THERMOGENESIS CORP.
UNIT PLACEMENT AGREEMENT
November 6, 1995
PARADISE VALLEY SECURITIES, INC.
11811 N. Tatum Blvd., Suite 4040
Phoenix, Arizona 85028
Gentlemen:
The undersigned, THERMOGENESIS CORP., a Delaware corporation (the
"Company"), confirms its agreement with you as follows:
1. DESCRIPTION OF SECURITIES AND OFFERING.
(a) The Company proposes to issue and sell to investors
("Purchasers") up to 88 units ("Units"), each consisting of 50,000 shares
of the Company's common stock, $.001 par value ("Common Stock") and a
Common Stock Purchase Warrant ("Warrant") for the purchase of 12,500 shares
of Common Stock. The Warrants are exercisable at any time prior to July
31, 1996 at an exercise price of $1.50 per share, subject to reduction in
the exercise price under certain circumstances and to certain anti-dilution
provisions. The price for each Unit is $25,000.
The Units will be offered by delivery to prospective investors of the
Company's Private Placement Memorandum ("Memorandum") dated October 30,
1995, together with Exhibits A through F annexed thereto, (such Memorandum
and exhibits annexed thereto are called collectively herein the "Disclosure
Documents," which term shall include any additions or supplements thereto).
(b) You have advised us that you will act as agent for the Company
for this offering. You will offer the Units on a "best efforts-all or
none" basis as to the first 30 Units, having an aggregate value of $750,000
("Minimum Offering"), and on a "best efforts" basis as to the remaining 58
Units having an aggregate value of $1,450,000. The offering of the 88
Units having an aggregate value of $2,200,000 shall be referred to as the
"Maximum Offering." If subscriptions for at least 30 Units have been
received and accepted by the Company before the expiration date of this
offering, the Company may have an initial closing ("Initial Closing") with
respect to such subscribed Units and shall continue to offer the remaining
Units and may hold additional closings with respect to such Units sold
before the expiration date of this offering. The date of any closing under
this offering shall be referred to as a "Closing Date" and the date of the
final closing under this offering shall be referred to as the "Final
Closing Date." You are authorized to sell the Units until and including
November 30, 1995, which date may be extended to a date not later than
December 31, 1995 by our mutual agreement. The term "Offering Period," as
used herein shall include the entire period, as it may be extended, during
which the Units may be offered.
In addition, the Company agrees to sell to you, for an aggregate price
of $100, warrants ("Placement Agent's Warrants") for the purchase of up to
8.8 Units at $30,000 per Unit ("Placement Agent's Warrant Units"), on the
basis of one Placement Agent's Warrant Unit for each ten Units issued, sold
and delivered to Purchasers. The Units to be purchased pursuant to the
Placement Agent's Warrant shall have the same terms and conditions as the
Units offered hereby.
The Common Stock, the Warrants, the shares of Common Stock underlying
the Warrants (the "Warrant Shares"), the Placement Agent's Warrants and the
Placement Agent's Warrant Units (collectively, the "Securities") are more
fully described in the Disclosure Documents.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants to and agrees with you that except as
specifically described in the Memorandum:
(a) The Company has carefully prepared the Disclosure Documents or
has caused them to be so prepared. When read as one document, the
Disclosure Documents furnish all information required to be furnished to
non-accredited investors under Regulation D ("Regulation D") of the
Securities and Exchange Commission ("SEC") promulgated under Securities Act
of 1933, as amended (the "1933 Act").
(b) Applications or other filings necessary to qualify the Securities
for sale or to obtain a valid exemption from qualification in the states
set forth in Schedule 2(b) or as you may reasonably designate from time to
time (the "Designated States") including an exemption from Federal
Securities Laws under Regulation D, have been or will be timely filed to
permit the lawful offer and sale of the Units in such states. These
applications or other filings, as they may be amended from time to time,
are referred to herein as the "Blue Sky Applications." The Blue Sky
Applications shall be prepared and filed by your counsel together with the
Company's assistance.
(c) The Disclosure Documents and Blue Sky Applications and any
amendments or supplements thereto, to the best knowledge of the Company and
its directors: (i) do and will, as the case may be, contain all material
statements and information which are required to be included in accordance
with the 1933 Act, Regulation D and applicable state law, (ii) do and will
in all material respects conform to the requirements of the 1933 Act,
Regulation D and applicable state law and (iii) do not and will not, as the
case may be, include any untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing
representations and warranties shall not apply to information contained in
or omitted from the Disclosure Documents and Blue Sky Applications or any
such amendment or supplement in reliance upon, and in conformity with,
written information furnished to the Company by you or on your behalf
specifically for use in the preparation thereof.
(d) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions herein contemplated will
not result in a breach or violation of any of the terms and provisions of
the Articles of Incorporation or Bylaws of the Company as in effect on the
date hereof (the "Organizational Documents"), and will not constitute a
material default under any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Company is a party or by
which the Company is bound, and will not violate or contravene (i) any
governmental statute, rule or regulation applicable to the Company or (ii)
any order, writ, judgment, injunction, decree, determination or award which
has been entered against the Company, the violation or contravention of
which would materially and adversely affect the Company, its assets,
financial condition or operations.
