STOCK PURCHASE AGREEMENT
EXHIBIT 1
STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of the 19th day of May, 2010, is
by and among Pharmaceutical Financial Syndicate, LLC, a Delaware limited liability company
(“Buyer”), and each of Frost Gamma Investments Trust, Xxxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxx
and Xxxx Xxxxx (collectively, the “Frost Group Shareholders” and individually, a “Frost
Group Shareholder”).
WITNESSETH:
WHEREAS, the Frost Group Shareholders collectively own 18,399,271 shares of common stock,
$0.001 par value (“WPI Common Stock”), of Winston Pharmaceuticals, Inc. (“WPI”) and
8,958,975 warrants to purchase shares of WPI Common Stock (the 18,399,271 shares of common stock
are referred to as the “Acquired Shares”, the 8,958,975 warrants are referred to as the
“Acquired Warrants” and the Acquired Shares and Acquired Warrants are collectively referred
to as the “Acquired Securities”); and
WHEREAS, pursuant to a letter dated February 3, 2010 between the parties hereto (the
“Letter of Intent”), Buyer desires to purchase, and the Frost Group Shareholders desire to
sell, the Acquired Securities;
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
SALE OF ACQUIRED SECURITIES
1.1 Sale of Acquired Securities. Subject to the terms and conditions of this
Agreement, and on the basis of the representations and warranties hereinafter set forth, at the
Closing (as hereinafter defined), each of the Frost Group Shareholders shall sell, assign, transfer
and deliver to Buyer, and Buyer shall purchase from each of the Frost Group Shareholders, that
number of the Acquired Securities set forth opposite such Frost Group Shareholder’s name on
Schedule I hereto, free and clear of all liens, pledges, security interests, options, proxies,
voting trusts or agreements and other transfer restrictions, other than (i) restrictions imposed by
applicable securities laws and regulations, (ii) those certain Lockup Agreements (the “Lockup
Agreements”), between each of the Frost Group Shareholders and WPI pursuant to that certain Merger
Agreement and Plan of Reorganization, dated November 13, 2007, as amended, among WPI, Winston
Laboratories, Inc., and Winston Acquisition Corp., and (iii) that certain Voting Agreement, dated
September 30, 2008, among WPI and the signatories thereto.
1.2 Purchase Consideration. Upon the terms and subject to the conditions of this
Agreement and in consideration of the sale of the Acquired Securities, at the Closing, the
following consideration (the “Purchase Price”) shall be delivered by Buyer to or for the
benefit of the Frost Group Shareholders:
(a) An aggregate amount of cash equal to $789,500 (the “Closing Date Payment”), as
allocated among each Frost Group Shareholder in the amounts opposite such Frost Group Shareholder’s
name on Schedule I hereto.
(b) Non-recourse promissory notes in the aggregate principal amount of $10,263,500 in the form
attached hereto as EXHIBIT 1.2(b) (the “Notes”), with the principal amount of the
Note for each Frost Group Shareholder set forth opposite such Frost Group Shareholder’s name on
Schedule I hereto.
1.3 Acquired Security Assignment and Escrow Agreement. 7.143% of each Frost Group
Shareholder’s Acquired Shares (aggregating 1,314,260 shares) and Acquired Warrants (aggregating
639,940 warrants) will be assigned by separate stock powers to Buyer and delivered to Buyer at the
Closing (collectively, the “Closing Date Delivered Securities”). 92.857% of each Frost
Group Shareholder’s Acquired Shares (aggregating 17,085,011 shares (the “Escrow Shares”)) and
Acquired Warrants (aggregating 8,319,035 warrants (the “Escrow Warrants”)) will be assigned by
separate stock powers to Buyer and delivered to the Escrow Agent under and pursuant to the terms of
the Escrow Agreement (the “Escrow Agreement”) in the form attached hereto as EXHIBIT
1.3 (collectively, the “Escrow Securities”).
1.4 Time and Place of Closing. The closing of the transactions contemplated by this
Agreement (the “Closing”) shall take place at 10:00 a.m. on May 19, 2010, or at such
earlier time as Buyer and the Frost Group Shareholders hereto may mutually agree (the date on which
the Closing actually occurs, the “Closing Date”). The place of the Closing shall be at the
offices of Levenfeld Xxxxxxxxxx, 0 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or such other location
as may be mutually agreed by the parties.
