Exhibit 10.1
PURCHASE AND LINE OF CREDIT AGREEMENT
PURCHASE AGREEMENT (this "Agreement") is made as of July 31, 2000 between
MILESTONE SCIENTIFIC INC., a Delaware corporation, with its principal offices at
220 South Orange Avenue, Livingston, New Jersey 07039 (the "Company"), and K.
Tucker Andersen having an address c/o Cumberland Associates LLC, 1114 Avenue of
the Americas, New York, New York 10036 (the "Purchaser").
WHEREAS, the Company desires to sell to Purchaser and Purchaser desires to
purchase from the Company (a) $300,000 face amount of its 8% Secured Notes, (the
"Secured Notes"), (b) $200,000 face amount of its 8% Convertible Secured Notes
(the "Convertible Notes" and the Secured Notes are hereinafter collectively
called the "Notes") and (c) warrants to purchase 70,000 shares of Common Stock
(the "Warrants"), substantially in the form annexed hereto as Exhibits A, B, and
C respectively; and
WHEREAS, the purchaser desires to provide the Company with a $500,000 line
of credit.
NOW, THEREFORE, in consideration of the premises and the covenants herein
contained, the parties hereto agree as follows:
1. Purchase and Sale of Notes and Warrants.
(a) Subject to the terms and conditions hereinafter set forth,
Purchaser hereby subscribes for and agrees to purchase from the Company the
Notes and the Warrants.
(b) The purchase price for the Notes and Warrants shall be $500,000
(the "Purchase Price"). The Purchase Price is payable by check made payable to
the Company or by wire transfer of funds, contemporaneously with the execution
and delivery of this Agreement. The Notes and Warrants being purchased by
Purchaser will be delivered by the Company on the Closing Date (as defined
below).
2. Terms of the Notes and Warrants. Except as otherwise set forth in this
Agreement, the terms of the Secured Notes, the Convertible Notes and the
Warrants shall be as set forth in the Secured Notes, the Convertible Notes and
the Warrants, respectively.
3. Closing. The closing of the transactions contemplated hereby
("Closing") shall take place on a date (the "Closing Date") within three (3)
business days following the satisfaction of the conditions set forth herein and
at such times as shall be determined by the Company at the offices of Morse,
Zelnick, Rose & Lander, LLP, 450 Park Avenue, New York, New York 10022.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to Purchaser, which representations and warranties shall
be true and correct as of the date hereof and as of the Closing Date, as
follows:
4.1 Organization; Standing and Power. The Company and its
subsidiaries (a) are corporations duly organized, existing and in good
standing under the laws of the state of their incorporation, (b) have all
requisite corporate power and authority to own its properties and to carry
on their businesses as now conducted and as proposed hereafter to be
conducted, (c) are duly qualified to do business as foreign corporations
in each and every jurisdiction where such qualification is necessary
except where the failure to so qualify would not have a material adverse
effect on the financial condition, business, operations, assets or
prospects of the Company and its subsidiaries as a whole and (d) the
Company has all requisite corporate power and authority to execute and
deliver, and perform all of its obligations under this Agreement.
4.2 Capitalization. The total authorized capital stock of the
Company consists of 25,000,000 shares of Common Stock and no shares of
preferred stock. As of June 30, 2000, the Company has outstanding
10,652,898 shares of Common Stock. In addition, there are 1,000,000 shares
of Common Stock reserved for issuance under the Company's 1997 Stock
Option Plan of which 850,000 shares are issuable pursuant to the exercise
of outstanding stock options ranging in exercise price from $1.00 to
$23.00 per share. The Company also has outstanding other compensatory
options for 136,000 shares with exercise prices ranging from $5.125 to
$23.00 per share and warrants and options in connection with financing
transactions for 226,190 shares at exercise prices ranging from $1.75 to
$7.00 per share of Common Stock.
