SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): February 6, 1997
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Advanced Mammography Systems, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-20968 04-3166348
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(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
46 Jonspin Road, Wilmington, Massachusetts 01887
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (508) 657-8876
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N/A
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(Former name or former address, if changed since last report.)
Page 1 of Pages
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Exhibit Index on Page 5
<PAGE>
Item 5. Other Events
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See Items 7 and 9 of this Report for information
regarding private placements of securities of Advanced
Mammography, Inc. (the "Registrant").
Item 7. Financial Statements and Exhibits.
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(c) Exhibits:
4.1 Form of Warrant to Purchase Common Stock to Regulation S
Subscribers
4.2 Form of Warrant to Purchase Common Stock to Regulation D
Purchasers
4.3 Form of Warrant to Purchase Common Stock to Placement Agent
10.1 Funding Agreement, dated as of January 31, 1997, among
the Registrant, Emerald Capital Corporation and
InterFirst Capital Corporation
10.2 Form of Offshore Securities Subscription Agreement
10.3 Form of Private Placement Agreement
99.1 Press release, dated February 12, 1997
Item 9. Sales of Equity Securities Pursuant to Regulation S.
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As of February 6, 1997, the Registrant sold pursuant to Offshore
Securities Subscription Agreements (the "Offshore Placement") (i) an
aggregate of 1,016,262 shares (the "Placement Shares") of its Common Stock,
par value $0.01 per share (the "Common Stock"), and (ii) an aggregate of
1,016,262 Warrants to Purchase Common Stock (the "Placement Warrants" and
collectively with the Placement Shares, the "Placement Securities"), at a
price of $1.23 per Placement Security for a total purchase price of
$1,250,000. The Registrant separately sold pursuant to Private Placement
Agreements (the "Private Placement" and collectively with the Offshore
Placement, the "Placements") (i) an aggregate of 203,252 shares (the "Reg D
Shares") of its Common Stock and (ii) an aggregate of 203,252 Warrants to
Purchase Common Stock (the "Reg D Warrants" and collectively with the Reg D
Shares, the "Reg D Securities") at a price of $1.23 per Reg D Security for
a total purchase price of $250,000. The market price of the Registrant's
Common Stock was $1.68 per share when agreement was reached to effect the
Placements.
Each Placement Warrant and each Reg D Warrant entitles the holder
thereof to purchase one share of the Registrant's Common Stock at an
exercise price of $1.93 per share until expiration on January 31, 2000 and
February 6, 2000, respectively, subject to customary anti-dilution
provision, and is callable if the average trading price of the Common Stock
for a period of 20 consecutive trading days is at least 180% of the then
exercise price. A form of the Placement Warrants and the Reg D Warrants
are included herein as Exhibits 4.1 and 4.2, respectively.
The Offshore Placement was offered and sold outside the United
States to non-U.S. persons pursuant to an exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), available under Regulation S promulgated thereunder. The Placement
Securities will not be registered and may not be offered or sold in the
United States absent such registration or an applicable exemption from the
registration requirements of the Securities Act.
The Offshore Placement was effected in accordance with a Funding
Agreement, dated as of January 31, 1997 (the "Funding Agreement"), among
the Registrant, Emerald Capital Corporation and InterFirst Capital
Corporation ("InterFirst"). The Funding Agreement, a form of the
Subscription Agreement and a form of the Private Placement Agreement are
included herein as Exhibits 10.1, 10.2, and 10.3 respectively.
In connection with the Placements, and pursuant to the Funding
Agreement, the Registrant (i) issued to InterFirst, as placement agent, an
aggregate of 243,902 non-callable three (3) year warrants (the "InterFirst
Warrants"), 50% of which vested immediately and the other 50% vesting
proportionately with the exercise of the Placement Warrants and the Reg
D Warrants, and each of which entitles the holder thereof to purchase
from the Registrant one share of Common Stock at an exercise price of
$1.68 per share, subject to customary anti-dilution provision, and
(ii) paid InterFirst a cash placement distribution fee equal to 10%
plus 1.25% for legal fees of the gross proceeds of the Placements.
The Funding Agreement also provides for negotiations for additional
financing by the Registrant in the amount of up to $10,000,000 upon
terms to be mutually agreed upon. There is no assurance that the
negotiations would result in any additional financing or upon terms
that would not be dilutive to the Registrant's stockholders. The
Funding Agreement is non-exclusive and does not preclude the Registrant
from obtaining financing from other parties. A form of the InterFirst
Warrants is included herein as Exhibit 4.3.
The net proceeds of the Placements of approximately $1,331,000,
after payment of cash fees and related expenses, will be used the
Registrant for working capital purposes, including development, marketing
and clinical studies of its Aurora breast imaging system.
On February 12, 1997, the Registrant issued a press release
announcing the closing of the Placements. A copy of such press release is
included herein as Exhibit 99.1.
It should be further noted that the Registrant filed a Current
Report on Form 8-K for an event of May 15, 1996, reporting a private
placement of $3 million principal amount of 4% Convertible Debentures of
the Registrant due December 1, 1998 pursuant to an exemption under
Regulation S of the Securities Act.
<PAGE>
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Dated: February 12, 1997
ADVANCED MAMMOGRAPHY SYSTEMS,
INC.
By: /s/ Jack Nelson
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Name: Jack Nelson
Title: Chairman
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
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4.1 Form of Warrant to Purchase Common Stock
to Regulation S Subscribers
4.2 Form of Warrant to Purchase Common Stock
to Regulation D Purchasers
4.3 Form of Warrant to Purchase Common Stock
to Placement Agent
10.1 Funding Agreement, dated as of January 31,
1997, among the Registrant, Emerald Capital
Corporation and InterFirst Capital Corporation
10.2 Form of Offshore Securities Subscription
Agreement
10.3 Form of Private Placement Agreement
99.1 Press release, dated February 12, 1997
EXHIBIT 4.1
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Void after 5:00 p.m. New York, New York Time,
on January 31, 2000
This Warrant to Purchase 169,377 shares of Common Stock
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT
(collectively, the "Securities") HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (the "Securities Act") AND MAY
NOT BE SOLD OR TRANSFERRED, UNLESS THE SECURITIES ARE REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION UNDER THE SECURITIES
ACT IS APPLICABLE.
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FORM OF
WARRANT TO PURCHASE COMMON STOCK
OF
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
a Delaware corporation
This is to certify that, FOR VALUE RECEIVED,
or assigns ("the Holder"), is
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entitled to purchase, subject to the provisions of this Warrant, from
Advanced Mammography Systems Inc., a Delaware corporation (the "Company"),
One Hundred Sixty Nine Thousand Three Hundred and Seventy Seven (169,377)
fully paid, validly issued and non-assessable shares of common stock, $0.01
par value, of the Company ("Common Stock"), at any time from the date
hereof through and including January 31, 2000, subject to earlier
termination in accordance with Section (j) hereof ("Exercise Period"). The
Warrant exercise price shall be $1.93 for each share of Common Stock of the
Company. The number of shares of Common Stock to be received upon the
exercise of this Warrant and the price to be paid for each share of Common
Stock may be adjusted from time to time as hereinafter set forth. The
shares of Common Stock deliverable upon such exercise, and as adjusted from
time to time, are hereinafter sometimes referred to as "Warrant Shares" and
the exercise price of a share of Common Stock in effect at any time, and as
adjusted from time to time, is hereinafter sometimes referred to as the
"Exercise Price."
(a) Exercise of Warrant. This Warrant may be
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exercised in whole or in part at any time during the Exercise Period.
During the Exercise Period the Holder shall have the right to exercise this
Warrant into the kind and amount of shares of Common Stock (and other
securities and property (including cash) receivable by a holder of the
number of shares of Common Stock into which this Warrant might have been
exercisable immediately prior thereto pursuant to Section (f) hereof).
This Warrant, subject to the provisions hereof, may be exercised by
presentation and surrender hereof to the Company at its principal office,
or at the office of its stock transfer agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by payment (by wire
transfer) of the Exercise Price for the number of Warrant Shares specified
in such form. As soon as practicable after each such exercise of the
Warrant, but not later than five (5) business days from the date of such
exercise, the Company shall issue and deliver to the Holder (or the person
designated in the Purchase Form) a certificate or certificates for the
Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. The Common Stock shall be issued without any
restrictive legends (except that the certificate may have attached to it on
a separate sheet which shall be stapled to the certificate a legend which
reads as follows: "The Securities covered by the attached certificate have
been issued under Regulation S and may not be offered or sold within the
United States or to or for the account or benefit of U.S. persons until
March 19, 1997 and after this date shall be freely transferable on the
books and records of the Company and it's Transfer Agent"). If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable thereunder.
(b) Reservation of Shares. The Company shall at all
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times reserve for issuance and/or delivery upon exercise of this Warrant
such number of shares of its Common Stock as shall be required for issuance
and delivery upon exercise of the Warrant.
(c) Fractional Shares. No fractional shares or script
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representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any
exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current market value of a share
(the "Trading Price"), determined as follows:
(1) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such Exchange or
listed for trading on the NASDAQ System, the current market value shall be
the last reported sale price of the Common Stock on such Exchange or System
on the last business day prior to the date of exercise of this Warrant or
if no such sale is made on such day, the average closing bid and asked
prices for such day on such Exchange or System; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the mean of
the last reported bid and asked prices reported by the National Quotation
Bureau, Inc. on the last business day prior to the date of the exercise of
this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so reported,
the current market value shall be an amount not less than book value
thereof as at the end of the most recent fiscal year of the Company ending
prior to the date of the exercise of the Warrant, determined in such
reasonable manner as may be prescribed by the Board of Directors of the
Company.
(d) Exchange, Transfer, Assignment or Loss of Warrant.
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This Warrant is exchangeable, without expense, at the option of the Holder,
upon presentation and surrender hereof to the Company or at the office of
its stock transfer agent, if any, for other warrants of different
denominations entitling the holder thereof to purchase in the aggregate the
same number of shares of Common Stock purchasable hereunder. Upon
surrender of this Warrant to the Company at its principal office or at the
office of its stock transfer agent, if any, 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 in the
name of the assignee named in such instrument of assignment and this
Warrant shall promptly be canceled. The term "Warrant" as used herein
includes any Warrants into which this Warrant may be divided or exchanged.
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall
be at any time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by
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virtue hereof, be entitled to any rights of a stockholder in the Company,
either at law or equity except with respect to certificates representing
share of Common Stock issued upon exercise of this Warrant. The rights of
the Holder are limited to those expressed in this Warrant and are not
enforceable against the Company except to the extent set forth herein.
Prior to due presentment for registration or transfer of this Warrant, the
Company may deem and treat the Holder as the absolute owner of this Warrant
for purposes of any exercise hereof and for all other purposes of the
Company shall not be affected by any notice to the contrary.
