AGREEMENT TO PURCHASE SHARES, dated as of October 10,
1994, among IXION BIOTECHNOLOGY, INC., a Delaware
corporation ("Seller") and the persons listed in Attachment
A hereto ("Purchasers").
Purchasers desire to acquire from the Seller, and Seller desires to sell
to Purchasers, the number of shares of common stock, $0.10 par value set forth
opposite their names on Attachment A, or a total of 130,000 shares (the
"Shares"), for the purchase price and on the terms and conditions set forth
below.
1. Purchase and Sale of Shares. Seller agrees to issue and deliver to
Purchasers fully-paid and nonassessable Shares, free and clear of all liens,
claims, options, charges, and encumbrances whatsoever, and each Purchaser
agrees to purchase the Shares set forth opposite his, her, or their names as
set forth on Attachment A, and to pay Seller the purchase price, such payment
to be not later than November 4, 1994. The purchase price to be paid by the
Purchasers shall be $0.10 per share or, in the aggregate, the amount set
forth opposite his, her, or their name on Attachment A. Payment shall be made
by delivery to Seller of a check payable to Seller.
2. Closing. The closing of each purchase hereunder shall take place in
the offices of the Seller at Xxx Xxxxxxxx Xxxx., Xxxxxxx, XX 00000. At the
Closing, each Purchaser will deliver to Seller:
(i) A check in the amount set forth opposite his, her, or their
names on Attachment A; and
(ii) An executed copy of the investment and representation letter
in the form attached as Attachment B hereto;
and the Seller will execute and deliver a fully paid and nonassessable
certificate for the number of Shares set forth opposite his, her, or their
name on Attachment A hereto.
3. Access to Books, Records, and Information of Seller.
3.1 Purchasers acknowledge that they have received the following
information and documents from Seller:
a) Unaudited balance sheet and income statement and
accompanying notes for the period commencing with the founding of
the Company and ending December 31, 1993;
b) Unaudited balance sheet, income statement, and statement
of cash flow for the nine months ended September 30, 1994;
c) A copy of the Company's Certificate of Incorporation and
Bylaws;
d) A copy of the Company profile dated October, 1994; and
e) Information to the effect of the following:
the Company is a start-up company which has had
substantial operating losses since its founding;
such losses are continuing and are expected to continue
for the foreseeable future;
there is no assurance that the Company will be able to
obtain financing sufficient to fund its objectives, and
therefore this investment is speculative and may fail;
the Company has no material tangible assets and owns no
intellectual property rights, or other intangible property
and that there is no assurance that it will ever have any;
the Company has negotiated with the University of Florida
for an exclusive license to certain technology covered by a
pending U.S. patent application, but that there is no
assurance that the University will execute a license on
reasonable (or any) terms with the Company, and, that if
such license is executed, there is no assurance that the
patent application is valid or that a patent will issue, and
there is no assurance that, assuming the license is executed
and the patent issued, that a commercially saleable product
can be developed therefrom; and
the Company has no intellectual property rights regarding
certain discoveries of Xx. Xxxx in the field of Islets of
Langerhan and that, while it expects to negotiate with the
University of Florida to obtain such rights, there is no
assurance that it will be able to obtain any, and that if it
is successful in obtaining such rights, it is likely that
the Company will have to dilute its interest in such rights
in order to finance further research and development in the
field.
3.2 Purchasers acknowledge that prior to the signing hereof,
Seller has afforded the Purchasers (or any authorized representatives of such
Purchasers) free and full access to all books, tax returns, records, founders,
or officials of the Company.
4. Representations of the Seller.
4.1 The Company is a corporation duly organized, existing, and in
good standing under the laws of the State of Delaware and is duly qualified in
the State of Florida. The Company has the corporate power to own, operate, or
lease its properties, and to carry on its business.
4.2 The Shares to be issued have been validly authorized and,
upon payment by the Purchaser of the purchase price, will be fully paid and
nonassessable.
4.3 Attached hereto as Attachment C are
(i) the unaudited balance sheet and income statement of the
Company as at December 31, 1993, and for the period commencing
with the founding of the Company and ending on December 31, 1993,
with accompanying notes, and
(ii) the unaudited balance sheet, income statement, and statement
of cash flow as at September 30, 1994, and for the nine months
then ended.
There are no audited financial statements.
4.4 Attached hereto as Attachment D are true and correct copies
of the Company's Certificate of Incorporation and Bylaws, as amended.
4.5 Attached hereto as Attachment E is a copy of the October 1994
Company profile.
4.6 There are no actions, suits, proceedings, or investigations
pending or threatened against or affecting the Company.
4.7 Seller has made no representations, warranties or
projections, orally, or in writing, except those expressly set forth in this
Agreement.
5. Representations and Warranties of the Purchasers.
5.1 The Shares which are to be issued and delivered to Purchasers
pursuant to the terms of this Agreement are being acquired by them for their
own accounts for investment and not with a view of the resale or distribution
there of, and they have no present intention of making any distribution or
disposition of any of such Shares. Purchaser understands that the Shares are
being sold to them in a transaction which is exempt from the registration
requirements of the Securities Act of 1933 (the "Act"), and that such Shares
must be held by them and not resold unless they are subsequently registered
under the Act or an exemption from such registration is available and the
certificates issued to evidence such Shares shall contain a legend to the
foregoing effect.
