COMMON STOCK PURCHASE
AGREEMENT
COMMON STOCK PURCHASE
AGREEMENT (the “
Agreement ”), dated as of May 15, 2012, by and among
Patient Safety Technologies, Inc., a Delaware corporation (the
“ Company ”), and each buyer identified on the
signature pages hereto (each, including its successors and assigns,
a “ Buyer ” and collectively, the “
Buyers ”).
WHEREAS:
A. The
Company and each Buyer is executing and delivering this Agreement
in reliance upon the exemption from securities registration
afforded by Section 4(2) of the Securities Act of 1933, as
amended (the “ 1933 Act ”).
B. The
Buyers wish to subscribe for, and the Company wishes to issue to
the Buyers, certain shares of the Company’s authorized but
unissued common stock, par value $0.33 per share (the “
Common Stock ”).
C. Contemporaneously
with the execution and delivery of this Agreement, the parties
hereto are executing and delivering a Registration Rights
Agreement, in the form attached hereto as Exhibit A (the
“ Registration Rights Agreement ”), pursuant to
which the Company will agree to provide certain registration rights
with respect to the Registrable Shares (as defined in the
Registration Rights Agreement) under the 1933 Act and the rules and
regulations promulgated thereunder, and applicable state securities
laws.
NOW, THEREFORE,
in consideration for the foregoing
premises and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, the Company and each
Buyer hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF COMMON
SHARES
1.1
Purchase of Shares . Subject to the terms
and conditions of this Agreement, each Buyer agrees to purchase at
the Closing and the Company agrees to sell and issue to each Buyer,
severally and not jointly, at the Closing that number of shares of
Common Stock, set forth opposite each Buyer’s name on
Schedule A hereto, at a purchase price of $1.40 per share
(the aggregate purchase price for a particular Buyer being the
“ Purchase Price ”). The shares of
Common Stock issued to the Buyers pursuant to this Agreement shall
be referred to in this Agreement as the “ Shares
.” There is no minimum number of Shares that the
Company must sell in order to sell Shares to any one or more Buyer,
nor any maximum number that the Company may issue to any one or
more Buyer.
1.2
Closing; Delivery; Conditions .
(a)
The purchase and sale of the Shares shall take place remotely via
the exchange of documents and signatures, at 10:00 a.m., Los
Angeles time, on Monday, May 21, 2012, or at such earlier time and
place as the Company and Buyers collectively agree upon, orally or
in writing (which time and place are designated as the “
Closing ”, and the date on which the Closing occurs
being the “ Closing Date ”).
(b)
At the Closing, (i) the Buyer shall pay its Purchase Price to the
Company for the Shares to be issued and sold to such Buyer at the
Closing, by wire transfer of immediately available funds in
accordance with the Company’s written wire instructions, and
(ii) upon confirmation of receipt of such wire, unless otherwise
requested by the Buyer and agreed to by the Company, the Shares
purchased by the Buyer will be (A) delivered by electronic
book-entry at The Depository Trust Company (“ DTC
”), registered in the Buyer’s name and address, and
pursuant to the Company’s irrevocable delivery instructions
to the transfer agent, as set forth on the Buyer’s signature
page hereto and (B) released by the Company’s transfer agent
(the “ Transfer Agent ”), to the Buyer. After
the execution of this Agreement by the Buyer, the Buyer shall
direct the broker-dealer at which the account or accounts to be
credited with the Shares are maintained to set up a
deposit/withdrawal at custodian instructing the Transfer Agent to
credit such account or accounts with the Shares. The Shares shall
bear a restrictive securities legend as provided herein.
(c)
The Company may reject any subscription for any reason (regardless
of whether any check or wire transfer relating to such subscription
is deposited in a bank or trust account), and will promptly return
the funds delivered herewith, without interest, and without
deduction of any expenses, in the event this subscription is
rejected. The Company will send to the Buyer a copy of
this Agreement, countersigned, if the Buyer’s subscription is
accepted. The Company has no obligation to issue any of
the Shares to any person who is a resident of a jurisdiction in
which the issuance of the Shares would constitute a violation of
the securities laws. This Agreement is and shall be
irrevocable (subject, however, to the conditions to Closing),
except that the Buyer shall have no obligations hereunder to the
extent that this Agreement is rejected by the Company prior to the
execution of this Agreement by the Company.
