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EXHIBIT 10.43
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INSITE VISION INCORPORATED
AND
PHARMACIA & UPJOHN AB
STOCK PURCHASE AGREEMENT
NOVEMBER 11, 1999
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of November 11, 1999 (the "Agreement"),
by and between INSITE VISION INCORPORATED, a Delaware corporation with its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the
"Company"), and PHARMACIA & UPJOHN AB, a Swedish corporation with a principal
office at Xxxxxxxxxxxxxxx 000,000 00 Xxxxxxxxx, Xxxxxx ("P&U").
RECITALS
WHEREAS, the Company and P&U have entered into an ISV-900 Project
Agreement of even date herewith (the "ISV-900 Project Agreement"); and
WHEREAS, in connection with the ISV-900 Project Agreement, the Company
desires to sell to P&U and P&U desires to purchase from the Company shares of
common stock, par value $.01 per share, of the Company ("Common Stock"), on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the following mutual covenants and
agreements, the parties agree as follows:
ARTICLE 1
PURCHASES OF COMMON STOCK
SECTION 1.1 PURCHASE OF COMMON STOCK. Subject to the terms and
conditions of this Agreement, and in reliance on the representations and
warranties contained in this Agreement, the Company agrees to sell to P&U and
P&U agrees to purchase from the Company, at the Closing (as defined below), that
number of shares of InSite Common Stock equal to Two Million U.S. Dollars
($2,000,000) divided by the average weighted closing share price of the InSite
Common Stock for the twenty (20) trading days immediately prior to the Closing
Date for an aggregate consideration of Two Million U.S. Dollars ($2,000,000.00).
ARTICLE 2
CLOSING DATE; DELIVERY
SECTION 2.1 CLOSING; CLOSING DATE. Subject to the terms of Article 5,
the closing of the sale and purchase of shares of Common Stock under Section 1.1
of this Agreement (the "Closing") shall be held at 10:00 a.m. (Eastern Time) on
the closing date at the offices of P&U, or at such other time and place as the
Company and P&U may agree. The date of the Closing ("Closing Date") shall be the
forty-fifth (45th) business day following the date first written above, or, on
such other date as the Company and P&U shall agree in writing.
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SECTION 2.2 DELIVERY. At the Closing, subject to the terms and
conditions of this Agreement, the Company will deliver to P&U a stock
certificate, in the name of P&U, as applicable, representing, respectively, the
shares of Common Stock deliverable at such closing, dated as of the Closing Date
against payment of the purchase price therefor by wire transfer of immediately
available funds, unless P&U and the Company agree upon other means of payment.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to and except as disclosed by the Company in the Schedule of
Exceptions attached hereto as Exhibit A, the Company represents and warrants to
P&U, on the date hereof and on the Closing Date, as follows:
SECTION 3.1 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement has been taken or will
be taken prior to or as of the Closing Date. The Company has the requisite
corporate power to enter into this Agreement and carry out and perform its
obligations under the terms of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and, upon due execution and
delivery by P&U, this Agreement will be a valid and binding agreement of the
Company, except as limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws of general application affecting creditors' rights generally or
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
SECTION 3.2 NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery
and performance of this Agreement will not result in any violation of, be in
conflict with, or constitute a default under, with or without the passage of
time or the giving of notice: (a) any provision of the Company's Certificate of
Incorporation or Bylaws as either are currently in effect; (b) any provision of
any judgment, decree or order to which the Company is a party or by which it is
bound; (c) any material contract, obligation or commitment to which the Company
is a party or by which it is bound; or (d) to the Company's knowledge, any
statute, rule or governmental regulation applicable to the Company.
SECTION 3.3 CERTIFICATE OF INCORPORATION; BY-LAWS. Attached hereto as
Exhibits B and C, respectively, are true, correct and complete copies of the
Certificate of Incorporation and Bylaws of the Company, as in effect on the date
hereof.
SECTION 3.4 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
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SECTION 3.5 DISCLOSURE DOCUMENTS. The Company's Form 10-K for the fiscal
year ended December 31, 1998 and Forms 10-Q for the fiscal quarters ended March
31, and June 30, 1999, did not, when filed with the Securities and Exchange
Commission, contain any untrue statements of material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading.
