UNIT PURCHASE AGREEMENT
UNIT PURCHASE AGREEMENT made as of April 27, 2001 by and between
THERMOGENESIS CORP., a Delaware corporation ("Seller") and the undersigned
investor ("Buyer").
WHEREAS, Seller is offering (the "Offering") up to 78 units, each unit
consisting of Fifty Thousand (50,000) shares of the Company's Common Stock,
$0.001 par value and a warrant representing the right to acquire an additional
Ten Thousand (10,000) shares of the Company's Common Stock, $0.001 par value, at
an exercise price of $2.88 per share (each a "Unit"), at a purchase price equal
to $90,000 (the "Purchase Price") per Unit, to Buyer and other investors in
accordance with the terms and subject to the conditions of this Agreement;
WHEREAS, subject to the terms and conditions set forth in this Agreement,
Buyer desires to subscribe for and purchase, and Seller desires to issue and
sell to Buyer a certain number of Units;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, the parties hereto
hereby agree as follows:
SECTION 1 PURCHASE AND SALE OF SECURITIES.
1.1 Purchase and Sale of Securities. In reliance upon the representations
and warranties made herein and subject to the terms and conditions hereof, Buyer
intending to be legally bound hereby agrees to purchase from Seller and Seller
agrees to issue and sell to Buyer on the Closing Date the number of Units set
forth beneath Buyer's name on the signature page, at the Purchase Price per
Unit.
Seller proposes to enter into this same form of purchase agreement with
certain other investors (the "Other Buyers") and expects to complete sales of
the Units to them. The Buyer and the Other Buyers are hereinafter sometimes
referred to as the "Buyers." and this Agreement and the agreements executed by
the Other Buyers are hereinafter sometimes referred to as the "Agreements." The
Units, including the shares of Common Stock issued as part of each Unit and the
shares of Common Stock issuable upon exercise of warrants issued as part of each
Unit, are hereinafter sometimes referred to as the "Securities."
1.2 Purchase Price and Payment for the Securities. Simultaneously
with the execution and delivery of this Agreement, the Buyer is delivering to
THERMOGENESIS CORP. payment in an amount equal to the number of Units purchased
hereunder times the Purchase Price (the "Aggregate Purchase Price"). Payment of
the Aggregate Purchase Price to the Company hereunder is being made by delivery
of a certified or bank cashier's check drawn payable to the order of the Company
or by wire transfer of the Aggregate Purchase Price to the Company or by other
means satisfactory to the Company. Buyer understands and agrees that Seller, in
its sole discretion, reserves the right to accept or reject any subscription for
the purchase of the Units, in whole or in part, and to withdraw its offer to
sell the Units at any time prior to its acceptance of such subscription to
purchase. A subscription shall be deemed accepted by the Seller when Seller
executes and delivers to the undersigned a counterpart of this Agreement.
1.3 Time and Place Closing. The Securities will be sold in one or more
closings at such place, date and time as may be fixed by the Company (each such
date referred to herein as the "Closing Date"). The initial Closing Date shall
be at the offices of the Company, 3146 Gold Camp Drive, Rancho Cordova, CA
95670, or at such other place, date or time as may be fixed by mutual agreement
by Buyer and Seller; provided, however, that the final Closing shall be no later
than April 27, 2001, unless extended by the Company to May 1, 2001. The initial
closing, if any, shall be conditioned upon the sale of at least 72 Units. For
purposes of the minimum, cancellation of debt participating in the offering
shall be counted towards the number of Units.
1.4 Delivery of Shares of Common Stock on the Closing Date. On each Closing
date, Seller shall deliver, (i) against payment therefor, certificates
representing the shares of Common Stock and the warrant comprising the Units
purchased by Buyer, and (ii) all other documents required to be delivered on the
Closing Date pursuant to this Agreement. The Shares and Warrants have been duly
authorized and issued to the Buyer and, on the Closing Date, will conform as to
legal matters to the description thereof contained in the Memorandum. Except for
the holders of the Company's Series A preferred stock, the stockholders of the
Company or holders of the Company's other securities have no preemptive or
similar rights with respect to the Securities. The certificates evidencing the
Shares and Warrant as delivered to the Buyer will be in due and proper legal
form.
