Exhibit 10.1


 


 




 





 


AVAX TECHNOLOGIES,
INC.


 


 


Up to $1,000,000


 


Aggregate Principal
Amount


 


of


 


5% Convertible Notes due May 17, 2004


 


 


NOTE PURCHASE
AGREEMENT


 


 


Dated as of November
17, 2003


 


 




 




















 


AVAX TECHNOLOGIES,
INC.


 


5% Convertible Notes
Due May 17, 2004


 


NOTE PURCHASE
AGREEMENT


 


November 17, 2003


 


To the Purchasers Listed on the Signature
Pages Hereto:


 


 


Ladies and Gentlemen:


 


AVAX
Technologies, Inc., a Delaware corporation (the “Company”), proposes, subject
to the terms and conditions contained herein, to sell to the Purchasers listed
on the signature pages hereto (individually, a “Purchaser” and collectively the
“Purchasers”), up to $1,000,000 aggregate principal amount of the Company’s 5%
Convertible Notes Due May 17, 2004 (individually, a “Note” and collectively,
the “Notes”) and the warrants to purchase up to 7,692,300 fully paid and
non-assessable shares of common stock, par value $.004 per share, of the
Company (the “Common Stock”) for $0.143 per share (individually a “Warrant” and
collectively, the “Warrants”).  The
Notes will be convertible into shares of Common Stock or other securities of
the Company, as more fully described therein.


 


The sale of
the Note and Warrant to the Purchasers will be made without registration of the
Note or Warrant under the Securities Act in reliance upon an exemption from the
registration requirements of the Securities Act.


 


Section 1.              Purchase of Company Note and Warrant.


 


1.1          Purchase and Sale of the
Note and Warrant.  Subject to the
terms and conditions of this Agreement, the Company will issue and sell to the
Purchasers, and the Purchasers will purchase from the Company the Notes and the
Warrants at a purchase price of 100% of the principal amount of the Note
purchased by each Purchaser (the “Purchase Price”).  The principal amount of the Note to be issued to and purchased by
each Purchaser is set forth on that Purchaser’s signature page, and the number
of shares of Common Stock subject to the Warrant issued to each Purchaser is
set forth on the signature page for that Purchaser.


 


Section 2.              Closing. 
The closing (the “Closing”) of the purchase and sale of each Note and
the Warrant (the “Transaction”) will take place by telephone, facsimile and
express mail on such date as each Purchaser and the Company may agree, provided
that no Notes or Warrants may be issued by the Company pursuant to this
Agreement after December 1, 2003, or for an aggregate principal amount of Notes
in excess of $1,000,000.  The date of
the Closing for each Purchaser is referred to as the “Closing Date.”  At the Closing, the Company will issue and
deliver to the Purchaser the Note and the Warrant purchased by the Purchaser,
against payment of the Purchaser’s Purchase Price reflected on the signature
page by wire transfer of immediately available United States funds payable to
the Company’s account pursuant to the wire transfer instructions provided by
the Company to each Purchaser.


 


Section 3.              Conditions to the Obligations of Purchaser at Closing.  The obligation of each Purchaser to purchase
and pay for the Note and the Warrant at Closing is subject to the satisfaction
on or prior to the Closing Date of the following conditions, each of which may
be waived by a Purchaser:


 

















 


3.1          Opinion of Counsel to
the Company.  Each Purchaser will
have received from Gilmore & Bell, P.C., securities counsel for the
Company, its opinion dated the Closing Date in the form of Exhibit A.


 


3.2          Representations and
Warranties.  The representations and
warranties of the Company contained in Section 6 must be true and correct in all
material respects on and as of the Closing Date except to the extent that the
representations and warranties relate to an earlier date in which case the
representations and warranties must be true and correct in all material
respects on and as of such earlier date.


 


3.3          Performance of
Covenants.  The Company will have
performed or complied in all material respects with all covenants and
agreements required to be performed by it on or prior to the Closing pursuant
to this Agreement.


 


3.4          No Injunctions; etc.  No court or governmental injunction, order
or decree prohibiting the purchase and sale of the Note and Warrant will be in
effect.  There will not be in effect any
law, rule or regulation prohibiting or restricting the sale or requiring any
consent or approval of any person that has not been obtained which prohibits
the consummation of any of the transactions contemplated by this Agreement.


