SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of November 21, 2007, by and among Pressure BioSciences Inc., a
Massachusetts corporation (the “Company”),
and
each purchaser identified on the signature pages hereto (each, including
its
successors and assigns, a “Purchaser”
and
collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”),
and
Rule 506 promulgated thereunder, the Company desires to issue and sell to
each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company, as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of
which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms have the meanings set forth in this Section
1.1:
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person as
such
terms are used in and construed under Rule 144 under the Securities Act.
“Business
Day”
means
any day except Saturday, Sunday, any day which shall be a federal legal holiday
in the United States, or any day on which banking institutions in the State
of
New York are authorized or required by law or other governmental action to
close.
“Closing”
means
the closing of the purchase and sale of the Shares pursuant to Section
2.1.
“Closing
Date”
means
the date of this Agreement.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Company, par value $0.01 per share, and any other
class
of securities into which such securities may hereafter be reclassified or
changed into.
“Common
Stock Equivalents”
means
any securities of the Company or the Subsidiaries which would entitle the
holder
thereof to acquire at any time Common Stock, including, without limitation,
any
debt, preferred stock, rights, options, warrants, stock appreciation rights,
restricted stock units, or other instrument that is at any time convertible
into
or exercisable or exchangeable for, or otherwise entitles the holder thereof
to
receive, Common Stock.
“Company
Counsel”
means
Pepper Hamilton LLP, with offices located at 101 Federal Street, Suite 1010,
Boston, Massachusetts, 02110.
“Damages”
shall
have the meaning assigned to such term in Section 4.5.
“Disclosure
Schedules”
means
the Disclosure Schedules of the Company delivered concurrently herewith.
“Effective
Date”
has
the
meaning set forth in the Registration Rights Agreement.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Legend
Removal Date”
shall
have the meaning ascribed to such term in Section 4.1(c).
“Liens”
means
a
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction.
“Material
Adverse Effect”
shall
have the meaning assigned to such term in Section 3.1(a).
“Per
Share Price”
equals
$5.00.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof), or other entity of any
kind.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Purchaser
Party”
shall
have the meaning ascribed to such term in Section 4.5.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated the date hereof, among the Company
and
the Purchasers, in the form of Exhibit
A
attached
hereto.
“Registration
Statement”
means
a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of all or part
of the
Shares.
“Required
Approvals”
shall
have the meaning ascribed to such term in Section 3.1(d).
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect
as such
rule.
“SEC
Reports”
shall
have the meaning ascribed to such term in Section 3.1(g).
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares”
means
the shares of Common Stock issued or issuable to each Purchaser pursuant
to this
Agreement.
“Subscription
Amount”
means,
as to each Purchaser, the aggregate amount to be paid for Shares purchased
hereunder as specified below such Purchaser’s name on the signature page of this
Agreement and next to the heading “Subscription Amount,” in United States
dollars and in immediately available funds.
“Subsidiary”
means
any subsidiary of the Company as set forth on Schedule 3.1(a).
“Trading
Day”
means
a
day on which the Common Stock is traded on a Trading Market.
“Trading
Market”
means
the Nasdaq Capital Market as such other markets or exchanges on which the
Common
Stock is listed or quoted for trading on the date in question.
“Transaction
Documents”
means
this Agreement, the Registration Rights Agreement and any other documents
or
agreements executed in connection with the transactions contemplated
hereunder.
“Transfer
Agent”
means
Computershare Trust Company, with a mailing address of 350 Indiana street,
Suite
800, Golden, CO 80401 and a telephone number of (303) 262-0600.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth
herein, substantially concurrent with the execution and delivery of this
Agreement by the parties hereto, the Company agrees to sell, and each Purchaser,
severally and not jointly, agrees to purchase, at the Per Share Price,
up
to an
aggregate of [$_________] of Shares.
On the
Closing Date, each Purchaser shall deliver to the Company, via wire transfer,
immediately available funds equal to its Subscription Amount and the Company
shall deliver to each Purchaser its respective Shares (determined by dividing
such Purchaser’s Subscription Amount by the Per Share Price), and the Company
and each Purchaser shall deliver the other items set forth in Section 2.2
deliverable at the Closing.