4.3 Authorization. The execution, delivery and performance by the
Company of its obligations under this Agreement has been duly authorized
by all requisite corporate action and will not, either prior to or as a
result of the consummation of the transactions contemplated by this
Agreement: (a) violate any law, any order of any court or other agency of
government, any provision of the Certificate of Incorporation or Bylaws of
the Company or any contract, indenture, agreement or other instrument to
which the Company is a party, or by which the Company or any of its assets
or properties are bound, or (b) be in conflict with, result in a breach
of, or constitute (after the giving of notice or lapse of time or both) a
default under, or result in the creation or imposition of any lien of any
nature whatsoever upon any of the property or assets of any Company
pursuant to, or result in the acceleration of, any such contract,
indenture, agreement or other instrument. The Company is not required to
obtain any government approval, consent or authorization from, or to file
any declaration or statement with, any governmental instrumentality or
agency in connection with or as a condition to the execution, delivery or
performance of any of this Agreement other than the filings which have
heretofore been made. This Agreement is valid, binding and enforceable
against the Company in accordance with its terms.
4.4 Non-contravention. To the best of its knowledge, the Company is
not in violation or breach of or in default with respect to, complying
with any material provision of any contract, agreement, instrument, lease,
license, arrangement or understanding to which it is a party, and each
such contract, agreement, instrument, lease, license,
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arrangement and understanding is in full force and effect and is the
legal, valid and binding obligation of the Company enforceable as to the
Company in accordance with its terms (subject to applicable bankruptcy,
insolvency and other laws affecting the enforceability of creditors'
rights generally and to general equitable principals). Neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (a) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency, or
court to which the Company is subject or (b) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Company is a party or by
which the Company is bound or to which any of the Company's assets are
subject.
4.5 Litigation. There is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or other agency
now pending or, to the knowledge of the Company, threatened in writing
against the Company, or any of its assets, which, if adversely determined,
might reasonably be expected to have a material adverse effect on the
Company's business, operations and financial condition.
4.6 SEC Filings. The information set forth in the Form 10-KSB for
the year ended December 31, 1999 and Form 10-QSB for the three month
period ended March 31, 2000 (collectively, the "SEC Filings") as filed by
the Company with the Securities and Exchange Commission (the "SEC") is
true, correct and complete in all material respects as of the respective
date of each such filing and does not omit to state any material fact
necessary in order to make the statements therein not misleading. The
financial statements of the Company as set forth in the SEC Filings have
been prepared in accordance with GAAP applied on a consistent basis
throughout the periods covered thereby and fairly present in all material
respects the financial condition and results of operations of the Company
as of their respective dates. Since September 30, 1999, there has not been
any material adverse change in the business, financial condition or
results of operations of the Company except that the Company has continued
to operate at a loss. Except for the liabilities set forth in the
financial statements included in the SEC Filings and liabilities which
have arisen after March 31, 2000 in the ordinary course of business, the
Company has no material liability.
4.7 Due Authorization. The issuance of the Notes has been duly
authorized by all necessary corporate action and when issued will be the
legal and binding obligations of the Company enforceable in accordance
with their terms. The shares of Common Stock issuable upon exercise of the
Warrants or in respect of interest payable on the Notes have been duly
authorized and reserved for issuance and, when issued in accordance with
the terms of the Warrants or issued in respect of interest payable on the
Notes, as applicable, will be fully paid and non-assessable, free and
clear of any restrictions on transfer (other than any restrictions under
the Securities Act of 1933, as amended (the "Securities Act") and state
securities laws), taxes, security interests,
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options, warrants, purchase rights, contracts, commitments, equities,
claims, and demands.
4.8 Securities Law Exemption. Assuming the accuracy of Purchaser's
representations and warranties set forth herein, the sale of the Notes and
Warrants pursuant to this Agreement has been made in accordance with the
provisions and requirements of Regulation D ("Regulation D") or ss.4(6)
under the Securities Act and any applicable state law.
4.9 Use of Proceeds. The proceeds from the sale of the Notes and
Warrants will be used for working capital.
4.10 Compliance with Laws. The Company is in compliance in all
material respects with all occupational safety, health, wage and hour,
employment discrimination, environmental, flammability, labeling, usury
and other applicable laws which are material to its businesses, and the
Company is not aware of any state of facts, events, conditions or
occurrences which may now or hereafter constitute or result in a violation
of any of such applicable laws, or which may give rise to the assertion of
any such violation, the effect of which could have a material adverse
effect on the Company's business, operations and financial condition.
4.11 Licenses and Permits. The Company has obtained all federal,
state and local licenses and permits required to be maintained in
connection with and material to its operations, and all such licenses and
permits obtained are valid and in full force and effect.
