EXHIBIT 10.1
ALPHA INNOTECH
CORP.
SECURITIES PURCHASE
AGREEMENT
This S ECURITIES P URCHASE A GREEMENT (this “Agreement”), is made and
entered into as of July __, 2006, by and among Alpha Innotech
Corp., a Delaware corporation (the “Company”), and the
purchasers listed on Schedule A attached hereto (collectively, the
“Purchasers” and individually, a
“Purchaser”).
1. Authorization of Sale of the
Securities . Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of (i) the
senior convertible notes of the Company in the form attached hereto
as Exhibit A (together with any senior convertible notes issued in
replacement thereof in accordance with the terms thereof, the
“Notes”), which Notes shall be convertible into shares
of the Company’s Common Stock, par value $0.01 per share (the
“Common Stock”), in accordance with the terms of the
Note, as well as (ii) warrants to purchase Common Stock of the
Company in the form attached hereto as Exhibit B (the
“Warrants”). The Notes, the Warrants and the securities
issuable upon conversion or exercise thereof (the “Conversion
Shares”) are hereinafter referred to as the
“Securities”.
2. Agreement to Sell and Purchase
the Securities .
2.1 Purchase and Sale .
Subject to the terms and conditions of this Agreement, each
Purchaser severally agrees to purchase, and the Company agrees to
sell and issue to each Purchaser, at the Closing (as defined below)
a principal amount of Notes and a Warrant to purchase that number
of shares of Common Stock set forth opposite such Purchaser’s
name on Schedule A attached hereto.
2.2 Purchase Price . The
purchase price for each Purchaser (the “Purchase
Price”) of the Notes to be purchased by each such Purchaser
at the Closing shall be equal to 100% of principal amount of Notes
being purchased by such Purchaser at the Closing.
2.3 Form of Payment . On the
Closing Date, (i) each Purchaser shall pay its Purchase Price
to the Company for the Notes to be issued and sold to such
Purchaser at the Closing, by wire transfer of immediately available
funds in accordance with the Company’s written wire
instructions, and (ii) the Company shall deliver to each
Purchaser the Notes (in the principal amounts as such Purchaser
shall request or, if no such request is made, a single Note with a
principal amount equal to the aggregate principal amount of Notes
to be purchased by such Purchaser) which such Purchaser is then
purchasing, and a Warrant duly executed on behalf of the Company
and registered in the name of such Purchaser or its
designee.
2.4 Closing Date .
The Closing shall occur on the date hereof (the “Closing
Date”).
2.5 Legends . Certificates
evidencing the Securities will contain the following legend, as
applicable, until such time as they are not required:
[NEITHER THESE SECURITIES NOR THE
SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED]
[THESE SECURITIES HAVE 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.
3. Representations, Warranties
and Covenants of the Company . The Company hereby represents
and warrants to the Purchasers as follows:
3.1 Organization . The
Company is duly organized and validly existing in good standing
under the laws of the jurisdiction of its organization. Each of the
Company and its Subsidiaries (as defined in Rule 405 under the
Securities Act) has full power and authority to own, operate and
occupy its properties and to conduct its business as presently
conducted and as described in the documents filed by the Company
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), since the end of its most recently
completed fiscal year through the date hereof (the “Exchange
Act Documents”) and is registered or qualified to do business
and in good standing in each jurisdiction in which the nature of
the business conducted by it or the location of the properties
owned or leased by it requires such qualification and where the
failure to be so qualified would have a material adverse effect
upon the condition (financial or otherwise) of the Company and its
Subsidiaries, considered as one enterprise (a “Material
Adverse Effect”), and no proceeding has been instituted in
any such jurisdiction, revoking, limiting or curtailing, or seeking
to revoke, limit or curtail, such power and authority or
qualification.
3.2 Due Authorization and Valid
Issuance . The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement
and each of the documents, agreements or instruments entered into
in connection with the transactions contemplated by this Agreement
(the “Transaction Documents”), and the Transaction
Documents have been duly authorized and validly executed and
delivered by the Company and constitute legal, valid and binding
agreements of the Company enforceable against the Company in
accordance with their terms, except as rights to indemnity and
contribution may be limited by state or federal securities laws or
the public policy underlying such laws. The issuance of the Notes
and the Warrants is duly authorized and, upon issuance of the Notes
and the Warrants in accordance with the terms hereof, the Notes and
the Warrants shall be free from all taxes, liens and charges with
respect to the issue thereof. As of the Closing, a number of shares
of Common Stock shall have been duly authorized and reserved for
issuance equal to the maximum number of shares issuable upon
conversion of the Notes and exercise of the Warrants to be issued
at Closing. Upon conversion, exercise or issuance in accordance
with the Notes and the Warrants, the Conversion Shares will be
validly issued, fully-paid and nonassessable.
