<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
BIOCIRCUITS CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
DELAWARE ---- 94-3060271
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) Number)
</TABLE>
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1324 CHESAPEAKE TERRACE
SUNNYVALE, CALIFORNIA 94089
(408) 745-1961
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------------
JOHN B. KAISER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
1324 CHESAPEAKE TERRACE
SUNNYVALE, CALIFORNIA 94089
(408) 745-1961
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
COPY TO:
DEBORAH A. MARSHALL, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(415) 843-5000
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
---------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is filed in a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement of the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------------
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock 2,896,226 $0.9375 $2,715,211.88 $822.79
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</TABLE>
(1) Includes all shares of Common Stock issuable upon exercise of warrants
issued on April 15, 1997 pursuant to a private placement.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
computing the amount of the registration fee based on the average of
the high and low prices of the Company's Common Stock as reported on
the Nasdaq National Market on April 23, 1997.
----------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
BIOCIRCUITS CORPORATION
Cross Reference Sheet pursuant to Item 501(b) of Regulation S-K showing location
in prospectus of information required by Items of Form S-3
Cross Reference Sheet showing the location in the Prospectus of the Items on
Form S-3
<TABLE>
<CAPTION>
FORM S-3 ITEM AND CAPTION LOCATION IN PROSPECTUS
<S> <C> <C>
1. Forepart of Registration Statement and
Outside Cover Page of Prospectus . . . . . . . . .Outside Front Cover Page
2. Inside Front and Outside Back Inside Front and Outside Back
Cover Pages of Prospectus. . . . . . . . . . . . . . . . . . . Cover Pages
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges . . . . . . . The Company; Risk Factors
4. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . Use of Proceeds
5. Determination of Offering Price. . . . . . . . . . . . . . . . . . . . . *
6. Dilution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
7. Selling Security Holders . . . . . . . . . . . . . Selling Securityholders
Outside Front Cover Page;
8. Plan of Distribution . . . . . . . . . . . . . . . . .Plan of Distribution
9. Description of Securities to Be Registered . . . . . . . . . . . . . . . *
10. Interests of Named Experts and Counsel . . . . . . . . . . . . . . . . . *
11. Material Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
12. Incorporation of Certain Information
by Reference. . . . . . . . . . . . . . . . . . . Inside Front Cover Page
13. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities . . . . . . . . . . . . . *
</TABLE>
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* Such item is inapplicable or the answer thereto is in the negative.
<PAGE>
PROSPECTUS
2,896,226 SHARES
BIOCIRCUITS CORPORATION
-----------------
COMMON STOCK
-----------------
This Prospectus relates to a total of 2,896,226 shares of Common Stock
(the "Shares"), with a par value of $0.001 (the "Common Stock"), (i) 531,250
of which were issued by Biocircuits Corporation ("the Company") on April 15,
1997 pursuant to a private placement (the "Common Stock Financing"), (ii)
1,157,488 of which were issued by the Company on April 15, 1997 pursuant to a
private placement of units consisting of one share of Common Stock and one
warrant to purchase one share of Common Stock (the "Units Financing"), (iii)
1,157,488 of which are issuable upon exercise of warrants issued pursuant to
the Units Financing (the "Financing Warrants"), and (iv) 50,000 of which are
issuable upon exercise of one Common Stock warrant issued in connection with
a manufacturing arrangement (the "KMC Warrant"). The Financing Warrants and
the KMC Warrant are collectively referred to herein as the "Warrants."
The Shares may be offered by the Selling Securityholders from time to
time in transactions on the Nasdaq National Market, in privately negotiated
transactions or a combination of such methods of sale, at fixed prices that
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The
Selling Securityholders may effect such transactions by selling the Shares to
or through broker-dealers, and such broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Securityholders or the purchasers of the Shares for whom such broker-dealers
may act as agent or to whom they sell as principal or both (which
compensation to a particular broker-dealer might be in excess of customary
commissions). See "Selling Securityholders" and "Plan of Distribution."
The Company will receive all of the proceeds from the exercise of the
Warrants but will not receive any proceeds from the sale of the shares of
Common Stock by the Selling Securityholders hereof. See "Plan of
Distribution."
The Selling Securityholders, directly or through agents, dealers or
underwriters, may sell the Common Stock offered hereby from time to time on
terms to be determined at the time of sale. The Company's Common Stock is
traded on the Nasdaq National Market under the symbol BIOC. The last
reported sales price on the Company's Common Stock on the Nasdaq National
Market on April 23, 1997 was $0.9375 per share.
-----------------
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGE 5.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No underwriting commissions or discounts will be paid by the Company in
connection with this offering. Estimated expenses payable by the Company in
connection with this offering are $20,822.79. The aggregate proceeds to the
Selling Securityholders from the sale of the Shares will be the purchase price
of the Shares sold less the aggregate agents' commissions and underwriters'
discounts, if any, and other expenses of issuance and distribution not borne by
the Company. See "Plan of Distribution."
The Selling Securityholders and any broker-dealers, agents or underwriters
that participate with the Selling Securityholders in the distribution of the
Shares may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commission received by
them and any profit on the resale of the Shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities Act. The
Company has agreed to indemnify the Selling Securityholders and certain other
persons against certain liabilities, including liabilities under the Securities
Act.
The date of this Prospectus is April 29, 1997.
<PAGE>
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to sell,
or a solicitation of an offer to buy, by any person in any jurisdiction in which
it is unlawful for such person to make such offer or solicitation. Neither the
delivery of this Prospectus at any time nor any sale made hereunder shall, under
any circumstances, imply that the information herein is correct as of any date
subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
following Regional Offices: Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and New York Regional
Office, 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of
such material can be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. The Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of such
Web site is http://www.sec.gov. The Company's Common Stock is quoted on the
Nasdaq National Market, and such reports, proxy statements and other information
can also be inspected at the offices of The Nasdaq Operations, 1735 K Street,
N.W., Washington, D.C. 20006.
Additional information regarding the Company and the Shares offered hereby
is contained in the Registration Statement on Form S-3 and the exhibits thereto
filed with the Commission under the Securities Act. This Prospectus does not
contain all of the information contained in such Registration Statement and the
exhibits thereto. Statements contained in this Prospectus regarding the contents
of any document or contract may be incomplete and, in each instance, reference
is made to the copy of such contract or document filed as an exhibit to the
Registration Statement. For further information pertaining to the Company and
the Shares, reference is made to the Registration Statement and the exhibits
thereto, which may be inspected without charge at, and copies thereof may be
obtained at prescribed rates from, the office of the Commission at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed by the Company with the Commission pursuant
to the Exchange Act is by this reference incorporated in and made a part of
this Prospectus: The Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed on April 15, 1997, including all matters
incorporated by reference therein.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering shall be deemed to be incorporated by
reference herein and to be a part of this Prospectus from the date of filing
of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents or into this
Prospectus) will be provided without charge to each person, including any
beneficial owner to whom this Prospectus is delivered, upon a written or oral
request to Biocircuits Corporation, Attention: John B. Kaiser, President and
Chief Executive Officer, 1324 Chesapeake Terrace, Sunnyvale, California,
94089, telephone number (408) 745-1961.
2.
<PAGE>
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THE COMPANY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS INCORPORATED BY REFERENCE IN THIS
PROSPECTUS.
Biocircuits was founded in 1989 to develop new immunodiagnostic testing
systems. Immunodiagnostic tests, or "assays," are performed on samples of
bodily fluids to diagnose a variety of infectious diseases and other
conditions, such as endocrine dysfunctions, and to conduct therapeutic drug
monitoring. Immunodiagnostic tests utilize biological reagents, such as
antibodies, and an instrument to detect the presence of a substance of
interest, or "analyte," such as a virus or hormone.
The Company's IOS point-of-care immunodiagnostic testing system consists
of a compact, inexpensive instrument and disposable test cartridges that can
be operated by a user with no special skills or training. The system enables
users to perform tests at many locations, including physicians' offices,
ambulatory clinics and small clinical laboratories. In the first quarter of
1996, the Company began marketing its IOS system with cartridges capable of
performing T4 and T Uptake tests, two of the most commonly requested
immunodiagnostic tests for assessing thyroid function. In September 1996,
the Company announced clearance from the United States Food and Drug
Administration (the "FDA") to market a qualitative serum pregnancy assay, a
test designed to allow physicians to perform this common pregnancy test in
their offices during the patient visit where they can provide more immediate
pre-natal care to patients. In December 1996, the Company announced FDA
clearance to market a quantitative hCG assay, a test to track the progress of
early pregnancies. Also in December 1996, the Company launched its Thyroid
Stimulating Hormone ("TSH") assay on a second generation cartridge. The TSH
assay is a test to assess thyroid function. The second generation cartridge
will be required for the market launch of all new assays. In addition,
existing assays will be converted to the new cartridge in the near future.
Biocircuits is currently developing three additional assays: a prostate
specific antigen ("PSA") test for management of prostate cancer patients, a
Digoxin test for monitoring the therapeutic usage of this drug in the
treatment of heart disease and a Free T4 test for diagnosing true clinical
thyroid status. The Company plans to continue to develop additional
immunodiagnostic assays commonly requested by office-based physicians.
The Company believes that its IOS system is the first low-cost,
commercially available product which permits a physician to perform
immunodiagnostic tests at the point of patient care. Performing tests with
current immunodiagnostic testing systems is time consuming, expensive and
requires multiple steps and skilled technicians. The Company believes that
the IOS system reduces the cost of immunodiagnostic testing by providing test
results more rapidly than other current testing procedures.
Biocircuits is targeting the approximately 41,000 small- to medium-sized
physician office practices and free-standing alternate site laboratories
which are licensed under the Clinical Laboratories Improvement Act of 1967
and Amendments of 1988 ("CLIA") for high or moderate complexity testing. Most
of these sites do not currently have an immunodiagnostic testing capability.
The IOS system is approved for moderately complex testing.
To perform a test, the operator inserts the test cartridge into the IOS
instrument, which then reads the relevant assay information contained on the
cartridge's bar code. The cartridge is then partially released from the
instrument, enabling the operator to place the specimen (blood, urine or
other samples) into one to two wells in the cartridge, depending on the test.
The sample automatically flows to the test zone, where it produces a signal
that the instrument uses to determine the test results. The IOS instrument
provides a liquid crystal display and a printed output in approximately 20 to
35 minutes, with the time varying by test. Receiving results within this
time frame enables the doctor to make a treatment decision before the patient
leaves the office, facilitating earlier treatment and obviating the need for
an additional visit or telephone call.
Biocircuits has developed significant knowledge about lipid/polymer
biomaterials in the past eight years that the Company believes could be
useful in other diagnostic system applications. In August 1995, Biocircuits
entered into an agreement with Beckman Instruments, Inc. ("Beckman") and
received $3,500,000 in the form of convertible debt (the "Note") in exchange
for granting Beckman options for licensing and marketing rights to certain
testing applications using the Company's lipid-polymer technology. Pursuant
to the terms of the agreement, Biocircuits completed a feasibility study in
August 1996. Because Beckman subsequently elected not to exercise its
development license option, Biocircuits regained full rights to the
lipid-polymer technology in December 1996, including all improvements made
during the feasibility study. In connection with the decision, Beckman also
elected to convert the Note into the Company's Common Stock and a warrant to
purchase the Company's Common Stock.
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3.
<PAGE>
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THE OFFERING
Shares offered. . . . . . . . . . . . Up to 2,896,226 shares, all of which are
being offered by the Selling
Securityholders.(1)
Common Stock outstanding after
the offering. . . . . . . . . . . . . 14,600,334 shares.(2)
Use of Proceeds . . . . . . . . . . . The net proceeds received by the Company
from the exercise of the Warrants will
be considered uncommitted funds that may
be used by the Company for general
corporate purposes, including sales and
marketing and research and development.
The Company will not receive any of the
proceeds from the sale of the Common
Stock by the Selling Securityholders.
Nasdaq Symbol . . . . . . . . . . . . BIOC.
(1) Includes (i) 531,250 shares issued pursuant to the Common Stock Financing,
(ii) 1,157,488 shares issued pursuant to the Units Financing,
(iii) 1,157,488 shares issuable upon exercise of the Financing Warrants,
and (iv) 50,000 shares issuable upon exercise of the KMC Warrant.
(2) Assumes the exercise of all of the Warrants and the sale of all of the
Shares.
Biocircuits Corporation and IOS are registered trademarks of the Company.
- --------------------------------------------------------------------------------
4.
<PAGE>
RISK FACTORS
THE FOLLOWING FACTORS SHOULD BE CONSIDERED CAREFULLY WITH THE INFORMATION
PROVIDED ELSEWHERE IN THIS PROSPECTUS IN EVALUATING AN INVESTMENT IN THE SHARES
OFFERED HEREBY.
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS WHICH INVOLVE RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE
ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS,
INCLUDING THOSE SET FORTH IN THE FOLLOWING RISK FACTORS AND ELSEWHERE IN THIS
PROSPECTUS.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING; MAINTENANCE OF NASDAQ
LISTING
Obtaining additional funds will be critical to the Company's ability to
maintain operations during 1997. The Company will therefore continue to seek
funding from various equity financing sources. Raising additional funds from
public or private sources will result in significant dilution to then existing
shareholders. If adequate funding is not available on a timely basis, the
Company will be required to curtail its operations significantly or to cease
operations. There can be no assurance that the Company will be successful in
obtaining additional financing during 1997.
On April 15, 1997, the Company closed the first tranche in two private
placements in which the Company sold its Common Stock and issued warrants to
purchase common stock (defined hereinafter as the "April 1997 Financings").
The private placements will consist of three tranches, the first of which
resulted in gross proceeds of approximately $1.7 million to the Company. With
these funds, the Company believes its cash resources will be adequate to
satisfy its requirements until the end of the second quarter of 1997. The
second tranche could result in gross proceeds to the Company of approximately
$5.5 million in July 1997, and is conditional upon the achievement by the
Company of certain milestones for the second quarter of 1997 and approval by
the Company's stockholders at the 1997 Annual Meeting of the Stockholders.
If the Company receives funding from the second tranche, the Company believes
its cash resources will be adequate to satisfy its requirements into the
second quarter of 1998. The third tranche could result in gross proceeds to
the Company of approximately $0.8 million in January 1998, and is conditional
upon the achievement by the Company of certain milestones by year end 1997
and approval by the Company's stockholders at the 1997 Annual Meeting of the
Stockholders. If the Company receives funding from the third tranche, the
Company believes its cash resources will be adequate to satisfy its
requirements into the third quarter of 1998. The exercise of all warrants
issued and to be issued in the second tranche of the April Financings is
contingent upon approval by the Company's stockholders at the 1997 Annual
Meeting of the Stockholders. There can be no assurance that the Company will
achieve the milestones necessary to receive funding from either the second or
third tranches.
The Company believes that maintaining its listing on the Nasdaq National
Market ("Nasdaq") is central to its ability to raise additional funds as well as
to provide liquidity to investors. The conversion of the Beckman Note resulted
in the Company meeting Nasdaq listing requirements at year end 1996. The Company
failed temporarily to meet Nasdaq listing requirements at the end of the first
quarter of 1997. However, the proceeds from the first tranche of the April 1997
Financings will allow the Company to meet Nasdaq listing requirements, on a
proforma basis, for the first quarter of 1997. The Company also expects not to
be in compliance with Nasdaq listing requirements at the end of the second
quarter of 1997. However, if the Company receives proceeds from the second
tranche of the April 1997 Financings in July 1997, the Company believes it would
meet Nasdaq listing requirements, on a proforma basis, for the second quarter of
1997. In addition, the Company believes the receipt of proceeds from the second
tranche of the April 1997 Financings would result in it meeting Nasdaq listing
requirements through year end 1997. If the Company receives proceeds from the
third tranche of the April 1997 Financings, the Company believes it will meet
Nasdaq listing requirements through the first quarter of 1998. Thereafter, the
Company will be required to generate sufficient revenue or raise additional
capital to maintain Nasdaq listing requirements.
The Company believes its cash requirements may increase in future periods
due to higher expenses. The Company expects to incur substantial additional
costs, including costs related to ongoing research and development activities,
either alone or in collaboration with strategic partners, clinical trials,
expansion of manufacturing, research and development and administrative
facilities, development of manufacturing capabilities, obtaining regulatory
5.
<PAGE>
approvals and establishing sales, marketing and distribution capabilities. The
Company's long-term capital requirements will depend on numerous factors,
including the progress of the Company's research and product development, the
timing and cost of obtaining regulatory approvals, the costs associated with
patents and other intellectual property rights, the levels of resources devoted
to the development of manufacturing and marketing capabilities and potential
collaborative partnerships. The Company may also seek additional funding
through collaborative relationships and the acquisition of capital equipment,
including lease financing, if available on attractive terms. The Company also
may attempt to obtain funds through arrangements with strategic partners or
others that may require the Company to relinquish rights to certain of its
technologies, products or marketing territories in exchange for funding. If
adequate funds are not available from these sources, the Company may be required
to curtail its operations significantly. No assurance can be given that any
additional financing will be available, or, if available, that it will be
available on acceptable terms.
NEED TO RETAIN AND ATTRACT KEY EMPLOYEES
The Company is highly dependent upon the principal members of its
management and scientific staff and key individuals in all areas of the Company.
Although the Company believes it has retained sufficient employees to achieve
its near-term business objectives after its reduction in force on April 3, 1997,
there can be no assurance that the loss of services of such employees might not
impede the achievement of the Company's business objectives. Furthermore, there
can be no assurance that the reduction in force will not adversely affect the
Company's ability to retain its remaining employees. The Company has implemented
certain programs which it believes will help in retaining key employees. The
Company faces competition for qualified individuals from numerous manufacturers
of medical products and other high technology products, as well as universities
and academic institutions. There can be no assurance that the Company will be
able to attract new qualified personnel on acceptable terms.
DEVELOPMENT STAGE COMPANY; PRODUCTS UNDER DEVELOPMENT
Biocircuits was founded in 1989 and is a development stage company. To
achieve profitable operations, the Company, alone or with others, must, among
other things, successfully develop, obtain regulatory approval for, manufacture,
introduce and market its current and potential products. The time frame
necessary to develop the Company's products is uncertain. The Company has
experienced delays in the scheduled completion of its IOS point-of-care
instrument and test cartridges, and there can be no assurance that further
product development delays will not occur in the future.
The Company's first sale and shipment of its IOS system, with cartridges
capable of performing T4 and T Uptake tests, occurred in March 1996. Certain
design changes to the IOS instrument were required since the first sale and
shipment of the IOS system. In April 1996, problems in some of the instrument
circuitry and software required certain parts and software modifications.
Further product shipments were suspended at that time while the problems were
diagnosed and corrected. All changes were validated and documented, and
shipments to distributors were resumed in the middle of June. In addition, all
instruments previously shipped to customers were retrofitted. In September 1996,
the Company received FDA clearance to market a qualitative serum pregnancy
assay. The Company received clearance from the FDA for a TSH assay in November
1996 and a quantitative hCG assay in December 1996. During 1996, the Company
developed an improved second generation cartridge for its new assays as well as
existing assays. In December 1996, the Company launched its TSH assay on the
second generation cartridge. In March 1997, the Company began shipping the T4
and T Uptake tests on the second generation cartridge. The second generation
cartridge will be required for the market launch of all future assays.
Biocircuits is currently developing three additional assays: a prostate specific
antigen ("PSA") test for management of prostate cancer patients, a Digoxin test
for monitoring the therapeutic usage of this drug in the treatment of heart
disease and a Free T4 test for diagnosing true clinical thyroid status. The
Company does not expect to realize any significant revenue until at least 1998.
There can be no assurance that the IOS point-of-care system and tests will
perform reliably and in accordance with the Company's specifications, that
additional design changes may not be required in the future, that the Company
will be able to develop successfully or obtain regulatory clearance for
additional tests or any other future products, that the reduction in assay
development employees will not result in further delays in developing those
tests, that the second generation cartridge will perform as planned, that any of
the Company's products can be manufactured in
6.
<PAGE>
sufficient quantity, at acceptable cost and with appropriate quality, or that
any products, if and when approved, can be successfully marketed. Failure to
meet one or more of these challenges could have a material adverse effect on the
Company.
UNCERTAIN MARKET ACCEPTANCE OF POINT-OF CARE PRODUCT
Substantially all immunodiagnostic testing currently is performed at large
clinical laboratories rather than point-of-care sites. There can be no assurance
that the Company will be successful in developing and penetrating the
point-of-care market for immunodiagnostic testing. The Company currently
employs nine sales representatives to develop its relationships with
distributors which supply a substantial portion of medical and test products.