(e) Subsequent to the dates as of which information is given in the
Disclosure Documents, except as contemplated therein and prior to the final
Closing, the Company has not and will not have incurred any material
liabilities or material obligations, direct or contingent, or entered into
any material transactions not in the ordinary course of business, and there
has not been or will not have been any change in its capitalization, or any
material adverse change in its condition (financial or other), net worth,
results of operations or prospects except as disclosed in the Disclosure
Documents.
(f) Except as set forth in the Disclosure Documents, there is neither
pending nor, to the knowledge of the Company, threatened any action, suit
or proceeding to which the Company is a party before or by any court or
governmental agency or body.
(g) The Company has been duly organized in accordance with the laws
of Delaware and exists in good standing under such laws with full power and
authority to conduct its business as described in the Disclosure Documents
and is duly qualified and in good standing in the State of California and
in each other jurisdiction in which such qualification is required except
where the failure to so qualify, both individually and in the aggregate,
does not have a material adverse effect on the condition (financial or
otherwise), business or prospects of the Company or on its properties or
assets.
(h) The Company has conducted, is conducting and will conduct its
business so as to comply in all material respects with all applicable
statutes and regulations, and the Company is not charged with and, to the
knowledge of the Company, is not under investigation with respect to any
violation of any statutes or regulations nor is it the subject of any
pending or threatened adverse proceedings by any regulatory authority
having jurisdiction over its business or operations except as disclosed in
the Disclosure Documents.
(i) The financial statements, together with the related notes, as set
forth in the Disclosure Documents, present fairly the assets, liabilities
and capital structure of the Company as of the dates presented. Such
financial statements, together with the related notes, have been prepared
in accordance with generally accepted accounting principles consistently
applied. Ernst & Young LLP, who have audited the financial statements at
June 30, 1995 and for the period then ended, are independent public
accountants within the meaning of the 1933 Act and the rules promulgated
thereunder.
(j) Except as set forth in the Disclosure Documents, the Company has
good and marketable title to all properties and assets described therein as
owned by it, free and clear of all liens, charges, encumbrances or
restrictions.
(k) The Company has filed all necessary federal and state income and
franchise tax returns and has paid all taxes shown as due thereon; and the
Company has no knowledge of any tax deficiency that might be asserted
against it that might materially and adversely affect its business or
properties.
(l) The Company maintains insurance of the types and in amounts
generally deemed adequate for its business and consistent with insurance
coverage maintained by similar companies and businesses, including, but not
limited to, insurance covering all real and personal property owned or
leased by the Company against theft, damage, destruction, acts of
vandalism, products liability, and all other risks customarily insured
against, all of which insurance is in full force and effect.
(m) To the best of the knowledge of the Company's management, no
labor disturbance by the employees of the Company exists or is imminent
that could reasonably be expected to have a material adverse effect on the
conduct of the business, operations, financial condition, or income of the
Company.
(n) To the best of the knowledge of the Company's management, neither
the Company nor any employee or agent of the Company has made any payment
of funds of the Company or received or retained any funds in violation of
law.
(o) The Company knows of no outstanding claims for services either in
the nature of a finder's fee or origination fee with respect to the sale of
the Units hereunder resulting from its acts for which you or the Company
may be responsible other than as disclosed in the Disclosure Documents.
(p) The Securities, when issued and delivered, will conform to the
description thereof under the captions "Description of Securities" and
"Terms of the Offering" in the Memorandum.
(q) This Agreement has been duly authorized by all necessary
corporate action of the Company and, when executed and delivered, will be a
legal, valid and binding obligation of the Company, enforceable in
accordance with its terms except to the extent that the enforceability
hereof may be limited by bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity,
and except that the indemnification provisions of the Agreement may be held
to be violative of public policy under either federal or state laws in the
context of the offer or sale of securities.
(r) The Warrants and the Placement Agent's Warrants, when issued and
paid for, will be duly authorized, validly existing obligations of the
Company, enforceable in accordance with their respective terms.
(s) The shares of Common Stock included in the Units, the Warrant
Shares, the Common Stock included in the Placement Agent's Warrant Units
and the Warrant Shares underlying the Warrants included in the Placement
Agent's Warrant Units, when issued and paid for, will constitute duly
authorized, legally and validly issued shares of Common Stock, fully paid
and non-assessable.
(t) Except as set forth in the Disclosure Documents, no defaults
exist in the due performance or observance of any material obligation,
term, covenant or condition of any agreement or instrument to which the
Company is a party or by which it or its properties may be bound.
(u) Neither the Company nor any affiliate has offered to sell,
offered for sale or sold any securities, the offer to sell, offer for sale
or sale of which would be integrated (as that term is used in Rule 502(a)
of Regulation D) with the offers to sell, offers for sale and sales of the
Shares so as to render the exemption provided by Section 3(b) and 4(2) of
the 1933 Act and similar exemptions under the laws of the Designated States
unavailable with respect to the offering of the Shares hereunder.
(v) Subject in part to the truth and accuracy of each Purchaser's
representations set forth in the Unit Purchase Agreement and Purchaser
Questionnaire and the representations and covenants of the Placement Agent
made in this Agreement being true, the offer, sale and issuance of the
Units, the Common Stock, the Warrants and the Contingent Warrants are
exempt from the registration requirements of the 1933 Act, and neither the
Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemption.
