Attached files
| file | filename |
|---|---|
| 8-K - Xtant Medical Holdings, Inc. | v189505_8k.htm |
| EX-3.1 - Xtant Medical Holdings, Inc. | v189505_ex3-1.htm |
| EX-2.1 - Xtant Medical Holdings, Inc. | v189505_ex2-1.htm |
| EX-4.1 - Xtant Medical Holdings, Inc. | v189505_ex4-1.htm |
| EX-99.1 - Xtant Medical Holdings, Inc. | v189505_ex99-1.htm |
EXHIBIT
10.1
COMMON
STOCK OFFERING
SUBSCRIPTION
AGREEMENT
As of
June 4, 2010
Mr. Guy
S. Cook
Chief
Executive Officer and President
Bacterin
International, Inc.
600
Cruiser Lane
Belgrade,
MT 59714
Investors:
1.
Subscription; Escrow
Arrangement.
(a) The undersigned subscriber (the
“Subscriber”)
hereby irrevocably subscribes for and agrees to purchase that number of shares
of common stock (the “Common Stock”, or the
“Shares”) set
forth on the signature page hereto of a publicly-traded company (“Pubco”) which, as a
condition to the closing of the subscription hereunder, will acquire by reverse
triangular merger (the “Merger”) all of the
outstanding shares of capital stock of Bacterin International, Inc., a Nevada
corporation (the “Company”), and change
its name to “Bacterin International Holdings, Inc.” (the “Name Change”), along
with warrants to purchase additional Shares (the “Warrants”) in the
form of Exhibit
A hereto (each a “Warrant” and together
with the Shares, the “Securities”), in
connection with the offering of a minimum of $7,000,000 (“Minimum Offering
Amount”) in Securities for cash, all subject to the Company’s right to
sell up to an additional $5,000,000 of Shares (the “Offering”). This
Subscription Agreement (this “Subscription
Agreement”) together with the Exhibits and the Company’s Confidential
Private Placement Memorandum dated June 2010 constitute the “Offering
Documents”.
This
subscription is based upon the information provided in the Offering Documents,
audited financial statements for the period ended December 31, 2009, unaudited
financial statements for the period ended March 31, 2010, and upon the
Subscriber’s own investigation as to the merits and risks of this
investment. The Subscriber shall deliver herewith duly executed copies of
the signature pages to the following documents: (i) the Subscription Agreement,
(ii) the Accredited Investor Questionnaire & Form W-9 (and W-8BEN, if
applicable), and (iii) the Registration Rights Agreement.
The
closing of the purchase of the Securities shall occur upon the earlier of the
consummation of the Merger or June 16, 2010, which date may be extended by the
Company and the Placement Agent (as defined in Section 3(h)) for up to an
additional 30 days (the “Closing” and such
date the “Closing
Date”).
Pubco
shall deliver PDF copies of all Common Stock share certificates and Warrants to
the Subscribers on the Closing Date or, if later, immediately following the
effectiveness of the Name Change. Pubco will deliver originally executed
instruments representing the Subscriber’s Securities promptly following the
Closing Date or, if later, the effectiveness of the Name Change.
(b)
Subject to the terms and conditions
hereinafter set forth, the Subscriber hereby subscribes for and agrees to
purchase the number of Shares set forth on the signature page hereto at a price
per share of $0.80 (the “Purchase Price”), and
when this Agreement is accepted and executed by the Company, the Company agrees
to issue such Securities to the Subscriber. The subscription price is
payable by wire transfer to “TD Bank, Wilmington Delaware, as Escrow Agent for
Bacterin Middlebury Escrow Account.” pursuant to the following wire
instructions.