(f) Anti-Dilution Provisions. The Exercise Price in
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effect at any time and the number and kind of securities purchasable upon
the exercise of the Warrants shall be subject to adjustment from time to
time upon the happening of certain events as follows:
(1) In case the Company shall (i) declare a stock dividend
or make a distribution on its outstanding shares of Common Stock in shares
of Common Stock, (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or (iii) combine or
reclassify its outstanding share of Common Stock into a smaller number of
shares, the Exercise Price in effect at the time of the record date for
such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal
the price determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such action, and the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior
to such action. Such adjustment shall be made successively whenever any
event listed above shall occur.
(2) Whenever the Exercise Price payable upon exercise of
each Warrant is adjusted pursuant to Subsection (1) above, the number of
shares purchasable upon exercise of this Warrant shall simultaneously be
adjusted by multiplying the number of shares initially issuable upon
exercise of this Warrant by the Exercise Price in effect on the date hereof
and dividing the product so obtained by the Exercise Price, as adjusted.
(3) Whenever the Exercise Price is adjusted, as herein
provided, the Company shall promptly cause a notice setting forth the
adjusted Exercise Price and adjusted number of shares issuable upon
exercise of each Warrant to be mailed to the Holders, at their last
addresses appearing in the Warrant register, and shall cause a certified
copy thereof to be mailed to its transfer agent, if any. The Company may
retain a firm of independent certified public accountants selected by the
Board of Directors (who may be the regular accountants employed by the
Company) to make any computation required by this Section (f), and a
certificate signed by such firm shall be conclusive evidence of the
correctness of such adjustment.
(4) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of this
Warrant thereafter shall become entitled to receive any shares of the
Company, other than Common Stock, thereafter the number of such other
shares so receivable upon exercise of this Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Common Stock contained
in Subsection (1) above.
(5) Irrespective of any adjustments in the Exercise Price
or the number or kind of shares purchasable upon exercise of this Warrant,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the similar Warrants
initially issuable pursuant to this Agreement.
(g) Officer's Certificate. Whenever the Exercise
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Price shall be adjusted as required by the provisions of Section (f)
hereof, the Company shall forthwith file in the custody of its Secretary or
an Assistant Secretary at its principal office and with its stock transfer
agent, if any, an officer's certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable detail the facts
requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts as shall be
necessary to show the reason for and the manner computing such adjustment.
Each such officer's certificate shall be made available at all reasonable
times for inspection by the Holder or any holder of a Warrant executed and
delivered pursuant to Section (h) hereof and the Company shall forthwith
after each such adjustment, mail a copy by certified mail of such
certificate to the Holder or any such holder.
(h) Notices to Warrant Holders. So long as this
--------------------------
Warrant shall be outstanding, (i) if the Company shall pay any dividend or
make any distribution upon the Common Stock or (ii) if the Company shall
offer to all the holders of Common Stock for subscription or purchase by
them of any share of any class or any other rights or (iii) if the capital
reorganization of the Company, reclassification of the capital stock of the
Company, consolidation or merger of the Company with or into another
corporation, sale of all or substantially all of the property and assets of
the Company to another corporation or voluntary or involuntary dissolution,
liquidation or winding up of the Company shall be effected, then in any
such case, the Company shall cause to be mailed to the Holder, at least ten
days prior to the date specified in (x) or (y) below, as the case may be, a
notice containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of such
dividend, distribution or rights, or (y) such reclassification,
reorganization, consolidation, merger, sale, dissolution, liquidation or
winding up is to take place and date, if any is to be fixed, as of which
the holders of the Common Stock or other securities shall receive cash or
other property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding up.
Notwithstanding the above, the failure to give such notice shall not affect
the validity of any transaction for which the notice was required to be
given.
(i) Reclassification, Reorganization or Merger. In
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case of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company, or in case of any
consolidation or merger of the Company with or into another corporation,
other than a merger with a subsidiary, in which merger the Company is the
continuing corporation and which 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 case of
any sale to another corporation of the property of the Company as an
entirety, the Company shall, as a condition precedent to such transaction,
cause effective provisions to be made so that the Holder shall have the
right thereafter by exercising this Warrant at any time prior to the
expiration of the Warrant, to purchase the kind and amount of shares of
stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger or sale by a holder of the number of shares of Common Stock which
might have been purchased upon exercise of this Warrant immediately prior
to such reclassification, change consolidation, merger or sale; provided
that, the resulting entity is a publicly traded corporation, otherwise this
Warrant shall terminate upon the closing of such transaction to the extent
then unexercised. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Warrant. The foregoing provisions of
this Section (i) shall similarly apply to successive reclassification,
capital reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers or sales. In the event that in
connection with any such capital reorganization any shares of Common Stock
shall be issued in exchange, conversion, substitution or payment, in whole
or in part, for 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 (1) of Section (f) hereof.
(j) Callable Warrant. This Warrant may be called by
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the Company, at its discretion, if the average Trading Price (as defined in
Section (c) hereof) for any period of twenty (20) consecutive trading days
equals or exceeds 180% of the then Exercise Price. The call price shall be
$0.05 per share of Common Stock exercisable under this Warrant. In case
the Company decides to call this Warrant, it shall give written notice to
the Holder at least ten (10) days prior to the proposed call date (the
"Call Date") describing the call. Any right to exercise this Warrant shall
terminate at 5:00 P.M., New York time, on the Call Date.
(k) Restrictive Period.
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(1) The Holder of this Warrant agrees that during the
Restrictive Period (as defined in Regulation S under the Securities Act as
may be changed from time to time), upon any offer, sale or transfer of this
Warrant or the Warrant Shares (the "Securities") (or any interest therein),
that the Holder, or any successor, or any Professional (as defined in
Section (k) (3) hereof) (except for sales of any Securities registered
under the Securities Act or otherwise exempt from such registration), (A)
will not sell to a U.S. Person or on account of or for the benefit of a
U.S. Person or any one believed to be a U.S. Person, (B) will not engage in
any efforts to sell the Securities in the United States, (C) will, at the
time the buy order or transfer is originated, believe, after reasonable
investigation, that the buyer or transferee is outside the United States,
and (D) will send to a "Professional" acting as agent or principal, a
confirmation or other notice stating that the Professional is subject to
the same restrictions on transfer to U.S. Persons or for the account of
U.S. Persons during the Restrictive Period as provided for herein. At the
request of the Company, the Holder will provide a certificate as to the
foregoing compliance by the Holder with Regulation S. The Company will not
honor or register, and will not be obligated to honor or register, any
transfer or exercise in violation of any of the provisions herein.
(2) For purposes hereof, a "U.S. Person" shall have the
meaning set forth in Rule 902(o) of Regulation S under the Securities Act,
which includes, without limitation, generally any natural person, resident
of the United States, any partnership or corporation organized or
incorporated under the laws of the United States; any estate of which any
executor or administrator is a U.S. Person; any trust of which any trustee
is a U.S. Person; any agency or branch of a foreign entity located in the
United States; any nondiscretionary account or similar account, (other than
estate or trust) held by a dealer or other fiduciary for the benefit or
account of the U.S. Person; any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or, (if an individual) resident of the United
States; and any partnership or corporation if organized or incorporated
under the laws of any foreign jurisdiction and formed by a U.S. Person
principally for the purpose of investing in securities not registered under
the Securities Act, unless it is organized and incorporated and owned by
"accredited investors," as defined under Rule 501(a) under the Securities
Act, who are not natural persons, estates or trust.
(3) A "Professional" is a "distributor" as defined in Rule
902(c) of Regulation S under the Securities Act (generally any underwriter,
or other person, who participates, pursuant to a contractual arrangement,
in the distribution of securities); a dealer as defined in Section 2(12) of
the Securities Act (encompassing those who engage in the business of
trading or dealing in securities as agent, broker or principal); or a
person receiving a selling concession, fee or other enumeration in respect
of the securities sold.
(l) Miscellaneous.
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(1) Binding Effect. The terms and conditions of
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this Warrant shall be binding upon and shall inure to the benefit of the
Company and the Holder.
(2) Successors and Assigns. All the covenants
----------------------
and provisions of this Warrant by or for the benefit of the Company and the
Holder shall bind and inure to the benefit of their respective successors
and permitted assigns hereunder.
(3) Entire Agreement. This Warrant is intended
----------------
by the parties as a final expression of their agreement and intended to be
a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the registration
under the Securities Act by the Company with respect to this Warrant or the
Warrant Shares. This Warrant is being issued pursuant to an Offshore
Securities Subscription Agreement, dated as of February 6, 1997. This
Warrant supersedes all prior agreements and understandings between the
parties with respect to the subject matter herein.
(4) Amendments and Waivers. This Warrant may not
----------------------
be amended, modified or terminated except by a writing signed by all
parties.
(5) Governing Law. This Warrant shall be governed
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by and construed in accordance with the laws of the State of Delaware.
(6) Notices. All written notices, demands or
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requests of any kind, which either party may be required or may desire to
serve on the other in connection with this Warrant, must be served by
registered or certified mail, with postage prepaid and return receipt
requested, to the following address:
If to the Holder, to:
If to the Company, to:
Advanced Mammography Systems, Inc.
Two Executive Drive
Fort Lee, New Jersey 07024
Attn: Jack Nelson, Chairman
or to such other address as either party hereto may duly give to the other.
In lieu of mailing, either party may cause delivery of such notices,
demands and requests to be made by personal service, provided that
acknowledgement of receipt is made. Notice shall be deemed given upon
personal delivery or three(3) days after depositing in the U.S. Mail,
postage prepaid.
(7) Headings. The Article and Section headings
--------
herein are for convenience only and are not part of this Warrant and shall
not effect the interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by the Undersigned, each being duly authorized, as of
the date below.
Advanced Mammography Systems, Inc., a
Delaware Corporation
By:
--------------------------
Name: Jack Nelson
Title: Chairman
Dated: February 6, 1997
<PAGE>
PURCHASE FORM
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Dated: , 199
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The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing
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shares of Common Stock and hereby makes payment of
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in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
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Name
--------------------------------------------------------------
(Please typewrite or print in block letters)
Address
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Signature
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Tax Identification Number
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ASSIGNMENT FORM
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FOR VALUE RECEIVED,
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hereby sells, assigns and transfers unto
Name
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(Please typewrite or print in block letters)
Address
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the right to purchase Common Stock represented by this Warrant to the
extent of shares as to which such right is exercisable and
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does hereby irrevocably constitute and appoint
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Attorney, to transfer the same on the books of the Company with full power
of substitution in the premises.
