-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O9GKQZR9xCXpH0djOSr1+w/O+jbuwI+9ivPB3RCU+0ddEuOKs0A58oWc+If8MiYO lpsBukv1bRqDhpXgE9VLoQ== 0000950137-99-001935.txt : 19990607 0000950137-99-001935.hdr.sgml : 19990607 ACCESSION NUMBER: 0000950137-99-001935 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990530 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990604 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN BIO MEDICA CORP CENTRAL INDEX KEY: 0000896747 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 141702188 STATE OF INCORPORATION: NY FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-28666 FILM NUMBER: 99640559 BUSINESS ADDRESS: STREET 1: 300 FAIRVIEW AVENUE CITY: HUDSON STATE: NY ZIP: 12534 BUSINESS PHONE: 518822882 MAIL ADDRESS: STREET 1: 300 FAIRVIEW AVENUE CITY: HUDSON STATE: NY ZIP: 12534 8-K 1 FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): May 30, 1999 AMERICAN BIO MEDICA CORPORATION ------------------------------------------------------ (Exact Name of Registrant as Specified in its Charter) New York 0-28666 14-1702188 - ---------------------------- ---------------------- ---------------------- (State or Other Jurisdiction (Commission File Number) (IRS Employer of Incorporation) Identification Number) 300 Fairview Avenue, Hudson, New York 12534 -------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (800) 227-1243 Not Applicable ------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) 2 ITEM 5. OTHER EVENTS CC Investments, LDC ("CCI") and American Bio Medica Corporation ("ABMC") are parties to a certain Registration Rights Agreement dated April 24, 1998 (the "Registration Rights Agreement") whereby the Company agreed to register the resale by CCI of shares of the Company's common stock (the "Common Stock") issuable upon conversion of the Company's Series D Preferred Stock and upon exercise of certain stock purchase warrants. Pursuant to the Registration Rights Agreement if a registration statement covering the resale by CCI of such shares of Common Stock (the "Registration Statement") was not declared effective by July 23, 1998 or once declared effective sales could not made thereunder for any reason (a "Registration Statement Deficiency"), the Company agreed to pay to CCI a late registration penalty in an amount calculated pursuant to section 2 of the Registration Rights Agreement (the "Late Registration Penalty") and CCI reserved the right to pursue actual damages for a Registration Statement Deficiency. The Registration Statement filed by the Company on September 28, 1998 (the "1999 Registration Statement") was not declared effective until March 17, 1999, and once declared effective sales could not be made thereunder through the Effective Date (as defined in the 1999 Agreement), resulting in a Late Registration Penalty and a Registration Statement Deficiency (the "1999 Late Registration Penalty"). Prior to April 30, 1999, CCI had communicated to the Company that it was willing to accept $250,000 in cash in settlement of the 1999 Late Registration Penalty. On May 28, 1999, CCI and the Company entered into a definitive Agreement as of April 30, 1999 (the "1999 Agreement") to settle all claims by CCI against the Company relating to the Registration Statement Deficiency, including the 1999 Late Registration Penalty, any actual damages suffered by CCI relating to or arising from the Registration Deficiency and certain other claims under the Securities Purchase Agreement dated April 24, 1998 (the "Securities Purchase Agreement") between the Company and CCI. Pursuant to the 1999 Agreement, the Company gave consideration of $225,000 to CCI on June 1, 1999 ($100,000 in cash and a one-year promissory note in the principal amount of $125,000 accruing interest at the rate of 14% annually). All capitalized terms have the meanings assigned to such terms in the 1999 Agreement filed as Exhibit 4.1 to this Form 8-K. 2 3 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits 4.1 Agreement entered into as of April 30, 1999, between American Bio Medica Corporation (the "Company") and CC Investments, LDC ("CCI") (the "1999 Agreement"). 4.2 Promissory Note dated May 28, 1999 from the Company payable to CCI pursuant to the terms of the 1999 Agreement. 4.3 Form of Securities Purchase Agreement between the Company and CCI (incorporated by reference to Exhibit 4.1 of the Company's Current Report on Form 8-K filed April 30, 1998). 4.4 Form of Registration Rights Agreement between the Company and CCI (incorporated by reference to Exhibit 4.2 of the Company's Current Report on Form 8-K filed April 30, 1998). 3 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AMERICAN BIO MEDICA CORPORATION (Registrant) Dated: June 4, 1999 By: /s/ Stan Cipkowski ---------------------------- Stan Cipkowski, President and Principal Executive Officer By: /s/ John F. Murray ---------------------------- John F. Murray, Treasurer and Principal Financial Officer 4 EX-4.1 2 AGREEMENT 1 Exhibit 4.1 AGREEMENT This AGREEMENT is entered into as of April 30, 1999 (the "Agreement") by and between CC INVESTMENTS, LDC ("CCI") and AMERICAN BIO MEDICA CORPORATION, a New York corporation (the "Company"). RECITALS WHEREAS, CCI and the Company are parties to a certain Registration Rights Agreement dated April 24, 1998 (the "Registration Rights Agreement") whereby the Company agreed to register the resale by CCI of shares of the Company's common stock (the "Common Stock") issuable upon conversion of the Company's Series D Preferred Stock (the "Preferred Stock") and upon exercise of certain stock purchase warrants dated April 24, 1998 ("Warrants"). WHEREAS, pursuant to the Registration Rights Agreement if a registration statement covering the resale by CCI (the "Registration Statement") was not declared effective by July 23, 1998 or once declared effective sales could not