WIRING
INSTRUCTIONS
|
Bank’s
Name and Address:
|
TD
Bank, Wilmington Delaware
|
|
Name
of Account:
|
Bacterin
Middlebury Escrow Account
|
|
Account
#:
|
4245010973
|
|
ABA
Routing #:
|
031101266
|
|
International
Swift Code:
|
NRTHUS33
|
Provided
that (i) the Subscriber has satisfied all conditions set forth herein, (ii)
Pubco has accepted and executed this Subscription Agreement, and (iii) the
Merger has been consummated, the Securities purchased by the Subscriber will be
delivered by Pubco promptly following the Closing Date or, if later, the Name
Change. In the event that a closing does not occur, Subscriber’s funds
will be returned by Escrow Agent to the Subscriber.
2.. Subscriber Representations,
Warranties and Agreements. The Subscriber hereby acknowledges, represents
and warrants as follows (with the understanding that the Company will rely on
such representations and warranties in determining, among other matters, the
suitability of this investment for the Subscriber in order to comply with
federal and state securities laws):
(a)
In connection with this subscription, the Subscriber has read the Offering
Materials, the Company’s audited financial statements for the period ended
December 31, 2009, and the Company’s unaudited financial statements for the
period ended March 31, 2010. The Subscriber acknowledges that these are
not intended to set forth all of the information which might be deemed pertinent
by an investor who is considering an investment in the Securities. It is
the responsibility of the Subscriber (i) to determine what additional
information he desires to obtain in evaluating this investment and (ii) to
obtain such information from the Company.
2
(b) This
Offering is limited to persons who are “accredited investors,” as that term is
defined in Regulation D under the Securities Act of 1933, as amended (the “Act”), and who have
the financial means and the business, financial and investment experience and
acumen to conduct an investigation as to, and to evaluate, the merits and risks
of this investment. The Subscriber hereby represents that he has read, is
familiar with and understands Rule 501 of Regulation D under the Act. The
Subscriber is an “accredited investor” as defined in Rule 501(a) of Regulation
D.
(c) The
Subscriber has had full access to all the information which the Subscriber (or
the Subscriber’s advisor) considers necessary or appropriate to make an informed
decision with respect to the Subscriber’s investment in the Securities.
The Subscriber acknowledges that the Company has made available to the
Subscriber and the Subscriber’s advisors the opportunity to examine and copy any
contract, matter or information which the Subscriber considers relevant or
appropriate in connection with this investment and to ask questions and receive
answers relating to any such matters including, without limitation, the
financial condition, management, employees, business, obligation, corporate
books and records, budgets, business plans of and other matters relevant to the
Company. To the extent the Subscriber has not sought information regarding
any particular matter, the Subscriber represents that he or she had and has no
interest in doing so and that such matters are not material to the Subscriber in
connection with this investment. The Subscriber has accepted the
responsibility for conducting the Subscriber’s own investigation and obtaining
for itself such information as to the foregoing and all other subjects as the
Subscriber deems relevant or appropriate in connection with this
investment. The Subscriber is not relying on any representation other than
that contained herein. The Subscriber acknowledges that no representation
regarding projected revenues or a projected rate of return has been made to it
by any party.
(d)
The Subscriber understands that the Offering of the Securities has not been
registered under the Act, in reliance on an exemption for private offerings
provided pursuant to Section 4(2) of the Act and that, as a result, the
Securities will be “restricted securities” as that term is defined in Rule 144
under the Act and, accordingly, under Rule 144 as currently in effect, that the
Securities must be held for at least twelve months after the investment has been
made (or indefinitely if the Subscriber is deemed an “affiliate” within the
meaning of such rule) unless the Securities are subsequently registered under
the Act and qualified under any other applicable securities law or exemptions
from such registration and qualification are available. Except as set
forth herein, the Subscriber understands that Pubco is under no obligation to
register the Securities under the Act or to register or qualify the Securities
under any other applicable securities law, or to comply with any other exemption
under the Act or any other securities law, and that the Subscriber has no right
to require such registration. The Subscriber further understands that the
Offering of the Securities has not been qualified or registered under any
foreign or state securities laws in reliance upon the representations made and
information furnished by the Subscriber herein and any other documents delivered
by the Subscriber in connection with this subscription; that the Offering has
not been reviewed by the SEC or by any foreign or state securities authorities;
that the Subscriber’s rights to transfer the Securities will be restricted,
which includes restrictions against transfers unless the transfer is not in
violation of the Act and applicable state securities laws (including investor
suitability standards); and that Pubco may in its sole discretion require the
Subscriber to provide at the Subscriber’s own expense an opinion of its counsel
to the effect that any proposed transfer is not in violation of the Act or any
state securities laws.