5.2 The offer by the Purchasers to purchase the Shares was
unsolicited.
5.3 Notwithstanding the forgoing, or the provisions of Section 6
below, the Purchasers agree that they will not dispose, by sale, gift, or
otherwise, any of the Shares before November 4, 1999 without the express
written consent of the Company. Such consent may be given only by the
President, the Chairman of the Board, or by vote of the Directors.
5.4 Purchasers have received and carefully read the Company's
unaudited financial statements, its corporate documents, the Company profile
dated October, 1994, and this Agreement and have not been furnished with any
offering materials or literature relating to the Company other than as stated
herein.
5.5 Purchasers have had a reasonable opportunity to ask questions
of and receive answers from the Company concerning the Company and the Shares,
and any such questions have been answered to their full satisfaction.
5.6 Purchasers have such knowledge and expertise in financial and
business matters that they are capable of evaluating the merits and risks
involved in an investment in the Shares; they are financially able to bear the
economic risk of the investment in the Shares, including a total loss of such
investment.
5.7 Purchasers have adequate means of providing for their current
needs and have no need for liquidity in this investment. Purchasers have no
reason to anticipate any material change in their financial condition for the
foreseeable future.
5.8 Purchasers are aware that the purchase of the Shares is a
speculative investment involving a high degree of risk and that there is no
guarantee that the Purchasers will realize any gain from this investment, and
that the Purchasers could lose the total amount of their investment.
5.9 Purchasers understand that no federal or state agency has
made any finding or determination regarding the fairness of this offering, nor
any recommendation or endorsement of the offering.
5.10 Except as set forth in this Agreement, no representations or
warranties have been made to the Purchasers by the Company, and in entering
into this transaction, the Purchasers are not relying upon any information
other than that referred to herein. No person has made any representation or
warranties as to the accuracy or completeness of the information contained in
the Company profile or the unaudited financial statements.
5.11 Purchasers understand that the Shares are being offered and
sold to them in reliance on specific exemptions from the registration
requirements of federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgements, and understandings of the Purchasers set forth
herein in order to determine the applicability of such exemptions and the
suitability of Purchasers to acquire the Shares.
6. Inclusion in Registrations Statements
6.1 If, at any time during the period commencing on October 10,
1994 and ending on October 9, 2004, Ixion shall determine or be required to
register any shares of Ixion common stock (whether on behalf of itself or any
other person) under the Act on Forms X-0, X-0, X-0, XX-0, or SB-2 (or if such
forms are rescinded by the Securities and Exchange Commission, the forms which
supplant such forms), excluding any registration for the offering and sale of
securities of Ixion to its employees, it will notify the Purchasers in order
that they may request that all or a part of the Shares be included in the
registration statement. If requested by any Purchaser in writing within 20
days after Ixion's notice, Ixion will include the requested number of shares
in such registration statement. Any such request shall include the agreement
of the Purchaser requesting the registration to execute and deliver the
underwriting agreement, if any, to be executed and delivered in connection
with such registration. The Company may, however, decline to include all or a
part of the requested number of shares in a registration statement pursuant to
this section if it is advised by the investment banking firm managing the
underwriting that such inclusion would adversely affect the offering of the
shares to be covered by the proposed registration statement.
6.2 Ixion shall use its best efforts to file such post-effective
amendments to any registration statement described in this Section 6 as shall
be necessary to keep it effective until six months after the effective date of
the registration statement or the date on which all of the shares of the
Purchasers covered thereunder shall have been sold, whichever is earlier.
6.3 As a condition to Ixion's obligation under this Section 6 to
cause a registration statement or amendment to be filed or shares to be
included in a registration statement, the Purchasers shall provide such
information and execute such documents as may reasonably be required in
connection with such registration. In addition, Ixion shall not be required
to include such shares in a registration statement if it shall have received
opinions of its and the Purchaser's counsel to the effect that the proposed
disposition of such shares may be effected without registration under the Act.
6.4 The expenses of the registration of Purchasers' shares shall
be paid by Ixion.
7. Miscellaneous
7.1 This Agreement shall be construed in accordance with the laws
of the State of Florida.
7.2 This Agreement constitutes the entire agreement among the
parties hereto and supersedes all prior written or oral communications or
understandings among the parties and cannot be changed except by an instrument
in writing signed by all the parties.
7.3 This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
7.4 Where notices are called for in this Agreement, such notices
shall be deemed given when deposited in the U.S. mail, postage prepaid, and
sent to the following addresses (or such other addresses notice of which shall
have been given to the other party in writing):
To Ixion: Ixion Biotechnology
Xxx Xxxxxxxx Xxxx., Xxx 00
Xxxxxxx, XX 00000
Attn: President
To Purchaser: At the address set forth below:
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
IXION BIOTECHNOLOGY, INC. PURCHASERS
By
Address:
