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EXHIBIT 10.37
JANUARY BRIDGE NOTE CONVERSION AND WARRANT PURCHASE
AGREEMENT
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THIS JANUARY BRIDGE NOTE CONVERSION AND WARRANT PURCHASE
AGREEMENT
("Agreement") is made as of the 17th day of August, 2007 by and
among INTRAOP
MEDICAL CORPORATION, a Nevada corporation (the "Company") and
the persons listed
on Exhibit A attached hereto (each a "Holder" and collectively
the "Holders").
Recitals
A. The Holders hold 8% debentures issued by the Company on
January 10,
2007 in an aggregate principal amount of $771,430.37.
B. The Company and the Holders desire to retire such debentures
in
exchange for an aggregate cash payment of four hundred thousand
dollars
($400,000) and warrants to purchase an aggregate of 5,000,000
shares of the
Company's Common Stock.
C. This Agreement is being delivered in connection with the
Common
Stock and Warrant Purchase Agreement dated as of August 17, 2007
by and among
the Company and the other persons set forth on the schedule of
purchasers
attached thereto.
D. This Agreement shall be binding upon the Company and the
Holders
only upon delivery of the signatures pages hereto by the Company
and the
Holders.
Agreement
In consideration of the mutual promises made herein and for
other good
and valuable consideration, the receipt and sufficiency of which
are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and
elsewhere
in this Agreement, for the purposes of this Agreement, the
following terms shall
have the meanings set forth below:
"First Closing" shall have the meaning set forth in the
Purchase Agreement.
"January Bridge Notes" means the 8% debentures dated January
10, 2007 listed on Exhibit A attached hereto in the aggregate
principal amount
of $771,430.37.
"January Bridge Note Warrants" means warrants in
substantially
the form attached hereto as Exhibit B.
"January Bridge Note Warrant Shares" means the shares of the
Company's Common Stock issuable upon exercise of the January
Bridge Note
Warrants.
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"January Securities Purchase Agreement" means the Securities
Purchase Agreement dated as of January 10, 2007 by and among the
Company and the
Holders.
"Purchase Agreement" means the Common Stock and Warrant
Purchase Agreement dated as of August ___, 2007 by and among the
Company and the
other persons set forth on the schedule of purchasers attached
thereto.
"Second Closing" shall have the meaning set forth in the
Purchase Agreement.
"Securities" means the January Bridge Note Warrants and the
January Bridge Note Warrant Shares.
"Securities Act" means the Securities Act of 1933, as
amended,
and the rules and regulations promulgated thereunder.
2. Surrender and Cancellation of the January Bridge Notes.
2.1 Surrender and Cancellation of the January Bridge Notes.
Upon the terms and subject to the conditions set forth in this
Agreement, at the
First Closing, each Holder shall surrender to the Company the
January Bridge
Note held by such Holder marked "paid in full" in exchange for
(i) a cash
payment equal to the outstanding principal amount of the January
Bridge Note
held by such Holder multiplied by 0.518517 and (ii) a January
Bridge Note
Warrant to purchase that number of January Bridge Note Shares
equal to the
outstanding principal amount of the January Bridge Note held by
such Holder
multiplied by 6.481473, in complete satisfaction of all
principal and accrued
interest under such January Bridge Note. Fractional shares shall
be rounded down
to the nearest whole share. Upon such conversion, the January
Bridge Notes shall
cease to represent indebtedness of the Company as stated therein
and the sole
right of the Holder thereof shall be to receive the cash payment
and January
Bridge Note Warrant to which such Holder has become entitled
pursuant to the
terms hereof.
2.2 Exercise of January Bridge Note Warrants. At or within
ten
(10) days after the Second Closing, each Holder of a January
Bridge Note Warrant
shall exercise the remaining balance of such warrant in
full.
2.3 Release of Liabilities. Except with respect to the
obligations set forth in this Agreement, upon the First Closing
each Holder
shall, for itself and its legal successors and assigns release
and forever
discharge the Company and its stockholders, partners, directors,
officers,
employees, agents, attorneys, legal successors and assigns of
and from any and
all claims, demands, damages, debts, liabilities, accounts,
reckonings,
obligations, costs, expenses, liens, actions and causes of
action of every kind
and nature whether now known or unknown, suspected or
unsuspected which it
either now has, owns or holds or at any time before ever owned
or held or could,
shall or may in the future have, own or hold against the Company
or such
stockholders, partners, directors, officers, employees, agents,
attorneys, legal
successors and assigns based upon or arising out of any matter,
cause, fact,
thing, act, or omission related to the January Bridge Notes
occurring or
existing at any time up to and including the effective date of
this Agreement
(collectively the "Released Matters"). It is the intention of
each Holder in
executing this Agreement and in receiving the cash payment and a
January Bridge
Note Warrant provided hereby that this Agreement shall be
effective as a full
and final accord and satisfaction and general release of and
from all Released
Matters. In furtherance of the intentions set forth in this
Agreement, each
Holder acknowledges that it is familiar with California Civil
Code Section 1542
which provides as follows:
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GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Each Holder waives and relinquishes any rights or benefits which
it has
or may have under Section 1542 or any similar provision of the
law of any other
jurisdiction to the full extent that it may lawfully waive its
rights and
benefits pertaining to the Released Matters.
3. Waiver of Default under the January Bridge Notes. Each Holder
hereby
waives any Event of Default arising under Section 2.(a)(vi) of
such Holder's
January Bridge Note to the extent the transactions contemplated
by the Purchase
Agreement are deemed to be a "Change of Control Transaction" as
defined in
Section 2.(a)(vi) of the January Bridge Notes. This waiver shall
not be deemed
to be a continuing waiver in the future or a waiver of any other
provision,
condition or requirement of the January Bridge Notes.
4. Waiver of Participation Right. Each Holder hereby waives
the
provisions of Section 4.13 (Participation in Future Financing)
of the January
Securities Purchase Agreement with respect to the transactions
contemplated by
the Purchase Agreement. This waiver shall not be deemed to be a
continuing
waiver in the future or a waiver of any other provision,
condition or
requirement of the January Securities Purchase Agreement.
5. Representations and Warranties of the Company. The Company
hereby
represents and warrants to the Holders that:
5.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good
standing under the laws
of the State of Nevada and has all requisite corporate power and
authority to
carry on its business as now conducted and to own its
properties.
5.2 Authorization. The Company has full corporate power and
authority and has taken all requisite action on the part of the
Company, its
officers, directors and stockholders necessary for (i) the
authorization,
execution and delivery of this Agreement, (ii) the authorization
of the
performance of all obligations of the Company hereunder and
(iii) the
authorization, issuance, sale and delivery of the Securities
subject, in the
case of the January Bridge Note Warrant Shares, to stockholder
approval and
filing of an amendment to the Company's Amended and Restated
Articles of
Incorporation authorizing an increase in the number of shares of
Common Stock
issuable by the Company to 500,000,000 (as adjusted for stock
splits,
combinations or other similar transactions). This Agreement
constitutes the
legal, valid and binding obligation of the Company, enforceable
against the
Company in accordance with its terms, subject to bankruptcy,
insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general
applicability relating to or affecting creditors' rights
generally.
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5.3 Valid Issuance. The Securities have been duly and
validly
authorized. The January Bridge Note Warrant Shares have been
reserved for
issuance, subject to stockholder approval and filing of an
amendment to the
Company's Amended and Restated Articles of Incorporation
authorizing an increase
in the number of shares of Common Stock iss
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