(w) Neither the holders of the outstanding shares of Common Stock nor
the holders of any other securities or rights of the Company are entitled
to pre-emptive or other rights or agreements for the purchase or
acquisition from the Company of any shares of its Common Stock or to
subscribe for the Units. Except as specifically and in detail set forth in
the Disclosure Documents, the offering of the Units as contemplated by this
Agreement and the Memorandum does not give rise to any rights relating to
the registration of any securities of the Company, and the Company has not
granted or agreed to grant any registration rights, including piggyback
rights, to any person or entity. Except as set forth in the Disclosure
Documents, the Company is not a party or subject to any agreement or
understanding, and, to the best of the Company's knowledge, there is no
agreement or understanding between any persons and/or entities, which
affects or relates to the voting or giving of written consents with respect
to any security or by a director of the Company.
(x) Except as set forth in the Disclosure Documents, the Company does
not presently own or control, directly or indirectly, any interest in any
other corporation, association, or other business entity; nor is it not a
participant in any joint venture, partnership, or similar arrangement.
(y) The Company has sufficient title and ownership of all trademarks,
service marks, trade names, copyrights, patents, trade secrets and other
proprietary rights necessary for its business as now conducted and as
proposed to be conducted as described in the Disclosure Documents without
any conflict with or infringement of the rights of others. Except as set
forth in the Disclosure Documents, there are no material outstanding
options, licenses, or agreements of any kind relating to the foregoing, nor
is the Company bound by or a party to any material options, licenses or
agreements of any kind with respect to the trademarks, service marks, trade
names, copyrights, patents, trade secrets, licenses, and other proprietary
rights of any other person or entity. The Company is not aware that any of
its executive officers is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to
any judgment, decree or order of any court or administrative agency, that
would interfere with the use of his or her best efforts to promote the
interests of the Company or that would conflict with the Company's business
as proposed to be conducted.
(z) Except for agreements explicitly contemplated hereby or set forth
in the Disclosure Documents, there are no agreements, understandings or
proposed transactions between the Company and any of its officers,
directors, affiliates, or any affiliate thereof.
(aa) Except as set forth in the Disclosure Documents, the Company has
not engaged in the past three (3) months in any discussion (i) with any
representative of any corporation or corporations regarding the
consolidation or merger of the Company with or into any such corporation or
corporations, (ii) with any corporation, partnership, association or other
business entity or any individual regarding the sale, conveyance or
disposition of all or substantially all of the assets of the Company or a
transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of the Company is disposed of, or (iii)
regarding any other form of acquisition, liquidation, dissolution or
winding up of the Company.
(ab) Except as set forth in the Disclosure Documents or herein, no
executive officer or director of the Company or member of his or her
immediate family is indebted to the Company, nor is the Company indebted
(or committed to make loans or extend or guarantee credit) to any of them.
To the best of the Company's knowledge, except as set forth in the
Disclosure Documents, none of such persons has any direct or indirect
ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any
firm or corporation that competes with the Company, except that executive
officers or directors of the Company and members of their immediate
families may own stock in publicly traded companies that may compete with
the Company. Except as set forth in the Disclosure Documents, no member of
the immediate family of any executive officer or director of the Company is
directly or indirectly interested in any material contract with the
Company.
3. APPOINTMENT OF PLACEMENT AGENT AND REPRESENTATIONS, WARRANTIES AND
AGREEMENTS THEREOF.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
the Company appoints you as its exclusive agent during the Offering Period
to effect sales of the Units for the account of the Company upon the other
terms and conditions set forth herein, in the Subscription Agreements and
in the Memorandum, and you agree to use your best efforts as such agent to
produce Purchasers for the Units during the Offering Period upon the terms
and conditions set forth herein.
(b) You may in your discretion use the services of other brokers or
dealers ("Participating Dealers") in connection with the offering and sale
of the Units, and you may allow and pay to such Participating Dealers (but
only as consideration for services rendered in placement of the Units), out
of the placement fee payable to you by the Company on account of the sale
of the Units, an amount as determined by you in your discretion; provided
that all such Participating Dealers are members in good standing of the
National Association of Securities Dealers, Inc. ("NASD") who are actually
engaged in the investment banking or securities business and who have
executed and delivered to you the written agreement prescribed by Section
24(c) of Article III of the NASD's Rules of Fair Practice.
(c) As compensation for your services hereunder the Company will pay
you a placement fee equal to 8% of the funds resulting from the sale of
Units pursuant to the Maximum Offering contemplated herein, provided that
the amount of the Minimum Offering has been sold. In addition, the Company
agrees to pay you an amount equal to 3% of the funds resulting from the
sale of the Units pursuant to the Maximum Offering as a non-accountable
expense allowance.
(d) Your appointment by the Company as exclusive Placement Agent
shall commence upon the date of the execution of this Agreement, and shall
continue until and through the last day of the Offering Period, unless (i)
the Units shall be completely sold prior to that date, (ii) the offering
has been terminated by agreement between you and us, (iii) the terms of the
Bank Escrow Agreement (hereinbelow defined), to which you are a party, are
not met and the offering is terminated as a result thereof, or (iv) this
Agreement shall be terminated at a prior date as provided herein.
(e) You hereby acknowledge that you are a party to the Bank Escrow
Agreement (herein "Bank Escrow Agreement") of even date herewith between
yourselves, First Arizona Savings & Loan Association (the "Escrow Agent"),
and the Company, the terms of which are incorporated herein by reference.