4.12 Existing Registration Rights. Except for the Registration
Rights Agreement referred to in Section 7 hereof and (i) the registration
rights given to the holders of the Company's 3% Senior Convertible Notes,
(ii) the registration rights given to the holders of the Company's 10%
Senior Secured Notes and (iii) the registration rights granted to Dr. and
Mr. Spinello for 88,000 shares the Company is not a party to any agreement
under which it is obligated to register any of its securities under the
Securities Act.
4.13 Patents, Trademarks, Copyrights, Etc. The Company owns or
validly licenses all patents, patent rights, patent applications,
licenses, shop rights, trademarks, trademark applications, tradenames,
copyrights and other proprietary information (collectively "Rights") used
in the conduct of its business as currently being conducted. To the actual
knowledge of the Company, the conduct of its business as currently being
conducted does not conflict with valid rights of others in any way, nor
has any material use been made of the Rights, except by the Company or by
other entities duly licensed to use the same.
4.14 No Other Representations. The Company shall not be deemed to
have made any representations, warranties, covenants, agreements or
indemnifications
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pertaining to the subject matter of this Agreement, whether express or
implied, except to the extent that such representations, warranties,
covenants, agreements or indemnifications are made in this Agreement or
the Schedules hereto or in any certificate or other agreement, document or
instrument delivered pursuant to the provisions of this Agreement.
5. Representations and Warranties of the Purchasers. The Purchaser hereby
represents and warrants to the Company, which representations and warranties
shall be true and correct as of the date hereof and the Closing Date, as
follows:
5.1 Authorization of Agreement. The execution, delivery and
performance of this Agreement has been duly authorized by all necessary
action on the part of Purchaser, does not violate any laws or regulations
applicable to Purchaser and is the valid binding and enforceable
obligation of Purchaser in accordance with its terms.
5.2 Non-contravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (a) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which Purchaser is
subject or (b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to
which Purchaser is a party or by which Purchaser is bound or to which any
of Purchaser's assets are subject.
5.3 Accredited Investor. Purchaser is an "accredited investor" as
that term is defined in Rule 501(a) of the Securities Act, and the rules
promulgated thereunder.
5.4 Investment. Purchaser acknowledges that this offering of Notes
and Warrants has not been reviewed by the United States Securities and
Exchange Commission ("SEC") and that the sale of the Notes and Warrants
pursuant hereto is intended to be a nonpublic offering pursuant to
Sections 4(2), 4(6) or 3(b) of the Securities Act. Purchaser represents
that the Notes or Warrants are being purchased for his own account, for
investment and not for distribution or resale to others. Purchaser agrees
that Purchaser will not sell or otherwise transfer the Notes, Warrants or
the shares of the Common Stock issuable upon exercise of the Warrants
unless such securities, as the case may be, are registered under the
Securities Act or unless an exemption from such registration is available.
Purchaser understands that neither the Notes, Warrants nor the shares of
Common Stock issuable upon exercise of the Warrants have been registered
under the Securities Act and they are or will be issued pursuant to a
specific exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the
investment intent as expressed herein.
5.5 Access to Data. Purchaser has been given copies of the SEC
Filings and has had an opportunity to review same. Purchaser has had an
opportunity to discuss the
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SEC Filings and the Company's business, management and financial affairs
with the Company's management and the opportunity to review the Company's
facilities, each to Purchaser's satisfaction. Purchaser understands that
such discussions, as well as any written information issued or provided by
the Company, were intended to describe the aspects of the Company's
business and prospects which the Company believes to be material but were
not necessarily a thorough or exhaustive description thereof.
5.6 Speculative Nature of Investment. Purchaser acknowledges that
the purchase of the Notes and Warrants involves a high degree of risk and
that (i) an investment in the Company is highly speculative and only
investors who can afford the loss of their entire investment should
consider investing in the Company and purchasing Notes and Warrants; (ii)
Purchaser may not be able to liquidate his investment; (iii)
transferability of the Notes, Warrants and the shares of Common Stock
issuable upon exercise of the Warrants is extremely limited; and (iv)
Purchaser could sustain the loss of his entire investment.
