Exhibit 10.30
SECURITIES PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 29th day of June, 2001, by and between
LifeCell Corporation (the "Company"), a Delaware corporation, with its principal
offices at Xxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 and each of entities
set forth on the signature page hereto (each a "Purchaser" and together the
"Purchasers").
WHEREAS, the Company has authorized the issuance and sale to the Purchasers
(in the amounts set forth on the signature page hereto), pursuant to this
Agreement, of an aggregate of 781,250 shares of the Company's Common Stock, par
value $.001 per share (the "Common Stock"), at a purchase price per share of
$1.92 (calculated based on the average closing price of the Common Stock on the
Nasdaq National Market for the five days prior to the date hereof) and warrants
to purchase an aggregate 437,500 shares of Common Stock (the "Warrants") as set
forth on Exhibit A attached hereto; and
WHEREAS, the Purchasers desire to purchase the shares of Common Stock (the
"Shares") and the Warrants (together with the Shares, the "Securities") from the
Company on the terms and subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:
SECTION 1. Commitment to Purchase. Upon the basis of the
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representations and warranties, but subject to the terms and conditions
contained herein, the Company agrees to issue and sell to the Purchasers and the
Purchasers agree to purchase from the Company, at the Closing (as defined
below), the Shares and Warrants (in the amounts set forth on the signature page
hereof) for an aggregate purchase price of One Million Five Hundred Thousand
Dollars ($1,500,000) (the "Purchase Price").
SECTION 2. The Closing.
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(a) The purchase and sale of the Shares and the Warrants shall take
place at a closing (the "Closing") at the offices of Xxxxxxxxxx Xxxxxxx PC, 00
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx xx July 5, 2001, or at such other
location and on such other date as the Company and the Purchasers shall mutually
agree. The date and time of the Closing are referred to herein as the "Closing
Date."
(b) At the Closing, the Purchasers shall deliver to the Company (i)
the Purchase Price by check or by wire transfer of immediately available funds
to an account designated by the Company at least two (2) business days prior to
the Closing and (ii) the documents set forth in Section 6.02 of this Agreement.
(c) At the Closing, the Company shall deliver or cause to be delivered
to the Purchasers (i) certificates representing the Shares, in definitive form
and registered in each of the Purchaser's name or such names as the Purchasers
shall request at least two (2) business days prior to the Closing Date, against
payment of the Purchase Price, (ii) the Warrants, duly executed by the Company,
and (iii) the documents set forth in Section 6.01 of this Agreement.
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SECTION 3. Representations and Warranties of the Company. The Company
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hereby represents and warrants to the Purchasers on the date hereof and as of
the Closing Date as follows:
3.01 Organization and Qualification. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company does not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, association or
other entity. The Company has the power and authority, corporate or otherwise,
as appropriate, to own, lease and operate its properties and to conduct its
business as now conducted and to enter into and perform its obligations under
this Agreement, the Warrants and the Registration Rights Agreement to be entered
into between the Company and the Purchasers (the "Registration Rights
Agreement"); and the Company is duly qualified as a foreign corporation and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not individually or in
the aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, properties, business, prospects or results of operations
of the Company (a "Material Adverse Effect").
3.02 Authorized Capital Stock. The Company has authorized, issued
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and outstanding capital stock as set forth in the Company's reports (the "34 Act
Reports") filed by it with the Securities and Exchange Commission (the
"Commission") since January 1, 2001 pursuant to the Securities and Exchange Act
of 1934, as amended (the "Exchange Act") (except as set forth on Schedule 3.2
and except for subsequent issuances, if any, pursuant to this Agreement or
pursuant to agreements, employee or director benefit plans or the exercise of
convertible securities referred to in the 34 Act Reports). The issued and
outstanding shares of the Company's preferred stock, par value $.001 per share
(the "Preferred Stock"), and Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable, were not issued in violation of or are
not otherwise subject to any preemptive or other similar rights or other rights
to subscribe for or purchase securities, and conform to the description thereof
contained in the 34 Act Reports. Except as disclosed in the 34 Act Reports and
options issued under the Company's stock plans after March 31, 2001 and except
as set forth on Schedule 3.2, the Company does not have outstanding any options
or warrants to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock or any
shares of capital stock of any subsidiary and there is no commitment, plan or
arrangement to issue, any securities or obligations convertible into any shares
of capital stock of the Company or any such options, rights convertible
securities or obligations. The description of the Company's capital stock,
stock bonus and other stock plans or arrangements and the options or other
rights granted and exercised thereunder, contained in the 34 Act Reports
accurately and fairly presents the information required to be shown with respect
to such capital stock, plans, arrangements, options and rights.