2.2 Deliveries.
(a) On
or
prior to the Closing Date, the Company shall deliver or cause to be delivered
to
each Purchaser the following:
| |
(i)
|
this
Agreement duly executed by the
Company;
|
| |
(ii)
|
a
legal opinion of Company Counsel
in
customary form regarding the issuance of the Shares;
|
| |
(iii)
|
a
copy of the irrevocable instructions to the Transfer Agent instructing
the
Transfer Agent to deliver, on an expedited basis, a certificate
evidencing
the number of Shares purchased by such Purchaser pursuant to the
terms of
this Agreement, registered in the name of such Purchaser;
and
|
| |
(iv)
|
the
Registration Rights Agreement duly executed by the
Company.
|
(b) On
or
prior to the Closing Date, each Purchaser shall deliver or cause to be delivered
to the Company the following:
| |
(i)
|
this
Agreement duly executed by such
Purchaser;
|
| |
(ii)
|
such
Purchaser’s Subscription Amount by wire transfer to the account as
specified in writing by the Company;
and
|
| |
(iii)
|
the
Registration Rights Agreement duly executed by such
Purchaser.
|
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except
as
set forth in the Disclosure Schedules, which Disclosure Schedules shall be
deemed a part hereof and shall qualify any representation or otherwise made
herein to the extent of the disclosure contained in the corresponding section
of
the Disclosure Schedules, the Company hereby makes the following representations
and warranties to each Purchaser:
(a) Subsidiaries.
All of
the direct and indirect subsidiaries of the Company are set forth on Schedule
3.1(a). The Company owns, directly or indirectly, all of the capital stock
or
other equity interests of each Subsidiary free and clear of any Liens, and
all
of the issued and outstanding shares of capital stock of each Subsidiary
are
validly issued and are fully paid, non-assessable and free of preemptive
and
similar rights to subscribe for or purchase securities. If the Company has
no
subsidiaries, then all other references to the Subsidiaries or any of them
in
the Transaction Documents shall be disregarded.
(b) Organization
and Qualification.
Each of
the Company and each of the Subsidiaries is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws
of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to
carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational
or
charter documents. Each of the Company and each of the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may
be,
would
not,
individually or in the aggregate, have
or
reasonably
be expected to result in (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material adverse effect
on
the results of operations, assets, business,
prospects
or
condition (financial or otherwise) of the Company and the Subsidiaries, taken
as
a whole, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”).
(c) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and
to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of each of the Transaction Documents by the Company
and
the consummation by it of the transactions contemplated hereby and thereby
have
been duly authorized by all necessary corporate action on the part of the
Company and no further action is required by the Company, its board of directors
or its stockholders in connection therewith other than in connection with
the
Required Approvals. Each Transaction Document has been (or upon delivery
will
have been) duly executed by the Company and, when delivered in accordance
with
the terms hereof and thereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No
Conflicts.
The
execution, delivery, and performance of the Transaction Documents by the
Company, the issuance and sale of the Shares, and the consummation by the
Company of the other transactions contemplated hereby and thereby do not
and
will not (i) conflict with or violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute
a
default (or an event that with notice or lapse of time or both would become
a
default) under, result in the creation of any Lien upon any of the properties
or
assets of the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary
debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary
is
bound or affected, or (iii) subject to the Required Approvals, conflict with
or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which
the
Company or a Subsidiary is subject (including federal and state securities
laws
and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii)
and
(iii), such as would
not,
individually or in the aggregate,
have
or
reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization, or
order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery, and performance by the Company of
the
Transaction Documents, other than (i) filings required pursuant to Section
4.3
of this Agreement, (ii) the filing with, and the declaration of effectiveness
by, the Commission of the Registration Statement, (iii) application(s) and
notification(s) to each applicable Trading Market for the listing of the
Shares
for trading thereon in the time and manner required thereby, and (iv) the
filing
of Form D with the Commission and such filings as are required to be made
under
applicable state securities laws (collectively, the “Required
Approvals”).
(f) Issuance
of Shares.
The
Shares are duly authorized and, when issued and paid for in accordance with
the
applicable Transaction Documents, will be duly and validly issued, fully
paid
and nonassessable, free and clear of all Liens imposed by the Company other
than
restrictions on transfer provided for in the Transaction Documents.