5.7 Experience. Purchaser acknowledges that he has prior investment
experience, including investment in non-listed and non-registered
securities, or has employed the services of an investment advisor,
attorney or accountant to review all of the documents furnished or made
available by the Company and to evaluate the merits and risks of such an
investment on Purchaser's behalf.
5.8 Lack of Liquidity. Purchaser understands that there is no public
market for the Notes or Warrants.
5.9 Legends. Purchaser consents to the placement of a legend on the
Notes, Warrants, and shares of Common Stock issued on exercise of the
Warrants, provided they are not then covered by an effective Registration
Statement, all as set forth in Section 6 of this Agreement.
5.10 Address. Purchaser hereby represents that the address of
Purchaser furnished by him in this Agreement is Purchaser's principal
residence.
5.11 Registered Representative. Purchaser acknowledges that if he is
a Registered Representative of a National Association of Securities
Dealers, Inc. ("NASD") member firm, he must give such firm the notice
required by the NASD Conduct Rules, or any applicable successor rules of
the NASD receipt of which must be acknowledged by such firm on the
signature page hereof.
5.12 No Other Representations. Purchaser hereby represents that,
except as set forth herein, no representations or warranties have been
made to the Purchaser by the Company or any agent, employee or affiliate
of the Company and in entering into this transaction, Purchaser is not
relying on any information, other than that contained herein, that
contained in the SEC Filings and the results of independent investigation
by the Purchaser. The Purchaser shall not be deemed to have made any
representations,
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warranties, covenants, agreements or indemnifications pertaining to the
subject matter of this Agreement, whether express or implied, except to
the extent that such representations, warranties, covenants, agreements or
indemnifications are made in this Agreement or the Schedules hereto or in
any certificate or other agreement, document or instrument delivered
pursuant to the provisions of this Agreement.
5.13 No Broker. There is no firm, corporation, agency or other
entity or person that is entitled to a finder's fee or any type of
commission in relation to or in connection with the transactions
contemplated by this Agreement as a result of any agreement or
understanding with Purchaser or any of its directors, officers, employees
or agents.
6. Legends. The Notes and Warrants shall be endorsed with the
following legend:
THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL (I) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") SHALL
HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR (II) RECEIPT BY THE COMPANY
OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY APPLICABLE STATE
SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED IN
EXCHANGE FOR THIS NOTE.
THIS SECURITY IS SUBJECT TO THE TERMS OF A PURCHASE AGREEMENT, DATED AS OF
JULY ____, 2000, A COPY OF WHICH IS ON FILE AT THE EXECUTIVE OFFICES OF
MILESTONE SCIENTIFIC INC.
7. Registration Rights. The Company and the Purchaser will enter into a
registration rights agreement, substantially in the form annexed hereto as
Exhibit D.
7A. Line of Credit. The Purchaser hereby agrees to provide to the Company
up to an additional $500,000 principal amount of loans upon the following terms
and conditions:
(a) Upon 7 days prior written notice from the Company to the
Purchaser specifying the amount requested by the Company (which amount must be
for at least $100,000 of or any multiple thereof) the Purchaser shall loan to
the Company the amount set forth in such request (the "Draw Down Amount").
(b) Upon receipt of the Draw Down Amount and in consideration
thereof, the Company shall deliver to the Purchaser the following:
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(i) A note (a "Draw Down Note") in the form annexed hereto as
Exhibit E, which note shall (A) be dated the date of receipt by the Company of
the Draw Down Amount (the "Note Date"), (B) be in the principal amount of the
Draw Down Amount and (C) require interest be payable commencing on the first day
of the month subsequent to the Note Date.
(ii) A warrant (the "Draw Down Warrant") in the form annexed
hereto as Exhibit C except that the warrant (A) shall be for the purchase of
that number of shares of Common Stock as is equal to 20,000 for each $100,000
principal amount of the Draw Down Note, (B) shall be exercisable commencing on
the Note Date to and including the 5th anniversary of the Note Date, (C) shall
be at a per share purchase price equal to the closing price of a share of Common
Stock on the trading day immediately preceding the Note Date and (D) the date in
section 6 thereof shall be the 155th date after the Note Date.