3
(e)
The Subscriber is empowered and duly authorized to enter into this Subscription
Agreement which constitutes a valid and binding agreement of the Subscriber
enforceable against the Subscriber in accordance with its terms; and the person
signing this Subscription Agreement on behalf of the Subscriber is empowered and
duly authorized to do so.
(f) The
Subscriber acknowledges that there will be no market for the Securities and that
the Subscriber may not be able to sell or dispose of them; the Subscriber has
liquid assets sufficient to assure that the purchase price of the Securities
will cause no undue financial difficulties and that, after purchasing the
Securities the Subscriber will be able to provide for any foreseeable current
needs and possible personal contingencies; the Subscriber is able to bear the
risk of illiquidity and the risk of a complete loss of this
investment.
(g)
The information in any documents delivered by the Subscriber in connection with
this subscription, including, but not limited to the Investor Questionnaire
attached as Exhibit
B hereto, is true, correct and complete in all respects as of the date
hereof. The Subscriber agrees promptly to notify the Company in writing of
any change in such information after the date hereof.
(h)
The offering and sale of the Securities to the Subscriber were not made through
any advertisement in printed media of general and regular paid circulation,
radio or television or any other form of advertisement, or as part of a general
solicitation.
(i) The
Subscriber recognizes that an investment in the Securities involves significant
risks, which risks could give rise to the loss of the Subscriber’s entire
investment in such Securities.
(j) The
Subscriber is acquiring the Securities, as principal, for the Subscriber’s own
account for investment purposes only, and not with a present intention toward or
for the resale, distribution or fractionalization thereof, and no other person
has a beneficial interest in the Securities. The Subscriber has no present
intention of selling or otherwise distributing or disposing of the Securities,
and understands that an investment in the Securities must be considered a
long-term illiquid investment.
3.
Representations and Warrants
of the Company. As a material inducement of the Subscribers to
enter into this Subscription Agreement and subscribe for the Securities, the
Company represents and warrants to the Subscriber, as of the date hereof, as
follows:
4
(a)
Organization and
Standing. The Company is a duly organized corporation, validly
existing and in good standing under the laws of the State of Nevada, has full
power to carry on its business as and where such business is now being conducted
and to own, lease and operate the properties and assets now owned or operated by
it and is duly qualified to do business and is in good standing in each
jurisdiction where the conduct of its business or the ownership of its
properties requires such qualification except where the failure to be so
qualified would not have a Material Adverse Effect on the Company. “Material Adverse
Effect” means any circumstance, change in, or effect on the Company that,
individually or in the aggregate with any other similar circumstances, changes
in, or effects on, the Company taken as a whole: (i) is, or is reasonably
expected to be, materially adverse to the business, operations, assets,
liabilities, employee relationships, customer or supplier relationships,
prospects, results of operations or the condition (financial or otherwise) of
the Company taken as a whole, or (ii) is reasonably expected to adversely affect
the ability of the Company to operate or conduct the Company’s business in the
manner in which it is currently operated or conducted or proposed to be operated
or conducted by the Company.
(b)
Authority. The
execution, delivery and performance of this Subscription Agreement and the
Offering Documents by the Company and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of the
Company.
