SECURITIES PURCHASE AGREEMENT
ThermoGenesis Corp.
2711 Citrus Road
Rancho Cordova, CA 95742
Ladies & Gentlemen:
The undersigned, _____________________________(the "Investor"), hereby
confirms its agreement with you as follows:
1. This Securities Purchase Agreement (the "Agreement") is made as of _______
__, 2004 between ThermoGenesis Corp., a Delaware corporation (the "Company"),
and the Investor.
2. The Company has authorized the sale and issuance of up to 2,600,000 shares
(the "Securities") of common stock of the Company, $0.001 par value per share
(the "Common Stock"), to certain investors in a private placement (the
"Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor ___________ shares,
for a purchase price of $_______ per share, or an aggregate purchase price of
$_______________, pursuant to the Terms and Conditions for Purchase of
Securities attached hereto as Annex I and incorporated herein by reference as if
fully set forth herein (the "Terms and Conditions"). Unless otherwise requested
by the Investor, certificates representing the Securities purchased by the
Investor will be registered in the Investor's name and address as set forth
below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or persons known to it to be affiliates of the Company, (b) neither
it, nor any group of which it is a member or to which it is related,
beneficially owns (including the right to acquire or vote) any securities of the
Company and (c) it has no direct or indirect affiliation or association with any
NASD member as of the date hereof. Exceptions:
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(If no exceptions, write "none." If left blank, response will be deemed to be
"none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose. By executing
this Agreement, you acknowledge that the Company may use the information in
paragraph 4 above and the name and address information below in preparation of
the Registration Statement (as defined in Annex I).
AGREED AND ACCEPTED:
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ThermoGenesis Corp. Investor:
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By:
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Print Name:
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By:
Title: Title:
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Address:
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Tax ID No.:
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Contact name:
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Telephone:
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Name in which shares should be registered
(if different):
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SECURITIES
1. Authorization and Sale of the Securities. Subject to these Terms and
Conditions, the Company has authorized the sale of up to 2,600,000 shares of
common stock. The Company reserves the right to increase or decrease this
number.
2. Agreement to Sell and Purchase the Securities; Subscription Date.
2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon the
terms and conditions hereinafter set forth, the number of Securities set forth
in Section 3 of the Securities Purchase Agreement to which these Terms and
Conditions are attached at the purchase price set forth thereon.
2.2 The Company may enter into the same form of Securities
Purchase Agreement, including these Terms and Conditions, with certain other
investors (the "Other Investors") and expects to complete sales of Securities to
them. (The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the "Investors," and the Securities Purchase
Agreement to which these Terms and Conditions are attached and the Securities
Purchase Agreements (including attached Terms and Conditions) executed by the
Other Investors are hereinafter sometimes collectively referred to as the
"Agreements.") The Company may accept executed Agreements from Investors for the
purchase of Securities commencing upon the date on which the Company provides
the Investors with the proposed purchase price per share and concluding upon the
date (the "Subscription Date") on which the Company has (i) executed Agreements
with Investors for the purchase of Securities, and (ii) notified SunTrust
Robinson Humphrey, in its capacity as placement agent for this transaction, in
writing that it is no longer accepting additional Agreements from Investors for
the purchase of Securities. The Company may not enter into any Agreements after
the Subscription Date.
3. Delivery of the Securities at Closing. The completion of the purchase
and sale of the Securities (the "Closing") shall occur (the "Closing Date") on
________ __, 2004, at the offices of the Company's counsel. At the Closing, the
Company shall deliver to the Investor one or more stock certificates
representing the number of Securities set forth in Section 3 of the Securities
Purchase Agreement, each such certificate to be registered in the name of the
Investor or, if so indicated on the signature page of the Securities Purchase
Agreement, in the name of a nominee designated by the Investor.
The Company's obligation to issue the Securities to the Investor shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the
Securities being purchased hereunder as set forth in Section 3 of the Securities
Purchase Agreement; (b) completion of the purchases and sales under the
Agreements with the Other Investors; and (c) the accuracy of the representations
and warranties made by the Investors and the fulfillment of those undertakings
of the Investors to be fulfilled prior to the Closing.
The Investor's obligation to purchase the Securities shall be subject to
the following conditions, any one or more of which may be waived by the
Investor: (a) Investors shall have executed Agreements for the purchase of
Securities, (b) the representations and warranties of the Company set forth
herein shall be true and correct as of the Closing Date in all material respects
(except for representations and warranties that speak as of a specific date,
which representations and warranties shall be true and correct as of such date)
and (c) the Investor shall have received such documents as such Investor shall
reasonably have requested, including, a standard opinion of Company Counsel as
to the matters set forth in Sections 4.2 and 4.4 and as to exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), of the sale of the Securities.
4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Investor, as follows:
4.1 Organization. The Company is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries (as defined in Rule 405
under the Securities Act) has full power and authority to own, operate and
occupy its properties and to conduct its business as presently conducted and as
described in the documents filed by the Company under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), since the end of its most recently
completed fiscal year through the date hereof, including, without limitation,
its most recent report on Form 10-K (collectively, the "Exchange Act Documents")
and is registered or qualified to do business and in good standing in each
jurisdiction in which the nature of the business conducted by it or the location
of the properties owned or leased by it requires such qualification and where
the failure to be so qualified would have a material adverse effect upon the
condition (financial or otherwise), earnings, business or business prospects,
properties or operations of the Company and its Subsidiaries, considered as one
enterprise (a "Material Adverse Effect"), and no proceeding has been instituted
in any such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
4.2 Due Authorization and Valid Issuance. The Company has all
requisite power and authority to execute, deliver and perform its obligations
under the Agreements, and the Agreements have been duly authorized and validly
executed and delivered by the Company and constitute legal, valid and binding
agreements of the Company enforceable against the Company in accordance with
their terms, except as rights to indemnity and contribution may be limited by
state or federal securities laws or the public policy underlying such laws,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). The Securities being purchased by the
Investor hereunder will, upon issuance and payment therefor pursuant to the
terms hereof, be duly authorized, validly issued, fully-paid and non-assessable.
