materialmen's lien, lease,
easement, charge, encumbrance, mortgage, conditional sale agreement,
title retention agreement, agreement to sell or convey, option, claim,
title imperfection, encroachment or other survey defect, pledge,
restriction, security interest or other adverse claim, whether arising
by contract or under law or otherwise (including, without limitation,
any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction in
respect of any of the foregoing).
"Listing Applications" has the meaning set forth in Section 3.4.
"Nasdaq Market" means the Nasdaq Stock Market's National Market System.
"National Market" means the Nasdaq Market, the Nasdaq Small Cap Market, the
New York Stock Exchange, Inc. or the American Stock Exchange, Inc.
"Notice of Exercise" means the form to be delivered by a holder of a
Warrant on exercise of all or a portion to Phage substantially in the
form of Exhibit A to the Warrant.
"OTC Bulletin Board" means the over-the-counter bulletin board operated
by the NASD.
"Permits" means all domestic and foreign licenses, franchises, grants,
authorizations, permits, easements, variances, exemptions, consents,
certificates, orders and approvals necessary to own, lease and operate
the properties of, and to carry on the business of Phage and its
Subsidiary.
"Person" means an individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock
company, government (or any agency or political subdivision) or other
entity of any kind.
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"Phage" means Phage Therapeutics International Inc., a Florida corporation,
and its successors.
"Purchase Price" means the purchase price for the Securities set forth
in Section 2.2 of this Agreement.
"Purchasers" means the persons and entities listed on Schedule I
"Schedule of Purchasers" attached to this Agreement.
"Registrable Securities" has the meaning set forth in Section 8.1.
"Registration Rights Agreement" means the agreement between Phage and
The Purchasers dated the date of this Agreement substantially in the
form set forth in Exhibit A attached hereto.
"Reserved Amount" has the meaning set forth in Section 6.9(a).
"Second Closing Date" means the seventh (7th) Business Day from the
date Phage files a Form 10SB-12g with the Commission.
"Securities" means the Units, the Warrants and, the Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning set forth in the Recitals.
"Subsidiary" means, Phage Therapeutics, Inc., a Washington corporation, and
its successors.
"Subsidiary Corporate Documents" means the certificates of
incorporation and bylaws of Phage's Subsidiary.
"Transaction Agreements" means this Agreement, the Warrants and Warrant
Agreement, and the Registration Rights Agreement.
"Transfer" means any disposition of Securities whether or not such
disposition would constitute a sale under the Securities Act.
"Warrant" means the Common Stock Purchase Warrant substantially in the
form set forth in Exhibit B hereto.
1.2 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein will be interpreted, all accounting
determinations hereunder will be made, and all financial statements required to
be delivered hereunder will be prepared, in accordance with generally accepted
accounting principles as in effect from time to time, applied on a consistent
basis with Phage's prior practice (except for interim financial statements and
for changes concurred in by Phage's independent public accountants) ("GAAP").
All references to "dollars," "Dollars" or "$" are to United States dollars
unless otherwise indicated.
ARTICLE II. PURCHASE AND SALE OF SECURITIES
2.1 Purchase and Sale of Units. Subject to the satisfaction (or waiver)
of the terms and conditions of this Agreement, each Purchaser agrees, severally
and not jointly, to purchase and Phage agrees to sell and issue to each
Purchaser, severally and not jointly:
(3) at the Initial Closing, Units in amounts corresponding with
the subscription amount set out opposite each Purchaser's name
on Schedule I attached to this Agreement. The aggregate
principal amount of all Units being issued at the Initial
Closing pursuant to this Agreement is One Million Five Hundred
Thousand Dollars ($1,500,000); and
(4) at the Second Closing, Units in the amount corresponding with
the subscription amount set out opposite each Purchaser's name
on Schedule I attached to this Agreement. The aggregate
principal amount of all Units being issued at the Second
Closing pursuant to this Agreement is One Million Five Hundred
Thousand Dollars ($1,500,000).
2.2 Closing and Mechanics of Payment.
--------------------------------
(a) The Purchase Price will be paid on each respective Closing
date by wire transfer of immediately available funds. Phage
acknowledges having received the funds due in connection with
the Initial Closing under this Agreement.
2) Phage will issue the underlying Shares and Warrants forming
the Units within five business days of the receipt of the
requisite funds on each respective Closing date.
1)
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ARTICLE III. REPRESENTATIONS AND WARRANTIES
Phage represents and warrants to the Purchasers, as of October 23,
2000, the following:
3.1 Organization and Qualification. Phage and each Subsidiary is a
corporation (or other legal entity) duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, with full power
and authority to own, lease, use and operate its properties and to carry on its
business as and where now owned, leased, used, operated and conducted. Phage is
qualified to conduct business as a foreign corporation and is in good standing
in every jurisdiction in which the nature of the business conducted by it makes
such qualification necessary, except where such failure would not have a
Material Adverse Effect. A "Material Adverse Effect" means any material adverse
effect on the operations, results of operations, properties, assets or condition
(financial or otherwise) of Phage and its Subsidiary, taken as a whole, or on
the transactions contemplated under this Agreement or by the agreements or
instruments to be entered into in connection with this Agreement.
3.2 Authorization and Execution.
---------------------------
(a) Phage has all requisite corporate power and authority to enter
into and perform each Transaction Agreement and to consummate
the transactions contemplated under this Agreement and to
issue the Securities in accordance with the terms of this
Agreement.
(b) The execution, delivery and performance by Phage of each
Transaction Agreement and the issuance by Phage of the
Securities have been duly and validly authorized by the Board
of Directors of Phage and no further consent or authorization
of Phage, its Board of Directors or its shareholders is
required.
(c) This Agreement has been duly executed and delivered by Phage.
(d) This Agreement constitutes, and on execution and delivery by
Phage, each of the Transaction Agreements will constitute, a
valid and binding agreement of Phage, in each case enforceable
against Phage in accordance with its respective terms subject
to:
(i) applicable bankruptcy, insolvency or similar laws affecting the
enforceability of creditors rights generally; and
(ii) equitable principals of general applicability.