Date , 199
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Signature
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EXHIBIT 4.2
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Void after 5:00 p.m. New York, New York Time,
on February 6, 2000
This Warrant to Purchase 101,626 shares of Common Stock
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS
WARRANT (collectively, the "Securities") HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (the
"Securities Act") AND MAY NOT BE SOLD OR TRANSFERRED, UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM SUCH REGISTRATION UNDER THE SECURITIES ACT IS
APPLICABLE.
_________________________________
FORM OF
WARRANT TO PURCHASE COMMON STOCK
OF
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
a Delaware corporation
This is to certify that, FOR VALUE RECEIVED, _______
_________________________________________________________________
______________________ ("the Holder"), is entitled to purchase,
subject to the provisions of this Warrant, from Advanced
Mammography Systems Inc., a Delaware corporation (the "Company"),
One Hundred One Thousand Six Hundred and Twenty Six (101,626)
fully paid, validly issued and non-assessable shares of common
stock, $0.01 par value, of the Company ("Common Stock") at any
time from the date hereof through and including February 6, 2000,
subject to earlier termination in accordance with Section (j)
hereof ("Exercise Period"). The Warrant exercise price shall be
$1.93 for each share of Common Stock of the Company. The number
of shares of Common Stock to be received upon the exercise of
this Warrant and the price to be paid for each share of Common
Stock may be adjusted from time to time as hereinafter set forth.
The shares of Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter sometimes referred to
as "Warrant Shares" and the exercise price of a share of Common
Stock in effect at any time, and as adjusted from time to time,
is hereinafter sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant. This Warrant may be
-------------------
exercised in whole or in part at any time during the Exercise
Period. During the Exercise Period the Holder shall have the
right to exercise this Warrant into the kind and amount of shares
of Common Stock (and other securities and property (including
cash) receivable by a holder of the number of shares of Common
Stock into which this Warrant might have been exercisable
immediately prior thereto pursuant to Section (f) hereof). This
Warrant, subject to the provisions hereof, may be exercised by
presentation and surrender hereof to the Company at its principal
office, or at the office of its stock transfer agent, if any,
with the Purchase Form annexed hereto duly executed and
accompanied by payment (by wire transfer) of the Exercise Price
for the number of Warrant Shares specified in such form. As soon
as practicable after each such exercise of the Warrant, but not
later than five (5) business days from the date of such exercise,
the Company shall issue and deliver to the Holder (or the person
designated in the Purchase Form) a certificate or certificates
for the Warrant Shares issuable upon such exercise, registered in
the name of the Holder or its designee. The Common Stock and any
Warrants issued in exchange for this Warrant shall be issued with
such restrictive legends as are required by the Act or the
Regulations thereunder. If this Warrant should be exercised in
part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the
Warrant Shares purchasable thereunder.
(b) Reservation of Shares. The Company shall at all
---------------------
times reserve for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be
required for issuance and delivery upon exercise of the Warrant.
(c) Fractional Shares. No fractional shares or script
-----------------
representing fractional shares shall be issued upon the exercise
of this Warrant. With respect to any fraction of a share called
for upon any exercise hereof, the Company shall pay to the Holder
an amount in cash equal to such fraction multiplied by the
current market value of a share (the "Trading Price"), determined
as follows:
(1) If the Common Stock is listed on a National
Securities Exchange or admitted to unlisted trading privileges on
such Exchange or listed for trading on the NASDAQ System, the
current market value shall be the last reported sale price of the
Common Stock on such Exchange or System on the last business day
prior to the date of exercise of this Warrant or if no such sale
is made on such day, the average closing bid and asked prices for
such day on such Exchange or System; or
(2) If the Common Stock is not so listed or
admitted to unlisted trading privileges, the current market value
shall be the mean of the last reported bid and asked prices
reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of this Warrant;
or
(3) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices
are not so reported, the current market value shall be an amount
not less than book value thereof as at the end of the most recent
fiscal year of the Company ending prior to the date of the
exercise of the Warrant, determined in such reasonable manner as
may be prescribed by the Board of Directors of the Company.
(d) Exchange, Transfer, Assignment or Loss of Warrant.
-------------------------------------------------
This Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the Company
or at the office of its stock transfer agent, if any, for other
warrants of different denominations entitling the holder thereof
to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Upon surrender of this Warrant to
the Company at its principal office or at the office of its stock
transfer agent, if any, 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
in the name of the assignee named in such instrument of
assignment and this Warrant shall promptly be canceled. The term
"Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new
Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this
Warrant so lost, stolen, destroyed, or mutilated shall be at any
time enforceable by anyone.
(e) Rights of the Holder. The Holder shall not, by
--------------------
virtue hereof, be entitled to any rights of a stockholder in the
Company, either at law or equity except with respect to
certificates representing share of Common Stock issued upon
exercise of this Warrant. The rights of the Holder are limited
to those expressed in this Warrant and are not enforceable
against the Company except to the extent set forth herein. Prior
to due presentment for registration or transfer of this Warrant,
the Company may deem and treat the Holder as the absolute owner
of this Warrant for purposes of any exercise hereof and for all
other purposes of the Company shall not be affected by any notice
to the contrary.
(f) Anti-Dilution Provisions. The Exercise Price in
------------------------
effect at any time and the number and kind of securities
purchasable upon the exercise of the Warrants shall be subject to
adjustment from time to time upon the happening of certain events
as follows:
(1) In case the Company shall (i) declare a stock
dividend or make a distribution on its outstanding shares of
Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common Stock into a greater
number of shares, or (iii) combine or reclassify its outstanding
share of Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record date for such
dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so
that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the denominator of which shall be
the number of shares of Common Stock outstanding after giving
effect to such action, and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to
such action. Such adjustment shall be made successively whenever
any event listed above shall occur.
(2) Whenever the Exercise Price payable upon
exercise of each Warrant is adjusted pursuant to Subsection (1)
above, the number of shares purchasable upon exercise of this
Warrant shall simultaneously be adjusted by multiplying the
number of shares initially issuable upon exercise of this Warrant
by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
(3) Whenever the Exercise Price is adjusted, as
herein provided, the Company shall promptly cause a notice
setting forth the adjusted Exercise Price and adjusted number of
shares issuable upon exercise of each Warrant to be mailed to the
Holders, at their last addresses appearing in the Warrant
register, and shall cause a certified copy thereof to be mailed
to its transfer agent, if any. The Company may retain a firm of
independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the
Company) to make any computation required by this Section (f),
and a certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment.
(4) In the event that at any time, as a result of
an adjustment made pursuant to Subsection (1) above, the Holder
of this Warrant thereafter shall become entitled to receive any
shares of the Company, other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
Subsection (1) above.
(5) Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon
exercise of this Warrant, Warrants theretofore or thereafter
issued may continue to express the same price and number and kind
of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
(g) Officer's Certificate. Whenever the Exercise
----------------------
Price shall be adjusted as required by the provisions of Section
(f) hereof, the Company shall forthwith file in the custody of
its Secretary or an Assistant Secretary at its principal office
and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as
herein provided, setting forth in reasonable detail the facts
requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts
as shall be necessary to show the reason for and the manner
computing such adjustment. Each such officer's certificate shall
be made available at all reasonable times for inspection by the
Holder or any holder of a Warrant executed and delivered pursuant
to Section (h) hereof and the Company shall forthwith after each
such adjustment, mail a copy by certified mail of such
certificate to the Holder or any such holder.
(h) Notices to Warrant Holders. So long as this
--------------------------
Warrant shall be outstanding, (i) if the Company shall pay any
dividend or make any distribution upon the Common Stock or (ii)
if the Company shall offer to all the holders of Common Stock for
subscription or purchase by them of any share of any class or any
other rights or (iii) if the capital reorganization of the
Company, reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another
corporation, sale of all or substantially all of the property and
assets of the Company to another corporation or voluntary or
involuntary dissolution, liquidation or winding up of the Company
shall be effected, then in any such case, the Company shall cause
to be mailed to the Holder, at least ten days prior to the date
specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, sale,
dissolution, liquidation or winding up is to take place and date,
if any is to be fixed, as of which the holders of the Common
Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or
winding up. Notwithstanding the above, the failure to give such
notice shall not affect the validity of any transaction for which
the notice was required to be given.
(i) Reclassification, Reorganization or Merger. In
------------------------------------------
case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company, or
in case of any consolidation or merger of the Company with or
into another corporation, other than a merger with a subsidiary,
in which merger the Company is the continuing corporation and
which 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
case of any sale to another corporation of the property of the
Company as an entirety, the Company shall, as a condition
precedent to such transaction, cause effective provisions to be
made so that the Holder shall have the right thereafter by
exercising this Warrant at any time prior to the expiration of
the Warrant, to purchase the kind and amount of shares of stock
and other securities and property receivable upon such
reclassification, capital reorganization and other change,
consolidation, merger or sale by a holder of the number of shares
of Common Stock which might have been purchased upon exercise of
this Warrant immediately prior to such reclassification, change
consolidation, merger or sale; provided that, the resulting
entity is a publicly traded corporation, otherwise this Warrant
shall terminate upon the closing of such transaction to the
extent then unexercised. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Warrant. The foregoing provisions of this Section (i) shall
similarly apply to successive reclassification, capital
reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers or sales. In the event that
in connection with any such capital reorganization any shares of
Common Stock shall be issued in exchange, conversion,
substitution or payment, in whole or in part, for 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 (1) of Section (f) hereof.
(j) Callable Warrant. This Warrant may be called by
----------------
the Company, at its discretion, if the average Trading Price (as
defined in Section (c) hereof) for any period of twenty (20)
consecutive trading days equals or exceeds 180% of the then
Exercise Price. The call price shall be $0.05 per share of
Common Stock exercisable under this Warrant. In case the Company
decides to call this Warrant, it shall give written notice to the
Holder at least ten (10) days prior to the proposed call date
(the "Call Date") describing the call. Any right to exercise
this Warrant shall terminate at 5:00 P.M., New York time, on the
Call Date.
(k) Registration. The Company shall use its best
------------
efforts to register the Warrant Shares underlying this Warrant,
by filing a registration statement with the Securities and
Exchange Commission ("SEC") on Form S-3 or other appropriate form
(the "Form") within sixty (60) days after issuance of this
Warrant and to file any amendments thereto within thirty (30)
days after receipt of an SEC comment letter (subject to
availability of audited financial statements) and the Company
agrees to keep the Form current and effective so long as the
Warrants (including the Warrant Shares that are issued upon the
exercise of this Warrant) are owned by person who had exercised
the Warrants therefore, but not to exceed three (3) years from
the initial issuance of this Warrant. If the Form is not
declared effective by the SEC within one hundred twenty (120)
days after the issuance hereof and maintained effective, then the
Company shall be required to issue to _________________________
______________________________________ within thirty (30) days,
an additional amount of Warrants equal to 12.5% of the number of
Warrants originally issued to _______. As a condition to the
obligation in this Section (k), _______ shall enter into a
customary agreement with the Company regarding the sale of the
underlying Warrant Shares and mutual indemnification. In the
event the Holder exercises this Warrant at a time when there is
no effective Form as to the Warrant Shares being acquired upon
such exercise, the Holder or its designee shall provide such
representations with respect to its purchase, and the Company may
place such legends on certificates for the Warrant Shares as is
required to ensure compliance with the private placement
exemption under the Securities Act.
