4.9 Subscription Agreement dated April 13, 2000 between the Company and
Swartz Private Equity, LLC relating to the purchase of up to
$15,000,0000 of securities.
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of April 13, 2000,
by and among MIRACOR DIAGNOSTICS, INC., a corporation duly organized and
existing under the laws of the State of Utah (the "Company") and Swartz Private
Equity, LLC (hereinafter referred to as "Swartz").
RECITALS:
WHEREAS, pursuant to the Company's offering ("Equity Line") of up to
Fifteen Million Dollars ($15,000,000), excluding any funds paid upon exercise of
the Warrants, of Common Stock of the Company pursuant to that certain Investment
Agreement (the "Investment Agreement") between the Company and Swartz dated on
or about April 13, 2000, the Company has agreed to sell and Swartz has agreed to
purchase, from time to time as provided in the Investment Agreement, shares of
the Company's Common Stock for a maximum aggregate offering amount of Fifteen
Million Dollars ($15,000,000); and
WHEREAS, pursuant to the terms of the Investment Agreement, the Company
has agreed, among other things, to issue to the Subscriber Commitment Warrants,
as defined in the Investment Agreement, to purchase a number of shares of Common
Stock, exercisable for five (5) years from their respective dates of issuance.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. ISSUANCE OF COMMITMENT WARRANTS. As compensation for entering into the Equity
Line, Swartz received a warrant convertible into 360,000 shares of the Company's
Common Stock, in the form attached hereto as EXHIBIT A (the "Commitment
Warrants").
2. ISSUANCE OF ADDITIONAL WARRANTS. At the earlier of (i) March 16, 2001 or
(ii) the date of the first Put Notice delivered to Swartz pursuant to the
Investment Agreement, Swartz shall receive additional warrants (the "Additional
Warrants"), to purchase a number of shares of Common Stock, if necessary, such
that the sum of the number of Commitment Warrants and the number of Additional
Warrants issued to Swartz shall equal at least 4% of the number of fully diluted
shares of Common Stock of the Company that are then outstanding (excluding the
Company's Employee Incentive Stock Option Plan). If the Company shall at any
time effect a recapitalization, reclassification or other similar transaction of
such character that the shares of Common Stock shall be changed into or become
exchangeable for a SMALLER number of shares (a "Reverse Stock Split"), then on
the date of such Reverse Stock Split, and on each one year anniversary (each, an
"Anniversary Date") of the Reverse Stock Split thereafter throughout the term of
the Commitment Warrants, the Company shall issue to Swartz additional warrants
(the "Additional Warrants"), in the form of EXHIBIT A, to purchase a number of
shares of Common Stock, if necessary, such that the sum of the number of
Warrants and the number of Additional Warrants issued to Swartz shall equal at
least 4.0% of the number of shares of Common Stock of the Company that are
outstanding immediately following the Reverse Stock Split or Anniversary Date,
as applicable. The Additional Warrants shall be exerciseable at the same price
as the Commitment Warrants, shall have the same reset provisions as the
Commitment Warrants, shall have piggyback registration rights and shall have a 5
year term.
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3. OPINION OF COUNSEL. Concurrently with the issuance and delivery of the
Commitment Opinion (as defined in the Investment Agreement) to the Investor, or
on the date that is six (6) months after the date of this Agreement, whichever
is sooner, the Company shall deliver to the Investor an Opinion of Counsel
(signed by the Company's independent counsel) covering the issuance of the
Commitment Warrants and the Additional Warrants, and the issuance and resale of
the Common Stock issuable upon exercise of the Warrants and the Additional
Warrants.
4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah applicable to agreements made in
and wholly to be performed in that jurisdiction, except for matters arising
under the Act or the Securities Exchange Act of 1934, which matters shall be
construed and interpreted in accordance with such laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this 13th day of April, 2000.
SUBSCRIBER:
MIRACOR DIAGNOSTICS, INC. SWARTZ PRIVATE EQUITY, LLC.
By: /S/ M. Lee Hulsebus By: /S/ Eric S. Swartz
------------------------------------- --------------------------------
M. Lee Hulsebus, Chairman & CEO Eric S. Swartz, Manager
Miracor Diagnostics, Inc. 1080 Holcomb Bridge Road
9191 Towne Centre Dr., Suite 420 Bldg. 200, Suite 285
San Diego, CA 92122 Roswell, GA 30076
Telephone: (858) 455-7127, x3006 Telephone: (770) 640-8130
Facsimile: (858) 455-7295 Facsimile: (770) 640-7150