4.3 Non-Contravention. The execution and delivery of the
Agreements, the issuance and sale of the Securities under the Agreements, the
fulfillment of the terms of the Agreements and the consummation of the
transactions contemplated thereby will not (A) conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, (i) any
material bond, debenture, note or other evidence of indebtedness, lease,
contract, indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which the Company or any Subsidiary is a party
or by which it or any of its Subsidiaries or their respective properties are
bound, (ii) the charter, by-laws or other organizational documents of the
Company or any Subsidiary, or (iii) any law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration panel or
authority applicable to the Company or any Subsidiary or their respective
properties, except in the case of clauses (i) and (iii) for any such conflicts,
violations or defaults which are not reasonably likely to have a Material
Adverse Effect or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or any Subsidiary or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them is bound or to which any of the material property or assets of
the Company or any Subsidiary is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, or other governmental body in the United States or
any other person is required for the execution and delivery of the Agreements
and the valid issuance and sale of the Securities to be sold pursuant to the
Agreements, other than such as have been made or obtained, and except for any
post-closing securities filings or notifications required to be made under
federal or state securities laws.
4.4 Capitalization. The capitalization of the Company as of
December 31, 2003 is as set forth in the most recent applicable Exchange Act
Documents. The Company has not issued any capital stock since that date other
than pursuant to (i) employee benefit plans disclosed in the Exchange Act
Documents, or (ii) outstanding warrants, options or other securities disclosed
in the Exchange Act Documents or (iii) as disclosed in Schedule 4.4. The
Securities to be sold pursuant to the Agreements have been duly authorized, and
when issued and paid for in accordance with the terms of the Agreements will be
duly and validly issued, fully paid and nonassessable. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities. Except as set forth
in or contemplated by the Exchange Act Documents, there are no outstanding
rights (including, without limitation, preemptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any unissued
shares of capital stock or other equity interest in the Company or any
Subsidiary, or any contract, commitment, agreement, understanding or arrangement
of any kind to which the Company is a party or of which the Company has
knowledge and relating to the issuance or sale of any capital stock of the
Company or any Subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options. Without limiting the foregoing, no
preemptive right, co-sale right, right of first refusal, registration right, or
other similar right exists with respect to the Securities or the issuance and
sale thereof. No further approval or authorization of any stockholder, the Board
of Directors of the Company or others is required for the issuance and sale of
the Securities. The Company owns the entire equity interest in each of its
Subsidiaries, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest, other than as described in the
Exchange Act Documents. Except as disclosed in the Exchange Act Documents, there
are no stockholders agreements, voting agreements or other similar agreements
with respect to the Common Stock to which the Company is a party or, to the
knowledge of the Company, between or among any of the Company's stockholders.
4.5 Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is subject that is not disclosed in
the Exchange Act Documents.
4.6 No Violations. Neither the Company nor any Subsidiary is in
violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect, or is in default (and there
exists no condition which, with the passage of time or otherwise, would
constitute a default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other material agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or by which the properties of the Company or any Subsidiary
are bound, which would be reasonably likely to have a Material Adverse Effect.
4.7 Governmental Permits, Etc. With the exception of the matters which
are dealt with separately in Sections 4.1, 4.12, 4.13, and 4.14, each of the
Company and its Subsidiaries has all necessary franchises, licenses,
certificates and other authorizations from any foreign, federal, state or local
government or governmental agency, department, or body that are currently
necessary for the operation of the business of the Company and its Subsidiaries
as currently conducted and as described in the Exchange Act Documents except
where the failure to currently possess could not reasonably be expected to have
a Material Adverse Effect.
4.8 Intellectual Property. Except as specifically disclosed in the
Exchange Act Documents (i) each of the Company and its Subsidiaries owns or
possesses sufficient rights to use all material patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets, trade names and
know-how (collectively, "Intellectual Property") described or referred to in the
Exchange Act Documents as owned or possessed by it or that are necessary for the
conduct of its business as now conducted or as proposed to be conducted as
described in the Exchange Act Documents except where the failure to currently
own or possess would not have a Material Adverse Effect, (ii) neither the
Company nor any of its Subsidiaries is infringing, or has received any notice
of, or has any knowledge of, any asserted infringement by the Company or any of
its Subsidiaries of, any rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
Material Adverse Effect and (iii) neither the Company nor any of its
Subsidiaries has received any notice of, or has any knowledge of, infringement
by a third party with respect to any Intellectual Property rights of the Company
or of any Subsidiary that, individually or in the aggregate, would have a
Material Adverse Effect.
4.9 Financial Statements. The financial statements of the Company and
the related notes contained in the Exchange Act Documents present fairly, in
accordance with generally accepted accounting principles, the financial position
of the Company and its Subsidiaries as of the dates indicated, and the results
of its operations and cash flows for the periods therein specified consistent
with the books and records of the Company and its Subsidiaries except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which are not expected to be material in amount.
Such financial statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified, except as may be disclosed in
the notes to such financial statements, or in the case of unaudited statements,
as may be permitted by the Securities and Exchange Commission (the "SEC") on
Form 10-Q under the Exchange Act and except as disclosed in the Exchange Act
Documents. The other financial information contained in the Exchange Act
Documents has been prepared on a basis consistent with the financial statements
of the Company.
4.10 No Material Adverse Change. Except as disclosed in the Exchange
Act Documents, since __________ __, 2004, there has not been (i) any material
adverse change in the financial condition or earnings of the Company and its
Subsidiaries considered as one enterprise, (ii) any material adverse event
affecting the Company or its Subsidiaries, (iii) any obligation, direct or
contingent, that is material to the Company and its Subsidiaries considered as
one enterprise, incurred by the Company, except obligations incurred in the
ordinary course of business, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any of its
Subsidiaries, or (v) any loss or damage (whether or not insured) to the physical
property of the Company or any of its Subsidiaries which has been sustained
which has a Material Adverse Effect.
4.11 Disclosure. The representations and warranties of the Company
contained in this Section 4 as of the date hereof and as of the Closing Date, do
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. Except
with respect to the material terms and conditions of the transaction
contemplated by the Agreements, which shall be publicly disclosed by the Company
pursuant to Section 15(b) hereof, the Company confirms that neither it nor any
person acting on its behalf has provided Investor with any information that the
Company believes constitutes material, non-public information. The Company
understands and confirms that Investor will rely on the foregoing
representations in effecting transactions in the securities of the Company.
4.12 Nasdaq Compliance. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market, Inc. National Market (the "Nasdaq National Market"), and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the SEC or the National Association of Securities Dealers,
Inc. ("NASD") is contemplating terminating such registration or listing.
