OFFSHORE STOCK SUBSCRIPTION AGREEMENT
This Stock Subscription Agreement (the "AGREEMENT"), dated _________ __,
1998, is entered into by and between Biomagnetic Technologies, Inc., a
California corporation (the "COMPANY"), and the undersigned purchaser (the
"PURCHASER").
The Company has offered for sale outside the United States (as such sale
is defined in Regulation S ("REGULATION S") under the Securities Act of 1933,
as amended (the "SECURITIES ACT")) to the Purchaser and others, shares of its
common stock, no par value, pursuant to Regulation S.
Capitalized terms used herein and not defined herein shall have the
meanings given to them in Regulation S.
The parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES.
(a) Upon the basis of the representations and warranties, and
subject to the terms and conditions, set forth in this Agreement, the Company
covenants and agrees to sell to the Purchaser on the Closing Date (as
hereinafter defined), the number of shares of its common stock, no par value,
set forth on the signature page hereof (the "SHARES"), at a price equal to
$0.50 per share (the "PURCHASE PRICE"), and upon the basis of the
representations and warranties, and subject to the terms and conditions, set
forth in this Agreement, the Purchaser covenants and agrees to purchase from
the Company on the Closing Date the Shares at the Purchase Price.
(b) The Shares that the Purchaser has agreed to purchase from the
Company on the Closing Date at the Purchase Price of $0.50 per share are
currently authorized shares of the Company's Common Stock. Subsequent to the
Closing Date, the Company may, subject to the approval of its shareholders,
effectuate a 1-for-10 reverse stock split or such other adjustment as deemed
appropriate by the Company's board of directors and shareholders by amending
the Company's articles of incorporation.
2. Closing. The closing of the purchase and sale of the Shares
pursuant to Section 1 hereof (the "CLOSING") shall take place on or before
_____________, at the offices of the Company, located at 9727 Pacific Heights
Boulevard, San Diego, CA 92121 (such time and date for the closing, the
"CLOSING DATE"). The certificates representing the Shares to be purchased by
the Purchaser shall be delivered by, or on behalf of, the Company at the
above-mentioned offices, against payment of the Purchase Price therefor in
immediately available funds by, or on behalf of, the Purchaser to the
Company's account (No. 422709) at Bank Julius Baer & Co., Ltd., New York
Branch, 330 Madison Avenue, New York, NY 10017 or as otherwise instructed by
the Company. Delivery of such shares shall be in accordance with the
instructions of the Purchaser, and in such names as the Purchaser shall
instruct, subject to customary settlement procedures.
3. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, the Purchaser that:
(a) ORGANIZATION AND QUALIFICATION. Each of the Company and
Biomagnetic Technologies GmbH, a corporation organized under the laws of
Germany (the "SUBSIDIARY"), is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation and
has full corporate power and authority to conduct its business as and to the
extent now conducted and to own, use and lease its assets and properties.
Each of the Company and its Subsidiary is duly qualified, licensed or
admitted to do business and is in good standing in each jurisdiction in which
the ownership, use or leasing of its assets and properties, or the conduct or
nature of its business, makes such qualification, licensing or admission
necessary, except for such failures to be so qualified, licensed or admitted
and in good standing which, individually or in the aggregate, (i) are not
having and could not be reasonably expected to have a material adverse effect
on the Company and its Subsidiary taken as a whole, and (ii) could not be
reasonably expected to have a material adverse effect on the validity or
enforceability of this Agreement or on the ability of the Company to perform
its obligations hereunder. Except for the Subsidiary and Magnesensors Inc.,
the Company does not directly or indirectly own any equity or similar
interest in, or any interest convertible into or exchangeable or exercisable
for, any equity or similar interest in, any corporation, partnership, joint
venture or other business association or entity.
(b) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
herein or in the Company SEC Reports (as defined in Section 3(f)) filed prior
to the date of this Agreement and except that in March 1997, the Company's
common stock was delisted from the NASDAQ National Market and now is quoted
on the National Association of Securities Dealers, Inc.'s OTC Bulletin Board,
(a) since December 31, 1997, there has not been any change, event or
development having, or that could be reasonably expected to -have,
individually or in the aggregate, a material adverse effect on the Company
and its Subsidiary taken as a whole and (b) between such date and the date
hereof, the Company and its Subsidiary have conducted their respective
businesses only in the ordinary course consistent with past practice.