SECTION 3.6 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of
30,000,000 shares of Common Stock, of which 20,275,870 shares are issued
and outstanding on the date hereof, and 5,000,000 shares of Preferred
Stock, of which 0 shares of Series A Convertible Preferred Stock, par
value $.01 per share ("Series A Preferred Stock"), are issued and
outstanding on the date hereof. All such issued and outstanding shares
have been duly authorized and validly issued, and are fully paid and
nonassessable. The rights and designations of the Series A Preferred
Stock are as set forth in the Certificate of Designation included within
the Certificate of Incorporation.
(b) The Company has outstanding options to purchase 2,218,723
shares of Common Stock, outstanding warrants to purchase 317,308 shares
of Common Stock and outstanding warrants to purchase 70 shares of Series
A Preferred Stock as of the date hereof. Except as otherwise set forth
herein or in the Company's Restated Certificate of Incorporation, as
amended, or Certificate of Designations, Preferences and Rights of
Series A Convertible Preferred Stock, as corrected, there are no
preemptive or other outstanding rights, options, warrants, conversion
rights or Agreements for the purchase or acquisition from the Company of
any shares of its capital stock or other securities of the Company.
SECTION 3.7 SUBSIDIARIES. The Company does not presently own or control,
directly or indirectly (other than investments in money market funds), and has
no stock or other interest as owner or principal in, any other corporation or
partnership, joint venture, association or other business venture or entity
except for its wholly-owned subsidiary, InSite Vision Limited.
SECTION 3.8 VALID ISSUANCE OF SHARES. The shares of Common Stock which
will be purchased by P&U under this Agreement, when issued, sold and delivered
in accordance with the terms of and for the consideration expressed in this
Agreement, will be duly and validly authorized and issued, fully paid and
nonassessable and, based in part upon the representations of P&U in Section 4.3
of this Agreement, will be issued in compliance with all applicable federal and
state securities laws.
SECTION 3.9 LITIGATION, VALIDITY OF AGREEMENT. There is no action, suit,
proceeding or, to the best of the Company's knowledge, any claim or
investigation pending or currently threatened against the Company, nor, to the
best of the Company's knowledge, is there any basis therefor, which might
result, either individually or in the aggregate, in any material adverse change
in the assets, condition, affairs or prospects of the Company, financial or
otherwise. The foregoing includes, without limitation, any action, suit,
proceeding or investigation, pending or
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threatened, that questions the validity of this Agreement or any other agreement
contemplated hereby or the right of the Company to enter into such agreements.
SECTION 3.10 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement, except for notices, qualifications
or filings required or permitted to be filed with certain state or federal
securities commissions or self-regulatory organizations, which notices,
qualifications, or filings will be filed on a timely basis.
SECTION 3.11 COMPLIANCE WITH LAWS. The Company has complied and is in
compliance in all material respects with all governmental laws, orders, decrees,
rules or regulations applicable to the Company, its assets and business,
employment practices and procedures, employees or operations (except where the
failure to so comply would not have a material adverse effect on the Company,
its business and operations, or the subject matter of the ISV-900 Project
Agreement), including the rules and regulations of the Securities and Exchange
Commission and any exchange or automated inter-dealer quotation system on which
the Common Stock is traded and then current Good Clinical Practices and then
current Good Manufacturing Practices.
SECTION 3.12 NO BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF P&U
P&U hereby represents and warrants to the Company, on the date hereof
and on the Closing Date, as follows:
SECTION 4.1 LEGAL POWER. All corporate action on the part of P&U, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement has been taken. P&U has the requisite corporate
power to enter into this Agreement, to carry out and perform its obligations
under the terms of this Agreement and, at the Closing, will have the requisite
corporate power to purchase the shares of Common Stock to be purchased at such
Closing.