(d)
At the Closing, the Company shall deliver or cause to be delivered
to each Buyer the following:
(i)
a legal opinion of Company Counsel, in substantially the form of
Exhibit B , executed by such counsel and delivered to the
Buyers;
(ii) a
certificate of the Secretary of the Company, dated as of the
Closing Date, (a) certifying the resolutions adopted by the
Board of Directors of the Company approving the transactions
contemplated by this Agreement and the other Transaction Documents
and the issuance of the Securities, (b) certifying the current
versions of the certificate of incorporation, as amended and
by-laws of the Company and (c) certifying as to the signatures
and authority of persons signing the Transaction Documents and
related documents on behalf of the Company;
(iii) the
Shares purchased by such Buyer, as provided in Section 1.2(b);
and
(iv) an
executed copy of the Registration Rights Agreement.
(e)
At the Closing, each Buyer shall deliver or cause to be delivered
to the Company (i) the purchase price set forth on such
Buyer’s signature page to this Agreement in United States
dollars and in immediately available funds, by wire transfer to an
account designated in writing to such Buyer by the Company for such
purpose and (ii) an executed copy of the Registration Rights
Agreement.
(f)
The obligations of the Company hereunder to sell and issue Shares
to a Buyer at the Closing are subject to only the following
conditions being met:
(i)
the accuracy in all material respects when made and on the Closing
Date of the representations and warranties of such Buyer contained
herein (unless as of a specific date therein in which case they
shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of such Buyer required to be
performed at or prior to the Closing Date shall have been
performed; and
(iii)
the delivery by such Buyer of the items set forth in Section 1.2(e)
of this Agreement.
(g)
The respective obligations of each Buyers hereunder to purchase
Shares at the Closing are subject to only the following conditions
being met:
(i)
the accuracy in all material respects when made and on the Closing
Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein in which case they
shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company required
to be performed at or prior to the Closing Date shall have been
performed;
(iii) the
delivery by the Company of the items set forth in Section 1.2(d) of
this Agreement; and
(iv)
there shall have been no Material Adverse Effect with respect to
the Company since the date hereof.
ARTICLE II
BUYER’S REPRESENTATIONS AND
WARRANTIES
Each Buyer, severally and not
jointly, represents and warrants to the Company with respect to
itself only that:
2.1
Distribution . Such Buyer is acquiring the Shares
for investment purposes for its own account and not with any
current view towards a distribution of the Shares, provided,
however, that by making the representations herein, such Buyer does
not agree to hold any of the Shares for any minimum or other
specific term and reserves the right to dispose of the Shares at
any time in accordance with or pursuant to a registration statement
or an exemption under the Securities Act.
2.2
Accredited Investor Status . At the time such
Buyer was offered the Shares, it was, and as of the date hereof, it
is, an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D.
2.3
Reliance on Exemptions; No General Solicitation
. Such Buyer understands that the Shares are being
offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state
securities laws and that the Company is relying in part upon the
truth and accuracy of, and such Buyer’s compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of such Buyer set forth herein in order to determine
the availability of such exemptions and the eligibility of such
Buyer to acquire the Shares. The Buyer has not received
any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer or sale of
the Shares.
2.4
Information . Such Buyer and its advisors, if
any, have been furnished with all materials relating to the
business, finances and operations of the Company and materials
relating to the offer and sale of the Shares that have been
requested by such Buyer and that such Buyer deems necessary and
appropriate to enable Buyer to evaluate the financial risk inherent
in making the investment in the Shares. Such Buyer and
its advisors, if any, have been afforded the opportunity to ask
questions of the Company and its management. Such Buyer
has reviewed the SEC Documents (as defined in
Section 3.8 below), including without limitation, the
risk factor disclosure contained therein, and understands that its
investment in the Shares involves a high degree of risk and is, at
the present time, able to afford a complete loss of such
investment. Subject to the truth and accuracy of the
representations and warranties made by the Company hereunder, such
Buyer has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with
respect to its acquisition of the Shares. The Buyer
understands that no federal or state agency has made any finding or
determination as to the fairness of this offering for investment,
or any recommendation or endorsement of the
Shares. Neither such inquiries nor any other due
diligence investigations conducted by such Buyer or its advisors,
if any, or its representatives shall modify, amend or affect such
Buyer’s right to rely on the Company’s representations
and warranties contained herein.
