Page 23 of 68 Pages
EXHIBIT E
SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of June 19, 1997 among Quantum Industrial Partners
LDC, a Cayman Islands exempted limited liability duration company (the "Buyer"),
T/F Purifiner, Inc., a Delaware corporation (the "Company"), the members of the
Xxxxxx family listed on the signature pages hereto (collectively, "Xxxxxx"), and
the members of the Ford family listed on the signature pages hereto
(collectively, "Ford").
W I T N E S S E T H
WHEREAS, Buyer desires to purchase the Note, the Warrant, the Xxxxxx
Shares and the Ford Shares (each as hereinafter defined) on the terms and
subject to the conditions set forth herein;
WHEREAS, the Company desires to sell the Note and the Warrant to the
Buyer on the terms and subject to the conditions herein set forth; and
WHEREAS, Xxxxxx desires to sell the Xxxxxx Shares to the Buyer on the
terms and subject to the conditions herein set forth; and
WHEREAS, Ford desires to sell the Ford Shares to the Buyer on the
terms and subject to the conditions herein set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
"Common Stock" means the Common Stock, par value $.001 per share, of
the Company.
"Encumbrances" means all voting trusts, arrangements, stockholder
agreements, proxies, liens, encumbrances, transfer restrictions, preemptive
rights, security, interests or community property rights.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Ford Shares" shall have the meaning set forth in Section 2.1(c)
hereof.
"Material Adverse Effect" means a material adverse effect on the
Page 24 of 68 Pages
assets, properties, business, prospects, operations or condition, financial or
otherwise, on the Company.
"Note" shall have the meaning set forth in Section 2.1(a)(i) hereof.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Registration Agreement" means the Registration Rights Agreement dated
as of the date hereof between the Company and the Buyer, substantially in the
form attached hereto as Exhibit A.
"SEC" means the Securities and Exchange Commission.
"SEC Documents" means all documents required to have been filed by the
Company with the SEC under Sections 13, 14(a) and 15(d) of the Exchange Act
since its registration of its Common Stock under Section 12(g) of the Exchange
Act.
"Securities" means the Note, the Warrant, the Xxxxxx Shares and the
Ford Shares, collectively.
"Securities Act" means the Securities Act of 1933, as amended.
"Xxxxxx Shares" shall have the meaning set forth in Section 2.1(b)
hereof.
"Warrant" shall have the meaning set forth in Section 2.1(a)(ii)
hereof.
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ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale of Securities.
(a) The Company hereby agrees to sell to the Buyer and, subject
to the terms and conditions herein set forth, the Buyer agrees to purchase from
the Company, the following:
(i) the Company's promissory note (the "Note") in the aggregate
principal amount of $2,000,000, dated the date hereof and attached hereto as
Exhibit B; and
---------
(ii) the Company's common stock purchase warrant (the "Warrant")
for the purchase of 500,000 shares of Common Stock at an exercise price of $2.75
per share, dated the date hereof and attached hereto as Exhibit C.
---------
(b) Each Person on Schedule I hereto agrees severally to sell to
----------
the Buyer and, subject to the terms and conditions hereinafter set forth, the
Buyer agrees to purchase from each person on Schedule I hereto that number of
shares of Common Stock set forth opposite such person's name, the total amount
of such shares aggregating 285,000 shares of Common Stock (collectively, the
"Xxxxxx Shares"), in each case at $2.75 per share for an aggregate purchase
price of $783,750.
(c) Each Person on Schedule II hereto agrees severally to sell
-----------
to the Buyer and, subject to the terms and conditions hereinafter set forth, the
Buyer agrees to purchase from each person on Schedule II hereto that number of
shares of Common Stock set for opposite such persons name, the total amount of
such shares aggregating 785,000 shares of Common Stock (collectively, the "Ford
Shares"), in each case at $2.75 per share for an aggregate purchase price of
$2,158,750.
2.2 Closing. The closing (the "Closing") of the several purchases and
sales of the Securities shall take place at the offices of Akin, Gump, Strauss,
Xxxxx & Xxxx, L.LP., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the date
hereof. All transactions at the Closing shall be deemed to take place
simultaneously. At the Closing:
(a) The Buyer shall deliver to the Company $2,000,000 in cash or other
immediately available funds to an account designated by the Company.
(b) The Buyer shall deliver to Atlas, Xxxxxxxx, Trop & Borkson, P.A.,
as escrow agent for Xxxxxx (the "Escrow Agent"), $783,750 in cash or other
immediately available funds to an account designated by the Escrow Agent, which
the parties hereto agree is in full satisfaction of the purchase price for the
Xxxxxx Shares.