SECTION 4.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by P&U and, upon due execution and delivery by the
Company, this Agreement will be a valid and binding agreement of P&U, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting creditors' rights generally or as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
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SECTION 4.3 INVESTMENT REPRESENTATIONS. In connection with the purchase
and sale of shares under this Agreement, P&U makes the following
representations:
(a) P&U is acquiring the shares of Common Stock under this
Agreement for its own account, not as nominee or agent, for investment
and not with a view to the resale or distribution or public offering
thereof within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"). P&U has no present intention of selling,
granting any participation in, or otherwise distributing the Common
Stock acquired hereunder and has not entered into any agreement or
arrangement with any person with respect to such activities.
(b) P&U understands that (i) the shares of Common Stock to be
purchased under this Agreement have not been registered under the
Securities Act by reason of a specific exemption therefrom, that such
securities are therefore "Restricted Securities" under the Securities
Act and must be held by P&U, and that P&U must bear the economic risk of
such investment, until a subsequent disposition thereof is registered
under the Securities Act or is exempt from such registration; (ii) each
certificate representing such shares will be endorsed with the following
legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
and (iii) the Company will instruct any transfer agent not to register
or effect the transfer of the shares of Common Stock unless the
conditions specified in the foregoing legends are satisfied, until such
time as a transfer is made, pursuant to the terms of this Agreement, and
in compliance with Rule 144 or pursuant to a registration statement or,
if the opinion of counsel referred to above is to the further effect
that such legend is not required in order to establish compliance with
any provisions of the Securities Act or this Agreement.
(c) P&U has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks
of the investment in the shares of Common Stock purchased hereunder and
is financially able to bear the risks thereof.
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(d) P&U is an "accredited investor" as such term is defined in
Rule 501 (a) of Regulation D of the General Rules and Regulations
prescribed by the Securities and Exchange Commission pursuant to the
Securities Act.
(e) P&U has had an opportunity to ask questions and receive
answers from the Company regarding the Company and the terms and
conditions of the offering of the Common Stock and to obtain additional
information necessary to verify the accuracy of the information given to
P&U. P&U has received information that it considers necessary or
appropriate for deciding whether to purchase the Common Stock.
(f) P&U is not a party to any agreement or instrument, or subject
to any charter or other corporate restriction or any judgment, order,
decree, law, ordinance, regulation or other governmental restriction
which would prevent or impede, or be breached or violated by, the
transactions contemplated in this Agreement.
SECTION 4.4 NO BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement.
SECTION 4.5 ORGANIZATION, GOOD STANDING AND QUALIFICATION. P&U is a
corporation duly organized, validly existing and in good standing under the laws
of Sweden, and has all requisite corporate power and authority to carry on their
business as now conducted and as proposed to be conducted. P&U is duly qualified
to transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on its business or
properties.
SECTION 4.6 VALIDITY OF AGREEMENT. No action, suit, proceeding or
investigation is pending or threatened that questions the validity of this
Agreement or any other agreement contemplated hereby or the right of P&U to
enter into such agreements.
SECTION 4.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of P&U is required in connection with the consummation of the
transactions contemplated by this Agreement, except for notices, qualifications
or filings required or permitted to be filed with certain state or federal
securities commissions or self-regulatory organizations, which notices,
qualifications, or filings will be filed on a timely basis.
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.1 CONDITIONS TO OBLIGATIONS OF P&U AT CLOSING. P&U's
obligation to purchase the shares of the Company's Common Stock at the Closing
is subject to the fulfillment to P&U's satisfaction, on or prior to the Closing,
of each of the following conditions, any of which may be waived by P&U:
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(a) Representations and Warranties/Performance of Obligations.
The representations and warranties made by the Company in Article 3
hereof and in the ISV-900 Project Agreement shall be true and correct in
all material respects on the Closing Date with the same force and effect
as if they had been made on and as of that date, and the Company shall
have performed and complied in all material respects with all material
obligations and conditions required under this Agreement to be performed
or complied with by it on or prior to the Closing, and a Certificate of
the Company, certifying the foregoing, shall be delivered to P&U at the
Closing.
(b) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the
Closing and all documents and instruments incident to such actions shall
be reasonably satisfactory in substance and form to counsel to P&U, and
counsel to P&U shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably
require.