3.3 Capitalization. The authorized capital stock of Phage consists of
50,000,000 shares of common stock with a par value of $0.001 per share. As of
October 23, 2000, Phage had 8,566,873 shares of common stock issued and
outstanding. All of such outstanding shares of capital stock are validly issued,
fully paid and nonassessable. No shares of capital stock of Phage are subject to
preemptive rights or similar rights of the shareholders of Phage or any liens or
encumbrances imposed through the actions or failure to act of Phage. Other than
as set forth on Schedule 3.3 hereto, as of the date of this Agreement, (i) there
are no outstanding options, warrants, scrip, rights to subscribe for, puts,
calls, rights of first refusal, agreements, understandings, claims or other
commitments or rights of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for any shares of capital stock of Phage
or its Subsidiary, or arrangements by which Phage or its Subsidiary is or may
become bound to issue additional shares of capital stock of Phage or its
Subsidiary, and (ii) there are no agreements or arrangements under which Phage
or its Subsidiary are obligated to register the sale of any of its or their
securities under the Securities Act (except pursuant to the Registration Rights
Agreement) and (iii) there are no anti-dilution or price adjustment provisions
contained in any security issued by Phage (or in any agreement providing rights
to security holders) that will be triggered by the issuance of the Units or
Shares. Phage has furnished to the Purchasers true and correct copies of Phage's
Corporate Documents, and the terms of all securities convertible into or
exercisable for Common Stock.
3.4 Governmental Authorization. The execution and delivery by Phage of
the Transaction Agreements does not and will not, the issuance and sale by Phage
of the Securities does not and will not, and the consummation of the
transactions contemplated under this Agreement and by the other Transaction
Agreements will not, require any action by or in respect of, or filing with, any
governmental body, agency or governmental official except:
(a) such actions or filings that have been undertaken or made
prior to the date of this Agreement and that will be in full
force and effect (or as to which all applicable waiting
periods have expired) on and as of the date of this Agreement
or which are not required to be filed on or prior to the
Initial Closing Date;
(b) such actions or filings that, if not obtained, would not result
in a Material Adverse Effect;
(c) listing applications ("Listing Applications") to be filed with
the Pink Sheets or the OTC Bulletin Board or the National Market
relating to the Shares, if applicable; and
(d) the filing of a "Form D" as described in Section 6.12 below
and the filing of any requisite documents under state
securities ("Blue Sky") laws.
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3.5 Issuance of Shares. On issuance of the Unit Shares and exercise of
the Warrants, the Shares will be duly and validly issued and outstanding, fully
paid and nonassessable, free and clear of any Liens and charges and will not be
subject to preemptive rights or similar rights of any other shareholders of
Phage. Assuming the representations and warranties of the Purchasers herein are
true and correct in all material respects, each of the Securities will have been
issued in material compliance with all applicable U.S. federal and state
securities laws. Phage understands and acknowledges that the issuance of Shares
will dilute the ownership interests of other shareholders of Phage. Phage
further acknowledges that its obligation to issue Shares as part of the Units
and exercise of the Warrants is absolute and unconditional regardless of the
dilutive effect that such issuance may have on the ownership interests of other
shareholders of Phage.
3.6 No Conflicts. The execution and delivery by Phage of the
Transaction Agreements to which it is a party did not and will not, the issuance
and sale by Phage of the Securities did not and will not and the consummation of
the transactions contemplated under this Agreement and by the other Transaction
Agreements will not, contravene or constitute a default under or violation of:
(a) any provision of applicable law or regulation known by Phage to
be applicable to it;
(b) Phage Corporate Documents;
(c) any material agreement, judgment, injunction, order, decree or
other instrument binding on Phage or any Subsidiary or any of
their respective assets, or result in the creation or
imposition of any material Lien on any asset of Phage or any
Subsidiary.
To its knowledge, Phage and each Subsidiary is in compliance with and conforms
to all statutes, laws, ordinances, rules, regulations, orders, restrictions and
all other legal requirements of any domestic or foreign government or any
instrumentality having jurisdiction over the conduct of its businesses or the
ownership of its properties, except where such failure would not have a Material
Adverse Effect.
3.7 Financial Information. Since June 30, 2000 (the "Balance Sheet
Date") there has been (x) no material adverse change in the assets or
liabilities, or in the business or condition, financial or otherwise, or in the
results of operations or prospects, of Phage and its Subsidiary taken as a
whole, whether as a result of any legislative or regulatory change, revocation
of any license or rights to do business, fire, explosion, accident, casualty,
labor trouble, flood, drought, riot, storm, condemnation, act of God, public
force or otherwise and (y) no material, adverse change in the assets or
liabilities, or in the business or condition, financial or otherwise, or in the
results of operations or prospects, of Phage and its Subsidiary except in the
ordinary course of business; and to the knowledge of Phage no fact or condition
exists which might cause such a change in the future. The unaudited consolidated
balance sheets of Phage and its Subsidiary for the periods ending December 31,
1999, and June 30, 2000, respectively, and the related unaudited consolidated
statements of income, changes in shareholders' equity and changes in cash flows
for the periods then ended, including the footnotes thereto, except as indicated
therein, (i) complied in all material respects with applicable accounting
requirements and (ii) have been prepared in accordance with GAAP consistently
applied throughout the periods indicated, except that the unaudited financial
statements do not contain notes and may be subject to normal audit adjustments
and normal annual adjustments. Such financial statements fairly present the
financial condition of Phage and its Subsidiary at the dates indicated and the
consolidated results of their operations and cash flows for the periods then
ended and, except as indicated therein, reflect all claims against and all Debts
and liabilities of Phage and its Subsidiary, fixed or contingency required to be
reflected therein in accordance with GAAP.
3.8 Litigation. There is no action, suit or proceeding pending or, to
the knowledge of Phage, threatened against Phage or any Subsidiary, before any
court or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could be reasonably
expected to have a Material Adverse Effect or which challenges the validity of
any Transaction Agreements.
3.9 Employees. Neither Phage nor its Subsidiary is involved in any
labor dispute nor, to the knowledge of Phage or its Subsidiary, is any such
dispute threatened. None of Phage's or its Subsidiary' employees is a member of
a union and Phage and its Subsidiary believe that their relations with their
employees are good. Phage does not have any employee benefit plan as defined by
the Employee Retirement Income Security Act of 1974, as amended.
3.10 Environmental Matters. Phage and its Subsidiary conducts its
businesses in compliance in all material respects with all applicable
Environmental Laws.
3.11 Taxes. All United States federal, state, county, municipality,
local or foreign income tax returns and all other material tax returns
(including foreign tax returns) which are required to be filed by or on behalf
of Phage and each Subsidiary have been or will be filed and all material taxes
due and payable pursuant to such returns or pursuant to any assessment received
by Phage and each Subsidiary have been or will be paid except those being
disputed in good faith and for which adequate reserves have been established.
The charges, accruals and reserves on the books of Phage and each Subsidiary in
respect of taxes and other governmental charges have been established in
accordance with GAAP.
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3.12 Not an Investment Company. Neither Phage nor any Subsidiary is an
"Investment Company" within the meaning of Investment Company Act of 1940, as
amended.
3.13 Full Disclosure. The information heretofore furnished by Phage to
the Purchasers for purposes of or in connection with this Agreement or any
transaction contemplated by this Agreement does not contain any untrue statement
of a material fact.