 


3.5          Closing Documents.  The Company will have delivered to the
Purchaser (a) a certificate of the Secretary of the Company, dated as of the
first Closing Date, certifying (i) the attached are true and complete copies of
the Articles of Incorporation and Bylaws of the Company, as in effect on the
date of such certification; and (ii) the attached are true and complete copies
of the resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance of this Agreement as in effect on the date
of such certification.


 


3.6          Waivers and Consents.  The Company will have obtained all consents
and waivers necessary to execute and deliver this Agreement and all related
documents and agreements and to issue and deliver the Note and the Warrant, and
all consents and waivers will be in full force and effect.


 


3.7          Satisfaction of Purchaser.  All proceedings to be taken in connection
with the Transaction are to be consummated at or prior to the Closing, and all
documents incidental thereto shall be reasonably satisfactory in form and
substance to Purchaser and its counsel, and Purchaser and its counsel shall
have received copies of all documents and information which it may have
reasonably requested in connection with the Transaction and of all corporate
proceedings in connection therewith, in form and substance reasonably
satisfactory to Purchaser and its counsel.


 


Section 4.              Conditions to the
Obligations of the Company at Closing. 
The obligation of the Company to issue and sell the Note and the Warrant
to the Purchaser at Closing is subject to the satisfaction on or prior to the
Closing Date of the following conditions, each of which may be waived by the
Company:


 


4.1          Representations and
Warranties.  The representations and
warranties of the Purchaser contained in this Agreement must be true and
correct in all material respects as of the Closing Date.


 


4.2          No Injunctions.  No court or governmental injunction, order
or decree prohibiting the purchase or sale of the Note and Warrant will be in
effect.


 


Section 5.              Representations and
Warranties of Purchaser.  Each
Purchaser represents and warrants to the Company that:


 


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5.1          Accredited Investor.  Purchaser is an “accredited investor” as
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended (the “Securities Act”). 
Purchaser is acquiring the Note and the Warrant for its own account and
not with a present view to, or for sale in connection with, any distribution
thereof in violation of the registration requirements of the Securities Act.


 


5.2          Authority, etc.  Purchaser has the power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder.  The execution and delivery
by Purchaser of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate or other action on
the part of Purchaser.  If Purchaser is
an individual, Purchaser has the legal capacity to enter into this
Agreement.  This Agreement constitutes a
legal, valid and binding obligation of Purchaser, enforceable against Purchaser
in accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies, and to limitations
of public policy.


 


5.3          Access to Information.  Purchaser acknowledges that it has been
afforded (i) the opportunity to ask the questions it deemed necessary of, and
to receive answers from, representatives of the Company concerning the Company
and the terms and conditions of the Transaction; and (ii) the opportunity to
request such additional information concerning the Company as the Company
possesses or can acquire without unreasonable effort or expense.


 


5.4          No General Solicitation.  Purchaser is not purchasing the Note and the
Warrant as a result of any advertisement, article, notice or other
communication published in a newspaper or magazine or similar media or
broadcast over television or radio, whether closed circuit, or generally
available, or any seminar, meeting or other conference whose attendees were
invited by any general solicitation or general advertising.


 


Section 6.              Representations and
Warranties of the Company.  The
Company represents and warrants to each Purchaser that as of the date hereof
and the Closing Date:


 


6.1          Organization, Good
Standing and Qualification; Subsidiaries. 
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.  The Company has full corporate power and
authority to own and hold its properties and to conduct its business.  The Company is duly licensed or qualified to
do business, and in good standing, in each jurisdiction in which the nature of
its business requires licensing, qualification or good standing, except for any
failure to be so licensed or qualified or in good standing that would not have
a material adverse effect on the Company or its business, properties,
prospects, results of operations, assets, condition (financial or otherwise), or
on its ability to perform its obligations under this Agreement.


 


6.2          Corporate Power,
Authorization; Enforceability.  (a)
The Company has full corporate power and authority to execute, deliver and
enter into this Agreement and to consummate the transactions contemplated
hereby.  All action on the part of the
Company, its directors or stockholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Note and the Warrant
contemplated hereby and the performance of the Company’s obligations hereunder
has been taken.  Each of the Note and
the Warrant to be purchased on the Closing Date has been duly authorized and,
when issued in accordance with this Agreement, will constitute a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms and will not be subject to any preemptive rights or
other similar rights of stockholders of the Company.  This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to laws
of general application relating to bankruptcy,


 


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insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies, and to limitations of public policy.