made thereunder for any reason (a "Registration Statement Deficiency"), the Company agreed to pay to CCI a late registration penalty in an amount calculated pursuant to section 2 of the Registration Rights Agreement (the "Late Registration Penalty") and CCI reserved the right to pursue actual damages for a Registration Statement Deficiency. WHEREAS, the Registration Statement filed by the Company on September 28, 1998 (the "1999 Registration Statement") was not declared effective until March 17, 1999, and once declared effective sales could not be made thereunder through the Effective Date (as defined below), resulting in a Late Registration Penalty and a Registration Statement Deficiency (the "1999 Late Registration Penalty") WHEREAS, the parties hereto desire to enter into this Agreement to settle all claims by CCI against the Company relating to the Registration Statement Deficiency, including the 1999 Late Registration Penalty, any actual damages suffered by CCI relating to or arising from the Registration Deficiency and certain other claims under the Stock Purchase Agreement dated April 24, 1998 (the "Stock Purchase Agreement") between the Company and CCI. AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and the mutual agreements of the parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Definitions: Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Registration Rights Agreement and the Stock Purchase Agreement as applicable. 2 2. Late Registration Penalty: On June 1, 1999 the Company shall pay to CCI $225,000 as follows: a. $100,000 by wire transfer of immediately available funds to an account designated by CCI; and b. delivery of a one-year promissory note in the principal amount of $125,000 accruing interest at the rate of 14% annually in the form of Exhibit A. 3. Waiver: CCI agrees to waive its rights and remedies, and to release the Company from all actions, claims, damages, and obligations, and all other liabilities of whatever nature existing as of the Effective Date (as defined below) relating to or arising from (a) the Registration Statement Deficiency pursuant to the Registration Rights Agreement, the Stock Purchase Agreement, the Warrants or the Certificate of Designation of the Preferred Stock (the "Certificate"), including, without limitation, the 1999 Late Registration Penalty and any actual damages suffered by CCI relating to or arising from the Registration Statement Deficiency and (b) the Company's failure to solicit by proxy the Stockholder Approval (as defined in the Certificate) in accordance with Section 4.11 of the Stock Purchase Agreement and Sections V(D) and V(E) of the Certificate so long as the Company solicits by proxy the Stockholder Approval no later than September 30, 1999 or its 1999 annual meeting of shareholders whichever is earlier. This waiver and release shall be effective as of the latest date that the (a) the Form 8-K and the amendments described in Section 4 below are filed by the Company with the SEC, (b) the Registration Statement is effective and useable by CCI for the resale of the Common Stock and (c) CCI has received the $100,000 payment and the duly executed promissory note described in Section 2 above (the "Effective Date"). CCI does not waive any rights or remedies arising after the Effective Date including, but not limited to, rights and remedies relating to Registration Statement Deficiencies or Late Registration Penalties arising pursuant to the Registration Rights Agreement, the Stock Purchase Agreement, the Certificate or the Warrants. Notwithstanding the foregoing, CCI agrees that if the filing of the Form 8-K or amendments described in Section 4 below results in (a) the issuance of a stop order by the SEC with respect to the 1999 Registration Statement or (b) the SEC reviewing such amendments, the Form 8-K or the 1999 Registration Statement and such review causes the 1999 Registration Statement to cease being useable by CCI for the resale of the Common Stock, then the Late Registration Penalty shall not begin to accrue until 35 days after the SEC notifies the Company of the stop order so long as the Company is using its best efforts to have the stop order lifted or 35 days after the Company receives comments on any of the amendments, Form 8-K or 1999 Registration Statement to the extent such comments cause the 1999 Registration Statement to not be useable by CCI for the resale of the Common Stock, as applicable. If the Company fails to pay when due (whether at maturity or otherwise) any principal or interest on the promissory note, fails to file with the SEC the Form 8-K and amendments described in Section 4 below on or before the Filing Date (as defined below)or fails to pay the payment required pursuant to Section 2 above in accordance with the terms thereof, this waiver shall be rescinded and the rights and remedies of CCI waived hereunder shall be restored as if this waiver had never been granted. 2 3 4. 8-K: The Company agrees to file on or before June 4, 1999 (the "Filing Date") (a) a Form 8-K pursuant to the Securities Exchange Act of 1934, as amended, describing the 1999 Late Registration Penalty, this Agreement and the settlement agreed to herein and to include as an exhibit therein a copy of this Agreement and (b) amendments to all periodic reports previously filed by the Company pursuant to the Securities Exchange Act of 1934, as amended, including, but not limited to, reports on Form 10-K and 10-Q, as necessary to permit CCI to immediately resell the Common Stock pursuant to the 1999 Registration Statement . 