3.14 No Solicitation; No Integration with Other Offerings. No form of
general solicitation or general advertising was used by Phage or, to its
knowledge, any other Person acting on behalf of Phage, in connection with the
offer and sale of the Securities. Neither Phage, nor, to its knowledge, any
Person acting on behalf of Phage, has, either directly or indirectly, sold or
offered for sale to any Person (other than the Purchasers) any of the Securities
or, within the six months prior to the date of this Agreement, any other similar
security of Phage except as contemplated by this Agreement, and Phage represents
that neither itself nor any Person authorized to act on its behalf (except that
Phage makes no representation as to the Purchasers and their Affiliates) will
sell or offer for sale any such security to, or solicit any offers to buy any
such security from, or otherwise approach or negotiate in respect with, any
Person or Persons so as thereby to cause the issuance or sale of any of the
Securities to be in violation of any of the provisions of section 5 of the
Securities Act. The issuance of the Securities to the Purchasers will not be
integrated with any other issuance of Phage's securities (past, current or
future).
3.15 Permits. To the best of Phage's knowledge, Phage and each of its
Subsidiary has, or is in the process of obtaining, all franchises, permits,
licenses and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect its business, properties or financial condition and believes it can
obtain, without undue burden or expense, any similar authority for the conduct
of its business as planned to be conducted. Neither Phage nor any Subsidiary is
in default in any material respect under any of such franchises, permits,
licenses or other similar authority.
3.16 Title. Phage does not own any real property. Any real property and
facilities held under lease by Phage and its Subsidiary 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 Phage and its Subsidiary.
3.17 Intellectual Property Rights. Each of Phage and its Subsidiary
owns, or is licensed under, and has the rights to use, all material to the
knowledge of Phage, patents, trademarks, trade names, copyrights, technology,
know-how and processes (collectively, "Intellectual Property") used in, or
necessary for the conduct of its business; no claims have been asserted by any
Person to the use of any such Intellectual Property or challenging or
questioning the validity or effectiveness of any license or agreement related
thereto. To Phage's and its Subsidiary' knowledge, there is no valid basis for
any such claim and the use of such Intellectual Property by Phage and its
Subsidiary will not infringe on the rights of any Person.
3.18 Internal Accounting Controls. Phage and each of its Subsidiary
maintain a system of internal accounting controls sufficient, in the judgment of
Phage's Board of Directors, to provide reasonable assurance that:
(3) transactions are executed in accordance with managements' general or
specific authorizations;
(4) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability;
(5) access to assets is permitted only in accordance with management's general
or specific authorization; and
(6) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants, severally and not jointly,
that:
4.1 Investment Purpose. Each Purchaser is acquiring the Units and the
underlying Warrants and 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
Purchaser reserves the right to dispose of Shares at any time in accordance with
or pursuant to an effective registration statement covering such Shares or an
available exemption under the 1933 Act.
4.2 Accredited Purchaser Status. Each Purchaser is an "accredited
Purchaser" as that term is defined in Rule 501(a)(3) of Regulation D.
<PAGE>
4.3 Reliance on Exemptions. Each Purchaser understands that the Units
and the underlying Warrants and 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 Phage is relying in part upon
the truth and accuracy of, and such Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
such Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire such securities.
4.4 Information. Such Purchaser and its advisors (and his or, its
counsel), if any, have been furnished with all materials relating to the
business, finances and operations of Phage and information he deemed material to
making an informed investment decision regarding his purchase of the Units and
the underlying Warrants and Shares, which have been requested by such Purchaser.
Such Purchaser and its advisors, if any, have been afforded the opportunity to
ask questions of Phage and its management. Neither such inquiries nor any other
due diligence investigations conducted by such Purchaser or its advisors, if
any, or its representatives shall modify, amend or affect such Purchaser's right
to rely on Phage's representations and warranties contained in this Agreement.
Such Purchaser understands that its investment in the Units and the underlying
Warrants and Shares involves a high degree of risk. Purchaser is in a position
regarding Phage, which, based upon employment, family relationship or economic
bargaining power, enabled and enables Purchaser to obtain information from Phage
in order to evaluate the merits and risks of this investment. Such Purchaser 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
Units and the underlying Warrants and Shares.
4.5 No Governmental Review. Such Purchaser 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 Units or the
underlying Warrants and Shares, or the fairness or suitability of the investment
in the Units or the underlying Warrants and Shares, nor have such authorities
passed upon or endorsed the merits of the offering of the Units or the
underlying Warrants and Shares.
4.6 Transfer or Resale. Such Purchaser understands that except as provided
in the Registration Rights Agreement:
(a) the Units and the underlying Warrants and 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:
(i) subsequently registered there under; or
(ii) such Purchaser shall have delivered to Phage 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 requirements;
(b) any sale of such securities made in reliance on Rule 144 under
the 1933 Act (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 there under; and
(c) neither Phage 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 there under. Phage reserves the right to place
stop transfer instructions against the shares and certificates
for the Warrants and Shares.
4.7 Legends. Such Purchaser understands that the certificates or other
instruments representing the stock certificates representing the Warrants and
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 SOLELY FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TOWARD RESALE 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.
The legend set forth above shall be removed and Phage shall issue a
certificate without such legend to the holder of the Shares upon which
it is stamped, if, unless otherwise required by state securities laws:
(a) in connection with a sale transaction, provided the Shares are
registered under the 1933 Act; or
(b) in connection with a sale transaction, such holder provides
Phage with an opinion of counsel, in form acceptable to Phage
and its counsel, to the effect that a public sale, assignment
or transfer of the Shares may be made without registration
under the 1933 Act.
<PAGE>
4.8 Authorization, Enforcement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of such Purchaser and is a
valid and binding agreement of such Purchaser enforceable in accordance with its
terms, except as such enforceability may be limited by 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.
4.9 Receipt of Documents. Such Purchaser and his or its counsel has
received and read in their entirety:
(a) this Agreement and each representation, warranty and covenant set
forth in this Agreement and the Registration Rights Agreement;
(b) all due diligence and other information necessary to verify the
accuracy and completeness of such representations, warranties and
covenants;
(c) Phage's unaudited financial statements for the periods ending December
31, 1999 and June 30, 2000; and
(d) answers to all questions the Purchaser submitted to Phage regarding an
investment in Phage; and the Purchaser has relied on the information
contained therein and has not been furnished any other documents,
literature, memorandum or prospectus.
4.10 Due Formation of Corporate and Other Purchasers. If the
Purchaser(s) is a corporation, trust, partnership or other entity that is not an
individual person, it has been formed and validly exists and has not been
organized for the specific purpose of purchasing the Units and is not prohibited
from doing so.