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3.3 Non-Contravention . The
execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby
will not (A) conflict with or constitute a violation of, or
default (with the passage of time or otherwise) under, (i) any
contract, agreement or other instrument filed or incorporated by
reference as an exhibit to any of the Exchange Act Documents (any
such contract, agreement or instrument, an “Exchange Act
Exhibit”); (ii) the charter, by-laws or other
organizational documents of the Company or any Subsidiary; or
(iii) any law, administrative regulation, ordinance or order
of any court or governmental agency, arbitration panel or authority
applicable to the Company or any Subsidiary or their respective
properties, except in the case of clauses (i) and
(iii) for any such conflicts, violations or defaults which are
not reasonably likely to have a Material Adverse Effect or
(B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever
upon any of the material properties or assets of the Company or any
Subsidiary (except as contemplated hereby) or an acceleration of
indebtedness pursuant to any obligation, agreement or condition
contained in any Exchange Act Exhibit. Except for (i) the
filing of a Form 8-K in connection with the transactions
contemplated by the Transaction Documents, and (ii) the
Registration Statement, Form D and any related state “Blue
Sky” filings required to be filed with respect to the
Securities pursuant to Section 6 hereof, no consent, approval,
authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other
governmental body in the United States or any other person is
required for the execution and delivery of the Transaction
Documents, and the valid issuance and sale of the Securities to be
sold pursuant to this Agreement, and the valid issuance of the
Conversion Shares in accordance with the Notes, other than such as
have been made or obtained, and except for any post-closing
securities filings or notifications required to be made under
federal or state securities laws.
3.4 Capitalization . The
capitalization of the Company as of March 31, 2006 (or the
most recently quarterly or annual report filed with the Commission,
if applicable) is as set forth in the most recent applicable
Exchange Act Documents, increased as set forth in the next
sentence. The outstanding shares of capital stock of the Company
have been duly and validly issued and are fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities. Except as set forth in or contemplated by the Exchange
Act Documents, there are no outstanding rights (including, without
limitation, preemptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any unissued
shares of capital stock or other equity interest in the Company or
any Subsidiary, or any contract, commitment, agreement,
understanding or arrangement of any kind to which the Company is a
party or of which the Company has knowledge and relating to the
issuance or sale of any capital stock of the Company or any
Subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options. No further approval or
authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the
Securities. The Company owns the entire equity interest in each of
its Subsidiaries, free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest, other than as
described in the Exchange Act Documents. Except as disclosed in the
Exchange Act Documents, there are no stockholders agreements,
voting agreements or other similar agreements with respect to the
Common Stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s
stockholders.
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3.5 Legal Proceedings . There
is no material legal or governmental proceeding pending or, to the
knowledge of the Company, threatened to which the Company or any
Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is subject that is not
disclosed in the Exchange Act Documents, and which proceeding,
individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect. There are no disagreements of any
kind presently existing, or reasonably anticipated by the Company
to arise between the accountants, auditors and lawyers formerly or
presently employed by the Company.
3.6 No Violations . Neither
the Company nor any Subsidiary is (i) in violation of its
charter, bylaws, or other organizational document, (ii) in
violation of any law, administrative regulation, ordinance or order
of any court or governmental agency, arbitration panel or authority
applicable to the Company or any Subsidiary, which violation,
individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect, or (iii) in default (and there
exists no condition which, with the passage of time or otherwise,
would constitute a default) in any material respect in the
performance of any Exchange Act Exhibit, which would be reasonably
likely to have a Material Adverse Effect.
3.7 Governmental Permits, Etc
. Each of the Company and its Subsidiaries has all necessary
franchises, licenses, certificates and other authorizations from
any foreign, federal, state or local government or governmental
agency, department, or body that are currently necessary for the
operation of the business of the Company and its Subsidiaries as
currently conducted and as described in the Exchange Act Documents
except where the failure to currently possess could not reasonably
be expected to have a Material Adverse Effect.
3.8 Intellectual Property .
Except as specifically disclosed in the Exchange Act Documents
(i) each of the Company and its Subsidiaries owns or possesses
sufficient rights to use all material patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets, trade
names and know-how (collectively, “Intellectual
Property”) described or referred to in the Exchange Act
Documents as owned or possessed by it or that are necessary for the
conduct of its business as now conducted or as proposed to be
conducted as described in the Exchange Act Documents except where
the failure to currently own or possess would not have a Material
Adverse Effect, (ii) to the knowledge of the Company, neither
the Company nor any of its Subsidiaries is infringing any rights of
a third party with respect to any Intellectual Property that,
individual or in the aggregate, would have a Material Adverse
Effect, (iii) neither the Company nor any of its Subsidiaries
has received any notice of, or has any knowledge of, any asserted
infringement by the Company or any of its Subsidiaries of, any
rights of a third party with respect to any Intellectual Property
that, individually or in the aggregate, would have a Material
Adverse Effect if determined adversely to the Company and
(iv) neither the Company nor any of its Subsidiaries has
received any notice of, or has any knowledge of, infringement by a
third party with respect to any Intellectual Property rights of the
Company or of any Subsidiary that, individually or in the
aggregate, would have a Material Adverse Effect.