SECTION 2 REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
2.1 Corporate Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with all
requisite corporate power and authority to own, operate and lease its properties
and to carry on its business as it is now being conducted, and is qualified or
licensed to do business in good standing in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary, except where its failure
so to qualify to be licensed would not have a material adverse effect on Seller.
2.2 Capitalization. The authorized capital stock of Seller consists of
50,000,000 shares of Common Stock, and 2,000,000 shares of preferred stock, both
par value $0.001. The issued and outstanding shares of the Seller's capital
stock is accurately reflected in its annual report on Form 10-K for the year
ended June 30, 2000, as of that date. The attached Schedule 2.2 accurately
reflects the shares of the Seller's capital stock issued since that date, the
shares of capital stock options, warrants and convertible privileges which have
been reacquired by the Company since that date, and the number of shares of
capital stock, options, warrants and convertible privileges (broken down by
class) outstanding as of the Closing Date. Except as described in the attached
Schedule 2.2 and in Seller's annual report on Form 10-K for the year ended June
30, 2000, there are no outstanding contracts, agreements, calls, options,
warrants, rights, subscriptions, obligations or other commitments of Seller,
directly or indirectly, relating to or calling for the authorization, issuance,
transfer, sale or other disposition of any share of the capital stock or other
voting interests of Seller or securities convertible, exercisable or
exchangeable into or for any of the foregoing. Seller does not own or control
any stock, equity, voting ownership or other interest in any corporation,
partnership, joint venture or other business association or entity.
2.3 Authorization: Validity. Seller has full corporate power and authority
to enter into the Agreements and to carry out its obligations thereunder. When
issued in accordance with the Agreements, the shares of Common Stock will be
validly issued, fully paid and nonassessable. The execution and delivery of the
Agreements and the consummation of the transactions contemplated thereby have
been duly authorized by the Board of Directors of Seller, which authorization
remains in full force and effect and has not been modified or amended by any
subsequent action of such Board of Directors, and no other corporate actions or
proceedings on the part of Seller are necessary to authorize the Agreements or
the transactions contemplated thereby. The Agreements constitute the valid and
binding obligations of Seller enforceable in accordance with their terms.
2.4 No Violation. Except for any required filings under applicable Federal
and state securities laws, which Seller undertakes to make, the execution,
delivery and performance by Seller of the Agreements and the consummation by it
of the transactions contemplated thereby, including, without limitation, the
issuance, sale and delivery of the shares of Common Stock, do not require the
consent, waiver, approval, license or authorization of or filing of any notice
or report with any person, entity or public authority and will not violate,
result in a breach of or the acceleration of any obligation under, or constitute
a default under, any provision of Seller's Certificate of Incorporation or
By-laws or any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, decree, law, ordinance or regulation to which any
property of Seller is subject or by which Seller is bound or result in the
creation or imposition of any lien, claim, charge, restriction, equity or
encumbrance of any kind whatsoever upon, or give to any other person any
interest or right in or with respect to, any of the properties, assets,
business, agreements or contracts of Seller.
2.5 Compliance With Law. To the best of its knowledge, Seller is in
compliance with the governmental laws, ordinances, codes, orders, rules,
regulations and requirements applicable to its business and conditions of
employment, except where noncompliance could not reasonably be expected to have
a material adverse effect on the business, assets, properties or financial
condition of Seller. Seller has obtained all permits, licenses, variances,
exemptions, orders, contracts and approvals from Federal, state, local and
foreign governmental and regulatory bodies which are material, singularly or in
the aggregate, to the operation of its business (collectively, the "Permits" and
each individually, a "Permit"). Seller is in compliance with the material terms
of each Permit and with all requirements, standards and procedures of the
federal, state, local and foreign governmental or regulatory bodies which issued
the Permits or any of them and there does not exist under any of the Permits any
default or event of default or event which with notice or lapse of time or both
would constitute an event of default by Seller.
2.6 Memorandum and SEC Filings. Seller previously has delivered to Buyer a
copy of its Private Placement Memorandum dated April 9, 2001 (the "Memorandum").