(c)
No
Conflict. The execution, delivery and performance of this
Subscription Agreement and the consummation of the transactions contemplated
hereby do not (i) violate or conflict with the Company’s Articles of
Incorporation, as amended and as in effect as of the date hereof (the “Articles of
Incorporation”), the Company’s By-laws, as in effect as of the date
hereof (the “By-laws”) or other
organizational documents, (ii) conflict with or result (with the lapse of time
or giving of notice or both) in a material breach or default under any material
agreement or instrument to which the Company is a party or by which the Company
is otherwise bound, or (iii) violate any order, judgment, law, statute, rule or
regulation applicable to the Company, except where such violation, conflict or
breach would not have a Material Adverse Effect on the Company. This
Subscription Agreement when executed by the Company will be a legal, valid and
binding obligation of the Company enforceable in accordance with its terms
(except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws and equitable principles relating to or limiting creditors’
rights generally).
(d)
Authorization.
Issuance of the Securities to Subscriber has been duly authorized by all
appropriate corporate actions of the Company.
(e) Litigation and Other
Proceedings. Except as disclosed on Schedule 3(e) hereto,
there are no actions, suits, proceedings or investigations pending or, to the
knowledge of the Company, threatened against the Company at law or in equity
before or by any court or Federal, state, municipal or their governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign which could materially adversely affect the Company. The Company
is not subject to any continuing order, writ, injunction or decree of any court
or agency against it which would have a material adverse effect on the
Company.
(f)
Use of
Proceeds. The proceeds of this Offering and sale of the Securities,
net of payment of placement expenses, will be used by the Company for working
capital and other general corporate purposes pursuant to the restrictions set
forth in the Securities and on Schedule 3(f)
hereto.
5
(g)
Consents/Approvals.
No consents, filings (other than Federal and state securities filings relating
to the issuance of the Securities pursuant to applicable exemptions from
registration, which the Company hereby undertakes to make in a timely fashion),
authorizations or other actions of any governmental authority are required to be
obtained or made by the Company for the Company’s execution, delivery and
performance of this Subscription Agreement which have not already been obtained
or made or will be made in a timely manner following the Closing.
(h)
No
Commissions. The Company has not incurred any obligation for any
finder’s, broker’s or agent’s fees or commissions in connection with the
transaction contemplated hereby other than the placement agent fees payable to
Middlebury Securities, LLC, as placement agent (the “Placement Agent”) in
connection with the Offering.
(i) Capitalization.
A capitalization table illustrating the issued capital stock of the Company
immediately prior to the Merger and of Pubco immediately following the Merger
and the Closing of this Offering is attached as Schedule 3(i).
All of such outstanding shares have been, or upon issuance will be, validly
issued, fully paid and nonassessable. As of the date hereof, except as
disclosed in Schedule
3(i) or Schedule 3(n), (i) no
shares of the Company’s capital stock are subject to preemptive rights or any
other similar rights or any liens or encumbrances suffered or permitted by the
Company, there are no outstanding debt securities, there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any of its
subsidiaries is or may become bound to issue additional shares of capital stock
of the Company or any of its subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Company or any of its subsidiaries, (ii) there are no agreements or arrangements
under which the Company or any of its subsidiaries is obligated to register the
sale of any of their securities under the Securities Act of 1933, as amended
(“Securities
Act” or “1933
Act”), (iii) there are no outstanding securities of the Company or any of
its subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the
Company or any of its subsidiaries is or may become bound to redeem a security
of the Company or any of its subsidiaries, and (iv) there are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance or exercise of the Shares or Warrants as described in
this Subscription Agreement. The Company has furnished to the Subscriber
true and correct copies of the Articles of Incorporation, the By-laws, and the
terms of all securities convertible or exchangeable into or exercisable for
Common Stock and the material rights of the holders thereof in respect
thereto. Schedule 3(i) and
Schedule 3(n)
also list all outstanding debt of the Company with sufficient detail acceptable
to Subscriber.