(c) The Buyer shall deliver (i) to Xxxxxxx X. Xxxx, as representative
of Ford, $2,158,750 less $209,078.01 (such amount paid to the Company as
specified in Section 2.2(c)(ii)) in cash or other immediately available funds to
an account designated by Xxxxxxx X. Xxxx, and (ii) to the Company $209,078.01 in
partial satisfaction of loans made to Xxxxxxx X. Xxxx by the Company, which the
parties hereto agree is in full satisfaction of the purchase price for the Ford
Shares.
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(d) The Escrow Agent, on behalf of the Taylors, shall deliver to the
Buyer the certificates representing the Xxxxxx Shares duly endorsed or with duly
executed stock powers attached and in proper form for transfer to the Buyer.
(e) Ford shall deliver to the Buyer the certificates representing the
Ford Shares duly endorsed or with duly executed stock powers attached and in
proper form for transfer to the Buyer.
(f) Upon receipt by the Buyer of the certificates representing the
Xxxxxx Shares and the Ford Shares, the Buyer shall surrender such certificates
to the Company in exchange for a certificate representing the aggregate number
of shares of the Xxxxxx Shares and the Ford Shares duly registered in the name
of the Buyer.
(g) The Company shall deliver to the Buyer, the Note, the Warrant, the
Xxxxxx Shares and the Ford Shares, in each case duly registered in the name of
the Buyer.
(h) The Company shall deliver to an account designated by Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., the amounts owed it pursuant to Section 7.2.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Buyer that:
3.1 Corporate Existence and Power; Capitalization. The Company is a
corporation duly incorporated and validly existing and in good standing under
the laws of the State of Delaware, and has all corporate powers required to
carry on its business as now being conducted. The Company has no Subsidiaries.
The Company is authorized or duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities make such
qualification necessary. The capitalization of the Company as of the date hereof
is set forth on Schedule 3.1 hereto. The SEC Documents describe accurately all
outstanding stock options, warrants and other rights to purchase any equity
securities of the Company. Except as set forth on Schedule 3.1, there are no
outstanding options, warrants, rights to subscribe to, or securities or rights
convertible or exercisable into or exchangeable for any shares of capital stock
of the Company or arrangements by which the Company is or may become bound to
issue additional shares of its capital stock other than pursuant to this
Agreement and the Warrant.
3.2 Corporate Authorization. The execution, delivery and performance by
the Company of this Agreement, Registration Agreement, the Note and the Warrant
and the consummation by the Company of the transactions contemplated hereby and
thereby, are within the Company's corporate power and have been duly authorized
by all necessary corporate action on the part of the Company. This Agreement,
the Registration Agreement, the Note and the Warrant have each been duly and
validly executed by the Company and constitute the valid and binding agreements
of the Company, each enforceable against the Company in accordance with its
terms.
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3.3 Governmental and Court Authorization. The execution, delivery and
performance by the Company of this Agreement, the Registration Agreement, the
Note and the Warrant require no consent, approval or authorization of, or
filing, registration or qualification with, any governmental body, agency,
official, court or other authority that has not been obtained or made.
3.4 Non-Contravention. The execution, delivery and performance by the
Company of this Agreement, the Registration Agreement, the Note and the Warrant
do not and will not (A) contravene or conflict with the Company's certificate of
incorporation or by-laws, or (B) (i) contravene or conflict with or constitute a
violation of any provision of any federal or state law, regulation, judgment,
injunction, order or decree binding upon or applicable to the Company, (ii)
except as set forth on Schedule 3.4, require any consent, approval or other
action by any Person or constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of the
Company or to a loss of any benefit to which the Company is entitled under any
provision of any agreement, contract, indenture, lease or other instrument
binding upon the Company or any license, franchise, permit or other similar
authorization held by the Company or (iii) result in the creation or imposition
of any Encumbrances on the Securities.
3.5 SEC Documents; Disclosure Documents. Each report or proxy
statement delivered to the Buyer is a true and complete copy of such document as
filed by the Company with the SEC. The Company has delivered to the Buyer all
SEC Documents filed with the SEC since January 1, 1994. The Company has filed in
a timely manner all documents that the Company was required to file with the SEC
under Sections 13, 14(a) and 15(d) of the Exchange Act since its registration of
its Common Stock under Section 12(g) of the Exchange Act. As of their respective
filing dates, all SEC Documents filed by the Company with the SEC complied in
all material respects with the Exchange Act or the Securities Act, as
applicable. None of the SEC Documents as of their respective dates contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents (the "Financial
Statements") complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto. The Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently applied and fairly
present the financial position of the Company at the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal, recurring adjustments).