The Company believes it must expand its sales force to between 12 and 20 sales
representatives and further develop its relationships with distributors which
currently supply a substantial portion of medical and test products to
physicians. Due to its limited cash resources, the Company is uncertain when or
if it will be able to attain a sales force of at least 12 sales representatives.
The selling process typically requires the Company's sales force to work closely
with distributors, generate qualified physician leads and perform demonstrations
for the IOS system in physicians' offices. The selling process can be
time-consuming and there can be no assurance that the Company will be successful
in marketing the IOS system, that the rate of sales growth will meet
expectations or that the marketing programs of the Company will achieve the
desired results. To date, the number of instrument sales to distributors and
placements in physicians' offices have been, and continue to be, significantly
less than the Company's expectations. The Company believes that if instrument
sales continue to be below expectations, the Company's revenue and financial
performance will be materially adversely affected. Certain design changes to
the IOS instrument were required since the first sale and shipment of the IOS
system. In April 1996, problems in some of the instrument circuitry and software
required certain parts and software modifications. Further product shipments
were suspended at that time while the problems were diagnosed and corrected. All
changes were validated and documented, and shipments to distributors were
resumed in the middle of June 1996. In addition, all instruments previously
shipped to customers were retrofitted. The requirements to make certain design
changes to the instrument and the suspension of product shipments had an adverse
impact on 1996 revenue and overall financial performance. There can be no
assurance that additional design changes may not be required in the future or
that the system performance will be reliable over time.
In general, market acceptance of the Company's initial point-of-care system
will depend upon the Company's ability to demonstrate the accuracy and value of
its system and to persuade physicians to perform the Company's initial tests in
their own facilities rather than send those tests to clinical laboratories. More
specifically, in order for the Company to have success in penetrating the
point-of-care immunodiagnostic market and to achieve significant sales of IOS
systems and test cartridges, the Company believes it will need to expand its
menu of tests. The Company believes that TSH, along with the Company's
additional products in development, are test key elements in penetrating the
physicians' office market. There can be no assurance that the TSH test will have
the desired impact in increasing the market acceptance of the Company's IOS
system.
HISTORY OF LOSSES; EXPECTATION OF FUTURE LOSSES
At December 31, 1996, the Company's accumulated deficit was approximately
$51.5 million. Biocircuits expects to incur additional losses over the next
several years. The Company expects that currently available funds will be used
primarily for sales and marketing programs for its IOS point-of-care system and
development of additional tests for the IOS point-of-care system. The losses may
vary from period to period, including from quarter to quarter, and may increase,
due to the uncertainty of whether the sales and marketing programs of the
Company will achieve the desired results. Accordingly, the Company believes that
quarter-to-quarter results are not a useful indicator of the Company's
performance. There can be no assurance that any products will be manufactured
or marketed successfully, or that profitability will ever be achieved.
RISK OF PRODUCT LIABILITY; POSSIBLE UNAVAILABILITY OF INSURANCE
Testing, manufacturing and marketing of the Company's potential products
will entail risk of product liability. The Company currently has product
liability insurance. However, there can be no assurance that the Company will be
able to maintain such insurance at a reasonable cost or in sufficient amounts to
protect the Company against losses
7.
<PAGE>
due to product liability. An inability to maintain insurance at an acceptable
cost or to otherwise protect against potential product liability could prevent
or inhibit the commercialization of the Company's products. In addition, a
product liability claim or recall could have a material adverse effect on the
business or financial condition of Biocircuits.
HAZARDOUS MATERIALS
The Company's research and development involves the controlled use of
hazardous materials and chemicals. Although the Company believes that its safety
procedures for handling and disposing of such materials comply with the
standards prescribed by state and federal regulations, the risk of accidental
contamination or injury from these materials cannot be completely eliminated.
In the event of such an accident, the Company could be held liable for any
damages that result and any such liability could exceed the resources of the
Company. The Company may incur substantial costs to comply with environmental
regulations.
ANTI-TAKEOVER EFFECT OF DELAWARE LAW AND CERTAIN CHARTER PROVISIONS
The Board of Directors has authority to issue up to 10,000,000 shares of
Preferred Stock, in addition to the 30,000,000 designated shares of Series A
Preferred Stock, of which 12,455,137 were outstanding on December 31, 1996, and
to fix the rights, preferences, privileges and restrictions, including voting
rights, of those shares without any further vote or action by the stockholders.
The rights of the holders of the Common Stock will be subject to, and may be
adversely affected by, the rights of the holders of the outstanding Series A
Preferred Stock and any other Preferred Stock that may be issued in the future.
The outstanding Series A Preferred Stock could have the effect of making it more
difficult for a third party to acquire a majority of the outstanding voting
stock of the Company. Furthermore, certain provisions of the Company's Amended
and Restated Certificate of Incorporation, such as a classified Board of
Directors, its Amended and Restated Bylaws and of Delaware law could delay or
make more difficult a merger, tender offer or proxy contest involving the
Company.
VOLATILITY OF STOCK PRICE
The market price of the Company's Common Stock, like that of the common
stock of many other medical device and other high technology companies, has been
highly volatile. Factors such as delays in obtaining FDA approval for the IOS
point-of-care system, fluctuations in the Company's actual or anticipated
operating results, announcements of technological innovations or new commercial
products by the Company or its competitors, governmental regulation, changes in
the current structure of the health care financing and payment systems in the
United States, developments in or disputes regarding patent or other proprietary
rights, economic and other external factors and general market conditions may
have a significant effect on the market price of the Common Stock.
CONCENTRATION OF SHARE OWNERSHIP
Based upon the shares owned and outstanding as of March 15, 1997, the
Company's officers, directors and 5% stockholders of the Company as a group
beneficially owned approximately 59.06% of the Company's outstanding Common
Stock (on an as-converted basis) and, after giving effect to the issuance of
common stock in the April 1997 Financings, such stockholders beneficially owned
65.4% of the Company's Common Stock, on an as-converted basis. As a result,
these stockholders will be able to exercise significant influence over all
matters requiring stockholder approval, including the election of directors and
approval of significant corporate transactions.
THE COMPANY
Biocircuits Corporation was incorporated in Delaware in March 1989. The
Company's executive offices are located at 1324 Chesapeake Terrace, Sunnyvale,
California 94089, and its telephone number is (408) 745-1961.
USE OF PROCEEDS
8.
<PAGE>
The Company will not receive any of the proceeds from the sale of the
Common Stock by the Selling Securityholders. The net proceeds received by
the Company from the exercise of the Warrants will be considered uncommitted
funds that may be used by the Company for general corporate purposes,
including sales and marketing and research and development.
DIVIDEND POLICY
The Company has never paid cash dividends. The Company's Board of
Directors currently intends to retain any earnings for use in the Company's
business and does not anticipate paying any cash dividends in the foreseeable
future.
9.
<PAGE>
SELLING SECURITYHOLDERS
The following table sets forth the names of the Selling Securityholders,
the number of shares of Common Stock (on an as-converted basis) beneficially
owned by each Selling Securityholder prior to this offering, the number of
shares of Common Stock being offered for the account of each Selling
Securityholder and the number and percentage of Common Stock to be owned by each
Selling Securityholder after completion of this offering. This information is
based upon information provided by the Selling Securityholders. Because the
Selling Securityholders may offer all, some or none of their Common Stock, no
definitive estimate as to the number of shares thereof that will be held by the
Selling Securityholders after such offering can be provided.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED AFTER
OFFERING(1) OFFERING(1)(3)
------------------------------ ----------------------------
SHARES BEING
SELLING SECURITYHOLDER NUMBER PERCENT(2) OFFERED(2) NUMBER PERCENT(4)
---------------------- ------ ---------- ---------- ------ ----------
<S> <C> <C> <C> <C> <C>
Entities affiliated with
The Sprout Group(5) 2,559,233 20.84% 425,000 2,134,233 13.87%
Entities affiliated with
Special Situations Fund III,
L.P.(6) 1,445,001 13.12% 1,062,500 382,501 2.81%
H&Q Biocircuits Investors,
L.P.(7) 932,192 8.88% 425,000 507,192 3.79%
Entities affiliated with
Sanderling(8) 896,408 8.61% 255,000 641,408 4.79%
Cove Investments Limited
Partnership(9) 459,590 4.44% 141,950 317,640 2.37%
KMC Instruments, Inc.(10) 300,000 2.84% 50,000 250,000 1.83%
Entities affiliated with
J.F. Shea(11) 274,581 2.67% 42,500 232,081 1.73%
Kaiser Survivor Trust(12) 222,144 2.14% 42,500 179,644 1.33%
Porter Partners, L.P.(13) 172,500 1.66% 85,000 87,500 *
Glenbrook Partners, L.P.(14) 141,760 1.37% 54,400 83,360 *
Rogers Family Trust(16) 112,349 1.09% 42,500 69,849 *
EDJ Limited(15) 86,250 * 42,500 43,750 *
Lancaster Investment
Partners(17) 71,250 * 21,250 50,000 *
Irwin Friedman 53,125 * 53,125 0 *
Lambda Financial Service
Corp. 53,125 * 53,125 0 *
C. Fred Toney, Jr.(18) 44,584 * 21,250 23,334 *
Stephen J. Massocca(19) 39,000 * 12,750 26,250 *
Pacific Growth Equities,
Inc.(20) 35,384 * 21,250 14,134 *
Julie T. Berlacher(21) 32,750 * 12,750 20,000 *
John C. Coleman, Jr.(22) 25,999 * 8,500 17,499 *
George L. Farinsky and
Barbara J. Farinsky,
Trustees of the Farinsky
1992 Trust(23) 21,250 * 21,250 0 *
Thomas J. Dietz(24) 2,126 * 2,126 0 *
</TABLE>
- -------------------------------------
* Less than one percent.
10.
<PAGE>
(1) Unless otherwise indicated below, the persons named in the table have or
will have sole voting and investment power with respect to all shares
beneficially owned by them, subject to community property laws where
applicable.
(2) Assumes exercise of the Financing Warrants (such exercise is subject to
stockholder approval) and the KMC Warrant.
(3) Assumes the sale of all shares offered hereby. The Company has agreed
to pay all reasonable fees and expenses incident to the filing of this
offering. See "Plan of Distribution."
(4) Applicable percentage of ownership is based on 13,392,846 shares of
Common Stock (on an as-converted basis) outstanding on April 16, 1997,
adjusted as required by rules promulgated by the Commission.
(5) Includes 16,492 shares of Common Stock held of record by DLJ Capital
Corporation ("DLJ"); 310,440 shares of Series A Convertible Preferred
Stock held by DLJ; 198,116 shares of Common Stock held of record by
Sprout Capital VII, L.P. ("SCVII"); 3,729,240 shares of Series A
Convertible Preferred Stock held of record by SCVII; 104,142 shares of
Common Stock held of record by Sprout Capital VI, L.P. ("SCVI");
1,960,320 shares of Series A Convertible Preferred Stock held of record
by SCVI, 235,067 shares of Common Stock held by record by ML Venture
Partners II, L.P. ("ML Venture"); 2,000,000 shares of Series A
Convertible Preferred Stock held of record by ML Venture, all of which
Robert Curry, Ph.D., a director of the Company and a general partner of
the Sprout Group (the submanager of ML Venture), disclaims beneficial
ownership of, except to the extent of any partnership interest therein;
and 5,416 shares subject to stock options held by Dr. Curry, exercisable
within 60 days of the date of this table, all of such options shall be
assigned to ML Venture upon exercise.
(6) Includes 135,834 shares of Common Stock held by record by Special
Situations Cayman Fund, L.P. ("SSCF"); 51,042 shares of Common Stock
issuable upon the exercise of warrants held of record by SSCF; 63,750
shares of Common Stock issuable upon the exercise of Financing Warrants
held of record by SSCF; 403,750 shares of Common Stock held of record by
Special Situations Fund III, L.P. ("SSFIII"); 153,125 shares of Common
Stock issuable upon the exercise of warrants held of record by SSFIII;
255,000 shares of Common Stock issuable upon the exercise of Financing
Warrants held of record by SSFIII; 212,500 shares of Common Stock
issuable upon the exercise of Financing Warrants held of record by
SSPEF.
(7) Includes 212,500 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record by H&Q Biocircuits Investors, L.P.
(8) Includes 439,631 shares of Common Stock held of record by Sanderling
Venture Partners III, L.P. ("SVPIII"); 74,464 shares of Common Stock
issuable upon the exercise of Financing Warrants held of record by
SVPIII; 227,733 shares of Common Stock held of record by Sanderling III
Limited Partnership ("SIIILP"); 38,573 shares of Common Stock issuable
upon the exercise of Financing Warrants held of record by SIIILP; 75,766
shares of Common Stock held of record by Sanderling III Biomedical, L.P.
("SIIIB"); 12,833 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record by SIIIB; 25,778 shares of Common
Stock held of record by Sanderling Ventures Management ("SVM"); 1,630
shares of Common Stock issuable upon the exercise of Financing Warrants
held of record by SVM.
(9) Includes 70,975 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record by Cove Investments Limited
Partnership.
(10) Includes 300,000 shares of Common Stock issuable upon the exercise of
warrants held of record by KMC Instruments, Inc.
(11) Includes 195,040 shares of Common Stock held of record by E&M RP Trust
("E&M"), 10,625 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record by E&M; 58,291 shares of Common Stock
held of record by Tahoe Partnership I ("Tahoe"); and 10,625 shares of
Common Stock issuable upon the exercise of Financing Warrants held of
record by Tahoe.
(12) Includes 99,502 shares of Common Stock and 70,000 shares of Series A
Stock held of record by the Kaiser Living Trust under a Trust dated
March 7, 1991, 21,250 shares of Common Stock issuable upon the exercise
of Financing Warrants held of record by the Kaiser Survival Trust; and
83,892 shares of Common Stock subject to stock Options held by Mr.
Kaiser exercisable within 60 days of the date of this table.
(13) Includes 43,750 shares of Common Stock issuable upon the exercise of
warrants held of record by Porter Partners, L.P. ("Porter"); and 42,500
shares of Common Stock issuable upon the exercise of Financing Warrants
held by record by Porter.
(14) Includes 42,000 shares of Common Stock issuable upon the exercise of
warrants held of record by Glenbrook Partners, L.P. ("Glenbrook"); and
27,200 shares of Common Stock issuable upon the exercise of Financing
Warrants held of record by Glenbrook.
(15) Includes 21,250 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record by the Rogers Family Trust.
(16) Includes 21,875 shares of Common Stock issuable upon the exercise of
warrants held of record by EDJ Limited ("EDJ"); and 21,250 shares of
Common Stock issuable upon the exercise of Financing Warrants held of
record by EDJ.
(17) Includes 35,000 shares of Common Stock issuable upon the exercise of
warrants held of record by Lancaster Investment Partners ("Lancaster");
and 10,625 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record by Lancaster.
(18) Includes 11,667 shares of Common Stock issuable upon the exercise of
warrants held of record by Mr. Toney; and 10,625 shares of Common Stock
issuable upon exercise of Financing Warrants held of record by Mr.
Toney.
(19) Includes 8,750 shares of Common Stock issuable upon the exercise of
warrants held of record by Mr. Massocca; and 6,375 shares of Common
Stock issuable upon the exercise of Financing Warrants held of record by
Mr. Massocca.
(20) Includes 11,667 shares of Common Stock issuable upon the exercise of
warrants held of record by Pacific Growth Equities, Inc. ("PGE"); and
10,625 shares of Common Stock issuable upon the exercise of Financing
Warrants held of record by PGE.
(21) Includes 11,667 shares of Common Stock issuable upon the exercise of
warrants held of record by Ms. Berlacher; and 6,375 shares of Common
Stock issuable upon the exercise of Financing Warrants held of record by
Ms. Berlacher.
11.
<PAGE>
(22) Includes 5,833 shares of Common Stock issuable upon the exercise of
warrants held of record by Mr. Coleman; and 4,250 shares of Common Stock
issuable upon the exercise of Financing Warrants held of record by Mr.
Coleman.
(23) Includes 312,614 shares of Series A Convertible Preferred Stock held of
record by George L. Farinsky and Barbara J. Farinsky, Trustees of the
Farinsky 1992 Trust (the "Farinsky Trust"); and 10,625 shares of Common
Stock issuable upon the exercise of Financing Warrants held of record by
the Farinsky Trust.
(24) Includes 1,063 shares of Common Stock issuable upon the exercise of
Financing Warrants held of record of Mr. Dietz.
12.
<PAGE>
PLAN OF DISTRIBUTION
The Shares may be offered by the Selling Securityholders from time to time
in transactions on the Nasdaq National Market, in privately negotiated
transactions or a combination of such methods of sale, at fixed prices that may
be changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. The Selling
Securityholders may effect such transactions by selling the Shares directly or
by or through agents or broker-dealers who may receive compensation in the form
of discounts, concessions or commissions from the Selling Securityholders or the
purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they sell as principal or both (which compensation to a particular
broker-dealer might be in excess of customary commissions).
The Selling Securityholders and any underwriters, dealers or agents that
participate in the distribution of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act, and any discounts, commissions or
concessions received by them and any provided pursuant to the sale of the Shares
by them might be deemed to be underwriting discounts and commissions under the
Securities Act. In order to comply with the securities laws of certain states,
if applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless it has been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Shares may not simultaneously engage in
market making activities with respect to such Shares for a period of nine
business days prior to the commencement of such distribution. In addition and
without limiting the foregoing, each Selling Securityholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Rules 10b-2, 10b-6 and 10b-7, which
may limit the timing of purchases and sales of the Shares by the Selling
Securityholders.
The Company entered into agreements with the Selling Securityholders to
register their Shares under applicable federal and state securities laws. The
Company will pay substantially all of the expenses incident to the offering and
sale of the Shares to the public, other than commissions, concessions and
discounts of underwriters, dealers or agents. Such expenses (excluding such
commissions and discounts) are estimated to be $20,877.64. Such agreements
provide for cross-indemnification of the Selling Securityholders and the Company
to the extent permitted by law, for losses, claims, damages, liabilities and
expenses arising, under certain circumstances, out of any registration of the
Shares.
13.
<PAGE>
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for the
Company by Cooley Godward LLP, Palo Alto, California.
EXPERTS
The financial statements of Biocircuits Corporation appearing in
Biocircuits Corporation's Annual Report (Form 10-K) for the year ended December
31, 1996 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon (which contains an explanatory paragraph with
respect to the Company's ability to continue as a going concern) included
therein and incorporated herein by reference. Such financial statements are,
and audited financial statements to be included in subsequently filed documents
will be, incorporated herein in reliance upon the reports of Ernst & Young LLP
pertaining to such financial statements (to the extent covered by consents filed
with the Securities and Exchange Commission) given upon the authority of such
firm as experts in accounting and auditing.
14.
<PAGE>
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- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION
WHERE SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO THE DATE HEREOF.
---------------------
TABLE OF CONTENTS
PAGE
----
Available Information.........................................................2
Incorporation of Certain Documents by Reference...............................2
Summary Information...........................................................3
The Offering..................................................................4
Risk Factors..................................................................5
The Company...................................................................9
Use of Proceeds...............................................................9
Dividend Policy...............................................................9
Selling Securityholders.......................................................10
Plan of Distribution..........................................................13
Legal Matters.................................................................14
Experts.......................................................................14
- --------------------------------------------------------------------------------
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2,896,226 SHARES
BIOCIRCUITS CORPORATION
COMMON STOCK
------------
PROSPECTUS
------------
April 29, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the Company in
connection with the sale, issuance and distribution of the securities being
registered, other than underwriting discounts and commissions. All amounts are
estimates except the SEC registration fee. None of these expenses will be paid
by the Selling Securityholders.