4.13 Reporting Status. The Company has filed in a timely manner all
documents that the Company was required to file under the Exchange Act during
the 12 months preceding the date of this Agreement. The following documents
complied in all material respects with the SEC's requirements as of their
respective filing dates, and the information contained therein as of the date
thereof did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading:
(a) 10-K, 10-Q's; proxy; 8-K's; other filings; and
(b) all other documents, if any, filed by the Company with the
SEC since June 30, 2003 pursuant to the reporting requirements of
the Exchange Act.
4.14 Listing. The Company shall comply with all requirements of the
National Association of Securities Dealers, Inc. with respect to the issuance of
the Securities and the listing thereof on the Nasdaq National Market.
4.15 No Manipulation of Stock. The Company has not taken and will not,
in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the
Securities.
4.16 Company not an "Investment Company". The Company has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Company is not, and immediately
after receipt of payment for the Securities will not be, an "investment company"
or an entity "controlled" by an "investment company" within the meaning of the
Investment Company Act and shall conduct its business in a manner so that it
will not become subject to the Investment Company Act.
4.17 Foreign Corrupt Practices. Neither the Company, nor to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, has (i) directly or indirectly, used any corrupt funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company (or made by any person
acting on its behalf of which the Company is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
4.18 Accountants. To the Company's knowledge, Ernst & Young LLP, who
the Company expects will express its opinion with respect to the financial
statements to be incorporated by reference from the Company's Annual Report on
Form 10-K for the year ended June 30, 2003 and the Company's Quarterly Reports
on Form 10-Q for the quarters ended December 31 and September 30, 2003, into the
Registration Statement (as defined below) and the prospectus which forms a part
thereof, are independent accountants as required by the Securities Act and the
rules and regulations promulgated thereunder.
4.19 Contracts. The contracts described in the Exchange Act Documents
that are material to the Company are in full force and effect on the date
hereof, and neither the Company nor, to the Company's knowledge, any other party
to such contracts is in breach of or default under any of such contracts which
would have a Material Adverse Effect.
4.20 Taxes. The Company has filed all necessary federal, state and
foreign income and franchise tax returns and has paid or accrued all taxes shown
as due thereon, and the Company has no knowledge of a tax deficiency which has
been or might be asserted or threatened against it which would have a Material
Adverse Effect.
4.21 Transfer Taxes. On the Closing Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Securities to be sold to the Investor hereunder
will be, or will have been, fully paid or provided for by the Company and all
laws imposing such taxes will be or will have been fully complied with.
4.22 Private Offering. Assuming the correctness of the representations
and warranties of the Investors set forth in Section 5 hereof, the offer and
sale of Securities hereunder is exempt from registration under the Securities
Act. The Company has not distributed and will not distribute prior to the
Closing Date any offering material in connection with this Offering and sale of
the Securities other than the documents of which this Agreement is a part or the
Exchange Act Documents. The Company has not in the past nor will it hereafter
take any action independent of the placement agent to sell, offer for sale or
solicit offers to buy any securities of the Company which would bring the offer,
issuance or sale of the Securities as contemplated by this Agreement, within the
provisions of Section 5 of the Securities Act, unless such offer, issuance or
sale was or shall be within the exemptions of Section 4 of the Securities Act.
4.23 Disclosure Controls and Procedures; Internal Controls. The
Company's certifying officers are responsible for establishing disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and they have (a) designed such disclosure controls
and procedures, or caused such disclosure controls and procedures to be designed
under their supervision, to ensure that material information relating to the
Company, including its Subsidiaries, is made known to the certifying officers by
others within those entities, particularly during the period in which the Form
10-K or Form 10-Q, as the case may be, is being prepared; (b) evaluated the
effectiveness of the Company's disclosure controls and procedures as of the
appropriate date as required by the rules under the Exchange Act in effect as of
the filing of such report and presented in such report their conclusions about
the effectiveness of the disclosure controls and procedures as of such
appropriate date based on their evaluation; and (c) disclosed in the report any
changes in the Company's internal controls over financial reporting as required
by the applicable rules under the Exchange Act in effect as of the filing of
such report. Since August 30, 2003, there have been no changes in the Company's
internal control over financial reporting (as such term is defined in Rule
13a-15(f) under the Exchange Act) that has materially affected, or is reasonably
likely to materially affect, the registrant's internal control over financial
reporting.
4.24 Acknowledgment Regarding Purchasers' Purchase of Securities. The
Company acknowledges and agrees that each of the Purchasers is acting solely in
the capacity of an arm's length purchaser with respect to the Transaction
Documents and the transactions contemplated hereby and thereby. The Company
further acknowledges that no Purchaser is acting as a financial advisor or
fiduciary of the Company or any other Purchaser (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated
hereby and thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated hereby and thereby is merely
incidental to such Purchaser's purchase of the Securities. The Company further
represents to each Purchaser that the Company's decision to enter into this
Agreement has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
4.25 No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any sales of any security under circumstances that would cause
this offering of the Securities to be integrated with prior offerings by the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, under the rules and
regulations of any exchange or automated quotation system on which any of the
securities of the Company are listed or designated, nor will the Company or any
of its Subsidiaries take any action or steps that would cause the offering of
the Securities to be integrated with other offerings.
5. Representations, Warranties and Covenants of the Investor.
5.1 The Investor represents and warrants to, and covenants with, the
Company that: (i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act and the Investor is also knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions with
respect to investments in shares presenting an investment decision like that
involved in the purchase of the Securities, including investments in securities
issued by the Company and investments in comparable companies, and has
requested, received, reviewed and considered all information it deemed relevant
in making an informed decision to purchase the Securities; (ii) the Investor is
acquiring the number of Securities set forth in Section 3 of the Securities
Purchase Agreement in the ordinary course of its business and for its own
account for investment only and with no present intention of distributing any of
such Securities or any arrangement or understanding with any other persons
regarding the distribution of such Securities; (iii) the Investor will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Securities except in compliance with the Securities Act,
applicable state securities laws and the respective rules and regulations
promulgated thereunder; (iv) the Investor has answered all questions on the
Investor Questionnaire for use in preparation of the Registration Statement and
the answers thereto are true, correct and complete as of the date hereof and
will be true, correct and complete as of the Closing Date; (v) the Investor will
notify the Company immediately of any change in any of such information until
such time as the Investor has sold all of its Securities or until the Company is
no longer required to keep the Registration Statement effective; and (vi) the
Investor has, in connection with its decision to purchase the number of
Securities set forth in Section 3 of the Securities Purchase Agreement, relied
only upon the Exchange Act Documents and the representations and warranties of
the Company contained herein. The Investor understands that its acquisition of
the Securities has not been registered under the Securities Act or registered or
qualified under any state securities law in reliance on specific exemptions
therefrom, which exemptions may depend upon, among other things, the bona fide
nature of the Investor's investment intent as expressed herein. Investor has
completed or caused to be completed and delivered to the Company the Investor
Questionnaire, which questionnaire is true, correct and complete in all material
respects.