5. Representations of the Company: The Company hereby represents and warrants to CCI as follows as of the date hereof: a. Authorization and Enforcement: (i) The Company has the requisite power and authority to enter into and perform its obligations under this Agreement and the Note; (ii) the execution, delivery and performance of this Agreement and the Note by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by the Company's Board of Directors and no further consent or authorization of the Company, its Board of Directors or its stockholders is required; and (iii) this Agreement and the Note constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms. b. No Conflicts: The execution, delivery and performance of this Agreement and the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the Certificate of Incorporation or the bylaws of the Company; or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights or termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree applicable to the Company or any of its subsidiaries or by which any property or assets of the Company or any of its subsidiaries is bound or affected. 6. Representations of CCI: CCI hereby represents and warrant to the Company as of the date hereof that this Agreement has been duly and validly authorized, executed and delivered by CCI and is a valid and binding agreement of CCI enforceable in accordance with its terms. 7. Successors and Assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. Notwithstanding the foregoing, the Company may not assign its rights or obligations under this Agreement to any other party without CCI's prior written consent which may be withheld by CCI for any or no reason. 8. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable 3 4 law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 9. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement. This Agreement may be executed by facsimile signature and shall be binding when so executed. 10. Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. The use of the word "including" in this Agreement shall be by way of example rather than by limitation. 11. Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits hereto shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. 12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, sent to the recipient by reputable overnight courier service (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each party at the address indicated in the Registration Rights Agreement. 13. No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 4 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on May 28, 1999. AMERICAN BIO MEDICA CORPORATION By: ------------------------------------- Its: ------------------------------------- CCI INVESTMENTS, LDC By: Castle Creek Partners, L.L.C. Its: Investment Manager By: ------------------------------------- Its: ------------------------------------- 5 EX-4.2 3 PROMISSORY NOTE DATED 5/28/99 1 Exhibit 4.2 AMERICAN BIO MEDICA CORPORATION PROMISSORY NOTE May 28, 1999 $125,000 American Bio Medica Corporation, a New York corporation (the "Company"), hereby promises to pay to the order of CC Investments, LDC the principal amount of $125,000 together with interest thereon calculated from the date hereof in accordance with the provisions of this Note. This Note was issued pursuant to an Agreement, entered into as of April 30, 1999 (as amended and modified from time to time, the "Agreement"), between the Company and the original holder of this Note. 1. Payment of Interest. Except as otherwise expressly provided in paragraph 3(b) hereof, interest shall accrue at the rate of fourteen percent (14%)per annum on the unpaid principal amount of this Note outstanding from time to time, or (if less) at the highest rate then permitted under applicable law. The Company shall pay to the holder of this Note all accrued interest on the date the principal amount of this Note is due (whether at maturity or otherwise). Unless prohibited under applicable law, any accrued interest which is not paid on the date on which it is due and payable shall bear interest at the same rate at which interest is then accruing on the principal amount of this Note until such interest is paid. Interest shall accrue on any principal payment due under this Note and, to the extent permitted by applicable law, on any interest which has not been paid on the date on which it is due and payable until such time as payment therefor is actually delivered to the holder of this Note. 2. Payment of Principal on Note. (a) Scheduled Payments. The Company shall pay the principal amount of $125,000 (or such lesser principal amount then outstanding) to the holder of this Note on May 28, 2000, together with all accrued and unpaid interest on the principal amount being repaid. (b) Prepayments. The Company may, at any time and from time to time without premium or penalty, prepay all or any portion of the outstanding principal amount of the Note. In connection with each prepayment of principal hereunder, the Company shall also pay all accrued and unpaid interest to the date of prepayment on the principal amount of this Note being repaid. 3. Events of Default. 1 2 (a) Definition. For purposes of this Note, an Event of Default shall be deemed to have occurred if (i) the Company fails to pay when due and payable (whether at maturity or otherwise) the full amount of interest then accrued on this Note or the full amount of any principal payment on this Note; (ii) the Company fails to perform or observe any other material provision contained in this Note or in the Agreement, and such failure is not cured within 5 days after the occurrence hereof; (iii) any representation, warranty or information contained in the Agreement is false or misleading in any material respect on the date made; (iv) the Company or any subsidiary makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts generally as they become due; or an order, judgment or decree is entered adjudicating the Company or any subsidiary bankrupt or insolvent; or any order for relief with respect to the Company or any subsidiary is entered under the Federal