(c) VALIDITY OF THE AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights generally
and to general principles of equity; and the Company has full corporate power
and authority necessary to enter into this Agreement and to perform its
obligations hereunder.
(d) THE SHARES. The Shares have been duly and validly authorized
and on the Closing Date will be duly and validly issued, fully paid and
nonassessable.
(e) REPORTING COMPANY. The Company is a reporting company and has
filed all reports required to be filed by Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") during the
preceding 12 months and has been subject to such
-2-
filing requirements for the past 90 days. Its common stock is quoted on the
National Association of Securities Dealers, Inc.'s OTC Bulletin Board.
(f) SEC REPORTS AND FINANCIAL STATEMENTS. The Company delivered
to the Purchaser prior to the execution of this Agreement a true and complete
copy of each form, report, schedule, registration statement, definitive proxy
statement and other document (together with all amendments thereof and
supplements thereto) filed by the Company or its Subsidiary with the
Securities and Exchange Commission (the "SEC") since September 30, 1995 (as
such documents have since the time of their filing been amended or
supplemented, the "COMPANY SEC REPORTS"), which are all the documents (other
than preliminary material) that the Company and its Subsidiary were required
to file with the SEC since such date.
(g) REGULATION S (all capitalized terms not defined herein shall
have the meanings given to them in Regulation S).
(i) The sale of the Shares pursuant to this Agreement will
be made in accordance with the provisions and requirements of Regulation S
and any applicable state law.
(ii) The Company has not offered the Shares to any Person in
the United States or to any identifiable groups of U.S. citizens abroad or to
any U.S. Person.
(iii) No offer to buy the Shares was made to the Company by
any Person in the United States or by any U.S. Person.
(iv) None of the Company, its Subsidiary, or any
Representative has engaged, or will engage, in any Directed Selling Efforts
with respect to the Shares.
(v) The transactions contemplated by this Agreement (A) have
not been pre-arranged by the Company with a purchaser which is in the United
States or is a U.S. Person; and (B) are not part of a plan or scheme of the
Company to evade the registration provisions of the Securities Act.
(vi) The Company has not issued, and after the Closing Date
will not issue, any stop transfer order or other order impeding the sale and
delivery of the Shares except for a stop order restricting the sale of the
Shares into the United States or to, or for the account or benefit of, U.S.
Persons during the Restricted Period (as hereinafter defined); provided,
however, that in the event that the SEC promulgates any revision to, or
issues any release reinterpreting, Regulation S which affects this Agreement,
the Company may issue such stop transfer order as is necessary to comply with
such revision or release.
(vii) The Company has not offered to sell or sold any warrants
exercisable or convertible into its common stock in a transaction involving
Regulation S in the past year; and there are no outstanding warrants
exercisable or convertible into its common stock which have been sold in a
transaction involving Regulation S.
-3-
4. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser understands, and represents and warrants to, and agrees with, the
Company, that:
(a) The Purchaser understands that no federal or state agency has
passed on or made any recommendation or endorsement of the Shares.
(b) The Purchaser acknowledges that, in making the decision to
purchase the Shares, it has relied solely upon independent investigations
made by it and not upon any representations made by the Company with respect
to the Company or the Shares. The Purchaser acknowledges that it is a
sophisticated investor and that an investment in the Shares involves a high
degree of risk. The Purchaser further acknowledges that the Purchase Price
may or may not exceed the latest publicly quoted per share "asked" price of
the Company's common stock.
(c) The Purchaser acknowledges that the Company is relying upon
the truth and accuracy of the representations, warranties and covenants of
the Purchaser made herein in selling the Shares hereunder without
registration and in reliance upon Regulation S promulgated under the
Securities Act. The Purchaser is familiar with Regulation S and has
consulted with legal counsel familiar with Regulation S in connection with
this transaction.
(d) The Purchaser is not a U.S. Person (as defined in Regulation
S) or an affiliate of the Company, and is not acquiring the securities for
the account or benefit of any U.S. person.