6
(j)
Employee
Relations. Neither the Company nor any of its subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company or any of its
subsidiaries, is any such dispute threatened, the effect of which would be
reasonably likely to result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries is a party to a collective bargaining
agreement.
(k)
Intellectual
Property Rights. The Company and its subsidiaries own or possess adequate
rights or licenses to use all trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and
rights necessary to conduct their respective businesses as now conducted.
The Company and its subsidiaries do not have any knowledge of any infringement
by the Company or its subsidiaries of trademark, trade name rights, patents,
patent rights, copyrights, inventions, licenses, service names, service marks,
service mark registrations, trade secret or other similar rights of others, or
of any such development of similar or identical trade secrets or technical
information by others and, except as set forth on Schedule 3(k), there
is no claim, action or proceeding being made or brought against, or to the
Company’s knowledge, being threatened against, the Company or its subsidiaries
regarding trademarks, trade name rights, patents, patent rights, inventions,
copyrights, licenses, service names, service marks, service mark registrations,
trade secrets or other infringement.
(l)
Environmental
Laws. The Company and its subsidiaries (i) are to the Company’s
knowledge in compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“Environmental Laws”),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses, and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval where such noncompliance or failure to receive permits,
licenses or approvals referred to in clauses (i), (ii) or (iii) above could
have, individually or in the aggregate, a Material Adverse Effect.
(m)
Disclosure. To the Knowledge (as
defined below) of the Company and its subsidiaries at the time of the execution
of this Subscription Agreement, no representation or warranty by the Company in
this Subscription Agreement, the Offering Documents, nor in any certificate,
Schedule or Exhibit delivered or to be delivered pursuant to this Subscription
Agreement or the Offering Documents contains or will contain any untrue
statement of material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not
misleading. To the knowledge of the Company and its subsidiaries at the
time of the execution of this Subscription Agreement, there is no information
concerning the Company and its subsidiaries or their respective businesses which
has not heretofore been disclosed to the Subscribers that would have a Material
Adverse Effect. For purposes of this paragraph (m), “Knowledge” shall mean
the actual knowledge of the Company’s Chief Executive Officer, Chief Financial
Officer or General Counsel.
7
(n)
Title.
The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned
by them which is material to the business of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances and defects except such
as are described in Schedule 3(n) or such
as do not materially and adversely affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries. Any real property and facilities held
under lease by the Company or any of its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(o)
Insurance. The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent and customary in the businesses
in which the Company and its subsidiaries are engaged.
(p)
Regulatory
Permits. To the Company’s knowledge, the Company and its
subsidiaries possess all material certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities,
necessary to conduct their respective businesses, and neither the Company nor
any such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit.
(q)
Foreign Corrupt
Practices Act. To the Company’s knowledge, neither the Company, nor
any director, officer, agent, employee or other person acting on behalf of the
Company or any subsidiary has, in the course of acting for, or on behalf of, the
Company, directly or indirectly used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; directly or indirectly made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended, or any similar treaties of
the United States; or directly or indirectly made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government or party official or employee.
(r)
Tax
Status. The Company and each of its subsidiaries has made or filed
all United States federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject and all
such returns, reports and declarations are true, correct and accurate in all
material respects. The Company has paid all taxes and other governmental
assessments and charges, shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith, for which adequate
reserves have been established, in accordance with generally accepted accounting
principles.
(s) Compliance with Laws.
The business of the Company and its subsidiaries has been and is presently being
conducted so as to comply with all applicable material federal, state and local
governmental laws, rules, regulations and ordinances.