2.5
Transfer or Resale . Such Buyer understands that
except as provided in the Registration Rights Agreement:
(a)
the Shares have not been and are not being registered under the
1933 Act or any state securities laws, and may not be offered for
sale, sold, assigned or transferred unless (i) subsequently
registered thereunder or (ii) such Shares are sold, assigned or
transferred pursuant to an exemption from such registration under
the 1933 Act, including without limitation pursuant to Rule 144
promulgated under the 1933 Act, as amended, (or a successor rule
thereto) (“ Rule 144 ”);
(b)
any sale of the Shares made in reliance on Rule 144 may be made
only in accordance with the terms of Rule 144 and further, if Rule
144 is not applicable, any resale of the Shares under circumstances
in which the seller (or the Person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the
1933 Act) may require compliance with some other exemption under
the 1933 Act and the rules and regulations of the SEC
thereunder. “ Person ” means an
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and
a government or any department or agency thereof; and
(c)
neither the Company nor any other Person is under any obligation to
register the Shares under the 1933 Act or any state securities laws
or to comply with the terms and conditions of any exemption
thereunder.
2.6
Legends . Such Buyer agrees that all certificates
or other instruments representing the Shares shall bear any legend
as required by the “blue sky” laws of any state and a
restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of such stock
certificates):
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR (B) AN APPLICABLE EXEMPTION FROM
REGISTRATION UNDER SAID ACT, INCLUDING PURSUANT TO RULE 144 UNDER
SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN LOAN OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
The legend set forth above shall be removed and
the Company shall issue a certificate without such legend to the
holder of the Shares upon which it is stamped, if, unless otherwise
required by state securities laws, (i) the resale of such Shares is
covered by an effective registration statement under the 1933 Act
(whether pursuant to the Registration Rights Agreement or
otherwise), (ii) the Shares are eligible for resale without
restriction under Rule 144, or (iii) in connection with a sale,
assignment or other transfer, such holder provides the Company with
an opinion of a law firm reasonably acceptable to the Company and
its transfer agent, in a generally acceptable form, to the effect
that such sale, assignment or transfer of the Shares may be made
without registration under the applicable requirements of the 1933
Act.
If within three trading days after receipt by
the Company or its transfer agent of a legended certificate and the
other documents as specified in and complying with (or required to
comply with) the immediately preceding paragraph, the Company shall
fail to cause to be issued and delivered to such Buyer a
certificate representing such Shares that is free from the legends
set forth above, and if on or after such trading day the Buyer
purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Buyer of
shares of Common Stock that the Buyer anticipated receiving from
the Company without any restrictive legend (the “ Covering
Shares ”), then the Company shall, within three trading
days after the Buyer ’ s request , pay cash to
the Buyer in an amount equal to the excess (if any) of the
Buyer’s total purchase price (including brokerage
commissions, if any) for the Covering Shares, over the product of
(A) the number of Covering Shares, times (B) the closing bid price
on the date of delivery of such certificate and the other documents
as specified in and complying with the paragraph immediately
above.
2.7
Validity; Enforcement . This Agreement and the
Registration Rights Agreement, and the consummation by such Buyer
of the transactions contemplated hereby and thereby, have been duly
and validly authorized, executed and delivered on behalf of such
Buyer and shall constitute the legal, valid and binding obligations
of such Buyer enforceable against such Buyer in accordance with
their respective terms, except as such enforceability may be
limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and
remedies.
2.8
No Conflicts . The execution, delivery and
performance by such Buyer of this Agreement and the Registration
Rights Agreement and the consummation by such Buyer of the
transactions contemplated hereby and thereby will not (i) result in
a violation of the organizational documents of such Buyer or (ii)
conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) in any
respect under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Buyer is a party or by which
any property or asset of such Buyer is bound or affected, or (iii)
result in a violation of any law, rule, re