(g) Capitalization.
The
number of shares and type of all authorized, issued and outstanding capital
stock of the Company as of November 20, 2007, as set forth on Schedule 3.1(g).
No Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as set forth on Schedule
3.1(g), or as a result of the purchase and sale of the Shares pursuant to
the
terms of this Agreement, there are no outstanding options, warrants, scrip
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights, or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe
for
or acquire, any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is
or may
become bound to issue additional shares of Common Stock or Common Stock
Equivalents. The issuance and sale of the Shares will not obligate the Company
to issue shares of Common Stock or other securities to any Person (other
than
the Purchasers) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under
any
of such securities.
(h) SEC
Reports; Financial Statements.
The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required
by
law or regulation to file such material) (the foregoing materials, including
the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC
Reports”)
on a
timely basis or has received a valid extension of such time of filing and
has
filed any such SEC Reports prior to the expiration of any such extension.
As of
their respective dates, the SEC Reports complied in all material respects
with
the requirements of the Securities Act and the Exchange Act, as applicable,
and
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in
all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time
of
filing. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the
notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of
and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments and absence of footnotes
thereto.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments.
Except
as
set forth on Schedule 3.1(i), since
the date
of the latest Current Report on Form 8-K filed by the Company prior to the
date
hereof, (i) there has been no event, occurrence or development that has had
or
that could reasonably be expected to result in a Material Adverse Effect,
(ii)
the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course
of
business consistent with past practice and (B) liabilities not required to
be
reflected in the Company’s financial statements pursuant to GAAP or disclosed in
filings made with the Commission, (iii) the Company has not altered its method
of accounting, and (iv) the Company has not declared or made any dividend
or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock.
(j) Certain
Fees.
Except
as set forth on Schedule 3.1(j), no brokerage or finder’s fees or commissions
are or will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by the Transaction Documents.
(k) Disclosure.
Except
with regard to the identity of the Purchasers set forth on Schedule 3.1(k)
and
except with respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents which may constitutes material,
non-public information until such time as the Company files a Current Report
on
Form 8-K or issues a press release disclosing the terms of the transaction
contemplated by the Transaction Documents, the Company confirms that neither
it
nor any other Person acting on its behalf has provided any of the Purchasers
or
their agents or counsel with any information that it believes constitutes
or
might constitute material, non-public information. The Company understands
and
confirms that the Purchasers will rely on the foregoing representation in
effecting transactions in securities of the Company. All disclosure furnished
by
or on behalf of the Company to the Purchasers regarding the Company, its
business, and the transactions contemplated hereby, including the Disclosure
Schedules to this Agreement, is true and correct and does not contain any
untrue
statement of a material fact or omit to state any material fact necessary
in
order to make the statements made therein, in light of the circumstances
under
which they were made, not misleading.
3.2 Representations
and Warranties of the Purchasers.
Each
Purchaser, for itself, himself or herself and for no other Purchaser, hereby
represents and warrants as follows:
(a) Organization;
Authority.
If a
corporation, partnership, limited liability company, trust or other entity,
(i)
such Purchaser is an entity duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its organization with full
right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder; and (ii) the execution, delivery,
and performance by such Purchaser of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate or similar
action
on the part of such Purchaser.
If an
individual, such Purchaser has full legal capacity to execute and deliver
this
Agreement and the other Transaction Documents to which he or she is a party
and
to consummate the transactions contemplated by the Transaction Documents
and
otherwise to carry out his or her obligations hereunder and thereunder. Each
Transaction Document to which such Purchaser is a party has been duly executed
by the Purchaser, and when delivered by such Purchaser in accordance with
the
terms hereof, will constitute the valid and legally binding obligation of
such
Purchaser, enforceable against such Purchsaer in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(b) Own
Account.
Such
Purchaser understands that the Shares are “restricted securities” and have not
been registered under the Securities Act or any applicable state or other
securities law and is acquiring the Shares as principal for its own account
and
not with a view to or for distributing or reselling such Shares or any part
thereof in violation of the Securities Act or any applicable state or other
securities law, has no present intention of distributing any of such Shares
in
violation of the Securities Act or any applicable state or other securities
law,
and has no direct or indirect arrangement or understandings with any other
persons to distribute or regarding the distribution of such Shares (this
representation and warranty not limiting such Purchaser’s right to sell the
Shares pursuant to the Registration Statement or otherwise in compliance
with
applicable federal and state securities laws) in violation of the Securities
Act
or any applicable state or other securities law. Such Purchaser is acquiring
the
Shares hereunder in the ordinary course of its business.