3.6 Due Authorization and Validity of the Securities. All of the
Securities have been duly authorized and, when delivered against payment
therefor as contemplated hereby, will be validly issued, fully paid and
non-assessable and, will not be subject to any preemptive or similar rights.
3.7 Absence of Certain Changes. Since March 31, 1997, there has been
no Material Adverse Effect.
3.8 Litigation. Except as set forth in the SEC Documents, there is no
action, suit, investigation or proceeding pending against, or to the knowledge
of the Company threatened against or affecting, the Company or any of their
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respective properties before any court or arbitrator or any governmental body,
agency, official or authority which (i) could reasonably be expected to have a
Material Adverse Effect or (ii) in any manner would enjoin, alter, call into
question, affect or delay the transactions contemplated by this Agreement.
3.9 FIRPTA. The Company is not a "United States real property holding
corporation" within the meaning of Section 896(c)(2) of the Internal Revenue
Code of 1986, as amended.
3.10 No Undisclosed Liabilities. Except as set forth on Schedule 3.14,
the Company has no liabilities or obligations not disclosed in the SEC Documents
and those incurred in the ordinary course of the Company's business since March
31, 1997.
3.11 No Brokers. The Company has taken no action which would give rise
to any claim by any Person for brokerage commissions, finders' fees or similar
payments by the Buyer relating to this Agreement or the transactions
contemplated thereby.
3.12 Disclosure. No representation, warranty or statement made by the
Company in this Agreement, the Registration Agreement or any agreement,
certificate, statement or document furnished by or on behalf of the Company in
connection herewith or therewith contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, misleading.
3.13 Transactions with Affiliates. Except as set forth in the SEC
Documents, there are no business relationships or related party transactions
that would be required to be disclosed therein by Item 404 of Regulation S-K of
the SEC that are not so disclosed.
3.14 Intellectual Property. Except as disclosed in the SEC Documents
or Schedule 3.14 hereto:
(a) the Company owns, possesses, controls or is licensed under,
such patents (or applications therefor), trademarks and service marks (and
registrations thereof), copyrights (and registrations thereof), utility models,
inventions, know-how, trade secrets, and other intellectual property (all of
aforesaid referred to as "Necessary Intellectual Property Rights") as are
necessary for the operation of the business now conducted or operated by the
Company, including but not limited to the property listed on Schedule 3.14;
(b) to the knowledge of Company all Necessary Intellectual
Property Rights are valid and subsisting and the Company is unaware of any fact
which, individually or in the aggregate, would materially detrimentally affect
the validity, ownership or enforceability of the Necessary Intellectual Property
Rights;
(c) the Company is not aware of, or has not received notice of,
any asserted right with respect to any of the Necessary Intellectual Property
Rights which, if determined unfavorably with respect to the interests of the
Company would have a Material Adverse Effect;
(d) the Company is unaware of any patent, trademark, copyright or
other intellectual property license to which the Company is a party as licensor
or licensee, which has been revoked, terminated or canceled, or which is likely
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Page 29 of 68 Pages
or subject to being revoked, terminated or canceled, where the revocation,
cancellation or termination would have a Material Adverse Effect; and
(e) the Company has not been notified or advised, has not been
the recipient of a claim, or is otherwise not aware, that any activity of the
Company infringes or violates the patent, trademark, copyright or other
intellectual property right of any third party.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XXXXXX AND FORD
(A) Xxxxxx and Ford hereby represent and warrant, severally and not
jointly, to the Buyer that:
4.1 Authorization. This Agreement has been duly and validly authorized
by it and constitutes its valid and binding agreement and is enforceable against
it in accordance with its terms.
4.2 Governmental and Court Authorization. The execution, delivery and
performance by it of this Agreement requires no consent, approval or
authorization of, or filing, registration or qualification with, any
governmental body, agency, official, court or other authority that has not been
obtained or made.
4.3 Non-Contravention. The execution, delivery and performance by it
of this Agreement do not and will not (i) contravene or conflict with or
constitute a violation of any provision of any federal or state law, regulation,
judgment, injunction, order or decree binding upon or applicable to it, (ii)
require any consent, approval or other action by any Person, or (iii) result in
the creation or imposition of any Encumbrances on the Xxxxxx Shares or the Ford
Shares.