(c) Qualifications, Legal Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required
in connection with the lawful sale and issuance of the shares of Common
Stock to be sold and issued pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing. No stop
order or other order enjoining the sale of the shares to be sold at the
Closing shall have been issued and no proceedings for such purpose shall
be pending or, to the knowledge of the Company, threatened by the
Securities and Exchange Commission, or any commissioner of corporations
or similar officer of any state having jurisdiction over such
transaction. At the time of the Closing, the sale and issuance of the
shares of Common Stock to be issued and sold at the Closing shall be
legally permitted by all laws and regulations to which P&U and the
Company are subject.
(d) Opinion of Counsel to the Company. In connection with any
sale of shares hereunder, P&U shall have received from counsel to the
Company, an opinion letter addressed to them, dated the date of the
Closing in substantially the form attached hereto as Exhibit D.
(e) No Material Adverse Change. The Company shall not have
suffered a material adverse change to its business taken as a whole
through the Closing Date.
(f) No Material Default or Notice of Termination under the
ISV-900 Project Agreement. In addition to the conditions set forth
above, P&U's obligation to purchase the shares of the Company's Common
Stock, as applicable, at the Closing shall also be subject to the
condition that the Company is not in material default under the ISV-900
Project Agreement or that a notice of termination of the ISV-900 Project
Agreement shall not have been duly given by either party under the terms
of such ISV-900 Project Agreement.
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(g) Shares Available. The Company has available under its
Certificate of Incorporation as in effect on the date hereof, and shall
have available under its Certificate of Incorporation as in effect at
the Closing Date, sufficient authorized but unissued shares of its
Common Stock to issue and sell to P&U all of the shares of Common Stock
to be issued at Closing.
SECTION 5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT CLOSING. The
Company's obligation to issue and sell the shares of its Common Stock to be sold
at the Closing, is subject to the fulfillment to the Company's satisfaction, on
or prior to the Closing of each of the following conditions, any of which may be
waived by the Company:
(a) Representations and Warranties/Performance of Obligations.
The representations and warranties made by P&U in Article 4 hereof and
in the ISV-900 Project Agreement shall be true and correct in all
material respects on the Closing Date, with the same force and effect as
if they had been made on and as of that date, and P&U shall have
performed and complied in all material respects with all material
obligations and conditions required under this Agreement to be performed
or complied with by it on or prior to the Closing, and a certificate
duly executed by an officer of P&U, certifying the foregoing, shall be
delivered to the Company at the Closing.
(b) Qualifications, Legal Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required
in connection with the lawful sale and issuance of the shares of Common
Stock to be sold and issued pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing. No stop
order or other order enjoining the sale of the shares to be sold at the
Closing shall have been issued and no proceedings for such purpose shall
be pending or, to the knowledge of the Company, threatened by the
Securities and Exchange Commission, or any commissioner of corporations
or similar officer of any state having jurisdiction over such
transaction. At the time of the Closing, the sale and issuance of the
shares of Common Stock to be sold and issued at such closing shall be
legally permitted by all laws and regulations to which P&U and the
Company are subject.
(c) No Material Default or Notice of Termination under the
License ISV-900 Project Agreement. In addition to the conditions set
forth above, the Company's obligation to sell the shares of the
Company's Common Stock at the Closing shall also be subject to the
condition that P&U is not in material default under the ISV-900 Project
Agreement or that a notice of termination of the ISV-900 Project
Agreement shall not have been duly given by either party under the terms
of such ISV-900 Project Agreement.
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ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.1 AFFIRMATIVE COVENANTS OF THE COMPANY. The Company agrees
that it shall do the following for so long as P&U, together with its affiliates,
owns at least five percent (5%) of the Company's outstanding Common Stock.
(a) Preserve and maintain its corporate existence and good
standing in the State of Delaware, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which the failure to so
qualify would have a material adverse effect on its business or
properties.
(b) Keep adequate (i) records and books of account reflecting all
financial transactions of the Company's business, (ii) minute books
containing accurate records of all meetings and accurately reflecting
all corporate action of its stockholders and its board of directors, and
(iii) stock books and ledgers correctly recording all transfers and
issuances of all capital stock.