(f) At your option, the Company will sell to you the Placement
Agent's Warrants to purchase the number of shares specified above in
consideration of $100 aggregate purchase price for all of the Placement
Agent's Warrants. The Placement Agent's Warrants are exercisable at a
price of $30,000 per Unit for a four (4) year period commencing one year
after the Final Closing Date. The holders of the Placement Agent's
Warrants will have the right to one demand registration and an unlimited
number of piggyback registrations. On the Final Closing Date, the Company
will deliver to you that number of Placement Agent's Warrants as shall be
due to you.
(g) It is expressly understood and agreed that you are an independent
contractor and that neither you nor your agents or employees are in any
manner employees of the Company and that the Company shall have no
responsibility for unemployment insurance, social security, or income tax
withholding in connection with your employees.
(h) You represent that you are a member of the NASD and a broker-
dealer registered as such under the Securities Exchange Act of 1934 (the
"1934 Act") and under the securities laws of the states in which the Units
will be offered or sold by you and in which states registration as a
broker-dealer is required and/or necessary.
(i) You will offer the Units in accordance with the applicable
provisions of the 1933 Act in a manner so as to preserve the exemption from
registration as provided in Section 3(b) and/or 4(2) of the Act and
Regulation D thereunder and will not knowingly take, or omit to take, any
action in connection with offers and of sales of Units which would cause
the offering not to be made in compliance with Regulation D; you will not
offer the Units for sale in any jurisdiction unless and until the Company
or your counsel shall have advised you that the Units are exempt from
registration under the state securities laws applicable thereto; and you
have not and will not knowingly take any action which would require
registration of the Units under any federal or state securities laws, or
any other laws, orders, rules or regulations without the consent of the
Company.
(j) The offering of the Units will be limited to persons who have
completed Purchaser Questionnaires (as defined in the Disclosure
Documents).
(k) You shall make no representations concerning the offering, except
as set forth in the Disclosure Documents, and except for such supplemental
information relating to the Company as shall be made available by the
Company to offerees and their representatives as contemplated by Regulation
D.
(l) You will not use any offering or selling materials other than
materials furnished or approved by the Company.
(m) You will not offer the Units by means of any form of general
solicitation or general advertising.
(n) In placing, offering, offering to sell, offering for sale,
negotiating for sale or selling Units, you will, subject to the Company's
and its agents' compliance with the same, utilize your best efforts to
comply with the applicable provisions of the 1933 Act.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with you
that:
(a) The Company will use its best efforts to cause the Blue Sky
Applications in the Designated States and any subsequent amendments thereto
to become effective (which term as used in this Agreement shall include
taking all steps necessary to obtain an exemption from registration of the
Units in a jurisdiction) as promptly as possible; provided, however, that
in no event shall (i) the Company be obligated to qualify to do business in
any state or to take any action which would subject it to general or
unlimited service of process in any state where it is not now so subject,
(ii) any stockholder be required to escrow their shares of capital stock of
the Company (except for the lock-up agreement referred to in paragraph 5(c)
of this Agreement), or (iii) the Company or any stockholder be required to
comply with any other requirements which they reasonably deem to be duly
burdensome, except for the lock-up agreement as provided for in paragraph
5(d) of this Agreement; it will notify you promptly of any request by the
SEC or the corporate or securities departments, divisions or agencies
("Securities Departments") of any of the Designated States for the
amendment or supplementing of the Disclosure Documents or the Blue Sky
Applications; it will, at its own expense, during the term of this
Agreement and thereafter promptly notify you of the filing of such
amendments or supplements to the Disclosure Documents or the Blue Sky
Applications, as may be necessary to correct any statements or omissions if
any event shall have occurred as a result of which the Disclosure Documents
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading; and
it will file or distribute no amendment to the Disclosure Documents or the
Blue Sky Applications to which you shall reasonably object after having
been furnished a copy a reasonable time prior to the filing.
(b) Promptly upon becoming aware thereof, the Company will advise you
and, if requested, confirm such advice in writing (i) of the effectiveness
of the Blue Sky Applications; (ii) of the issuance of any orders affecting
the effectiveness of the Blue Sky Applications or the use of the Disclosure
Documents, or of the initiation or threatening of any proceeding for that
purpose; and (iii) of any orders or other communications of any public
authority addressed to the Company suspending or threatening to suspend
qualification of the Units for sale or any exemption therefrom and the
Company will use all reasonable efforts to prevent the issuance of any such
order or to obtain lifting of such an order if such an order should be
issued.
(c) The Company will file and continue to file and supply such
financial statements, reports and other information at such times as are or
may be reasonably required by the SEC and the Securities Departments of the
Designated States for so long as required for the placement of the Units or
for the compliance with any conditions or requirements relating to the
effectiveness of the Blue Sky Applications.
(d) The Company will furnish to you, as soon as available, copies of
(i) the Disclosure Documents, and (ii) for such period as delivery of the
Disclosure Documents may be required by the 1933 Act or the applicable law
of the Designated States, any amended Disclosure Documents or supplements
thereto required to be prepared pursuant to this Agreement, all in such
reasonable quantities as you may from time to time request.
(e) The Company agrees to pay all expenses in connection with (i) the
preparation, printing, duplicating and filing of the Disclosure Documents
and Blue Sky Applications, including the costs of all copies thereof and of
any amendments or supplements thereto supplied to you in quantities as
hereinabove stated, (ii) the preparation and delivery of the instruments
evidencing the Securities, (iii) the qualification or exemption therefrom
of the Securities under the 1933 Act and applicable state laws, (iv) the
legal and other expenses of the Company, and (v) all fees and expenses
regarding the Bank Escrow Agreement and the fees of the escrow agent.
