EXHIBIT 10.33
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made this
23 day of March, 1999 by and between Hemasure Inc., a Delaware corporation (the
"Company"), and Sepracor Inc., a Delaware corporation (the "Investor").
WHEREAS, the Investor has agreed to purchase from the Company, and
the Company has agreed to sell to the Investor, shares of common stock, par
value $0.01 per share ("Common Stock"), of the Company, on such terms and
conditions as are set forth herein;
WHEREAS, the Investor has also agreed to purchase from the Company,
and the Company has agreed to sell to the Investor, warrants to purchase 667,000
shares of Common Stock, on such terms and conditions as are set forth herein;
NOW, THEREFORE, in consideration of these premises and the
representations, warranties and covenants set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF SECURITIES
a. Issuance of Common Stock; Grant of Warrants.
i. Subject to the terms and conditions set forth in
this Agreement and in reliance upon the Company's
and the Investor's respective representations set
forth below, the Company hereby sells to the
Investor, and the Investor hereby purchases and
acquires from the Company, at the aggregate
purchase price of Two Million One Dollars
($2,000,001) (the "Purchase Price"), (i)
1,333,334 shares (the "Shares") of Common Stock
and (ii) warrants (the "Warrants") to purchase
667,000 additional shares of Common Stock (the
"Warrant Shares") at an exercise price of $1.50
per share, which Warrants shall be subject to the
terms and conditions of the Warrant Agreement
(the "Warrant Agreement") executed and delivered
by the Company and the Investor simultaneously
herewith.
ii. To evidence the purchase and sale described in
Section 1.1(a) above, simultaneously herewith,
the Company has executed and delivered to the
Investor, and the Investor hereby acknowledges
receipt of, a duly executed stock certificate
evidencing the Shares and a duly executed warrant
certificate evidencing the Warrants, each duly
registered in the Investor's name, against
delivery by the Investor to the Company of the
full Purchase
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Price by wire transfer of immediately available
funds to such account as the Company has
designated.
iii. Simultaneously herewith, the Company and the
Investor have executed and delivered to the other
the Registration Rights Agreement in the form
attached hereto as Exhibit A.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investor that:
a. Corporate Organization.
The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has filed all necessary documents to qualify to do business as a foreign
corporation in, and the Company is in good standing under the laws of each
jurisdiction in which the conduct of the Company's business or the nature of the
property owned requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the business, properties,
prospects, profits or condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"). The Company has all
requisite corporate power and authority and has all necessary approvals,
licenses, permits and authorization to own its properties and to carry on its
business as now conducted, except where the failure to have such power,
authority, approvals, licenses, permits and authorization would not have a
Material Adverse Effect. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, the Warrant Agreement and the
Registration Rights Agreement (collectively, the "Transaction Documents") and to
perform its obligations hereunder and thereunder.
b. Capitalization.
On the date hereof, the authorized capital stock of the
Company consists of 20,000,000 shares of Common Stock and 1,000,000 shares of
preferred stock, par value $ 0.01 per share ("Preferred Stock"), of the Company,
of which 9,087,737 shares of Common Stock and no shares of Preferred Stock are
issued and outstanding. Except as set forth on Schedule 2(b) attached hereto,
there are no options, warrants, equity securities, calls, rights, commitments or
agreements of any character to which the Company is a party or by which it is
bound obligating the Company to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock of the Company or
obligating the Company to grant, extend, accelerate the vesting of or enter into
any such option, warrant, equity security, call, right, commitment or agreement.
All the outstanding shares of capital stock of the Company have been duly and
validly issued and are fully paid and non-assessable. Upon issuance, sale and
delivery as contemplated by this
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Agreement, the Shares and the Warrant Shares will be duly authorized, validly
issued, fully paid and non-assessable shares of the Company, free of all
preemptive rights.
c. Corporate Proceedings, Etc.
The Board of Directors of the Company has authorized the
execution, delivery and performance by the Company of each of the Transaction
Documents to which it is a party and each of the transactions contemplated
hereby and thereby. No other corporate action is necessary to authorize such
execution, delivery and performance by the Company of such Transaction
Documents, and, upon such execution and delivery (assuming the due
authorization, execution and delivery by each party thereto other than the
Company), each of such Transaction Documents shall constitute the valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and general principles of equity. The
Company has authorized the issuance and delivery of the Shares in accordance
with this Agreement and has reserved for issuance shares of Common Stock
initially issuable upon exercise of the Warrants.
d. Absence of Defaults, Conflicts, Etc.
