SEC Connect





 







Exhibit
10.1 



 



NOTE PURCHASE AGREEMENT


 


THIS NOTE PURCHASE
AGREEMENT (this
“Agreement”), is dated as of February __, 2017, by and
between FluoroPharma Medical, Inc., a Nevada corporation
(the “Company”), and the Purchasers identified on
Schedule
1 hereto (the
“Purchasers”).


 





WHEREAS, the Company and the Purchasers are executing and
delivering this Agreement in reliance upon an exemption from
securities registration afforded by the provisions of Section 4(2)
and/or Regulation D (“Regulation D”) as promulgated by the United States
Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended (the “1933 Act”);


 


WHEREAS, the parties desire that, upon the terms and
subject to the conditions contained herein, the Company shall issue
and sell to the Purchasers, as provided herein, and the Purchasers
shall purchase, in the aggregate, (i) up to $1,000,000 of principal
amount (“Principal
Amount”) of senior
secured convertible promissory notes of the Company (the
“Note” or the “Notes”), a form of which is annexed hereto
as Exhibit
A; and





 


WHEREAS, the Notes will be secured with all assets of the
Company pursuant to a Security Agreement in the form attached
hereto as Exhibit C, and the Purchasers will be parties to an
Intercreditor Agreement in the form attached hereto as
Exhibit
D.


 


NOW,
THEREFORE, in consideration of
the mutual covenants and other agreements contained in this
Agreement the Company and the Purchasers hereby agree as
follows:

 


1.           Closings;
Closing Dates;
Registration Rights.

 


(a)           The
initial closing (the “Initial
Closing”) of the purchase and sale of the Notes to be
acquired by the Purchasers from the Company under this Agreement
shall take place at such time as Purchasers have executed this
Agreement to purchase at least Twentyfive Thousand Dollars
($25,000) of principal amount of Notes and the applicable portion
of the Purchase Price has been transmitted by wire transfer or
otherwise credited to or for the benefit of the Company. After the
Initial Closing, the Company may conduct any number of additional
closings (each, an “Additional Closing” and, together
with the Initial Closing, a “Closing”) so long as the final
Additional Closing occurs on or before the 240th day following the
Initial Closing Date. The consummation of the transactions
contemplated herein shall take place at the offices of Mirick
O’Connell LLP, 100 Front Street, Worcester, MA 01608. Subject
to the satisfaction or waiver of the terms and conditions of this
Agreement, on each Closing Date, such Purchaser shall purchase and
the Company shall sell to each such Purchaser a Note in the
principal amount set forth on Schedule 1 and on the signature page
hereto for the Purchase Price set forth therein. The aggregate
principal amount of the Notes to be purchased by the Purchasers
pursuant to this Agreement shall be up to One Million Dollars
($1,000,000).


 


(b)           The
Purchasers shall have the registration rights contained in the
registration rights agreement dated as of the date hereof among the
Company and the Purchasers, in substantially the form attached
hereto as Exhibit B (the
“Registration Rights
Agreement”).


 



                        

2.            

Purchaser Representations and
Warranties. Each of the Purchasers hereby represents and
warrants to and agrees with the Company with respect only to such
Purchaser that:






 


(a)           Organization
and Standing of the Purchaser.
Purchaser, to the extent applicable, is an entity duly formed,
validly existing and in good standing under the laws of the
jurisdiction of its formation.


 


 





 

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(b)           Authorization
and Power. Such Purchaser has
the requisite power and authority to enter into and perform this
Agreement and the other Transaction Documents (as defined in
Section 3(c) hereof) and to purchase the Notes being sold to it
hereunder. The execution, delivery and performance of this
Agreement and the other Transaction Documents by such Purchaser and
the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate
action, and no further consent or authorization of Purchaser or its
board of directors or stockholders, if applicable, is required.
This Agreement and the other Transaction Documents have been duly
authorized, executed and delivered by such Purchaser and
constitutes, or shall constitute, when executed and delivered, a
valid and binding obligation of such Purchaser, enforceable against
Purchaser in accordance with the terms thereof.