(e) No offer of the Shares was made to the Purchaser in the United
States.
(f) At the time the offer and buy orders for the Shares were
originated, including, without limitation, at the time the Purchaser executed
and delivered this Agreement and otherwise subscribed for or agreed to
purchase the Shares, the Purchaser was located outside the United States.
(g) None of the Purchaser, any affiliate of the Purchaser, or any
Person acting on behalf of the Purchaser or any such affiliate has engaged,
or will engage, in any Directed Selling Efforts with respect to the Shares;
and the Purchaser and its affiliates have complied, and will comply, with the
Offering Restrictions (as defined in Regulation S), and any other
requirements, of Regulation S.
(h) The Purchaser is aware that the Shares have not been and will
not be registered under the Securities Act and may only be offered or sold
pursuant to registration under the Securities Act or an available exemption
therefrom.
(i) The Purchaser:
(A) will not, during the period commencing on the Closing Date
and ending one year after the Closing Date (the "Restricted Period"), offer
or sell the Shares in the United States, to a U.S. Person or for the
account or benefit of a U.S. Person or
-4-
other than in accordance with the provisions of Regulation S (Section
230.901 through Section 230.905, and Preliminary Notes);
(B) will, after the expiration of the Restricted Period,
offer, sell, pledge or otherwise transfer the Shares only pursuant to
registration under the Securities Act or an available exemption therefrom
and, in any case, in accordance with applicable state securities laws; and
(C) at all times agrees not to engage in hedging transactions
with regard to such securities unless in compliance with the Securities
Act.
(j) If the Purchaser offers and sells the Shares during the
Restricted Period, then it will do so only in accordance with the provisions
of Regulation S, pursuant to registration of the Shares under the Securities
Act, or pursuant to an available exemption from the registration requirements
of the Securities Act.
(k) The transactions contemplated by this Agreement:
(A) have not been pre-arranged with a purchaser who is located
in the United States or is a U.S. Person; and
(B) are not part of a plan or scheme to evade the registration
provisions of the Securities Act.
(l) The Purchaser is purchasing the Shares for its own account for
the purpose of investment and not (A) with a view to, or for sale in
connection with, any distribution thereof or (B) for the account or on behalf
of any U.S. Person. The Purchaser understands, acknowledges and agrees that
it must bear the economic risk of its investment in the Shares for an
indefinite period of time and that prior to any offer or sale of such
securities, the Company may require, as a condition to effecting a transfer
of the Shares, an opinion of counsel to Purchaser, acceptable to the Company,
as to the registration or exemption therefrom under the Securities Act.
(m) The Purchaser was not formed specifically for the purpose of
acquiring the Shares purchased pursuant to this Agreement, and if a
corporation, all corporate action on its part, necessary for the
authorization, execution, delivery and performance of the Purchaser's
obligations under this Agreement has been or shall be taken prior to the
closing of this transaction, and this Agreement, when executed and delivered,
shall constitute a valid and legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
(n) If the Purchaser is a corporation or trust or other entity, the
officer or trustee or other person executing this Agreement represents and
warrants that he or she is duly authorized to so sign this Agreement and to
consummate the transactions contemplated hereby and that the Purchaser is
authorized by its governing documents to make this investment. The Purchaser
has such knowledge and experience in financial and business matters that it is
capable
-5-
of evaluating the merits and risks of an investment in the Shares, and it is
able to bear the economic risk of losing up to the entire amount of its
investment therein.
(o) Neither the Purchaser nor any of its affiliates directly or
indirectly have within the past ninety (90) days nor will such persons for a
period of one year from the Closing directly or indirectly enter into any
short selling of any equity security of the Company (including, without
limitation, the common stock of the Company) or any hedging transaction with
respect to any equity security of the Company, including without limitation,
puts, calls, or other option transactions, option writing and equity swaps,
unless in compliance with the Securities Act.