(c) Purchaser
Status.
At the
time such Purchaser was offered the Shares, such Purchaser was, and at the
date
hereof it is an “accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(5), (a)(6), (a)(7) or (a)(8) under the Securities Act. No Purchaser
is required to be registered as a broker-dealer under Section 15 of the Exchange
Act.
(d) Experience
of Such Purchaser.
Such
Purchaser, either alone or together with such Purchaser’s representatives, has
such knowledge, sophistication, and experience in business and financial
matters
so as to be capable of evaluating the merits and risks of the prospective
investment in the Shares, and has so evaluated the merits and risks of such
investment. Such Purchaser is able to bear the economic risk of an investment
in
the Shares and, at the present time, is able to afford a complete loss of
such
investment.
(e) General
Solicitation.
Such
Purchaser is not purchasing the Shares as a result of any advertisement,
article, notice, or other communication regarding the Shares published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(f) Provision
of Information.
Such
Purchaser has been afforded (i) the opportunity to ask such questions as
it has
deemed necessary of, and to receive answers from, representatives of the
Company
concerning the terms and conditions of the Shares and the finances, operations
and business of the Company; and (ii) the opportunity to request such additional
information which the Company possesses or can acquire without unreasonable
effort or expense.
All of
such Purchaser’s questions have been answered to its satisfaction and such
Purchaser has received all of such requested additional
information.
(g) Certain
Fees.
No
brokerage or finder’s fees or commissions are or will be payable by such
Purchaser to any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank, or other Person with respect to the transactions
contemplated by the Transaction Documents.
(h) Residency.
The
residence or principal place of business of such Purchaser is set forth below
on
such Purchaser’s signature page to this Agreement, and all communications
between such Purchaser and the Company regarding the transactions contemplated
by this Agreement took place within or from the state of such residence or
principal place of business.
(i) Acknowledgement.
Each
Purchaser acknowledges that the Company has relied upon the representations
and
warranties of the Purchasers set forth in Section 3.2 in its determination
that
no registration under the Securities Act is required for the offer and sale
of
the Shares by the Company to the Purchasers as contemplated by this
Agreement.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Shares may only be disposed of in compliance with state and federal securities
laws. In connection with any transfer of Shares other than pursuant to an
effective registration statement or pursuant to Rule 144, the Company may
require the transferor thereof to provide to the Company an opinion of counsel
selected by the transferor and reasonably acceptable to the Company, the
form
and substance of which opinion shall be reasonably satisfactory to the Company,
to the effect that such transfer does not require registration of such
transferred Shares under the Securities Act.
(b) Certificates
evidencing the Shares will contain the following legend or such other legend
as
may be reasonably appropriate under the Securities Act for so long as the
Company determines that such legend is reasonably appropriate under the
Securities Act:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
(c) Certificates
evidencing the Shares shall not contain any legend (including the legend
set
forth in Section 4.1(b)), (i) following any sale of such Shares pursuant
to Rule
144, or (ii) if such Shares are eligible for sale under Rule 144(k), or (iii)
if
such legend is not required under applicable requirements of the Securities
Act
(including judicial interpretations and pronouncements issued by the staff
of
the Commission). The Company shall cause its counsel to issue a legal opinion
to
the Transfer Agent promptly after the Effective Date if required by the Transfer
Agent to effect the removal of the legend hereunder. Following the Effective
Date or at such time as such legend is no longer required under this Section
(c),
the
Company will, no later than three (3) Trading Days following the delivery
by a
Purchaser to the Company or the Transfer Agent of a certificate representing
Shares, issued with a restrictive legend (such third Trading Day, the
“Legend
Removal Date”),
deliver or cause to be delivered to such Purchaser a certificate representing
such shares that is free from all restrictive and other legends. Notwithstanding
the foregoing, the Company shall not be required to remove any legends until
all
Shares represented by a single certificate are no longer subject to
restrictions. If only a portion of the Shares represented by any single
certificate are subject to restrictions, the holder of the certificate may
request, or the Company may require, that such certificate be cancelled and
two
new certificates be issued. One certificate shall represent, and be in the
amount of, Shares not subject to restrictions and shall bear no legend and
the
second certificate shall represent, and be in the amount of, Shares subject
to
restrictions and shall bear an appropriate legend. The Company may not make
any
notation on its records or give instructions to the Transfer Agent that enlarge
the restrictions on transfer set forth in this Section 4.1. Certificates
for
Shares subject to legend removal hereunder shall be transmitted by the Transfer
Agent to the Purchasers by crediting the account of the Purchaser’s prime broker
with the Depository Trust Company System.