 


(c)           
No
Conflicts. The execution,
delivery and performance of this Agreement and the other
Transaction Documents and the consummation by such Purchaser of the
transactions contemplated hereby and thereby or relating hereto do
not and will not (i) result in a violation of such
Purchaser’s charter documents, bylaws or other organizational
documents, if applicable; (ii) conflict with nor constitute a
default (or an event which with notice or lapse of time or both
would become a default) under any agreement to which such Purchaser
is a party; nor (iii) result in a violation of any law, rule, or
regulation, or any order, judgment or decree of any court or
governmental agency applicable to such Purchaser or its properties
(except for such conflicts, defaults and violations as would not,
individually or in the aggregate, have a material adverse effect on
Purchaser). Such Purchaser is not required to obtain any consent,
authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement and
the other Transaction Documents nor to purchase the Securities in
accordance with the terms hereof, provided that for purposes of the
representation made in this sentence, such Purchaser is assuming
and relying upon the accuracy of the relevant representations and
agreements of the Company herein.


 


(d)           Information
on Company. Purchaser is familiar with the business, plans
and financial condition of the Company; Purchaser has received all
materials that have been requested by Purchaser. Purchaser has had
a reasonable opportunity to ask questions of the Company and its
representatives, and the Company has answered to the satisfaction
of Purchaser all inquiries that Purchaser or Purchaser’s
representatives have put to it. Purchaser has had access to all
additional information that Purchaser has deemed necessary to
verify the accuracy of the information set forth in this Agreement,
and has taken all the steps necessary to evaluate the merits and
risks of an investment as proposed under this
Agreement.

 


(e)           Information
on Purchaser. Such Purchaser is an “accredited investor,” as such term
is defined in Regulation D promulgated by the Commission under the
1933 Act, is experienced in investments and business matters, has
made investments of a speculative nature and has purchased
securities of United States publicly-owned companies in private
placements in the past and, with its representatives, has such
knowledge and experience in financial, tax and other business
matters as to enable such Purchaser to utilize the information made
available by the Company to evaluate the merits and risks of and to
make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. Such Purchaser
has the authority and is duly and legally qualified to purchase and
own the Securities. Such Purchaser is able to bear the risk of such
investment for an indefinite period and to afford a complete loss
thereof. The information set forth on Schedule
1 hereto
regarding such Purchaser is
accurate.





 


(f)           Purchase
of Notes. On the Closing Date, such Purchaser will purchase the Notes as
principal for its own account for investment only and not with a
view toward, or for resale in connection with, the public sale or
any distribution thereof.





 


(g)           Compliance
with 1933 Act. Such Purchaser understands and agrees that the Notes have not
been registered under the 1933 Act or any applicable state
securities laws, by reason of their issuance in a transaction that
does not require registration under the 1933 Act (based in part on
the accuracy of the representations and warranties of the Purchaser
contained herein).








 




 

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(h)           Communication
of Offer. Purchaser is
not entering into this Agreement or purchasing the Notes as a
result of or subsequent to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or presented at any
seminar or meeting, or any solicitation by a person other than a
representative of the Company with which Purchaser had a
pre-existing relationship.


 


(i)           Restricted
Securities. Such Purchaser
understands that the Notes have not been registered under the 1933
Act and such Purchaser will not sell, offer to sell, assign,
pledge, hypothecate or otherwise transfer any of the Notes unless
pursuant to an effective registration statement under the 1933 Act,
or unless an exemption from registration is available.
Notwithstanding anything to the contrary contained in this
Agreement, such Purchaser may transfer (without restriction and
without the need for an opinion of counsel) the Securities to its
Affiliates (as defined below) provided that each such Affiliate is
an “accredited investor” under Regulation D and such
Affiliate agrees to be bound by the terms and conditions of this
Agreement. For the purposes of this Agreement, an
“Affiliate” of any person or entity means any other
person or entity directly or indirectly controlling, controlled by
or under direct or indirect common control with such person or
entity. Each Subsidiary is an Affiliate of the Company. For
purposes of this definition, “control” means the power to direct the management
and policies of such person or firm, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise.


 


(j)           No
Governmental Review. Such
Purchaser understands that no United States federal or state agency
or any other governmental or state agency has passed on or made
recommendations or endorsement of the Securities or the suitability
of the investment in the Securities nor have such authorities
passed upon or endorsed the merits of the offering of the
Securities.