The Memorandum contains information concerning the Offering and a copy of
Seller's Annual Report on Form 10-K for its fiscal year ended June 30, 2000, and
Quarterly Reports on Form 10-Q for the quarterly periods ended September 30,
2000 and December 31, 2000 (the "SEC Report") filed by Seller with the
Securities and Exchange Commission (the "SEC"). Since January 1, 1997, Seller
has made all filings required to be made by it under the Securities Act of 1933,
as amended (the "1933 Act"), the Securities Exchange Act of 1934 (the "1934
Act") and the securities laws of any state, and any rules and regulations
promulgated thereunder. The audited and unaudited consolidated financial
statements of Seller included in the SEC Reports have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated in the notes thereto) and fairly present the
financial position of Seller as at the dates thereof and the results of its
operations and changes in cash flows for the periods then ended. The information
contained in the Memorandum and the SEC Reports is or was accurate and complete
as of the date given. No stop order preventing the use of the Memorandum, or any
other amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued by the SEC. The SEC Reports, at the
time they were or are hereafter filed or last amended, as the case may be, with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act of 1934. Neither the Agreements, the Memorandum
nor the SEC Reports, taken as a whole, contain any untrue statement of material
fact or omit to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
2.7 As of the Closing Date Intellectual Property. As described in the
Company's Form 10-K for the fiscal year 2000, the Company owns or possesses, or
can acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names ("Intellectual Property")
currently employed or utilized by it in connection with the business now
operated and proposed to be operated by it and the following products or
proposed products of the Company: The CryoSeal System and the BioArchive System.
The Company has not received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property. The
description of the Intellectual Property in the Company's Form 10-K for the
fiscal year 2000 does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
2.8 NASDAQ Compliance. Seller has taken all necessary actions to ensure its
continued inclusion in, and the continued eligibility of the Common Stock for
trading on, The Nasdaq Stock Market ("NASDAQ") under all currently effective and
currently proposed inclusion requirements.
2.9 Absence of Certain Changes or Events. Except as disclosed in the SEC
Reports and on Schedule 2.2 hereto, since June 30, 2000, Seller has not:
(a) incurred any obligation or liability, whether fixed or contingent
(including, without limitation, any liability as a guarantor or
otherwise with respect to the liabilities of others), except those
incurred in the ordinary course of business, none of which is
materially adverse, and except in connection with the Agreements and
the transactions contemplated thereby;
(b) discharged or satisfied any lien or encumbrance or paid any obligation
or liability (fixed or contingent), other than in the ordinary course
of business;
(c) mortgaged, pledged or subjected to lien, charge, security interest or
to any other encumbrance any of its assets or properties, other than
in the ordinary course of business;
(d) transferred, leased or otherwise disposed of any of its assets or
properties except for a fair consideration in the ordinary course of
business or acquired any assets or properties, other than in the
ordinary course of business;
(e) canceled or compromised any debt or claim, other than in the ordinary
course of business;
(f) waived or released any rights of material value, other than in the
ordinary course of business;
(g) suffered any casualty loss or damage (whether or not such loss or
damage shall have been covered by insurance) which materially and
adversely affects the ability of Seller to conduct its business as it
is presently conducted;
(h) declared any dividend or made any payment or distribution in respect
of its Common Stock;
(i) been the subject of any regulatory action, citation or comparable
action or entered into any consent order with government agencies with
regard to its operations or products;
(j) implemented any material change in accounting principles, practices or
methods; or
(k) experienced a material adverse change in its financial condition or
results of operation.
2.10 Private Offering. Subject to the accuracy of the representations of
Buyer in Section 3 hereof and the similar representations of the Other Buyers in
the Agreements, the offer, sale and issuance of the Units, which are comprised
of shares of Common Stock and Warrant to purchase shares of Common Stock,
constitute transactions exempt from the registration requirements of Section 5
of the 1933 Act and neither Seller nor anyone acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer understands that the issuance and sale of the Units, which are
comprised of shares of Common Stock and Warrant to purchase shares of Common
Stock, have not been registered under the 1933 Act, on the grounds that the
issuance and sale of such securities to the Buyer is exempt pursuant to Section
4(2) of the 1933 Act and/or Regulation D promulgated under the 1933 Act, and
that the reliance of Seller on such exemptions is predicated in part on the
Buyer's representations, warranties, covenants and acknowledgments set forth in
this Section 3.