(l) Miscellaneous.
-------------
(1) Binding Effect. The terms and conditions of
--------------
this Warrant shall be binding upon and shall inure to the benefit
of the Company and the Holder.
(2) Successors and Assigns. All the covenants
----------------------
and provisions of this Warrant by or for the benefit of the
Company and the Holder shall bind and inure to the benefit of
their respective successors and permitted assigns hereunder.
(3) Entire Agreement. This Warrant is intended
----------------
by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights
under the Securities Act granted by the Company with respect to
this Warrant or the Warrant Shares. This Warrant is issued
pursuant to a Private Placement Agreement, dated February 5,
1997, between the Company and Kessler. This Warrant supersedes
all prior agreements and understandings between the parties with
respect to the subject matter herein.
(4) Amendments and Waivers. This Warrant may not
----------------------
be amended, modified or terminated except by a writing signed by
all parties.
(5) Governing Law. This Warrant shall be governed
-------------
by and construed in accordance with the laws of the State of
Delaware.
(6) Notices. All written notices, demands or
-------
requests of any kind, which either party may be required or may
desire to serve on the other in connection with this Warrant,
must be served by registered or certified mail, with postage
prepaid and return receipt requested, to the following address:
If to the Holder, to:
If to the Company, to:
Advanced Mammography Systems, Inc.
Two Executive Drive
Fort Lee, New Jersey 07024
Attn: Jack Nelson, Chairman
or to such other address as either party hereto may duly give to
the other. In lieu of mailing, either party may cause delivery
of such notices, demands and requests to be made by personal
service, provided that acknowledgement of receipt is made.
Notice shall be deemed given upon personal delivery or three(3)
days after depositing in the U.S. Mail, postage prepaid.
(7) Headings. The Article and Section headings
--------
herein are for convenience only and are not part of this Warrant
and shall not effect the interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant
to be signed and attested by the Undersigned, each being duly
authorized, as of the date below.
Advanced Mammography Systems,
Inc., a Delaware Corporation
By: ______________________
Name: Jack Nelson
Title: Chairman
Dated: February 5, 1997
<PAGE>
PURCHASE FORM
---------------
Dated: ___________, 199__
The undersigned hereby irrevocably elects to exercise
the within Warrant to the extent of purchasing __________________
shares of Common Stock and hereby makes payment of ____________
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
---------------------------------------
Name
______________________________________________________________
(Please typewrite or print in block letters)
Address
______________________________________________________________
Signature
______________________________________________________________
Tax Identification Number_____________________________________
_____________________
ASSIGNMENT FORM
-----------------
FOR VALUE RECEIVED,
_____________________________________
hereby sells, assigns and transfers unto
Name
______________________________________________________________
(Please typewrite or print in block letters)
Address
______________________________________________________________
the right to purchase Common Stock represented by this Warrant to
the extent of ______________ shares as to which such right is
exercisable 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.
Date ____________________________, 199__
Signature ______________________________
EXHIBIT 4.3
------------
Void after 5:00 p.m. New York, New York Time,
on January 31, 2000
Warrant to Purchase 243,902 shares of Common Stock
(Consisting of 121,951 Class A Warrants and
121,951 Class B Warrants)
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS
WARRANT (collectively, the "Securities") HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (the
"Securities Act") AND MAY NOT BE SOLD OR TRANSFERRED, UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM SUCH REGISTRATION UNDER THE SECURITIES ACT IS
APPLICABLE.
_________________________________
FORM OF
WARRANT TO PURCHASE COMMON STOCK
OF
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
a Delaware corporation
This is to certify that, FOR VALUE RECEIVED, InterFirst
Capital Corporation, or assigns (the "Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from
Advanced Mammography Systems, Inc., a Delaware corporation (the
"Company"), Two Hundred Forty Three Thousand Nine Hundred and Two
(243,902) fully paid, validly issued and non-assessable shares of
common stock, $0.01 par value, of the Company ("Common Stock"),
subject to prior vesting of the Class B Warrants, at any time
through and including January 31, 2000 ("Expiration Date"). The
Warrant exercise price shall be $1.68 for each share of Common
Stock of the Company. The number of shares of Common Stock to be
received upon the exercise of this Warrant and the price to be
paid for each share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as "Warrant Shares"
and the exercise price of a share of Common Stock in effect at
any time and as adjusted from time to time, is hereinafter
sometimes referred to as the "Exercise Price."
(a) Exercise of Warrant.
--------------------
(1) The Warrants are being issued as additional
compensation to InterFirst Capital Corporation ("InterFirst") in
connection with the sale by the Company of its securities,
including Subscription Warrants for an initial aggregate of
1,016,260 shares of Common Stock issued as of the date hereof
pursuant to Offshore Securities Subscription Agreements and
Placement Warrants for an initial aggregate of 203,252 shares of
Common Stock issued to Saundra J. Kessler in her sole capacity
and as guardian pursuant to Private Placement Agreements. The
exercise period (the "Exercise Period") of the Warrants shall be
as follows: the Class A Warrants shall commence on the date
hereof and terminate on the Expiration Date, and the Class B
Warrants shall commence for each Warrant thereof upon the
exercise of every ten (10) Subscription Warrants and/or Placement
Warrants (as initially constituted) and terminate on the
Expiration Date. For every ten (10) Subscription Warrants and/or
Placement Warrants which expire or terminate unexercised, one
Class B Warrant shall terminate simultaneously with the foregoing
expiration or termination. Other than the different Exercise
Periods, the terms of the Class A Warrants and the Class B
Warrants shall be identical.
(2) This Warrant may be exercised in whole or in
part at any time during the respective Exercise Periods. During
the applicable Exercise Period the Holder shall have the right to
exercise this Warrant into shares of Common Stock (and other
securities and property (including cash) receivable by a holder
of the number of shares of Common Stock into which this Warrant
might have been exercisable immediately prior thereto pursuant to
Section (f) hereof). This Warrant, subject to the provisions
hereof, may be exercised by presentation and surrender hereof to
the Company at its principal office, or at the office of its
stock transfer agent, if any, with the Purchase Form annexed
hereto duly executed and accompanied by payment (by wire
transfer) of the Exercise Price for the number of Warrant Shares
specified in such form. As soon as practicable after each such
exercise of the Warrant, but not later than five (5) business
days from the date of such exercise, the Company shall issue and
deliver to the Holder (or the person designated in the Purchase
Form) a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder
or its designee. The Common Stock and any Warrants issued in
exchange for this Warrant shall be issued with such restrictive
legends as are required by the Securities Act or the Regulations
there under. If this Warrant should be exercised in part only,
the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the
Warrant Shares purchasable thereunder.
(b) Reservation of Shares.
--------------------- The Company shall at all
times reserve for issuance and/or delivery upon exercise of this
Warrant such number of shares of its Common Stock as shall be
required for issuance and delivery upon exercise of the Warrant.
(c) Fractional Shares.
------------------ No fractional shares or
script representing fractional shares shall be issued upon the
exercise of this Warrant. With respect to any fraction of a
share called for upon any exercise hereof, the Company shall pay
to the Holder an amount in cash equal to such fraction multiplied
by the current market value of a share, determined as follows:
(1) If the Common Stock is listed on a National
Securities Exchange or admitted to unlisted trading privileges on
such Exchange or listed for trading on the NASDAQ System, the
current market value shall be the last reported sale price of the
Common Stock on such Exchange or System on the last business day
prior to the date of exercise of this Warrant or if no such sale
is made on such day, the average closing bid and asked prices for
such day on such Exchange or System; or
(2) If the Common Stock is not so listed or
admitted to unlisted trading privileges, the current market value
shall be the mean of the last reported bid and asked prices
reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of this Warrant;
or
(3) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices
are not so reported, the current market value shall be an amount
not less than book value thereof as at the end of the most recent
fiscal year of the Company ending prior to the date of the
exercise of the Warrant, determined in such reasonable manner as
may be prescribed by the Board of Directors of the Company.
(d) Exchange, Transfer, Assignment or Loss of Warrant.
-------------------------------------------------
This Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the Company
or at the office of its stock transfer agent, if any, for other
warrants of different denominations entitling the holder thereof
to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Upon surrender of this Warrant to
the Company at its principal office or at the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto
duly executed and funds sufficient to pay any transfer tax and
any representations or agreements required under the Securities
Act, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of
assignment and this Warrant shall promptly be canceled. The term
"Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the
Company will execute and deliver a new Warrant of like tenor and
date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of
the Company, whether or not this Warrant so lost, stolen,
destroyed, or mutilated shall be at any time enforceable by
anyone.
(e) Rights of the Holder.
--------------------- The Holder shall not, by
virtue hereof, be entitled to any rights of a stockholder in the
Company, either at law or equity except with respect to
certificates representing shares of Common Stock issued upon
exercise of this Warrant. The rights of the Holder are limited
to those expressed in this Warrant and are not enforceable
against the Company except to the extent set forth herein. Prior
to due presentment for registration or transfer of this Warrant,
the Company may deem and treat the Holder as the absolute owner
of this Warrant for purposes of any exercise hereof and for all
other purposes of the Company shall not be affected by any notice
to the contrary.
(f) Anti-Dilution Provisions.
------------------------- The Exercise Price
in effect at any time and the number and kind of securities
purchasable upon the exercise of the Warrants shall be subject to
adjustment from time to time upon the happening of certain events
as follows:
(1) In case the Company shall (i) declare a stock
dividend or make a distribution on its outstanding shares of
Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common Stock into a greater
number of shares, or (iii) combine or reclassify its outstanding
share of Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record date for such
dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so
that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the denominator of which shall be
the number of shares of Common Stock outstanding after giving
effect to such action, and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to
such action. Such adjustment shall be made successively whenever
any event listed above shall occur.