(c) Maintain, keep and preserve all the material assets owned,
leased or used in the Company's business in reasonable operating
condition and repair, ordinary wear and tear excepted, and discharge and
pay in full when due, except those disputed in good faith, all material
obligations of the Company.
(d) Engage in the Company's research and development and business
in the ordinary course and use reasonable commercial efforts to preserve
its business and the goodwill of customers, suppliers and others having
business relations with the Company.
(e) Comply with all material terms and conditions of the ISV-900
Project Agreement.
(f) Maintain insurance on the assets of the Company comparable to
that which the Company has customarily maintained in the past.
(g) Comply in all material respects with all governmental laws,
orders, decrees, rules or regulations applicable to the Company, its
assets and business, employment practices and procedures, employees or
operations, including the rules and regulations of the Securities and
Exchange Commission and any exchange or automated inter-dealer quotation
system on which the Common Stock is traded and then current Good
Clinical Practices and then current Good Manufacturing Practices, except
where the failure to so comply will not have a material adverse effect
on the Company, its business and operations, or the Company's ability to
comply with the terms of the ISV-900 Project Agreement.
(h) Timely file, all tax returns that are required to be filed
by it and pay on or before the date they are required to be paid all
taxes due pursuant to those tax returns or
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any assessment received by it or otherwise required to be paid, except
taxes being contested in good faith by appropriate proceedings, if
applicable.
SECTION 6.2 NEGATIVE COVENANTS OF THE COMPANY. The Company agrees that,
so long as P&U, individually or collectively with its affiliates owns at least
five percent (5%) of the Company's outstanding Common Stock, it shall not do,
without P&U's prior written approval (which approval shall not be unreasonably
withheld), any of the following:
(a) Amend its Certificate of Incorporation or its by-laws in any
manner that would materially and adversely affect the ability of the
Company to consummate the transactions contemplated by this Agreement or
the ISV-900 Project Agreement.
(b) Directly or indirectly sell, lease, or otherwise dispose of
(other than through a license) any of the assets related to the ISV-900
Project other than in a merger or sale of the entire Company or all or
substantially all of the assets. Any successor of InSite pursuant to a
merger or otherwise shall be bound by all of the obligations of InSite
as contained herein. However, the Company may license its other products
to third parties, provided that the Company notifies P&U of any such
license before that license becomes effective.
(c) Transfer any of the Company's material assets used in its
business to any person and thereafter directly or indirectly lease back
the same or similar property.
(d) Make any significant change in its accounting policies,
except for any change required by GAAP or otherwise in the opinion of
the Company's independent public accountants.
SECTION 6.3 DEMAND REGISTRATION.
(a) At any time that P&U owns any Common Stock of the Company,
P&U shall have the right to cause the Company to register such
Registrable Shares (as defined below) with the Securities and Exchange
Commission and qualify such shares with such state securities
commissions as P&U shall reasonably request in order to allow P&U to
sell such shares, provided that the Company shall not be required to
qualify such shares in any state where such qualification would require
the Company to consent to personal jurisdiction in such state (the
"Demand Registration Right"). P&U shall be entitled to a total of *
Demand Registration *. As used in Sections 6.4 through 6.9 and 7.2, the
term "Registrable Shares" shall mean all Common Stock issued to P&U
pursuant to this Agreement.
(b) If, any offering pursuant to the P&U Demand Registration
Right, involves an underwriting and any other person has piggy-back
registration rights with respect to such registration, and the managing
underwriter shall impose a limitation on the number of shares which may
be included in the registration statement because, in its judgment, such
limitation is necessary to effect an orderly public distribution or
because in its
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed separately
with the Commission pursuant to Rule 24b-2.
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judgment the inclusion of shares being sold by persons other than P&U
would adversely affect the offering, then the Company shall not be
obligated to include in such registration statement any portion of
shares of any other person or P&U as provided in 6.3(c) below.
(c) Notwithstanding any other provision of this Section 6.3, if
the underwriter, in its reasonable judgment, advises the Company in
writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Company shall so advise P&U, and any
other holders of registrable securities which would otherwise be
underwritten pursuant to such registration statement, and the number of
shares of registrable securities that may be included in the
underwriting shall be allocated among all such persons, including P&U,
first to P&U, and any other persons making such demand together with P&U
and then to all other persons, and in each case, in proportion (as
nearly as practicable) to the amount of registrable securities of the
Company owned by each such person.