(d) Each
Purchaser, severally and not jointly with the other Purchasers, agrees that
the
removal of the restrictive legend from certificates representing Shares as
set
forth in this Section 4.1 is predicated upon the Company’s reliance that the
Purchaser will sell any Shares pursuant to either the registration requirements
of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom, and that if Shares are sold pursuant
to
a Registration Statement, they will be sold in compliance with the plan of
distribution set forth therein.
4.2 Furnishing
of Information. As long as any Purchaser owns Shares and the Company remains
subject to the requirements of the Exchange Act, the Company covenants to
timely
file (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date
hereof pursuant to the Exchange Act. As long as any Purchaser owns Shares,
if
the Company is not required to file reports pursuant to the Exchange Act,
it
will prepare and furnish to the Purchasers and make publicly available in
accordance with Rule 144(c) such information as is required for the Purchasers
to sell the Shares under Rule 144. The Company further covenants that it
will
take such further action as any holder of Shares may reasonably request,
to the
extent required from time to time to enable such Person to sell such Shares
without registration under the Securities Act within the requirements of
the
exemption provided by Rule 144.
4.3 Securities
Laws Disclosure; Publicity. The Company shall, by 8:30 a.m. (New York City
time) on the Trading Day immediately following the date hereof, file a Current
Report on Form 8-K, disclosing the material terms of the transactions
contemplated hereby and filing the Transaction Documents as exhibits thereto.
The Company intends to and may issue press releases with respect to the
transactions contemplated hereby without the prior consent of each Purchaser.
Notwithstanding the foregoing, the Company shall not publicly disclose the
name
of any Purchaser, or include the name of any Purchaser in any filing with
the
Commission or any regulatory agency or Trading Market, without the prior
written
consent of such Purchaser, except (i) as required by federal securities law
in
connection with (A) any registration statement contemplated by the Registration
Rights Agreement, (B) the Current Report on Form 8-K required by this Section
4.3, (C) any filing required by the Commission and (D) the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (ii) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with
prior
notice of such disclosure permitted under this clause (ii).
No
Purchaser shall issue any press release or otherwise make any public statement
with respect to the transactions contemplated hereby without the prior consent
of the Company, which consent shall not unreasonably be withheld or delayed,
except if such disclosure is required by law, in which case the Purchaser
shall
promptly provide the Company with prior notice of such public statement or
communication.
4.4 Use
of
Proceeds. The Company shall use the net proceeds from the sale of the Shares
hereunder for general corporate working capital purposes, including repayment
of
any portion of the Company’s debt, funding working capital, capital
expenditures, sales and marketing expenditures, and investments in new product
development.