Bankruptcy Code; or the Company or any subsidiary petitions or applies to any tribunal for the appointment of a custodian, trustee, receiver or liquidator of the Company or any subsidiary, or of any substantial part of the assets of the Company or any subsidiary, or commences any proceeding (other than a proceeding for the voluntary liquidation and dissolution of any subsidiary) relating to the Company or any subsidiary under any bankruptcy reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction; or any such petition or application is filed, or any such proceeding is commenced, against the Company or any subsidiary and either (A) the Company or any such subsidiary by any act indicates its approval thereof, consent thereto or acquiescence therein or (B) such petition, application or proceeding is not dismissed within 60 days; (v) a judgment in excess of $250,000 is rendered against the Company or any subsidiary in any case not involving the dispute with Dr. Robert Freidenberg (disclosed in the Company's Form S-3 Registration Statement filed September 28, 1998)and, within 60 days after entry thereof, such judgment is not discharged in full or execution thereof stayed pending appeal, or within 60 days after the expiration of any such stay, such judgment is not discharged in full;or (vi) the Company or any subsidiary defaults in the performance of any obligation if the effect of such default is to cause an amount exceeding $250,000 to become due prior to its stated maturity or to permit the holder or holders of such obligation to cause an amount exceeding $250,000 to become due prior to its stated maturity. The foregoing shall constitute Events of Default whatever the reason or cause for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. (b) Consequences of Events of Default. 2 3 (i) If any Event of Default has occurred the interest rate on this Note shall increase immediately to the lesser of 18% or the highest interest rate permitted by law. (ii) If an Event of Default of the type described in subparagraph 3(a)(iv) has occurred, the aggregate principal amount of this Note (together with all accrued interest thereon and all other amounts due and payable with respect thereto) shall become immediately due and payable without any action on the part of the holders of this Note, and the Company shall immediately pay to the holders of this Note all amounts due and payable with respect to this Note. (iii) If any Event of Default has occurred (other than under subparagraph 3(a)(iv)), the holder of this Note may declare all or any portion of the outstanding principal amount of this Note (together with all accrued interest thereon and all other amounts due and payable with respect thereto) to be immediately due and payable and may demand immediate payment of all or any portion of the outstanding principal amount of this Note (together with all such other amounts then due and payable). (iv) The holder of this Note shall also have any other rights which such holder may have been afforded under any contract or agreement at any time and any other rights which such holder may have pursuant to applicable law. (v) The Company hereby waives diligence, presentment, protest and demand and notice of protest and demand, dishonor and nonpayment of this Note, and expressly agrees that this Note, or any payment hereunder, may be extended from time to time and that the holder hereof may accept security for this Note or release security for this Note, all without in any way affecting the liability of the Company hereunder. 4. Amendment and Waiver. Except as otherwise expressly provided herein, the provisions of this Note may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the holder of this Note. 5. Payments. All payments to be made to the holder of this Note shall be made in the lawful money of the United States of America in immediately available funds. 6. Place of Payment. Payments of principal and interest shall be paid by wire transfer of immediately available funds to an account designated by the holder of this Note. 7. Business Days. If any payment is due, or any time period for giving notice or taking action expires, on a day which is a Saturday, Sunday or legal holiday in the State of New York, the payment shall be due and payable on, and the time period shall automatically be extended to, the next business day immediately following such Saturday, Sunday or legal holiday, and interest shall continue to accrue at the required rate hereunder until any such payment is made. 4 8. Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. 9. Application of Payments. All payments shall be applied first, to accrued and unpaid interest on the unpaid principal balance of this Note and then to the unpaid principal balance of this Note. 10. Late Charge. If a payment of principal or interest to be made pursuant to this Note becomes past due for a period in excess of 5 days, The Company shall pay on demand to CCI a late charge of 2% of the amount of such overdue payment. 11. Costs of Collection. If any suit or action is instituted or attorneys are employed to collect this Note or any part hereof, the Company promises and agrees to pay all costs of collection, including all court costs and reasonable attorneys' fees based upon customary hourly rates and not a percentage of the indebtedness outstanding. 12. WAIVER OF JURY TRIAL. THE COMPANY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS NOTE WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND THEREFORE, THE COMPANY AGREES THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. IN WITNESS WHEREOF, the Company has executed and delivered this Note on May 28, 1999. AMERICAN BIO MEDICA CORPORATION Attest By ----------------------------- Its ---------------------------- - --------------------------------- 4 -----END PRIVACY-ENHANCED MESSAGE-----