(d) Notwithstanding the foregoing, if the Company shall furnish
to P&U a certificate signed by the Chief Executive Officer of the
Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed
and it is therefore essential to defer the filing of such registration
statement, the Company shall have the right to defer taking action with
respect to such filing for a period of not more than ninety (90) days
after receipt of the demand of P&U; provided that the Company may not
utilize this right more than once in any twelve-month period.
SECTION 6.4 PIGGY-BACK REGISTRATION.
(a) If the Company shall determine at any time to register for
its own account or the account of others under the Securities Act any of
its equity securities, other than on Form S-4 or Form S-8 or their then
equivalents or otherwise relating to shares of Common Stock to be issued
in connection with any acquisition of any entity or business or shares
of Common Stock issuable under stock option or other employee benefit
plans, it shall send to P&U written notice of such determination and, if
within five (5) business days after receipt of such notice, P&U shall so
request in writing, the Company shall use its best efforts to include in
such registration statement all or any part of the Registrable Shares
that P&U requests to be registered.
(b) If, in connection with any offering involving an
underwriting, the managing underwriter shall impose a limitation of the
number of shares which may be included in the registration statement
because, in its judgment, such limitation is necessary to affect an
orderly public distribution or because in its judgment the inclusion of
shares being sold by persons other than the Company would adversely
effect the offering, then the Company shall be obligated to include in
such registration statement only such limited portion (which may be
none) of the Registrable Shares with respect to which P&U has requested
inclusion pursuant hereto as may reasonably be determined by the
managing underwriter. Any inclusion of Registrable Shares in an
offering, when the
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managing underwriter has so limited the number of shares that may be
included in such offering, shall be allocated pro rata among the holders
of similar "piggyback" registration rights granted by the Company
seeking to include their shares, in proportion to the number of shares
(whether or not such shares are sought to be included in such offering)
held by such persons. The Company shall have the right to delay or
withdraw any registration initiated by it pursuant to Section 6.4
hereof.
SECTION 6.5 EFFECTIVENESS. The Company will use its best efforts to
maintain the effectiveness for up to 90 days, (or such shorter period of time as
the underwriters need to complete the distribution of a registered offering or
until the securities are actually sold) of any registration statement pursuant
to which any of the Registrable Shares are being offered, and from time to time
will amend or supplement such registration statement and the prospectus
contained therein to the extent necessary to comply with the Securities Act and
any applicable state securities laws or regulations.
SECTION 6.6 INDEMNIFICATION.
(a) In the event that the Company registers any of the
Registrable Shares under the Securities Act, the Company will indemnify
and hold harmless P&U and each underwriter of Registrable Shares
(including their officers, directors, affiliates and partners and
including any broker or dealer through whom Registrable Shares may be
sold in such registration) and each person, if any, who controls P&U or
any such underwriter within the meaning of Section 15 of the Securities
Act from and against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which they or any of them become
subject under the Securities Act, applicable state securities laws or
under any other statute or at common law or otherwise, as incurred, and,
except as hereinafter provided, will reimburse P&U, each such
underwriter and each such controlling person, if any, for any legal or
other expenses reasonably incurred by them or any of them in connection
with investigating or defending any actions whether or not resulting in
any liability, as incurred, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the registration statement, in any preliminary or amended
preliminary prospectus or in the final prospectus (or the registration
statement or prospectus as from time to time amended or supplemented by
the Company) or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or
any violation by the Company of any rule or regulation promulgated under
the Securities Act or any state securities laws applicable to the
Company and relating to action or inaction required of the Company in
connection with such registration, unless (i) such untrue statement or
alleged untrue statement or omission or alleged omission was made in
such registration statement, preliminary or amended preliminary
prospectus or final prospectus in reliance upon and in conformity with
information furnished in writing to the Company in connection therewith
by P&U or any such underwriter expressly for use therein, or unless (ii)
in the case of a sale directly by P&U (including a sale of Registrable
Shares through any underwriter retained by P&U to engage in a
distribution
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solely on behalf of P&U), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus copies of
which were delivered to P&U or such underwriter on a timely basis, and
P&U or such underwriter failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the
Registrable Shares to the person asserting any such loss, claim, damage
or liability in any case where such delivery is required by the
Securities Act; provided, however, that the indemnity agreement
contained in this subsection 6.6(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, expense, liability or action
if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld.
