Attached files
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EX-99.1 - EXHIBIT 99.1 - BIOMERICA INC | exhibit99_1.htm |
EX-10.2 - EXHIBIT 10.2 - BIOMERICA INC | exhibit10_2.htm |
EX-10.1 - EXHIBIT 10.1 - BIOMERICA INC | exhibit10_1.htm |
EX-3.1 - EXHIBIT 3.1 - BIOMERICA INC | exhibit3_1.htm |
8-K - FORM 8-K - BIOMERICA INC | form8k.htm |
This agreement (the Agreement) is made effective as of February 26, 2020, by Biomerica, Inc., a Delaware corporation (the Company), and Palm Global Small Cap Master Fund LP, a Cayman Islands limited partnership (the Investor).
WHEREAS, pursuant to and subject to the terms and conditions of that certain Stock Purchase Agreement by and among the Company, the Investor and the other Purchasers party thereto, dated as of February 21, 2020 (as amended, modified, or supplemented, the Purchase Agreement), the Company has agreed to issue and sell to the Investor, and the Investor has agreed to purchase from the Company, certain shares (the Shares) of Series A Convertible Preferred Stock, $0.08 par value per share, of the Company described therein; and
WHEREAS, as an inducement to the Investor to enter into the Purchase Agreement and purchase the Shares, the Company provided the Investor with certain observation rights regarding the Company's board of directors (the Board), as further described, and subject to the terms and conditions set forth, herein; and
WHEREAS, for a period ending on the longer of (a) three years from the effective date of this Agreement, and (b) the date the Investor ceases to hold any Shares, Investor will be entitled to have one representative (the Observer) attend and participate in all functions (including those conducted by telephone) of the Board of Directors, as an observer, but such observer will not be a member of the Board of Directors and will have no voting rights (the Observer); provided that such Observer shall have executed and delivered to the Company a copy of the Acknowledgement and Agreement to be Bound in the form attached hereto as Exhibit A (the Acknowledgement)
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1 The Observer may attend all meetings (including telephonic or videoconference meetings) of the Board in a non-voting, observer capacity. The Observer may participate fully in discussions of all matters brought to the Board for consideration, but in no event shall the Observer (i) be deemed to be a member of the Board; (ii) have the right to propose or offer any motions or resolutions to the Board; or (iii) have the right to vote with respect to any motions or resolutions proposed or offered to the Board. Upon request, the Company shall allow the Observer to attend Board meetings by telephone or electronic communication. The presence of the Observer shall not be taken into account or required for purposes of establishing a quorum. The Company shall provide to the Observer copies of all notices, minutes, consents, and other materials that it provides to Board members (collectively, Board Materials), at the same time and in the same manner as such information is delivered to the Board members.
1.2 Notwithstanding anything herein to the contrary, the Company may exclude the Observer from access to any Board Materials, meeting, or portion thereof if the Board concludes, acting in good faith, that (i) such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or its affiliate and its counsel; (ii) such Board Materials or discussion relates to the Company's or its affiliates' relationship, contractual or otherwise, with the Investor or its affiliates or any actual or potential transactions between or involving the Company or its affiliates and the Investor or its affiliates; (iii) such exclusion is necessary to avoid a conflict of interest or disclosure that is restricted by any agreement to which the Company or any of its affiliates is a party or otherwise bound; or (iv) such exclusion is necessary to protect competitively sensitive information of the Company or any of its affiliates. Any committee of the Board may also exclude such Observer from access to any notices, minutes, consents, and other materials that it provides to members of such committee, or from any meeting of such committee, or from any portion thereof, for any reason, in its sole discretion.
2.4 The Investor, on behalf of itself and the Observer, acknowledges that the Confidential Information is proprietary to the Company and may include trade secrets or other business information the disclosure of which could harm the Company. None of the Investor, any of its affiliates, their Representatives, or the Observer shall, by virtue of the Company's disclosure of, or such person's use of any Confidential Information, acquire any rights with respect thereto, all of which rights (including intellectual property rights) shall remain exclusively with the Company. The Investor shall be responsible for any breach of this Section 2 by the Observer, any of its affiliates, or its or their Representatives.
3. Indemnification; Advancement of Expenses. The Company shall indemnify, defend, and hold harmless Observer to the same extent provided by the Company to its directors under the Certificate of Incorporation and Bylaws of the Company in connection with any judgments and expenses actually and reasonably incurred by Observer in connection with any claims brought against Observer arising out of Observers designation or attendance as a non-voting observer at meetings of the Board. The Company shall advance all expenses actually and reasonably incurred by Observer in connection with any such claim to the same extent provided by the Company to its directors under the Certificate of Incorporation and Bylaws of the Company; provided, however that Observer shall submit a written undertaking to repay any expenses so advanced if it shall ultimately be determined that Observer is not entitled to be indemnified against such expenses. The Company acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses in respect of such third party claims constitute third-party rights extended to the Observer by the Company and do not constitute rights to indemnification or advancement of expenses as a result of the Observer serving as a director, officer, employee, or agent of the Company. The Observer shall not be entitled to indemnification or advancement of expenses to the extent any such claim arises out of Observers willful misconduct or violation of the Securities Act of 1933, as amended or the Securities Exchange Act of 1934, as amended, as determined by a non-appealable final order of a court of proper jurisdiction.
4. Miscellaneous Provisions. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes any and all previous agreements and understandings, whether oral or written, between the parties regarding the matters set out in this Agreement. No provision of this Agreement may be amended, modified, or waived, except in a writing signed by the parties hereto. This Agreement may not be assigned by the Investor. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, and if any restriction in this Agreement is found by a court to be unreasonable or unenforceable, then such court may amend or modify the restriction so it can be enforced to the fullest extent permitted by law. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement. This Agreement may be executed by electronic signature in any number of counterparts, each of which together shall constitute one and the same instrument. Any waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist on strict adherence to any term of this Agreement on one or more occasions shall not be construed as a waiver or deprive such party of the right to thereafter insist on strict adherence to that term or any other term of this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
COMPANY: BIOMERICA, INC. |
By: /s/ Zackary Irani __________________ Name: Zackary Irani Title: Chief Executive Officer |
[Company Signature Page to Board Observer Agreement]
INVESTOR:
Palm Global Small Cap Master Fund LP
By: /s/ Joshua Horowitz____________________
Name: Joshua Horowitz
Title: Portfolio Manager
[Investor Signature Page to Board Observer Agreement]
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
FEBRUARY 26, 2020
This Acknowledgement and Agreement to be Bound (Acknowledgement) is given by the undersigned as a representative designated by Palm Ventures, LLC (the Investor) to act as the Observer pursuant to that certain Board Observer Agreement by and between Biomerica, Inc. (the Company) and the Investor dated as of February 26, 2020 (the Agreement). Capitalized terms used, but not defined, herein have the meanings ascribed thereto in the Agreement.
1. By his execution of this Acknowledgement, the undersigned acknowledges and agrees:
[signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this Acknowledgement as of the date first above written.
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| /s/ Joshua Horowitz 19 W. Elm Street, Greenwich, CT 06830 |
[Signature Page to Board Observer Acknowledgment]
ACKNOWLEDGED AND ACCEPTED as of this 26 day of February, 2020:
COMPANY:
BIOMERICA, INC. |
By: /s/ Zackary Irani____________________________ |
[Signature Page to Board Observer Acknowledgment]
INVESTOR:
Palm Global Small Cap Master Fund LP
By: /s/ Joshua Horowitz____________________
Name: Joshua Horowitz
Title: Portfolio Manager
[Signature Page to Board Observer Acknowledgment]