3.1 Authorization. If Buyer is a corporation, it represents and warrants to
Seller that it is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation; that it was not
organized for the specific purpose of purchasing the Units to be purchased by it
hereunder; that it has full corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder; all corporate actions or
proceedings on the part of such Buyer as are necessary to authorize this
Agreement or the transactions contemplated hereby; and that the transactions
contemplated hereby have been taken. Buyer represents and warrants to the Seller
that this Agreement constitutes the valid and binding obligation of such Buyer,
enforceable in accordance with its respective terms except to the extent that
enforceability may be limited by equity, bankruptcy, insolvency and other laws
of general application affecting the rights and remedies of creditors.
3.2 Purchase Without View to Distribute. Buyer represents and warrants to
Seller that the Units, which are comprised of shares of Common Stock and Warrant
to purchase shares of Common Stock, being purchased by it are being acquired for
its own account, not as a nominee or agent, and not with a view to resale or
distribution within the meaning of the 1933 Act and the rules and regulations
thereunder.
3.3 Restrictions on Transfer.
(a) Buyer (i) acknowledges that the Securities are not registered under the
1933 Act and that the Securities must be held indefinitely by it unless they are
subsequently registered under the 1933 Act or an exemption from registration is
available, (ii) is aware that any routine sales of the Securities under Rule 144
of the SEC under the 1933 Act may be made only in limited amounts and in
accordance with the terms and conditions of that Rule and that in such cases
where the Rule is not applicable, compliance with some other registration
exemption will be required, (iii) is aware that Rule 144 is not presently
available for use by Buyer for resale of any such Securities and that there can
be no assurance that Rule 144 will be available at any time in the future, (iv)
is aware that, except as provided in Section 5 hereof, Seller is not obligated
to register under the 1933 Act any sale, transfer or other disposition of the
Securities, (v) is aware that Seller shall not be required to register the
transfer of the Securities on the books of Seller unless Seller shall have been
provided with an opinion of counsel satisfactory to it prior to such transfer to
the effect that registration under the 1933 Act or any applicable state
securities law has been effected or is not required in connection with the
transaction resulting in such transfer, and (vi) is aware that the Securities,
and each certificate representing the Securities and any shares of Common Stock
or other securities issued in respect of such Securities upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by paragraph (b) of this Section 3.4) be stamped or
otherwise imprinted with the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER
OR UNDER APPLICABLE STATE SECURITIES LAWS AND THAT SUCH REGISTRATION HAS
BEEN EFFECTED."
(b) The restrictions on the transferability of the Securities shall cease
and terminate when such Securities shall have been registered under the 1933 Act
and are proposed to be sold or otherwise disposed of in accordance with an
intended method of disposition by the Seller or Sellers thereof set forth in the
registration statement covering such Securities required by Section 5.2 or any
other applicable registration statement, or when such Securities are
transferable in accordance with the provisions of Rule 144(k) promulgated under
the 1933 Act. Whenever the restrictions on transfer shall terminate as
hereinabove provided with respect to any of the Securities, the holder of any
such Securities bearing the legend set forth in paragraph (a) of this Section
3.3 as to which such conditions shall have terminated shall be entitled to
receive from Seller, without expense (except for the payment of any applicable
transfer tax) and as expeditiously as possible, new stock certificates not
bearing such legend.
3.4 Access to Information. Each Buyer acknowledges that it has been
provided with a copy of the Memorandum (including the SEC Reports) and has
carefully reviewed the same. Buyer further acknowledges that Seller has made
available to it the opportunity to ask questions of and receive answers from
Seller's officers and directors concerning the terms and conditions of the
Offering and the business and financial condition of the Seller, and to acquire,
and each Buyer has received to its satisfaction, such information about the
business and financial condition of Seller and the terms and conditions of the
offering as it has requested.
3.5 Additional Representations of Buyer. Buyer represents that (i) it is an
"accredited investor" as such term is defined in Rule 501 promulgated under the
1933 Act, (ii) its financial situation is such that it can afford to bear the
economic risk of holding the Securities for an indefinite period of time and
suffer complete loss of its investment in the Securities, (iii) it has the funds
necessary to purchase the Units immediately available to it and (iv) its
knowledge and experience in financial and business matters are such that it is
capable of evaluating the merits and risks of its purchase of the Units as
contemplated by this Agreement.