(iii) A registration rights agreement in the form annexed
hereto as Exhibit D except that such registration rights agreement shall (A) be
dated the Note Date, (B) shall refer to the Draw Down Note and the Draw Down
Warrant and, (C) in Section 2 thereof shall provide that the registration
statement should be filed no later than the 90th day after the Note Date and
that the interest rate on the Draw Down Note shall be increased if the
registration statement has not been declared effective on the 155th day after
the Note Date.
(c) In no event shall the Purchaser be required to loan more than
$500,000 to the Company pursuant to the provisions of this Section 7A
8. Confidentiality. Purchaser covenants and agrees that none of Purchaser,
his agents and representatives will use for their own benefit, convey or
disclose to any third party any information provided by the Company concerning
its current or proposed business, operations and financial conditions, other
than information which is already publicly available, was already known to
Purchaser or is obtained from a source other than the Company and to the extent
required by law.
9. Affirmative Covenants. The Company covenants and agrees with the
Purchaser that, from the date hereof and until the Notes have been paid in full,
it shall:
9.1 Corporate. Do or cause to be done all things necessary to
at all times (a) other than mergers solely among the Company and any
of its subsidiaries, preserve, renew and keep in full force and
effect its corporate existence, patents, trademarks, rights,
licenses, permits and franchises, (b) comply with this Agreement,
(c) maintain and preserve all of its material property used or
useful in the conduct of their respective businesses, and (d) comply
with all applicable laws material to its businesses, including the
reporting requirements of the Securities Exchange Act of 1934,
whether now in effect or hereafter enacted, promulgated or issued.
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9.2 Notice of Proceedings. Give prompt written notice to the
Purchaser of any proceeding instituted against the Company in any
federal or state court or before any commission or other regulatory
body, whether federal, state or local, which, if adversely
determined, could have a material adverse effect upon their
business, operations, properties, assets or condition, financial or
otherwise when taken as a whole.
9.3 Books and Records; Inspection. Maintain true and accurate
books and records respecting all of their business operations, and
permit agents or representatives of the Purchasers to inspect, at
any time during normal business hours, upon reasonable notice, and
without undue material disruption of their business operations, all
of such books and records and to visit the properties and operations
of the Company and consult with the employees and officers of the
Company.
9.4 Notice of Default or Material Adverse Change. Promptly
advise the Purchaser of any event which could have a material
adverse effect on the Company's business, operation, property,
assets or condition, financial or otherwise, or the existence or
occurrence of any Event of Default (as defined in the Notes), any
breach of this Section 9 or any default of the Company under any
agreement or instrument to which it is a party.
9.5 Notice of Filings with SEC. Promptly advise the Purchaser
of any filing of a registration statement under the Securities Act
with the SEC covering any of the Company's securities.
9.6 Delivery of Financial Statements and other Reports. The
Company will deliver to each holder of Notes promptly upon
transmission thereof, copies of all financial statements,
information circulars, proxy statements and reports as the Company
shall send to its stockholders and copies of all registration
statements, prospectuses and all reports which it shall file with
the Securities and Exchange Commission or with any securities
exchange on which any of its securities is listed or with NASDAQ and
copies of all press releases and other statements made available to
the public concerning material developments in the business of the
Company.
9.7 Stock to be Reserved. The Company covenants that all
shares of Common Stock that may be issued upon exercise of the
Warrants or in respect of interest payable on the Notes will, upon
issuance, be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance
thereof. The Company covenants that during the period in which the
Warrants are outstanding it will at all times have authorized and
reserved a sufficient number of shares of Common Stock to permit the
exercise of the Warrants.
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10. Conditions Precedent to the Obligations of the Company. The
obligations of the Company pursuant to this Agreement are subject to the
satisfaction at the Closing of each of the following conditions; provided,
however, that the Company may, in its sole discretion, waive any of such
conditions and proceed with the transactions contemplated hereby.
10.1 Accuracy of Representations and Warranties. The representations
and warranties of the Purchaser contained in this Agreement or in any
document or certificate delivered in connection with the transactions
contemplated hereby shall be true and correct in all material respects on
and as of the Closing Date, as if made on and as of the Closing Date.
10.2 Performance of Agreements. Each Purchaser shall have duly
executed and delivered this Agreement to the Company and shall have
performed and complied in all material respects with all covenants,
obligations and agreements to be performed or complied with by any of them
on or before the Closing Date pursuant to this Agreement.