SEC Registration Fee . . . . . . . . . . . . $ 822.79
Printing and Engraving Expenses. . . . . . . 2,500.00
Legal Fees and Expenses. . . . . . . . . . . 10,000.00
Accounting Fees and Expenses . . . . . . . . 7,500.00
Total. . . . . . . . . . . . . . . . . . . . $ 20,822.79
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws include provisions to (i) eliminate the personal
liability of its directors for monetary damages resulting from breaches of their
fiduciary duty to the extent permitted by Section 102(b)(7) of the General
Corporation Law of Delaware (the "Delaware Law") and (ii) require the Registrant
to indemnify its directors and officers to the fullest extent permitted by
Section 145 of the Delaware Law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the
Delaware Law, a corporation generally has the power to indemnify its present and
former directors, officers, employees and agents against expenses incurred by
them in connection with any suit to which they are, or are threatened to be
made, a party by reason of their serving in such positions so long as they acted
in good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of a corporation, and, with respect to any criminal
action, they had no reasonable cause to believe their conduct was unlawful. The
Registrant believes that these provisions are necessary to attract and retain
qualified persons as directors and officers. These provisions do not eliminate
liability for breach of the director's duty of loyalty to the Registrant or its
stockholders, for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, for any transaction from which the
director derived an improper personal benefit or for any willful or negligent
payment of any unlawful dividend or any unlawful stock purchase agreement or
redemption.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its listed enterprises, provided such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Registrant and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The indemnification agreements also set forth certain procedures that will apply
in the event of a claim for indemnification thereunder.
II-1
<PAGE>
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation.(1)
3.2 Amended and Restated Bylaws.(2)
4.1 Specimen Stock Certificate.(1)
4.2 Common Stock Purchase Agreement, dated April 15, 1997, among
the Registrant and the Purchasers named therein.
4.3 Common Stock and Warrant Purchase Agreement, dated April 15,
1997, among the Registrant and the Purchasers named therein.
4.4 Form of Warrant issued pursuant to the Common Stock and
Warrant Purchase Agreement.
4.5 Form of Warrant issued to KMC Systems, Inc.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to 5.1.
24.1 Power of Attorney (included on signature page II-4).
- ----------------------
(1) Filed as an exhibit to the Registration Statement on Form S-3 (No.
33-93736), as amended, incorporated herein by reference.
(2) Filed as an exhibit to the Registration Statement on Form S-1 (No.
33-46587), as amended, and incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to provisions described in Item 15, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the
II-2
<PAGE>
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Sunnyvale, State of California, on April 28, 1997.
BIOCIRCUITS CORPORATION
By /s/ John Kaiser
--------------------------
John Kaiser
President, Chief Executive Officer
and Acting Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John Kaiser his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
/s/ John Kaiser
- ------------------------------ President, Chief Executive April 28, 1997
John Kaiser Officer and Acting Secretary
/s/ Donald B. Hawthorne
- ------------------------------ Vice President and Chief April 28, 1997
Donald B. Hawthorne Financial Officer
/s/ Robert Curry, Ph.D.
- ------------------------------ Director April 28, 1997
Robert Curry, Ph.D.
/s/ Patrick Latterell
- ------------------------------ Director April 28, 1997
Patrick Latterell
/s/ David Rubinfien
- ------------------------------ Director April 28, 1997
David Rubinfien
II-4
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBITS
3.1 Amended and Restated Certificate of Incorporation.(1)
3.2 Amended and Restated Bylaws.(2)
4.1 Specimen Stock Certificate.(1)
4.2 Common Stock Purchase Agreement, dated April 15, 1997, among
the Registrant and the Purchasers named therein.
4.3 Common Stock and Warrant Purchase Agreement, dated April 15,
1997, among the Registrant and the Purchasers named therein.
4.4 Form of Warrant issued pursuant to the Common Stock and
Warrant Purchase Agreement.
4.5 Form of Warrant issued to KMC Systems, Inc.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to 5.1.
24.1 Power of Attorney (included on signature page II-4).
- ----------------------
(1) Filed as an exhibit to the Registration Statement on Form S-3 (No.
33-93736), as amended, incorporated herein by reference.
(2) Filed as an exhibit to the Registration Statement on Form S-1 (No.
33-46587), as amended, and incorporated herein by reference.
<PAGE>
EXHIBIT 4.2
BIOCIRCUITS CORPORATION
COMMON STOCK PURCHASE AGREEMENT
APRIL 15, 1997
<PAGE>
NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY
NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL
BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
<PAGE>
COMMON STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 15th day of April, 1997 (the
"Effective Date"), by and among BIOCIRCUITS CORPORATION, a Delaware corporation
with its principal place of business at 1324 Chesapeake Terrace, Sunnyvale,
California 94089 (the "Company") and each of those entities, severally and not
jointly, listed as a Purchaser on the Schedule of Purchasers attached as
EXHIBIT A hereto. Such persons and entities are hereinafter collectively
referred to herein as "Purchasers" and each individually as a "Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly) hereby
agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has or before the First Closing (as
defined below) will have authorized the sale and issuance of up to 2,500,000
shares of its Common Stock (the "Common Stock").
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES.
a. SALE OF SHARES.
i. At each Closing (as defined in Section 3), the Company will sell
to each Purchaser, and each Purchaser will purchase from the Company, at a
purchase price of one dollar ($1.00) per share, the number of shares of Common
Stock (the "Shares") set forth next to such Purchaser's name on the Schedule of
Purchasers attached hereto as EXHIBIT A (the "Schedule of Purchasers").
b. SEPARATE AGREEMENT. Each Purchaser shall severally, and not jointly,
be liable for only the purchase of the Shares that appear on EXHIBIT A hereto
and that relate to such Purchaser. The Company's agreement with each of the
Purchasers is a separate agreement, and the sale of Shares to each of the
Purchasers is a separate sale.
SECTION 3. CLOSING AND DELIVERY.
a. CLOSINGS. The first closing of the purchase and sale of the Shares
pursuant to this Agreement (the "First Closing") shall occur with respect to the
first 21.25% of the total number of Shares to be purchased and sold hereunder at
the offices of Cooley Godward LLP, 5 Palo Alto Square, 3000 El Camino Real, Palo
Alto, California, on April 15, 1997 or on such other date and place as may be
agreed to by the Company and the Purchasers.
The second closing of the purchase and sale of the Shares pursuant to this
Agreement (the "Second Closing") shall occur with respect to 47.5% of the total
number of Shares to be purchased and sold hereunder within five (5) days
following satisfaction or waiver of each of the applicable closing conditions
set forth in Sections 7, 8 and 9, or as soon as practicable thereafter;
provided, however, that the Second Closing shall occur no later than July 8,
1997.
The third closing of the purchase and sale of the Shares pursuant to this
Agreement (the "Third Closing") shall occur with respect to the remaining 31.25%
Shares to be purchased and sold hereunder within five (5) days following
satisfaction or waiver of each of the applicable closing conditions set forth in
Sections 7, 8 and 9, or as soon as practicable thereafter; provided, however,
that the Third Closing shall occur no later than January 8, 1998.
The First Closing, the Second Closing, and the Third Closing shall be
referred to herein as the "Closings" and singularly as a "Closing" and the date
of each closing is referred to herein as a "Closing Date."
<PAGE>
The Company shall give at least three (3) business days prior written
notice of the Second Closing Date and of the Third Closing Date to the
Purchasers, in a manner provided for in Section 12 hereof, including the date,
time and location of the Closing. At or prior to each Closing, each Purchaser
shall execute any related agreements or other documents required to be executed
hereunder, dated as of the applicable Closing Date.
b. ISSUANCE OF THE SHARES AT THE CLOSING. At each Closing, the Company
shall cause to be issued to each Purchaser stock certificates registered in the
name of such Purchaser, or in such nominee name(s) as designated by such
Purchaser, representing the number of Shares to be purchased by such Purchaser
at such Closing as set forth in the Schedule of Purchasers. The Company shall
deliver such stock certificates to each Purchaser at the Closing or promptly
thereafter. The name(s) in which the stock certificates are to be issued to
each Purchaser are set forth in the Stock Certificate Questionnaire in the form
attached hereto as APPENDIX I, as completed by each Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto as
EXHIBIT B, the Company hereby represents and warrants to, and covenants with,
the Purchasers as follows:
a. ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to conduct its
business as it is currently being conducted.
b. DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENT. The
Company's execution, delivery and performance of this Agreement have been duly
authorized under Delaware law by all requisite corporate action by the Company,
and will not violate (i) any law, (ii) the Company's Amended and Restated
Certificate of Incorporation, as amended, (iii) the Bylaws of the Company,
(iv) the Rules of the Nasdaq National Market (including rules relating to
listing criteria), or (v) any provision of any material indenture, mortgage,
agreement, contract or other material instrument to which the Company is a party
or by which the Company or any of its properties or assets is bound as of the
date hereof, or result in a breach of or constitute (upon notice or lapse of
time or both) a default under any such indenture, mortgage, agreement, contract
or other material instrument or result in the creation or imposition of any
lien, security interest, mortgage, pledge, charge or other encumbrance, of any
material nature whatsoever, upon any properties or assets of the Company. Upon
the execution and delivery, and assuming the valid execution and delivery of
this Agreement by each of the Purchasers, this Agreement will constitute a valid
and binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Company in Section 10.3 hereof may be legally unenforceable.
c. ISSUANCE, SALE AND DELIVERY OF THE SHARES. When issued and paid for
in accordance with this Agreement, the Shares will be validly issued and
outstanding, fully paid and non-assessable. In reliance on the Purchasers'
representations set forth in Section 5 hereof, the Company represents and
warrants that, when issued and paid for in accordance with this Agreement, the
Shares will be issued in compliance with all applicable federal and state
securities laws and the applicable rules of the National Association of
Securities Dealers.
d. ADDITIONAL INFORMATION. The Company represents and warrants that the
information contained in the following documents, which the Company has
furnished to the Purchasers, or will furnish if requested by the Purchasers
prior to the Closing, is or will be true and correct in all material respects as
of their respective filing dates:
i. the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (without exhibits unless specifically requested);
ii. the Company's Quarterly Reports on Form 10-Q required to be filed
with the SEC for the three month periods ended March 31, 1996, June 30, 1996 and
September 30, 1996 (without exhibits unless specifically requested);
<PAGE>
iii. the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (without exhibits unless specifically requested) (to be
furnished when available, prior to the Second Closing), a draft of which has
been or will, upon request, be provided to the Purchasers prior to the First
Closing;
iv. Notice of Annual Meeting and Proxy Statement for the Company's
1996 Annual Meeting of Stockholders; and
v. Notice of Annual Meeting and Proxy Statement for the Company's
1997 Annual Meeting of Stockholders (to be furnished when available, prior to
the Second Closing).
In addition, the Company represents and warrants that any other information
provided by the Company to the Purchasers in writing in connection with the
transactions contemplated by this Agreement (the "Additional Written
Information") will not, as of the Closing Date, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein, or necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading (other than
information relating to the Placement Agent furnished by the Placement Agent
expressly for use in the Agreement as to which the Company makes no
representation or warranty); provided, however, that the Company makes no
representations with respect to any projections contained in the Additional
Written Information except with respect to any non-projected factual
information contained in such projections.
e. NO MATERIAL CHANGE. There has been no material adverse change in the
financial condition, results of operations, business or prospects of the Company
since December 31, 1996, except as described in the draft of the Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 described in
Section 4.4 hereof.
f. SEC REPORTS.
i. The Company has timely filed and will continue to timely file
with the Securities Exchange Commission (the "Commission") all reports ("SEC
Reports") required to be filed by it under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). All of the SEC Reports filed by or to be filed
by the Company comply or will comply in all material respects with the
requirements of the Exchange Act. None of the SEC Reports contains or will
contain, as of the respective date thereof, any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. All financial statements contained in
the SEC Reports have been prepared or will be prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period indicated ("GAAP"). Each balance sheet presents or will present fairly
in accordance with GAAP the financial position of the Company as of the date of
such balance sheet, and each statement of operations, of stockholders' equity
and of cash flows presents or will present fairly in accordance with GAAP the
results of operations, the stockholders' equity and the cash flows of the
Company for the periods then ended.
ii. No event has occurred since December 31, 1996 requiring the
filing of an SEC Report that has not heretofore been filed and furnished to the
Purchasers.
iii. The SEC Reports and this Agreement taken together as a whole will
not, as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein, or necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading (other than information relating to the Placement
Agent furnished by the Placement Agent expressly for use in the Agreement as to
which the Company makes no representation or warranty).
g. MAINTENANCE OF LISTING. For so long as the Company is obligated to
keep in effect the Registration Statements provided under Section 10 hereof, the
Company will use its best efforts to maintain its listing on The National Market
of The Nasdaq Stock Market or a national securities exchange, as defined in the
Exchange Act.
h. NO MATERIAL ADVERSE CHANGE WITH RESPECT TO BUSINESS PLAN. Since
April 6, 1997, there has been no material adverse change in the Company's
financial condition, results of operations or prospects, with respect to the
Company's 1997 Business Plan, dated April 6, 1997.
<PAGE>
i. REGISTRATION PURSUANT TO SECTION 10 HEREOF. To the Company's
knowledge, no fact or circumstance exists that will prevent the Company from
filing any Registration Statement required to be filed pursuant to Section 10
hereof.
j. SATISFACTION OF CLOSING CONDITIONS. The Company will use its best
efforts to cause the conditions to the Second Closing and the Third Closing set
forth in Section 9.2 and Section 9.3 hereof to be satisfied.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
a. INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each Purchaser, severally and not jointly, represents and warrants to and
covenants with the Company that:
i. Purchaser, taking into account the personnel and resources it can
practically bring to bear on the purchase of the Shares contemplated hereby,
either alone or together with the advice of such Purchaser's purchaser
representative, is knowledgeable, sophisticated and experienced in making, and
is qualified to make, decisions with respect to investments in shares presenting
an investment decision like that involved in the purchase of the Shares,
including investments in shares issued by the Company and Purchaser has received
all information requested by such Purchaser in connection with Purchaser's
decision to purchase the Shares.
ii. Purchaser is acquiring the Shares being acquired by Purchaser
pursuant to this Agreement in the ordinary course of its business and for its
own account for investment only and with no present intention of distributing
any of such Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares, except in compliance with
Section 5(c).
iii. Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares purchased hereunder
except in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), applicable blue sky laws, and the rules and regulations
promulgated thereunder.
iv. Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire and the Registration Questionnaire, attached hereto as
APPENDIX I and APPENDIX II, respectively, for use in preparation of the
Registration Statements to be filed by the Company, and the answers thereto are
true and correct to the best knowledge of Purchaser as of the date hereof and
will be true and correct as of the effective date of the applicable Registration
Statement (provided that Purchaser shall be entitled to update such information
by providing notice thereof to the Company prior to the effective date of such
Registration Statement).
v. Purchaser has, in connection with its decision to purchase the
Shares, relied with respect to the Company and its affairs solely upon the
information delivered to Purchaser as described in Sections 4.4 and 5(a) above
and the representations and warranties of the Company contained herein.
vi. Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
vii. Purchaser has full right, power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. Upon the execution and delivery of this
Agreement by Purchaser, this Agreement shall constitute a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Purchaser in Section 10.3 hereof may be legally unenforceable.
<PAGE>
b. VOTING AGREEMENT. To the extent applicable, Purchaser agrees to vote
any shares of the Company's capital stock held by Purchaser in favor of any
proposal to approve the issuance of the Shares in the Second Closing and Third
Closing. Purchaser understands that, in accordance with the requirements of the
Nasdaq National Market, the Shares issued in the First Closing will not be
counted toward any such approval.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein and in the certificates for the shares delivered pursuant
hereto shall survive the execution of this Agreement, the delivery to the
Purchasers of the Shares being purchased and the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT EACH CLOSING. The
Company's obligation to complete the sale and issuance of the Shares and deliver
shares of Common Stock to each Purchaser, individually, as set forth in the
Schedule of Purchasers shall be subject to the following conditions to the
extent not waived by the Company:
a. RECEIPT OF PAYMENT. The Company shall have received payment, by check
or wire transfer of immediately available funds, in the full amount of the
purchase price for the number of Shares being purchased by such Purchaser at
each Closing as set forth in the Schedule of Purchasers.
b. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by such Purchaser in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
c. COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by such Purchaser on or prior to the Closing
Date shall have been performed or complied with in all material respects.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT EACH CLOSING. Each
Purchaser's obligation to accept delivery of the Shares and to pay for the
Shares shall be subject to the following conditions to the extent not waived by
such Purchaser:
a. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 4 hereof shall be true and correct
when made, and shall be true and correct as of the Closing Date.
b. COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by the Company shall have been performed or
complied with in all material respects.
c. LEGAL OPINION. Purchasers shall have received from Cooley
Godward LLP, counsel to the Company, an opinion letter addressed to the
Purchasers, dated as of the Closing Date, in form and substance reasonably
satisfactory to the Purchasers or their counsel.
d. OFFICER'S CERTIFICATE. Purchasers shall have received a certificate
of the Company executed by the Chief Executive Officer of the Company, dated the
Closing Date, to the effect that the representations and warranties of the
Company set forth in Section 4 of this Agreement are true and correct as of the
date of this Agreement and as of the Closing Date, and the Company has satisfied
all the conditions to be performed or satisfied by the Company on or prior to
such Closing Date.
SECTION 9. CONDITIONS TO SECOND AND THIRD CLOSINGS. Each Purchaser's
obligation and, unless otherwise indicated, the Company's obligation to complete
the Second and Third Closings shall additionally be subject to the following
conditions to the extent not waived by the Company and such Purchaser:
a. NO SALE OF THE COMPANY. The Company shall not have entered into any
agreement for a sale of a majority of its outstanding capital stock, a
consolidation or merger with another entity, or a sale of substantially all of
the Company's assets (any of the foregoing, a "Change in Control").
<PAGE>
b. PLACEMENT OF GMP UNITS. With respect to the Second Closing, the
Company shall have installed in physicians' offices during the three month
period ended June 30, 1997 at least eighty-eight (88) GMP units of the IOS
system (instrument and disposable test cartridges) that were sold directly or
indirectly by the Company; provided, however, that the Company's obligation to
complete the Second Closing shall not be subject to this condition set forth in
this Section 9.2. With respect to the Third Closing, the Company shall have
installed in physicians' offices during the six month period ended December 30,
1997 at least two hundred thirty-five (235) GMP units of the IOS system
(instrument and disposable test cartridges) that were sold directly or
indirectly by the Company; provided, however, that the Company's obligation to
complete the Third Closing shall not be subject to this condition set forth in
this Section 9.2.
c. STOCKHOLDER APPROVAL. The Company's stockholders shall have approved
the sale of the Shares to be sold in the Second and Third Closing, to the extent
such approval is required by the Rules of the Nasdaq Stock Market.
SECTION 10. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
a. REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
i. Within two weeks of the First Closing Date, the Company shall
prepare and file with the Commission one or more registration statements in
order to register with the Commission the sale by the Purchasers, from time to
time, of the Shares issued in the First Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
ii. Within two weeks of the Second Closing Date, the Company shall
prepare and file with the Commission one or more registration statements in
order to register with the Commission the sale by the Purchasers, from time to
time, of the Shares issued in the Second Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
iii. Within two weeks of the Third Closing Date, the Company shall
prepare and file with the Commission one or more registration statements in
order to register with the Commission the sale by the Purchasers, from time to
time, of the Shares issued in the Third Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
iv. The Company shall use reasonable best efforts to prepare and file
with the Commission (i) such amendments and supplements to each such
Registration Statement and the prospectus used in connection therewith, (ii)
such SEC Reports and (iii) such other filings required by the Commission, as may
be necessary to keep each Registration Statement continuously effective until
the second anniversary of the Third Closing Date; provided, however, that in the
event of a Suspension Period (as defined below) or a Stand-Off Period (as
defined in Section 10.6 hereof), the Company shall extend the period of
effectiveness of such Registration Statement by the aggregate number of days of
each such Suspension Period or Stand-Off Period. The Company may suspend use of
a prospectus when it deems necessary, in its reasonable judgment, until such
time as the Company subsequently authorizes use of such prospectus (each such
period, including any time period during which a stop order issued by the
Commission is in effect with respect to such prospectus or related Registration
Statement, a "Suspension Period"). Upon the declaration of a Suspension Period,
the Company shall use reasonable best efforts to end the Suspension Period as
quickly as possible. Notwithstanding the foregoing, the Company shall not allow
a Suspension Period to continue for more than 60 days unless the Company shall
deliver to the Purchasers a second notice, which shall have the effect of
extending the Suspension Period by up to an additional 30 days. In no event
shall the Company extend a Suspension Period beyond such 90 day period. The
Company shall not under any circumstances be entitled to exercise its rights
under
<PAGE>
this subparagraph to effect a Suspension Period more than two times in any
12 month period. Each Purchaser agrees that such Purchaser will not sell any
Shares pursuant to a prospectus beginning at the time the Company gives such
Purchaser notice of the suspension of the prospectus and ending at the time the
Company gives such Purchaser notice of the termination of the Suspension Period.