3.03 Issuance, Sale and Delivery of the Shares. The Shares have been
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duly authorized and, when issued, delivered and paid for in the manner set forth
in this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable. The shares of Common Stock issuable upon exercise of the
Warrants have been duly and validly authorized and reserved for issuance and,
upon issuance in accordance with the terms of the Warrants, will be duly
authorized and validly issued, fully paid and nonassessable. No preemptive
rights or other rights (which have not been waived) to subscribe for or purchase
exist with respect to the issuance and sale of the Securities by the Company
pursuant to this Agreement. Except for rights disclosed in the 34 Act Reports,
no stockholder of the Company has any right to request or require the Company to
register the sale of any shares owned by such stockholder under the Securities
Act of 1933, as amended (the "Securities Act"). Subject to the conditions set
forth in Section 6.02, no further approval or authority of the stockholders or
the Board of Directors of the Company will be required for the issuance and sale
of the Securities to be sold by the Company as contemplated herein.
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3.04 Due Execution, Delivery and Performance of this Agreement.
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The Company has full legal right, corporate power and authority to enter into
this Agreement, the Registration Rights Agreement and the Warrants and to
perform the transactions contemplated hereby and thereby. Each of this
Agreement, the Registration Rights Agreement and the Warrants has been duly
authorized, executed and delivered by the Company. The execution, delivery and
performance of this Agreement, the Registration Rights Agreement and the
Warrants by the Company and the consummation of the transactions contemplated
hereby and thereby will not violate any provision of the organizational
documents of the Company and will not result in the creation of any lien,
charge, security interest or encumbrance upon any assets or property of the
Company pursuant to the terms or provisions of, or will not conflict with,
result in the breach or violation of, or constitute, either by itself or upon
notice or the passage of time or both, a default under any agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which the Company is a party or by which the Company or any of its assets or
properties may be bound or affected or, to the Company's knowledge, and subject
to satisfaction of the conditions set forth in Section 6.02, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
the Company or any of its properties. No consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other
governmental body is required for the execution, delivery and performance of
this Agreement, the Registration Rights Agreement or the Warrants or the
consummation of the transactions contemplated hereby or thereby, except for
compliance with Blue Sky laws and federal securities laws applicable to the
offering and registration for resale of the Shares and the shares of Common
Stock issuable upon exercise of the Warrants and compliance with the rules and
regulations of the securities exchange or trading market on which the Common
Stock is listed. Upon the execution and delivery, and assuming the valid
execution of this Agreement and the Registration Rights Agreement by the
Purchasers, each of this Agreement, the Registration Rights Agreement and the
Warrants will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Company in
Section 7.02 of this Agreement or Section 2.4 of the Registration Rights
Agreement may be legally unenforceable.
3.05 Financials. The Company's financial statements (including
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all notes and schedules thereto) included in the 34 Act Reports present fairly
the financial position, the results of operations, the statements of cash flows
and the statements of stockholders' equity and the other information purported
to be shown therein of the Company at the respective dates and for the
respective periods to which they apply and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved.
3.06 No Defaults. The Company is not (i) in violation or default
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of any provision of its certificate of incorporation, bylaws or other
organizational documents, or (ii) in breach of or default with respect to any
provision of any agreement, judgment, decree, order, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which it is
a party or by which it or any of its assets or properties are bound, except for
violations, breaches and defaults which individually or in the aggregate would
not have a Material Adverse Effect; and there does not exist any state of fact
which, with notice or lapse of time or both, would constitute an event of
default on the part of the Company as defined in such documents, except such
defaults which individually or in the aggregate would not have a Material
Adverse Effect.