SECTION 4. COVENANTS OF SELLER.
4.1 Consummation of Agreements. Seller shall perform and fulfill
all conditions and obligations on its part to be performed and fulfilled under
the Agreements, to the end that the transactions contemplated by the Agreements
shall be carried out. To this end, Seller will obtain all necessary
authorizations or approvals of its Board of Directors to the execution and
performance of the Agreements, which shall include as integral parts thereof the
issuance to Buyer of the Securities upon the terms and conditions set forth in
the Agreements.
4.2 Compliance with Regulation D. Seller agrees to file a Form D with the
SEC within fifteen days of the date of the Closing and to file, on a timely
basis, any amendments or supplements to such Form D as may be required under
Regulation D promulgated under the 1933 Act. Seller also agrees to comply with
the filing requirements of state securities laws applicable to the sale of the
Units hereunder.
4.3 Good Faith Effort to Effect Transfers. Upon registration of the
Securities, or the termination under the provisions of Rule 144 of the
restriction on transfer, the Seller agrees to issue or cause its corporate and
securities counsel to issue all required consents or opinions that may be
required to effect the transfer of the Securities and removal of any legend on
such Securities upon transfer. Seller agrees that it shall use all reasonable
efforts to cause such consents or opinions of counsel to be transmitted to the
Seller's transfer agent within 24 hours of receipt of a request by Buyer,
provided that all required certifications or representations required to effect
such transfer have been provided with such request. The Seller will pay its own
legal expenses to prepare such consents or opinions of counsel contemplated by
this Section 4.3.
SECTION 5. REGISTRATION.
5.1 Definitions. As used herein:
(a) The terms "register," "registered" and "registration" refers to a
registration effected by preparing and filing a registration statement in
compliance with the 1933 Act and the declaration or ordering of the
effectiveness of such registration statement.
(b) For the purposes hereof, the term "Registrable Securities" means, with
respect to the Units offered hereby, the shares of Common Stock purchased
hereunder, the shares of Common Stock to be issued upon exercise of the
Warrants, and any stock to be issued in respect of, or part of, the Registrable
Securities as a result of a stock split, stock dividend, recapitalization or
combination.
(c) The terms "Holder" or "Holders" mean any person or persons to whom
Registrable Securities were originally issued or qualifying transferees under
Section 5.6 hereof who hold Registrable Securities.
5.2 Filing of Registration Statement. Within 45 days after the Closing
Date, the Seller will prepare and file a Registration Statement on Form S-3 (the
"Registration Statement") with the SEC in order to register the sale of the
Registrable Securities by Buyers from time to time through underwriters, agents
or otherwise, in negotiated or market transaction or through NASDAQ or the
facilities of any national securities exchange on which the Common Stock is then
traded or in privately negotiated transactions. Seller will use its best efforts
to obtain a declaration of effectiveness of such Registration Statement and take
all actions incidental thereto (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate qualifications
under the applicable blue sky or other state securities laws and appropriate
compliance with exemptive regulations issued under the 1933 Act and any other
governmental requirements or regulations) as may be necessary to permit or
facilitate the public sale and distribution of the Registrable Securities by the
Holders. Notwithstanding the foregoing, to the extent available, Buyers may
utilize Rule 144 for the resale of the Registrable Securities.
5.3 Expenses. All expenses incurred currently or in the future in
connection with any registration pursuant to this Section 5, including without
limitation, all registration, filing and qualification fees (including those
attributable to the Registrable Securities), printing expenses, fees and
disbursements of counsel for Seller and fees and expenses of counsel for Seller
incurred pursuant to Section 4.3 of this Agreement or Section 4.3 of the Warrant
Certificate and expenses of any comfort letters or special audits of Seller's
financial statements incidental to or required by such registration shall be
borne by Seller (excluding underwriting discounts and selling commissions
payable with respect to the sale of Registrable Securities).
5.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Seller pursuant to this Section 5,
Seller will, at its expense:
(a) keep such registration statement effective and file any necessary post-
effective amendments and use its best efforts to maintain the effectiveness
thereof until the earlier of (i) such time as Seller reasonably determines,
based upon an opinion of counsel, that the Holders will be eligible to sell all
of the Registrable Securities then owned by the Holders without registration in
the open market in compliance with the 1933 Act and without regard to volume
restrictions or (ii) for a period of 36 months from the date of effectiveness of
the Registration Statement.