 


(k)           Correctness
of Representations. Purchaser
represents that the foregoing representations and warranties are
true and correct as of the date hereof and, unless Purchaser
otherwise notifies the Company prior to the Closing Date, shall be
true and correct as of the Closing Date.


 


(l)           Confidential
Information. Such Purchaser
agrees that such Purchaser and its employees, agents and
representatives will keep confidential and will not disclose,
divulge or use (other than for purposes of monitoring its
investment in the Company) any confidential information which such
Purchaser may obtain from the Company pursuant to financial
statements, reports and other materials submitted by the Company to
such Purchaser pursuant to this Agreement, unless such information
is known to the public through no fault of such Purchaser or his or
its employees or representatives; provided, however, that a
Purchaser may disclose such information (i) to its attorneys,
accountants and other professionals in connection with their
representation of such Purchaser in connection with such
Purchaser’s investment in the Company, (ii) to any
prospective permitted transferee of the Notes, so long as the
prospective transferee agrees to be bound by the provisions of this
Section 2(m), or (iii) to any general partner or Affiliate of such
Purchaser.


 


(m)           Survival.
The foregoing representations and warranties shall survive for a
period of one year following the Closing Date.


 


3.           Company
Representations and Warranties.
Except as set forth herein, the Company represents and warrants to
and agrees with each Purchaser that:


 





 




 

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(a)           Due
Incorporation. The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation
and has the requisite corporate power to own its properties and to
carry on its business as presently conducted. The Company is duly qualified
as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or
property owned by it makes such qualification necessary, other than
those jurisdictions in which the failure to so qualify would not
have a Material Adverse Effect (as defined herein). For purposes of
this Agreement, a “Material Adverse
Effect” shall mean a
material adverse effect on the financial condition, results of
operations, prospects, properties or business of the Company and
its Subsidiaries taken as a whole. For purposes of this Agreement,
“Subsidiary” means, with respect to any entity at any
date, any direct or indirect corporation, limited or general
partnership, limited liability company, trust, estate, association,
joint venture or other business entity of which (A) more than
30% of (i) the outstanding capital stock having (in the
absence of contingencies) ordinary voting power to elect a majority
of the board of directors or other managing body of such entity,
(ii) in the case of a partnership or limited liability
company, the interest in the capital or profits of such partnership
or limited liability company or (iii) in the case of a trust,
estate, association, joint venture or other entity, the beneficial
interest in such trust, estate, association or other entity
business is, at the time of determination, owned or controlled
directly or indirectly through one or more intermediaries, by such
entity, or (B) is under the actual control of the
Company.


 


(b)           Outstanding
Stock. All issued and
outstanding shares of capital stock and equity interests in the
Company have been duly authorized and validly issued and are fully
paid and non-assessable.


 


(c)           Authority;
Enforceability. This Agreement,
the Notes, the Escrow Agreement, the Registration Rights Agreement
and any other agreements referred to, delivered or required to be
delivered together with or pursuant to this Agreement or in
connection herewith (collectively “Transaction
Documents”) have been
duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights generally and to general principles of equity. The Company
has full corporate power and authority necessary to enter into and
deliver the Transaction Documents and to perform its obligations
thereunder.


 


(d)           Capitalization
and Additional Issuances. The
authorized and outstanding capital stock of the Company and all
outstanding rights to acquire or receive, directly or indirectly,
any equity of the Company and Subsidiaries as of the date of this
Agreement (not including the Securities) are set forth on
Schedule
3(d). Except as set forth
on Schedule
3(d), there are no options,
warrants, or rights to subscribe to, securities, rights,
understandings or obligations convertible into or exchangeable for
or granting any right to subscribe for any shares of capital stock
or other equity interest of the Company or any of the
Subsidiaries. The only officer, director, employee and
consultant stock option or stock incentive plan or similar plan
currently in effect or contemplated by the Company is described on
Schedule
3(d). There are no outstanding agreements or preemptive or
similar rights affecting the Common Stock.


 


(e)           Consents.
Except for the filing of a Form D with the Commission, and any
required blue sky filings, no consent,
approval, authorization or order of any court, governmental agency
or body or arbitrator having jurisdiction over the Company, or the
Company’s creditors or stockholders is required for the
execution by the Company of the Transaction Documents and
compliance and performance by the Company of its obligations under
the Transaction Documents, including, without limitation, the
issuance and sale of the Notes. The Transaction Documents and the
Company’s performance of its obligations thereunder has been
approved by the Company’s board of directors in accordance
with the Company’s Certificate of Incorporation and
applicable law.


 


(f)           No
Violation or Conflict. Assuming
the representations and warranties of the Purchaser in Section 2
are true and correct, neither the entry into the Transaction
Documents by the Company, nor the issuance nor the sale of the
Notes nor the performance of the Company’s obligations under
the Transaction Documents by the Company, will:


 





 




 

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(i)           violate,
conflict with, result in a breach of, or constitute a default (or
an event which with the giving of notice or the lapse of time or
both would be reasonably likely to constitute a default) under (A)
the articles or certificate of incorporation, charter or bylaws of
the Company, (B) to the Company’s knowledge, any decree,
judgment, order, law, treaty, rule, regulation or determination
applicable to the Company of any court, governmental agency or
body, or arbitrator having jurisdiction over the Company or over
the properties or assets of the Company or any of its Affiliates,
(C) the terms of any bond, debenture, note or any other evidence of
indebtedness, or any agreement, stock option or other similar plan,
indenture, lease, mortgage, deed of trust or other instrument to
which the Company is a party, by which the Company is bound, or to
which any of the properties of the Company is subject, or (D) the
terms of any “lock-up” or similar provision of any
underwriting or similar agreement to which the Company is a party
except the violation, conflict, breach, or default of which would
not have a Material Adverse Effect; or


 


(ii)           result
in the creation or imposition of any lien, charge or encumbrance
upon the Notes or any of the assets of the Company;
or


 


(iii)           result
in the activation of any anti-dilution rights or a reset or
repricing of any debt, equity or security instrument of any
creditor or equity holder of the Company, or the holder of the
right to receive any debt, equity or security instrument of the
Company nor result in the acceleration of the due date of any
obligation of the Company; or


 


(iv)           result
in the triggering of any piggy-back or other registration rights of
any person or entity holding securities of the Company or having
the right to receive securities of the Company.


 


(g)           The
Notes. The Notes upon
issuance:


 


(i)           are,
or will be, free and clear of any security interests, liens, claims
or other encumbrances, subject only to restrictions upon transfer
under the 1933 Act and any applicable state securities
laws;


 


(ii)           have
been, or will be, duly and validly authorized and on the dates of
issuance of the Notes, such Notes will be duly and validly issued,
fully paid and non-assessable;


 


(iii)           will
not have been issued or sold in violation of any preemptive or
other similar rights of the holders of any securities of the
Company or rights to acquire securities or debt of the Company;
and


 


(iv)           will
not subject the holders thereof to personal liability by reason of
being such holders.


 





(h)           Litigation.
There is no pending or, to the best knowledge of the Company,
threatened action, suit, proceeding or investigation before any
court, governmental agency or body, or arbitrator having
jurisdiction over the Company, that would affect the execution by
the Company or the complete and timely performance by the Company
of its obligations under the Transaction Documents. Except as
disclosed in the Company’s filing with the Commission, there
is no pending or, to the best knowledge of the Company, basis for
or threatened action, suit, proceeding or investigation before any
court, governmental agency or body, or arbitrator having
jurisdiction over the Company, or any of its Affiliates which
litigation if adversely determined would have a Material Adverse
Effect.


 


(i)           Defaults.
To its knowledge, the Company is not in violation of its articles of incorporation or
bylaws. The Company is (i) not in default under or in violation of
any other material agreement or instrument to which it is a party
or by which it or any of its properties are bound or affected,
which default or violation would have a Material Adverse
Effect, (ii) not in default
with respect to any order of any court, arbitrator or governmental
body or subject to or party to any order of any court or
governmental authority arising out of any action, suit or
proceeding under any statute or other law respecting antitrust,
monopoly, restraint of trade, unfair competition or similar matters
which default would have a Material Adverse Effect, or (iii) not in
violation of any statute, rule or regulation of any governmental
authority which violation would have a Material Adverse
Effect.


 


 




 

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(j)           No
Integrated Offering. Neither
the Company, nor any of its Affiliates, nor any person acting on
its or their behalf, has directly or indirectly made any offers or
sales of any security of the Company nor solicited any offers to
buy any security of the Company under circumstances that would
cause the offer of the Securities pursuant to this Agreement to be
integrated with prior offerings by the Company for purposes of
impairing the exemptions relied on with respect to the 1933 Act or
any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of the Bulletin Board.
No prior offering will impair the exemptions relied upon in this
Offering or the Company’s ability to timely comply with its
obligations hereunder. Neither the Company nor any of its
Affiliates will take any action or suffer any inaction or conduct
any offering other than the transactions contemplated hereby that
may be integrated with the offer or issuance of the Securities or
that would impair the exemptions relied upon in this Offering or
the Company’s ability to timely comply with its obligations
hereunder.


 


(k)           No
General Solicitation. Neither
the Company, nor any of its Affiliates, nor to its knowledge, any
person acting on its or their behalf, has engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D under the 1933 Act) in connection with the offer or
sale of the Notes.


 





(l)           Certain
Fees. Except as shall be payable to certain placement agents
in connection with the transactions contemplated by this Agreement,
no brokers fees, finders’ fees or financial advisory fees or
commissions will be payable by the Company with respect to the
transactions contemplated by this Agreement and the other
Transaction Documents


 


(m)           Survival.
The foregoing representations and warranties shall survive the
Closing Date.


 


4.           Regulation
D Offering. The offer and
issuance of the Notes to the Purchasers is being made pursuant to
the exemption from the registration provisions of the 1933 Act
afforded by Section 4(2) of the 1933 Act and/or Rule 506 of
Regulation D promulgated thereunder.


 


5.           Voluntary
Conversion of Notes;
; Conversion Price;
Additional Warrant.


 

(a)         
The Holder shall have the right, at its option at any time after or
simultaneous with a subsequent financing, to convert the principal
and accrued interest under the Notes (the “Outstanding
Balance”) into such number of fully paid and nonassessable
whole shares of Common Stock as is obtained by dividing (i)
Outstanding Balance to be converted multiplied by 1.25, by (ii) the
per share security price of the securities sold in the
Company’s next equity or equity-linked financing (the
“Subsequent Financing”), such price, or such price as
last adjusted, being referred to herein as the “Conversion
Price”). Holders shall effect conversions by providing the
Borrower with written notice of the details of such voluntary
conversion, which may be provided by email (“Notice of
Conversion”). The Borrower shall instruct its transfer agent
to issue the Conversion Shares no later than five (5) business days
following receipt of the Notice of Conversion. Notwithstanding
anything contained in this Section 5a to the contrary, any
voluntary conversions made by the Holder under this Note shall not
in any way affect the rights of the Holder to the Additional
Warrant.


 


 


 




 

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(b)           Upon
the closing of a Subsequent Financing, each of the Purchasers shall
be issued, in addition to any warrants issued in connection with a
Subsequent Financing, an additional warrant (the
“Additional
Warrant“), to purchase a number of shares of the
Company’s common stock (the “Common Stock”) equal to one
hundred percent (100%) of the number of shares of Common Stock
purchased by such Purchaser in the Subsequent Financing assuming a
per share purchase price of the securities to be issued in the
Subsequent Financing. The terms of the Additional Warrants shall be
substantially identical to the terms of the warrants issued in the
Subsequent Financing, except the exercise price per share of the
Additional Warrants shall be equal to the per share purchase price
of the securities issued in the Subsequent Financing. In the event
no warrants are issued in the Subsequent Financing, each of the
Purchasers shall nonetheless be entitled to an Additional Warrant,
which Additional Warrant shall be non-callable, exercised on a cash
only basis and have a term of five (5) years following the closing
date of the Subsequent Financing.