(p) Purchaser understands and agrees that each certificate or
other document evidencing any of the Shares shall be endorsed with the
legends set forth below, and the Purchaser covenants that the Purchaser shall
not transfer the shares represented by any such certificate without complying
with the restrictions on transfer described in the legends endorsed on such
certificate and understands that the Company shall refuse to register any
transfer of Shares not complying with the following legend:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND HAVE BEEN
SOLD IN RELIANCE ON THE EXEMPTION FROM REGISTRATION
PROVIDED BY REGULATION S UNDER THE SECURITIES ACT
("REGULATION S"). THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATIONS S (Section 230.901 THROUGH Section
230.905, AND PRELIMINARY NOTES), PURSUANT TO
REGISTRATION UNDER THE SECURITIES ACT OR COMPLIANCE
WITH RULE 144 PROMULGATED UNDER THE SECURITIES ACT OR
ANOTHER AVAILABLE EXEMPTION THEREFROM, OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED. HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT."
(ii) "THE SHARES REPRESENTED HEREBY ARE
-6-
SUBJECT TO THE RESTRICTIONS ON TRANSFER CONTAINED IN A CERTAIN
OFFSHORE STOCK SUBSCRIPTION AGREEMENT, AS AMENDED FROM
TIME TO TIME. THE COMPANY WILL UPON WRITTEN REQUEST
FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF
WITHOUT CHARGE."
(iii) Any other legend required by law.
(q) Purchaser represents that, on the basis of any actions and
agreements by it, except as expressly agreed to in writing by the Company,
there are no brokers or finders entitled to compensation in connection with
the sale of the Shares to the Purchasers.
(r) Purchaser understands that as a result of the purchase of the
Shares hereunder, Purchaser may be subject to certain reporting requirements,
including without limitation, the filing of reports pursuant to Rule 13d-1 of
the Securities Exchange Act of 1934, immediately following the Closing.
Purchaser agrees to comply with and consult with independent counsel
regarding any such obligations.
Purchaser understands and agrees that pursuant to Regulation S,
each distributor selling securities to a distributor, a dealer (as defined in
section 2(a)(12) of the Securities Act), or a person receiving a selling
concession, fee or other remuneration in respect of the securities sold,
prior to the expiration of a one-year distribution compliance period, must
send a confirmation or other notice to the purchaser stating that the
purchaser is subject to the same restrictions on offers and sales that apply
to a distributor.
Purchaser has received and reviewed the capitalization and option
vesting table attached hereto as Schedule A, updated as of May 15, 1998, and
incorporated herein by this reference.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Purchaser as follows:
(a) REGULATION S. The Company shall:
(i) continue to comply with all applicable reporting
requirements of the Exchange Act;
(ii) refrain from offering to sell or selling any shares of
common stock, or warrants or other securities convertible into its common
stock, in a transaction involving Regulation S for a period of 180 days
following the Closing Date;
-7-
(iii) ensure that all Offering Restrictions applicable to the
sale of Shares pursuant to this Agreement are thoroughly implemented,
complied with and satisfied; and
(iv) refrain from engaging in any Directed Selling Efforts
with respect to the Shares.
(b) ORDINARY COURSE. Until the Closing, the Company and its
Subsidiary shall conduct their respective businesses only in, and neither the
Company nor its Subsidiary shall take any action except in, the ordinary
course consistent with past practice.
6. ADDITIONAL COVENANTS OF THE PURCHASER. The Purchaser covenants and
agrees that at all times prior to the Closing and thereafter, the Purchaser
will hold, and will use its best efforts to cause its Representatives to
hold, in strict confidence, unless (i) compelled to disclose by judicial or
administrative process or by other requirements of applicable Laws of
Governmental or Regulatory Authorities (including, without limitation, in
connection with obtaining the necessary approvals of this Agreement or the
transactions contemplated hereby of Governmental or Regulatory Authorities),
or (ii) disclosed in an action or proceeding brought by a party hereto in
pursuit of its rights or in the exercise of its remedies hereunder, all
documents and information concerning trade secrets of the Company and its
Subsidiary furnished to it by the Company or its Representatives in
connection with this Agreement or the transactions contemplated hereby,
except to the extent that such documents or information can be shown to have
been (A) previously known by the Purchaser or its Representatives, (B) in the
public domain (either prior to or after the furnishing of such documents or
information hereunder) through no fault of the Purchaser and its
Representatives or (C) later acquired by the Purchaser or its Representatives
from another source, provided that such source is under no obligation to keep
such documents and information confidential. In the event that this
Agreement is terminated without the transactions contemplated hereby having
been consummated, upon the request of the Company, the Purchaser will, and
will cause its Representatives to, promptly (and in no event later than five
(5) days after such request) redeliver or cause to be redelivered all copies
of such documents and information furnished by the Company or its
Representatives to the Purchaser and its Representatives in connection with
this Agreement or the transactions contemplated hereby and destroy or cause
to be destroyed all notes, memoranda, summaries, analyses, compilations and
other writings rlated thereto or based thereon prepared by the Purchaser or
its Representatives.