4.11 Due Authorization of Fiduciary Purchasers. If the Purchaser(s) is
purchasing the in a fiduciary capacity for another person or entity, including
without limitation a corporation, partnership, trust or any other entity, the
Purchaser(s) has been duly authorized and empowered to execute this Agreement
and such other person fulfills all the requirements for purchase of the Units
and agrees to be bound by the obligations, representations, warranties, and
covenants contained herein. Upon request of Phage, the Purchaser(s) will provide
true, complete and current copies of all relevant documents creating the
Purchasers, authorizing its investment in Phage and/or evidencing the
satisfaction of the foregoing.
4.12 Further Representations by Foreign Purchasers. If Purchaser(s) is
not a U.S. Person (as defined), such Purchaser represents that such Purchaser(s)
is satisfied as to full observance of the laws of such Purchaser's jurisdiction
in connection with any invitation to subscribe for the securities or any use of
this Agreement, including:
(a) the legal requirements of such Purchaser's jurisdiction for the
purchase of the securities;
(b) any foreign exchange restrictions applicable to such purchase;
(c) any governmental or other consents that may need to be obtained; and
(d) the income tax and other tax consequences, if any, which may be
relevant to the purchase, holding, redemption, sale, or transfer of
the securities.
Such Purchaser's subscription and payment for, and such Purchaser's continued
beneficial ownership of, the securities will not violate any applicable
securities or other laws of such Purchaser's jurisdiction. The term "U.S.
Person" as used herein shall mean any person who is a citizen or resident of the
United States or Canada, or any state, territory or possession thereof,
including but not limited to any estate of any such person, or any corporation,
partnership, trust or other entity created or existing under the laws thereof,
or any entity controlled or owned by any of the foregoing.
4.13 No Legal Advice From Phage. The Purchaser(s) acknowledge that it
had the opportunity to review this Agreement and the transactions contemplated
by this Agreement with his or its own legal counsel and investment and tax
advisors. The Purchaser is relying solely on such counsel and advisors and not
on any statements or representations of Phage or any of its representatives or
agents for legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any
jurisdiction.
ARTICLE V. CONDITIONS PRECEDENT TO PURCHASE OF SECURITIES
5.1 Conditions Precedent to Purchaser's Obligations to Purchase. The
obligation of the Purchaser(s) hereunder to purchase the Initial Units and the
Second Units is subject to the satisfaction, on or before the Initial Closing
Date, of each of the following conditions, provided that these conditions are
for Purchaser's sole benefit and may be waived by Purchaser(s) at any time in
its sole discretion:
(a) Phage will have duly executed this Agreement and the Registration
Rights Agreement, and delivered the same to the Purchaser(s);
<PAGE>
(b) Phage will having agreed to deliver to the Purchaser(s) duly
executed certificates representing the Shares and Warrants
underlying the Units in accordance with section 2.2(b) of this
Agreement;
(c) The representations and warranties of Phage contained in each
Transaction Agreement will be true and correct in all material
respects as of the date when made and as of the Initial
Closing Date as though made at such time (except for
representations and warranties that speak as of a specified
date) and Phage will have performed, satisfied and complied
with all covenants, agreements and conditions required by such
Transaction Agreements to be performed, satisfied or complied
with by it at or prior to the Initial Closing Date;
(d) Phage will have received all governmental, Board of Directors,
shareholders and third party consents and approvals necessary
or desirable in connection with the issuance and sale of the
Securities and the consummation of the transactions
contemplated by the Transaction Agreements;
(e) Phage will have authorized and reserved for issuance the
Common Shares issuable as part of the Units and the exercise
of all Warrants pursuant to this Agreement.
(f) Phage Corporate Documents and the Subsidiary Corporate
Documents, if any, will be in full force and effect and no
term or condition will have been amended, waived or otherwise
modified without the prior written consent of the Purchasers;
(g) There will have occurred no material adverse change in the
business, condition (financial or otherwise), operations,
performance, properties or prospects of Phage or any
Subsidiary since June 30, 2000;
(h) There will exist no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any
arbitrator or governmental instrumentality that challenges the
validity of or purports to affect this Agreement or any other
Transaction Agreement, or other transaction contemplated under
this Agreement or that could reasonably be expected to have a
Material Adverse Effect, or any material adverse effect on the
enforceability of the Transaction Agreements or the Securities
or the rights of the holders of the Securities or the
Purchasers hereunder; and
(i) with regard to the Second Closing Date only, Phage will have
provided the Purchaser(s) evidence that it has filed a Form
10SB-12g with the Commission seven (7) days prior to the
Second Investment.
Subsection 5.1(i) is an obligation and condition to be met on or before the
Second Closing Date only and is not a condition of the Initial Closing Date.
5.2 Conditions to Phage's Obligations. The obligations of Phage to
issue and sell the Securities to the Purchasers pursuant to this Agreement are
subject to the satisfaction, at or prior to the Initial Closing Date, of the
following conditions:
(a) The representations and warranties of the Purchasers contained
herein will be true and correct in all material respects on
the Initial Closing Date and the Purchasers will have
performed - and complied in all material respects with all
agreements required by this Agreement to be performed or
complied with by the Purchasers at or prior to the Initial
Closing Date;
(b) The issue and sale of the Securities by Phage will not be prohibited
by any applicable law, court order or governmental regulation;
(c) Receipt by Phage of duly executed counterparts of this Agreement and
the Registration Rights Agreement signed by the Purchasers;
(d) Phage will have received payment of the Purchase Price; and
(e) There will exist no action, suit, investigation, litigation or
proceeding pending or threatened m any court or before any
arbitrator or governmental instrumentality that challenges the
validity of or purports to effect this Agreement or any other
Transaction Agreement, or other transaction contemplated under
this Agreement or that could reasonably be expected to have a
Material Adverse Effect, or any material adverse effect on the
enforceability of the Transaction Agreements, or the
Securities, or the rights of the holders of the Securities or
the Purchasers hereunder.
ARTICLE VI AFFIRMATIVE COVENANTS
Phage and the Purchasers hereby agree that, from and after the date of
this Agreement for so long as any Securities remain outstanding and for the
benefit of each other:
<PAGE>
6.1 Information. Phage will deliver to each holder of the Securities
promptly on the mailing to the shareholders of Phage generally, copies of all
financial statements, reports and proxy statements so mailed and any other
document generally distributed to shareholders.
6.2 Payment of Obligations. Phage will, and will cause each Subsidiary
to, pay and discharge, at or before maturity, all their respective material
obligations, including, without limitation, tax liabilities, except where the
same may be contested in good faith by appropriate proceedings and will
maintain, in accordance with GAAP, appropriate reserves for the accrual of any
of the same.