Each Purchaser further agrees to promptly notify the Company of the sale of all
of such Purchaser's Shares.
v. In order to facilitate the public sale or other disposition of
all or any of the Shares by each Purchaser, the Company shall furnish to each
Purchaser with respect to the Shares registered under the Registration Statement
such number of copies of prospectuses and preliminary prospectuses as such
Purchaser reasonably requests in conformity with the requirements of the
Securities Act.
vi. The Company shall file documents required of the Company for blue
sky clearance in states specified in writing by each Purchaser; PROVIDED,
HOWEVER, that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented.
vii. Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers except as provided in the next sentence and under Section 13.8 below,
the Company shall bear all expenses (exclusive of underwriting discounts and
commissions) in connection with the procedures in paragraphs (a) through (e) of
this Section 10.1. The Company shall bear the expenses of reasonable fees and
disbursements of a single special counsel for the Purchasers (including any
purchasers pursuant to the Common Stock and Warrant Purchase Agreement of even
date herewith described in Section 13.9 hereof) reasonably acceptable to each of
the Purchasers in connection with each Registration Statement required to be
filed pursuant to this Section 10 not to exceed $15,000.
b. TRANSFER OF SHARES AFTER REGISTRATION. Each Purchaser agrees that
such Purchaser will not effect any disposition of the Shares that would
constitute a sale within the meaning of the Securities Act, except:
(1) pursuant to a Registration Statement, in which case such
Purchaser shall submit the certificates evidencing the Shares to the transfer
agent accompanied by a separate "Purchaser's Certificate" (A) in the form of
APPENDIX III attached hereto, (B) executed by such Purchaser or by an officer
of, or other authorized person designated by, such Purchaser, and (C) to the
effect that (1) the Shares have been sold in accordance with the Registration
Statement and (2) the requirement of delivering a current prospectus has been
satisfied; or
(2) in a transaction exempt from registration under the
Securities Act, in which case such Purchaser shall, prior to effecting such
disposition, submit to the Company an opinion of counsel in form and substance
reasonably satisfactory to the Company to the effect that the proposed
transaction is in compliance with the Securities Act.
c. INDEMNIFICATION. As used in this Section 10.3 the following terms
shall have the following respective meanings:
i. "Selling Stockholder" shall mean a Purchaser of Shares under this
Agreement, and any transferee of such a Purchaser who is entitled to resell
Shares pursuant to the Registration Statement;
ii. "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statements referred to in Section 10.1; and
iii. "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in a Registration
Statement a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Stockholder
(and each person, if any, who controls such Selling Stockholder within the
meaning of Section 15 of the Securities Act, and each officer and director
<PAGE>
of such Selling Stockholder and each broker or dealer to or through whom such
Selling Stockholder's Shares are sold) from and against any losses, claims,
damages or liabilities to which such Selling Stockholder (or such controlling
person, officer or director or broker or dealer, as the case may be) may become
subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon, any Untrue Statement on or after the effective date of a
Registration Statement, or arise out of any failure by the Company to fulfill
any undertaking included in a Registration Statement and the Company will
reimburse such Selling Stockholder (or such controlling person, officer or
director or broker or dealer, as the case may be) for any reasonable legal or
other expenses reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; PROVIDED, HOWEVER, that the Company
shall not be liable to such Selling Stockholder (or such controlling person,
officer or director or broker or dealer) in any such case to the extent that
such loss, claim, damage or liability arises out of, or is based upon, an Untrue
Statement made in such Registration Statement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Selling Stockholder (or such controlling person, officer or director or broker
or dealer), specifically for use in preparation of such Registration Statement,
or the failure of such Selling Stockholder to comply with the covenants and
agreements contained in Section 10.1 or 10.2 hereof respecting sale of the
Shares or any statement or omission in any prospectus that is corrected in any
subsequent prospectus that was delivered to the Selling Stockholder prior to the
pertinent sale or sales by the Selling Stockholder.
Each Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company who
signs a Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure to comply with the covenants and agreements contained in
Section 10.1 or 10.2 hereof respecting sale of the Shares, or any Untrue
Statement contained in a Registration Statement on or after the effective date
thereof if such Untrue Statement was made in reliance upon and in conformity
with written information furnished by or on behalf of such Purchaser
specifically for use in preparation of such Registration Statement, and such
Purchaser will reimburse the Company (or such officer, director or controlling
person), as the case may be, for any legal or other expenses reasonably incurred
in investigating, defending or preparing to defend any such action, proceeding
or claim; PROVIDED that in no event shall any indemnity by a Purchaser under
this Section 10.3 exceed the gross proceeds received by such Purchaser from the
sale of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 10.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; PROVIDED, HOWEVER, that if there exists or shall exist a
conflict of interest that would make it prejudicial, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; PROVIDED, HOWEVER, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
d. TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Subsections 5.1(c) and (d) or Section 10.1(c) and Section 10.2 upon
the transferability of the Shares shall cease and terminate as to any particular
number of the Shares when such Shares shall have been sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement covering such Shares or at such time as an opinion of
counsel satisfactory to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
<PAGE>
e. INFORMATION AVAILABLE. So long as a Registration Statement is
required to be effective pursuant to this Section 10 covering the resale of
Shares owned by the Purchasers, the Company will furnish to the Purchasers:
i. as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 120 days after the end of each
fiscal year of the Company), one copy of (i) its Annual Report to Stockholders
(which Annual Report shall contain financial statements audited in accordance
with generally accepted auditing standards certified by a national firm of
certified public accountants); (ii) its Annual Report on Form 10-K; (iii) its
quarterly reports on Form 10-Q (the foregoing, in each case, excluding
exhibits); and (iv) its current reports on Form 8-K, if any;
ii. upon the request of any Purchaser, all exhibits excluded by the
parenthetical to subparagraph (a)(iii) of this Section 10.5, in the form
generally available to the public; and
iii. upon the reasonable request of any Purchaser, an adequate number
of copies of prospectuses to supply to any other party requiring such
prospectuses.
f. MARKET STAND-OFF. If requested by the underwriters in any proposed
underwritten public offering by the Company of Common Stock, Purchasers, or any
assignees thereof or transferees who are affiliates thereof, will not sell any
of the Shares for up to 90 days following the effective date of the registration
statement relating to such public offering (each such time period a "Stand-Off
Period").
g. CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to promptly
notify the Company of any changes in the information set forth in a Registration
Statement regarding Purchaser or such Purchaser's plan of distribution set forth
in such Registration Statement.
SECTION 11. BROKER'S FEE. The Company and each Purchaser (severally and
not jointly) hereby represent that, except for amounts to be paid to Pacific
Growth Equities, Inc., as Placement Agent (the "Placement Agent") by the Company
as described in Section 13.8 hereof, there are no brokers or finders entitled to
compensation in connection with the sale of the Units, and shall indemnify each
other for any such fees for which they are responsible.
SECTION 12. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by confirmed
facsimile or mailed by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, and shall be
deemed given when so sent in the case of facsimile transmission, or when so
received in the case of mail or courier, and addressed as follows:
1. if to the Company, to:
Biocircuits Corporation
1324 Chesapeake Terrace
Sunnyvale, California 94089
Attention: John Kaiser
Facsimile: (408) 752-8792
with a copy so mailed to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
Attention: Deborah A. Marshall, Esq.
Facsimile: (415) 857-0663
<PAGE>
or to such other person at such other place as the Company shall
designate to the Purchasers in writing; and
ii. if to the Purchasers, at the address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
SECTION 13. MISCELLANEOUS.
a. WAIVERS AND AMENDMENTS. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least a
majority of the Shares.
b. HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
c. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
d. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents,
without regard to conflicts of law principles.
e. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
f. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
g. ENTIRE AGREEMENT. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
h. PAYMENT OF FEES AND EXPENSES. Subject to Section 10.1(g) hereof, each
of the Company and the Purchasers shall bear its own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby. (The transactions contemplated hereby and by the Common
Stock and Warrant Purchase Agreement described in Section 13.9 hereof are
jointly referred to herein as the "Offering"). The Purchasers understand and
acknowledge that the Company shall reimburse the Placement Agent for all
reasonable out-of-pocket expenses incurred by the Placement Agent in connection
with the Offering and the reasonable fees and expenses of Howard, Rice,
Nemerovski, Canady, Falk & Rabkin in connection with its acting as counsel to
the Placement Agent, in an amount up to $50,000 in the aggregate. Purchasers
acknowledge that the Placement Agent will receive a commission, to be paid by
the Company, equal to six percent (6%) of the purchase price of the Units or
shares of Common Stock sold in the Offering, except for any Shares sold to the
Sprout Group or any affiliate thereof, plus six percent (6%) of the exercise
price of any Warrants exercised. Purchasers further acknowledge that, in the
event that the First Closing takes place on or before April 15, 1997 and the
Second Closing does not take place as a result of a Change in Control, the
Placement Agent will receive an additional commission to be paid by the Company
equal to $360,000 minus the amount of any commission paid to the Placement Agent
in connection with the sale of Units or Shares in the First Closing (including
the first closing of the transactions described in Section 13.9 hereof). If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
<PAGE>
i. SIMULTANEOUS COMMON STOCK FINANCING. Purchasers acknowledge that the
Company intends to enter into a Common Stock and Warrant Purchase Agreement
pursuant to which the Company will issue and sell up to 5,500,000 Units at a
purchase price of $1 per Unit, with each Unit consisting of one (1) share of
Common Stock and one (1) Warrant to purchase one (1) share of Common Stock at an
exercise price of $.75 per share.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION
Purchaser:
-------------------------------
By: /s/ John Kaiser
--------------------------------
John Kaiser By:
Chief Executive Officer --------------------------------------
Address: 1324 Chesapeake Terrace Title:
Sunnyvale, CA 94089 -----------------------------------
Facsimile: (408) 752-8792 Address:
---------------------------------
-----------------------------------------
-----------------------------------------
Facsimile:
-------------------------------
Total Investment Amount: $
---------------
First Closing Investment Amount (21.25%
of total amount): $
----------------------
COMMON STOCK PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sprout Capital VII, L.P.
-------------------------------
By: DLJ Capital Corporation
By: --------------------------------------
-------------------------------
John Kaiser Title: Managing General Partner
Chief Executive Officer -----------------------------------
By: /s/ Robert E. Curry
Address: 1324 Chesapeake Terrace --------------------------------------
Sunnyvale, CA 94089
Title: Attorney-In-Fact
Facsimile: (408) 752-8792 -----------------------------------
Address: Sprout Group 4-270
---------------------------------
3000 Sand Hill Road
-----------------------------------------
Menlo Park, CA 94025
-----------------------------------------
Facsimile: (415) 854-8779
-----------------------------------------
Purchaser: ML Venture Partners, II, L.P.
-------------------------------
By: DLJ Capital Management Corporation
--------------------------------------
Title: Sub-Manager
-----------------------------------
By: /s/ Robert E. Curry
--------------------------------------
Title: Authorized Officer
-----------------------------------
Purchaser: Sprout Capital VI, L.P.
-------------------------------
By: DLJ Capital Corporation
--------------------------------------
Title: Managing General Partner
-----------------------------------
By: /s/ Robert E. Curry
--------------------------------------
Title: Attorney-In-Fact
-----------------------------------
Purchaser: DLJ Capital Corporation
-------------------------------
By: /s/ Robert E. Curry
--------------------------------------
Title: Attorney-In-Fact
-----------------------------------
COMMON STOCK PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION
Purchaser: Irwin Friedman
------------------------------
By:
-------------------------- By: /s/ Irwin Friedman
John Kaiser --------------------------------------
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title:
Sunnyvale, CA 94089 -----------------------------------
Address: 29 Fawn Drive
---------------------------------
Facsimile: (408) 752-8792
Livingston, N.J. 07039
-----------------------------------------
-----------------------------------------
Facsimile: (201) 535-1282
-------------------------------
Total Investment Amount: $ 250,000.00
--------------
First Closing Investment Amount (21.25%
of total amount): $ 53,125.00
---------------------
COMMON STOCK PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION
Purchaser: Lambda Financial Service
Corporation
------------------------------
By:
-------------------------- By: /s/ Alfred Teo
John Kaiser --------------------------------------
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: Chief Executive Officer
Sunnyvale, CA 94089 -----------------------------------
Address: P.O. Box 808
---------------------------------
Facsimile: (408) 752-8792
Lyndhurst, N.J. 07071
-----------------------------------------
-----------------------------------------
Facsimile: (201) 935-8257
-------------------------------
Total Investment Amount: $ 250,000.00
--------------
First Closing Investment Amount (21.25%
of total amount): $ 53,125.00
---------------------
COMMON STOCK PURCHASE AGREEMENT
<PAGE>
EXHIBIT A
SCHEDULE OF PURCHASERS
<TABLE>
<CAPTION>
FIRST CLOSING SECOND CLOSING THIRD TOTAL
CLOSING
<S> <C> <C> <C> <C>
ML Venture Partners, II, L.P. $106,250 $237,500 $156,250 $500,000
Sprout Capital VI, L.P. $104,142 $232,788 $153,150 $490,080
Sprout Capital VII, L.P. $198,116 $442,847 $291,347 $932,310
DLJ Capital Corporation $16,492 $36,865 $24,253 $77,610
Irwin Friedman $53,125 $118,750 $78,125 $250,000
Lambda Financial Service Corporation $53,125 $118,750 $78,125 $250,000
TOTAL: $531,250 $1,187,500 $781,250 $2,500,000
</TABLE>
<PAGE>
EXHIBIT B
SCHEDULE OF EXCEPTIONS
THE INCLUSION OF ANY MATTER AS PART OF THIS SCHEDULE SHOULD NOT BE
INTERPRETED AS INDICATING THAT THE COMPANY HAS DETERMINED THAT SUCH MATTER IS
NECESSARILY MATERIAL TO THE PURCHASER.
SECTIONS 4.4; 4.5 AND 4.6
ADDITIONAL INFORMATION; NO MATERIAL CHANGE; SEC REPORTS
In accordance with Rule 12b-25 promulgated under the Securities Exchange
Act of 1934, as amended, the Company intends to file its Annual Report on
Form 10-K for the fiscal year ended December 31, 1996 not later than April 15,
1997.
<PAGE>
SUMMARY INSTRUCTION SHEET FOR PURCHASER
(TO BE READ IN CONJUNCTION WITH THE ENTIRE
PURCHASE AGREEMENT WHICH FOLLOWS)
(a) Complete the following items on the Purchase Agreement, copies of which are
attached hereto for your convenience:
(i) Signature Page.
(ii) Appendix I - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire.
(iii) Appendix II - Registration Statement Questionnaire:
Provide the information requested by the Registration Statement
Questionnaire.
(iv) Return the properly completed and signed Purchase Agreement
including the properly completed and signed Appendix I and
Appendix II to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Attn: Suzanne A. Barr
Tel: (415) 843-5000
Fax: (415) 857-0663
PLEASE RETURN THE COMPLETED AND SIGNED PURCHASE AGREEMENT BY
FACSIMILE WITH ALL OF THE ORIGINAL DOCUMENTS FOLLOWING BY
OVERNIGHT COURIER OR MAIL.
(b) The purchase price for the Shares may be paid by wire transfer as follows:
WIRING INSTRUCTIONS
Cupertino National Bank
3 Palo Alto Square, #150
Palo Alto, CA 94306
Bank Contact Person: Ms. Terry Dickmeyer at (415) 852-0300
Routing #: 121141152
Account Name: Biocircuits Corporation
Account: 003104087
(c) Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective as described in the Purchase
Agreement, each Purchaser:
a) must deliver a current prospectus, and annual, quarterly and
current reports of the Company (Forms 10-K, 10-Q and 8-K) to
the buyer (prospectuses, and annual, quarterly and current
reports may be obtained from the Company at the Purchaser's
request); and
b) must send a letter in the form of Appendix III to the Company
so that the Shares may be properly transferred.
<PAGE>
APPENDIX I
BIOCIRCUITS CORPORATION
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares
are to be registered in (this is
the name that will appear on
your stock certificate(s). You
may use a nominee name if
appropriate: -----------------------------------
2. The relationship between the -----------------------------------
Purchaser of the Shares and the
Registered Holder listed in
response to item 1 above:
3. The mailing address of the
Registered Holder listed in
response to item 1 above: -----------------------------------
-----------------------------------
-----------------------------------
4. The Social Security Number or
Tax Identification Number of the
Registered Holder listed in the
response to item 1 above: -----------------------------------
Signature:
-----------------------------------
Print Name:
-----------------------------
Title:
-----------------------------
<PAGE>
APPENDIX II
BIOCIRCUITS CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the following information, as of April 7, 1997:
(a) Number of shares you are purchasing which are to be included in
the Registration Statement: _________________.
(b) Number of shares of the Company's Common Stock and Series A
Preferred Stock (excluding the shares you are purchasing) that
you own:_________________ (Common Stock); ______________
(Preferred Stock).
(c) Number of shares of the Company's Common and Preferred Stock
subject to warrants you own:________________ (Common Stock
Warrants); ____________ (Preferred Stock Warrants).
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the Proxy Statement in connection with the
Company's most recent Annual Meeting of Stockholders?
Yes ___ No ___
If yes, please indicate the nature of any such relationships: _____________
_______________________________________________________________________________
4. In what states do you request the Company qualify the shares for resale
(i.e. in what states do you plan to sell the Shares)? _________________________
Signature: ___________________________________
Print Name: ___________________________________
Title: ___________________________________
<PAGE>
APPENDIX III
CERTIFICATE OF SUBSEQUENT SALE
The undersigned, duly authorized by ____________________________, hereby
certifies (1) that ___________________________ is the Purchaser of the Shares
evidenced by Common Stock Certificate No. ______ for _________________ shares (A
COPY OF WHICH, FRONT AND BACK, IS ATTACHED HERETO), (2) that said Purchaser sold
__________________ of such Shares on _________________ in accordance with
registration statement number ______________________ and (3) that the
requirement of delivering a current prospectus and current annual, quarterly and
reports (Forms 10-K, 10-Q, and 8-K) by the Company has been complied with in
connection with such sale.
PRINT OR TYPE:
Name of Purchaser
(Individual or Institution)
selling the Shares: ------------------------------
Name of Individual representing
Purchaser selling the Shares
(if an Institution): ------------------------------
Title of Individual representing
Purchaser selling the Shares
(if an Institution): ------------------------------
SIGNATURE BY:
Individual Purchaser selling the
Shares or Individual representing
Purchaser selling the Shares: ------------------------------
<PAGE>
EXHIBIT 4.3
BIOCIRCUITS CORPORATION
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
APRIL 15, 1997
<PAGE>
NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL
BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
<PAGE>
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 15th day of April, 1997 (the
"Effective Date"), by and among BIOCIRCUITS CORPORATION, a Delaware corporation
with its principal place of business at 1324 Chesapeake Terrace, Sunnyvale,
California 94089 (the "Company") and each of those persons and entities,
severally and not jointly, listed as a Purchaser on the Schedule of Purchasers
attached as EXHIBIT A hereto. Such persons and entities are hereinafter
collectively referred to herein as "Purchasers" and each individually as a
"Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly) hereby
agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES. Subject to the
terms and conditions of this Agreement, the Company has or before the First
Closing (as defined below) will have authorized the sale and issuance of (a) up
to 5,500,000 shares of its Common Stock (the "Common Stock") and (b) Warrants,
each in substantially the form attached hereto as EXHIBIT B (each a "Warrant"
and collectively the "Warrants"), to purchase up to 5,500,000 shares (the
"Warrant Shares") of the Company's Common Stock. The shares of Common Stock
sold hereunder and the Common Stock issuable upon exercise of the Warrants
together shall be referred to herein as the "Shares." The Shares and the
Warrants shall be referred to herein as the "Securities."
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES.
2.1 SALE OF UNITS.
(a) At each Closing (as defined in Section 3), the Company will sell
to each Purchaser, and each Purchaser will purchase from the Company, at a
purchase price of one dollar ($1.00) per "Unit," the number of "Units" set forth
below such Purchaser's name on the signature page for Purchaser attached hereto,
as reflected on the Schedule of Purchasers attached hereto as EXHIBIT A (the
"Schedule of Purchasers"). As used herein, a Unit is comprised of one share of
Common Stock and one warrant to purchase one share of Common Stock.