4.5 Indemnification
of Purchasers. Subject to the provisions of this Section 4.5, the Company
will indemnify and hold each Purchaser and its directors, officers,
shareholders, members, partners, employees, and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), (each, a “Purchaser
Party”) harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation (collectively, “Damages”) that any such Purchaser Party may suffer
or incur as a result of or relating to (a) any breach of any of the
representations, warranties, covenants or agreements made by the Company
in this
Agreement or in the other Transaction Documents or (b) any action instituted
against a Purchaser Party, or any of them or their respective Affiliates,
by any
stockholder of the Company who is not an Affiliate of such Purchaser Party,
with
respect to any of the transactions contemplated by the Transaction Documents
(unless such action is based upon a breach of a Purchaser’s representations,
warranties or covenants under the Transaction Documents or any agreements
or
understandings such Purchaser may have with any such stockholder or any
violations by the Purchaser Party of state or federal securities laws or
any
conduct by such Purchaser Party which constitutes fraud, gross negligence,
willful misconduct or malfeasance). If any action shall be brought against
any
Purchaser Party in respect of which indemnity may be sought pursuant to this
Agreement, such Purchaser Party shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof with counsel
of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser
Party shall have the right to employ separate counsel in any such action
and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Purchaser Party except to the extent that
(i)
the employment thereof has been specifically authorized by the Company in
writing, (ii) the Company has failed after a reasonable period of time to
assume
such defense and to employ counsel or (iii) in such action there is, in the
reasonable opinion of such separate counsel, a material conflict on any material
issue between the position of the Company and the position of such Purchaser
Party, in which case, the Company shall be responsible for the reasonable
fees
and expenses of no more than one such separate counsel. The Company will
not be
liable to any Purchaser Party under this Agreement (i) for any settlement
by a
Purchaser Party effected without the Company’s prior written consent, which
shall not be unreasonably withheld or delayed; or (ii) to the extent, but
only
to the extent that a loss, claim, damage or liability is attributable to
(A)
any
Purchaser Party’s breach of any of the representations, warranties, covenants or
agreements made by such Purchaser Party in this Agreement or in the other
Transaction Documents,
(B)
any
violations by the Purchaser of state or federal securities laws or
(C)
any
conduct by such Purchaser which constitutes fraud, gross negligence, willful
misconduct or malfeasance.
Notwithstanding anything in this Agreement to the contrary, in no event shall
the Company be liable to or be obligated to indemnify, any Purchaser or its
directors, officers, shareholders, members, partners, employees, and agents
(and
any other Persons with a functionally equivalent role of a Person holding
such
titles notwithstanding a lack of such title or any other title) for Damages
in
an amount in excess of such Purchaser’s Subscription Amount.
4.6 Form
D; Blue Sky Filings. The Company shall timely file a Form D with respect to
the Shares as required under Regulation D under the Securities Act and to
provide a copy thereof, promptly upon request of any Purchaser. The Company
shall take such action as the Company shall reasonably determine is necessary
in
order to obtain an exemption for, or to qualify the Shares for, sale to the
Purchasers at the Closing under applicable securities or “Blue Sky” laws of the
states of the United States, and shall provide evidence of such actions promptly
upon request of any Purchaser. Each Purchaser shall take all commercially
reasonable actions that are reasonably requested by the Company related to,
or
to effectuate, the filing of a Form D or any filing required pursuant to
the
“Blue Sky” laws of the states of the United States which, for purposes of
clarity, shall not include the payment of any fees by such
Purchaser.
4.7 Registration
of Shares. As
promptly as possible following the Closing Date, the Company shall use its
commercially reasonable efforts to prepare and file with the Commission a
Registration Statement on Form S-3 covering the resale of the Shares, and
upon
such filing, the Company shall use its commercially reasonable efforts to
cause
the Registration Statement to be declared effective under the Securities
Act as
promptly as possible after the filing thereof, all in accordance with the
terms
and conditions of that certain Registration Rights Agreement, dated as of
the
date hereof, by and among the Company and the Purchasers.
ARTICLE
V.
MISCELLANEOUS
5.1 Fees
and Expenses. Except
as
expressly set forth in the Transaction Documents to the contrary, each party
shall pay the fees and expenses of its advisers, counsel, accountants and
other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees, stamp taxes and other taxes
and
duties levied in connection with the delivery of any Shares to the
Purchasers.
5.2 Entire
Agreement. The Transaction Documents and all of the confidentiality
agreements by and between the Company and the Purchasers listed on Schedule
3.1(k), together with the exhibits and schedules thereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.3 Notices.
Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto prior to 5:30 p.m. (New York City time)
on a
Trading Day, (b) the next Trading Day after the date of transmission, if
such
notice or communication is delivered via facsimile at the facsimile number
set
forth on the signature pages attached hereto on a day that is not a Trading
Day
or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the
second
Trading Day following the date of mailing, if sent by internationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom
such
notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
5.4 Amendments;
Waivers. No provision of this Agreement may be waived or amended except in a
written instrument signed, in the case of an amendment, by the Company and
all
of the Purchasers or, in the case of a waiver, by the party against whom
enforcement of any such waived provision is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement
shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof,
nor
shall any delay or omission of any party to exercise any right hereunder
in any
manner impair the exercise of any such right.