5.2 The Investor acknowledges, represents and agrees that no action
has been or will be taken in any jurisdiction outside the United States by the
Company that would permit an offering of the Securities, or possession or
distribution of offering materials in connection with the issue of the
Securities, in any jurisdiction outside the United States where legal action by
the Company for that purpose is required. Each Investor outside the United
States will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Securities or has
in its possession or distributes any offering material, in all cases at its own
expense.
5.3 The Investor hereby covenants with the Company not to make any
sale of the Securities without complying with the provisions of this Agreement
and without causing the prospectus delivery requirement under the Securities Act
to be satisfied, and the Investor acknowledges that the certificates evidencing
the Securities will be imprinted with a legend that prohibits their transfer
except in accordance therewith. The Investor acknowledges that there may
occasionally be times when the Company determines that it must suspend the use
of the Prospectus forming a part of the Registration Statement, as set forth in
Section 7.2(c).
5.4 The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Investors
herein may be legally unenforceable.
5.5 Investor will not use any of the restricted Securities acquired
pursuant to this Agreement to cover any short position in the Common Stock of
the Company if doing so would be in violation of applicable securities laws.
5.6 The Investor understands that nothing in the Exchange Act
Documents, this Agreement or any other materials presented to the Investor in
connection with the purchase and sale of the Securities constitutes legal, tax
or investment advice. The Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Securities.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the delivery
to the Investor of the Securities being purchased and the payment therefor.
7. Registration of the Securities; Compliance with the Securities Act.
7.1 Registration Procedures and Other Matters. The Company shall:
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(a) subject to receipt of necessary information from the
Investors after prompt request from the Company to the Investors to provide such
information, prepare and file with the SEC, within 20 business days after the
Closing Date, a registration statement on Form S-3 (the "Registration
Statement") to enable the resale of the Securities by the Investors from time to
time through the automated quotation system of the Nasdaq National Market or in
privately-negotiated transactions pursuant to Rule 415 of the Securities Act;
(b) use its commercially reasonable best efforts, subject to
receipt of necessary information from the Investors after prompt request from
the Company to the Investors to provide such information, to cause the
Registration Statement to become effective within 30 days after the Registration
Statement is filed by the Company (unless the Registration Statement is reviewed
by the SEC), such efforts to include, without limiting the generality of the
foregoing, preparing and filing with the SEC in such 30-day period any financial
statements that are required to be filed prior to the effectiveness of such
Registration Statement;
(c) use its best efforts to prepare and file with the SEC
such amendments and supplements to the Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep the Registration
Statement current, effective and free from any material misstatement or omission
to state a material fact for a period not exceeding, with respect to each
Investor's Securities purchased hereunder, the earlier of (i) the second
anniversary of the Closing Date, (ii) the date on which the Investor may sell
all Securities then held by the Investor without restriction by the volume
limitations of Rule 144(e) of the Securities Act, or (iii) such time as all
Securities purchased by such Investor in this Offering have been sold pursuant
to a registration statement;
(d) furnish to the Investor with respect to the Securities
registered under the Registration Statement such number of copies of the
Registration Statement, Prospectuses and Preliminary Prospectuses in conformity
with the requirements of the Securities Act and such other documents as the
Investor may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Securities by the Investor; provided, however,
that the obligation of the Company to deliver copies of Prospectuses or
Preliminary Prospectuses to the Investor shall be subject to the receipt by the
Company of reasonable assurances from the Investor that the Investor will comply
with the applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with any use of
such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue
sky clearance in states specified in writing by the Investor and use its best
efforts to maintain such blue sky qualifications during the period the Company
is required to maintain the effectiveness of the Registration Statement pursuant
to Section 7.1(c); provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any jurisdiction in
which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in
paragraph (a) through (e) of this Section 7.1 and the registration of the
Securities pursuant to the Registration Statement; and
(g) advise the Investor, promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order by the SEC delaying
or suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued.
Notwithstanding anything to the contrary herein, the Registration Statement
shall cover only the Securities. In no event at any time before the Registration
Statement becomes effective with respect to the Securities shall the Company
publicly announce or file any other registration statement, other than
registrations on Form S-8, without the prior written consent of a majority in
interest of the Investors.
The Company understands that the Investor disclaims being an underwriter,
but the Investor being deemed an underwriter by the SEC shall not relieve the
Company of any obligations it has hereunder; provided, however that if the
Company receives notification from the SEC that the Investor is deemed an
underwriter, then the period by which the Company is obligated to submit an
acceleration request to the SEC shall be extended to the earlier of (i) the 90th
day after such SEC notification, or (ii) 120 days after the initial filing of
the Registration Statement with the SEC.