2.2 SEPARATE AGREEMENT. Each Purchaser shall severally, and not jointly,
be liable for only the purchase of the Units that appear on EXHIBIT A hereto and
that relate to such Purchaser. The Company's agreement with each of the
Purchasers is a separate agreement, and the sale of Units to each of the
Purchasers is a separate sale.
SECTION 3. CLOSING AND DELIVERY.
3.1 CLOSINGS. The first closing of the purchase and sale of the Units
pursuant to this Agreement (the "First Closing") shall occur with respect to
21.25% of the total number of Units to be sold and purchased hereunder at the
offices of Cooley Godward LLP, 5 Palo Alto Square, 3000 El Camino Real, Palo
Alto, California, on April 15, 1997 or on such other date and place as may be
agreed to by the Company and the Purchasers.
The second closing of the purchase and sale of the Units pursuant to this
Agreement (the "Second Closing") shall occur with respect to the remaining
78.75% of the Units within five (5) days following satisfaction or waiver of
each of the closing conditions set forth in Sections 7, 8 and 9, or as soon as
practicable thereafter; provided, however, that the Second Closing shall occur
no later than July 8, 1997.
The First Closing and the Second Closing shall be referred to herein as the
"Closings" and singularly as a "Closing" and the date of each closing is
referred to herein as a "Closing Date."
<PAGE>
The Company shall give at least three (3) business days prior written
notice of the Second Closing Date to the Purchasers, in a manner provided for in
Section 12 hereof, including the date, time and location of the Closing. At or
prior to each Closing, each Purchaser shall execute any related agreements or
other documents required to be executed hereunder, dated as of the appropriate
Closing Date.
3.2 ISSUANCE OF THE UNITS AT THE CLOSING. At each Closing, the Company
shall cause to be issued to each Purchaser stock certificates and Warrants
registered in the name of such Purchaser, or in such nominee name(s) as
designated by such Purchaser, representing the number of shares of Common Stock
and Warrants to be purchased by such Purchaser at such Closing as set forth in
the Schedule of Purchasers. The Company shall deliver such stock certificates
and Warrants to each Purchaser at the Closing or promptly thereafter. The
name(s) in which the stock certificates and Warrants are to be issued to each
Purchaser are set forth in the Stock Certificate and Warrant Questionnaire in
the form attached hereto as APPENDIX I, as completed by each Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto as
EXHIBIT C, the Company hereby represents and warrants to, and covenants with,
the Purchasers as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to conduct its
business as it is currently being conducted.
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENT. The
Company's execution, delivery and performance of this Agreement have been duly
authorized under Delaware law by all requisite corporate action by the Company,
and will not violate (i) any law, (ii) the Company's Amended and Restated
Certificate of Incorporation, as amended, (iii) the Bylaws of the Company,
(iv) the Rules of the Nasdaq National Market (including rules relating to
listing criteria), or (v) any provision of any material indenture, mortgage,
agreement, contract or other material instrument to which the Company is a party
or by which the Company or any of its properties or assets is bound as of the
date hereof, or result in a breach of or constitute (upon notice or lapse of
time or both) a default under any such indenture, mortgage, agreement, contract
or other material instrument or result in the creation or imposition of any
lien, security interest, mortgage, pledge, charge or other encumbrance, of any
material nature whatsoever, upon any properties or assets of the Company. Upon
the execution and delivery, and assuming the valid execution and delivery of
this Agreement by each of the Purchasers, this Agreement will constitute a valid
and binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Company in Section 10.3 hereof may be legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES AND WARRANTS. When issued
and paid for in accordance with this Agreement or, if applicable, the Warrant,
the Securities will be validly issued and outstanding, fully paid and non-
assessable. In reliance on the Purchasers' representations set forth in
Section 5 hereof, the Company represents and warrants that, when issued and paid
for in accordance with this Agreement or, if applicable, the Warrant, the Shares
and the Warrants will be issued in compliance with all applicable federal and
state securities laws and the applicable rules of the National Association of
Securities Dealers. The Company agrees that, at all times, there shall be
reserved for issuance and delivery upon exercise of the Warrants all shares of
its Common Stock or other shares of capital stock of the Company from time to
time issuable upon exercise of the Warrants.
4.4 ADDITIONAL INFORMATION. The Company represents and warrants that the
information contained in the following documents, which the Company has
furnished to the Purchasers, or will furnish if requested by the Purchasers
prior to the Closing, is or will be true and correct in all material respects as
of their respective filing dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (without exhibits unless specifically requested);
<PAGE>
(b) the Company's Quarterly Reports on Form 10-Q required to be filed
with the SEC for the three month periods ended March 31, 1996, June 30, 1996 and
September 30, 1996 (without exhibits unless specifically requested);
(c) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (without exhibits unless specifically requested) (to be
furnished when available, prior to the Second Closing), a draft of which has
been or will, upon request, be provided to Purchasers prior to the First
Closing;
(d) Notice of Annual Meeting and Proxy Statement for the Company's
1996 Annual Meeting of Stockholders; and
(e) Notice of Annual Meeting and Proxy Statement for the Company's
1997 Annual Meeting of Stockholders (to be furnished when available, prior to
the Second Closing).
In addition, the Company represents and warrants that any other information
provided by the Company to the Purchasers in writing in connection with the
transactions contemplated by this Agreement (the "Additional Written
Information") will not, as of the Closing Date, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein, or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (other than information
relating to the Placement Agent furnished by the Placement Agent expressly for
use in the Agreement as to which the Company makes no representation or
warranty); provided, however, that the Company makes no representations with
respect to any projections contained in the Additional Written Information
except with respect to any non-projected factual information contained in such
projections.
4.5 NO MATERIAL CHANGE. There has been no material adverse change in the
financial condition, results of operations, business or prospects of the Company
since December 31, 1996, except as described in the draft of the Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 described in Section
4.4(c) hereof.
4.6 SEC REPORTS.
(a) The Company has timely filed and will continue to timely file
with the Securities and Exchange Commission (the "Commission") all reports ("SEC
Reports") required to be filed by it under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). All of the SEC Reports filed by or to be filed
by the Company comply or will comply in all material respects with the
requirements of the Exchange Act. None of the SEC Reports contains or will
contain, as of the respective date thereof, any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. All financial statements contained in
the SEC Reports have been prepared or will be prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period indicated ("GAAP"). Each balance sheet presents or will present fairly
in accordance with GAAP the financial position of the Company as of the date of
such balance sheet, and each statement of operations, of stockholders' equity
and of cash flows presents or will present fairly in accordance with GAAP the
results of operations, the stockholders' equity and the cash flows of the
Company for the periods then ended.
(b) No event has occurred since December 31, 1996 requiring the
filing of an SEC Report that has not heretofore been filed and furnished to the
Purchasers.
(c) The SEC Reports and this Agreement taken together as a whole will
not, as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein, or necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading (other than information relating to the Placement
Agent furnished by the Placement Agent expressly for use in the Agreement as to
which the Company makes no representation or warranty).
<PAGE>
4.7 MAINTENANCE OF LISTING. For so long as the Company is obligated to
keep in effect the Registration Statements provided under Section 10 hereof, the
Company will use its best efforts to maintain its listing on The National Market
of The Nasdaq Stock Market or a national securities exchange, as defined in the
Exchange Act.
4.8 NO MATERIAL ADVERSE CHANGE WITH RESPECT TO BUSINESS PLAN. Since April
6, 1997, there has been no material adverse change in the Company's financial
condition, results of operations or prospects with respect to the Company's 1997
Business Plan, dated April 6, 1997.
4.9 REGISTRATION PURSUANT TO SECTION 10 HEREOF. To the Company's
knowledge, no fact or circumstance exists that will prevent the Company from
filing any Registration Statement required to be filed pursuant to Section 10
hereof.
4.10 SATISFACTION OF CLOSING CONDITIONS. The Company will use its best
efforts to cause the conditions to the Second Closing set forth in Section 9.2
and Section 9.3 hereof to be satisfied.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
Each Purchaser, severally and not jointly, represents and warrants to and
covenants with the Company that:
5.1 INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Purchaser, taking into account the personnel and resources it can
practically bring to bear on the purchase of the Securities contemplated hereby,
either alone or together with the advice of such Purchaser's purchaser
representative, is knowledgeable, sophisticated and experienced in making, and
is qualified to make, decisions with respect to investments in shares presenting
an investment decision like that involved in the purchase of the Securities,
including investments in Securities issued by the Company and Purchaser has
received all information requested by such Purchaser in connection with
Purchaser's decision to purchase the Securities.
(b) Purchaser is acquiring the Securities being acquired by Purchaser
pursuant to this Agreement in the ordinary course of its business and for its
own account for investment only and with no present intention of distributing
any of such Securities or any arrangement or understanding with any other
persons regarding the distribution of such Securities, except in compliance with
Section 5(c).
(c) Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Securities purchased hereunder
except in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), applicable blue sky laws, and the rules and regulations
promulgated thereunder.
(d) Purchaser has completed or caused to be completed the Stock
Certificate and Warrant Questionnaire and the Registration Questionnaire,
attached hereto as APPENDIX I and APPENDIX II, respectively, for use in
preparation of the Registration Statements to be filed by the Company, and the
answers thereto are true and correct to the best knowledge of Purchaser as of
the date hereof and will be true and correct as of the effective date of the
applicable Registration Statement (provided that Purchaser shall be entitled to
update such information by providing notice thereof to the Company prior to the
effective date of such Registration Statement).
(e) Purchaser has, in connection with its decision to purchase the
Securities, relied with respect to the Company and its affairs solely upon the
information delivered to Purchaser as described in Sections 4.4 and 5(a) above
and the representations and warranties of the Company contained herein.
(f) Purchaser is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act.
(g) Purchaser has full right, power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution,
<PAGE>
delivery and performance of this Agreement. Upon the execution and delivery of
this Agreement by Purchaser, this Agreement shall constitute a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Purchaser in Section 10.3 hereof may be legally unenforceable.
5.2 VOTING AGREEMENT. To the extent applicable, Purchaser agrees to vote
any shares of the Company's capital stock held by Purchaser in favor of any
proposal to approve the issuance of the Shares in the Second Closing or the
issuance of the Warrant Shares. Purchaser understands that, in accordance with
the requirements of the Nasdaq National Market, the Shares issued in the First
Closing will not be counted toward any such approval.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein and in the certificates for the securities delivered
pursuant hereto shall survive the execution of this Agreement, the delivery to
the Purchasers of the Securities being purchased and the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT EACH CLOSING. The
Company's obligation to complete the sale and issuance of the Securities and
deliver shares of Common Stock and Warrants to each Purchaser, individually, as
set forth in the Schedule of Purchasers shall be subject to the following
conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Company shall have received payment, by check
or wire transfer of immediately available funds, in the full amount of the
purchase price for the number of Units being purchased by such Purchaser at each
Closing as set forth in the Schedule of Purchasers.
7.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by such Purchaser in Section 5 hereof shall be true and correct
when made, and shall be true and correct as of the Closing Date.
7.3 COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by such Purchaser on or prior to the Closing
Date shall have been performed or complied with in all material respects.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT EACH CLOSING. Each
Purchaser's obligation to accept delivery of the Units and to pay for the
securities evidenced thereby shall be subject to the following conditions to the
extent not waived by such Purchaser:
8.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 4 hereof shall be true and correct
when made, and shall be true and correct as of the Closing Date.
8.2 COVENANTS PERFORMED. All covenants, agreements and conditions
contained herein to be performed by the Company shall have been performed or
complied with in all material respects.
8.3 LEGAL OPINION. Purchasers shall have received from Cooley Godward
LLP, counsel to the Company, an opinion letter addressed to the Purchasers,
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Purchasers or their counsel.
8.4 OFFICER'S CERTIFICATE. Purchasers shall have received a certificate
of the Company executed by the Chief Executive Officer of the Company, dated the
Closing Date, to the effect that the representations and warranties of the
Company set forth in Section 4 of this Agreement are true and correct as of the
date of this Agreement and as of the Closing Date, and the Company has satisfied
all the conditions to be performed or satisfied by the Company on or prior to
such Closing Date.
<PAGE>
SECTION 9. CONDITIONS TO SECOND CLOSING. Each Purchaser's obligation
and, unless otherwise indicated, the Company's obligation to complete the Second
Closing shall additionally be subject to the following conditions to the extent
not waived by the Company and such Purchaser:
9.1 NO SALE OF THE COMPANY. The Company shall not have entered into any
agreement for a sale of a majority of its outstanding capital stock, a
consolidation or merger with another entity, or a sale of substantially all of
the Company's assets (any of the foregoing, a "Change in Control").
9.2 PLACEMENT OF GMP UNITS. The Company shall have installed in
physicians' offices during the three month period ended June 30, 1997 at least
eighty-eight (88) GMP units of the IOS system (instrument and disposable test
cartridges) that were sold directly or indirectly by the Company; provided,
however, that the Company's obligation to complete the Second Closing shall not
be subject to this condition set forth in this Section 9.2.
9.3 STOCKHOLDER APPROVAL. The Company's stockholders shall have approved
the sale of the Shares to be sold in the Second Closing, to the extent such
approval is required by the Rules of the Nasdaq Stock Market.
SECTION 10. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
10.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
(a) Within two weeks of the First Closing Date, the Company shall
prepare and file with the Commission one or more registration statements in
order to register with the Commission the sale by the Purchasers, from time to
time, of (i) the Shares issued in the First Closing and (ii) the Warrant Shares
underlying the Warrants issued in the First Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
(b) Within two weeks of the Second Closing Date, the Company shall
prepare and file with the Commission one or more registration statements in
order to register with the Commission the sale by the Purchasers, from time to
time, of (i) the Shares issued in the Second Closing and (ii) the Warrant Shares
underlying the Warrants issued in the Second Closing for sale pursuant to such
registration statements (a "Registration Statement"). The Company shall use its
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter. Promptly after filing any such Registration Statement,
the Company will furnish to the Purchasers a copy of such Registration
Statement.
(c) The Company shall use reasonable best efforts to prepare and file
with the Commission (i) such amendments and supplements to each such
Registration Statement and the prospectus used in connection therewith, (ii)
such SEC Reports and (iii) such other filings required by the Commission, as may
be necessary to keep each Registration Statement continuously effective until
the second anniversary of the first date on which no Warrants remain unexercised
or unexpired or until the date on which no Shares registered on such
Registration Statement are outstanding or issuable and remain unsold pursuant to
such Registration Statement; provided, however, that in the event of a
Suspension Period (as defined below) or a Stand-Off Period (as defined in
Section 10.6 hereof), the Company shall extend the period of effectiveness of
such Registration Statement by the aggregate number of days of each such
Suspension Period or Stand-Off Period. The Company may suspend use of a
prospectus when it deems necessary, in its reasonable judgment, until such time
as the Company subsequently authorizes use of such prospectus (each such period,
including any time period during which a stop order issued by the Commission is
in effect with respect to such prospectus or related Registration Statement, a
"Suspension Period"). Upon the declaration of a Suspension Period, the Company
shall use reasonable best efforts to end the Suspension Period as quickly as
possible. Notwithstanding the foregoing, the Company shall not allow a
Suspension Period to continue for more than 60 days unless the Company shall
deliver to the Purchasers a second notice, which shall have the effect of
extending the Suspension Period by up to an additional 30 days. In no event
shall the Company extend a Suspension Period beyond such 90 day period. The
Company shall not under any circumstances be entitled to exercise its rights
under this subparagraph to effect a Suspension Period more than two times in any
12 month period. Each Purchaser agrees that
<PAGE>
such Purchaser will not sell any Shares pursuant to a prospectus beginning at
the time the Company gives such Purchaser notice of the suspension of the
prospectus and ending at the time the Company gives such Purchaser notice of the
termination of the Suspension Period. Each Purchaser further agrees to promptly
notify the Company of the sale of all of such Purchaser's Securities.
(d) In order to facilitate the public sale or other disposition of
all or any of the Shares by each Purchaser, the Company shall furnish to each
Purchaser with respect to the Shares registered under the Registration Statement
such number of copies of prospectuses and preliminary prospectuses as such
Purchaser reasonably requests in conformity with the requirements of the
Securities Act.
(e) The Company shall file documents required of the Company for blue
sky clearance in states specified in writing by each Purchaser; PROVIDED,
HOWEVER, that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented.
(f) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers except as provided in the next sentence and under Section 13.8 below,
the Company shall bear all expenses (exclusive of underwriting discounts and
commissions) in connection with the procedures in paragraphs (a) through (e) of
this Section 10.1. The Company shall bear the expenses of reasonable fees and
disbursements of a single special counsel for the Purchasers (including any
purchasers pursuant to the Common Stock Purchase Agreement of even date herewith
described in Section 13.9 hereof) reasonably acceptable to each of the
Purchasers in connection with each Registration Statement required to be filed
pursuant to this Section 10 not to exceed $15,000.
10.2 TRANSFER OF SECURITIES AFTER REGISTRATION. Each Purchaser agrees that
such Purchaser will not effect any disposition of the Shares or the Warrants
that would constitute a sale within the meaning of the Securities Act, except:
(i) pursuant to a Registration Statement, in which case such
Purchaser shall submit the certificates evidencing the Shares to the transfer
agent accompanied by a separate "Purchaser's Certificate" (A) in the form of
APPENDIX III attached hereto, (B) executed by such Purchaser or by an officer
of, or other authorized person designated by, such Purchaser, and (C) to the
effect that (1) the Shares have been sold in accordance with the Registration
Statement and (2) the requirement of delivering a current prospectus has been
satisfied; or
(ii) in a transaction exempt from registration under the
Securities Act, in which case such Purchaser shall, prior to effecting such
disposition, submit to the Company an opinion of counsel in form and substance
reasonably satisfactory to the Company to the effect that the proposed
transaction is in compliance with the Securities Act.
10.3 INDEMNIFICATION. As used in this Section 10.3 the following terms
shall have the following respective meanings:
(a) "Selling Stockholder" shall mean a Purchaser of Securities under
this Agreement, and any transferee of such a Purchaser who is entitled to resell
Shares pursuant to a Registration Statement;
(b) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statements referred to in Section 10.1; and
(c) "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in a Registration
Statement a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Stockholder
(and each person, if any, who controls such Selling Stockholder within the
meaning of Section 15 of the Securities Act, and each officer and director
<PAGE>
of such Selling Stockholder and each broker or dealer to or through whom such
Selling Stockholder's Shares are sold) from and against any losses, claims,
damages or liabilities to which such Selling Stockholder (or such controlling
person, officer or director or broker or dealer, as the case may be) may become
subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon, any Untrue Statement on or after the effective date of a
Registration Statement, or arise out of any failure by the Company to fulfill
any undertaking included in a Registration Statement and the Company will
reimburse such Selling Stockholder (or such controlling person, officer or
director or broker or dealer, as the case may be) for any reasonable legal or
other expenses reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; PROVIDED, HOWEVER, that the Company
shall not be liable to such Selling Stockholder (or such controlling person,
officer or director or broker or dealer) in any such case to the extent that
such loss, claim, damage or liability arises out of, or is based upon, an Untrue
Statement made in such Registration Statement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Selling Stockholder (or such controlling person, officer or director or broker
or dealer), specifically for use in preparation of such Registration Statement,
or the failure of such Selling Stockholder to comply with the covenants and
agreements contained in Section 10.1 or 10.2 hereof respecting sale of the
Shares or any statement or omission in any prospectus that is corrected in any
subsequent prospectus that was delivered to the Selling Stockholder prior to the
pertinent sale or sales by the Selling Stockholder.