6.3 Maintenance of Existence. Phage will, and will cause each
Subsidiary to, continue to engage in business of the same general type as now
conducted by Phage and such Subsidiary, and will preserve, renew and keep in
full force and effect its respective corporate existence and their respective
material rights, privileges and franchises necessary or desirable in the normal
conduct of business.
6.4 Compliance with Laws. Phage will, and will cause each Subsidiary
to, comply, in all material respects, with all federal, state, municipal, local
or foreign applicable laws, ordinances, rules, regulations, municipal by-laws,
codes and requirements of governmental authorities except where compliance
therewith is contested in good faith by appropriate proceedings or where
non-compliance therewith could not reasonably be expected, in the aggregate, to
have a Material Adverse Effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of Phage or such
Subsidiary.
6.5 Inspection of Property, Books and Records. Phage will, and will
cause each Subsidiary to, keep proper books of record and account in which full,
true and correct entries will be made of all dealings and transactions in
relation to their respective businesses and activities; and will permit, during
normal business hours, Purchasers' representative(s) or an affiliate(s), as
representatives of the Purchasers, to visit and inspect any of their respective
properties, on reasonable prior notice, to examine and make abstracts from any
of their respective books and records and to discuss their respective affairs,
finances and accounts with their respective executive officers and independent
public accountants (and by this provision Phage authorizes its independent
public accountants to disclose and discuss with the Purchasers the affairs,
finances and accounts of Phage and its Subsidiary in the presence of a
representative of Phage; provided, however, that such discussions will not
result in any unreasonable expense to Phage, without Company consent), all at
such reasonable times.
6.6 Investment Company Act. Phage will not be or become an open-end
investment trust, unit investment trust or face-amount certificate company that
is or is required to be registered under section 8 of the Investment Company Act
of 1940, as amended.
6.7 Use of Proceeds. The proceeds from the issuance and sale of the
Units by Phage will be used for general corporate purposes. None of the proceeds
from the issuance and sale of the Units by Phage pursuant to this Agreement will
be used directly or indirectly for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any "margin stock" within the meaning of
Regulation G of the Board of Governors of the Federal Reserve System.
6.8 Compliance with Terms and Conditions of Material Contracts. Phage
will, and will cause each Subsidiary to, comply, in all material respects, with
all terms and conditions of all material contracts to which it is subject except
in particular circumstances in which Phage determines it to 'be in the best
interests of Phage not to comply.
6.9 Reserved Shares and Listings.
----------------------------
(a) Phage will at all times have authorized, and reserved for the purpose
of issuance, a sufficient number of shares of Common Stock to provide
for the full exercise of the Warrants and issuance of the Shares as
part of the Units in the Second Investment (the "Reserved Amount").
Phage will not reduce the Reserved Amount without the prior written
consent of the Purchasers. If at any time the number of shares of
Common Stock authorized and reserved for issuance is below the number
of Shares issued or issuable on purchaser of the Units in the Second
Investment and exercise of all Warrants, Phage will promptly take all
corporate action necessary to authorize and reserve a sufficient
number of shares, including, without limitation, calling a special
meeting of shareholders to authorize additional shares, in the case of
an insufficient number of authorized shares.
(b) If required, Phage will promptly file the Listing Applications
and secure the listing of the Shares on each national
securities exchange or automated quotation system, if any, on
which shares of Common Stock are then listed (subject to
official notice of issuance) and will maintain, so long as any
other shares of Common Stock will be so listed, such listing
of all Shares from time to time issuable on purchase of the
Units in the Second Investment and Warrants, respectively.
Phage will comply in all respects with Phage's reporting,
filing and other obligations under the bylaws or rules of the
National Association of Securities Dealers, Inc. (the "NASD")
and such exchanges, as applicable.
<PAGE>
6.10 Transfer Agent Instructions. On receipt of a Notice of Exercise,
Phage will immediately direct Phage's transfer agent to issue certificates,
registered in the name of Purchaser(s) or their nominees, for the Shares, in
such amounts as specified from time to time by the Purchasers to Phage on proper
exercise of the Warrants. On exercise of any Warrants in accordance with their
terms, Phage will, and will use its best lawful efforts to cause its transfer
agent to, issue one or more certificates representing shares of Common Stock in
such name or names and in such denominations specified by a Purchaser in a
Notice of Exercise. Nothing in this Section 6.10 will affect in any way a
Purchaser's obligation to comply with all securities laws applicable to a
Purchaser on resale of such shares of Common Stock, including any prospectus
delivery requirements.
6.11 Maintenance of Reporting Status; Supplemental Information. Phage
agrees to file a Form 10SB-12g with the Commission within sixty (60) days of the
date of this Agreement in order to become a "Reporting Issuer" as defined in the
Exchange Act. So long as any of the Securities are outstanding and Phage is
deemed a Reporting Issuer, Phage will timely file all reports required to be
filed with the Commission pursuant to the Exchange Act. If at anytime Phage is
not subject to the requirements of section 13 or 15(d) of the Exchange Act,
Phage will promptly furnish at its expense, on request, for the benefit of the
holders from time to time of Securities, and prospective purchasers of
Securities, information satisfying the information requirements of Rule 144
under the Securities Act.
6.12 Form D; Blue Sky Laws. Phage agrees to file a "Form D" with
respect to the Securities as required under Regulation D of the Securities Act
and to provide a copy to the the Purchasers promptly after such filing. Phage
will, on or before the Initial Closing Date, take such action as Phage will
reasonably determine is necessary to qualify the Securities for sale to the
Purchasers at the Initial Closing pursuant to this Agreement under applicable
securities or "blue sky" laws of the states of the United States (or to obtain
an exemption from such qualification), and will provide evidence of any such
action so taken to the Purchasers on or prior to the Initial Closing Date.
6.13 Election of Directors. The Board of Directors of Phage currently
consist of Messrs. Darren Pylot, Gaetano Morello, and Richard Honour. On Initial
Closing, the Board of Directors will appoint a non-Canadian resident nominee
selected by the Purchasers to the Board of Directors of Phage.
6.14 Sales by the Purchasers. Each Purchaser agrees that it will not
effect or cause any of its affiliates to effect a short sale of Common Stock for
so long as any of the Warrants remain outstanding or the Purchasers or their
affiliates hold any Securities.
6.15 Unit Offering. Subject to the satisfaction of the terms and
conditions of this Agreement, the Purchasers irrevocably agree to invest an
additional One Million Five Hundred Thousand Dollars ($1,500,000) in equity into
Phage within seven (7) days from the date Phage files a Form 10SB-12g with the
Commission. Phage in consideration of this investment has agreed to issue to the
Purchasers 2,142,857 units on receipt of these funds. Each "Initial Unit" will
consist of one share of Phage Common Stock and one common stock purchase warrant
(the "Series One Warrant"). For every one and a half Warrants the holder will be
entitled to acquire one additional share of common stock of Phage at an exercise
price of $0.70 per share. These Warrants will be exercisable at any time on or
before September 15, 2001 and their right of exercise will be subject to the
Purchasers having fully exercised the Warrants received at the Initial Closing.