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3.07 Contracts. The contracts described in the 34 Act Reports as
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being in effect on the date hereof that are material to the Company, are in full
force and effect on the date hereof, and the Company is not, nor to the
Company's knowledge, is any other party in breach of or default under any of
such contracts which would have a Material Adverse Effect.
3.08 No Actions. Except as disclosed in the 34 Act Reports, there
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are no legal or governmental actions, suits or proceedings pending or, to the
Company's knowledge, threatened to which the Company is or may be a party or of
which property owned or leased by the Company is or may be the subject, or
related to environmental or discrimination matters, which actions, suits or
proceedings, individually or in the aggregate, might prevent or might reasonably
be expected to materially and adversely affect the transactions contemplated by
this Agreement, the Registration Rights Agreement or the Warrants or result in a
material adverse change in the condition (financial or otherwise), properties,
business, prospects or results of the operations of the Company (a "Material
Adverse Change"); and all pending legal or governmental proceedings to which the
Company is a party or of which any of its property or assets is the subject
which are not described in the 34 Act Reports, including ordinary routine
litigation incidental to the business, are, considered in the aggregate, not
material. Except as disclosed in the 34 Act Reports, the Company is not a party
to or subject to the provisions of any material injunction, judgment, decree or
order of any court, regulatory body administrative agency or other governmental
body.
3.09 Labor. No labor dispute with the employees of the Company
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exists or, to the knowledge of the Company, is imminent; and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors which might, singly or in
the aggregate, have a Material Adverse Effect.
3.10 Properties. The Company has valid title to all its
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properties as described in the 34 Act Reports, and such properties are not
subject to any lien, mortgage, pledge, charge or encumbrance of any kind, except
(i) those, if any, reflected in the Financial Statements (including the notes
thereto), or (ii) those which are not material in amount and do not materially
and adversely affect the use made and intended to be made of such property by
the Company. The Company holds its leased properties under valid and binding
leases, with such exceptions as are not materially significant in relation to
the business of the Company. Except as disclosed in the 34 Act Reports, the
Company owns or leases all such properties as are necessary to its operations as
now conducted.
3.11 No Material Change. Since March 31, 2001, (i) the Company
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has not incurred any liabilities or obligations, indirect, or contingent, or
entered into any verbal or written agreement or other transaction which is not
in the ordinary course of business or which could reasonably be expected to
result in a material reduction in the future earnings of the Company or in a
Material Adverse Effect; (ii) the Company has not sustained any material loss or
interference with its businesses or properties from fire, flood, windstorm,
accident or other calamity not covered by insurance; (iii) the Company has not
paid or declared any dividends or other distributions with respect to its
capital stock, other than regular quarterly dividends with respect to the Series
B Preferred Stock, and the Company is not in default in the payment of principal
or interest on any outstanding debt obligations; (iv) except as set forth on
Schedule 3.2, there has not been any change in the capital stock of the Company
other than the sale of the Shares hereunder and shares or options issued
pursuant to exercise of outstanding warrants or employee and director stock
option plans approved by the Company's Board of Directors or indebtedness
material to the Company (other than in the ordinary course of business); and (v)
there has not been a change that would result in a Material Adverse Change.