(2) Whenever the Exercise Price payable upon
exercise of each Warrant is adjusted pursuant to Subsection (1)
above, the number of shares purchasable upon exercise of this
Warrant shall simultaneously be adjusted by multiplying the
number of shares initially issuable upon exercise of this Warrant
by the Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
(3) Whenever the Exercise Price is adjusted, as
herein provided, the Company shall promptly cause a notice
setting forth the adjusted Exercise Price and adjusted number of
shares issuable upon exercise of each Warrant to be mailed to the
Holders, at their last addresses appearing in the Warrant
Register, and shall cause a certified copy thereof to be mailed
to its transfer agent, if any. The Company may retain a firm of
independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the
Company) to make any computation required by this Section (f),
and a certificate signed by such firm shall be conclusive
evidence of the correctness of such adjustment.
(4) In the event that at any time, as a result of
an adjustment made pursuant to Subsection (1) above, the Holder
of this Warrant thereafter shall become entitled to receive any
shares of the Company, other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
Subsection (1) above.
(5) Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon
exercise of this Warrant, Warrants theretofore or thereafter
issued may continue to express the same price and number and kind
of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
(g) Officer's Certificate.
---------------------- Whenever the Exercise
Price shall be adjusted as required by the provisions of Section
(f) hereof, the Company shall forthwith file in the custody of
its Secretary or an Assistant Secretary at its principal office
and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as
herein provided, setting forth in reasonable detail the facts
requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts
as shall be necessary to show the reason for and the manner
computing such adjustment. Each such officer's certificate shall
be made available at all reasonable times for inspection by the
Holder or any holder of a Warrant executed and delivered pursuant
to Section (h) hereof and the Company shall forthwith after each
such adjustment, mail a copy by certified mail of such
certificate to the Holder or any such holder.
(h) Notices to Warrant Holders.
--------------------------- So long as this
Warrant shall be outstanding, (i) if the Company shall pay any
dividend or make any distribution upon the Common Stock or (ii)
if the Company shall offer to all the holders of Common Stock for
subscription or purchase by them of any share of any class or any
other rights or (iii) if the capital reorganization of the
Company, reclassification of the capital stock of the Company,
consolidation or merger of the Company with or into another
corporation, sale of all or substantially all of the property and
assets of the Company to another corporation or voluntary or
involuntary dissolution, liquidation or winding up of the Company
shall be effected, then in any such case, the Company shall cause
to be mailed to the Holder, at least ten days prior to the date
specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating
the date on which (x) a record is to be taken for the purpose of
such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, sale,
dissolution, liquidation or winding up is to take place and date,
if any is to be fixed, as of which the holders of the Common
Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or
winding up. Notwithstanding the above, the failure to give such
notice shall not affect the validity of any transaction for which
the notice was required to be given.
(i) Reclassification, Reorganization or Merger.
------------------------------------------- In
case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the Company, or
in case of any consolidation or merger of the Company with or
into another corporation, other than a merger with a subsidiary,
in which merger the Company is the continuing corporation and
which 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
case of any sale to another corporation of the property of the
Company as an entirety, the Company shall, as a condition
precedent to such transaction, cause effective provisions to be
made so that the Holder shall have the right thereafter by
exercising this Warrant at any time prior to the expiration of
the Warrant, to purchase the kind and amount of shares of stock
and other securities and property receivable upon such
reclassification, capital reorganization and other change,
consolidation, merger or sale by a holder of the number of shares
of Common Stock which might have been purchased upon exercise of
this Warrant immediately prior to such reclassification, change,
consolidation, merger or sale; provided that, the resulting
entity is a publicly traded corporation, otherwise this Warrant
shall terminate upon the closing of such transaction to the
extent then unexercised. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Warrant. The foregoing provisions of this Section (i) shall
similarly apply to successive reclassification, capital
reorganizations and changes of shares of Common Stock and to
successive consolidations, mergers or sales. In the event that
in connection with any such capital reorganization and any shares
of Common Stock shall be issued in exchange, conversion,
substitution or payment, in whole or in part, for 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 (1) of Section (f) hereof.
(j) Non-Callable Warrant.
--------------------- This Warrant may not be
called by the Company at any time.
(k) Registration.
------------- The Company shall use its best
efforts to register the Warrant Shares underlying this Warrant,
by filing a registration statement with the Securities and
Exchange Commission ("SEC") on Form S-3 or other appropriate form
(the "Form") within sixty (60) days after issuance of this
Warrant and to file any amendments thereto within thirty (30)
days after receipt of an SEC comment letter (subject to
availability of audited financial statements) and the Company
agrees to keep the Form current and effective so long as the
Warrants (including the Warrant Shares that are issued upon the
exercise of this Warrant) are owned by person who had exercised
the Warrants therefore, but not to exceed three (3) years from
the initial issuance of this Warrant. If the Form is not
declared effective by the SEC within one hundred twenty (120)
days after the issuance hereof and maintained effective, then the
Company shall be required to issue to InterFirst within thirty
(30) days, an additional amount of Warrants equal to 12.5% of the
number of Warrants originally issued to InterFirst. As a
condition to the obligation in this Section (k), InterFirst shall
enter into a customary agreement with the Company regarding the
sale of the underlying Warrant Shares and mutual indemnification.
In the event the Holder exercises this Warrant at a time when
there is no effective Form as to the Warrant Shares being
acquired upon such exercise, the Holder or its designee shall
provide such representations with respect to its purchase, and
the Company may place such legends on certificates for the
Warrant Shares as is required to ensure compliance with the
private placement exemption under the Securities Act.
(l) Miscellaneous.
-------------
(1) Binding Effect.
--------------- The terms and conditions of
this Warrant shall be binding upon and shall inure to the benefit
of the Company and the Holder.
(2) Successors and Assigns.
----------------------- All the covenants and
provisions of this Warrant by or for the benefit of the Company
and the Holder shall bind and inure to the benefit of their
respective successors and permitted assigns hereunder.
(3) Entire Agreement.
----------------- This Warrant is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights under
the Securities Act granted by the Company with respect to this
Warrant or the Warrant Shares. This Warrant is issued pursuant
to a Funding Agreement, dated as of January 31, 1997, among the
Company, InterFirst and Emerald Capital Corporation. This
Warrant supersedes all prior agreements and understandings
between the parties with respect to the subject matter herein.
(4) Amendments and Waivers.
----------------------- This Warrant may not be
amended, modified or terminated except by a writing signed by all
parties.
(5) Governing Law.
-------------- This Warrant shall be governed by
and construed in accordance with the laws of the State of
Delaware.
(6) Notices.
-------- All written notices, demands or requests
of any kind, which either party may be required or may desire to
serve on the other in connection with this Warrant, must be
served by registered or certified mail, with postage prepaid and
return receipt requested, to the following address:
If to the Holder, to:
InterFirst Capital Corporation
10866 Wilshire Blvd.
Fourth Floor
Los Angeles, California 90024
Attention: Paul Kessler
Managing Director, Corporate Finance
If to the Company, to:
Advanced Mammography Systems, Inc.
Two Executive Drive
Fort Lee, New Jersey 07024
Attn: Jack Nelson, Chairman
or to such other address as either party hereto may duly give to
the other. In lieu of mailing, either party may cause delivery
of such notices, demands and requests to be made by personal
service, provided that acknowledgement of receipt is made.
Notice shall be deemed given upon personal delivery or three(3)
days after depositing in the U.S. Mail, postage prepaid.
(7) Headings.
--------- The Article and Section headings herein
are for convenience only and are not part of this Warrant and
shall not effect the interpretation thereof.
[SIGNATURE PAGE APPEARS ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant
to be signed and attested by the Undersigned, each being duly
authorized, as of the date below.
Advanced Mammography Systems,
Inc., Delaware Corporation
By: _________________________
Name: Jack Nelson
Title: Chairman
February 6, 1997
<PAGE>
PURCHASE FORM
---------------
Dated: ___________, 199__
The undersigned hereby irrevocably elects to exercise
the within Warrant to the extent of purchasing __________________
shares of Common Stock and hereby makes payment of ____________
in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name
______________________________________________________________
(Please typewrite or print in block letters)
Address
______________________________________________________________
Signature ____________________________________________________
Tax Identification Number ____________________________________
_____________________
ASSIGNMENT FORM
FOR VALUE RECEIVED,
_____________________________________
hereby sells, assigns and transfers unto
Name
______________________________________________________________
(Please typewrite or print in block letters)
Address
___________________________________________________________
the right to purchase Common Stock represented by this (Class A/
Class B) Warrant to the extent of ______________ shares as to
which such right is exercisable 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.
Date ____________________________, 199__
Signature ______________________________
EXHIBIT 10.1
------------
FUNDING AGREEMENT
This Funding Agreement (hereinafter referred to as "Agreement"), is
entered into as of the 31st day of January, 1997 by and among Advanced
Mammography Systems, Inc. (the "Company"), Emerald Capital Corporation
("Lender") and InterFirst Capital Corporation ("InterFirst") with reference
to the following:
A. Whereas, the Company desires a funding facility (the "Funding
Facility") in the amount of up to $10,000,000.00 and the Lender has sources
to provide the Funding Facility and which would be provided at the
discretion of the Lender.
B. Whereas, in connection with the Funding Facility the Company will
sell to the Lender or its assigns (the "Investor"), shares of the common
stock, par value $0.01 (the "Stock") of the Company at an aggregate
purchase price of $1,250,000, with the price per share determined by the
closing bid price on January 31, 1997, less 27% (the "Purchase Price"),
plus one warrant (the "Warrant") for each share of stock purchased, with an
exercise price equal to 115% of the closing bid price on January 31, 1997,
(the "Exercise Price"), and shall expire on January 31, 2000. The Stock
and Warrants are to be issued pursuant to Regulation S or Regulation D.
The Warrants will be callable, if the bid price of the Stock of the Company
averages 180% of the Purchase Price for 20 consecutive trading days. Upon
execution of this Agreement, the transaction will close on or before
February 6, 1997.
C. Whereas, the Company and Lender are desirous of entering into an
agreement whereby InterFirst will be paid a placement distribution fee by
the Company.
NOW, THEREFORE, IN CONSIDERATION of and in reliance upon the
respective representations and warranties, covenants, terms and conditions
herein contained, the parties agree as follows:
1. FUNDING FACILITY The Lender hereby grants to the Company a
----------------
Funding Facility for $10,000,000, which will be an unsecured revolving
facility so that when prior advances are repaid, those funds again become
available for use by the Company. The interest rate shall be fixed at the
prime plus 1.5%, on the outstanding balance from date of funding. The
Company will make a written request to the lender for a draw down on the
Funding Facility giving details of the proposed use of the funds. The
lender will have five business days to accept the request or reject the
request in its sole discretion. The funds will be used by the Company for
any corporate purpose. Each advance shall be repaid within one year of the
advance, with interest. Lender, with the prior approval of the Lender, may
convert a portion of the outstanding balance to Stock of the Company,
according to such terms as may be agreed upon at time of issuance. This
Funding Facility shall be nonexclusive and the Company is free to obtain
other forms of financing and through sources other than the Lender.