1.5 Deliveries at Closing.
(a) Deliveries by the Frost Group Shareholders. At the Closing, the Frost Group
Shareholders will deliver to Buyer:
(i) stock certificates and warrant agreements representing all of the Acquired Securities,
accompanied by separate stock powers assigning the Acquired Securities to Buyer as contemplated by
Section 1.3. The Closing Date Delivered Securities shall be delivered to Buyer on Closing and the
Escrow Securities shall be delivered to the Escrow Agent on Closing; and
(ii) the resignation of each of Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxxxx Xxxxxxxx as a
director of WPI.
(b) Deliveries by Buyer. At the Closing, Buyer will cause the Purchase Price to be
delivered to the Frost Group Shareholders in accordance with Section 1.2 hereof.
(c) Other Deliveries. At the Closing, Buyer and the Frost Group Shareholders will
cause the following to be delivered:
(i) the Escrow Agreement;
(ii) the Standstill Agreement between Xx. Xxxx X. Xxxxxxxxx and certain members of his
immediate family and the Frost Group Shareholders, in the form attached hereto as EXHIBIT
1.5(c)(ii);
(iii) the Registration Rights Agreement between WPI and the Frost Group Shareholders, in the
form attached hereto as EXHIBIT 1.5 (c)(iii); and
(iv) the Mutual Release and Non-Disparagement Agreement between WPI, the Frost Group
Shareholders and Buyer, in the form attached hereto as EXHIBIT 1.5(c)(iv).
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The term “Ancillary Instruments” refers to all documents and agreements delivered in
connection with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE FROST GROUP SHAREHOLDERS
Each of the Frost Group Shareholders hereby severally, with respect to itself only, represents
and warrants and covenants and agrees to Buyer, as of the date hereof, as set forth in this Article
II.
2.1 Execution, Delivery; Valid and Binding Agreements. This Agreement has been duly
executed and delivered by such Frost Group Shareholder, and assuming that this Agreement is the
valid and binding agreement of Buyer, this Agreement constitutes the valid and binding obligation
of such Frost Group Shareholder, enforceable in accordance with its terms.
2.2 Authority. Subject to WPI’s consent or release under the Lockup Agreements, such
Frost Group Shareholder has all requisite power and authority and full legal capacity to execute
and deliver this Agreement and to perform his, her or its obligations hereunder, including, without
limitation, all right, power, capacity and authority to sell, transfer and convey those of the
Acquired Securities set forth opposite his, her or its name on the attached SCHEDULE I as
provided by this Agreement.
2.3 Ownership of Acquired Securities. Such Frost Group Shareholder is the record and
beneficial owner of the number of Acquired Securities as set forth opposite his, her or its name on
the attached SCHEDULE I. To such Frost Group Shareholder’s knowledge, no affiliate or
associate of such Frost Group Shareholder or member of such Frost Group Shareholder’s immediate
family is a record or beneficial owner of any WPI Common Stock or warrants to purchase shares of
WPI Common Stock.
2.4 No Litigation. There are no actions, suits or proceedings pending or, to such
Frost Group Shareholder’s knowledge, threatened against such Frost Group Shareholder, at law or in
equity, or before or by any court of governmental authority which, if determined adversely to such
Frost Group Shareholder, would have an adverse effect on such Frost Group Shareholder’s ability to
transfer such Frost Group Shareholder’s Acquired Securities pursuant to this Agreement or otherwise
perform its obligations as set forth in this Agreement.
2.5 Brokerage. There are no claims for brokerage commissions, finders’ fees or
similar compensation in connection with the transactions contemplated by this Agreement, based on
any arrangement or agreement made by or on behalf of such Frost Group Shareholder.