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement as may be necessary to keep such registration,
qualification or compliance effective and comply with the provisions of the 1933
Act with respect to the disposition of all securities covered thereby during the
applicable period;
(c) update, correct, amend and supplement such registration, qualification
or compliance as necessary;
(d) furnish such number of preliminary and final prospectuses and other
documents incident thereto as a Holder from time to time may reasonably request;
(e) register or qualify such Registrable Securities for offer and sale
under the Blue Sky or securities laws of such jurisdictions as any Holder may
reasonably designate to enable it to consummate the disposition of the
Registrable Securities in such jurisdiction, except that Seller shall not be
required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in any
State;
(f) timely file all reports required to be filed by it under the 1933 Act
or the 1934 Act and the rules and regulations adopted by the SEC thereunder, all
to the extent required to enable each such Buyer to sell the Registrable
Securities without registration under the 1933 Act pursuant to (i) Rule 144
adopted by the SEC under the 1933 Act, as such rule may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by the SEC;
(g) take all action necessary to render the Registrable Securities eligible
for inclusion on NASDAQ for trading thereon; and
(h) upon the sale of any Registrable Securities pursuant to such
Registration Statement remove all restrictive legends from all certificates or
other instruments evidencing the Registrable Securities.
5.5 Further Information. If Registrable Securities owned by a Holder are
included in the Registration Statement, such Holder shall furnish to Seller such
information regarding itself as Seller may reasonable request and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 5.
SECTION 6. INDEMNIFICATION.
6.1 Indemnification of Buyer. Seller agrees to indemnify and hold harmless,
to the extent permitted by law, Buyer, its directors and officers and each
person who controls Buyer (within the meaning of the 1933 Act) against any and
all losses, claims, damages, liabilities and expenses caused by (i) any breach
of the representations, warranties, covenants and agreements of Seller contained
in the Agreements; or (ii) any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus filed pursuant to Section 5 hereof or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to
Seller by Buyer expressly for use in such registration statement or prospectus.
6.2 Indemnification of Seller. Buyer agrees to furnish to Seller in writing
such information and affidavits as Seller reasonably requests for use in
connection with any registration statement or prospectus and agrees to indemnify
and hold harmless, to the extent permitted by law, Seller, its directors and
officers and each person who controls Seller (within the meaning of the 1933
Act) against any and all losses, claims, damages, liabilities and expenses
caused by (i) any breach of the representations, warranties, covenants, and
agreements of Buyer contained in this Agreement; or (ii) any untrue or alleged
untrue statement of material fact or any omission of a material fact required to
be stated in any registration statement, prospectus or preliminary prospectus
filed pursuant to Section 5 hereof or necessary to make the statements therein
not misleading, but only to the extent that such untrue or alleged untrue
statement or omission is contained or omitted in any information or affidavit so
furnished in writing by such Buyer, and in no event will Buyer be obligated to
indemnify Seller, its directors, officers or any person who controls Seller in
an amount in excess of the proceeds to be derived from the sale of Securities in
the offering giving rise to a claim for indemnification.
6.3 Contribution. If the indemnification provided for in this section 6 is
judicially determined to be unavailable to an indemnified person in respect of
any losses, claims, damages or liabilities referred to herein, then, in lieu of
indemnifying such indemnified person hereunder, each party shall contribute to
the amount paid or payable by such indemnified person as a result of such
losses, claims, damages or liabilities (and expense relating thereto) (i) in
such proportion as is appropriate to reflect the relative benefits to Seller, on
the one hand, and Buyer, on the other hand, or (ii) if the allocation provided
by clause (i) above is not available, in such proportion as is appropriate to
reflect not only the relative benefits referred to in such clause (i) but also
the relative fault of each, as well as any other relevant equitable
considerations.
6.4 Defense of Action. Any person entitled to indemnification hereunder
will (i) give prompt notice to the indemnifying party of any claim with respect
to which it seeks indemnification; and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit the
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is not assumed, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
6.5 The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
SECTION 7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS.