7.2 Transfer of Securities After Registration; Suspension.
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(a) The Investor agrees that it will not effect any disposition
of the Securities or its right to purchase the Securities that would constitute
a sale within the meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 7.1 and as described below or as
otherwise permitted by law, and that it will promptly notify the Company of any
changes in the information set forth in the Registration Statement regarding the
Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the
Company shall (i) if deemed necessary by the Company, prepare and file from time
to time with the SEC a post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that, as
thereafter delivered to purchasers of the Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (ii) provide the Investor copies of any documents filed pursuant
to Section 7.2(b)(i); and (iii) inform each Investor that the Company has
complied with its obligations in Section 7.2(b)(i) (or that, if the Company has
filed a post-effective amendment to the Registration Statement which has not yet
been declared effective, the Company will notify the Investor to that effect,
will use its best efforts to secure the effectiveness of such post-effective
amendment as promptly as possible and will promptly notify the Investor pursuant
to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event (i) of any
request by the SEC or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) of any event or circumstance which, upon
the advice of its counsel, necessitates the making of any changes in the
Registration Statement or Prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; then the Company shall deliver a certificate in
writing to the Investor (the "Suspension Notice") to the effect of the foregoing
and, upon receipt of such Suspension Notice, the Investor will refrain from
selling any Securities pursuant to the Registration Statement (a "Suspension")
until the Investor's receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such Prospectus. In the event of any Suspension, the Company
will use its best efforts to cause the use of the Prospectus so suspended to be
resumed as soon as reasonably practicable within 20 business days after the
delivery of a Suspension Notice to the Investor. In addition to and without
limiting any other remedies (including, without limitation, at law or at equity)
available to the Investor, the Investor shall be entitled to specific
performance in the event that the Company fails to comply with the provisions of
this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2,
the Investor shall not be prohibited from selling Securities under the
Registration Statement as a result of Suspensions for more than 45 Trading Days
in any twelve month period, unless, in the good faith judgment of the Company's
Board of Directors, upon the written opinion of counsel, the sale of Securities
under the Registration Statement in reliance on this paragraph 7.2(d) would be
reasonably likely to cause a violation of the Securities Act or the Exchange Act
and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the
Investor may sell Securities under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee of such
Securities. Upon receipt of a request therefor, the Company has agreed to
provide an adequate number of current Prospectuses to the Investor and to supply
copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Securities by the Investor pursuant
to the Registration Statement, the Investor must also deliver to the Company's
transfer agent, with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit A, so that the Securities
may be properly transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
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(i) the term "Selling Stockholder" shall include the Investor and any
affiliate of such Investor;
(ii) the term "Registration Statement" shall include the Prospectus in
the form first filed with the SEC pursuant to Rule 424(b) of the Securities Act
or filed as part of the Registration Statement at the time of effectiveness if
no Rule 424(b) filing is required, exhibit, supplement or amendment included in
or relating to the Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include any untrue statement
or alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each
Selling Stockholder from and against any losses, claims, damages or liabilities
to which such Selling Stockholder may become subject (under the Securities Act
or otherwise) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon (i) any
breach of the representations or warranties of the Company contained herein or
failure to comply with the covenants and agreements of the Company contained
herein, (ii) any untrue statement of a material fact contained in the
Registration Statement as amended at the time of effectiveness or any omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any failure by the Company to
fulfill any undertaking included in the Registration Statement as amended at the
time of effectiveness, and the Company will reimburse such Selling Stockholder
for any reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim, or
preparing to defend any such action, proceeding or claim, provided, however,
that the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of, or is based upon, an untrue
statement made in such Registration Statement or any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Stockholder specifically for use
in preparation of the Registration Statement or the failure of such Selling
Stockholder to comply with its covenants and agreements contained in Section 7.2
hereof respecting sale of the Securities or any statement or omission in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
the Selling Stockholder prior to the pertinent sale or sales by the Selling
Stockholder. The Company shall reimburse each Selling Stockholder for the
amounts provided for herein on demand as such expenses are incurred.
(b) The Investor agrees to indemnify and hold harmless the
Company (and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and against any
losses, claims, damages or liabilities to which the Company (or any such
officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, (i) any failure to comply with the covenants and agreements
contained in Section 7.2 hereof respecting sale of the Securities, or (ii) any
untrue statement of a material fact contained in the Registration Statement or
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading if such untrue statement or omission
was made in reliance upon and in conformity with written information furnished
by or on behalf of the Investor specifically for use in preparation of the
Registration Statement, and the Investor will reimburse the Company (or such
officer, director or controlling person), as the case may be, for any legal or
other expenses reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; provided that the Investor's
obligation to indemnify the Company shall be limited to the net amount received
by the Investor from the sale of the Securities.
(c) Promptly after receipt by any indemnified person of a notice
of a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, but the omission to so notify the
indemnifying person will not relieve it from any liability which it may have to
any indemnified person under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying person's ability to
defend such action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall elect by written notice
delivered to the indemnified person promptly after receiving the aforesaid
notice from such indemnified person, shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified person of its election
to assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel (together with appropriate local
counsel) for all indemnified parties. In no event shall any indemnifying person
be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; provided
that such consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is
unavailable to or insufficient to hold harmless an indemnified person under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying person shall contribute to the amount paid or payable by
such indemnified person as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Investor,
as well as any other Selling Shareholders under such registration statement on
the other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, in the case of an
untrue statement, whether the untrue statement relates to information supplied
by the Company on the one hand or an Investor or other Selling Shareholder on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The Company and the
Investor agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if the
Investor and other Selling Shareholders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified person as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified person in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), the Investor shall not be required to contribute any amount in
excess of the amount by which the net amount received by the Investor from the
sale of the Securities to which such loss relates exceeds the amount of any
damages which such Investor has otherwise been required to pay by reason of such
untrue statement. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Investor's obligations in this subsection to contribute
shall be in proportion to its Investor sale of Securities to which such loss
relates and shall not be joint with any other Selling Shareholders.
(e) The parties to this Agreement hereby acknowledge that they
are sophisticated business persons who were represented by counsel, or had the
opportunity to be represented by counsel, during the negotiations regarding the
provisions hereof including, without limitation, the provisions of this Section
7.3, and are fully informed regarding said provisions. They further acknowledge
that the provisions of this Section 7.3 fairly allocate the risks in light of
the ability of the parties to investigate the Company and its business in order
to assure that adequate disclosure is made in the Registration Statement as
required by the Act and the Exchange Act. The parties are advised that federal
or state public policy as interpreted by the courts in certain jurisdictions may
be contrary to certain of the provisions of this Section 7.3, and the parties
hereto hereby expressly waive and relinquish any right or ability to assert such
public policy as a defense to a claim under this Section 7.3 and further agree
not to attempt to assert any such defense.
7.4 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of the
Securities shall cease and terminate as to any particular number of the
Securities when such Securities shall have been effectively registered under the
Securities Act and sold or otherwise disposed of in accordance with the intended
method of disposition set forth in the Registration Statement covering such
Securities or at such time as an opinion of counsel reasonably satisfactory to
the Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act.