2.6 No Violation. Except for (i) the consent of WPI under the Lockup Agreements, (ii)
the Notice of and Form of Assignment to be delivered to WPI in connection with the transfer of the
Acquired Warrants, and (iii) filings required under applicable securities laws and regulations, no
consent, authorization or approval of, or declaration, filing or registration with, any
governmental, administrative or regulatory body, or any consent, authorization or approval of any
other third party, is necessary in order to enable such Frost Group Shareholder to enter into and
perform its respective obligations under this Agreement and the Ancillary Instruments and to
consummate the transactions contemplated hereby and thereby, and neither the execution and delivery
of this Agreement and the Ancillary Instruments nor the consummation of the transactions
contemplated herein or therein will result in the creation or imposition of any security interest,
lien, charge or other encumbrance upon any of the Acquired Securities under any agreement or
commitment, other than those imposed under the Lock up Agreements and applicable securities laws
and regulations and any Ancillary Instrument; or conflict with or result in the breach of any writ,
injunction or decree of any court or governmental instrumentality to which such Frost Group
Shareholder is a party or by which it is bound or violate any statute, law or regulation of any
jurisdiction applicable to such Frost Group Shareholder which would prevent the execution by such
Frost Group Shareholder of this Agreement or the performance of its obligations hereunder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer represents and warrants and covenants and agrees to the Frost Group Shareholders as of
the date hereof and as of the Closing Date, as set forth in this Article III:
3.1 Execution, Delivery; Valid and Binding Agreements. This Agreement has been duly
executed and delivered by Buyer, and assuming that this Agreement is the valid and binding
agreement of each of the Frost Group Shareholders, this Agreement constitutes the valid and binding
obligation of Buyer, enforceable in accordance with its terms.
3.2 Authority. Buyer (i) is financially capable of making the Closing Date Payment
pursuant to Section 1.2(a) hereof and (ii) has all requisite power and authority and full legal
capacity to execute and deliver this Agreement and to perform its obligations hereunder and under
the Notes and Ancillary Instruments.
3.3 No Litigation. There are no actions, suits or proceedings pending or, to Buyer’s
knowledge, threatened against Buyer, at law or in equity, before or by any court of governmental
authority which, if determined adversely to Buyer, would have an adverse effect on Buyer’s ability
to perform as set forth in this Agreement.
3.4 Brokerage. There are no claims for brokerage commissions, finders’ fees or
similar compensation in connection with the transactions contemplated by this Agreement, based on
any arrangement or agreement made by or on behalf of Buyer.
3.5 No Violation. No consent, authorization or approval of, or declaration, filing or
registration with, any governmental, administrative or regulatory body, or any consent,
authorization or approval of any other third party, is necessary in order to enable Buyer to enter
into and perform its respective obligations under this Agreement and the Ancillary Instruments and
to consummate the transactions contemplated hereby and thereby, and neither the execution and
delivery of this Agreement and the Ancillary Instruments nor the consummation of the transactions
contemplated herein or therein will conflict with or result in the breach of any writ, injunction
or decree of any court or governmental instrumentality; or violate any statute, law or regulation
of any jurisdiction.
3.6 Suitability of Investment. Buyer represents and warrants that it has (i) the
financial ability to bear the economic risk of the investment in the Acquired Securities, (ii)
adequate means to provide for its current needs and other contingencies and to withstand the loss
of the entire investment in the Acquired Securities and (iii) no need for liquidity with respect to
the investment in the Acquired Securities. Buyer has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of a purchase of the
Acquired Securities and has determined that the purchase of the Acquired Securities is a suitable
investment for itself. Buyer acknowledges that it is making its decision based on publicly
available information regarding WPI as it deems sufficient to make an informed investment decision
with respect to an investment in the Acquired Securities and has not been provided with any
information regarding WPI by any Frost Group Shareholder. Buyer has consulted with its own legal,
regulatory, tax, business, investment, financial and accounting advisers in connection herewith to
the extent it has deemed necessary, and has made its own investment decision and not based upon any
view expressed by or on behalf of any Frost Group Shareholder.
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3.7 Acquisition for Investment. Buyer represents and warrants that the Acquired
Securities to be purchased by Buyer pursuant to the terms of this Agreement shall be acquired by it
in good faith for investment for its own account and not with a view to, or for resale in
connection with, a distribution or other disposition of any of such Acquired Securities in
violation of the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (the “Securities Act”) or the securities laws or regulations of any state or other
jurisdiction in the United States or any other applicable law.
3.8 AcknowledgementsBuyer acknowledges that no Frost Group Shareholder has made nor does it
make any representation or warranty, whether express or implied, with respect to the business,
condition (financial or otherwise), properties, prospects or affairs of WPI or with respect to the
value of any of the Acquired Securities, and no Frost Group Shareholder has any obligation to
Buyer, whether express or implied, including without limitation, fiduciary obligations, except as
expressly set forth in this Agreement.
ARTICLE IV
COVENANTS AND AGREEMENTS
4.1 Conditions. All of the parties hereto will use best efforts to cause all of the
closing conditions contained in Articles V and VI to be satisfied as soon as possible and to
consummate the transactions contemplated hereof promptly (and, in any event, within three days)
after satisfaction of such party’s respective closing conditions.