4.4 Title to Shares. It is the owner of, and each has valid and
marketable title to, the Common Stock proposed to be sold by it, free and clear
of all Encumbrances. There is no litigation pending or threatened which
questions the validity of the ownership of the shares of Common Stock to be sold
to it pursuant to the terms of this Agreement. Upon delivery of the such shares
to be sold by it, and payment of the purchase price for such shares, the Buyer
shall receive good and marketable title to such shares free and clear of any
Encumbrances.
4.5 No Brokers. It has not taken any action which would give rise to
any claim by any Person for brokerage commissions, finders' fees or similar
payments by the Buyer to this Agreement or to the transactions contemplated
thereby.
(B) Ford represents and warrants to the Buyer that it has (A) no
reason to believe that the representations and warranties of the Company
contained herein or any information in the SEC Documents are not true and
correct and (B) no knowledge of any material fact, condition or information not
disclosed in the SEC Documents which could have a Material Adverse Effect and
(ii) the sale of the Securities by it pursuant to this Agreement is not prompted
by any information concerning the Company which is not set forth in the SEC
Documents.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants, to the Company, Xxxxxx and
Ford as of the date hereof that:
5.1 Organization; Existence. The Buyer is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and the Buyer has all necessary corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now being conducted.
5.2 Corporate Authorization. The execution, delivery and performance
by the Buyer of this Agreement and the Registration Agreement and the
consummation by the Buyer of the transactions contemplated hereby and thereby
are within the Buyer's corporate powers and have been duly authorized by all
necessary corporate or other action on the part of the Buyer.
5.3 Governmental and Court Authorization. The execution, delivery and
performance by the Buyer of this Agreement and the Registration Agreement
require no consent, approval or authorization of, or filing, registration or
qualification with, any governmental body, agency, official, court or authority
that has not been obtained or made.
5.4 Non-Contravention. The execution, delivery and performance by the
Buyer of this Agreement and the Registration Agreement do not and will not (A)
contravene or conflict with the certificate of incorporation or bylaws of it or
(B) contravene or conflict with or constitute a violation of any provision of
any law, regulation, judgment, injunction, order or decree binding upon or
applicable to it.
5.5 Purchase for Investment; Legends.
(a) The Securities are being acquired for its own account, and not
with a view to the public distribution of such Company Securities in violation
of the Securities Act. Notwithstanding the foregoing, the Buyer shall have the
right at all times to sell or otherwise dispose of all or any part of the
Securities pursuant to a registration, or exemption therefrom, under the
Securities Act. It is an "accredited investor" as defined in Rule 501 under the
Securities Act.
(b) Upon original issuance thereof, and until such time as the same is
no longer required under the applicable requirements of the Securities Act, the
Securities (and all securities issued in exchange therefor or substitution
thereof) shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE SOLD, ASSIGNED, OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH SUCH ACT AND THE APPLICABLE RULES
AND REGULATIONS THEREUNDER.
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5.6 Reliance on Xxxxxx. Except for the representations set forth in
Article IV hereof, the Company is not relying on any other information supplied
by Xxxxxx, or anyone in their capacity as Xxxxxx'x agent, in connection with its
investment in the Securities pursuant to this Agreement.
ARTICLE VI
COVENANTS
6.1 Registration. If and to the extent required by the Registration
Agreement, the Company agrees that it will register any or all of the Securities
(and any or all securities issued in exchange thereof or substitution thereof)
for sale under federal and state securities laws in accordance with the
Registration Agreement.
6.2 Board Representation. The Company, Ford and the Buyer shall take
all action within their respective powers, including without limitation, the
voting of all their respective shares of Common Stock, the execution of written
consents, the calling of special meetings, the removal of directors, the filling
of vacancies on the Board of Directors, the waiving of notice and the attending
of meetings, so as to cause the Board of Directors of the Company to have as
directors commencing on the date hereof (a) Xxxxx Xxxx so long as he becomes and
remains Chief Executive Officer of the Company; (b) Xxxx Xxxx or one of his
designees; (c) one representative designated by Ford; (d) one representative
designated by the Buyer so long as the Buyer owns shares of Common Stock and/or
securities convertible or exercisable into or exchangeable for shares of Common
Stock in an amount equal to 40% of the aggregate number of shares of Common
Stock and securities convertible and exercisable into and exchangeable for
shares of Common Stock purchased by the Buyer pursuant to this Agreement and the
Warrant, and (e) upon the completion by the Company of a future equity or debt
financing between the Company and a third-party investor, a representative
designated by such third party investor of the Company. The Company shall
reimburse each director of the Company for reasonable expenses incurred in
attending each meeting of the Board of Directors or any committee thereof.