7.5 Information Available. So long as the Registration Statement is
effective covering the resale of Securities owned by the Investor, the Company
will furnish to the Investor:
(a) as soon as practicable after it is available, one copy of its
Annual Report to Stockholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted accounting principles
by a national firm of certified public accountants);
(b) upon the request of the Investor, all exhibits excluded by
the parenthetical to subparagraph (a) of this Section 7.5 as filed with the SEC
and all other information that is made available to shareholders; and
(c) upon the reasonable request of the Investor, an adequate
number of copies of the Prospectuses to supply to any other party requiring such
Prospectuses; and upon the reasonable request of the Investor, the President or
the Chief Financial Officer of the Company (or an appropriate designee thereof)
will meet with the Investor or a representative thereof at the Company's
headquarters to discuss all information relevant for disclosure in the
Registration Statement covering the Securities and will otherwise cooperate with
any Investor conducting an investigation for the purpose of reducing or
eliminating such Investor's exposure to liability under the Securities Act,
including the reasonable production of information at the Company's
headquarters; provided, that the Company shall not be required to disclose any
confidential information to or meet at its headquarters with any Investor until
and unless the Investor shall have entered into a confidentiality agreement in
form and substance reasonably satisfactory to the Company with the Company with
respect thereto.
7.6 Delayed Effectiveness. The Company and Investor agree that
Investor will suffer damages if the Company fails to fulfill its obligations
pursuant to Section 7.1 and 7.2 hereof and that it would not be possible to
ascertain the extent of such damages with precision. Accordingly, the Company
hereby agrees to pay liquidated damages ("Liquidated Damages") to Investor under
the following circumstances: (a) if the Registration Statement is not filed by
the Company on or prior to 20 business days after the Closing Date in accordance
with Section 7.1(a) (such an event, a "Filing Default"); (b) if the Registration
Statement is not declared effective by the SEC on or prior to 135 days after the
Closing Date (such an event, an "Effectiveness Default"); or (c) if the
Registration Statement (after its effectiveness date) ceases to be effective and
available to Investor for one or more periods that exceed in the aggregate 45
days in any 12-month period (such an event, a "Suspension Default" and together
with a Filing Default and an Effectiveness Default, a "Registration Default").
In the event of a Registration Default, the Company shall as Liquidated Damages
pay to Investor, for each 30-day period of a Registration Default, an amount in
cash equal to 1% of the aggregate purchase price paid by Investor pursuant to
this Agreement; provided that in no event shall the aggregate amount of cash to
be paid as Liquidated Damages pursuant to this Section 7.6 exceed 12% of the
aggregate purchase price paid by Investor. The Company shall pay the Liquidated
Damages as follows: (i) in connection with a Filing Default, on the 20th day
after the Closing Date, and each 30th day thereafter until the Registration
Statement is filed with the SEC; (ii) in connection with an Effectiveness
Default, on the 140th day after the Closing Date, and each 30th day thereafter
until the Registration Statement is declared effective by the SEC; or (iii) in
connection with a Suspension Default, on the 50th day (in the aggregate) of any
Suspensions in any 12-month period, and each 30th day thereafter until the
Suspension is terminated in accordance with Section 7.2. Notwithstanding the
foregoing, all periods shall be tolled during delays directly caused by the
action or inaction of any Investor, and the Company shall have no liability to
any Investor in respect of any such delay. The Liquidated Damages payable herein
shall apply on a pro rata basis for any portion of a 30-day period of a
Registration Default.
8. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within the United States
by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail, three business days after so mailed, (ii) if delivered by
nationally recognized overnight carrier, one business day after so mailed, (iii)
if delivered by International Federal Express, two business days after so
mailed, (iv) if delivered by facsimile, upon electronic confirmation of receipt
and shall be delivered as addressed as follows:
(a) if to the Company, to:
ThermoGenesis Corp.
2711 Citrus Road
Rancho Cordova, CA 95742
Attn: Renee M. Ruecker, Chief Financial Officer
(b) with a copy to:
David C. Adams
Bartel Eng & Schroder
1331 Garden Highway, Suite 300
Sacramento, CA 95833
Phone: (916) 442-0400
Fax: (916) 442-3442
(c) if to the Investor, at its address on the signature
page hereto, or at such other address or addresses as may have been
furnished to the Company in writing.
9. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
10. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11. Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
12. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
14. Rule 144. The Company covenants that it will timely file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Investor holding
Securities purchased hereunder made after the first anniversary of the Closing
Date, make publicly available such information as necessary to permit sales
pursuant to Rule 144 under the Securities Act), and it will take such further
action as any such Investor may reasonably request, all to the extent required
from time to time to enable such Investor to sell Securities purchased hereunder
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of the Investor, the Company will deliver
to such holder a written statement as to whether it has complied with such
information and requirements.
15. Confidential Information. (a) The Investor represents to the Company
that, at all times during the Company's offering of the Securities, the Investor
has maintained in confidence all non-public information regarding the Company
and relating specifically to the financing transaction that is the subject of
this agreement, received by the Investor from the Company or its agents, and
covenants that it will continue to maintain in confidence such information until
such information (a) becomes generally publicly available other than through a
violation of this provision by the Investor or its agents or (b) is required to
be disclosed in legal proceedings (such as by deposition, interrogatory, request
for documents, subpoena, civil investigation demand, filing with any
governmental authority or similar process), provided, however, that before
making any use or disclosure in reliance on this subparagraph (b) the Investor
shall give the Company at least fifteen (15) days prior written notice (or such
shorter period as required by law) specifying the circumstances giving rise
thereto and will furnish only that portion of the non-public information which
is legally required and will exercise its best efforts to obtain reliable
assurance that confidential treatment will be accorded any non-public
information so furnished.
(b) Public Statements. The Company shall, on or before 8:30 a.m., New
York time, on the first Business Day following execution of the Agreements,
issue a press release disclosing all material terms of the Offering. Within one
(1) Business Day after the Closing Date, the Company shall file a Current Report
on Form 8-K with the SEC (the "8-K Filing") describing the terms of the Offering
and including as exhibits to the 8-K filing this Agreement in the form required
by the Exchange Act. Thereafter, the Company shall timely file any filings and
notices required by the SEC or applicable law with respect to the Offering and
provide copies thereof to the Investors promptly after filing. The Company shall
not publicly disclose the name of any Investor, or include the name of any
Investor in any press release without the prior written consent of such
Investor.
THERMOGENESIS CORP.
INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: ThermoGenesis Corp.