2. FEES. Company agrees to pay to InterFirst or its assigns a
----
placement distribution fee of Ten percent (10%) and the Investors Counsels
fees of One and One Quarter percent (1 1/4) ("Fees") of the gross proceeds
in connection with the sale of the Stock and the exercise of the Warrants.
The legal fees are to be agreed upon for the purchase of Stock (not in
connection with the exercise of the Warrants) and/or the conversion of a
portion of the Funding Facility to Stock.
3. PAYMENT OF FEES. The Fees shall be payable at the closing of
---------------
any transaction under the Funding Facility for the purchase of Stock or the
exercise of the Warrants, and/or the conversion of a portion of the funding
facility to Stock, prior to the distribution of the net sales proceeds to
the Company. The Fees shall be paid simultaneous with the funds being
transferred to the Company. InterFirst and Investors Counsel, shall be
entitled to advise and notify the Investor and the Company of any Fees due
to InterFirst and Investors Counsel from the gross proceeds from any of the
transactions under this Agreement. InterFirst and Counsel shall be
entitled to submit directly to such Investor a demand or claim for the
payment of the fees at the closing of and transaction under this Funding
Facility and if not paid by the Investor then the Company shall pay the
Fees of InterFirst and Investors counsel, assuming the Company receives the
gross proceeds.
4. PLACEMENT WARRANTS. InterFirst or its assigns, shall receive
------------------
non-callable Three (3) year warrants to purchase common shares of the
Company at the price which shall be the closing bid price on the day of
closing of any transaction under this Agreement (the "Placement
Warrants"). The number of Placement Warrant to be issued to InterFirst
shall be Ten Percent (10%) of the number of Warrants issued to the
Warrant Holders, and/or for any Stock issued in connection with this
Agreement. The Placement Warrants and the underlying common stock will
be issued under Regulation D and InterFirst shall make the customary
Regulation D representations. Placement Warrants issuable with respect
to the Stock and Warrants shall rest upon and in proportion to the
purchase of the Stock and the exercise of the Warrants, as applicable.
5. REGISTRATION. The Company shall use its best efforts to register
------------
the Stock underlying the Placement Warrants, by filing a registration
statement with the Securities and Exchange Commission ("SEC") on Form S-3
or other appropriate form (the "Form") within 60 days after issuance of the
Placement Warrants and to file any amendments thereto within 30 days after
receipt of an SEC comment letter (subject to availability of audited
financial statements) and the Company agrees to keep the Form current and
effective so long as the Placement Warrants (including the common stock
that is issued upon the exercise of the warrant) ("Placement Warrants") are
owned by the holder of the Placement warrants, but not to exceed three
years from the date hereof. If the Company fails to fulfill its
obligations set forth in the preceding sentence as to the Form, then the
Company shall required to issue to InterFirst within 30 days, an additional
amount of Placement Warrants equal to 12.5% of the number of Placement
Warrants originally issued to InterFirst.
6. CONFIDENTIALITY. Company and Lender agree that the source of
---------------
funds are to remain strictly confidential between Company and Lender only.
Neither Company nor Lender shall divulge or distribute the contents of this
Agreement to anyone else or use this Agreement in any way except as
intended between the parties hereto, subject to such disclosure as may be
required by law, as advised by Counsel to the Company. In addition, the
Company shall hold and keep confidential any information regarding the
identity and financial status of any investors/purchasers and Lender shall
hold and keep confidential any non-public information regarding the
Company.
7. INDEMNIFICATION. The Company hereby agrees to indemnify Lender
---------------
and InterFirst for and hold them harmless against any loss, liability,
damage, claim or expense (including the reasonable fees and disbursements
of its attorneys) incurred by or asserted against Lender and InterFirst,
arising out of or in connection with it entering into this Agreement, the
performance of its duties hereunder and otherwise in respect hereof,
including the costs and expenses of defending itself against any claim or
liability in connection with this Agreement, except that the Company shall
not be liable hereunder as to matters in respect of which Lender or
InterFirst is determined to have acted with gross negligence or in bad
faith. Lender and InterFirst shall have no liability to the Investor or
the Company, or any other person in respect to any action taken or any
failure to act in respect of this Agreement if such action was taken of
omitted to be taken in good faith, and Lender and InterFirst shall be
entitled to rely in this regard on the advice of counsel.
8. MISCELLANEOUS.
-------------
a. ENTIRE AGREEMENT. This Agreement constitutes the entire
----------------
agreement among the parties pertaining to the subject matter hereof. No
supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by all the parties. No waiver shall be binding
unless executed in writing by the party making the waiver.
b. COUNTERPARTS. This Agreement may be executed simultaneously
------------
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
Facsimile signatures may be acceptable for the purpose of execution of this
Agreement.
c. ASSIGNMENT. The rights and obligations granted hereunder
----------
may not be assigned to any third party without the prior written consent of
the other party. Upon any valid assignment, this Agreement shall be
binding on, and shall inure to the benefit of, the parties to it and their
respective heirs, legal representatives, successors and assigns.
d. ATTORNEYS' FEES. If any legal action is brought for
---------------
the violation or breach of this Agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys' fees and other
costs in connection therewith.
e. GOVERNING LAW. This Agreement shall be construed in
-------------
accordance with and governed by the laws of the State of California.
f. ARBITRATION. The parties hereto agree that any controversy
-----------
or claim arising under this Agreement will be settled by arbitration in
accordance with the Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court or tribunal having jurisdiction thereof. The arbitration shall be
commenced within 60 days of the date of submission to arbitration and the
decision of the arbitrators shall be received within 30 days of the
commencement of the arbitration. The findings of such arbitration shall be
final and binding on all parties thereto and neither party shall have the
right to appeal such finding to any other forum. The place of arbitration
will be the County of Los Angeles, State of California.
g. SEVERABILITY. If any portion of this Agreement shall be
------------
declared or determined to be invalid, the remainder hereof shall
nevertheless remain in full force and effect.
h. NOTICE. All written notices, demands or requests of any
------
kind, which either party may be required or may desire to serve on the
other in connection with this Agreement, must be served by registered or
certified mail, with postage prepaid and return receipt requested. In lieu
of mailing, either party may cause delivery of such notices, demands and
requests to be made by personal service, provided that acknowledgment of
receipt is made. Notice shall be deemed given upon personal delivery or
three (3) days after depositing in the U.S. Mail, postage prepaid.
Agreement continues on the next page
<PAGE>
i. FURTHER ASSURANCES. Each party agrees to execute and
------------------
acknowledge such other instruments as may be reasonably necessary to effect
the transactions contemplated herein.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the date herein first written above.
"Company"
Advanced Mammography Systems, Inc.
By: /s/ Jack Nelson
--------------------------
"Lender"
Emerald Capital Corporation
By: /s/ Yolanda Herik
--------------------------
Yolanda Herik, President
InterFirst"
InterFirst Capital Corporation
By: /s/ Paul Kessler
---------------------------
EXHIBIT 10.2
------------
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
---------------------------------------------
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT is executed
in reliance upon the transaction "safe harbor" afforded by
Regulation S ("Regulation S") as promulgated by the Securities
and Exchange Commission ("SEC"), under the Securities Act of
1933, as amended ("1933 Act").
This Agreement (hereinafter referred to as "Agreement"), is
entered into as of the __ ST day of February, 1997 by and between
Advanced Mammography Systems, Inc. (the "Issuer") and the buyer
---------
as setforth on page seven hereof (the "Buyer") with reference to
-------------------------------
the following:
NOW, THEREFORE, IN CONSIDERATION of and in reliance upon the
respective representations and warranties, covenants, terms and
conditions herein contained, the parties agree as follows:
1. PURCHASE OF STOCK AND WARRANTS. Buyer shall purchase
169,377 common shares of the Issuer $0.01 par value (the Stock )
of Issuer at $1.23 per share and 169,377 Warrants in the form
attached hereto at a Exercise Price of $1.93 per share (the
Warrant ). The Stock and the Warrants shall be issued under
Regulation S.
2. PAYMENT OF FEES. The Issuer agrees to pay to
InterFirst or its assigns a placement distribution fee of Ten
percent (10%) and the Investors Counsels fees of One and One
Quarter percent (1 1/4)( Fees ) of the gross proceeds in
connection with the sale of the Stock and the exercise of the
Warrant. The Fees shall be paid simultaneous with the funds
being transferred to the Issuer. InterFirst and Investors
Counsel, shall be entitled to advise and notify the Investor and
the Company of any Fees due to InterFirst and Investors Counsel
from the gross proceeds from any of the transactions under this
Agreement. InterFirst and Counsel shall be entitled to submit
directly to such Investor a demand or claim for the payment of
the fees at the closing of and transaction under this Agreement
and if not paid by the Investor then the Company shall pay the
Fees of InterFirst and Investors Counsel, assuming the Company
receives the gross proceeds.
3 SUBSCRIBER REPRESENTATIONS; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
a. Offshore Transaction. Buyer represents and
Warrant to Issuer as follows:
(i) Buyer does not have any of its securities
registered under the Securities Exchange Act of 1934 (the
"Exchange Act") and is not a U.S. Person and is not owned by U.S.
Persons as defined in Regulation S and herein;
(ii) At the time the buy order to purchase the
Stock and Warrant was originated, and at the time this Agreement
was executed and delivered, Buyer was outside the United States;
(iii) No offer to purchase the Stock and Warrant
was made in the United States nor were any "directed selling
efforts" as defined in Rule 902 of Regulation S made in the
United States by Buyer or any of its affiliates;
(iv) Buyer is purchasing the Stock and Warrant
for Buyer's own account and for investment purposes and not with
the view towards distribution. Buyer does not have any contract,
understanding or arrangement with any person to sell, transfer or
grant participation to such person or any third person with
respect to the Stock and Warrant;
(v) All subsequent offers and sales of the Stock
and Warrant shall be made in compliance with Regulation S,
pursuant to registration of the Stock and Warrant under the 1933
Act or pursuant to an exemption from such registration;
(vi) Buyer understands that the Stock and Warrant
are being offered and sold to Buyer in reliance on Regulation S
safe harbor from the registration requirements of the 1933 Act
and that the Issuer is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of Buyer set forth herein in order to determine
the applicability of such safe harbor and the suitability of
buyer to acquire the Stock and Warrant;
(vii) Buyer acknowledges that Buyer has received
and reviewed the information supplied by the Company pursuant to
Section 4 hereof;
(viii) Buyer agrees that from the date hereof
until the forty-first (41st) day after the purchase of the Stock
and Warrant offered pursuant to Regulation S (the "Restrictive
Period"), that the Buyer, or any successor, or any Professional
(as defined in Section 3a(x) hereof) (except for sales of any
Stock and Warrant registered under the 1933 Act or otherwise
exempt from such registration) (a) will not sell the Stock or the
Warrant to a U.S. Person or for the account or benefit of a U.S.