The execution and delivery of the Transaction Documents do
not, and the fulfillment of the terms hereof and thereof by the Company, and the
issuance of the Shares and the Warrant Shares will not, result in a breach of
any of the terms, conditions or provisions of, or constitute a default under, or
permit the acceleration of rights under or termination of, any material
indenture, mortgage, deed of trust, credit agreement, note or other evidence of
indebtedness, or other material agreement of the Company or any of its
subsidiaries, or the certificate of incorporation or the bylaws of the Company
(as amended through the date hereof), or, to the Company's knowledge, any rule
or regulation of any court or federal, state or foreign regulatory board or body
or administrative agency having jurisdiction over the Company or any of its
subsidiaries or over their respective properties or businesses. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality is required by or with respect to the Company in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
e. SEC Filings; Financial Statements.
i. The Company has filed and made available to the
Investor all forms, reports and documents
required to be filed by the Company with the
Securities and Exchange Commission ("SEC") since
January 1, 1998 other than registration
statements on Form S-8 (collectively, the
"Company SEC Reports"). The Company SEC Reports
(i) at the time filed, complied in all material
respects with the applicable requirements of the
Securities Act of
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1933, as amended (the "Securities Act"), and the
Exchange Act, as the case may be, and (ii) did
not at the time they were filed (or if amended or
superseded by a filing prior to the date of this
Agreement, then on the date of such filing)
contain any untrue statement of a material fact
or omit to state a material fact required to be
stated in such Company SEC Reports or necessary
in order to make the statements in such Company
SEC Reports, in the light of the circumstances
under which they were made, not misleading.
ii. Each of the financial statements (including, in
each case, any related notes) contained in the
Company SEC Reports complied as to form in all
material respects with the applicable published
rules and regulations of the SEC with respect
thereto, was prepared in accordance with
generally accepted accounting principles applied
on a consistent basis throughout the periods
involved (except as may be indicated in the notes
to such financial statements or, in the case of
unaudited statements, as permitted by Form 10- Q
of the SEC) and fairly presented the financial
position of the Company as of the dates and the
results of its operations and cash flows for the
periods indicated, except that the unaudited
interim financial statements were or are subject
to normal and recurring year-end adjustments
which were not or are not expected to be material
in amount.
f. No Undisclosed Liabilities.
Except as disclosed in the Company SEC Reports filed prior
to the date hereof, and except for normal or recurring liabilities incurred
since September 30, 1998 in the ordinary course of business consistent with past
practices, the Company does not have any liabilities, either accrued, contingent
or otherwise (whether or not required to be reflected in financial statements in
accordance with generally accepted accounting principles), and whether due or to
become due, which individually or in the aggregate are reasonably likely to have
a Material Adverse Effect.
g. Agreements, Contracts and Commitments.
The Company has not breached, or received in writing any
claim or notice that it has breached, any of the terms or conditions of any
material agreement, contract or commitment filed as an exhibit to the Company
SEC Reports ("Material Contracts") in such a manner as, individually or in the
aggregate, are reasonably likely to have a Material Adverse Effect. Each
Material Contract that has not expired by its terms is in full force and effect.
h. Litigation.
Except as described in the Company SEC Reports filed prior
to the date hereof, there is no action, suit or proceeding, claim, arbitration
or investigation against the Company
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pending or as to which the Company has received any written notice of assertion,
which, individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect or a material adverse effect on the ability of the Company to
consummate the transactions contemplated by this Agreement.
i. Rights Agreement.
The entering into of this Agreement and the consummation of
the transactions contemplated hereby do not and will not result in the grant of
any rights to any person under any shareholder rights plan to which the Company
is a party.
j. No Other Representations or Warranties.
Except for the representations and warranties expressly
contained in this Agreement and the other Transaction Documents, neither the
Company nor any other person or entity makes any representation or warranty to
the Investor, express or implied, and the Company hereby disclaims any such
representation or warranty, whether by the Company or any of its agents, brokers
or representatives or any other person or entity, notwithstanding the delivery
or disclosure to the Investor or any of its officers, directors, employees,
agents or representatives or any other person or entity of any document or other
information by the Company or any of its agents, brokers or representatives or
any other person or entity.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company as
follows:
a. Investment Intent, Etc.
i. The Investor is acquiring the Shares, the Warrants and
the Warrant Shares (collectively, the "Purchased
Securities") for its own account, as an investment and
not with a view to the distribution thereof.
ii. The Investor understands that none of the Purchased
Securities have been registered under the Securities
Act of 1933, as amended (the "Securities Act") in
reliance on an exemption therefrom for transactions
not involving a public offering, and that none of the
Purchased Securities have been approved or disapproved
by the United States Securities and Exchange Commission
or by any other federal or state agency.
iii. The Investor understands that none of the Purchased
Securities may be sold, transferred or assigned unless
registered by the Company pursuant to the Securities
Act and any applicable state securities laws, or unless
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an exemption therefrom is available, and, accordingly,
it may not be possible for the Investor to liquidate
its investment in the Purchased Securities, and it
agrees not to sell, assign or otherwise transfer or
dispose of any Purchased Securities unless such
Purchased Securities have been so registered or
an exemption from registration is available.
iv. The Investor is an accredited investor, as that term
is defined in Regulation D under the Securities Act.
b. Knowledge and Experience; Access to Information.
The Investor has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
its investment in the Company as contemplated by this Agreement and is able to
bear the economic risk of such investment for an indefinite period of time. The
Investor has been furnished access to such information and documents as it has
requested and has been afforded an opportunity to ask questions of and receive
answers from representatives of the Company concerning the terms and conditions
of this Agreement and the purchase of the Purchased Securities contemplated
hereby.