(b) P&U will indemnify and hold harmless the Company, each
underwriter of Registrable Shares and any other persons selling
securities in such registration statement (including their officers,
directors, affiliates and partners and including any broker or dealer
through whom Registrable Shares may be sold in such registration) and
each person, if any, who controls the Company, any such underwriter or
other such person selling securities in such registration statement
within the meaning of Section 15 of the Securities Act from and against
any and all losses, claims, damages, expenses or liabilities, joint or
several, to which they or any of them may become subject, under the
Securities Act, applicable state securities laws or under any other
statutes or at common law or otherwise, as incurred, insofar as such
losses, claims, damages, expenses or liabilities (or actions in the
respect thereto) arise out of are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
registration statement, in any preliminary or amended preliminary
prospectus or in the final prospectus (or the registration statement or
prospectus as from time to time amended or supplemented by the Company)
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or any violation
by the Company of any rule or regulation promulgated under the
Securities Act or any state securities laws applicable to the Company
and relating to action or inaction required of the Company in connection
with such registration, in each case to the extent (and only to the
extent) that such untrue statement, alleged untrue statement, alleged
omission, omission or violation occurs in reliance upon and in
conformity with written information furnished by or on behalf of P&U
expressly for use in connection with such registration; and P&U will
reimburse, as incurred, the Company, each such underwriter, each such
other person selling securities in such registration statement and each
such controlling person, if any, for any legal or other expenses
reasonably incurred by them or any of them in connection with
investigating or defending any such loss, claim, damage, liability or
action, whether or not resulting in any liability; provided, however,
that the indemnity agreement contained in this subsection 6.6(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
expense, liability or action if such settlement is effected without the
consent of P&U, which consent shall not be unreasonably withheld. In any
event, except in the case of willful misconduct or fraudulent
misrepresentations, the liability of P&U under the indemnity provisions
of this Agreement shall be limited to an
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amount equal to the gross proceeds received by P&U from the sale of
shares in any transaction to which such indemnification relates.
(c) Promptly after receipt by an indemnified person under this
Section 6.6 of notice of the commencement or threat of any action in
respect of which indemnity may be sought against the indemnifying party,
such indemnified person shall notify the indemnifying party in writing
of the commencement thereof (provided, that failure to so notify the
indemnifying party shall not relieve the indemnifying party from any
liability it may have hereunder, except to the extent prejudiced by such
failure) and, subject to the provisions hereinafter stated, the
indemnifying party shall be entitled to assume the defense of such
action (including the employment of counsel) and the payment of expenses
insofar as such action shall relate to any alleged liability in respect
of which indemnity may be sought against the indemnifying party.
(d) An indemnified person under this Section 6.6 shall have the
right to employ separate counsel in any such action and to participate
in the defense thereof but the fees and expenses of such counsel
subsequent to any assumption of the defense by the indemnifying party
shall not be at the expense of the indemnifying party (but shall be at
the sole expense of the indemnified person) unless the employment of
such counsel has been specifically authorized in writing by the
indemnifying party; provided, however, that, if the defendants in any
such action include both the indemnified person and the indemnifying
party and the indemnified person shall have reasonably concluded that
there may be reasonable defenses available to it which are different
from or additional to those available to the indemnifying party or if
the interests of the indemnified person reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified
person shall have the right to select a separate counsel and to assume
such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the
indemnifying party as incurred. At any time, an indemnified person may
select separate counsel and assume its own legal defense with the
expenses and fees of such separate counsel and other expenses related to
such separate counsel to be borne by such indemnified person. An
indemnifying party shall not be liable to an indemnified person for any
settlement of any such action effected without the indemnifying party's
written consent (which consent shall not be unreasonably withheld or
delayed). An indemnifying party shall not, except with the approval of
each party being indemnified under this Section 6.6 (which approval
shall not be unreasonably withheld or delayed), consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
the parties being so indemnified of a release from all liability in
respect to such claim or litigation.