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3.12 Intellectual Property. Except as otherwise specifically
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disclosed in the 34 Act Reports, (i) the Company owns or has obtained valid
licenses, options or rights to use for the material inventions, patent
applications, patents, trademarks (both registered and unregistered), trade
names, copyrights and trade secrets necessary for the conduct of the Company's
business as currently conducted (collectively, the "Intellectual Property");
(ii) the Company has not received notice of any third parties who have any
ownership rights to any Intellectual Property that is owned by, or has been
licensed to, the Company for the product indications described in the 34 Act
Reports that would preclude the Company from conducting its business as
currently conducted; (iii) to the Company's knowledge, there are currently no
sales of any products that would constitute an infringement by third parties of
any material Intellectual Property owned, licensed or optioned by the Company;
(iv) there is no pending or, to the Company's knowledge, threatened action,
suit, proceeding or claim by others challenging the rights of the Company in or
to any material Intellectual Property owned, licensed or optioned by the
Company; (v) there is no pending or, to the Company's knowledge, threatened
action, suit, proceeding or claim by others challenging the validity or scope of
any material Intellectual Property owned, licensed or optioned by the Company;
and (vi) there is no pending or, to the Company's knowledge, threatened action,
suit, proceeding or claim by others that the Company infringes or otherwise
violate any patent, trademark, copyright, trade secret or other proprietary
right of others as would reasonably be expected to result in a Material Adverse
Effect.
3.13 Compliance. Except as disclosed in the 34 Act Reports, the
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Company has not been advised, and has no reason to believe, that it is not
conducting its business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business; except
where failure to be so in compliance would not individually or in the aggregate
have a Material Adverse Effect.
3.14 Environmental Matters. Except as disclosed in the 34 Act
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Reports and except as would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (A) the Company is in compliance
with all applicable Environmental Laws, (B) the Company has all permits,
authorizations and approvals required under any applicable Environmental Laws
and is in compliance with the requirements of such permits, authorizations and
approvals, (C) there are no pending or, to the knowledge of the Company,
threatened Environmental Claims against the Company and (D) under applicable
law, there are no circumstances with respect to any property or operations of
the Company that are reasonably likely to form the basis of an Environmental
Claim against the Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
3.15 Taxes. The Company has filed or obtained filing extensions
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with respect to all federal, state, local and foreign income and franchise tax
returns material to the Company, and has paid or accrued all taxes shown as due
thereon, and the Company has no knowledge of a tax deficiency which has been or
might be asserted or threatened against it which would reasonably be expected to
have a Material Adverse Effect.
3.16 Transfer Taxes. On the Closing Date, all stock transfer or
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other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Securities to be sold to the
Purchasers hereunder will be, or will have been, fully paid or provided for by
the Company and all laws imposing such taxes will be or will have been fully
complied with.
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3.17 Insurance. The Company maintains insurance of the type and
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in the amount that the Company reasonably believes is adequate for its business,
including, but not limited to, insurance covering all real and personal property
owned or leased by the Company against risks customarily insured against by
similarly situated companies, all of which insurance is in full force and
effect.
3.18 Contributions. The Company has not directly or indirectly,
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(i) made any unlawful contribution to any candidate for public office, or failed
to disclose fully where required by law any contribution in violation of law, or
(ii) made any payment to any federal or state governmental officer or official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
3.19 Investment Company. The Company is not an "investment
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company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for an investment company, within the meaning of the Investment Company Act of
1940, as amended.
3.20 Related Party Transactions. No transaction has occurred
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between or among the Company and its affiliates, officers or directors or any
affiliate or affiliates of any such officer or director that is required to be
described in the 34 Act Reports that is not so described.
3.21 Books and Records. The books, records and accounts of the
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Company accurately and fairly reflect, in reasonable detail, the transactions
in, and dispositions of, the assets of, and the results of operations of, the
Company, all to the extent required by generally accepted accounting principles.
The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
3.22 Regulatory Matters. Except as described in the 34 Act
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Reports, to the Company's knowledge, there are no rulemaking or similar
proceedings before The United States Food and Drug Administration or comparable
federal, state, local or foreign government bodies which involve or affect the
Company, which, if the subject of an action unfavorable to the Company, could
involve a Material Adverse Change.
3.23 Employee Agreements. To the knowledge of the Company, if any
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full-time employee identified in the 34 Act Reports has entered into any
non-competition, non-disclosure, confidentiality or other similar agreement with
any party other than the Company, such employee is neither in violation thereof
nor is expected to be in violation thereof as a result of the business conducted
or expected to be conducted by the Company as described in the 34 Act Reports or
such person's performance of his obligations to the Company; and the Company has
not received written notice that any consultant or scientific advisor of the
Company is in violation of any non-competition, non-disclosure, confidentiality
or similar agreement.