3.3 Corporate Organization.
The Investor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. On the
date hereof, the Investor has provided or made available to the Company true and
complete copies of the charter and the bylaws of the Investor, as amended
through the date hereof.
3.4 Corporate Proceedings, Etc.
The Investor has authorized the execution, delivery, and
performance of the Transaction Documents and each of the transactions and
agreements contemplated hereby and thereby. No other action is necessary to
authorize such execution, delivery and performance by the Investor of the
Transaction Documents, and, upon such execution and delivery, each of the
Transaction Documents shall constitute the valid and binding obligation of the
Investor, enforceable against the Investor in accordance with its terms, except
that such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and general principles of equity.
4. SECURITIES ACT; LEGENDS
Stock certificates representing the Shares shall bear the
following legend only if such Shares are not then registered pursuant to an
effective registration statement under the Securities Act:
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The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"), and may not be offered or sold except
pursuant to (i) an effective registration statement under
the Act, (ii) to the extent applicable, Rule 144 under the
Act (or any similar rule under such Act relating to the
disposition of securities), or (iii) an opinion of
counsel, if such opinion shall be reasonably satisfactory
to counsel to the issuer, that an exemption from
registration under such Act is available.
5. CONFIDENTIALITY
As to so much of the information and other material
furnished under or in connection with this Agreement (whether furnished before,
on or after the date hereof) as constitutes or contains confidential business,
financial or other information of the Company or any subsidiary, the Investor
covenants for itself and its directors and officers that it will use due care to
prevent its officers, directors, employees, counsel, accountants and other
representatives from disclosing such information to any other person or entity;
provided, however, the Investor may disclose or deliver any information or other
material disclosed to or received by it should the Investor be advised by its
counsel that such disclosure or delivery is required by law, regulation or
judicial or administrative order. For purposes of this Section 5, "due care"
means at least the same level of care that the Investor would use to protect the
confidentiality of its own sensitive or proprietary information, and this
obligation shall survive termination of this Agreement.
6. MISCELLANEOUS
a. Notices.
All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered two (2)
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one (1) business day after it is sent via a
reputable nationwide overnight courier service, in each case to the intended
recipient as set forth below:
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If to the Company: Copy to:
HemaSure Inc. Battle Xxxxxx LLP
000 Xxxxx Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000 00 Xxxx 00xx Xxxxxx
Attn: President and Chief Xxx Xxxx, XX 00000
Executive Officer Attn: Xxxx X. Xxxxxx, III, Esq.
Fax: 000-000-0000
If to the Investor: Copy to:
Sepracor Inc. Xxxx and Xxxx LLP
000 Xxxxx Xxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Senior Vice President, Attn: Xxxx Xxxxx, Esq.
Finance and Administration Fax: 000-000-0000
Either party hereto may hereto give any notice, request, demand, claim or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Either party
hereto may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
hereto notice in the manner herein set forth.
b. Survival.
All warranties, representations and covenants made by the
Investor and the Company herein or in any certificate or other instrument
delivered by the Investor or the Company under this Agreement shall be
considered to have been relied upon by the Company or the Investor, as the case
may be, and shall survive all deliveries to the Investor of the Purchased
Securities or payment to the Company for the Purchased Securities, regardless of
any investigation made by the Company or the Investor, as the case may be, or on
the Company's or the Investor's behalf.
c. Successors and Assigns; No Third-Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties; provided, however,
neither party hereto shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other party.
Nothing in this Agreement shall confer upon any person or entity not a party to
this
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Agreement, or the legal representatives of such person or entity, any rights or
remedies of any nature or kind whatsoever under or by reason of this Agreement.
d. Entire Agreement; Amendment and Waiver.
This Agreement, and the agreements attached hereto as
Exhibits, constitute the entire understandings of the parties hereto and
supersede all prior agreements or understandings with respect to the subject
matter hereof among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Investor.
e. Severability.
In the event that any part or parts of this Agreement shall
be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not effect the remaining
provisions of this Agreement which shall remain in full force and effect.
f. Paragraph and Section Headings.
The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
g. Governing Law.
This Agreement shall be deemed to have been made in the
State of New York and the validity of this Agreement, the construction,
interpretation and enforcement thereof, and the rights of the parties thereto
shall be determined under, governed by, and construed in accordance with the
internal laws of the State of New York, without regard to principles of
conflicts of law.
h. Arbitration.
Any dispute or controversy arising under, out of, in
connection with, or in relation to this Agreement or any other Transaction
Document shall be determined and settled by arbitration in New York by a panel
of three (3) members in accordance with the commercial rules of the American
Arbitration Association. Any award rendered therein shall be final and binding
upon the parties and their legal representatives, successors and assigns and
judgment may be entered in any court having jurisdiction thereof.
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i. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
(Signatures on Following Page)
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IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute this Agreement as of the date first above
written.
HEMASURE INC.
By:/s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President of Finance
and Administration
SEPRACOR INC.
By:/s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President of Finance
and Administration
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