11. Conditions Precedent to the Obligations of the Purchaser. The
obligations of the Purchaser under this Agreement is subject to the satisfaction
at the Closing of each of the following conditions; provided, however, that the
Purchaser may, in Purchaser's sole discretion, waive any of such conditions and
proceed with the transactions contemplated hereby.
11.1 Accuracy of Representations and Warranties. The representations
and warranties of the Company contained in this Agreement or in any
document or certificate delivered in connection with the transactions
contemplated hereby shall be true and correct in all material respects on
and as of the Closing Date, as if made on and as of the Closing Date.
11.2 Performance of Agreements. The Company shall have duly executed
and delivered this Agreement and the Registration Rights Agreement and
shall have performed and complied in all material respects with all
covenants, obligations and agreements to be performed or complied with by
it on or before the Closing Date pursuant to this Agreement.
11.3 Litigation, Material Changes, Defaults, etc. No claim, action,
suit, proceeding, arbitration or hearing or notice of hearing shall be
pending (and no action or investigation by any governmental authority
shall be threatened) which seeks to enjoin, prevent or adversely affect
the consummation of the transactions contemplated by this Agreement. There
shall not have been any changes in the business of the Company which have
or could reasonably be expected to have a material adverse effect on the
business, operations, properties, assets or condition, financial or
otherwise, of the Company. There shall exist no defaults under the
provisions of any instrument evidencing indebtedness of the Company.
11.4 Purchase Permitted by Applicable Laws. The purchase of and
payment for the Notes and Warrants shall not be prohibited by any
applicable law or governmental
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regulation (including without limitation Regulations G, T and X of the
Board of Governors of the Federal Reserve System) and shall not subject
the holders of the Notes and Warrants to any tax, penalty or liability
under any applicable law or governmental regulation.
12. General Provisions.
12.1 Survival of Representations, Warranties, Covenants, and
Agreements. The representations, warranties, covenants and agreements
contained in this Agreement shall survive the execution of this Agreement.
12.2 Notices. All notices, requests, demands and other
communications which are required to be or may be given under this
Agreement to any party to any of the other parties shall be in writing and
shall be deemed to have been duly given when (a) delivered in person, (b)
the day following dispatch by an overnight courier service (such as
Federal Express or UPS, etc.) or (c) five (5) days after dispatch by
certified or registered first class mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made. Any notice
or other communication given hereunder shall be addressed to the Company,
at its principal offices as set forth above and to the Purchaser at his
address indicated on the signature page hereto.
12.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
12.4 Headings. All headings are inserted for convenience of
reference only and shall not affect the meaning or interpretation of any
such provisions or of this Agreement, taken as an entirety.
12.5 Severability. If and to the extent that any court of competent
jurisdiction holds any provision (or any part thereof) of this Agreement
to be invalid or unenforceable, such holding shall in no way affect the
validity of the remainder of this Agreement.
12.6 Changes, Waivers, Etc. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but rather
may only be changed by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is
sought. It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not operate, or be construed, as a
waiver of any subsequent breach by that same party.
12.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. The
parties hereby agree that any dispute which may arise between them arising
out of or in connection with this Agreement shall be adjudicated before a
court located in New York City and they hereby
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submit to the exclusive jurisdiction of the courts of the State of New
York located in New York, New York and of the federal courts in the
Southern District of New York with respect to any action or legal
proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court
is an inconvenient forum, relating to or arising out of this Agreement or
any acts or omissions relating to the sale of the securities hereunder,
and consent to the service of process in any such action or legal
proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth below or such other address as
the undersigned shall furnish in writing to the other.
12.8 Binding Effects. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors,
legal representatives and assigns.
12.9 Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter
thereof and incorporates and supersedes all prior discussions, agreements
and understandings of any and every nature among them.
12.10 Further Assurances. The parties agree to execute and deliver
all such further documents, agreements and instruments and take such other
and further action as may be necessary or appropriate to carry out the
purposes and intent of this Agreement.
12.11. Expenses. Each party hereto shall pay all of its own fees and
expenses in connection with the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MILESTONE SCIENTIFIC INC.
By: /s/ Leonard Osser
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Leonard Osser, Chairman and
Chief Executive Officer
/s/ K. TUCKER ANDERSEN
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K. TUCKER ANDERSEN
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