3.24 Finders' Fees. There is no investment banker, broker, finder or
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other intermediary which has been retained by or is authorized to act on behalf
of the Company who might be entitled to any fee or commission from the Company
or any of its affiliates upon consummation of the transactions contemplated by
this Agreement.
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SECTION 4. Representations and Warranties of the Purchasers. Each of the
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Purchasers, severally and not jointly, hereby represents and warrants to the
Company on the date hereof and as of the Closing Date as follows:
4.01. Existence and Power. Such Purchaser is an entity duly
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organized or formed, validly existing and in good standing under the laws of the
jurisdiction in which it is organized or formed and has all requisite power and
authority to enter into this Agreement and the Registration Rights Agreement and
to perform its obligations hereunder or thereunder.
4.02. Authorization. Such Purchaser has the power to execute,
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deliver and perform its obligations under this Agreement and the Registration
Rights Agreement, and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement and the Registration Rights
Agreement. This Agreement and the Registration Rights Agreement have been duly
executed and delivered by such Purchaser and constitute legal, valid and binding
agreements of such Purchaser, enforceable against such Purchaser in accordance
with their respective terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally and by equitable
principles of general applicability.
4.03. Governmental Authorization. The execution and delivery by
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such Purchaser of this Agreement and the Registration Rights Agreement, and the
performance and consummation of the transactions contemplated hereby and
thereby, require no material action by or in respect of, or material filing
with, any governmental body, agency or official.
4.04. Non-Contravention. The execution, delivery and performance
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of this Agreement and the Registration Rights Agreement and the performance and
consummation of the transactions contemplated hereby and thereby, will not
result in any violation under or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a material default
under such Purchaser's organizational documents or any judgment, order, writ,
decree or material contract to which such Purchaser is a party or by which it is
bound.
4.05. Private Placement.
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(a) Such Purchaser understands that the offering and sale of the
Securities is intended to be exempt from registration under the Securities Act.
(b) Such Purchaser represents and warrants that it is acquiring
the Securities to be purchased by it pursuant to this Agreement for investment
for such Purchaser's own account and not with a view to the resale or
distribution of such Securities or any interest therein other than in a
transaction that is registered or exempt from registration under the Securities
Act.
(c) Such Purchaser represents and warrants that it is an
"accredited investor" as such term is defined in Regulation D under the
Securities Act.
(d) Such Purchaser represents and warrants that it (either alone
or together with its advisors) has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Securities, and is capable of bearing the
economic risks of such investment, including a complete loss of its investment
in the Securities to be purchased by it hereunder.
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(e) Such Purchaser has been given the opportunity to ask
questions of, and receive answers from, the Company regarding the Company, the
terms and conditions of the Securities and related matters, and has been
furnished with the information it deems necessary or desirable to evaluate the
merits and risks of its acquisition of the Securities.
(f) Such Purchaser understands that the Securities that it is
purchasing are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the Securities Act and applicable
regulations, such Securities may be resold without registration under the
Securities Act only in certain limited circumstances. It is understood that the
certificates delivered at Closing evidencing the Securities will bear a
restrictive legend.
(g) Such Purchaser has, in connection with its decision to
purchase the Securities, relied solely upon the 34 Act Reports and the
representations and warranties of the Company contained herein.
4.06. Finders' Fees. There is no investment banker, broker,
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finder or other intermediary which has been retained by or is authorized to act
on behalf of such Purchaser who might be entitled to any fee or commission from
such Purchaser or any of its affiliates upon consummation of the transactions
contemplated by this Agreement.
SECTION 5. Covenants of the Company and the Purchasers.