 




6.           
Miscellaneous.


 


(a)           Notices.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable
air courier service with charges prepaid, or (iv) transmitted by
hand delivery, telegram, electronic transmission (e-mail), or
facsimile, addressed as set forth below or to such other address as
such party shall have specified most recently by written notice.
Any notice or other communication required or permitted to be given
hereunder shall be deemed effective (a) upon hand delivery or
delivery by e-mail, facsimile, with accurate confirmation generated
by the transmitting facsimile machine, at the address or number
designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to
be received) or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to
such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
(i) if to the Company, to: FluoroPharma Medical, Inc., 8 Hillside
Avenue, Suite 108, Montclair, NJ 07042, Attn: Thomas H. Tulip,
President, e-mail: ttulip@fluoropharma.com,
facsimile: (973) 744-7617, with a copy by fax only to (which
shall not constitute notice): Mirick
O’Connell LLP, 100 Front Street, Worcester, MA 01608,
Attention Michael A. Refolo, e-mail:
mrefolo@mirickoconnell.com, facsimile: (508) 463-1395, and
(ii) if to the Purchasers, to: the addresses, email address and fax
numbers indicated on Schedule 1
hereto.


 


 (b)           Entire
Agreement; Amendment; Assignment. This Agreement and other Transaction Documents
delivered in connection herewith represent the entire agreement
between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by the Company
and the Purchasers holding a majority of the then outstanding
aggregate principal amount of the Notes issued pursuant to this
Agreement. Neither the Company nor the Purchasers has relied on any
representations not contained or referred to in this Agreement and
the documents delivered herewith. No right or obligation of the
Company shall be assigned without prior notice to the
Purchasers.


 


(c)           Counterparts/Execution.
This Agreement may be executed in any number of counterparts and by
the different signatories hereto on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile transmission, PDF,
electronic signature or other similar electronic means with the
same force and effect as if such signature page were an original
thereof.


 





 




 

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(d)           Law
Governing this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the
transactions contemplated by this Agreement shall be brought only
in the state courts of New York or in the federal courts located in
the state and county of New York. The parties to this Agreement
hereby irrevocably waive any objection to jurisdiction and venue of
any action instituted hereunder and shall not assert any defense
based on lack of jurisdiction or venue or based upon forum non conveniens.
The parties executing this
Agreement and other agreements referred to herein or delivered in
connection herewith on behalf of the Company agree to submit to the
in personam jurisdiction of such courts and hereby irrevocably
waive trial by jury. The prevailing party shall be entitled
to recover from the other party its reasonable attorney’s
fees and costs. In the event that any provision of this Agreement
or any other agreement delivered in connection herewith is invalid
or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any such provision which may prove
invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision of any agreement.
Each party hereby irrevocably waives personal service of process
and consents to process being served in any suit, action or
proceeding in connection with this Agreement or any other
Transaction Document by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any other manner permitted by law.


 


(e)           Specific
Enforcement, Consent to Jurisdiction. The Company and Purchasers acknowledge
and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to seek an
injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement and to enforce specifically the terms
and provisions hereof, this being in addition to any other remedy
to which any of them may be entitled by law or equity. Subject to
Section 6(d) hereof, the Company and each Purchaser hereby
irrevocably waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction in New York of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Nothing in
this Section shall affect or limit any right to serve process in
any other manner permitted by law.


 


(f)           Maximum
Payments. Nothing contained
herein or in any document referred to herein or delivered in
connection herewith shall be deemed to establish or require the
payment of a rate of interest or other charges in excess of the
maximum permitted by applicable law. In the event that the rate of
interest required to be paid or other charges hereunder exceed the
maximum permitted by such law, any payments in excess of such
maximum shall be credited against amounts owed by the Company to
the Purchasers and thus refunded to the
Company.


 

(g)           
Calendar
Days. All references to
“days” in the Transaction Documents shall mean calendar
days unless otherwise stated. The terms “business days”
and “trading days” shall mean days that the New York
Stock Exchange is open for trading for three or more hours. Time
periods shall be determined as if the relevant action, calculation
or time period were occurring in New York City. Any deadline that
falls on a non-business day in any of the Transaction Documents
shall be automatically extended to the next business day and
interest, if any, shall be calculated and payable through such
extended period.


 

(h)           
Captions: Certain
Definitions. The captions of the various sections and
paragraphs of this Agreement have been inserted only for the
purposes of convenience; such captions are not a part of this
Agreement and shall not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this Agreement. As
used in this Agreement the term “person” shall mean and
include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an
unincorporated organization and a government or any department or
agency thereof.