6.3 Proceeds of Financing. The proceeds of the sale of the Notes shall
be used by the Company solely for (i) general operating expenses of the Company
and (ii) to hire additional marketing employees for the Company. The portion of
the proceeds of the sale of the Ford Shares which would have otherwise been
received by Xxxxxxx X. Xxxx, as such portion is set forth opposite Xx. Xxxx'x
name on Schedule II hereto, shall be delivered directly to the Company in
partial satisfaction of loans made to Xx. Xxxx by the Company. Except for the
Agreement in Partial Settlement of T/F Purifiner, Inc. Issues (the "Settlement
Agreement"), the Company will not use any of the proceeds from the sale of the
Note for the repayment of any loans made to any shareholder of the Company or
dividends or other Restricted Payments (as defined in Section 6.5 below).
6.4 Transactions with Affiliates. So long as the Note is outstanding,
without the Buyer's written consent, the Company shall not conduct any business
or enter into any transaction or series of similar transactions with any
Affiliate of the Company or any legal or beneficial owner of 5% or more of any
class of capital stock of the Company with an affiliate of such owner unless the
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Page 32 of 68 Pages
terms of such business, transaction or series of transactions are set forth in
writing and as favorable to the Company as terms that would be obtainable at the
time for a comparable transaction or series of similar transactions in arm's
length dealings with an unrelated third person. Notwithstanding the foregoing,
so long as the Note is outstanding the Company shall not make, or cause any
other party to make, any loans to any shareholders of the Company.
6.5 Restricted Payments. So long as the Note is outstanding, the
Company will not, without the prior written consent of the Buyer, (i) declare or
pay any dividend or make any other payment or distribution on account of any
capital stock of the Company, (ii) purchase redeem or otherwise acquire or
retire for value any capital stock of the Company or (iii) except for the
Settlement Agreement, purchase, redeem, defease or otherwise acquire or retire
for value any indebtedness that is subordinate or pari passu to the Note (each a
"Restricted Payment").
ARTICLE VII
CLOSING DELIVERIES
Simultaneously with the execution and delivery of this Agreement, the
following deliveries shall be made:
7.1 Registration Rights Agreement. The Buyer and the Company shall
enter into the Registration Agreement.
7.2 Reimbursement. The Company shall have reimbursed the Buyer for its
out-of-pocket costs and expenses incurred in connection with the closing of the
transactions contemplated by this Agreement and the Registration Rights
Agreement, including without limitation, all out-of-pocket costs and expenses
incurred by the Buyer in connection with the Buyer's legal assessment of patents
and any litigation relating to the Company's patents; provided, however, that
such in no event shall reimbursement for out-of-pocket costs and expenses
relating to patent issues exceed $10,000.
7.3 Officer's Certificate. The Company shall deliver a certificate
from its Secretary attesting to the authenticity of the following documents: (i)
the certificate of incorporation of the Company; (ii) the by-laws of the
Company; (iii) the resolutions of the Company authorizing the sale of the Note
and Warrant; and (iv) the form of certificate for Common Stock (representing
shares of Common Stock equal to the sum of the Xxxxxx Shares and the Ford
Shares).
7.4 Opinion. The Company shall cause Atlas, Xxxxxxxx, Trop & Borkson,
P.A., to deliver to the Buyer an opinion in the form attached hereto as Exhibit
-------
D.
-
7.5 Amendment to Escrow Agreement. Xxxxxx, the Company, Xxxxxxx X.
Xxxx and the Escrow Agent shall enter into and deliver to the Buyer an amendment
to that Escrow Agreement dated March 7, 1997 among said parties in the form
attached hereto as Exhibit E.
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ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.1 Survival. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection herewith
shall survive the Closing.
8.2 Indemnification. (a) The Company shall indemnify and hold harmless
the Buyer (and its directors, officers, employees, Affiliates and permitted
assigns) from and against all losses, liabilities, charges, damages,
deficiencies, costs and expenses (including interest, penalties and attorney's
fees and disbursements) (collectively, "Loss"), sustained or incurred by the
Buyer based upon or arising out of (i) any inaccuracy or defect or breach of any
representation or warranty by the Company in this Agreement or (ii) any failure
by the Company to perform or observe any term or covenant of this Agreement or
the Registration Agreement required to be performed by it, and will reimburse
the Buyer for any reasonable legal or other expenses incurred by it in
connection with the investigating or defending of any Loss.