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5.01 Best Efforts; Further Assurances. Subject to the terms and
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conditions of this Agreement, the Company and the Purchasers agree to use their
respective best efforts to: (i) obtain all necessary consents, waivers,
authorizations and approvals necessary or desirable in connection with the
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Warrants; and (ii) take, or cause to be taken, all other
actions and to do, or cause to be done, all other things reasonably necessary or
desirable under applicable laws to consummate the transactions contemplated by
this Agreement, the Registration Rights Agreement and the Warrants. The Company
and the Purchasers agree to execute and deliver such documents, certificates,
agreements and other writings and to take such other actions as may be
reasonably necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement, the Registration
Rights Agreement and the Warrants.
5.02. Certain Filings. The Company and the Purchasers agree
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to cooperate with each other: (i) in determining whether any action by or in
respect of, or filing with, any governmental body, agency, official or authority
is required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with the
consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement and the Warrants; and (ii) in taking such actions
or making any such filings, furnishing information required in connection
therewith and seeking timely to obtain any such actions, consents, approvals or
waivers.
5.03. Public Announcements. The Company and the Purchasers shall
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consult with each other before issuing any press release or making any public
statement with respect to this Agreement or the transactions contemplated hereby
and, except as may be required by applicable law or any listing agreement with
any national securities exchange, will not issue any such press release or make
any such public statement prior to such consultation.
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Section 6. Closing Deliveries.
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6.01. Conditions to the Purchasers' Obligations. The obligation of
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the Purchasers to consummate the transactions contemplated by this Agreement
shall be subject to the delivery of the fulfillment prior to or at the Closing
of the following conditions:
(a) The representations and warranties of the Company contained
in Section 3 shall be true on and as of the Closing in all material respects
with the same effect as though such representations and warranties had been made
on and as of the date of such Closing.
(b) The Company shall have performed and complied in all material
respects with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
(c) The Company shall have delivered a stock certificate to each
of the Purchasers representing the Shares being purchased by such Purchaser
hereunder.
(d) The Company shall have executed and delivered the Warrants in
the form attached hereto as Exhibit A to each of the Purchasers representing the
Warrants being purchased by such Purchaser hereunder.
(e) The Company shall have delivered such closing documents as
shall be reasonably requested by the Purchasers in form and substance reasonably
acceptable to the Purchasers' counsel, including, without limitation, the
following:
(i) a certificate of the Secretary of the Company, dated the
Closing Date, as to the incumbency of any officer executing this Agreement or
any document related thereto;
(ii) a certified copy of the resolutions of the Company's
Board of Directors authorizing (A) the execution, delivery and consummation of
this Agreement, the Registration Rights Agreement and the Warrants and (B)
transactions contemplated hereby and thereby; and
(iii) a certificate of the President of the Company, dated
the Closing Date, certifying that the conditions specified in this Section 6.01
have been fulfilled and that as of the date of Closing, there has not been no
Material Adverse Change.
(f) The Company shall have executed and delivered the
Registration Rights Agreement, substantially in the form attached hereto as
Exhibit B.
6.02. Conditions to the Obligations of the Company. The obligation
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of the Company to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment at or prior to the Closing of the following
conditions:
(a) The representations and warranties of each of the Purchasers
contained in Section 4 shall be true on and as of the Closing in all material
respects with the same effect as though such representations and warranties had
been made on and as of the Closing.
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(b) All authorizations, approvals or permits, if any, of any
governmental authority or regulatory body of the United States or of any state
or of any securities exchange or trading market on which the Common Stock is
listed that are required in connection with the lawful issuance and sale of the
Securities pursuant to this Agreement shall have been duly obtained and
effective as of the Closing and all filings with such authorities or regulatory
bodies shall have been made and accepted.
(c) Each of the Purchasers shall have performed and complied in
all material respects with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it on or
before the Closing.
(d) The Purchasers shall have paid the Purchase Price in full as
specified in Section 2.
(e) The Purchasers shall have executed and delivered the
Registration Rights Agreement in the form attached hereto as Exhibit B.
(f) The Purchasers shall have delivered to the Company such
closing documents as shall be reasonably requested by the Company in form and
substance reasonably acceptable to the Company's counsel.
Section 7. Survival of Representations and Warranties; Indemnification;
------------------------------------------------------------
Exclusive Remedy.