6.16 Form 10SB-12g. Phage will deliver the Form 10SB-12g to Mr. Robert
Miller at least two (2) business days prior to filing the Form 10SB-12g with the
Securities and Exchange Commission.
ARTICLE VII. RESTRICTIVE LEGENDS
7.1 Restrictions on Transfer. From and after their respective dates of
issuance, none of the Securities will be transferable except on the conditions
specified in this Article VII and in Subsection 4(1)g concerning Legends, which
conditions are intended to ensure compliance with the provisions of the
Securities Act in respect of the Transfer of any of such Securities or any
interest therein. The Purchasers will cause any proposed transferee of any
Securities held by it to agree to take and hold such Securities subject to the
provisions and on the conditions specified in this Article VII.
7.2 Notice of Proposed Transfers. Prior to any proposed Transfer of the
Securities the holder will give written notice to Phage of such holder's
intention to effect such Transfer, setting forth the manner and circumstances of
the proposed Transfer, which will be accompanied by:
(a) an opinion of counsel reasonably acceptable to Phage, confirming that
such transfer does not give rise to a violation of the Securities Act;
(b) representation letters in form and substance reasonably satisfactory
to Phage to ensure compliance with the provisions of the Securities
Act; and
(c) letters in form and substance reasonably satisfactory to Phage from
each such transferee stating such transferee's agreement to be bound
by the terms of this Agreement and the Registration Rights Agreement.
<PAGE>
Such proposed Transfer may be effected only if Phage will have received such
notice of transfer, opinion of counsel, representation letters and other letters
referred to in the immediately preceding sentence, whereon the holder of such
Securities will be entitled to Transfer such Securities in accordance with the
terms of the notice delivered by the holder to Phage.
ARTICLE VIII. ADDITIONAL AGREEMENTS AMONG THE PARTIES
8.1 Registration Rights. Phage will grant the Purchasers registration
rights covering the Shares (the: "Registrable Securities") on the terms set
forth in the Registration Rights Agreement and this Agreement.
8.2 Due Diligence Expenses. Phage agrees to offset the expenses
incurred by the Purchasers in conducting their due diligence of Phage and its
subsidiary by payment of the sum of twenty five thousand dollars ($25,000) as
directed by Mr. Robert Miller as agent for the Purchasers.
ARTICLE IX. PURCHASERS' RIGHT OF FIRST REFUSAL
9.1 Right of First Refusal. Phage hereby grants to each Purchaser the
right of first refusal to purchase its pro rata share of all or any part of any
New Securities (as defined in this Section 9.1) which Phage may, from time to
time, propose to sell and issue. A Purchaser's pro rata share, for purposes of
this right of first refusal, is the ratio that the sum of the Units held by such
Purchaser to the sum of the total number of Units as set out opposite of each
Purchaser's name on Schedule I attached to this Agreement.
(a) Except as set out below, "New Securities" will mean any shares of
capital stock of Phage including Common Stock and Preferred, whether
now authorized or not, and rights, options or warrants to purchase
said shares of Common Stock or Preferred, and securities of any type
whatsoever that are, or may become, convertible into said shares of
Common Stock or Preferred. Notwithstanding the foregoing, "New
Securities" does not include (i) the Shares and the Conversion Stock,
(ii) securities offered to the public generally pursuant to a
registration statement or pursuant to Regulation A under the
Securities Act, (iii) securities issued in the acquisition of another
corporation by Phage by merger, purchase of substantially all of the
assets or other reorganization whereby Phage or its shareholders own
not less than fifty-one percent (51%) of the voting power of the
surviving or successor corporation, (iv) shares of Phage's Common
Stock or related options exercisable for such Common Stock issued to
employees, officers and directors of, and consultants, customers, and
vendors to, Phage, pursuant to any arrangement approved by the Board
of Directors of Phage, (v) stock issued pursuant to any rights or
agreements, including without limitation convertible securities,
options and warrants, provided that the rights of first refusal
established by this Section 9.1 apply with respect to the initial sale
or grant by Phage of such rights or agreements, (vi) stock issued in
connection with any stock split, stock dividend or recapitalization by
Phage.
(b) In the event Phage proposes to undertake an issuance of New
Securities, it will give each Purchaser written notice of its
intention, describing the type of New Securities, and the
price and terms upon which Phage proposes to issue the same.
Each Purchaser will have ten (10) days from the date of
receipt of any such notice to agree to purchase up to the
Purchaser's respective pro rata share of such New Securities
for the price and upon the terms specified in the notice by
giving written notice to Phage and stating therein the
quantity of New Securities to be purchased.
(c) In the event a Purchaser fails to exercise such right of first refusal
within said ten (10) day period, Phage will have ninety (90) days
thereafter to sell or enter into an agreement (pursuant to which the
sale of New Securities covered thereby will be closed, if at all,
within sixty (60) days from the date of said agreement) to sell the
New Securities not elected to be purchased by Purchasers at the price
and upon the terms no more favorable to the purchasers of such
securities than specified in Phage's notice. In the event Phage has
not sold the New Securities or entered into an agreement to sell the
New Securities within said ninety (90) day period (or sold and issued
New Securities in accordance with the foregoing within sixty (60) days
from the date of said agreement), Phage will not thereafter issue or
sell any of such New Securities, without first offering such
securities in the manner provided above.
(d) The right of first refusal granted under this Agreement will
expire upon the first to occur of the following: (i) the
closing of the first public offering of the Common Stock of
Phage to the general public which is effected pursuant to a
registration statement filed with, and declared effective by,
the Commission under the Securities Act, and such right of
first refusal and related right of notice will not apply to
the offer or sale of shares pursuant to such public offering;
(ii) September 30, 2001, or (iii) as to a Purchaser if such
Purchaser no longer holds at least 2,000,000 shares of Common
Stock and/or Warrants (appropriately adjusted for
Recapitalizations).
(e) The right of first refusal hereunder is not assignable except
by each of such Purchasers to any wholly-owned subsidiary or
constituent partner who acquires at least 500,000 shares
(appropriately adjusted for Recapitalizations).
<PAGE>
ARTICLE X. MISCELLANEOUS
10.1 Notices. All notices, demands and other communications to any
party hereunder will be in writing (including telecopier or similar writing) and
will be given to such party at its address set forth on the signature pages of
this Agreement, or such other address as such party may hereafter specify for
the purpose to the other parties. Each such notice, demand or other
communication will be effective:
(a) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified on the signature page of this
Agreement, the sender has received electronic confirmation of
the transmission and the sender has provided contemporaneous
telephonic notice to the recipient of such transmission;
(b) if given by mail, four days after such communication is
deposited in the United States mail with first class postage
prepaid, addressed as aforesaid; or
(c) if given by any other means, when delivered at the address specified
in or pursuant to this Section.
For purposes of telephonic notice to Phage in clause (a) above, such telephonic
notice will be to Darren Pylot unless Phage notifies the Purchasers of other
individuals to whom telephone notice may be directed.
10.2 No Waivers; Amendments.
----------------------
2) No failure or delay on the part of any party in exercising any
right, power or remedy hereunder will operate as a waiver, nor
will any single or partial exercise of any such right, power
or remedy preclude any other or further exercise or the
exercise of any other right, power or remedy.
2) Any provision of this Agreement may be amended, supplemented
or waived if, but only if, such amendment, supplement or
waiver is in writing and is signed by Phage and the
Purchasers; provided, that without the consent of each holder
of any Unit affected thereby, an amendment or waiver may not:
(i) reduce the aggregate principal amount of Units whose holders
must consent to an amendment or waiver;
(ii) reduce the rate or extend the time for payment
of interest on any Unit; (iii) reduce the principal
amount of or extend the stated maturity of any Unit;
or (iv) make any Unit payable in money or property
other than as stated in such Unit.
In determining whether the holders of the requisite principal
amount of Units have concurred in any direction, consent, or
waiver as provided in any Transaction Agreement, Units which
are owned by Phage or any other obligor on or guarantor of the
Units, or by any Person Controlling, Controlled by, or under
common Control with any of the foregoing, will be disregarded
and deemed not to be outstanding for the purpose of any such
determination; and PROVIDED FURTHER that no such amendment,
supplement or waiver which affects the rights of the
Purchasers and their affiliates otherwise than solely in their
capacities as holders of Units will be effective with respect
to them without their prior written consent.
10.3 Indemnification.
---------------
3) Phage agrees to indemnify and hold harmless the
Purchaser(s), its Affiliates, and each Person, if any, who
controls Purchaser(s), or any of its Affiliates, within the
meaning of the Securities Act or the Exchange Act (each, a
"Controlling Person"), and the respective partners, agents,
employees, officers and Directors of the Purchasers, their
Affiliates and any such Controlling Person (each a
"Purchaser Indemnified Party") and collectively, the
"Purchaser Indemnified Parties"), from and against any and
all losses, claims, damages, liabilities and expenses
(including, without limitation and as incurred, reasonable
costs of investigating, preparing or defending any such
claim or action, whether or not such the Purchasers
Indemnified Party is a party thereto, provided that Phage
will not be obligated to advance such costs to any the
Purchasers Indemnified Party other than the Purchasers
unless it has received from such the Purchasers Indemnified
Party an undertaking to repay to Phage the costs so advanced
if it should be determined by final judgment of a court of
competent jurisdiction that such the Purchasers Indemnified
Party was not entitled to indemnification hereunder with
respect to such costs) which may be incurred by such the
Purchasers Indemnified Party in connection with any
investigative, administrative or judicial proceeding brought
or threatened that relates to or arises out of, or is in
connection with any activities contemplated by any
Transaction Agreement or any other services rendered in
connection herewith; provided that Phage will not be
responsible for any claims, liabilities, losses, damages or
expenses that are determined by final judgment of a court of
competent jurisdiction to result from such the Purchasers
Indemnified Party's gross negligence, willful misconduct or
bad faith.
<PAGE>
14) The Purchasers agrees to indemnify and hold harmless Phage,
its Affiliates, and each Person, if any, who controls Phage,
or any of its Affiliates, within the meaning of the
Securities Act or the Exchange Act (each, a "Controlling
Person"), and the respective employees, officers and
Directors of Phage (each a "Company Indemnified Party") and
collectively, the "Company Indemnified Parties"), from and
against any and all losses, claims, damages, liabilities and
expenses (including, without limitation and as incurred,
reasonable costs of investigating, preparing or defending
any such claim or action, whether or not such Company
Indemnified Party is a party thereto, provided that the
Purchasers will not be obligated to advance such costs to
any Company Indemnified Party other than Phage unless it has
received from such Company Indemnified Party an undertaking
to repay to the Purchaser the costs so advanced if it should
be determined by final judgment of a court of competent
jurisdiction that such Company Indemnified Party was not
entitled to indemnification hereunder with respect to such
costs) which may be incurred by such Company Indemnified
Party in connection with any investigative, administrative
or judicial proceeding brought or threatened that relates to
or arises out of, or is in connection with any activities
contemplated by any Transaction Agreement or any other
services rendered in connection herewith; provided that the
Purchasers will not be responsible for any claims,
liabilities, losses, damages or expenses that are determined
by final judgment of a court of competent jurisdiction to
result from such Company Indemnified Party's gross
negligence, willful misconduct or bad faith.
12) If any action will be brought against a Purchasers Indemnified Party or
a Company Indemnified Party (each an "Indemnified Party") with respect to
which indemnity may be sought against a party under this Agreement, such
Indemnified Party will promptly notify the party or parties from whom
indemnification is being claimed (the "Indemnifying Party") in writing and
the Indemnifying Party, at its option, may, assume the defense, including
the employment of counsel reasonably satisfactory to such Indemnified Party
and payment of all reasonable fees and expenses. The failure to so notify
the Indemnifying Party will not affect any obligations the Indemnifying
Party may have to such Indemnified Party under this Agreement or otherwise
unless the Indemnifying Party is materially adversely affected by such
failure.. Such Indemnified Party will have 'the right to employ separate
counsel in such action and participate in the defense, but the fees and
expenses of such counsel will be at the expense of such Indemnified Party,
unless
(i) the Indemnifying Party has failed to assume the defense and employ
counsel; or
(ii) the named parties to any such action (including any impleaded parties)
include such Indemnified Party and the Indemnifying Party, and such
Indemnified Party will have been advised by counsel that there may be one
or more legal defenses available to it which conflict with those available
to the Indemnifying Party; in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party will not have the right to assume the defense of such action or
proceeding on behalf of such Indemnified Party, PROVIDED, HOWEVER, that the
Indemnifying Party will not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be responsible hereunder for the reasonable
fees and expenses of more than one such firm of separate counsel, in
addition to any local counsel, which counsel will be designated by the
Indemnified Party. The Indemnifying Party will not be liable for any
settlement of any such action effected without the written consent of the
Indemnifying Party (which will not be unreasonably withheld) and the
Indemnifying Party agrees to indemnify and hold harmless each Indemnified
Party from and against any loss or liability by reason of settlement of any
action effected with the consent of the Indemnifying Party. In addition,
the Indemnifying Party will not, without the prior written consent of the
Indemnified Party, settle or compromise or consent to the entry of any
judgment in or otherwise seek to terminate any pending or threatened
action, claim, suit or proceeding in respect to which indemnification may
be sought hereunder (whether or not any Indemnified Party is a party
thereto) unless such settlement, compromise, consent or termination
includes an express unconditional release of the Indemnified Party and the
other Indemnified Parties, satisfactory in form and substance to the
Indemnified Party, from all liability arising out of such action, claim,
suit or proceeding.