Each Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company who
signs a Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure to comply with the covenants and agreements contained in
Section 10.1 or 10.2 hereof respecting sale of the Shares, or any Untrue
Statement contained in a Registration Statement on or after the effective date
thereof if such Untrue Statement was made in reliance upon and in conformity
with written information furnished by or on behalf of such Purchaser
specifically for use in preparation of such Registration Statement, and such
Purchaser will reimburse the Company (or such officer, director or controlling
person), as the case may be, for any legal or other expenses reasonably incurred
in investigating, defending or preparing to defend any such action, proceeding
or claim; PROVIDED that in no event shall any indemnity by a Purchaser under
this Section 10.3 exceed the gross proceeds received by such Purchaser from the
sale of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 10.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; PROVIDED, HOWEVER, that if there exists or shall exist a
conflict of interest that would make it prejudicial, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; PROVIDED, HOWEVER, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
10.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Subsections 5.1(c) and (d) or Section 10.1(c) and Section 10.2 upon
the transferability of the Shares shall cease and terminate as to any particular
number of the Shares when such Shares shall have been sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement covering such Shares or at such time as an opinion of
counsel satisfactory to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
<PAGE>
10.5 INFORMATION AVAILABLE. So long as a Registration Statement is
required to be effective pursuant to this Section 10 covering the resale of
Shares owned by the Purchasers, the Company will furnish to the Purchasers:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 120 days after the end of each
fiscal year of the Company), one copy of (i) its Annual Report to Stockholders
(which Annual Report shall contain financial statements audited in accordance
with generally accepted auditing standards certified by a national firm of
certified public accountants); (ii) its Annual Report on Form 10-K; (iii) its
quarterly reports on Form 10-Q (the foregoing, in each case, excluding
exhibits); and (iv) its current reports on Form 8-K, if any;
(b) upon the request of any Purchaser, all exhibits excluded by the
parenthetical to subparagraph (a)(iii) of this Section 10.5, in the form
generally available to the public; and
(c) upon the reasonable request of any Purchaser, an adequate number
of copies of prospectuses to supply to any other party requiring such
prospectuses.
10.6 MARKET STAND-OFF. If requested by the underwriters in any proposed
underwritten public offering by the Company of Common Stock, Purchasers, or any
assignees thereof or transferees who are affiliates thereof, will not sell any
of the Shares for up to 90 days following the effective date of the registration
statement relating to such public offering (each such time period a "Stand-Off
Period").
10.7 CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to promptly
notify the Company of any changes in the information set forth in a Registration
Statement regarding Purchaser or such Purchaser's plan of distribution set forth
in such Registration Statement.
SECTION 11. BROKER'S FEE. The Company and each Purchaser (severally and
not jointly) hereby represent that, except for amounts to be paid to Pacific
Growth Equities, Inc., as Placement Agent (the "Placement Agent") by the Company
as described in Section 13.8 hereof, there are no brokers or finders entitled to
compensation in connection with the sale of the Units, and shall indemnify each
other for any such fees for which they are responsible.
SECTION 12. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by confirmed
facsimile or mailed by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, and shall be
deemed given when so sent in the case of facsimile transmission, or when so
received in the case of mail or courier, and addressed as follows:
(a) if to the Company, to:
Biocircuits Corporation
1324 Chesapeake Terrace
Sunnyvale, California 94089
Attention: John Kaiser
Facsimile: (408) 752-8792
with a copy so mailed to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
Attention: Deborah A. Marshall, Esq.
Facsimile: (415) 857-0663
<PAGE>
or to such other person at such other place as the Company shall
designate to the Purchasers in writing; and
(b) if to the Purchasers, at the address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
SECTION 13. MISCELLANEOUS.
13.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least a
majority of the Shares.
13.2 HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
13.3 SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
13.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents,
without regard to conflicts of law principles.
13.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
13.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
13.7 ENTIRE AGREEMENT. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
13.8 PAYMENT OF FEES AND EXPENSES. Subject to Section 10.1(f) hereof, each
of the Company and the Purchasers shall bear its own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby. (The transactions contemplated hereby and by the Common
Stock Purchase Agreement described in Section 13.9 hereof are jointly referred
to herein as the "Offering"). The Purchasers understand and acknowledge that
the Company shall reimburse the Placement Agent for all reasonable out-of-pocket
expenses incurred by the Placement Agent in connection with the Offering and the
reasonable fees and expenses of Howard, Rice, Nemerovski, Canady, Falk & Rabkin
in connection with its acting as counsel to the Placement Agent, in an amount up
to $50,000 in the aggregate. Purchasers acknowledge that the Placement Agent
will receive a commission, to be paid by the Company, equal to six percent (6%)
of the purchase price of the Units or shares of Common Stock sold in the
Offering, except for any Shares sold to the Sprout Group or any affiliate
thereof, plus six percent (6%) of the exercise price of any Warrants exercised.
Purchasers further acknowledge that, in the event that the First Closing takes
place on or before April 15, 1997 and the Second Closing does not take place as
a result of a Change in Control, the Placement Agent will receive an additional
commission to be paid by the Company equal to $360,000 minus the amount of any
commission paid to the Placement Agent in connection with the sale of Units or
Shares in the First Closing (including the first closing of the transactions
described in Section 13.9 hereof). If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
<PAGE>
13.9 SIMULTANEOUS COMMON STOCK FINANCING. Purchasers acknowledge that the
Company intends to enter into a Common Stock Purchase Agreement substantially in
the form attached hereto as EXHIBIT D, pursuant to which the Company will issue
and sell shares of its Common Stock to one or more entities affiliated with the
Sprout Group, with which Robert Curry, a director of the Company, is affiliated.
The Company may also issue and sell shares of its Common Stock to other
Purchasers under such Common Stock Purchase Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser:
------------------------------
By: /s/ John Kaiser By:
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title:
Sunnyvale, CA 94089 ----------------------------------
Facsimile: (408) 752-8792 Address:
--------------------------------
----------------------------------------
----------------------------------------
Facsimile:
----------------------------
Investment Amount: $
------------
Number of Units:
------------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Special Situations Cayman
Fund, L.P.
----------------------------
By:
---------------------------------
John Kaiser By: /s/ Austin Marxe
Chief Executive Officer -------------------------------------
Address: 1324 Chesapeake Terrace Title: Managing Director
Sunnyvale, CA 94089 ----------------------------------
Facsimile: (408) 752-8792 Address: 153 E. 53rd Street
--------------------------------
New York, NY 10022
----------------------------------------
----------------------------------------
Facsimile: (212) 832-6141
------------------------------
Investment Amount: $300,000.00
-----------
Number of Units: 300,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Special Situations Fund
III, L.P.
-----------------------------
By:
---------------------------------
John Kaiser By: /s/ Austin Marxe
Chief Executive Officer -------------------------------------
Address: 1324 Chesapeake Terrace Title: Managing Director
Sunnyvale, CA 94089 ----------------------------------
Address: 153 E. 53rd Street
Facsimile: (408) 752-8792 --------------------------------
New York, NY 10022
----------------------------------------
----------------------------------------
Facsimile: (516) 725-6141
------------------------------
Investment Amount: $ 1,200,000.00
------------
Number of Units: 1,200,000
---------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Special Situations Private
Equity Fund L.P.
------------------------------
By:
---------------------------------
John Kaiser
Chief Executive Officer By: /s/ Austin Marxe
-------------------------------------
Address: 1324 Chesapeake Terrace
Sunnyvale, CA 94089 Title: Managing Director
----------------------------------
Facsimile: (408) 752-8792 Address: 153 E. 53rd Street
--------------------------------
New York, NY 10022
----------------------------------------
----------------------------------------
Facsimile: (212) 832-6141
-------------------------------
Investment Amount: $1,000,000.00
-------------
Number of Units: 1,000,000
---------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: H&Q Biocircuits Investors,
L.P.
------------------------------
By: By: /s/ J. Berterretche
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer
Title: Attorney-In-Fact
Address: 1324 Chesapeake Terrace ----------------------------------
Sunnyvale, CA 94089 Address: One Bush Street 15th Floor
--------------------------------
Facsimile: (408) 752-8792 San Francisco, CA 94104
----------------------------------------
----------------------------------------
Facsimile: (415) 677-7747
------------------------------
Investment Amount: $1,000,000.00
------------
Number of Units: 1,000,000
---------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Cove Investments Limited
Partnership
------------------------------
By: Purchaser: Cove Investments LLC
--------------------------------- ------------------------------
John Kaiser
Chief Executive Officer Title: Its General Partner
----------------------------------
Address: 1324 Chesapeake Terrace By: /s/ K. Marshall Matzinger
Sunnyvale, CA 94089 -------------------------------------
Title: Manager
----------------------------------
Facsimile: (408) 752-8792
Address: P.O. Box 12219
--------------------------------
308 Dorla Court
----------------------------------------
Zephyr Cove, NV 89448
----------------------------------------
Facsimile: (702) 588-7922
------------------------------
Investment Amount: $334,000.00
-----------
Number of Units: 334,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Glenbrook Partners, L.P.
------------------------------
By: By: /s/ K. Marshall Matzinger
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Chief Financial Officer
----------------------------------
Address: 1324 Chesapeake Terrace Purchaser: Prim Ventures, Inc.
Sunnyvale, CA 94089 ------------------------------
By: /s/ K. Marshall Matzinger
Facsimile: (408) 752-8792 -------------------------------------
Title: Chief Financial Officer
----------------------------------
Address: P.O. Box 12219
--------------------------------
308 Dorla Court
----------------------------------------
Zephyr Cove, NV 89448
----------------------------------------
Facsimile: (702) 588-7922
------------------------------
Investment Amount: $128,000.00
-----------
Number of Units: 128,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: EDJ Limited
------------------------------
By: By: /s/ Jeffrey H. Porter
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Trading Adviser
----------------------------------
Address: 1324 Chesapeake Terrace Address: c/o Deltec Panamerica Trust Co.
Sunnyvale, CA 94089 --------------------------------
Deltec House/Lyford Cay
Facsimile: (408) 752-8792 ----------------------------------------
Box N-3229 Nassau, The Bahamas
----------------------------------------
Facsimile: (242) 362-4623
------------------------------
Investment Amount: $100,000.00
-----------
Number of Units: 100,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Porter Partners, L.P.
-----------------------------
By: By: /s/ Jeffrey H. Porter
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Managing General Partner
----------------------------------
Address: 1324 Chesapeake Terrace Address: 100 Shoreline Suite 211B
Sunnyvale, CA 94089 --------------------------------
Mill Valley, CA 94941
Facsimile: (408) 752-8792 ----------------------------------------
----------------------------------------
Facsimile: (415) 332-8223
------------------------------
Investment Amount: $200,000.00
-----------
Number of Units: 200,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Kaiser Survivor Trust
------------------------------
By: By: /s/ John Kaiser
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: Trustee
Sunnyvale, CA 94089 ----------------------------------
Address: 1324 Chesapeake Terrace
Facsimile: (408) 752-8792 --------------------------------
Sunnyvale, CA 94089
----------------------------------------
----------------------------------------
Facsimile: (408) 752-8790
------------------------------
Investment Amount: $100,000.00
-----------
Number of Units: 100,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Rogers Family Trust
------------------------------
By: By: /s/ Roy L. Rogers
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Trustee
----------------------------------
Address: 1324 Chesapeake Terrace Address: 27927 Broines Way
Sunnyvale, CA 94089 --------------------------------
Los Altos Hills, CA 94022
Facsimile: (408) 752-8792 ----------------------------------------
----------------------------------------
Facsimile: (415) 854-2276
------------------------------
Investment Amount: $100,000.00
-----------
Number of Units: 100,000
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: E&M RP Trust
------------------------------
By: By: /s/ Edmund H. Shea, Jr.
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Trustee
----------------------------------
Address: 1324 Chesapeake Terrace Address: 655 Brea Canyon Road
Sunnyvale, CA 94089 --------------------------------
Walnut, CA 91788
Facsimile: (408) 752-8792 ----------------------------------------
----------------------------------------
Facsimile: (909) 869-0840
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION
Purchaser: Tahoe Partnership I
------------------------------
By: By: /s/ Peter O. Shea
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Custodian
----------------------------------
Address: 1324 Chesapeake Terrace Address: 655 Brea Canyon Road
Sunnyvale, CA 94089 --------------------------------
Walnut, CA 91788
Facsimile: (408) 752-8792 ----------------------------------------
----------------------------------------
Facsimile: (909) 869-0840
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Lancaster Investment Partners
------------------------------
By: By: /s/ R.A. Berlacher
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer
Title: Manager, General Partner
----------------------------------
Address: 1324 Chesapeake Terrace
Sunnyvale, CA 94089 Address: 353 W. Lancaster Avenue,
Suite 300
Facsimile: (408) 752-8792 --------------------------------
Wayne, PA 19087
----------------------------------------
----------------------------------------
Facsimile: (610) 989-1765
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Julie T. Berlacher
------------------------------
By: By: /s/ Julie T. Berlacher
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title:
----------------------------------
Address: 1324 Chesapeake Terrace Address: 353 W. Lancaster Ave.,
Sunnyvale, CA 94089 Suite 300
--------------------------------
Facsimile: (408) 752-8792 Wayne, PA 19087
----------------------------------------
----------------------------------------
Facsimile: (610) 989-1765
------------------------------
Investment Amount: $30,000.00
----------
Number of Units: 30,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: C. Fred Toney
------------------------------
By: By: /s/ C. Fred Toney, Jr.
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title: Managing Director
----------------------------------
Address: 1324 Chesapeake Terrace Address: 353 Sacramento Street,
Sunnyvale, CA 94089 16th Floor
--------------------------------
Facsimile: (408) 752-8792 San Francisco, CA 94111
----------------------------------------
----------------------------------------
Facsimile: (415) 274-6849
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Pacific Growth Equities, Inc.
------------------------------
By: By: /s/ Richard S. Osgood
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: Chief Executive Officer -
Sunnyvale, CA 94089 Chairman
----------------------------------
Facsimile: (408) 752-8792 Address: 353 Sacramento Street,
16th Floor
--------------------------------
San Francisco, CA 94111
----------------------------------------
----------------------------------------
Facsimile: (415) 274-6887
------------------------------
Investment Amount: $50,000.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Stephen J. Massocca
------------------------------
By: By: /s/ S. J. Massocca
--------------------------------- -------------------------------------
John Kaiser
Chief Executive Officer Title:
----------------------------------
Address: 1324 Chesapeake Terrace Address: 353 Sacramento Street,
Sunnyvale, CA 94089 16th Floor
--------------------------------
Facsimile: (408) 752-8792 San Francisco, CA 94111
----------------------------------------
----------------------------------------
Facsimile: (415) 274-6887
------------------------------
Investment Amount: $30,000.00
----------
Number of Units: 30,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: John C. Coleman, Jr.
--------------------------
By: By: /s/ John C. Coleman, Jr.
------------------------------- ---------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: c/o Pacific Growth Equities
Sunnyvale, CA 94089 ------------------------------
Address: 353 Sacramento Street,#1600
Facsimile: (408) 752-8792 ----------------------------
San Francisco, CA 94111
-------------------------------------
-------------------------------------
Facsimile: (415) 274-6887
--------------------------
Investment Amount: $20,000.00
----------
Number of Units: 20,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: George L. Farinsky and
----------------------
Barbara J. Farinsky, Trustees of
--------------------------------
the Farinsky 1992 Trust
-----------------------
By: By: /s/ George L. Farinsky
------------------------------- -------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: Trustee
Sunnyvale, CA 94089 ----------------------------
Address: 13 Eastfield Drive
Facsimile: (408) 752-8792 --------------------------
Rolling Hills, CA 90274
-----------------------------------
Telephone: (310) 544-1180
-------------------------
Facsimile: (310) 544-1190
------------------------
Total Investment Amount: $50,000.00
----------
First Closing Investment Amount:
$10,625.00
----------
Number of Units: 50,000
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Thomas J. Dietz
------------------------
By: By: /s/ Thomas J. Dietz
-------------------------------- -------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: Managing Director
Sunnyvale, CA 94089 ----------------------------
Address: 353 Sacramento Street,
Facsimile: (408) 752-8792 Suite 1600
-----------------------------------
San Francisco, CA 94111
-----------------------------------
-----------------------------------
Facsimile: (415) 274-6849
------------------------
Investment Amount: $5,000.00
---------
Number of Units: 5,000
-----
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling Venture
Partners III, L.P.
------------------------
By: By: /s/ Fred A. Middleton
-------------------- -------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: General Partner
Sunnyvale, CA 94089 ----------------------------
Address: 2730 Sand Hill Road,
Facsimile: (408) 752-8792 Suite 200
--------------------------
Menlo Park, CA 94025
-----------------------------------
-----------------------------------
Facsimile: (415) 854-3648
------------------------
Investment Amount: $350,419
---------
Number of Units: 350,419
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling III Limited
Partnership
----------------------------
By: By: /s/ Fred A. Middleton
-------------------- -----------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: General Partner
Sunnyvale, CA 94089 --------------------------------
Address: 2730 Sand Hill Road,
Facsimile: (408) 752-8792 Suite 200
------------------------------
Menlo Park, CA 94025
---------------------------------------
---------------------------------------
Facsimile: (415) 854-3648
----------------------------
Investment Amount: $181,520.00
-----------
Number of Units: 181,520
-------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling III
Biomedical, L.P.
----------------------------
By: By: /s/ Fred A. Middleton
------------------------------- ---------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: General Partner
Sunnyvale, CA 94089 --------------------------------
Address: 2730 Sand Hill Road,
Facsimile: (408) 752-8792 Suite 200
------------------------------
Menlo Park, CA 94025
---------------------------------------
---------------------------------------
Facsimile: (415) 854-3648
---------------------------
Investment Amount: $60,391.00
----------
Number of Units: 60,391
------
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
BIOCIRCUITS CORPORATION Purchaser: Sanderling Ventures
Management
By: By: /s/ Fred A. Middleton
------------------------------ ----------------------------------
John Kaiser
Chief Executive Officer
Address: 1324 Chesapeake Terrace Title: General Partner
Sunnyvale, CA 94089 -------------------------------
Address: 2730 Sand Hill Road,
Facsimile: (408) 752-8792 Suite 200
-----------------------------
Menlo Park, CA 94025
---------------------------------------
---------------------------------------
Facsimile: (415) 854-3648
----------------------------
Investment Amount: $7,670.00
---------
Number of Units: 7,670
-----
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
<PAGE>
EXHIBIT A
SCHEDULE OF PURCHASERS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
UNITS FIRST UNITS SECOND
PURCHASED AT CLOSING PURCHASED CLOSING AGGREGATE AGGREGATE
FIRST PURCHASE AT SECOND PURCHASE NUMBER OF PURCHASE
PURCHASER CLOSING (1) PRICE ($) CLOSING PRICE ($) UNITS PRICE ($)
<S> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Special Situations Cayman Fund, L.P. 63,750 63,750 236,250 236,250 300,000 300,000
- -------------------------------------------------------------------------------------------------------------------------------
Special Situations Fund III, L.P. 255,000 255,000 945,000 945,000 1,200,000 1,200,000
- -------------------------------------------------------------------------------------------------------------------------------
Special Situations Private Equity Fund, L.P. 212,500 212,500 787,500 787,500 1,000,000 1,000,000
- -------------------------------------------------------------------------------------------------------------------------------
H&Q Biocircuits Investors L.P. 212,500 212,500 787,500 787,500 1,000,000 1,000,000
- -------------------------------------------------------------------------------------------------------------------------------
Cove Investments Limited Partnership 70,975 70,975 263,025 263,025 334,000 334,000
- -------------------------------------------------------------------------------------------------------------------------------
Glenbrook Partners, LP 27,200 27,200 100,800 100,800 128,000 128,000
- -------------------------------------------------------------------------------------------------------------------------------
EDJ Limited 21,250 21,250 78,750 78,750 100,000 100,000
- -------------------------------------------------------------------------------------------------------------------------------
Porter Partners, L.P. 42,500 42,500 157,500 157,500 200,000 200,000
- -------------------------------------------------------------------------------------------------------------------------------
Kaiser Survivor Trust 21,250 21,250 78,750 78,750 100,000 100,000
- -------------------------------------------------------------------------------------------------------------------------------
Rogers Family Trust 21,250 21,250 78,750 78,750 100,000 100,000
- -------------------------------------------------------------------------------------------------------------------------------
E&M RP Trust 10,625 10,625 39,375 39,375 50,000 50,000
- -------------------------------------------------------------------------------------------------------------------------------
Tahoe Partnership I 10,625 10,625 39,375 39,375 50,000 50,000
- -------------------------------------------------------------------------------------------------------------------------------
Lancaster Investment Partners 10,625 10,625 39,375 39,375 50,000 50,000
- -------------------------------------------------------------------------------------------------------------------------------
Julie Berlacher 6,375 6,375 23,625 23,625 30,000 30,000
- -------------------------------------------------------------------------------------------------------------------------------
C. Fred Toney, Jr. 10,625 10,625 39,375 39,375 50,000 50,000
- -------------------------------------------------------------------------------------------------------------------------------
Richard H. Osgood III 10,625 10,625 39,375 39,375 50,000 50,000
- -------------------------------------------------------------------------------------------------------------------------------
Steven J. Massocca 6,375 6,375 23,625 23,625 30,000 30,000
- -------------------------------------------------------------------------------------------------------------------------------
John C. Coleman, Jr. 4,250 4,250 15,750 15,750 20,000 20,000
- -------------------------------------------------------------------------------------------------------------------------------
George L. Farinsky and Barbara J. Farinsky, 10,625 10,625 39,375 39,375 50,000 50,000
Trustees of the Farinsky 1992 Trust
- -------------------------------------------------------------------------------------------------------------------------------
Thomas J. Dietz 1,063 1,063 3,937 3,937 5,000 5,000
- -------------------------------------------------------------------------------------------------------------------------------
Sanderling Venture Partners III, L.P. 74,464 74,464 275,955 275,955 350,419 350,419
- -------------------------------------------------------------------------------------------------------------------------------
Sanderling III Limited Partnership 38,573 38,573 142,947 142,947 181,520 181,520
- -------------------------------------------------------------------------------------------------------------------------------
Sanderling III Biomedical, L.P. 12,833 12,833 47,558 47,558 60,391 60,391
- -------------------------------------------------------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
UNITS FIRST UNITS SECOND
PURCHASED AT CLOSING PURCHASED CLOSING AGGREGATE AGGREGATE
FIRST PURCHASE AT SECOND PURCHASE NUMBER OF PURCHASE
PURCHASER CLOSING (1) PRICE ($) CLOSING PRICE ($) UNITS PRICE ($)
- -------------------------------------------------------------------------------------------------------------------------------
Sanderling Venture Management 1,630 1,630 6,040 6,040 7,670 7,670
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 1,157,488 $1,157,488 4,289,512 $4,289,512 5,447,000 $5,447,000
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Each Unit consists of one (1) share of Common Stock and a warrant to
purchase one share of Common Stock.
<PAGE>
EXHIBIT B
FORM OF WARRANT
Filed as Exhibit 4.4 to this Registration Statement.
<PAGE>
EXHIBIT C
SCHEDULE OF EXCEPTIONS
THE INCLUSION OF ANY MATTER AS PART OF THIS SCHEDULE SHOULD NOT BE
INTERPRETED AS INDICATING THAT THE COMPANY HAS DETERMINED THAT SUCH MATTER IS
NECESSARILY MATERIAL TO THE PURCHASER.
SECTIONS 4.4; 4.5 AND 4.6
ADDITIONAL INFORMATION; NO MATERIAL CHANGE; SEC REPORTS
In accordance with Rule 12b-25 promulgated under the Securities Exchange
Act of 1934, as amended, the Company intends to file its Annual Report on Form
10-K for the fiscal year ended December 31, 1996 not later than April 15, 1997.
<PAGE>
EXHIBIT D
FORM OF COMMON STOCK PURCHASE AGREEMENT
Filed as Exhibit 4.2 to this Registration Statement
<PAGE>
SUMMARY INSTRUCTION SHEET FOR PURCHASER
(TO BE READ IN CONJUNCTION WITH THE ENTIRE
PURCHASE AGREEMENT WHICH FOLLOWS)
A. Complete the following items on the Purchase Agreement, copies of which are
attached hereto for your convenience:
1. Signature Page.
2. Appendix I - Stock Certificate and Warrant Questionnaire:
Provide the information requested by the Stock Certificate and Warrant
Questionnaire.
3. Appendix II - Registration Statement Questionnaire:
Provide the information requested by the Registration Statement
Questionnaire.
4. Return the properly completed and signed Purchase Agreement including
the properly completed and signed Appendix I and Appendix II to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Attn: Suzanne A. Barr
Tel: (415) 843-5000
Fax: (415) 857-0663
PLEASE RETURN THE COMPLETED AND SIGNED PURCHASE AGREEMENT BY FACSIMILE
WITH ALL OF THE ORIGINAL DOCUMENTS FOLLOWING BY OVERNIGHT COURIER OR
MAIL.
B. The purchase price for the Units may be paid by wire transfer as follows:
Wiring Instructions
-------------------
Cupertino National Bank
3 Palo Alto Square, #150
Palo Alto, CA 94306
<PAGE>
Bank Contact Person: Ms. Terry Dickmeyer at (415) 852-0300
Routing #: 121141152
Account Name: Biocircuits Corporation
Account: 003104087
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective as described in the Purchase
Agreement, each Purchaser:
(i) must deliver a current prospectus, and annual, quarterly and
current reports of the Company (Forms 10-K, 10-Q and 8-K) to the
buyer (prospectuses, and annual, quarterly and current reports
may be obtained from the Company at the Purchaser's request); and
(ii) must send a letter in the form of Appendix III to the Company so
that the Shares may be properly transferred.
<PAGE>
APPENDIX I
BIOCIRCUITS CORPORATION
STOCK CERTIFICATE AND WARRANT QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares and
Warrants are to be registered in
(this is the name that will appear
on your stock certificate(s) and
Warrants. You may use a nominee
name if appropriate: -------------------------------
2. The relationship between the -------------------------------
Purchaser of the Securities and the
Registered Holder listed in response
to item 1 above:
3. The mailing address of the
Registered Holder listed in response -------------------------------
to item 1 above:
-------------------------------
-------------------------------
4. The Social Security Number or Tax
Identification Number of the
Registered Holder listed in the
response to item 1 above: -------------------------------
Signature:
------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
<PAGE>
APPENDIX II
BIOCIRCUITS CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statements, please
provide us with the following information:
1. Please state your or your organization's name exactly as it should
appear in the Registration Statements:
2. Please provide the following information, with your current ownership
information as of April 7, 1997:
(a) Number of shares you are purchasing which are to be included in
the Registration Statements: ______________.
__________ (Common Stock); _______ (Warrant Shares).
(b) Number of shares of the Company's Common Stock and Series A
Preferred Stock (excluding the shares you are purchasing) that
you own: ________________ (Common Stock); ______________
(Preferred Stock).
(c) Number of shares of the Company's Common and Preferred Stock
subject to warrants you own: _______________ (Common Stock
Warrants); ____________ (Preferred Stock Warrants).
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the Proxy Statement in connection with
the Company's most recent Annual Meeting of Stockholders?
Yes No
---- ----
If yes, please indicate the nature of any such relationships:_____________
_______________________________________________________________________________
4. In what states do you request the Company qualify the shares for
resale (i.e. in what states do you plan to sell the Shares)? _______________
Signature:
-----------------------------------
Print Name:
-----------------------------------
Title:
-----------------------------------
<PAGE>
APPENDIX III
CERTIFICATE OF SUBSEQUENT SALE
The undersigned, duly authorized by _________________________________,
hereby certifies (1) that _______________________________________ is the
Purchaser of the Shares evidenced by Common Stock Certificate No. ____________
for shares (A COPY OF WHICH, FRONT AND BACK, IS ATTACHED HERETO),
(2) that said Purchaser sold of such Shares on
______________________ in accordance with registration statement number
____________________________ and (3) that the requirement of delivering a
current prospectus and current annual, quarterly and reports (Forms 10-K, 10-Q,
and 8-K) by the Company has been complied with in connection with such sale.
PRINT OR TYPE:
Name of Purchaser
(Individual or Institution)
selling the Shares: _____________________________________
Name of Individual representing
Purchaser selling the Shares
(if an Institution): _____________________________________
Title of Individual representing
Purchaser selling the Shares
(if an Institution): ______________________________________
SIGNATURE BY:
Individual Purchaser selling the
Shares or Individual representing
Purchaser selling the Shares: _______________________________________
<PAGE>
EXHIBIT 4.4
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
BIOCIRCUITS CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. 1997-C__ ___________ Shares
FOR VALUE RECEIVED, BIOCIRCUITS CORPORATION, a Delaware corporation (the
"Company"), with its principal office at 1324 Chesapeake Terrace, Sunnyvale,
California 94089, hereby certifies that _________________ ("Holder"), or its
assigns, is entitled, subject to the provisions of this Warrant, to purchase
from the Company, at any time on or after May 23, 1997 and before 5:00 p.m.
(Pacific Time) on the later of (i) November 23, 1998, (ii) the date eighteen
months after the date hereof, or (iii) the date eighteen months after the date
this Warrant first becomes fully exercisable with respect to all the Warrant
Shares subject hereto, the number of fully paid and nonassessable shares of
Common Stock of the Company set forth above, subject to adjustment as
hereinafter provided; provided, however, that the expiration date shall be
extended by one day for each day since the issuance of this Warrant on which
there has been effective a Suspension Period or a Stand-Off Period, as such
terms are defined in the Common Stock and Warrant Purchase Agreement dated
April 15, 1997 (the "Purchase Agreement"), pursuant to which this Warrant was
issued (the "Expiration Date"); provided further, however, that in the event the
Company sends Holder an "Early Exercise Notice" as defined in Section 1(b)
hereof and complies with the requirements of Section 1(b) hereof, this Warrant
shall cease to be exercisable in accordance with the terms of Section 1(b)
hereof.
Subject to the limitation set forth in Section 1(c) hereof, Holder may
purchase such number of shares of Common Stock at a purchase price per share (as
appropriately adjusted pursuant to Section 6 hereof) of Seventy-Five Cents
($0.75) (the "Exercise Price"). The term "Common Stock" shall mean the
aforementioned Common Stock of the Company, together with any other equity
securities that may be issued by the Company in addition thereto or in
substitution therefor as provided herein.
The number of shares of Common Stock to be received upon the exercise of
this Warrant and the price to be paid for a share of Common Stock are subject to
adjustment from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares."
SECTION 1. EXERCISE OF WARRANT.
(a) EXERCISE. Subject to the provisions of Section 1(b) below, this
Warrant may be exercised in whole or in part on any business day prior to the
Expiration Date by presentation and surrender hereof to the Company at its
principal office at the address set forth in the initial paragraph hereof (or at
such other address as the Company may hereafter notify Holder in writing) with
the Purchase Form annexed hereto duly executed and accompanied by proper payment
of the Exercise Price in lawful money of the United States of America in the
form
<PAGE>
of a check, subject to collection, for the number of Warrant Shares specified
in the Purchase Form. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant, execute and deliver a new
Warrant evidencing the rights of Holder thereof to purchase the balance of
the Warrant Shares purchasable hereunder. Upon receipt by the Company of
this Warrant and such Purchase Form, together with proper payment of the
Exercise Price, at such office, Holder shall be deemed to be the holder of
record of the Warrant Shares, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
Warrant Shares shall not then be actually delivered to Holder. The Company
shall pay any and all documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of the Warrant Shares.
(b) EARLY TERMINATION OF EXERCISABILITY (REDEMPTION AT THE OPTION OF
THE COMPANY). If, at any time beginning on the date this Warrant is first
exercisable and prior to the Expiration Date (1) a registration statement
registering the Warrant Shares for resale under the Securities Act of 1933, as
amended, is effective and (2) the closing price per share of the Company's
Common Stock as quoted on the Nasdaq National Market System or on the primary
national securities exchange on which the Common Stock is then listed, whichever
is applicable, as published in the Western Edition of the Wall Street Journal
(or, if not so reported, as otherwise reported by the Nasdaq National Market
System) over the course of ten (10) consecutive trading days equals or exceeds
Two Dollars ($2.00) (an "Early Exercise Event"), then, within 5 days of such
Early Exercise Event, the Company may, at its option, send written notice to the
Holder and the holders of all warrants issued pursuant to the Purchase Agreement
(an "Early Exercise Notice") that it chooses to exercise its right to effect an
early termination of the exercisability of this Warrant and all such other
warrants.
(i) Subject to compliance by the Company with the provisions of
this Section 1(b), after any Redemption Date (as defined below) specified in any
such Early Exercise Notice, this Warrant shall no longer represent the right to
acquire shares of the Company's Common Stock or other capital stock, but shall
thereafter (until and through the Expiration Date) represent solely the right to
receive the Redemption Price upon surrender of this Warrant. The Holder may
exercise this Warrant at any time prior to the Redemption Date, regardless of
whether any Early Exercise Notice has been issued.
(ii) Any Early Exercise Notice shall set forth (A) the
Redemption Price per Warrant Share, which shall be equal to one cent ($.01) per
Warrant Share (as appropriately adjusted to reflect any adjustments to the
number of shares of Common Stock issuable upon the exercise hereof pursuant to
Section 6 hereof) and (B) a date, which shall be no less than 25 days from the
date of the Early Exercise Notice, after which the Warrant will no longer be
exercisable, but will represent solely the right to receive the Redemption Price
of this Warrant (the "Redemption Date"); provided, however that if, during the
time period after the date of the Early Exercise Notice and before the
Redemption Date, there shall exist any Suspension Period or Stand-Off Period, as
such terms are defined in the Purchase Agreement, then such 25 day period shall
be extended one day for each day of such Suspension Period or Stand-Off Period.
(iii) On or before the Redemption Date, the Company shall
deposit the Redemption Price of all Warrant Shares (as defined in the Purchase
Agreement) to be redeemed with a bank, trust company, or the Company's transfer
agent with irrevocable instructions and authority to the bank, trust company or
transfer agent to pay, on and after the Redemption Date, the Redemption Price of
the Warrant Shares subject to this Warrant to the Holder upon surrender of this
Warrant. Any moneys deposited by the Company pursuant to this Section 1(b)(iii)
for the redemption of Warrant Shares that are thereafter exercised on or prior
to the Redemption Date shall be returned to the Company forthwith upon such
exercise. The balance of any funds deposited by the Company pursuant to this
Section 1(b)(iii) remaining unclaimed after 5:00 p.m. Pacific Time on the
Expiration Date shall be returned to the Company promptly upon its written
request.
(iv) On or after such Redemption Date, the Holder may surrender
this Warrant to the Company at its principal office at the address set forth in
the initial paragraph hereof (or at such other address as the Company may
hereafter notify Holder in writing), and thereupon the Redemption Price of the
Warrant Shares shall be payable to the Holders, and this Warrant shall be
canceled. From and after such Redemption Date, unless there shall have been a
default in payment of the Redemption Price, this Warrant shall represent solely
the right to receive the Redemption Price, without interest, upon surrender of
this Warrant.
<PAGE>
(c) REQUIREMENT OF STOCKHOLDER APPROVAL. Anything herein to the
contrary notwithstanding, this Warrant may not be exercised unless such exercise
is approved by the Company's stockholders at the 1997 Annual Meeting of the
Company's stockholders of the issuance of the shares of Common Stock issuable
upon the exercise hereof, to the extent such approval is required by the Rules
of the Nasdaq Stock Market.
SECTION 2. RESERVATION OF SHARES. The Company hereby agrees that at all
times there shall be reserved for issuance and delivery upon exercise of this
Warrant all shares of its Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise of this Warrant. All such
shares shall be duly authorized and, when issued upon such exercise in
accordance with the terms of this Warrant, shall be validly issued, fully paid
and nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale (other than as provided in any
restrictions on sale pursuant to applicable federal and state securities laws)
and free and clear of all preemptive rights.
SECTION 3. FRACTIONAL INTEREST. The Company will not issue a fractional
share of Common Stock upon exercise of a Warrant. Instead, the Company will
deliver its check for the current market value of the fractional share. The
current market value of a fraction of a share is determined as follows: multiply
the current market price of a full share by the fraction of a share and round
the result to the nearest cent.
The current market price of a share of Common Stock for purposes of this
Section only is the Quoted Price (as defined in Section 6(b) below) of the
Common Stock on the last trading day prior to the exercise date.
SECTION 4. ASSIGNMENT OR LOSS OF WARRANT.
(a) Except as provided in Section 9, Holder shall be entitled,
without obtaining the consent of the Company, to assign its interest in this
Warrant in whole or in part to any person or persons. Subject to the provisions
of Section 9, upon surrender of this Warrant to the Company or at the office of
its stock transfer agent or warrant agent, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant or Warrants in the name
of the assignee or assignees named in such instrument of assignment (any such
assignee will then be a "Holder" for purposes of this Warrant) and, if Holder's
entire interest is not being assigned, in the name of Holder, and this Warrant
shall promptly be canceled.
(b) Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of indemnification satisfactory to the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
SECTION 5. RIGHTS OF HOLDER. Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of Holder are limited to those expressed in this Warrant.
Nothing contained in this Warrant shall be construed as conferring upon Holder
hereof the right to vote or to consent or to receive notice as a stockholder of
the Company on any matters or with respect to any rights whatsoever as a
stockholder of the Company. No dividends or interest shall be payable or
accrued in respect of this Warrant or the interest represented hereby or the
Warrant Shares purchasable hereunder until, and only to the extent that, this
Warrant shall have been exercised in accordance with its terms.
SECTION 6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number
and kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
beginning of certain events, as follows:
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If at any time after the
date hereof the Company:
(A) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
<PAGE>
(B) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(C) combines its outstanding shares of Common Stock into a
smaller number of shares;
(D) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(E) issues by reclassification of its Common Stock any shares of
its capital stock;
then the number and kind of securities purchasable upon the exercise of this
Warrant and the Exercise Price in effect immediately prior to such action shall
be adjusted so that Holder may receive upon exercise of this Warrant and payment
of the same aggregate consideration the number of shares of capital stock of the
Company which Holder would have owned immediately following such action if
Holder had exercised this Warrant immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
(b) QUOTED PRICE. The "Quoted Price" of the Common Stock is the last
reported sales price of the Common Stock as reported by the Nasdaq National
Market, or the primary national securities exchange on which the Common Stock is
then quoted; provided, however, that if the Common Stock is neither traded on
the Nasdaq National Market nor on a national securities exchange, the price
referred to above shall be the price reflected on the Nasdaq Smallcap Market, or
if the Common Stock is not then traded on the Nasdaq Smallcap Market, the price
reflected in the over-the counter market as reported by the National Quotation
Bureau, Inc. or any organization performing a similar function.
(c) MINIMUM ADJUSTMENT. No adjustment in the Exercise Price of this
Section 6 shall be required unless such adjustment would require an increase or
decrease of at least ten cents ($.10) in such Exercise Price; PROVIDED, HOWEVER,
that any adjustments which by reason of this subsection are not required to be
made, shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 6 shall be made to the nearest
cent or to the nearest share, as the case may be.
(d) DEFERRAL OF ISSUANCE OR PAYMENT. In any case in which an event
covered by this Section 6 shall require that an adjustment in the Exercise Price
be made effective as of a record date, the Company may elect to defer until the
occurrence of such event (i) issuing to Holder, if this Warrant is exercised
after such record date, the shares of Common Stock and other capital stock of
the Company, if any, issuable upon such exercise over and above the shares of
Common Stock or other capital stock of the Company, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment,
and (ii) paying to Holder by check any amount in lieu of the issuance of
fractional shares pursuant to Section 3.
(e) WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made for a
change in the par value of the Common Stock.
(f) NOTICE OF CERTAIN ACTIONS. In the event that:
(A) the Company shall authorize the issuance to all holders of
its Common Stock of rights, warrants, options or convertible securities to
subscribe for or purchase shares of its Common Stock or of any other
subscription rights, warrants, options or convertible securities; or
(B) the Company shall authorize the distribution to all holders
of its Common Stock of evidences of its indebtedness or assets (other than
dividends paid in or distributions of the Company's capital stock for which the
Exercise Price shall have been adjusted pursuant to subsection (a) of this
Section 6 or cash dividends
<PAGE>
or cash distributions payable out of consolidated current or retained
earnings as shown on the books of the Company and paid in the ordinary course
of business); or
(C) the Company shall authorize any capital reorganization or
reclassification of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in par value of the Common
Stock) or of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or change of the Common Stock
outstanding), or of the conveyance or transfer of the properties and assets of
the Company as an entirety or substantially as an entirety; or
(D) the Company is the subject of a voluntary or involuntary
dissolution, liquidation or winding-up procedure; or
(E) the Company proposes to take any action that would require
an adjustment of the Exercise Price pursuant to this Section 6;
then the Company shall cause to be mailed by first-class mail to Holder, at
least twenty (20) days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date as of which the holders of
Common Stock of record to be entitled to receive any such rights, warrants or
distributions are to be determined, or (y) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up.
SECTION 7. OFFICERS' CERTIFICATE. Whenever the Exercise Price shall be
adjusted as required by the provisions of Section 6, the Company shall forthwith
file in the custody of its Secretary or an Assistant Secretary at its principal
office an officers' certificate showing the adjusted Exercise Price determined
as herein provided, setting forth in reasonable detail the facts requiring such
adjustment and the manner of computing such adjustment. Each such officers'
certificate shall be signed by the chairperson, president or chief financial
officer of the Company and by the secretary or any assistant secretary of the
Company. Each such officers' certificate shall be made available at all
reasonable times for inspection by Holder.
SECTION 8. RECLASSIFICATION, REORGANIZATION, CONSOLIDATION OR MERGER. In
the event of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company (other than a subdivision or
combination of the outstanding Common Stock and other than a change in the par
value of the Common Stock) or in the event of any consolidation or merger of the
Company with or into another corporation (other than a merger in which the
Company is the continuing corporation and that does not result in any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the class issuable upon exercise of this Warrant) or in the
event of any sale, lease, transfer or conveyance to another corporation of the
property and assets of the Company as an entirety or substantially as an
entirety, the Company shall, as a condition precedent to such transaction, cause
effective provisions to be made so that Holder shall have the right thereafter,
by exercising this Warrant, to purchase the kind and amount of shares of stock
and other securities and property (including cash) receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
that might have been received upon exercise of this Warrant immediately prior to
such reclassification, capital reorganization, change, consolidation, merger,
sale or conveyance. Any such provision shall include provisions for adjustments
in respect of such shares of stock and other securities and property that shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Warrant. The foregoing provisions of this Section 8 shall similarly apply
to successive reclassifications, capital reorganizations and changes of shares
of Common Stock and to successive consolidations, mergers, sales or conveyances.
In the event that in connection with any such capital reorganization, or
reclassification, consolidation, merger, sale or conveyance, additional shares
of Common Stock shall be issued in exchange, conversion, substitution or
payment, in whole or in part, for, or of, a security of the Company other than
Common Stock, any such issue shall be treated as an issue of Common Stock
covered by the provisions of subsection (a) of Section 6.
<PAGE>
SECTION 9. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This
Warrant may not be exercised and neither this Warrant nor any of the Warrant
Shares, nor any interest in either, may be offered, sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred or disposed of, in
whole or in part, except in compliance with applicable United States federal and
state securities or Blue Sky laws and the terms and conditions hereof. Each
Warrant shall bear a legend in substantially the same form as the legend set
forth on the first page of this Warrant. Each certificate for Warrant Shares
issued upon exercise of this Warrant, unless at the time of exercise such
Warrant Shares are acquired pursuant to a registration statement that has been
declared effective under the Act, and applicable blue sky laws shall bear a
legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
Any certificate for any Warrant Shares issued at any time in exchange or
substitution for any certificate for any Warrant Shares bearing such legend
(except a new certificate for any Warrant Shares issued after the acquisition of
such Warrant Shares pursuant to a registration statement that has been declared
effective under the Act) shall also bear such legend unless, in the opinion of
counsel for the Company, the Warrant Shares represented thereby need no longer
be subject to the restriction contained herein. The provision of this Section 9
shall be binding upon all subsequent holders of certificates for Warrant Shares
bearing the above legend and all subsequent holders of this Warrant, if any.
SECTION 10. MODIFICATION AND WAIVER. Neither this Warrant nor any term
hereof may be changed, waived, discharged or terminated other than by an
instrument in writing signed by the Company and by Holder.
<PAGE>
SECTION 11. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to Holder or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to Holder at its address as
shown on the books of the Company or to the Company at the address indicated
therefor in the first paragraph of this Warrant.
SECTION 12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description
headings of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of California, without
regard to its conflicts of laws principles.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed
by its duly authorized officer and to be dated as of April 15, 1997.
BIOCIRCUITS CORPORATION
By:
------------------------------------------
John Kaiser
Chief Executive Officer
<PAGE>
PURCHASE FORM
Dated ___________, 19____
The undersigned hereby irrevocably elects to exercise the within Warrant
No. 1997-C_ to purchase _________ shares of Common Stock and hereby makes
payment of $_____________ in payment of the exercise price thereof.
HOLDER
By:__________________________________________
Print Name:__________________________________
Title:_______________________________________
<PAGE>
ASSIGNMENT FORM
Dated _________, 19____
FOR VALUE RECEIVED, ________________ hereby sells, assigns and transfers
unto __________________________________________________ (the "Assignee"),
(please type or print in block letters)
_______________________________________________________________________________
(insert address)
its right to purchase up to _______ shares of Common Stock represented by this
Warrant No. 1997-C_ and does hereby irrevocably constitute and appoint
____________________________ attorney, to transfer the same on the books of the
Company, with full power of substitution in the premises.
HOLDER
By:__________________________________________
Print Name:__________________________________
Title:_______________________________________
<PAGE>
EXHIBIT 4.5
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
BIOCIRCUITS CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. 1997-K2 50,000 Shares
FOR VALUE RECEIVED, BIOCIRCUITS CORPORATION, a Delaware corporation (the
"Company"), with its principal office at 1324 Chesapeake Terrace, Sunnyvale,
California 94089, hereby certifies that KMC Systems, Inc. ("Kollsman" or
alternatively, "Holder"), or its assigns, in consideration for Kollsman's
commitment to shut down all IOS activity other than the shipment of instruments
through the end of April 1997, is entitled, subject to the provisions of this
Warrant, to purchase from the Company, at any time before 5:00 p.m. (Pacific
Daylight Standard Time) June 30, 1998 (the "Expiration Date"), the number of
fully paid and nonassessable shares of Common Stock of the Company set forth
above, subject to adjustment as hereinafter provided. The term "Common Stock"
shall mean the aforementioned Common Stock of the Company, together with any
other equity securities that may be issued by the Company in addition thereto or
in substitution therefor as provided herein. The shares of Common Stock
deliverable upon such exercise, as adjusted from time to time, are hereinafter
referred to as "Warrant Shares."
SECTION 1. EXERCISE OF WARRANT. Holder may purchase said number of
Warrant Shares at a purchase price per share of one cent ($0.01) per share (the
"Exercise Price"). This Warrant may be exercised in whole or in part on any
business day prior to the Expiration Date by presentation and surrender hereof
to the Company at its principal office at the address set forth in the initial
paragraph hereof (or at such other address as the Company may hereafter notify
Holder in writing) with the Purchase Form annexed hereto duly executed and
accompanied by proper payment of the Exercise Price in lawful money of the
United States of America in the form of a check, subject to collection, for the
number of Warrant Shares specified in the Purchase Form.
If this Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant, execute and deliver a new warrant evidencing the
rights of Holder thereof to purchase the balance of the Warrant Shares
purchasable hereunder. Upon receipt by the Company of this Warrant and such
Purchase Form, together with proper payment of the Exercise Price, at such
office, Holder shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such Warrant Shares shall not then be
actually delivered to Holder. The Company shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of the Warrant Shares.
SECTION 2. RESERVATION OF SHARES. The Company hereby agrees that at all
times there shall be reserved for issuance and delivery upon exercise of this
Warrant all shares of its Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise of this Warrant. All such
shares shall be duly authorized and, when issued upon such exercise in
accordance with the terms of this Warrant, shall be validly issued, fully paid
and nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on
<PAGE>
sale (other than as provided in the Company's certificate of incorporation and
any restrictions on sale set forth herein or pursuant to applicable federal and
state securities laws) and free and clear of all preemptive rights.
SECTION 3. FRACTIONAL INTEREST. The Company will not issue a fractional
share of Common Stock upon exercise of a Warrant. Instead, the Company will
deliver its check for the current market value of the fractional share. The
current market value of a fraction of a share is determined as follows: multiply
the current market price of a full share by the fraction of a share and round
the result to the nearest cent. The current market price of a share of Common
Stock for purposes of this Section 3 is the Quoted Price (as defined in Section
6(b)) of the Common Stock on the last trading day prior to the exercise date.
SECTION 4. ASSIGNMENT OR LOSS OF WARRANT.
(a) Subject to the provisions of Section 8, Holder shall be entitled,
without obtaining the consent of the Company, to assign its interest in this
Warrant in whole or in part to any person or persons. Subject to the provisions
of Section 8, upon surrender of this Warrant to the Company or at the office of
its stock transfer agent or warrant agent, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant or Warrants in the name
of the assignee or assignees named in such instrument of assignment (any such
assignee will also be a "Holder" for purposes of this Warrant) and, if Holder's
entire interest is not being assigned, in the name of Holder, and this Warrant
shall promptly be canceled.
(b) Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of indemnification satisfactory to the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
SECTION 5. RIGHTS OF HOLDER. Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of Holder are limited to those expressed in this Warrant.
Nothing contained in this Warrant shall be construed as conferring upon Holder
hereof the right to vote or to consent or to receive notice as a stockholder of
the Company on any matters or with respect to any rights whatsoever as a
stockholder of the Company. No dividends or interest shall be payable or
accrued in respect of this Warrant or the interest represented hereby or the
Warrant Shares purchasable hereunder until, and only to the extent that, this
Warrant shall have been exercised in accordance with its terms.
SECTION 6. ADJUSTMENT OF NUMBER OF SHARES. The number and kind of
securities purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If at any time after the
date hereof, the Company:
(i) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(iii) combines its outstanding shares of Common Stock into a
smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(v) issues by reclassification of its Common Stock any shares of
its capital stock;
<PAGE>
then the Exercise Price in effect immediately prior to such action shall be
adjusted so that Holder may receive upon exercise of this Warrant and payment of
the same aggregate consideration the number of shares of capital stock of the
Company which Holder would have owned immediately following such action if
Holder had exercised this Warrant immediately prior to such action; PROVIDED,
HOWEVER, that in no event shall the Exercise Price be reduced to less than the
par value per share of Common Stock.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
(b) QUOTED PRICE OF THE COMMON STOCK. The "Quoted Price" of the
Common Stock is the last reported sales price of the Common Stock as reported by
the Nasdaq National Market, or the primary national securities exchange on which
the Common Stock is then quoted; provided, however, that if the Common Stock is
neither traded on the Nasdaq National Market nor on a national securities
exchange, the price referred to above shall be the price reflected on the Nasdaq
National Market, or if the Common Stock is not then traded on the Nasdaq
National Market, the price reflected in the over-the counter market as reported
by the National Quotation Bureau, Inc. or any organization performing a similar
function.
(c) NOTICE OF CERTAIN ACTIONS. In the event that:
(i) the Company shall authorize the issuance to all holders of
its Common Stock of rights, warrants, options or convertible securities to
subscribe for or purchase shares of its Common Stock or of any other
subscription rights, warrants, options or convertible securities; or
(ii) the Company shall authorize the distribution to all holders
of its Common Stock of evidence of its indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated current or retained
earnings as shown on the books of the Company and paid in the ordinary course of
business); or
(iii) the Company shall authorize any capital reorganization or
reclassification of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in par value of the Common
Stock) or of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required (other than a
consolidation or merger in which the Company is the continuing corporation and
that does not result in any reclassification or change of the Common Stock
outstanding), or of the conveyance or transfer of the properties and assets of
the Company as an entirety or substantially as an entirety; or
(iv) the Company is the subject of a voluntary or involuntary
dissolution, liquidation or winding-up procedure; or
(v) the Company proposes to take any action that would require
an adjustment of the Exercise Price;
then the Company shall cause to be mailed by first-class mail to Holder, at
least twenty (20) days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date as of which the holders of
Common Stock of record to be entitled to receive any such rights, warrants or
distributions are to be determined, or (y) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up.
(d) NO ADJUSTMENT UPON EXERCISE OF WARRANT. No adjustments shall be
made under any Section herein in connection with the issuance of Warrant Shares
upon exercise of this Warrant.
SECTION 7. RECLASSIFICATION, REORGANIZATION, CONSOLIDATION OR MERGER. In
the event of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company (other
<PAGE>
than a subdivision or combination of the outstanding Common Stock and other than
a change in the par value of the Common Stock) or in the event of any
consolidation or merger of the Company with or into another corporation (other
than a merger in which the Company is the continuing corporation and that does
not result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in the event of any sale, lease, transfer or conveyance to another
corporation of the property and assets of the Company as an entirety or
substantially as an entirety, the Company shall, as a condition precedent to
such transaction, cause effective provisions to be made so that Holder shall
have the right thereafter, by exercising this Warrant, to purchase the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, capital reorganization and other change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock that might have been received upon exercise of this Warrant
immediately prior to such reclassification, capital reorganization, change,
consolidation, merger, sale or conveyance. Any such provision shall include
provisions for adjustments in respect of such shares of stock and other
securities and property that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Warrant. The foregoing provisions of
this Section 7 shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
SECTION 8. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This
Warrant may not be exercised and neither this Warrant nor any of the Warrant
Shares, nor any interest in either, may be offered, sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred or disposed of, in
whole or in part, except in compliance with applicable United States federal and
state securities or Blue Sky laws and the terms and conditions hereof. Each
subsequent Warrant shall bear a legend in substantially the same form as the
legend set forth on the first page of this Warrant. Each certificate for
Warrant Shares issued upon exercise of this Warrant and subsequent Warrants,
unless at the time of exercise such Warrant Shares are acquired pursuant to a
registration statement that has been declared effective under the Act, and
applicable Blue Sky laws shall bear a legend substantially in the following
form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
Any certificate for any Warrant Shares issued at any time in exchange or
substitution for any certificate for any Warrant Shares bearing such legend
(except a new certificate for any Warrant Shares issued after the acquisition of
such Warrant Shares pursuant to a registration statement that has been declared
effective under the Act) shall also bear such legend unless, in the opinion of
counsel for the Company, the Warrant Shares represented thereby need no longer
be subject to the restriction contained herein. The provision of this Section 8
shall be binding upon all subsequent holders of certificates for Warrant Shares
bearing the above legend and all subsequent Holders of this Warrant and new
warrants (as provided in Section 1), if any.
SECTION 9. REGISTRATION RIGHTS.
(a) If at any time after the date hereof and prior to the Expiration
Date, the Company shall determine to register any of its Common Stock, for its
own account or for the account of others on a registration statement on Form S-1
or Form S-3, the Company shall:
<PAGE>
(i) promptly give Holder written notice thereof (which shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other state
securities); and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all shares of Common Stock of the Company obtained upon exercise of
this Warrant (the "Registrable Securities") specified in a written request or
requests by Holder, received by the Company within twenty (20) days after such
written notice is given, requesting inclusions in such registration.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise Holder as a part of the written notice given pursuant to
Paragraph 9(a)(i). In such event, the right of Holder to registration pursuant
to this Section 9 shall be conditioned upon Holder's participation in such
underwriting and the inclusion of Holder's Registrable Securities in the
underwriting to the extent provided herein.
Holder shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 9, if the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, the
underwriter may exclude some or all of the Registrable Securities from such
registration and underwriting.
If Holder disapproves of the terms of any such underwriting, Holder
may select to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities so withdrawn from such underwriting
shall also be withdrawn from such registration.
(c) The Company shall bear registration expenses (exclusive of
underwriting discounts and commissions) for the Form S-1 or Form S-3
registration.
(d) If requested by the underwriters, Holder, or any assignee of
Holder, shall not sell or otherwise transfer or dispose of any securities of the
Company held by Holder for a period of up to 180 days following a public
offering by the Company of its capital stock.
(e) (i) The Company will indemnify Holder, each of Holder's officers,
directors, partners and agents, and each person controlling Holder, with respect
to such registration, qualification or compliance that has been effected
pursuant to this Section 9, and each underwriter, if any, and each person who
controls any underwriter against all claims, losses, damages and liabilities (or
actions in respect thereof) including any of the foregoing incurred in
settlement of any litigation commenced or threatened arising out of or based on
(x) any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other similar document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, or (y) any violation (or
alleged violation) by the Company of any federal, state or common law rule or
regulation applicable to the Company in connection with any such registration,
qualification or compliance, and will reimburse Holder, each of its officers,
directors, partners and agents, and each person controlling Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, as incurred,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement (or alleged untrue statement) or omission (or alleged
omission) based upon written information furnished to the Company by an
instrument duly executed by Holder or such underwriter and stated to be
specifically for use therein.
(ii) Holder shall, if Registrable Securities held by Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its
<PAGE>
directors and officers, each legal counsel and independent accountant of the
Company, each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of the Securities Act, and each other such holder, each of
its directors, officers, and partners and agents and each person controlling
such other holder, against all claims, losses, damages and liabilities (or
actions in respect thereof) including any of the foregoing incurred in
settlement of any litigation commenced or threatened arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
similar document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and shall reimburse the
Company, its directors, officers, legal counsel, accountants, underwriters,
control persons and such other holders and each such holder's directors,
officers, partners, agents and control persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, as incurred, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by Holder and stated to be specifically for use therein; provided,
however, that the obligations of Holder hereunder shall be limited to an amount
equal to the proceeds to Holder for Registrable Securities sold as contemplated
herein.
(iii) Each party entitled to indemnification under this Subsection
9(e) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has received written notice of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such
defense at the Indemnified Party's expense; provided, however, that the
Indemnifying Party shall bear the expense of such defense of the Indemnified
Party if representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interest. The failure of
any Indemnified Party to give notice as provided herein shall relieve the
Indemnifying Party of its obligations under this Subsection 9(e) only to the
extent that such failure to give notice shall materially adversely prejudice the
Indemnifying Party in the defense of any such claim or any such litigation. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
SECTION 10. MODIFICATION AND WAIVER. Neither this Warrant nor any term
hereof may be changed, waived, discharged or terminated other than by an
instrument in writing signed by the Company and by Holder.
SECTION 11. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to Holder or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to Holder at its address as
shown on the books of the Company or to the Company at the address indicated
therefor in the first paragraph of this Warrant.
SECTION 12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description
headings of the several Sections, Subsections and Paragraphs of this Warrant are
inserted for convenience only and do not constitute a part of this Warrant.
This Warrant shall be construed and enforced in accordance with, and the rights
of the parties shall be governed by, the laws of the State of California,
without regard to its conflicts of laws principles.
<PAGE>
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed
by its duly authorized officer and to be dated as of __________, 1997.
BIOCIRCUITS CORPORATION
By:
--------------------------------
John Kaiser
Chief Executive Officer
<PAGE>
PURCHASE FORM
Dated ___________, 19____
The undersigned hereby irrevocably elects to exercise the within Warrant
No. 1997-K2 to purchase ________ shares of Common Stock of Biocircuits
Corporation and hereby makes payment of $_____________ in payment of the
exercise price thereof.
KMC SYSTEMS, INC.
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
<PAGE>
ASSIGNMENT FORM
Dated _________, 19____
FOR VALUE RECEIVED, KMC Systems, Inc. hereby sells, assigns and transfers
unto __________________________________________________ (the "Assignee"),
(please type or print in block letters)
- --------------------------------------------------------------------------------
(insert address)
its right to purchase up to _______ shares of Common Stock of Biocircuits
Corporation represented by Biocircuits Corporation Warrant No. 1997-K2 and does
hereby irrevocably constitute and appoint ____________________________
attorney, to transfer the same on the books of Biocircuits Corporation, with
full power of substitution in the premises.
KMC SYSTEMS, INC.
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
<PAGE>
EXHIBIT 5.1
[COOLEY GODWARD Letterhead]
April 29, 1997
DEBORAH A. MARSHALL
415 843-5137
[email protected]
Biocircuits Corporation
1324 Chesapeake Terrace
Sunnyvale, CA 94089
RE: BIOCIRCUITS CORPORATION
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Biocircuits Corporation (the "Company") of a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of 2,896,226 shares of the Company's
Common Stock (the "Shares"), with a par value of $0.001 (the "Common Stock"), to
be sold by certain stockholders as described in the Registration Statement. Of
the Shares (i) 1,688,738 were issued by the Company pursuant to private
placements (the "April Financings") on April 15, 1997 (the "Common Shares"),
(ii) 1,157,488 are issuable upon the exercise of warrants issued in the April
Financings (the "Warrant Shares") and (iii) 50,000 are issuable upon the
exercise of a warrant issued in connection with a manufacturing agreement (the
"KMC Shares").
In connection with this opinion, we have examined the Registration Statement,
the Company's Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws, and such other documents, records, certificates, memoranda and
other instruments as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that (i) the Common Shares are validly issued, fully paid, and nonassessable and
(ii) the Warrant Shares and the KMC Shares, when sold and issued in accordance
with the Registration Statement, will be validly issued, fully paid, and
nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the Prospectus included in the Registration Statement.
Very truly yours,
Cooley Godward LLP
/s/ Deborah A. Marshall
Deborah A. Marshall
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Biocircuits
Corporation for the registration of 2,896,226 shares of its common stock and
to the incorporation by reference therein of our report dated January 13,
1997 with respect to the financial statements of Biocircuits Corporation
included in its Annual Report (Form 10-K) for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
April 28, 1997