(f) The Company agrees that during the one year period commencing on
the Final Closing Date of this offering it will not, without your prior
written consent, sell, contract to sell, issue for other purposes or
otherwise dispose of any securities of the Company other than (i) shares of
Common Stock issuable on the exercise of any options, warrants or other
rights which are disclosed in the Disclosure Documents and (ii) shares of
Common Stock issuable upon the exercise of options granted to employees,
officers or directors after the date of this Agreement if such options are
reasonable and are granted in good faith and at prices which are not less
than 85% of the fair market value of the Common Stock on the date of grant
of such options.
(g) The Company will apply the proceeds from the sale of Units by the
Company for the purposes set forth under the caption "Use of Proceeds" in
the Memorandum.
(h) The Company will make available the transfer record of the
Company in respect of the Securities for inspection by you during the time
they remain outstanding.
(i) The Company will file Form D (as defined in Regulation D) and all
required amendments thereto in a timely manner with the SEC and the
Securities Departments of the Designated States and deliver copies thereof
to you, together with copies of all forms and other documents or materials
filed either before or after the Closing Date to comply with State
securities laws.
(j) The Company will promptly deliver to you, without charge (i) two
copies of the registration statement covering a public distribution of any
of the Securities, as originally filed, and of each amendment thereto, and
of each post-effective amendment thereto filed at any time when a
prospectus relating to the securities to be sold thereunder is required to
be delivered under the 1933 Act, and all financial statements, schedules
and exhibits filed therewith (including those incorporated by reference to
the extent not previously furnished to you), and (ii) such number of
conformed copies of the registration statement, as originally filed, and of
each amendment and post-effective amendment thereto (in each such case
excluding exhibits), as you may reasonably require. The Company will
promptly deliver, without charge, to you or such others whose names and
addresses are designated by you as soon as possible after the effective
date of the registration statement and thereafter from time to time during
the period when delivery of a prospectus relating to the securities to be
sold thereunder is required by the 1933 Act, as many printed copies as you
may reasonably request of the final prospectus and any amendment or
supplement thereto.
5. CONDITIONS TO YOUR OBLIGATIONS. Your obligations to use your best
efforts to sell the Units as provided herein shall be subject to the
accuracy, at the date hereof and at all times thereafter up to and
including the Closing Date of any closing hereunder, of the representations
and warranties of the Company contained herein, the performance by the
Company of its obligations hereunder, and to the following additional
conditions except to the extent you may specifically waive, in writing, any
condition otherwise required:
(a) The Blue Sky Applications shall have become effective in all
Designated States necessary to successfully commence sale of the Units not
later than the date required to make lawful the offer and sale of the Units
in such states; and no order suspending the effectiveness thereof or the
use of the Disclosure Documents shall have been issued and no proceeding
for that purpose shall have been initiated or, to the knowledge of the
Company or you, threatened by the Securities Departments of any Designated
State, the SEC or any other governmental agency or commission, and any
request of the Securities Departments of any Designated State or the SEC
for additional information (to be included in the Blue Sky Applications or
the Disclosure Documents or otherwise) shall have been complied with to the
satisfaction of your counsel.
(b) The Disclosure Documents, and any amendment or supplement
thereto, shall not contain any untrue statement of fact which, in the
opinion of your counsel, is material, or omits to state a fact which, in
the opinion of your counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) Each of the directors and each stockholder owning more than 5% of
the Company's outstanding Common Stock shall have duly executed and
delivered to you a lock-up agreement in the form shown by Exhibit 5(d),
attached hereto.
(d) As of the Closing Date of each Closing of this offering, you
shall have received opinions, addressed to you and to the several
Purchasers, from Messrs. Bartel, Eng, Miller & Torngren, to the effect
that:
(i) The Company has been duly organized in accordance with the
Delaware Corporation Law and exists in good standing under the laws of the
State of Delaware with full corporate power and authority to conduct its
business as described in the Disclosure Documents, and is duly qualified
and in good standing in the State of California and in each additional
jurisdiction in which such qualification is required except where the
failure to so qualify, both individually and in the aggregate, does not
have a material adverse effect on the condition (financial or otherwise),
or business of the Company or on its properties or assets;
(ii) All consents, approvals, authorizations or orders of, and
filings, registrations, and qualifications with any court or governmental
body in the United States required for the consummation of the transactions
contemplated by this Agreement, other than with respect to state securities
laws have been made or obtained;
(iii) This Agreement has been duly authorized by all necessary
corporate action of the Company and, when executed and delivered, will be a
legal, valid and binding obligation of the Company, enforceable in
accordance with its terms except to the extent that the enforceability
hereof may be limited by bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity
and except that the indemnification provisions of this Agreement may be
held to be violative of public policy under either federal or state laws in
the context of the offer or sale of securities;
(iv) The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions herein contemplated
will not result in a breach or violation of any of the terms and provisions
of the Organizational Documents of the Company, and will not constitute a
material default under any indenture, mortgage, deed of trust or other
material agreement or instrument known to such counsel to which the Company
is a party or by which it is bound, and will not violate or contravene (A)
any governmental statute, rule or regulation applicable to the Company,