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(b) Xxxxxx shall indemnify and hold harmless the Buyer (and its
directors, officers, employees, Affiliates and permitted assigns) from and
against all Loss sustained or incurred by the Buyer based upon or arising out of
(i) any inaccuracy or defect or breach of any representation or warranty by
Xxxxxx in this Agreement, or (ii) any failure by Xxxxxx to perform or observe
any term or covenant of this Agreement required to be performed by it, and will
reimburse the Buyer for any reasonable legal or other expenses incurred by it in
connection with the investigating or defending of any Loss.
(c) Ford shall indemnify and hold harmless the Buyer (and its
directors, officers, employees, Affiliates and permitted assigns) from and
against all Loss sustained or incurred by the Buyer based upon or arising out of
(i) any inaccuracy or defect or breach of any representation or warranty by Ford
in this Agreement, or (ii) any failure by Ford to perform or observe any term or
covenant of this Agreement required to be performed by it, and will reimburse
the Buyer for any legal or other expenses incurred by it in connection with the
investigating or defending of any Loss. In addition, Ford shall indemnify and
hold harmless the Buyer from and against 50% of all Loss sustained or incurred
by it based upon or arising out of any inaccuracy or defect or breach of any
representation or warranty by the Company in this Agreement and will reimburse
the Buyer in such 50% pro rata portion for any reasonable legal or other
expenses incurred by it in connection with the investigating or defending of any
Loss.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices, requests and other communications to any
part hereunder shall be in writing (including telecopy or similar writing) and
shall be effective upon receipt and shall be given, if to the Buyer, to:
Quantum Industrial Partners LDC
c/o Curacao Corporation Company, N.V.
Kaya Flamboyan
Willemstad, Curacao
Netherlands, Antilles
Fax: 000-0-000-000
with a copy to:
Xxxxx Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
and
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
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Page 35 of 68 Pages
If the Company to:
T/F Purifiner, Inc.
0000 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X.X. Xxxx
Fax: (000) 000-0000
with a copy to:
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
New River Center - Suite 1900
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Fax: (000) 000-0000
If to Xxxxxx to:
Xxxxx X. Xxxxxx
c/o Taylor Made Group
00 Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Bond, Xxxxxxxxx & Xxxx, LLP
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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Page 36 of 68 Pages
If to Ford to:
Xxxxxxx X. Xxxx
0000 X. Xxxxx Xxxx.
Xxxxxxxx Xxxxx, Xxxxxxx 00000
with a copy to:
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
New River Center - Suite 1900
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Fax: (000) 000-0000
or to such other address or Person as any of the parties may designate by
written notice hereunder.
9.2 Amendments: No Waivers.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by the Buyers and the Company, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No failure or delay by either 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;
9.3 Expenses. Subject to the proviso contained in Section 7.3, all
reasonable costs and expenses incurred by the Buyer in connection with this
Agreement and the Registration Agreement shall be paid by the Company. Each of
the Company, Xxxxxx and Ford shall pay its own expenses incurred in connection
with this Agreement.
9.4 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 that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other parties hereto.
9.5 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
9.6 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other parties hereto.
9.7 Entire Agreement. This Agreement and the Registration Agreement
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Page 37 of 68 Pages
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
subject matter of this Agreement.
9.8 Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby may be brought against
any of the parties in the courts of the State of New York in New York City, 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 hereby consents to
the jurisdiction of such courts (and of the appropriate appellate courts) in any
such suit, action or proceeding and waives any objection to venue laid therein.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the State of New York.
9.9 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
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Page 38 of 68 Pages
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the day and
year first above written.
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-fact
T/F PURIFINER, INC.
By: /s/ Xxxxx X.X. Xxxx
----------------------------------
Name: Xxxxx X.X. Xxxx
Title: President
XXXXXXX X. XXXX
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx
Attorney-in-Fact
XXXXXXXX XXX FORD
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx
Attorney-in-Fact
/s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
XXXXX XXXX
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx
Attorney-in-Fact
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Page 39 of 68 Pages
XXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
Attorney-in-Fact
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
XXXXXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
Attorney-in-Fact
XXXXXXX X.X. XXXXXX
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
Attorney-in-Fact
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