 


(b)           When the Note and the
Warrant are delivered and paid for pursuant to this Agreement on the Closing
Date, the Note will be convertible into Common Stock or other securities of the
Company in accordance with its terms and the Warrant will be exercisable for
shares of Common Stock in accordance with its terms; the Common Stock initially
issuable upon conversion of the Note and upon exercise of the Warrant has been
duly authorized and reserved for issuance upon such conversion or exercise and,
when and if issued upon such conversion of the Note or exercise of the Warrant,
will be validly issued, fully paid and nonassessable; and the stockholders of
the Company have no preemptive rights with respect to the Note, the Warrant or
the Common Stock issuable upon conversion of the Note or exercise of the Warrant.


 


6.3          Financial Statements and
SEC Documents.  (a) Included in the
Company’s Form 10-KSB for the year ended December 31, 2002, are true
and complete copies of the audited consolidated balance sheet (the “Balance
Sheet”) of the Company as of December 31, 2002, and the related audited
consolidated statements of operations, stockholders’ equity and cash flows for
the years ended December 31, 2002 and 2001 and for the period from January
12, 1990 (incorporation) to December 31, 2002 (the “Audited Financial
Statements”), accompanied by the report of Ernst & Young LLP with respect
to the years ended December 31, 2002 and 2001. 
The Company’s Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 2003, June 30, 2003 and September 30, 2003, are available
to the Purchaser on the Securities and Exchange Commission’s (the “SEC”) EDGAR
System.  Included in the Quarterly
Reports are the requisite unaudited consolidated balance sheets of the Company
and the related unaudited consolidated statements of operations and statements
of cash flows (the “Unaudited Financial Statements,” and together with the
“Audited Financial Statements,” the “Financial Statements”).  The Financial Statements have been prepared
in accordance with generally accepted accounting principles, applied
consistently with the past practices of the Company (except as may be indicated
in the notes thereto), and as of their respective dates, fairly present, in all
material respects, the financial position of the Company and the results of its
operations as of the time and for the periods indicated therein.


 


(b)           A copy of each report,
schedule, effective registration statement and definitive proxy statement filed
by the Company with the SEC since January 1, 2003 (as the documents may
have been amended since the time of their filing, the “SEC Documents”), has
also been made available to the Purchaser via the SEC’s EDGAR System.  As of their respective filing dates, each
SEC Document complied in all material respects with the requirements of the Securities
Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as
applicable, and the rules and regulations of the SEC thereunder applicable to
the SEC Document.  The SEC Documents,
taken as a whole, neither contain any untrue statement of a material fact nor
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.


 


6.4          Material Misstatements.  Theo information contained in the SEC
Documents, including the Financial Statements, does not contain an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements made herein and therein, in light of the
circumstances under which they were made, not misleading.


 


6.5          No Integration.  Neither the Company, nor any of its
affiliates, nor any person acting on their behalf, has directly or indirectly
made any offers or sales of any security or solicited any offers to buy any security
under circumstances that would prevent the parties hereto from consummating the
transactions contemplated hereby pursuant to an exemption from registration
under the Securities Act pursuant to the provisions of Regulation D.  The transactions contemplated hereby are
exempt from the


 


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registration requirements of
the Securities Act, assuming the accuracy of the representations and warranties
herein contained of Purchaser to the extent relevant for such
determination.  The issuance of the Note
and the Warrant to the Purchaser will not be integrated with any other issuance
of the Company’s securities (past or current) that requires stockholder or that
would result in a violation of the Securities Act.


 


6.6          Litigation.  Except as set forth in the SEC Documents and
updates provided by the Company to the Purchaser, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
governmental agency or authority, or self-regulatory organization or body
pending or threatened against or affecting the Company or any of its directors
or officers in their capacities as such.


 


6.7          No Anti-dilution.  The issuance of the Note and the Warrant
does not constitute an anti-dilution event for any existing security holders of
the Company, pursuant to which such security holders would be entitled to
additional securities or a reduction in the applicable conversion price or
exercise price of any securities.


 


Section 7.              Covenants of the
Company.  The Company covenants and
agrees as follows:


 


7.1          Reporting Status.  So long as the Company is subject to the
reporting requirements of the Exchange Act, the Company will use its best
efforts to file timely all reports required to be filed with the SEC pursuant
to the Exchange Act.