2711 Citrus Road
Rancho Cordova, CA 95742
This Investor Questionnaire ("Questionnaire") must be completed by each
potential investor in connection with the offer and sale of the shares of the
common stock, par value $0.001 per share, of ThermoGenesis Corp. (the
"Securities"). The Securities are being offered and sold by ThermoGenesis Corp.
(the "Corporation") without registration under the Securities Act of 1933, as
amended (the "Act"), and the securities laws of certain states, in reliance on
the exemptions contained in Section 4(2) of the Act and on Regulation D
promulgated thereunder and in reliance on similar exemptions under applicable
state laws. The Corporation must determine that a potential investor meets
certain suitability requirements before offering or selling Securities to such
investor. The purpose of this Questionnaire is to assure the Corporation that
each investor will meet the applicable suitability requirements. The information
supplied by you will be used in determining whether you meet such criteria, and
reliance upon the private offering exemption from registration is based in part
on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a solicitation
of an offer to buy any security. Your answers will be kept strictly
confidential. However, by signing this Questionnaire you will be authorizing the
Corporation to provide a completed copy of this Questionnaire to such parties as
the Corporation deems appropriate in order to ensure that the offer and sale of
the Securities will not result in a violation of the Act or the securities laws
of any state and that you otherwise satisfy the suitability standards applicable
to purchasers of the Securities. All potential investors must answer all
applicable questions and complete, date and sign this Questionnaire. Please
print or type your responses and attach additional sheets of paper if necessary
to complete your answers to any item.
A. BACKGROUND INFORMATION
Name:
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Business Address:
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(Number and Street)
- --------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: (___)
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Residence Address:
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(Number and Street)
- --------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: (___)
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If an individual:
Age: Citizenship: Where registered to vote:
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If a corporation, partnership, limited liability company, trust or other entity:
Type of entity:
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State of formation: Date of formation:
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Social Security or Taxpayer Identification No.
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Send all correspondence to (check one): ____ Residence ____ Business
Address Address
Current ownership of securities of the Corporation: __________ shares of common
stock, $0.001 par value per share (the "Common Stock") options to purchase
__________ shares of Common Stock
B. STATUS AS ACCREDITED INVESTOR
-----------------------------
The undersigned is an "accredited investor" as such term is defined in
Regulation D under the Act, as at the time of the sale of the Securities the
undersigned falls within one or more of the following categories (Please initial
one or more, as applicable):1
____ (1) a bank as defined in Section 3(a)(2) of the Act, or a savings and
loan association or other institution as defined in Section 3(a)(5)(A) of the
Act whether acting in its individual or fiduciary capacity; a broker or dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934; an
insurance company as defined in Section 2(13) of the Act; an investment company
registered under the Investment Corporation Act of 1940 or a business
development company as defined in Section 2(a)(48) of that Act; a Small Business
Investment Corporation licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with the investment decisions made solely by persons that
are accredited investors;
____ (2) a private business development company as defined in Section
202(a)(22) of the Investment Adviser Act of 1940;
____ (3) an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of acquiring the
Securities offered, with total assets in excess of $5,000,000;
____ (4) a natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of such person's purchase of the
Securities exceeds $1,000,000;
____ (5) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
____ (6) a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the Securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of
Regulation D; and
____ (7) an entity in which all of the equity owners are accredited
investors (as defined above).
Note: Each equity owner must submit an individual investor questionnaire.
C. REPRESENTATIONS
---------------
The undersigned hereby represents and warrants to the Corporation as
follows:
1. Any purchase of the Securities would be solely for the account of the
undersigned and not for the account of any other person or with a view to any
resale, fractionalization, division, or distribution thereof.
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1 As used in this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In computing net worth for the purpose
of subsection (4), the principal residence of the investor must be valued at
cost, including cost of improvements, or at recently appraised value by an
institutional lender making a secured loan, net of encumbrances. In determining
income, the investor should add to the investor's adjusted gross income any
amounts attributable to tax exempt income received, losses claimed as a limited
partner in any limited partnership, deductions claimed for depiction,
contributions to an IRA or KEOGH retirement plan, alimony payments, and any
amount by which income from long-term capital gains has been reduced in arriving
at adjusted gross income.
2. The information contained herein is complete and accurate and may be relied
upon by the Corporation, and the undersigned will notify the Corporation
immediately of any material change in any of such information occurring
prior to the closing, if any, with respect to the purchase of Securities by
the undersigned or any co-purchaser.
3. There are no suits, pending litigation, or claims against the undersigned
that could materially affect the net worth of the undersigned as reported
in this Questionnaire.
4. The undersigned acknowledges that there may occasionally be times when the
Corporation determines that it must suspend the use of the Prospectus
forming a part of the Registration Statement (as such terms are defined in
the Securities Purchase Agreement to which this Questionnaire is attached),
as set forth in Section 7.2(c) of the Securities Purchase Agreement. The
undersigned is aware that, in such event, the Securities will not be
subject to ready liquidation, and that any Securities purchased by the
undersigned would have to be held during such suspension. The overall
commitment of the undersigned to investments which are not readily
marketable is not excessive in view of the undersigned's net worth and
financial circumstances, and any purchase of the Securities will not cause
such commitment to become excessive. The undersigned is able to bear the
economic risk of an investment in the Securities.
5. The undersigned has carefully considered the potential risks relating to
the Corporation and a purchase of the Securities, and fully understands
that the Securities are speculative investments which involve a high degree
of risk of loss of the undersigned's entire investment. Among others, the
undersigned has carefully considered each of the risks identified in the
Exchange Act Documents.
6. The undersigned has received and carefully reviewed the Confidential
Private Placement Memorandum (the "Offering Memorandum"), including the
Exchange Act Documents, understanding that each such document supersedes
all prior versions thereof and any inconsistent portions of previously
distributed materials relating to the Company, including, without
limitation, executive and other summaries and marketing materials regarding
the Company and the Securities that are not part of the Offering
Memorandum, and has consulted its own advisors, who are not affiliated with
the Company or the Placement Agent, with respect to the undersigned's
proposed investment in the Company. The undersigned has not relied on any
other information provided to it by the Company or the Placement Agent or
any of their respective affiliates (or any of its or their respective
agents or representatives). Based on such review, the undersigned has
determined that the Securities being purchased herein are a suitable
investment for the undersigned. The undersigned recognizes that an
investment in the Company involves certain risks and it has taken full
cognizance of and understands all of the risk factors relating to the
purchase of Securities. The undersigned has such knowledge and experience
in financial and business matters that it is capable of evaluating the
merits and risks of an investment in the Company and making an informed
investment decision with respect thereto. The undersigned is able to bear
the substantial economic risks related to an investment in the Company for
an indefinite period of time, has no need for liquidity in such investment,
and, at the present time, can afford a complete loss of such investment.