Person or anyone believed to be a U.S. Person, (b) will not
engage in any efforts to sell the Stock or Warrant in the United
States, (c) will send to a Professional acting as agent or
principal, a confirmation or other notice stating that the
Professional is subject to the same restrictions on transfer to
U.S. Persons or for the account of U.S. Persons during the
Restrictive Period as provided herein , (d) has complied with the
"Offering Restrictions" as defined in Section 902(h)(1), and (e)
on and after the forty-first (41st) days after the purchase of
the Stock and Warrants will offer and sell the Stock and Warrants
in compliance with the safe harbor provisions contained in
Regulation S or pursuant to any exemption from registration under
the 1933 Act. Issuer will not honor or register and will not be
obligated to honor or register any transfer in violation of these
provisions; to assure full compliance with the restrictions
placed on the resale of securities offered pursuant to Regulation
S, the Issuer shall staple an attachment to the certificates
evidencing the Stock and Warrant, which shall bear the
restrictive legend attached hereto as Exhibit "A", and provided
the Issuer with a representation certificate certifying
compliance with Regulation S. The Stock and Warrant and the
Common Stock to be issued upon the exercise of the Warrant, shall
not make reference to the restrictive legend attached thereto,
and shall be freely transferable on the books and records of the
Issuer and its Transfer Agent, subject to the restrictions set
forth in this Agreement and in such Warrant. Issuer will not
honor or register, any transfer or exercise in violation of any
provision of the Act.
(ix) For purposes hereof, in general, a "U.S.
Person" means any natural person, resident of the United States;
any partnership or corporation organized or incorporated under
the laws of the United States or any state or territory thereof;
any estate of which any executor or administrator is a U.S.
Person; any trust of which any trustee is a U.S. Person; any
agency or branch of a foreign entity located in the United
States; any nondiscretionary account or similar account, other
than an estate or trust, held by a dealer or other fiduciary for
the benefit or account of a U.S. Person; any discretionary
account or similar account, other than an estate or trust, held
by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States; and any partnership or
corporation if organized or incorporated under the laws of any
foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities and not registered under
the 1933 Act unless it is organized and incorporated and owned by
"accredited investors," as defined under Rule 501(a) under the
1933 Act, who are not natural persons, estates or trusts. "U.S.
---
Person" is further defined in Rule 902(o) under the 1933 Act;
(x) A "Professional" is a "distributor" as
defined in Rule 902(c) under the 1933 Act (generally any
underwriter, or other person, who participates, pursuant to a
contractual arrangement, in the distribution of the Stock and
Warrant); a dealer as defined in Section 2(12) of the Exchange
Act (encompassing those who engage in the business of trading or
dealing in securities as agent, broker, or principal); or a
person receiving a selling concession, fee or other remuneration
in respect of the Stock and Warrant sold.
(xi) Buyer acknowledges that at the
time of the purchase, Buyer does not have a short or hedge
position in the Stock, Warrant or the Common Stock or any
component thereof. During the Restrictive Period Buyer shall not
in the United States, effect short sales in the Stock, Warrant or
the Common Stock, nor shall Buyer hedge through short sales,
options or otherwise Buyer's purchase of such Stock, Warrant or
the Common Stock.
b. No Government Recommendation or Approval. Buyer
understands that no Federal, State or foreign governmental agency
has passed on or made any recommendation or endorsement of the
Stock and Warrant.
4. ISSUER REPRESENTATIONS AND COVENANTS.
c. Reporting Company Status. Issuer is a "reporting
company" as defined by Rule 902 of Regulation S. Issuer is in
full compliance, to the extent applicable, with all filing
obligations under Section 12(g) of the Exchange Act.
d. Current Public Information. Issuer has furnished
Buyer with copies of the Issuer's 10K for the fiscal year ended
September 30, 1996, as filed with the SEC, and all 8K's as filed
with the SEC during the last 12 months. There has been no
material adverse changes in the financial condition or prospects
of the Issuer except as disclosed in the filings with the SEC.
e. Offshore Transaction. Issuer has not offered
the Stock and Warrant which are the subject of this Agreement to
any person in the United States, any identifiable groups of U.S.
citizens abroad, or to any U.S. Person as that term is defined in
Regulation S.
f. No Directed Selling Efforts. In regard to the
transaction contemplated by this Agreement, the Issuer has not
conducted any "directed selling efforts" as that term is defined
in Rule 902 of Regulation S nor has Issuer conducted any general
solicitation relating to the offer and sale of the Stock and
Warrant which are the subject of this transaction to persons
resident within the United States or elsewhere.
g. Concerning the Stock and Warrant. The Stock and
Warrant when issued and delivered will be duly and validly
authorized and issued, fully paid and non-assessable and will not
subject the holders thereof to personal liability by reason of
being such holders. There are no preemptive rights of any
shareholder of the Company. The Company has reserved the number
of Common Shares required to be issued to the Buyers upon
purchase of the Stock and upon the exercise of the Warrant based
upon the current trading price of the Company's Common Stock.
h. Subscription Agreement. The Subscription Agreement
has been duly authorized, validly executed and delivered on
behalf of the Issuer and is a valid and binding agreement in
accordance with its terms, subject to general principles of
equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
i. Non-contravention. The execution and delivery of
the Subscription Agreement and the consummation of the issuance
of the Stock and Warrant and the transactions contemplated by the
Subscription Agreement do not and will not conflict with or
result in a breach by the Issuer of any of the terms or provision
of, or constitute a default under, the articles of incorporation
or bylaws of the Issuer or any indenture, mortgage, deed of trust
or other material agreement or instrument to which the Issuer is
a party or by which its or any of its respective properties or
assets are bound, or any existing applicable law, rule or
regulation or any applicable law, rule or regulation or any
applicable decree, judgment or order of any United States Court,
Federal or State regulatory body, administrative agency or other
governmental body having jurisdiction over the Issuer or any of
its properties or assets.
j. Approvals. Issuer is not aware of any
authorization, approval or consent of any governmental body which
is legally required for the issuance and sale of the Stock and
Warrant as contemplated by this Agreement.
i. Continuous Offering. The sale of the Stock and
Warrant pursuant to this Agreement is not a "continuous offering"
as defined in Rule 902(m) or if it is a continuous offering, the
sale of the Stock and Warrant hereunder is the last sale
thereunder and the "Restricted Period" as defined in Rule 902(m)
commences on the Effective Date as hereinafter defined. The
purchase of the Stock and Warrants is part of the sale of an
aggregate of 1,016,260 shares of Stock and 1,016,260 Warrants in
Regulation S placements.
5 SAFE HARBOR; RELIANCE ON REPRESENTATIONS. Buyer
understands that the offer and sale of the Stock and Warrant (or
any components thereof) are not being registered under the 1933
Act. Issuer is relying on the rules governing offers and sales
made outside the United States pursuant to Regulation S and
Buyer's representations hereunder.
6 TRANSFER AGENT INSTRUCTIONS. Issuer's transfer agent
will be instructed to issue one or more certificates representing
the Stock and Warrant without restrictive legend in the name of
Buyer and in such denominations to be specified prior to closing.
Issuer further warrant that no instructions other than these
instructions and instructions for a "stop transfer" instruction
until the end of the Restrictive Period for resales into the
United States have been given to the transfer agent and that such
Stock and Warrant shall otherwise be freely transferable on the
books and records of the Company. Nothing in these Sections,
however, shall affect in any way the Buyer's obligations and
agreement to comply with all applicable securities laws upon
resale of the Stock and Warrant and underlying Common Stock.
Notwithstanding anything herein to the contrary, an attachment
shall be stapled to the certi upon conversion fo the Stock and
exercise of the Warrant, which attachment shall bear the legend
attached hereto as Exhibit A.
7 CLOSING DATE. The date of the issuance and the sale of
the Stock and Warrant (the "Closing") shall be February 6, 1997
(the "Effective Date" or "Closing Date"), or such other mutually
agreed to time and place.
8 CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. Buyer
understands that Issuer's obligation to sell the Stock and
Warrant is conditioned upon:
a. The receipt and acceptance by Issuer of this
Subscription Agreement for all of the Stock and Warrant as
evidenced by execution of this Subscription Agreement by an
authorized person of the Issuer; and
b. Delivery to the Escrow Agent under the Escrow
Agreement by Buyer of immediately available funds as payment in
full for the purchase of the Stock and Warrant.
9 CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE. Issuer
understands that Buyer's obligation to purchase the Stock and
Warrant is conditioned upon:
a. Acceptance by Buyer of this Subscription Agreement
for the sale of the Stock and Warrant as evidenced by execution
of this Subscription Agreement by an authorized person of the
Buyer; and
b. Delivery of the Stock and Warrant without
restrictive legend other than as contained on the attachment
stapled to the certificates evidencing the Stock and Warrant as
described herein.
///
///
///
Signatures on next page
<PAGE>
IN WITNESS WHEREOF, this Offshore Securities Subscription
Agreement was duly executed on the date first written below.
Dated this 6th day of the month of February, 1997.
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
By:_____________________________________
Print Name:
Title:
Accepted this 6th day of the month of February, 1997.
Signature of Buyer:
By:____________________________________
___________________________________
<PAGE>
Exhibit A
"The Securities covered hereby have not been registered under the
Securities Act of 1933, as amended (the "Act") and may not be
offered or sold within the United States or to or for the account
or the benefit of U.S. persons (i) as part of a distribution at
any time or (ii) otherwise until March _____, 1997, except, in
either case, in accordance with Regulation S under the Act.
Terms used above have the meaning give to them by Regulation S."
EXHIBIT 10.3
------------
FORM OF
PRIVATE PLACEMENT AGREEMENT
This Private Placement Agreement (hereinafter referred
to as "Agreement"), is entered into as of the 5th day of
February, 1997, by and between Advanced Mammography Systems,
Inc., a Delaware corporation (the "Company"), and _____________
_____________________________________________________ (the
"Purchaser"), with reference to the following:
NOW, THEREFORE, IN CONSIDERATION of and in reliance
upon the respective representations and warranties, covenants,
terms and conditions herein contained, the parties agree as
follows:
1. STOCK PURCHASE Subject to the terms and
--------------
conditions herein, the Purchaser shall purchase from the Company,
and the Company shall sell to the Purchaser, 101,626 shares of
the Company's Common Stock, $.01 par value (the "Stock"),
together with 101,626 Warrants in the form attached hereto at an
exercise price of $1.93 per share (the "Warrants"), at a price of
$1.23 per share of Stock, or an aggregate purchase price of
$125,000. The Stock and the Warrants (sometimes collectively,
the "Securities") shall not be registered under the Securities
Act of 1933, as amended, (the "Securities Act"), by reason of the
private placement exemption under Regulation D. The Purchaser
shall deliver a check to the Company in the amount of $125,000
representing the purchase price for the Securities and the
Company shall deliver certificates for the Stock and the Warrants
to the Purchaser.