 


7.2          Form D.  The Company will file a Form D within 15
days of the Closing Date with respect to the Note and the Warrant with the SEC
as required under Regulation D under the Securities Act, and will provide a
copy thereof to the Purchaser.


 


7.3          Integration.  The Company will insure that the issuance of
the Note and the Warrant to the Purchaser will not be integrated with any other
issuance of the Company’s securities in the future, which requires stockholder
approval or which would result in a violation of the Securities Act.


 


7.4          Special Meeting of
Stockholders.  The Company will use
its reasonable efforts to call a special meeting of its stockholders by
December 31, 2003, to consider a proposal to either (i) increased the authorized
number of shares of Common Stock, or (ii) effect a reverse stock split of the
Common Stock.


 


7.5          Offering of Securities.  The Company will use its reasonable efforts
to close an offering of securities on or before May 17, 2004, in which the
gross proceeds to the Company are not less than $1,000,000 (the
“Offering”).  Upon the closing of the
Offering, the Note will automatically convert into shares of Common Stock or
the other securities issued in the Offering, in accordance with the terms of
the Note.


 


Section 8.              Survival of
Representations and Warranties. 
Notwithstanding any investigation made by any party to this Agreement,
all representations and warranties made by the Company and the Purchaser herein
and in the Note and the Warrant delivered pursuant hereto, shall survive for a
period of one year after the Closing Date and shall thereupon expire together
with the associated right to indemnification pursuant to Section 10(a)(iv), unless a
claim for indemnification (whether or not fixed as to liability or liquidated
as to amount) shall be made with respect thereto prior to the end of such
period, in which case such representation or warranty with respect to which
such claim has been made, and the associated right to indemnification shall
survive until such claim is satisfied, settled or dismissed.


 


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Section 9.              Piggyback
Registration Rights.  In connection
with the Offering, the Company anticipates filing a registration statement on
Form S-3 to register for reoffering and resale the securities sold by the
Company in the Offering.  Upon
completion of the Offering, the Purchaser shall have the right, upon the same
terms as the investors in the Offering, to include in any registration
statement of the Company under the Securities Act filed in connection
therewith, all of the Registrable Securities held by the Purchaser.  For the purposes of this Agreement,
“Registrable Securities” means the Common Stock or other securities of the
Company issuable upon conversion of the Note and the Common Stock issuable upon
exercise of the Warrant.  If the
Purchaser decides not to include the Registrable Securities in the registration
statement filed in connection with the Offering, the Purchaser’s piggyback
registration rights granted pursuant to this Section will terminate.


 


Section 10.            Indemnification.  (a) The Company will indemnify, to the
extent permitted by law, the Purchaser and each director, officer or
controlling person of the Purchaser within the meaning of Section 15 of the
Securities Act against all losses, claims, damages, liabilities and expenses,
(or action in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on (i) any untrue statement or alleged untrue statement of a material fact
contained in, or information incorporated by reference into, any registration
statement or prospectus (or any amendment or supplement thereto) or any
preliminary prospectus prepared in connection with the registration
contemplated by Section 9, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) any failure by the Company to fulfill
and perform any agreement, covenant or undertaking herein, or (iv) any failure
or breach of the representations and warranties of the Company set forth in Section 6
to be accurate as of the date hereof and as of the Closing Date, and will
promptly reimburse the Purchaser and each director, officer or controlling
person of the Purchaser for reasonable legal and other expenses incurred in
connection with investigating or defending any claim, loss, damage, liability
or action as incurred; provided however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises directly out of or is based upon an untrue statement
or alleged untrue statement or by any omission or alleged omission made in such
registration statement or prospectus made in reliance upon and in conformity
with written information furnished by the Purchaser specifically for use in the
preparation of the registration statement or prospectus, provided further,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises directly out of
or is based primarily upon an untrue statement or omission made in any
preliminary prospectus or final prospectus if (i) the Purchaser failed to send
or deliver a copy of the final prospectus or prospectus supplement with or
prior to the delivery of written confirmation of the sale of the Registrable
Securities, and (ii) the final prospectus or prospectus supplement would have
corrected such untrue statement or omission. 
The indemnification obligation of the Company with respect to clause
(iv) above, will survive for a period ending on the first anniversary of the
Closing Date, unless a claim for indemnification (whether or not fixed as to
liability or liquidated as to amount) is made with respect hereto prior to the
end of such period, in which case the right to indemnification shall survive
until such claim is satisfied, settled or dismissed.


 


(b)           In connection with the shelf
registration statement in which the Purchaser may participate, the Purchaser
will furnish to the Company in writing the information as is reasonably
requested by the Company for use in the shelf registration statement or
prospectus and will indemnify, to the extent permitted by law, the Company, its
directors and officers and each person or entity, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages, liabilities and expenses resulting from any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact required to be stated in the shelf
registration statement or prospectus or any amendment thereof or supplement
thereto or necessary to make the statements therein not misleading, but only to
the extent the losses, claims, damages, liabilities or expenses are caused by
an untrue statement or alleged untrue statement or by an omission or alleged


 


7

















 


omission made in reliance upon
and in conformity with the written information specifically furnished by the
Purchaser to the Company for use in connection with the preparation of the
shelf registration statement or prospectus; provided however, that the
indemnity will not apply to the extent that the loss, claim, damage, liability
or expense arises out of or is based upon a violation of this Agreement by the
Company.  If the offering pursuant to
any registration is made through underwriters, the Purchaser agrees to enter
into an underwriting agreement in customary form with the underwriters and to
indemnify the underwriters, their officers and directors, if any, and each
person or entity who controls the underwriters within the meaning of the
Securities Act to the same extent as hereinabove provided with respect to
indemnification by the Purchaser. 
Notwithstanding the foregoing or any other provision of this Agreement,
in no event will the Purchaser be liable for any losses, claims, damages,
liabilities or expenses in excess of the net proceeds received by Purchaser
upon the disposition of Registrable Securities pursuant to the registration
statement giving rise to such claim.


 


(c)           Promptly after receipt
by an indemnified party under Section 10(a) or (b) of notice of any claim as
to which indemnity may be sought, including the commencement of any action or
proceeding, the indemnified party will, if a claim in respect thereof may be
made against the indemnifying party under this Section, promptly notify the
indemnifying party in writing of the commencement thereof; provided that the
failure of the indemnified party to so notify the indemnifying party will not
relieve the indemnifying party from its obligations under this Section except
to the extent that the indemnifying party is adversely affected by the failure.
In case any action or proceeding is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party and its counsel will conduct the defense of any action with
counsel approved by the indemnified party (which approval will not be
unreasonably withheld or delayed) although the indemnified party will be
entitled to participate therein at the indemnified party’s expense, and after
notice from the indemnifying party to the indemnified party of its election to
so assume the defense thereof, the indemnifying party will not be liable to the
indemnified party under that Section for any legal or any other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof (other than reasonable costs of investigation) unless incurred at the
written request of the indemnifying party. Notwithstanding the above, the
indemnified party will have the right to employ counsel of its own choice in
any action or proceeding (and be reimbursed by the indemnifying party for the
reasonable fees and expenses of the counsel and other reasonable costs of the
defense) if representation of the indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests or conflicts between the indemnified party and any other
party represented by the counsel in the action or proceeding or counsel to the
indemnified party is of the opinion that it would not be desirable for the same
counsel to represent both the indemnifying party and the indemnified party
because the representation might result in a conflict of interest; provided,
however, that the indemnifying party will not in connection with any one
action or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all indemnified parties, except to the extent that local counsel, in
addition to regular counsel, is required in order to effectively defend against
the action or proceeding.  An
indemnifying party will not be liable to any indemnified party for any
settlement or entry of judgment concerning any action or proceeding effected
without the consent of the indemnifying party.


 


(d)           If the indemnification
provided for in Section 10(a) or (b) is held by a court of competent
jurisdiction to be unavailable under applicable law to an indemnified party in
respect of any losses, claims, damages or liabilities referred to therein, then
each applicable indemnifying party, in lieu of indemnifying the indemnified
party, will contribute to the amount paid or payable by the indemnified party
as a result of the losses, claims, damages or liabilities in the proportion as
is appropriate to reflect the relative fault of the Company on the one hand and
of the indemnified party on the other in connection with the statements or
omissions which resulted in the losses, claims, damages, or liabilities, as
well as


 


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any other relevant equitable
considerations including the relative benefits to the parties.  The relative fault of the Company on the one
hand and of the indemnified party on the other will be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the Company or by the indemnified party and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
the statement or omission.  The amount
paid or payable by a party as a result of the losses, claims, damages and
liabilities referred to above will be deemed to include, subject to the
limitations set forth in Section 10(c), any legal or other fees or
expenses reasonably incurred by the party in connection with investigating or
defending any action or claim.  No
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity that is not guilty of fraudulent misrepresentation.


 


Section 11.            Miscellaneous.


 


11.1        Notices.  Any notice or other communication given
hereunder will be deemed sufficient if in writing and sent by registered or
certified mail, return receipt requested, or delivered by hand against written
receipt therefor, or sent by confirmed facsimile, addressed to:


 


If to the
Company:


 


AVAX
Technologies, Inc.


9200 Indian
Creek Parkway, Suite 200


Overland Park,
Kansas  66210


Attn:       Richard P. Rainey


Facsimile:  (913) 693-8497


 


With a copy
to:


 


Gilmore &
Bell, P.C.


2405 Grand
Boulevard, Suite 1100


Kansas City,
Missouri  64108


Attn:       Richard M. Wright


Facsimile:  (816) 221-1018


 


If to the
Purchaser:


 


To the name
and address or facsimile number of the Purchaser on the signature page hereto.


 


Notices will
be deemed to have been given or delivered on the date of mailing, except
notices of change of address, which will be deemed to have been given or
delivered when received.


 


11.2        Successors and Assigns.  This Agreement will be binding upon and
inure to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns.


 


11.3        Entire Agreement.  This Agreement, the Note and the Warrant
collectively set forth the entire agreement and understanding among the parties
as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among
them.  This Agreement may be amended
only by mutual written agreement of the Company and the Purchasers holding a
majority of the principal amount of Notes issued under this Agreement.


 


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11.4        Governing Law.  The terms and provisions hereof will be
construed in accordance with and governed by the laws of the State of Delaware
without regard to that State’s conflicts of law principles.


 


11.5        Severability.  The holding of any provision of this
Agreement to be invalid or unenforceable by a court of competent jurisdiction
will not affect any other provision of this Agreement, which will remain in
full force and effect.  If any provision
of this Agreement is declared by a court of competent jurisdiction to be
invalid, illegal or incapable of being enforced in whole or in part, the
provision will be interpreted so as to remain enforceable to the maximum extent
permissible consistent with applicable law and the remaining conditions and
provisions or portions thereof will nevertheless remain in full force and
effect and enforceable to the extent they are valid, legal and enforceable, and
no provisions will be deemed dependent upon any other covenant or provision
unless so expressed herein.


 


11.6        No Waiver.  A waiver by either party of a breach of any
provision of this Agreement will not operate, or be construed, as a waiver of
any subsequent breach by that same party.


 


11.7        Further Assurances.  The parties agree to execute and deliver all
further documents, agreements and instruments and take further action as may be
necessary or appropriate to carry out the purposes and intent of this
Agreement.  Any documentary, stamp tax
or similar issuance or transfer taxes due as a result of the conveyance,
transfer or sale of the Note and the Warrant between the Purchaser (or any
permitted transferee), on the one hand, and the Company, on the other hand,
pursuant to this Agreement will be borne by the Company.


 


11.8        Counterparts.  This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will together constitute the same instrument.


 


11.9        No Third Party
Beneficiaries.  Nothing in this
Agreement creates in any person not a party to this Agreement any legal or
equitable right, remedy or claim under this Agreement, and this Agreement is
for the exclusive benefit of the parties hereto.  The parties expressly recognize that this Agreement is not
intended to create a partnership, joint venture or other similar arrangement
between any of the parties or their respective affiliates.


 


10

















 


IN WITNESS WHEREOF,
the undersigned have duly executed this Note Purchase Agreement as of the date
first above written.


 


	
  [NAME OF PURCHASER]

  	
   

  	
  AVAX TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
  Richard P. Rainey

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated: 
                       ,
  2003

  	
   

  	
  Dated: 
                     ,
  2003

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  
	
  Tax Id No.:

  	
   

  	
   

  
								



 


Principal Amount of Notes Purchased:


 


$                        


 


 


Warrants to purchase
                  
shares

of Common Stock


 


Purchase
Price:  $                        


 


 


Closing
Date:                                    ,
2003


 


11