other than with respect to state securities laws, or (B) any order, writ,
judgment, injunction, decree, determination or award which has been entered
against the Company and of which such counsel is aware, the violation or
contravention of which would materially and adversely affect the Company,
its assets, financial condition or operations;
(v) The Warrants and Placement Agent's Warrants, when issued and
paid for, will be duly authorized and existing obligations of the Company,
enforceable in accordance with their respective terms except to the extent
that the enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally or by
general principles of equity;
(vi) The shares of Common Stock included in the Units, the
Warrant Shares, the Common Stock included in the Placement Agent's Warrant
Units and the Warrant Shares underlying the Warrants included in the
Placement Agent's Warrant Units will, when duly issued and paid for,
constitute duly authorized, legally and validly issued shares of the common
stock, $.001 par value, of the Company, fully paid and non-assessable;
(vii) The authorized, issued and outstanding capital stock of
the Company conforms to the descriptions thereof in the Disclosure
Documents. To the knowledge of such counsel after having conducted such
inquiry as they have deemed appropriate, there are no outstanding options,
warrants, or other rights calling for the issuance of, and no commitments,
plans or arrangements to issue or register, any shares of capital stock of
the Company or any securities convertible into or exchangeable for capital
stock of the Company other than as disclosed in the Disclosure Documents;
(viii) The certificates and instruments used to evidence the
Common Stock and Warrants are each in due and proper form as required by
the laws of the State of Delaware and the Organizational Documents of the
Company;
(ix) Neither the holders of the outstanding shares of Common
Stock nor of any other securities or rights of the Company are entitled to
pre-emptive or other rights or agreements for the purchase or acquisition
from the Company of any shares of its Common Stock or to subscribe for the
Units. Except as set forth in the Disclosure Documents the offering of the
Units as contemplated by this Agreement and the Memorandum does not give
rise to any rights relating to the registration of any securities of the
Company, and the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
Except as set forth in the Disclosure Documents, the Company is not a party
or subject to any agreement or understanding, and, to the best of such
counsel's knowledge, there is no agreement or understanding between any
persons and/or entities, which affects or relates to the voting or giving
of written consents with respect to any security or by a director of the
Company.
(x) To the knowledge of such counsel after having conducted such
inquiry as they have deemed appropriate and except as disclosed in the
Disclosure Documents, there is no pending or threatened action, suit or
proceeding before or by any court or governmental agency or body or
arbitration panel, to which the Company is a party, or to which any
property of the Company is subject, which is not referred to in the
Disclosure Documents, which in the opinion of such counsel, might result in
a material adverse change in the business, financial condition or results
of operations or materially affect the properties or assets of the Company
taken as a whole; and
(xi) Nothing has come to the attention of such counsel during
the course of any of their work in connection with this Agreement which has
caused them to believe that the Company has breached any of their
representations, warranties or agreements herein, or has made an untrue
statement of material fact in any of the Disclosure Documents or has
omitted to state a material fact necessary in order to make the statements
made in the Disclosure Documents, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements included in the
Disclosure Documents).
(xii) To the knowledge of such counsel, there are no material
agreements, contracts or instruments known to such counsel to which the
Company is a party or by which it is bound that are not accurately
described in the Memorandum.
In rendering the foregoing opinion, such counsel may rely as to
matters of fact upon certificates of the Company's officers and such
opinion shall be made subject to the provisions of the Legal Opinion Accord
of the ABA Section of Business Law (1991).
(e) You shall have received a certificate, dated and delivered the
Closing Date, addressed to you and the several Purchasers, from the
President and the Chief Financial Officer of the Company to the effect that
they have carefully examined the Disclosure Documents and that they have
made a careful examination as to the facts hereinafter referred to and to
the best of their knowledge and belief as to all relevant factual matters
and their understanding as to certain legal matters based upon their
discussions of such legal matters with Company counsel and other legal
counsel:
(i) The Company has complied with all the agreements and
satisfied all of the conditions on its part to be performed or satisfied
pursuant to this Agreement at or prior to the Closing Date;
(ii) No order suspending the effectiveness of the Blue Sky
Applications has been issued or threatened of which you have not been
previously notified pursuant to Section 4(b) hereof;
(iii) The Disclosure Documents and any amendments or supplements
thereto do 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 not misleading, and since the date of the Memorandum
there has occurred no event required to be set forth in an amended or
supplemented Disclosure Documents which has not been so set forth;
(iv) Subsequent to the dates as of which information is given in
the Disclosure Documents, the Company has not incurred any liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business and there has not been
any change in the capital structure or debt of the Company or any material
adverse change in the financial condition, net worth or results of
operations of the Company, except as disclosed or contemplated in the
Disclosure Documents; and
(v) Each of the representations and warranties of the Company in
this Agreement are true and correct as of such Closing Date.
(f) The Placement Agent shall be satisfied with the current status of
the Company's patents, and the Placement Agent shall have received an
opinion, in a form satisfactory to it, from the Company's patent counsel
stating, to the best knowledge of such counsel, that the information in the
Disclosure Documents pertaining to the Company's patents is true and
correct.