-----------------
7.01. Survival of Representations and Warranties. The
----------------------------------------------
representations and warranties provided for in this Agreement shall survive for
a period of two (2) years from the Closing Date; provided, that any
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive the time at which it would otherwise terminate if
notice of the inaccuracy or breach thereof shall have been given to the party
against whom such indemnity may be sought prior to such termination; and
provided, further, that such survival shall be solely with respect to such
inaccuracy or breach claimed.
7.02. Indemnification. (a) The Company shall indemnify and hold
---------------
harmless each of the Purchasers and its officers, directors, employees and
agents against any and all direct monetary costs, expenses, damages, liabilities
or losses (including, without limitation, reasonable counsel's fees and other
reasonable out-of-pocket costs incident to any suit, action or proceeding) (the
"Damages") to the extent caused by (i) the breach of any representation or
warranty made by the Company in this Agreement and (ii) the breach by the
Company of any covenant or agreement to be performed by it hereunder.
(b) The Purchasers shall, jointly and severally, indemnify and
hold harmless the Company and its officers, directors, employees and agents
against any and all Damages to the extent caused by (i) the breach of any
representation or warranty made by the Purchasers in this Agreement and (ii) the
breach by the Purchasers of any covenant or agreement to be performed by it
hereunder.
(c) Any Person providing indemnification pursuant to the
provisions of this Section 7.02 is hereinafter referred to as an "Indemnifying
Party" and any Person entitled to be indemnified pursuant to the provisions of
this Section 7.02 is hereinafter referred to as an "Indemnified Party."
7.03. Procedures for Third Party Claims. In the case of any claim
------------------------------------
for indemnification arising from a claim of a third party (a "Third Party
Claim"), an Indemnified Party shall give prompt written notice to the
Indemnifying Party of any claim or demand which such Indemnified Party has
knowledge and as to which it may request indemnification hereunder. The
Indemnifying Party shall have the right to defend and to direct the defense
against any such Third Party Claim, in its name or in the name of the
Indemnified Party, as the case may be, at the expense of the Indemnifying Party,
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and with counsel selected by the Indemnifying Party unless (i) such Third Party
Claim seeks an order, injunction or other equitable relief against the
Indemnified Party, or (ii) the Indemnified Party shall have reasonably concluded
that (x) there is a conflict of interest between the Indemnified Party and the
Indemnifying Party in the conduct of the defense of such Third Party Claim or
(y) the Indemnified Party has one or more defenses not available to the
Indemnifying Party. Notwithstanding anything in this Agreement to the contrary,
the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate
with the Indemnifying Party, and keep the Indemnifying Party fully informed, in
the defense of such Third Party Claim. The Indemnified Party shall have the
right to participate in the defense of any Third Party Claim with counsel
employed at its own expense; provided, however, that, in the case of any Third
Party Claim described in clause (i) or (ii) of the second preceding sentence or
as to which the Indemnifying Party shall not in fact have employed counsel to
assume the defense of such Third Party Claim, the reasonable fees and
disbursements of such counsel shall be at the expense of the Indemnifying Party.
The Indemnifying Party shall have no indemnification obligations with respect to
any Third Party Claim which shall be settled by the Indemnified Party without
the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
7.04. Procedures for Inter-Party Claims. In the event that an
------------------------------------
Indemnified Party determines that it has a claim for Damages against an
Indemnifying Party hereunder (other than as a result of a Third Party Claim),
the Indemnified Party shall give prompt written notice thereof to the
Indemnifying Party, specifying the amount of such claim and any relevant facts
and circumstances relating thereto. The Indemnified Party shall provide the
Indemnifying Party with reasonable access to its books and records for the
purpose of allowing the Indemnifying Party a reasonable opportunity to verify
any such claim for Damages. The Indemnified Party and the Indemnifying Party
shall negotiate in good faith regarding the resolution of any disputed claims
for Damages.
Section 8. Miscellaneous.