8
(t)
Employee Benefit
Plans; ERISA. Schedule 3(t) sets
forth a true, correct and complete list of all employee benefit plans, programs,
policies and arrangements, whether written or unwritten (the “Company Plans”), that
the Company, any subsidiary or any other corporation or business which is now or
at the relevant time was a member of a controlled group of companies or trades
or businesses including the Company or any subsidiary, within the meaning of
section 414 of the Internal Revenue Code of 1986, as amended (the “Code”), maintain or
have maintained on behalf of current or former members, partners, principals,
directors, officers, managers, employees, consultants or other personnel. There
has been no prohibited transaction within the meaning of Section 406 of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section
4975 of the Code, with respect to any of the Company Plans; none of the Company
Plans is or was subject to Section 412 of the Code or Section 302 or Title IV of
ERISA; and each of the Company Plans has been operated and administered in all
material respects in accordance with all applicable laws, including ERISA.
There are no actions, suits or claims pending or threatened (other than routine
claims for benefits), whether by participants, the Internal Revenue Service, the
Department of Labor or otherwise, with respect to any Company Plan and no facts
exist under which any such actions, suits or claims are likely to be brought or
under which the Company or any subsidiary could incur any liability with respect
to a Company Plan other than in the ordinary course. None of the
Company Plans is or was a multiemployer plan within the meaning of Section 3(37)
of ERISA. Neither the Company nor any subsidiary has announced, proposed or
agreed to any change in benefits under any Company Plan or the establishment of
any new Company Plan. There have been no changes in the operation or
interpretation of any Company Plan since the most recent annual report, which
would have any material effect on the cost of operating, maintaining or
providing benefits under such Company Plan. Neither the Company nor any
subsidiary has incurred any liability for the misclassification of employees as
leased employees or independent contractors. Except as provided for in this
Subscription Agreement and in the Offering Documents, the consummation of the
transactions contemplated by this Subscription Agreement, either alone or in
combination with another event, will not (i) result in any individual becoming
entitled to any increase in the amount of compensation or benefits or any
additional payment from the Company or any subsidiary (including, without
limitation, severance, golden parachute or bonus payments or otherwise), or (ii)
accelerate the vesting or timing of payment of any benefits or compensation
payable in respect of any individual.
(u)
Restrictions on
Business Activities. There is no judgment, order, decree, writ or
injunction binding upon the Company or any subsidiary or, to the knowledge of
the Company or any subsidiary, threatened that has or could prohibit or impair
the conduct of their respective businesses as currently conducted or any
business practice of the Company or any subsidiary, including the acquisition of
property, the provision of services, the hiring of employees or the solicitation
of clients, in each case either individually or in the aggregate.
(v)
Issuance of Shares
and/or Warrant Shares. The Shares and Warrant Shares are duly
authorized and reserved for issuance and, upon delivery of the Shares and/or
exercise of the Warrants, as applicable, in accordance with the terms thereof,
such Shares and/or Warrant Shares will be validly issued, fully paid and
non-assessable, free and clear of any and all liens, claims and encumbrances and
the holders of such Shares and/or Warrant Shares (as defined in the Warrant)
shall be entitled to all rights and preferences accorded to a holder of Common
Stock.
9
4.
Registration
Rights. Subscriber will have certain demand and “piggyback”
registration rights as set forth in the Registration Rights Agreement attached
as Exhibit
C hereto.
5.
Legends. The
Subscriber understands and agrees that Pubco will cause any necessary legends to
be placed upon any instruments(s) evidencing ownership of the Securities,
together with any other legend that may be required by federal or state
securities laws or deemed necessary or desirable by Pubco.
6.
General
Provisions.
(a) Confidentiality.
The Subscriber covenants and agrees that it will keep confidential and will not
disclose or divulge any confidential or proprietary information that such
Subscriber may obtain from Pubco or the Company pursuant to financial
statements, reports, and other materials submitted by Pubco or the Company to
such Subscriber in connection with this offering or as a result of discussions
with or inquiry made to Pubco or the Company, unless such information is known,
or until such information becomes known, to the public through no action by the
Subscriber; provided, however, that the
Subscriber may disclose such information to its attorneys, accountants,
consultants, and other professionals to the extent necessary in connection with
his or her investment in Pubco or the Company so long as any such professional
to whom such information is disclosed is made aware of the Subscriber’s
obligations hereunder and such professional agrees to be likewise bound as
though such professional were a party hereto.