(g) You shall have received from the Company or its counsel, all
information required to enable you to make such investigation of the
Company and its business prospects as you desire, including without
limitation, all of the Company's information or information, notes,
memoranda and correspondence with the Food and Drug Administration, and the
Company shall have made available to you such persons as you deem
reasonably necessary or appropriate in order to verify or substantiate any
information regarding the Company except such persons with whom the Company
has fragile business relationships or is otherwise restricted by
proprietary trade secret or confidentiality agreements.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory to you
and your counsel.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligation of the Company
to issue and deliver the Securities shall be subject to the accuracy, at
the date hereof and at all times thereafter up to and including the Closing
Date, of your representations and warranties contained herein, the
performance by you of your obligations hereunder, and to the receipt by the
Company on the Closing Date of a certificate from one of your officers that
your representations and warranties in this Agreement are true and correct,
and you have complied with all the agreements and satisfied all of the
conditions on your part to be performed or satisfied at or prior to each
Closing Date.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless you, each of
your officers, directors, employees, agents, registered representatives and
attorneys and each person, if any, who controls you within the meaning of
the 1933 Act, the 1934 Act or applicable state securities laws
(collectively referred to as "indemnified persons"), against losses,
claims, damages or liabilities, joint or several, to which you or such
indemnified persons may become subject under the 1933 Act, the 1934 Act,
applicable state securities law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Blue Sky Applications or the Disclosure
Documents, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statement
therein not misleading or out of any failure of the Company to have
obtained or maintained an exemption from registration of the Securities
under the securities laws of any Designated State; and agrees to reimburse
you and each indemnified person for any legal or other expenses reasonably
incurred by you or such indemnified person in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
however, that the indemnity agreement contained in this paragraph (a) shall
not inure to the benefit of you or any indemnified person with respect to
any loss, claim, damage or liability asserted by a purchaser of any Units
if a copy of the Disclosure Documents was not given to such purchaser at or
prior to the time required under the 1933 Act and prior to the signing of
the Subscription Agreement by such purchaser. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
officers, directors, employees, agents and attorneys and each person, if
any, who controls the Company within the meaning of the Act, or applicable
state securities laws (collectively referred to as "indemnified persons"),
against any losses, claims, damages or liabilities, joint or several, to
which the Company, or such indemnified persons may become subject under the
1933 Act, the 1934 Act, applicable state securities law, or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon a failure to furnish a copy
of the Disclosure Documents to any offeree or purchaser of Units as
required by the Act or applicable state securities law, or the offer or
sale of the Units other than upon the terms and conditions set forth herein
or in the Disclosure Documents, or the sale of the Units to an investor who
was not suitable, provided that any oral or written statement made by an
investor may be relied upon by you in determining whether an investor is
suitable or arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Blue Sky Applications or
the Disclosure Documents or any amendment or supplement thereto, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Blue Sky Applications or the
Disclosure Documents, or such amendment or such supplement, in reliance
upon and in conformity with information furnished to the Company in writing
by you or on your behalf specifically for use in the preparation thereof;
and will reimburse any legal or other expense reasonably incurred by the
Company or any such indemnified person in connection with investigation or
defending any such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which you may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
paragraph 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this paragraph 7, notify the indemnifying party of
the commencement thereof and the failure to notify the indemnifying party
will relieve it from any liability under this paragraph 7; but omission to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this paragraph 7.
Upon the receipt of such notice, the indemnifying party shall assume the
defense thereof, including the employment of counsel and payment of
expenses. The indemnifying party shall not be liable for any settlement of
any such action effected without its written consent.
(d) In the event you use the services of Participating Dealers as
provided in paragraph 3(b), each such Participating Dealer and its
officers, directors, employees, agents attorneys and controlling persons
shall be entitled to indemnification under this paragraph 7 to the same
extent as you and your indemnified persons.
(e) If recovery is not available under the foregoing indemnification
provisions of this Section for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to which the respective parties are entitled,
there shall be considered the relative benefits received by each party from
the offering of the Units (taking into account the relationship between the
net proceeds of the offering of the Units to the Company and the placement
fee received by the indemnified party), the parties' relative knowledge and
access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and you agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation (even if you and the Participating Dealers were treated as one
entity for such purpose) or by any other method of allocation that does not
reflect the equitable considerations referred to in this paragraph 7(e).
Notwithstanding the equitable considerations referred to in this paragraph
7(e), neither you (or any Participating Dealer) nor any person controlling
you shall be obligated to make contribution hereunder that in the aggregate
exceeds the aggregate purchase price of the Units with respect to which you
(or any Participating Dealer) received placement fees under this Agreement,
less the aggregate amount of any damages that you (or any Participating
Dealer) and your controlling persons, if any, have otherwise been required
to pay in respect of the same claim or any substantially similar claim.
Each of the obligations of yourselves and the Participating Dealers to
contribute are several and not joint and bear the same proportion as the
amount of sales commission received by each of you bears to total sales
commissions received by all of you.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company and yourselves
herein or in certificates delivered pursuant hereto, and the indemnity
agreements of the Company and you contained in paragraph 7 hereof, shall
remain operative and in full force and effect regardless of any
investigation or statement as to the results thereof made by or on behalf
of yourselves or any controlling person, or by or on behalf of the Company
or any of its officers, directors, agents, employees, attorneys or any
controlling persons, as the case may be, and shall survive the termination
of this Agreement.
9. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective upon its execution by you.