With respect to tax and other economic considerations involved in this
subscription, the undersigned is not relying on the Company or Placement
Agent or their respective affiliates (or any of its or their agents or
representatives).
7. The undersigned has had the opportunity to ask questions and receive
answers concerning the Company and the terms and conditions of the offering
of Securities, as well as the opportunity to obtain any additional
information necessary to verify the accuracy of information furnished in
connection with such offering which the Company or the Placement Agent
possesses or can acquire without unreasonable effort or expense.
8. No oral or written representations have been made to the undersigned other
than those set forth in the Offering Memorandum, and no oral or written
information furnished to the undersigned or the undersigned's adviser(s) in
connection with this Offering were in any way inconsistent with the
information stated in the Offering Memorandum.
9. The undersigned is not subscribing for Securities as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio, or presented at any investment seminar or meeting open
to the public.
10. If the undersigned is a partnership, corporation, limited liability company
or trust, such partnership, corporation, limited liability company or trust
has not been formed for the specific purpose of acquiring such Securities,
unless each beneficial owner of such entity is qualified as an accredited
investor within the meaning of Rule 501(a) of Regulation D and has
submitted information substantiating such individual qualification.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire this
_____ day of _______, 2004, and declares under oath that it is truthful and
correct.
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Print Name
By:
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Signature
Title:
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(required for any purchaser that is a corporation,
partnership, trust or other entity)
DISCLOSURE SCHEDULE
Schedule 4.4
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A. 1,500 shares of common stock issued on January 22, 2004 pursuant to a
consulting agreement. The shares are restricted as to trading for one year.
B. An agreement entered into with the Company's President and COO whereby for
every share of stock purchased by the President and COO, the Company will
grant him one share of stock up to 50,000 shares over an 18 month period.
The granted shares are restricted as to trading or transfer during the term
of his contract.
C. 24,000 shares which may be issued over the next twelve months pursuant to a
consulting agreement.
[Company Letterhead]
_________, 2004
Re: ThermoGenesis Corp.; Registration Statement on Form S-3
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Dear Selling Shareholder:
Enclosed please find five (5) copies of a prospectus dated ______________,
____ (the "Prospectus") for your use in reselling your shares of common stock,
$0.001 par value (the "Securities"), of ThermoGenesis Corp. (the "Company"),
under the Company's Registration Statement on Form S-3 (Registration No. 333- )
(the "Registration Statement"), which has been declared effective by the
Securities and Exchange Commission. As a selling shareholder under the
Registration Statement, you have an obligation to deliver a copy of the
Prospectus to each purchaser of your Securities, either directly or through the
broker-dealer who executes the sale of your Securities.
The Company is obligated to notify you in the event that it suspends
trading under the Registration Statement in accordance with the terms of the
Securities Purchase Agreement between the Company and you. During the period
that the Registration Statement remains effective and trading thereunder has not
been suspended, you will be permitted to sell your Securities which are included
in the Prospectus under the Registration Statement. Upon a sale of any
Securities under the Registration Statement, you or your broker will be required
to deliver to the Transfer Agent, Computershare Trust Company, Inc. (1) your
restricted stock certificate(s) representing the Securities, (2) instructions
for transfer of the Securities sold, and (3) a representation letter from your
broker, or from you if you are selling in a privately negotiated transaction, or
from such other appropriate party, in the form of Exhibit A attached hereto (the
"Representation Letter"). The Representation Letter confirms that the Securities
have been sold pursuant to the Registration Statement and in a manner described
under the caption "Plan of Distribution" in the Prospectus and that such sale
was made in accordance with all applicable securities laws, including the
prospectus delivery requirements.
Please note that you are under no obligation to sell your Securities during
the registration period. However, if you do decide to sell, you must comply with
the requirements described in this letter or otherwise applicable to such sale.
Your failure to do so may result in liability under the Securities Act of 1933,
as amended, and the Securities Exchange Act of 1934, as amended. Please remember
that all sales of your Securities must be carried out in the manner set forth
under the caption "Plan of Distribution" in the Prospectus if you sell under the
Registration Statement. The Company may require an opinion of counsel reasonably
satisfactory to the Company if you choose another method of sale. You should
consult with your own legal advisor(s) on an ongoing basis to ensure your
compliance with the relevant securities laws and regulations.
In order to maintain the accuracy of the Prospectus, you must notify the
undersigned upon the sale, gift, or other transfer of any Securities by you,
including the number of Securities being transferred, and in the event of any
other change in the information regarding you which is contained in the
Prospectus. For example, you must notify the undersigned if you enter into any
arrangement with a broker-dealer for the sale of shares through a block trade,
special offering, exchange distribution or secondary distribution or a purchase
by a broker-dealer. Depending on the circumstances, such transactions may
require the filing of a supplement to the prospectus in order to update the
information set forth under the caption "Plan of Distribution" in the
Prospectus.
Should you need any additional copies of the Prospectus, or if you have any
questions concerning the foregoing, please write to me at ThermoGenesis Corp.,
2711 Citrus Road, Rancho Cordova, CA 95742. Thank you.
Sincerely,
Renee M. Ruecker, Chief Financial Officer
ThermoGenesis Corp.
Exhibit A
CERTIFICATE OF SUBSEQUENT SALE
Computershare Trust Company, Inc.
Post Office Box 1596
Denver, Colorado 80201-1596
RE: Sale of Shares of Common Stock of ThermoGenesis Corp. (the
"Company") pursuant to the Company's Prospectus dated
_____________, 2004(the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Shareholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all securities laws applicable to
the undersigned, including, without limitation, the Prospectus delivery
requirements of the Securities Act of 1933, as amended.
Selling Shareholder (the beneficial owner):
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Record Holder (e.g., if held in name of nominee):
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Restricted Stock Certificate No.(s):
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Number of Shares Sold:
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Date of Sale:
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In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: By:
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Print Name:
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Title:
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cc: ThermoGenesis Corp.
2711 Citrus Road
Rancho Cordova, CA 95742