(b) Successors. The
covenants, representations and warranties contained in this Subscription
Agreement shall be binding on the Subscriber’s, Pubco’s and the Company’s heirs
and legal representatives and shall inure to the benefit of the respective
successors and assigns of the parties. The rights and obligations of this
Subscription Agreement may not be assigned by any party without the prior
written consent of the other parties.
(c) Counterparts.
This Subscription Agreement may be executed in counterparts, each of which shall be deemed an original agreement, but all of which together shall constitute one and the same instrument.
(d) Execution by
Facsimile. Execution and delivery of
this Subscription Agreement by facsimile transmission (including the delivery of
documents in Adobe PDF format) shall constitute execution and delivery of this
Subscription Agreement for all purposes, with the same force and effect as
execution and delivery of an original manually signed copy
hereof.
10
(e)
Governing Law and
Jurisdiction. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts to be wholly performed within such state and without regard to
conflicts of laws provisions. Any legal action or proceeding arising out
of or relating to this Subscription Agreement and/or the Offering Documents may
be instituted in the courts of the State of New York sitting in New York County
or in the United States of America for the Southern District of New York, and
the parties hereto irrevocably submit to the jurisdiction of each such court in
any action or proceeding. The Subscriber hereby irrevocably waives and
agrees not to assert, by way of motion, as a defense, or otherwise, in every
suit, action or other proceeding arising out of or based on this Subscription
Agreement and/or the Offering Documents and brought in any such court, any claim
that Subscriber is not subject personally to the jurisdiction of the above named
courts, that Subscriber’s property is exempt or immune from attachment or
execution, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is
improper.
(f) (i) Indemnification
Generally. Pubco, on the one hand, and the Subscriber, on the other
hand (each an “Indemnifying Party”),
shall indemnify the other from and against any and all losses, damages,
liabilities, claims, charges, actions, proceedings, demands, judgments,
settlement costs and expenses of any nature whatsoever (including, without
limitation, reasonable attorneys’ fees and expenses) resulting from any breach
of a representation and warranty, covenant or agreement by the Indemnifying
Party and all claims, charges, actions or proceedings incident to or arising out
of the foregoing.
(ii) Indemnification
Procedures. Each person entitled to indemnification under this
Section 6(f) (an “Indemnified Party”)
shall give notice as promptly as reasonably practicable to each party required
to provide indemnification under this Section 6(f) of any action commenced
against or by it in respect of which indemnity may be sought hereunder, but
failure to so notify an Indemnifying Party shall not release such Indemnifying
Party from any liability that it may have, so long as such failure shall not
have materially prejudiced the position of the Indemnifying Party. Upon
such notification, the Indemnifying Party shall assume the defense of such
action if it is a claim brought by a third party, and, if and after such
assumption, the Indemnifying Party shall not be entitled to reimbursement of any
expenses incurred by it in connection with such action except as described
below. In any such action, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the contrary or (ii) the named
parties in any such action (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
or conflicting interests between them. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written consent
(which shall not be unreasonably withheld or delayed by such Indemnifying
Party), but if settled with such consent or if there be final judgment for the
plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and
against any loss, damage or liability by reason of such settlement or
judgment.
g.
Notices. All
notices, requests, demands, claims and other communications hereunder shall be
in writing and shall be delivered by certified or registered mail (first class
postage pre-paid), guaranteed overnight delivery, or facsimile transmission if
such transmission is confirmed by delivery by certified or registered mail
(first class postage pre-paid) or guaranteed overnight delivery, to the
following addresses and facsimile numbers (or to such other addresses or
facsimile numbers which such party shall subsequently designate in writing to
the other party):
11
(i) if
to Pubco or the Company:
Mr. Guy S. Cook
CEO and President
Bacterin International,
Inc.