7.1 Conditions. The obligations of Buyer to consummate the Agreements and
the transactions contemplated hereby are subject to the satisfaction of the
following conditions on or prior to the Closing Date except to the extent that
any such condition can be and is waived by Buyer:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of Seller contained in Section 2 hereof shall be true and correct in
all material respects as though made at the time of and as of the Closing Date;
Seller shall, at or before the Closing Date, have performed all of its
obligations hereunder which by the terms hereof are to be performed on or before
the Closing Date, and Seller shall have delivered to Buyer a Certificate of its
President or Vice President dated as of the Closing Date to the foregoing
effect.
(b) Opinion of Counsel. At each Closing, Seller's Counsel shall have issued
to Buyer an opinion of counsel as to this transaction's compliance with or
exemption from federal and applicable state securities laws and as to such other
matters as are customarily included in opinions relating to transactions of this
kind in form reasonably satisfactory to Buyer.
SECTION 8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
8.1 Conditions. The obligations of Seller to consummate the
Agreements and the transactions contemplated hereby are subject to the
satisfaction of the following conditions on or prior to the Closing Date except
to the extent that any such condition can be and is waived by Seller:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of Buyer contained in Section 3 hereof shall be true and correct in
all material respects as though made at the time of and as of the Closing; Buyer
shall, at or before the Closing, have performed all of its obligations hereunder
which by the terms hereof are to be performed on or before the Closing. Unless
Seller receives written notification to the contrary at the Closing, Seller
shall be entitled to assume the preceding is accurate at the Closing.
SECTION 9. MISCELLANEOUS.
9.1 Law Governing. This Agreement shall be construed under and governed by
the laws of the State of California applicable to contracts made and to be fully
performed therein.
9.2 Broker or Finder. Buyer represents and warrants that no broker or
finder has acted for such party in connection with this Agreement or the
transactions contemplated by this Agreement and that no broker or finder is
entitled to any broker's or finder's fee or other commission in respect thereof
based in any way on agreements, arrangements or understandings made by Buyer.
9.3 Notices. All notices, requests, demands or other communications
hereunder shall be deemed to have been duly given if delivered or mailed by
certified or registered mail if to Seller at 3146 Gold Camp Drive, Rancho
Cordova, California 95670, Attn: Chief Executive Officer, and if to the Buyer at
the address set forth on the signature page hereto, or to such other address of
which either party may notify the other party.
9.4 Survival of Representations, Warranties and Covenants. Notwithstanding
any investigation made by any party to this Agreement, all representations,
warranties, covenants and obligations made by Seller and Buyer herein shall
survive the execution of this Agreement and the sale and delivery of the shares
of Common Stock and warrants to purchase shares of Common Stock.
9.5 Entire Agreement. This Agreement, including the exhibits and schedules
referred to herein, is complete and all promises, representations,
understandings, warranties and agreements with reference to the subject matter
hereof, and all inducements to the making of this Agreement relied upon by
either party hereto, have been expressed herein or in such exhibits and
schedules.
9.6 Assignment. This Agreement may not be assigned by either Buyer or
Seller without the prior written consent of the other party. This Agreement
shall be enforceable by and shall inure to the benefit of and be binding upon
the parties hereto and their successors and no others.
9.7 Fees and Expenses. Except as otherwise specifically provided herein,
each of the parties will bear its own expenses in connection with the
negotiation and consummation of the transactions contemplated by this Agreement.
9.8 Publicity and Disclosure. Except as may be required by federal
securities laws, no press release or public disclosure, either written or oral,
of the transactions contemplated by this Agreement, shall be made by Buyer
hereto without the prior approval of Seller.
9.9 Counterparts. This Agreement may be executed simultaneously in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9.10 Amendments and Waivers. Except as otherwise provided herein, any
provision in any of the Agreements may be amended or waived only if Seller shall
obtain the written consent of the holders of a majority in interest of the Units
purchased from Sellers pursuant to the Agreements.
[THIS SPACE WAS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date set forth above.
THERMOGENESIS CORP.
By: ____________________________
Philip H. Coelho,
Chief Executive Officer
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PRINT NAME OF BUYER
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SIGNATURE OF BUYER
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[Principal Address of Buyer]
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[Tax Identification Number]
Number of Units
to be Purchased:
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Price per Unit: $
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Aggregate Purchase
Price: $
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