4.2 Exclusive Dealing. During the period from the date of this Agreement through the
Closing or the earlier termination of this Agreement pursuant to Section 8.1, each Frost Group
Shareholder agrees to not take, directly or indirectly, any action to solicit, encourage, initiate,
or engage in discussions or negotiations with, or provide any information to, any person (other
than Buyer) relating to or concerning any purchase of any of the Acquired Securities or otherwise
sell or offer for sale any Acquired Securities or any rights or options therein.
4.3 Confidentiality. Buyer and the Frost Group Shareholders agree that all
confidential and proprietary information and data obtained by any such party or any affiliate
thereof (including their representatives and agents) from the other, whether in writing or
verbally, shall be kept in strict confidence and not disclosed to any third party for a period of
five years from the date of this Agreement, except as reasonably necessary to comply with any
applicable law or regulation.
4.4 Escrow Securities.
(a) Buyer shall cause the Escrow Warrants to be exercised (including at Buyer’s option via
so-called “cashless” exercise) immediately prior to the earlier of (i) the consummation of a Sale
of WPI (as defined in the Notes) or (ii) the date of expiration of such Escrow Warrants by their
terms; provided that in each case Buyer shall have no obligation to cause such Escrow Warrants to
be exercised if, on the date of such exercise, the per share fair market value of the WPI Common
Stock, as determined pursuant to the terms of the Warrant agreement for the Escrow Warrants, is
less than the per share exercise price of the Escrow Warrants (i.e., the warrants are not “in the
money”); provided further that the provisions of this Section shall not apply in the event that any
of the Frost Group Shareholders or their affiliates are in violation of the Standstill Agreement.
(b) In the event of a Sale of WPI (as defined in the Notes), Buyer shall cause all Escrow
Shares to be treated in the same manner as all other shares of WPI Common Stock in such Sale
transaction.
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4.5 Legend. Buyer is aware of and acknowledges that the Acquired Shares have not
been registered under the Securities Act or the securities laws of any state or other
jurisdiction in the United States and are being sold by the Frost Group Shareholders and
acquired by the Buyer in a transaction exempt from, or not subject to, the registration
requirements of the Securities Act. Buyer will comply with the applicable securities laws
in connection with the purchase of the Acquired Securities hereunder and any further sale or
transfer of any of the Acquired Securities in the future. Buyer acknowledges that each
certificate representing Acquired Shares sold pursuant to the provisions hereof, bears and,
if deemed advisable by WPI, shall bear a legend substantially to the following effect:“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF EXEMPTION THEREFROM UNDER SAID ACT OR THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.”
ARTICLE V
CONDITIONS PRECEDENT TO
OBLIGATION OF THE BUYER TO CLOSE
OBLIGATION OF THE BUYER TO CLOSE
The obligation of the Buyer to complete the Closing is subject to the fulfillment on or prior
to the Closing Date of the following conditions, any of which may be waived by the Buyer only in
writing:
5.1 Representations and Warranties. The representations and warranties of the Frost
Group Shareholders contained in this Agreement shall be true and correct in all respects on and as
of the Closing Date. The Frost Group Shareholders shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or complied with on or prior to
the Closing Date.
5.2 Litigation. No action, suit or proceeding before any court or governmental or
regulatory body, shall have been commenced, instituted or threatened against any of the Frost Group
Shareholders, or Buyer or any of their respective affiliates, to restrain or prevent the carrying
out of the transactions contemplated by this Agreement or to seek damages in connection with such
transactions.
ARTICLE VI
CONDITIONS PRECEDENT TO
OBLIGATION OF THE SHAREHOLDERS TO CLOSE
OBLIGATION OF THE SHAREHOLDERS TO CLOSE
The obligation of the Frost Group Shareholders to complete the Closing is subject to the
fulfillment, on or prior to the Closing Date, of the following conditions, any of which may be
waived by the Frost Group Shareholders:
6.1 Representations and Warranties. The representations and warranties of Buyer
contained in this Agreement shall be true and correct in all material respects on and as of the
Closing Date. Buyer shall have performed and complied with all covenants and agreements required by
this Agreement to be performed or complied with by Buyer on or prior to the Closing Date.
6.2 Litigation. No action, suit or proceeding before any court or governmental or
regulatory body, shall have been commenced, instituted or threatened against any of the Frost Group
Shareholders, to restrain or prevent the carrying out of the transactions contemplated by this
Agreement or to seek damages in connection with such transactions.
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ARTICLE VII
INDEMNIFICATION
If written notice of a claim has been given in good faith prior to the expiration of the
applicable representation and warranty in accordance with this Agreement, then the relevant
representations and warranties shall survive as to such claim until the claim has been finally
resolved. Neither the period of survival nor the liability of a party with respect to the
representations and warranties shall be reduced by any investigation made by another party or
knowledge of another party. This Article VII is the exclusive monetary remedy for violations or
breaches of this Agreement.
7.1 Survival. The representations and warranties contained in this Agreement shall
survive the Closing indefinitely or until the statute of limitations applicable to such matter has
expired.
7.2 Indemnification by the Frost Group Shareholders. Each of the Frost Group
Shareholders, severally, with respect to itself only, shall indemnify, defend, reimburse and hold
harmless Buyer (which terms shall include, for purposes of this Article VII, its respective
successors, assigns, managers, members, officers, employees and agents) from and against any and
all losses, damages, deficiencies, suits, claims, demands, judgments, costs, expenses or other
liabilities (including without limitation reasonable attorneys’ fees and expenses)
(“Losses”) resulting from, arising from, or relating to (i) any breach of a representation
or warranty made by such Frost Group Shareholder and contained in Article II of this Agreement and
(ii) any failure by such Frost Group Shareholder to perform or comply with any agreement or
obligation of such Frost Group Shareholder contained in this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, in no event shall any Frost Group Shareholder have
liability for any Losses in excess of the actual amount of cash received from the Buyer under this
Agreement.
7.3 Indemnification by Buyer. Buyer shall indemnify, defend, reimburse and hold
harmless each of the Frost Group Shareholders (which terms shall include, for purposes of this
Article VII, any of their respective successors, assigns, managers, members, officers, employees
and agents) from and against any and all Losses resulting from, arising from, or relating to (i)
any breach of a representation or warranty of Buyer contained in Article III of this Agreement and
(ii) any failure by Buyer to perform or comply with any agreement or obligation contained in this
Agreement.
7.4 Procedures.
(a) A party seeking indemnification pursuant to Sections 7.2 or 7.3 (an “Indemnified
Party”) shall give prompt notice to the party from whom such indemnification is sought (the
“Indemnifying Party”) of the assertion of any claim or assessment, or the commencement of
any action, suit, audit or proceeding, by a third party in respect of which indemnity may be sought
hereunder (a “Third Party Claim”) and will give the Indemnifying Party such information
with respect thereto as the Indemnifying Party may reasonably request, but no failure to give such
notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the
Indemnifying Party has suffered actual prejudice thereby). Notice may be given to any Frost Group
Shareholder by giving notice to the Representative (defined below). The Indemnifying Party shall
have the right, exercisable by written notice (the “Notice”) to the Indemnified Party
within fifteen (15) days of receipt of notice from the Indemnified Party of the commencement or
assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel
selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. If the
Indemnifying Party shall fail to assume the defense of the Third Party Claim within such fifteen
(15) day period, the Indemnified Party shall have the right to undertake the defense of such Third
Party Claim on behalf of the Indemnifying Party. If the Indemnifying Party elects to assume the
defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with
respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying
Party’s prior written consent, which shall not be unreasonably withheld. In the event that the
Indemnifying Party does not elect to assume the defense of any such Third Party Claim, the
Indemnified Party may do any of the foregoing and/or defend such Third Party Claim, all at the
expense and on the account of the Indemnifying Party.
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(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event
have the right to participate, at its own expense, in the defense of any Third Party Claim which
the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in
accordance with the terms hereof, shall have the right, upon fifteen (15) business days prior
written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or
otherwise settle such Third Party Claim provided the Indemnifying Party shall be solely obligated
to satisfy and discharge such judgment or settlement, unless (i) the Third Party Claim involves
equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party
such settlement would have a continuing material adverse effect on the Indemnified Party, in which
case such settlement only may be made with the written consent of the Indemnified Party.
(d) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a
third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall
furnish records, information and testimony, and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested in connection therewith. Such
cooperation shall include access during normal business hours afforded to the Indemnifying Party of
records and information which are reasonably relevant to such Third Party Claim, and making
employees available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder, and the Indemnifying Party shall reimburse the
Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith.
