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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 ”).
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:
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.
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, r