600 Cruiser Lane
Belgrade, MT 59714
(ii) if
to the Subscriber to the address set forth next to its name on the signature
page hereto.
h. Entire
Agreement. This Subscription Agreement (including the Exhibits
attached hereto) and the Offering Documents delivered at the Closing pursuant
hereto, contain the entire understanding of the parties in respect of its
subject matter and supersedes all prior agreements and understandings between or
among the parties with respect to such subject matter. The Exhibits
constitute a part hereof as though set forth in full above.
i.
Amendment;
Waiver. This Subscription Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
both parties. No failure to exercise, and no delay in exercising, any
right, power or privilege under this Subscription Agreement shall operate as a
waiver, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude the exercise of any other right, power or
privilege. No waiver of any breach of any provision shall be deemed to be
a waiver of any proceeding or succeeding breach of the same or any other
provision, nor shall any waiver be implied from any course of dealing between
the parties. No extension of time for performance of any obligations or
other acts hereunder or under any other agreement shall be deemed to be an
extension of the time for performance of any other obligations or any other
acts. The rights and remedies of the parties under this Subscription
Agreement are in addition to all other rights and remedies, at law or equity,
that they may have against each other.
[SIGNATURE PAGE
FOLLOWS]
12
SIGNATURE PAGE TO COMMON
STOCK SUBSCRIPTION AGREEMENT
INFORMATION
IN RESPONSE TO THIS SECTION WILL BE KEPT STRICTLY CONFIDENTIAL
DOLLAR
AMOUNT INVESTED $_____________________________
NUMBER
OF SHARES PURCHAED (@ $0.80 PER SHARE)
______________________________
NAME IN WHICH SHARES AND WARRANTS
SHOULD BE ISSUED:
____________________________________________________
AMOUNT
INVESTED TO BE SENT VIA: o Check (enclosed)
o
Wire
Address
Information
For
individual subscribers this address should be the Subscriber’s primary legal
residence. For entities other than individual subscribers, please provide
address information for the entities primary place of business.
Information regarding a joint subscriber should be included in the column at
right.
|
Legal
Address
|
Legal
Address
|
|
|
City,
State, and Zip Code
|
City,
State, and Zip
Code
|
Alternate Address
Information
Subscribers
who wish to receive correspondence at an address other than the address listed
above should complete the Alternate Address section below.
|
Alternate
Address for Correspondence
|
Alternate
Address for Correspondence
|
|
|
City,
State and Zip Code
|
City,
State and Zip Code
|
|
|
Telephone
|
Telephone
|
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|
Facsimile
|
Facsimile
|
|
|
Tax
ID # or Social Security #
|
Tax
ID # or Social Security
#
|
|
AGREED
AND SUBSCRIBED
|
AGREED
AND SUBSCRIBED
|
|||
|
SIGNATURE
OF JOINT SUBSCRIBER (if any)
|
||||
|
This
__ day of June, 2010
|
This
__ day of June, 2010
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title
(if any):
|
Title
(if any):
|
|||
|
Subscriber
Name (Typed or Printed)
|
Additional
Subscriber Name (Typed or
Printed)
|
|||
[SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT]
CERTIFICATE
OF SIGNATORY
(To be
completed if the Shares and Warrants are
being
subscribed for by an entity)
I,____________________________, am
the_______________________________ of ____________ (the “Entity”).
I certify that I am empowered and duly
authorized by the Entity to execute and carry out the terms of the Subscription
Agreement and to purchase and hold the Shares and Warrants, and certify further
that the Subscription Agreement has been duly and validly executed on behalf of
the Entity and constitutes a legal and binding obligation of the
Entity.
IN WITNESS WHEREOF, I have set my hand
this ____ day of June, 2010.
|
|
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(Signature)
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[CERTIFICATE
OF SIGNATORY TO COMMON STOCK SUBSCRIPTION AGREEMENT]