5.5 Headings.
The headings herein are for convenience only, do not constitute a part of
this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties and their successors and permitted assigns. The Company may
not
assign this Agreement or any rights or obligations hereunder without the
prior
written consent of the Purchasers. Any Purchaser may assign any or all of
its
rights under this Agreement to any Person to whom such Purchaser assigns
or
transfers any Shares, provided such transferee agrees in writing to be bound,
with respect to the transferred Shares, by the provisions of the Transaction
Documents that apply to the “Purchasers.”
5.7 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and
is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person.
5.8 Governing
Law. All questions concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by and construed
and enforced in accordance with the internal laws of the Commonwealth of
Massachusetts, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations,
enforcement, and defense of the transactions contemplated by this Agreement
and
any other Transaction Documents (whether brought against a party hereto or
its
respective affiliates, directors, officers, shareholders, employees, or agents)
shall be commenced exclusively in the state and federal courts sitting in
the
Commonwealth of Massachusetts. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the City
of
Boston for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein (including
with
respect to the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal
service
of process and consents to process being served in any such suit, action
or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. The parties hereby waive all rights
to a
trial by jury. If either party shall commence an action or proceeding to
enforce
any provisions of the Transaction Documents, then the prevailing party in
such
action or proceeding shall be reimbursed by the other party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
5.9 Survival.
The representations and warranties contained herein shall survive the Closing
and the delivery of the Shares
until
the 6 month anniversary of the Closing Date.
5.10 Execution.
This Agreement may be executed in two or more counterparts, all of which
when
taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered
to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on
whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
5.11 Severability.
If any term, provision, covenant or restriction of this Agreement is held
by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the
same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that
may be
hereafter declared invalid, illegal, void or unenforceable.
5.12 Remedies.
In addition to being entitled to exercise all rights provided herein or granted
by law, including recovery of damages, each of the Purchasers and the Company
will be entitled to specific performance under the Transaction Documents.
The
parties agree that monetary damages may not be adequate compensation for
any
loss incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agrees to waive and not to assert in any
action
for specific performance of any such obligation the defense that a remedy
at law
would be adequate.
5.13 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each
Purchaser under any Transaction Document are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible
in any
way for the performance or non-performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in
any
other Transaction Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a
group
with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Purchaser shall be entitled to independently
protect
and enforce its rights, including without limitation, the rights arising
out of
this Agreement or out of the other Transaction Documents, and it shall not
be
necessary for any other Purchaser to be joined as an additional party in
any
proceeding for such purpose. Each Purchaser has been represented by its own
separate legal counsel in their review and negotiation of the Transaction
Documents.
5.14 Construction.
The parties agree that each of them and/or their respective counsel has reviewed
and had an opportunity to revise the Transaction Documents and, therefore,
the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories
as of
the date first indicated above.
|
PRESSURE
BIOSCIENCES INC.
|
|
Address
for Notice:
|
|
By:
/s/
Richard T. Schumacher
Name:
Richard T. Schumacher
Title:
President and Chief Executive Officer
|
|
321
Manley Street
West
Bridgewater, MA 02379
Facsimile:
(508) 580-1110
Attention:
Richard T. Schumacher
|
| |
|
|
|
With
a copy to (which shall not constitute notice):
Pepper
Hamilton LLP
101
Federal Street
Suite
1010
Boston,
MA 02110
Facsimile:
617-956-4351
Attention:
Steven R London
|
|
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO PRESSURE BIOSCIENCES, INC. SECURITIES PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the
date
first indicated above.
Name
of
Purchaser:
___________________________________________________________________________
Signature
of Authorized Signatory of Purchaser:
________________________________________________________
Name
of
Authorized Signatory:
__________________________________________________________________________
Title
of
Authorized Signatory:
___________________________________________________________________________
Email
Address of Purchaser:
______________________________________________________________________
Fax
Number of Purchaser:
______________________________________________________________________
Address
for Notice of Purchaser:
Address
for Delivery of Shares for Purchaser (if not same as address for
notice):
Subscription
Amount: $__________________
Shares:
_______________________
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]