3.9 Exchange Act Documents;
Financial Statements . The Company has filed all Exchange Act
Documents required for the twelve months preceding the Closing Date
on a timely basis or has timely filed a valid extension of such
time of filing and has filed any such Exchange Act Documents prior
to the expiration of any such extension. As of their respective
dates, the
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Exchange Act Documents complied in all material
respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, and none of the
Exchange Act Documents, 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 light of the circumstances under which they were made,
not misleading. The financial statements of the Company and the
related notes contained in the Exchange Act Documents present
fairly, in accordance with generally accepted accounting
principles, the financial position of the Company and its
Subsidiaries as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified
consistent with the books and records of the Company and its
Subsidiaries except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments
which are not expected to be material in amount. Such financial
statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods therein specified, except
as may be disclosed in the notes to such financial statements, or
in the case of unaudited statements, as may be permitted by the SEC
on Form 10-QSB under the Exchange Act and except as disclosed
in the Exchange Act Documents. The other financial information
contained in the Exchange Act Documents has been prepared on a
basis consistent with the financial statements of the
Company.
3.10 No Material Adverse
Change . Except as disclosed in the Exchange Act Documents,
since March 31, 2006 or the last quarterly or annual report of
the Company, there has not been (i) any event affecting the
Company or its Subsidiaries that has had a Material Adverse Effect,
(ii) any obligation, direct or contingent, that is material to
the Company and its Subsidiaries considered as one enterprise,
incurred by the Company, except obligations incurred in the
ordinary course of business, (iii) any dividend or
distribution of any kind declared, paid or made on the capital
stock of the Company or any of its Subsidiaries, or (iv) any
loss or damage (whether or not insured) to the physical property of
the Company or any of its Subsidiaries which has been sustained
which has a Material Adverse Effect; provided, however, that
changes in the ordinary course of business, including but not
limited to the use of cash and increases in liabilities in the
ordinary course of business, shall not be deemed to be a material
adverse change or to have a Material Adverse Effect.
3.11 No Manipulation of Stock
. The Company has not taken and will not, in violation of
applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the
sale or resale of the Notes, the Warrants or the Conversion
Shares.
3.12 Foreign Corrupt
Practices. Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company,
has (i) directly or indirectly, used any corrupt funds for
unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity,
(ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic
political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the
Company (or made by any person acting on its behalf of which the
Company is aware) which is in violation of law, or
(iv) violated in any material respect any provision of the
Foreign Corrupt Practices Act of 1977, as amended.
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3.13 Taxes . The Company has
filed all necessary federal, state and foreign income and franchise
tax returns and has paid or accrued all taxes shown as due thereon,
except where failure to so file or to so pay would not have a
Material Adverse Effect and the Company has no knowledge of a tax
deficiency which has been or might be asserted or threatened
against it which would have a Material Adverse Effect.
3.14 Private Offering .
Assuming the correctness of the representations and warranties of
the Purchasers set forth in Section 4 hereof, the offer and
sale of Notes and the Warrants hereunder is and, in accordance with
the terms of the Notes and Warrants, the issuance of the Conversion
Shares will be exempt from registration under the Securities Act.
The Company has not distributed and will not distribute prior to
the Closing Date any offering material in connection with this
Offering and sale of the Securities other than the Transaction
Documents of which this Agreement is a part or the Exchange Act
Documents. The Company has not in the past nor will it hereafter
take any action to sell, offer for sale or solicit offers to buy
any securities of the Company which would bring the offer, issuance
or sale of the Securities as contemplated by this Agreement, or the
issuance of the Conversion Shares in accordance with the terms of
the Notes, within the provisions of Section 5 of the
Securities Act, unless such offer, issuance or sale was or shall be
within the exemptions of Section 4 of the Securities Act.
Neither the Company nor any person acting on behalf of the Company
has offered or sold any of the Securities by any form of general
solicitation or general advertising. The Company has offered the
Securities for sale only to the Purchasers and certain other
“accredited investors” within the meaning of Rule 501
under the Securities Act.
3.15 Consents and Waivers of
Senior Debt . The Company has obtained any and all consents and
waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement, including but not
limited to the consent of the Senior Debt holders.
4. Representations, Warranties
and Covena