ARTICLE VIII
TERMINATION OF AGREEMENT
TERMINATION OF AGREEMENT
8.1 Termination. This Agreement may be terminated prior to the Closing as follows:
(a) at the election of any Frost Group Shareholder, in the event that Buyer shall have
materially breached any representation, warranty, covenant or agreement contained in this Agreement
or in any document or other paper delivered pursuant to this Agreement;
(b) at the election of Buyer, in the event that any Frost Group Shareholder shall have
materially breached any representation, warranty, covenant or agreement contained in this Agreement
or in any document or other paper delivered pursuant to this Agreement;
(c) at the election of any Frost Group Shareholder or Buyer, if any legal proceeding is
commenced or threatened by any governmental or regulatory body or other person seeking to prevent
the Closing or consummation of any transaction contemplated by this Agreement, and either such
Frost Group Shareholder or Buyer, as the case may be, reasonably and in good xxxxx xxxxx it
impractical or inadvisable to proceed in view of such legal proceeding or threat thereof;
(d) by any Frost Group Shareholder or Buyer, in the event that the Closing has not occurred by
May 31, 2010; and
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(e) at any time on or prior to the Closing Date, by mutual written consent of the Frost Group
Shareholders and Buyer.
8.2 Post-Termination Obligations. A party shall be liable for any violation of
representations, warranties, covenants or agreements of such party contained in this Agreement
which violation directly or indirectly led to termination hereunder.
ARTICLE IX
MISCELLANEOUS
9.1 Representative. Each of the Frost Group Shareholders, by the execution of this
Agreement, hereby irrevocably appoints Frost Gamma Investments Trust, a Florida trust (the
“Representative”), as the agent, proxy and attorney-in-fact for such Frost Group Shareholder for
purposes of the following actions, decisions and/or exercises of discretion in connection with this
Agreement: (i) to authorize the release of, and other actions, decisions and/or exercises of
discretion affecting, the Escrow Securities; (ii) to negotiate, settle, compromise and otherwise
handle all claims made by Buyer pursuant to this Agreement and the Ancillary Instruments; and (iii)
to give and receive after the Closing all notices required to be given and to do each and every act
and exercise any and all rights which each Frost Group Shareholder collectively are permitted or
required to do or exercise under this Agreement and the Ancillary Instruments. Each of the Frost
Group Shareholders agrees that such agency and proxy are coupled with an interest, are therefore
irrevocable without the consent of the Representative and shall survive the death, incapacity,
bankruptcy, dissolution or liquidation of any Frost Group Shareholder. Each Frost Group
Shareholder acknowledges and agrees that upon execution of this Agreement, any delivery by the
Representative of any waiver, amendment, agreement, opinion, certificate or other documents
executed by the Representative or any decisions made by the Representative pursuant to this Section
9.1, such Frost Group Shareholder shall be bound by such documents or decisions as fully as if such
Frost Group Shareholder had executed and delivered such documents or made such decisions. The
Buyer shall be entitled to rely upon the actions of Representative.
9.2 Further Action. If, at any time following the Closing, any further action is
determined by Buyer to be necessary or desirable to vest in Buyer all right, title and interest in
and to the Acquired Securities, each Frost Group Shareholder shall take such action.
9.3 Announcements. None of the parties hereto shall issue any press release, place
any advertisement or make any other public statement relating to or in connection with this
Agreement or the matters contained herein without obtaining the prior approval of all parties
hereto as to the content and manner of presentation and publication thereof, which approval shall
not be unreasonably withheld or delayed; provided, however, that disclosures required by law or
regulation are permitted without consent.
9.4 Assignment; Parties in Interest. Except as expressly provided herein, the rights
and obligations of a party hereunder may not be assigned, transferred or encumbered without the
prior written consent of the other parties. The Buyer may assign its rights and obligations
hereunder, to any direct or indirect subsidiary or other entity controlled by the Buyer, or to any
parent corporation of the Buyer, for purposes of consummating the transactions contemplated herein.
This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the
respective successors and permitted assigns of the parties hereto.
9.5 Law Governing Agreement. This Agreement shall be construed and interpreted
according to the internal laws of the State of New York, excluding any choice of law rules that may
direct the application of the laws of another jurisdiction.