(8) The indemnification and expense reimbursement obligations set
forth in this Section 10.3 will be in addition to any
liability any Indemnifying Party may have to any Indemnified
Party at common law or otherwise; will survive the termination
of this Agreement and the other Transaction Agreements and the
payment in full of the Units; and will remain operative and in
full force and effect regardless of any investigation made by
or on behalf of the Purchasers or Phage or any other
Indemnified Party.
10.4 Expenses. Phage and each Purchaser will bear its own expenses
incurred on its behalf with respect to this Agreement and the transactions
contemplated under this Agreement.
10.5 Payment. Phage agrees that, so long as the Purchasers will own any
Units purchased by it from Phage hereunder, Phage will make payments to the
Purchasers of all amounts due thereon by wire transfer by 5:00 P.M. (P.S.T.).
10.6 Successors and Assigns. This Agreement will be binding on Phage
and on the Purchasers and its respective successors and assigns. So long as the
Units remain outstanding, Phage will not assign or otherwise transfer its rights
or obligations under this Agreement to any other Person without the prior
written consent of the Purchasers. All provisions hereunder purporting to give
rights to the Purchasers and its affiliates or to holders of Securities are for
the express benefit of such Persons and their successors and assigns.
<PAGE>
10.7 Florida Law; Submission to Jurisdiction; Waiver of Jury Trial;
Appointment of Agent. THIS AGREEMENT Will BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF FLORIDA. EACH PARTY HERETO HEREBY SUBMITS
TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE STATE
OF FLORIDA AND OF ANY FEDERAL DISTRICT COURT SITTING IN MIAMI, FLORIDA FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH
A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY THE MAILING OF
COPIES BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS
ADDRESS SET FORTH HEREIN. NOTHING HEREIN Will AFFECT THE RIGHT OF ANY PARTY TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, EACH PARTY WAIVES ITS RIGHT
TO A TRIAL BY JURY.
10.8 Entire Agreement. This Agreement, the Exhibits or Schedules
attached, which include, but are not limited to the Warrant and the Registration
Rights Agreement, set forth the entire agreement and understanding of the
parties relating to the subject matter of this Agreement and supercedes all
prior and contemporaneous agreements, negotiations and understandings between
the parties, both oral and written relating to the subject matter of this
Agreement. The terms and conditions of all Exhibits and Schedules to this
Agreement are incorporated herein by this reference and will constitute part of
this Agreement as is fully set forth herein.
10.9 Survival; Severability. The representations, warranties, covenants
and agreements of the parties hereto will survive the Initial Closing hereunder.
In the event that any provision of this Agreement becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement will continue in full force and effect without said provision;
provided that such severability will be ineffective if it materially changes the
economic benefit of this Agreement to any party.
10.10 Title and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.11 Publicity. Phage and the Purchasers will consult with each other
in issuing any press releases or otherwise making public statements with respect
to the transactions contemplated hereby and no party will issue any such press
release or otherwise make any such public statement without the prior written
consent of the other parties, which consent will not be unreasonably withheld or
delayed, except that no prior consent will be required if such disclosure is
required by law, in which such case the disclosing party will provide the other
parties with prior notice of such public statement. Notwithstanding the
foregoing, Phage will not publicly disclose the name of Purchaser(s) without the
prior written consent of Purchaser, except to the extent required by law, in
which case Phage will provide Purchaser with prior written notice of such public
disclosure.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers, as of the date first
above written.
PHAGE THERAPEUTICS INTERNATIONAL INC.
/s/ Darren Pylot /s/
By: Darren Pylot
Title: President
Address: Phage Therapeutics International Inc.
22116 23rd Drive SE
Bothell, Washington 98201
Tel: (425) 482-9511
Fax.: (425) 482-0834
/s/ Robert Miller/s/ /s/ Bolivar Longines SA /s/
-------------------- --------------------------
Name: Robert Miller Name: Bolivar Longines SA
Address: 1645 South Miami Avenue Address: Centro Comercial Naraya
Miami, Florida 33129 Piso 4 Oficina L-10
Alta Vista, Puerto Ordaz
Venezula
/s/ Ricardo Requena /s/ /s/ Cadaques S.A. /s/
----------------------- ---------------------
Name: Ricardo Requena Name: Cadaques S.A.
Address: 25 de Mayo 444 Piso 2 Address: Benito Blanco 675, Apt. 401
11000 Montevideo 11300 Montevideo
Urguay Urguay
/s/ Blanca de Longo /s/
Name: Blanca de Longo /s/ Stratton S.A. /s/
---------------------
Name: Stratton S.A.
Address: Carace 524, Apt. 701
Montevideo Address: 25 de Mayo 444 Piso 2
Urguay 11000 Montevideo
Urguay
/s/ GIG Limited /s/
Name: GIG Limited
Address: 105 Marbel Drive
Grand Cayman BWI
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
SCHEDULE OF PURCHASERS
----------------------------- ------------------------------------------------------- ------------------------------
Name Address/Facsimile Number $ Amount of Subscription
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
<S> <C> <C>
Robert Miller 1645 South Miami Avenue $ 130,000
Miami, Florida 33129 $ 220,000
----------
$ 350,000 = Total
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
Bolivar Longines SA Centro Comercial Naraya $ 70,000
Piso 4 Oficina L-10
Alta Vista, Puerto Ordaz
Venezula
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
Ricardo Requena 25 de Mayo 444 Piso 2 $ 140,000
11000 Montevideo
Urguay
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
Cadaques S.A. Benito Blanco 675, Apt. 401 $ 350,000
11300 Montevideo
Urguay
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
Blanca de Longo Carace 524, Apt. 701 $ 70,000
Montevideo
Urguay
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
Stratton S.A. 25 de Mayo 444 Piso 2 $ 180,000
11000 Montevideo
Urguay
----------------------------- ------------------------------------------------------- ------------------------------
----------------------------- ------------------------------------------------------- ------------------------------
GIG Limited 105 Marbel Drive $ 350,000
Grand Cayman BWI
----------------------------- -------------------------------------------------------
----------------------------- -------------------------------------------------------
TOTAL: $ 1,510,000
</TABLE>