7. FEES AND EXPENSES. Except as set forth in Section 12(b), each of
the Purchaser and the Company agrees to pay its own expenses incident to the
performance of its obligations hereunder, including, but not limited to, the
fees, expenses and disbursements of such party's counsel.
8. DEFINITIONS. As used in this Agreement, the following defined
terms shall have the meanings indicated below:
(a) "GOVERNMENTAL OR REGULATORY AUTHORITY" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any state,
county, city or other political subdivision.
-8-
(b) "LAW" means all laws, statutes, rules, regulations, ordinances
and other pronouncements having the effect of law of the United States, any
foreign country or any domestic or foreign state, county, city or other
political subdivision or of any Governmental or Regulatory Authority.
(c) "LIEN" means any lien, claim, mortgage, encumbrance, pledge,
security interest, equity or charge of any kind.
(d) "PERSON" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business
organization, trust, union, association or Governmental or Regulatory
Authority.
(e) "REPRESENTATIVE" means any officer, director, employee,
investment banker, financial advisor, attorney, accountant, agent or other
Person retained by or acting for or on behalf of the Company or its
Subsidiary or the Purchaser.
9. INDEMNIFICATION.
(a) In the event the Purchaser becomes involved in any capacity in
any action, proceeding or investigation in connection with any matter
referred to or relating to this Agreement (except as expressly provided for
in paragraph (c) of this Section 9), the Company will reimburse the Purchaser
for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred, and will indemnify and hold the Purchaser harmless
from and against any losses, claims, damages or liabilities to which it may
become subject in connection with any such action, proceeding, investigation
or matter, unless such expenses, loss, claim, damage or liability results
primarily from the Purchaser's gross negligence, recklessness or bad faith in
connection with the subject of this Agreement.
(b) In the event that the Company becomes involved in any capacity
in any action, proceeding or investigation in connection with any matter
referred to or relating to this Agreement (except as expressly provided for
in paragraph (c) of this Section 9), the Purchaser will reimburse the Company
for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred, and will indemnify and hold the Company harmless from
and against any losses, claims, damages or liabilities to which it may become
subject in connection with any such action, proceeding, investigation or
matter, to the extent, but only to the extent, that such loss, claim, damage
or liability results primarily from the Purchaser's gross negligence,
recklessness or bad faith in connection with the subject of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
shall notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party shall not relieve the
indemnifying party from any liability which it may have pursuant to this
Section 9 unless, due to the failure to be so notified, the indemnifying
party is unable to contest the losses or claims indemnified against, and such
omission shall in no event relieve the
-9-
indemnifying party from any liability which it may have to any indemnified
party otherwise than under this Section 9. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it may elect by written notice
delivered to such indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, which consent shall not be
unreasonably withheld, be counsel to the indemnifying party); provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and otherwise to participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the indenifying
party will not be liable to such indemnified party under this Section 9 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel for each indemnified
party), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; provided further,
however, that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clauses (i) or (iii).
10. SURVIVAL OF THE REPRESENTATIONS, WARRANTIES, ETC. The respective
agreements, representations, warranties, indemnities and other statements
made by or on behalf of the Company and the Purchaser, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of the other party to this Agreement or
any officer, director or employee of, or Person controlling or under common
control with, such party and will survive delivery of and payment for the
Shares.