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9.6 Amendment and Modification. The parties may amend, modify and supplement this
Agreement in such manner as may be agreed upon in writing among them.
9.7 Notice. Unless otherwise provided herein, all notices, requests, waivers and
other communications made pursuant to this Agreement will be in writing and will be conclusively
deemed to have been duly given (i) when hand delivered to the other parties; (ii) upon receipt,
when sent by facsimile to the number set forth below or email to the address set forth below; (iii)
five business days after deposit in the U.S. mail, postage prepaid and addressed to the other
parties at the address set forth below; or (iv) the next business day after deposit with a national
overnight delivery service, postage prepaid, addressed to the parties as set forth below with next
business day delivery guaranteed. Each person making a communication hereunder by facsimile or
email will promptly confirm by telephone to the person to whom such communication was addressed
each communication made by it by facsimile or email pursuant hereto but the absence of such
confirmation will not affect the validity of any such communication. A party may change or
supplement the addresses given below, or designate additional addresses for purposes of this
Section 9.7, by giving the other party written notice of the new address in the manner set forth
above:
| (a) | If to the Buyer, to: |
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000 Xxxxxxx Xxxxx Xxxxx 000 Xxxxxx Xxxxx, Xxxxxxxx 00000 Attention: Xxxx X. Xxxxxxxxx, M.D. Facsimile: (000) 000-0000 E-mail: xxxx@xxxxxxxxxxx.xxx |
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with a copy to: |
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Levenfeld Xxxxxxxxxx, LLC 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxx Facsimile: (000) 000-0000 E-mail: xxxxxxxx@xxxxxxx.xxx |
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| (b) | If to any Frost Group Shareholders, to the address set forth on Schedule I hereto: |
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with a copy to: |
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Xxxxxx X. Xxxxx 0000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxx 00000 Facsimile: (000) 000-0000 E-mail: xx@xxxxxxxxxxx.xxx |
9.8 Expenses. Regardless of whether or not the transactions contemplated hereby are
consummated, Buyer shall bear its legal and other expenses and the expenses of its agents in
connection with the transactions contemplated hereby, and the Frost Group Shareholders personally
shall bear their legal and other expenses and the expenses of each of their agents in connection
with the transactions contemplated hereby.
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9.9 Entire Agreement. This Agreement, including the Exhibits and Schedules attached
hereto (which Exhibits and Schedules are hereby incorporated herein by reference and made a part
hereof) and the Ancillary Instruments, embody the entire agreement among the parties with respect
to the transactions contemplated hereby, and supersedes all prior agreements and understandings
among the parties with respect thereto including the Letter of Intent.
9.10 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
9.11 Headings. The table of contents and article and section headings herein are for
convenience of reference only, do not constitute a part of this Agreement, and shall not be deemed
to limit or affect any of the provisions hereof.
9.12 Jurisdiction; Service; Jury Waiver. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement shall be brought against any
of the parties only in the courts of the State of New York, City of New York, Borough of Manhattan,
or, if it has or can acquire jurisdiction, in the United States District Court for the Southern
District of New York, and each of the parties consents to the jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the preceding sentence may
be served on any party anywhere in the world. THE PARTIES HERETO WAIVE A JURY TRIAL IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT.
[Signatures on the following page]
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IN WITNESS WHEREOF, the parties hereto have cause their duly authorized representatives to
execute this Agreement as of the date first above written.
| BUYER PHARMACEUTICAL FINANCIAL SYNDICATE, LLC |
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| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Xxxx X. Xxxxxxxxx, M.D., Manager | ||||
| FROST GROUP SHAREHOLDERS FIRST GAMMA INVESTMENTS TRUST |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxxx Xxxxx, M.D., Trustee | ||||
| /s/ Xxxxxxxx Xxxxxxxx | ||||
| Xxxxxxxx Xxxxxxxx, Ph.D. | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
| /s/ Xxxx Xxxxx | ||||
| Xxxx Xxxxx, Ph.D. | ||||
| SOLELY WITH RESPECT TO THE PROVISIONS OF SECTION 1.5(a)(ii) OF THIS AGREEMENT: |
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| /s/ Xxxxxxxx Xxxxxxxx | ||||
| Xxxxxxxx Xxxxxxxx, Ph.D. | ||||
| Xxxxx Xxxxxxx |
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| Xxxxxx Xxxxxxxx |
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[Signature page to the Stock Purchase Agreement]