(b) You shall have the right to terminate this Agreement at any time
prior to the termination of the offering contemplated herein if any
domestic or international event or act or occurrence has in your reasonable
judgment materially disrupted or will in the immediate future materially
disrupt the nation's securities markets, or if trading on the New York
Stock Exchange shall have been suspended or if the United States shall have
become involved in a war or like military activity, or if a banking
moratorium has been declared by the State of Arizona or the State of New
York or any states contiguous thereto or by any federal authority or
official, or if the Company shall have sustained material loss by fire,
flood, accident, hurricane, earthquake or other calamity that, regardless
of whether said loss shall have been insured, will, in your reasonable
judgment, make it inadvisable to proceed with the offering or delivery of
the Units.
If you elect to terminate this Agreement as provided in this
paragraph, the Company shall be notified promptly by you by telephone or
telegram, confirmed by letter.
(c) This agreement shall automatically terminate if you fail to
continue to be registered and licensed as a broker-dealer with the National
Association of Securities Dealers, Inc. or to be qualified or registered as
a broker-dealer in any state in which you have offered the Company's
securities.
(d) This Agreement shall terminate upon thirty (30) days' prior
written notice to the other party.
10. NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of delivery if delivered personally or sent by
overnight courier, with acknowledgment of receipt, to the party to whom
notice is to be given, or on the fifth day after mailing if mailed to the
party to whom notice is to be given, by registered or certified mail,
return receipt requested, postage prepaid, and properly addressed as
follows: if to Paradise Valley Securities, Inc., at the address of its
principal office as shown in this Agreement; and if to the Company, at its
principal office. Any party may change its address for purposes of this
paragraph by giving the other party written notice of the new address in
the manner set forth above.
11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you, the Company and your and its respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person or corporation, other than the parties hereto
and their respective successors and assigns and the controlling persons,
officers, directors, employees, agents and attorneys of the parties, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of the parties hereto and their respective
successors and assigns and said controlling persons, officers, directors,
employees, agents and attorneys, and for the benefit of no other person or
corporation. No purchaser of any of the Units shall be construed as a
successor or assign by reason of such purchase.
12. INFORMATION FURNISHED. The Company hereby confirms that the
statements with respect to the offering of the Units under the caption
"Terms of the Offering" in the Memorandum and on the cover page thereof are
the only portions of the Disclosure Documents furnished to the Company by
you for use in the Disclosure Documents, and you hereby confirm that such
statements are true and do not omit to state a material fact required to be
stated therein or necessary to make the statements made not misleading.
13. ATTORNEYS' FEES. If any action is necessary to enforce or interpret
the terms of this agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and costs, in addition to any other relief to
which he is or may be entitled. This provision shall be construed as
applicable to the entire agreement.
14. TIME OF ESSENCE. Time shall be of the essence of this Agreement.
15. CONSTRUCTION. This Agreement shall be construed in accordance with
the internal laws of the State of Arizona.
16. EXECUTION. This Agreement may be executed in any number of
counterparts each of which taken together shall constitute one and the same
instrument.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof. This
Agreement can only be modified, including any extension of the Offering
Period, by a written agreement duly signed by persons authorized to sign
agreements on behalf of the respective parties.
A:\UNITPLAC.AGR
If the foregoing is in accordance with your understanding, please sign
below and return to us a counterpart hereof, and upon your acceptance
hereof, this letter and the acceptance hereof shall constitute a binding
agreement between you and the Company.
Very truly yours,
THERMOGENESIS CORP.
by /S/ PHILIP H. COELHO
Philip H. Coelho, President
Accepted and agreed to as of the
date first above written by:
PARADISE VALLEY SECURITIES, INC.
by /S/ MICHAEL E. JACOBSON
Michael E. Jacobson,
Senior Vice-President
LIST OF DESIGNATED STATES AND/OR JURISDICTIONS
ARIZONA
CALIFORNIA
COLORADO
FLORIDA
GEORGIA
ILLINOIS
MINNESOTA
NEVADA
NEW JERSEY
NEW YORK
SCHEDULE 2(B)
LOCK UP AGREEMENT
_________________, 1995
Paradise Valley Securities, Inc.
11811 North Tatum Blvd., Suite 4040
Phoenix, Arizona 85028
Re: THERMOGENESIS CORP.
Gentlemen:
I am a beneficial owner of securities of THERMOGENESIS CORP., a
Delaware corporation (the "Company"). I understand that you propose to
make a private placement of securities of the Company. I acknowledge that
such action by you will be of material benefit to the Company and the
undersigned as a beneficial owner of the Company's securities.
In consideration of the foregoing, and in order to induce you to act
as set forth above, I confirm my agreement that I will not, without your
prior approval, offer for sale, sell, pledge, hypothecate or otherwise
dispose of, directly or indirectly, any of the shares of the Company's
common stock which I may own legally or beneficially ("Shares"), in any
manner whatsoever whether pursuant to Rule 144 of the Regulations or
otherwise, for a period of one hundred eighty (180) days from the
effectiveness of the registration statement filed pursuant to Section 7.2
of the Unit Purchase Agreements entered into between the Company and the
respective purchasers of Units of the aforementioned private placement.
I further understand that the Company will execute an placement
agreement with you concerning the proposed private placement and that such
agreement will provide that the Company will take such steps as may be
necessary to enforce the foregoing provisions and restrict the sale or
transfer of the Shares as provided herein including, but not limited to,
notification to the Company's transfer agent regarding any such
restrictions; and I hereby agree to and authorize any such actions and
acknowledge that the Company and you are relying upon this agreement in
taking any such actions.
Very truly yours,
___________________________________
(Shareholder)
EXHIBIT 5(D)
A:\UNITPLAC.AGR