11. NOTICES. All communications hereunder shall be in writing, and, if
sent to the Purchaser shall be sufficient in all respects if delivered, sent
by registered United States mail, or by telecopy and confirmed to the
Purchaser at:
The address or telecopier number
shown on the counterpart
signature page of this Agreement;
or, if sent to the Company, shall be delivered, sent by registered United
States mail or by telecopy and confirmed to the Company at:
-10-
Mr. D. Scott Buchanan
President and CEO
Biomagnetic Technologies, Inc.
9727 Pacific Heights Boulevard
San Diego, CA 92121
Telecopy: (619) 458-5698.
12. TERMINATION.
(a) This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned:
(i) at any time before the Closing, by mutual written
agreement of Company and the Purchaser;
(ii) at any time before the Closing, by the Company or the
Purchaser, in the event (A) of a material breach hereof by the
non-terminating party if such non-terminating party fails to cure such breach
within ten (10) business days following notification thereof by the
terminating party or (B) 10 business days after notification of the
non-terminating party by the terminating party that the satisfaction of any
condition to the terminating party's obligations under this Agreement becomes
impossible or impracticable with the use of commercially reasonable efforts
if the failure of such condition to be satisfied is not caused by a breach
hereof by the terminating party; provided, that the other party may within
such ten (10) business days cure by satisfying or demonstrating the
satisfiability of such condition; or
(iii) at any time after the Closing by the Company.
(b) If this Agreement is validly terminated pursuant to Section
12(a), this Agreement will forthwith become null and void, and there will be
no liability or obligation on the part of Company or the Purchaser (or any of
their respective officers, directors, employees, agents or other
representatives or affiliates), except as provided in the next succeeding
sentence and except that the provisions with respect to confidentiality in
Section 6 and expenses in Section 7 will continue to apply following any such
termination. Notwithstanding any other provision in this Agreement to the
contrary, upon termination of this Agreement pursuant to Section 12(a), the
Company will remain liable to the Purchaser for any breach of this Agreement
by the Company existing at the time of such termination, and the Purchaser
will remain liable to the Company for any breach of this Agreement by the
Purchaser existing at the time of such termination, and the Company or the
Purchaser may seek such remedies, including damages and fees of attorneys,
against the other with respect to any such breach as are provided in this
Agreement or as are otherwise available at Law or in equity.
13. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts and
it is not necessary that signatures of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and the
same agreement.
-11-
(b) This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their respective successors and, with respect to
Section 9 hereof, the officers, directors and controlling Persons thereof and
each Person under common control therewith, and no other Person shall have
any right or obligation hereunder.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California and the United States,
without regard to conflicts of laws principles.
(d) The headings of the sections of this document have been
inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
(e) The Company may reject this subscription, or any subscription
for any reason or no reason, in its absolute discretion and without incurring
any liability to Purchaser.
(f) This Agreement states and comprises the entire agreement
between the parties and shall supersede and replace any and all prior
agreements between the parties and may be amended only by written instrument
signed by both parties.
(g) If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(h) Each party to this Agreement shall use its best efforts to
cause the Closing to occur and shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as the other
party hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) All references to "dollars" or "$" in this Agreement shall be
deemed to refer to United States dollars.
(j) If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition
to any other relief to which such party may be entitled.
-12-
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, all as of the day and year first above written.
BIOMAGNETIC TECHNOLOGIES, INC.
By:
-------------------------------------
D. Scott Buchanan
President and CEO
PURCHASER:
- -------------------------------------------------------------------------------
Print name of Purchaser. If a corporation, the appropriate officer or
officers must sign.
- -------------------------------------------------------------------------------
Number of Shares (of the Company's common stock, no par value) subscribed for
- -------------------------------------------------------------------------------
Address of Purchaser
- -------------------------------------------------------------------------------
Address of Purchaser (continued)
- -------------------------------------------------------------------------------
Telephone Number of Purchaser
- -------------------------------------------------------------------------------
Telecopy Number of Purchaser
- -------------------------------------------------------------------------------
Signature(s)
- -------------------------------------------------------------------------------
Print name(s) and title(s)
[SIGNATURE PAGE FOR
OFFSHORE STOCK SUBSCRIPTION AGREEMENT]