-------------
8.01. Notices. All notices, requests and other communications to any
-------
party hereunder shall be in writing (including telecopier or similar writing)
and shall be given to such party at its address or telecopier number as set
forth below, or such other address or telecopier number as such party may
hereinafter specify for the purpose of giving notice hereunder to the party
giving such notice. Each such notice, request or other communication shall be
effective: (i) if given by telecopier, when such telecopier is transmitted to
the telecopier number specified pursuant to this Section 8.01 and the
appropriate confirmation is received or; (ii) if given by mail, 72 hours after
such communication is deposited in the mails, certified mail, return receipt
requested, postage prepaid, addressed as aforesaid or; (iii) if given by any
other means, when delivered at the address as follows:
If to the Company, to:
LifeCell Corporation
0 Xxxxxxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
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If to the Purchasers, to:
Special Situation Funds
000 Xxxx 00xx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier: ____________
With a copy to:
______________________
______________________
______________________
Attention: ______________
Telecopier: _____________
8.02. Amendments and Waivers.
------------------------
(a) Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and each of the Purchasers. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
8.03. Expenses; Documentary Taxes. Except as expressly set forth in
----------------------------
this Agreement, the Registration Rights Agreement or the Warrants, the Company
and each of the Purchasers will each pay their own costs and expenses in
connection with the transactions contemplated hereby or thereby.
8.04. Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that no party may assign,
-------- -------
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party.
8.05. Governing Law. This Agreement and all matters arising directly
-------------
or indirectly herefrom shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to the conflicts of laws
principles thereof.
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8.06. Consent to Jurisdiction. The parties hereto agree that any
-------------------------
suit, action or proceeding relating to or arising out of this Agreement or the
transactions contemplated hereby, shall be brought in the United States District
Court for the Southern District of New York, so long as one of such courts shall
have subject matter jurisdiction over such suit, action or proceeding, and that
any cause of action arising out of this Agreement directly or indirectly shall
be deemed to have arisen from a transaction of business in the State of New
York, and each of the parties hereby irrevocably consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
outside the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as provided in Section
8.01 shall be deemed effective service of process on such party.
8.07. WAIVER OF JURY TRIAL. THE COMPANY AND THE PURCHASERS EACH
-----------------------
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE TRANSACTION
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
8.08. Counterparts; Facsimile Signatures. This Agreement may be
------------------------------------
executed in counterparts, each of which shall be deemed an original agreement,
but all of which together shall constitute one and the same instrument.
Execution and delivery of this Agreement by facsimile transmission shall
constitute execution and delivery of this Agreement for all purposes, with the
same force and effect as execution and delivery of an original manually signed
copy hereof.
8.09. Entire Agreement. This Agreement, the Registration Rights
-----------------
Agreement and the Warrants constitute the entire agreement and understanding
between the parties hereto and supersedes any and all prior agreements and
understandings, written or oral, relating to the subject matter of this
Agreement, the Registration Rights Agreement and the Warrants.
8.10. Headings. The headings in this Agreement are included for
--------
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
8.11. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect.
8.12. Construction. This Agreement shall not be construed or
------------
interpreted with any presumption against any party hereto by reason of any of
them causing this Agreement to be drafted.
[INTENTIONALLY LEFT BLANK; SIGNATURES ARE ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
LIFECELL CORPORATION
By: /s/ X. Xxxxxx
----------------------------------
Name: X. Xxxxxx
Title: Chief Executive Officer
SPECIAL SITUATIONS FUND III, L.P.
By: _____________________, its general partner
By: /s/ Xxxxx Greenhouse
--------------------------------
Name: Xxxxx Greenhouse
Title:
Shares:390,625
---------------------------------
Warrants:218,750
-------------------------------
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
By: _____________________, its general partner
By: /s/ Xxxxx Greenhouse
--------------------------------
Name: Xxxxx Greenhouse
Title:
Shares:257,813
---------------------------------
Warrants:144,375
-------------------------------
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By: _____________________, its general partner
By: /s/ Xxxxx Greenhouse
--------------------------------
Name: Xxxxx Greenhouse
Title:
Shares:132,812
---------------------------------
Warrants:74,375
-------------------------------
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