2. REPRESENTATIONS BY THE PURCHASER. The Purchaser
--------------------------------
hereby represents and warrants to the Company as follows:
(a) The Purchaser is acquiring the Securities for
investment for the Purchaser's own account and not with the view
to, or for resale in connection with any distribution thereof
(subject to the provisions of Section 4 hereof). She understands
that the Securities have not been registered under the Securities
Act by reason of specified exemption from the registration
provisions thereof which depends upon, among other things, the
bona fide nature of her investment intent as expressed herein.
She acknowledges that the Company may place restrictive legends
on, and stop transfer orders against, the certificates
representing the Securities being acquired by her.
(b) The Purchaser (or any advisor on her behalf)
is experienced in evaluating and investing in companies such as
the Company, and has such knowledge and experience in evaluating
the merits and speculative risks of the investment, and the
Purchaser has the ability to bear the economic risks of such
investment. The Purchaser is an "accredited investor", as such
term is defined in Regulation D under the Securities Act.
(c) The Purchaser is fully familiar with the
Company's business (including its prospects), operations and
financial history. She (or any advisor on her behalf) has had an
opportunity to discuss the Company's business, operations
(including prospects) and financial affairs with its management
and has received and read the Company's Form 10-K for the fiscal
year ended September 30, 1996. She is not relying upon any oral
representations by the Company's officers or representatives in
deciding to purchase the Securities.
(d) The Purchaser acknowledges that the Securities
must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration
is available. She has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act,
which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions and
that such Rule may not become available for resale of the Shares.
3. REPRESENTATIONS OF THE COMPANY. The Company
------------------------------
hereby represents and warrant to the Purchaser as follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware. The Company has the requisite corporate power to
enter into this Agreement, to sell the Securities and to carry
out and perform its obligations under the terms of this
Agreement. The execution and delivery of this Agreement has been
duly authorized by the Company.
(b) All of the Securities being issued to the
Purchaser pursuant to this Agreement (including the shares of
Common Stock underlying the Warrants when exercised pursuant to
the terms thereof) will be validly issued, fully paid and non-
assessable shares of Common Stock.
(c) The Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1996 presents fairly the
financial position and results of operations of the Company at
the dates and the periods to which they relate. Since September
30, 1996, there has been no material adverse changes in the
financial condition or prospects of the Company except as
disclosed or contemplated in its filings with the Securities and
Exchange Commission (the "SEC").
4. REGISTRATION. The Company shall use its best
------------
efforts to register the Stock by filing a registration statement
with the SEC on Form S-3 or other appropriate form (the "Form")
within 60 days after the closing of the purchase herein and to
file any amendments thereto within 30 days after receipt of an
SEC comment letter (subject to availability of audited financial
statements) and the Company agrees to keep the Form current and
effective so long as the Securities (including the Common Stock
underlying the Warrants) are owned by the Purchaser but not to
exceed three years from the date hereof. If the Company fails to
fulfill its obligations set forth in the preceding sentence as to
the Form, then the Company shall be required to issue to the
Purchaser within 30 days, an additional amount of Warrants equal
to 12.5% of the number of Warrants originally issued to the
Purchaser. The Purchaser shall enter into a customary agreement
with the Company regarding the sale of the Stock under the Form
and mutual indemnification.
5. FEES. The Company agrees to pay InterFirst
----
Capital Corporation ("InterFirst) or its assigns a placement
distribution fee of ten percent (10%) and the Purchaser's counsel
fees of one and one-quarter percent (1-1/4%) (the "Fees") of the
gross proceeds in connection with the sale of the Stock and the
exercise of the Warrants. The Fees shall be paid simultaneously
with the funds being transferred to the Company. InterFirst and
Purchaser's counsel shall be entitled to advise and notify the
Purchaser and the Company of any Fees due to InterFirst and
Purchaser's counsel from the gross proceeds from any of the
transactions under this Agreement. InterFirst and Purchaser's
counsel shall be entitled to submit directly to the Purchaser a
demand or claim for the payment of the fees at the closing of and
transaction under this Agreement and if not paid by the Purchaser
then the Company shall pay the Fees of InterFirst and Purchaser's
counsel, assuming the Company receives the gross proceeds.
Except as set forth in this Section, neither party had directly
or indirectly retained any finder, broker or other person in
connection with the transactions herein who might be entitled to
a fee or commission herewith.
6. CONFIDENTIALITY. The Purchaser and the Company
---------------
agree that the contents and nature of this Agreement are to
remain strictly confidential between the Company and the
Purchaser only. Neither the Purchaser nor the Company shall
divulge or distribute the contents of this Agreement to anyone
else or use this Agreement in any way except as intended between
the parties hereto, other than as provided by the disclosure
obligations under the federal securities laws.
7. MISCELLANEOUS.
-------------
(a) ENTIRE AGREEMENT. This Agreement constitutes
----------------
the entire agreement between the parties pertaining to the
subject matter hereof. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by
all the parties. No waiver shall be binding unless executed in
writing by the party making the waiver.
(b) COUNTERPARTS. This Agreement may be executed
------------
simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument. Facsimile signatures may be
acceptable for the purpose of execution of this Agreement.
(c) ASSIGNMENT. The rights and obligations
----------
granted hereunder may not be assigned to any third party without
the prior written consent of the other party. Upon any valid
assignment, this Agreement shall be binding on, and shall inure
to the benefit of, the parties to it and their respective heirs,
legal representatives, successors and assigns.
(d) GOVERNING LAW. This Agreement shall be
-------------
construed in accordance with and governed by the laws of the
State of Delaware.
(e) SEVERABILITY. If any portion of this
------------
Agreement shall be declared or determined to be invalid, the
remainder hereof shall nevertheless remain in full force and
effect.
(f) NOTICE. All written notices, demands or
------
requests of any kind, which either party may be required or may
desire to serve on the other in connection with this Agreement,
must be served by registered or certified mail, with postage
prepaid and return receipt requested, and the following address:
If to the Purchaser, to:
If to the Company, to:
Advanced Mammography Systems, Inc.
Two Executive Drive
Fort Lee, New Jersey 07024
Attn: Jack Nelson, Chairman
or to such other address as either party hereto may duly give to
the other. In lieu of mailing, either party may cause delivery
of such notices, demands and requests to be made by personal
service, provided that acknowledgement of receipt is made.
Notice shall be deemed given upon personal delivery or three (3)
days after depositing in the U.S. Mail, postage prepaid.
(g) HEADINGS AND INTERPRETATION. Titles or
---------------------------
captions contained herein are inserted as a matter of convenience
and for reference, and in no way, define, limit, extend or
describe the scope of this Agreement or any provision thereof.
No provision in this Agreement is to be interpreted for or
against either party because that party or its legal
representative drafted such provision.
(h) FURTHER ASSURANCES. Each party agrees to
------------------
execute and acknowledge such other instruments as may be
reasonably necessary to effect the transactions contemplated
herein.
(i) GENDER AND NUMBER. As used in this
-----------------
Agreement, the masculine, feminine or neuter gender, and the
singular or plural number, shall each include the others whenever
the context so indicates.
IN WITNESS WHEREOF, the parties hereof have executed
this Agreement as of the date herein first written above.
Advanced Mammography Systems, Inc.
By:___________________________
_________________________________
EXHIBIT 99.1
-------------
NEWS RELEASE
COMPANY CONTACT: MEDIA & INVESTOR RELATIONS:
--------------- ---------------------------
Beverly Tkaczenko Greg Facktor or Jo Bandy
Advanced Mammography Systems, Inc. Market Pathways
800.476.0569 714.955.1860
FOR IMMEDIATE RELEASE
---------------------
ADVANCED MAMMOGRAPHY ANNOUNCES CLOSING OF
$1.5 MILLION IN PRIVATE PLACEMENT
WILMINGTON, MASS., FEBRUARY 12, 1997 - ADVANCED MAMMOGRAPHY SYSTEMS, INC.
(NASDAQ: MAMO), developer of the only FDA approved, MRI-based dedicated
breast imaging system, the Aurora[TM], announced today that it has received
$1.5 million in private placement funding. In connection with these
private placements, the company issued 1,219,514 shares of its common
stock, plus three-year warrants to purchase 1,341,465 additional shares of
the company's common stock.
In connection with the $1.5 million funding, the parties are conducting
good faith negotiations for additional financing in the amount of $10
million. The parties, however, have not concluded their negotiations and
there are no assurances they will conclude these negotiations or that these
funds will be drawn down by the company.
AURORA NOW GEARING-UP FOR WIDE-SPREAD COMMERCIAL USE
----------------------------------------------------
"This is the first step in raising the necessary funding to implement the
company's strategic plan to bring its Aurora magnetic resonance breast
imaging system to the commercial market," stated Jack Nelson, chairman of
the board and chief executive officer of Advanced Mammography.
"Specifically, this capital infusion will allow us to expand our marketing
efforts by: 1) continuing to select and install Aurora units in key sites
known for their focus on women's health issues; 2) opening company-owned
breast MR centers featuring the Aurora, and 3) entering into partnership
agreements with hospitals and major clinics to jointly operate and own
breast MR centers featuring the Aurora."
Continued Nelson, "It also allows ut to ready the produce for wide-spread
commercial use by accelerating development of advanced clinical protocols
to ensure optimal utilization of the Aurora; as well as, continue the
ongoing development to enhance the Aurora system's diagnostic
capabilities. The above-mentioned, combined with securing and improving
new distribution channels for the system, will ensure that the Aurora
will be available for use by the widest possible audience."
The securities were sold in a private placement under Regulation D of the
Securities Act of 1933 and in off-shore transactions under Regulation S of
the Act. The securities have not been registered under the Act and may not
be offered or sold in the United States absent registration or an
application exemption from the registration requirements.
SAFE HARBOR STATEMENT
---------------------
This release contains forward-looking information, including forward-
looking statements regarding the (i) potential market size or commercial
success that the Aurora may have, and (ii) the positive impact that the
Aurora may have in diagnosing breast disease in women. Additional
information on factors that could potentially affect the company's
financial results may be found in the company's filings with the Securities
and Exchange Commission.
Advanced Mammography Systems, Inc., has developed the only dedicated breast
imaging system, the Aurora, based on magnetic resonance imaging technology.
The company commenced commercial marketing activities for the system
following clearance of the product by the FDA in February 1996.
###