 


 




 

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(i)           Severability.
In the event that any term or provision of this Agreement shall be
finally determined to be superseded, invalid, illegal or otherwise
unenforceable pursuant to applicable law by an authority having
jurisdiction and venue, that determination shall not impair or
otherwise affect the validity, legality or enforceability: (i) by
or before that authority of the remaining terms and provisions of
this Agreement, which shall be enforced as if the unenforceable
term or provision were deleted, or (ii) by or before any other
authority of any of the terms and provisions of this
Agreement.


 


(j)           
Successor
Laws. References in the
Transaction Documents to laws, rules, regulations and forms shall
also include successors to and functionally equivalent replacements
of such laws, rules, regulations and forms.


 


(k)
          Independent
Nature of Purchasers.     The Company
acknowledges that the obligations of each Purchaser under the
Transaction Documents are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of
any other Purchaser under the Transaction Documents. The
Company acknowledges that each Purchaser has represented that the
decision of each Purchaser to purchase the Notes has been made by
such Purchaser independently of any other Purchaser and
independently of any information, materials, statements or opinions
as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company which may have been made or
given by any other Purchaser or by any agent or employee of any
other Purchaser, and no Purchaser or any of its agents or employees
shall have any liability to any other Purchaser (or any other
person) relating to or arising from any such information,
materials, statements or opinions.  The Company acknowledges that nothing contained in
any Transaction Document, and no action taken by any Purchaser
pursuant hereto or thereto shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction
Documents.  The Company acknowledges that it has elected to
provide all Purchasers with the same terms and Transaction
Documents for the convenience of the Company and not because
Company was required or requested to do so by the Purchasers. 
The Company acknowledges that such procedure with respect to the
Transaction Documents in no way creates a presumption that the
Purchasers are in any way acting in concert or as a group with
respect to the Transaction Documents or the transactions
contemplated thereby.


 


(l)           Equal
Treatment. No consideration shall be offered or paid to any
person to amend or consent to a waiver or modification of any
provision of the Transaction Documents unless the same
consideration is also offered and paid to all the Purchasers and
their permitted successors and assigns.


 



[-SIGNATURE PAGES FOLLOW-]




 

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SIGNATURE PAGE OF THE COMPANY TO NOTE PURCHASE
AGREEMENT


 


Please
acknowledge your acceptance of the foregoing Note Purchase
Agreement by signing and returning a copy to the undersigned
whereupon it shall become a binding agreement between
us.


 


 


	
 

	
 FLUOROPHARMA
MEDICAL, INC.

 


 


   
By: ________________________________


          
Name: Thomas H. Tulip


          
Title: President & Chief Executive Officer

 










 


 


 




 

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SIGNATURE PAGE OF PURCHASERS TO NOTE PURCHASE
AGREEMENT


 


 


 


 


	


PURCHASER

	


PRINCIPAL



AMOUNT AND



PURCHASE PRICE


	

Name:


Address:


 


 


Taxpayer ID#:
__________________


 


 


______________________________________


(Signature)


By:


 

	

$________







 


 




 

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LIST OF EXHIBITS AND SCHEDULES








Exhibit A

Form
of Note









Exhibit B

Registration
Rights Agreement









Exhibit C

Security
Agreement









Exhibit D

Intercreditor
Agreement






 




Schedule 1


List of Purchasers








Schedule 3(d)









 




 

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SCHEDULE 1


 


 


	


PURCHASER AND ADDRESS

	


PRINCIPAL AMOUNT AND PURCHASE PRICE


	
 

	
 


	
 

	
 


	

TOTALS

	
 







 


 


 


 




 

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SCHEDULE TO NOTE PURCHASE AGREEMENT


 



Schedule 3(d) Capitalization and Additional Issuances


 


 


 


 


 




 

-14-








 






 



EXHIBIT A



FORM OF NOTE


 


 


 


 


 




 

-15-








 






 



EXHIBIT B



FORM OF ESCROW AGREEMENT


 


 


 


 


 




 

-16-








 






 



EXHIBIT C



FORM OF REGISTRATION RIGHTS AGREEMENT


 


 


 


 


 


 




 

-17-