(e) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which an
indemnified person makes a claim for indemnification pursuant to this
Section 6.6 but indemnification is unavailable to or insufficient to hold
harmless an indemnified person, or it is judicially determined (by the
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entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 6.6 provides for
indemnification in such case, then the indemnifying party and the
indemnified person will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution
from others) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
person on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of indemnified person on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or by P&U on the other hand, and each
party's relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, however,
that, in any such case, (A) except in the case of willful misconduct or
fraudulent misrepresentations, P&U will not be required to contribute any
amount in excess of the public offering price of all Registrable Shares
offered by it pursuant to such registration statement; and (B) no person
or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
SECTION 6.7 FURTHER OBLIGATIONS OF THE COMPANY. Whenever under the
preceding Sections of this Article 6, the Company is required to register
Registrable Shares, the Company agrees that it shall also do the following:
(a) Furnish to P&U such copies of each preliminary and final
prospectus and such other documents as P&U may reasonable request to
facilitate the public offerings of the Registrable Shares;
(b) Use its best efforts to register or qualify the Registrable
Shares covered by the registration statement under the applicable
securities or "blue sky" laws of such jurisdictions as P&U may
reasonably request;
(c) Permit P&U or its counsel or other representatives to inspect
and copy such corporate documents and records as may reasonably be
requested by them, after reasonable advance notice, during normal
business hours and without undue interference with the operation of the
Company's business;
(d) Furnish to P&U a copy of all documents filed with and all
correspondence from or to the Securities and Exchange Commission in
connection with any such offering of securities;
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(e) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and (to
the extent required) make available to its security holders, as soon as
reasonably practicable, an earning statement covering the period of at
least twelve months, but not more than eighteen months, beginning with
the first month after the effective date of the registration statement
covering a public offering, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
SECTION 6.8 EXPENSES. In the case of each registration effected under
Sections 6.3, 6.4 and 6.7, * shall bear * reasonable costs and expenses of each
such registration *, including, but not limited to, * printing, legal and
accounting fees and expenses, Securities and Exchange Commission and NASD or
AMEX (as applicable) filing fees and "blue sky" fees and expenses; provided,
however, that * shall have no obligation to pay or otherwise bear any portion of
*, or the fees and expenses of counsel for P&U in connection with the
registration of the Registrable Shares.
SECTION 6.9 TERMINATION OF REGISTRATION RIGHTS. No holder of Registrable
Shares shall be entitled to exercise any right provided for in, and the Company
shall have no obligation pursuant to, Sections 6.3, 6.4, 6.5 or 6.7 hereof after
such time as all Registrable Shares held by a holder may be sold pursuant to
Rule 144 promulgated under the Securities Act during a given ninety-day period;
provided, however, if the Company fails to comply with SEC Rule 144(c)(1), the
Company's obligations pursuant to Section 6.3, 6.4, 6.5 and 6.7 hereof shall be
reinstated for so long as such failure to comply shall continue.
ARTICLE 7
COVENANTS OF P&U
SECTION 7.1 STANDSTILL AGREEMENT. Other than shares of Common Stock which it is
purchasing pursuant to this Agreement or that it may become obligated to
purchase under that certain Stock Purchase Agreement dated January 28, 1999, by
and among the Company and Pharmacia & Upjohn AB and Pharmacia and Upjohn SA, P&U
hereby covenants and agrees that it will not, nor will it permit any of its
affiliates (including parents, subsidiaries or other related entities) to
purchase or otherwise acquire, directly or indirectly, any equity securities of
the Company (or any securities convertible, exercisable or exchangeable for any
such securities) without the prior written approval of the Company. This
provision shall terminate and be of no further force or effect thirty (30)
months from the date hereof or such earlier date as shall be agreed to in
writing by the Company; provided, that the restrictions of this Section 7.1
shall automatically terminate upon the occurrence of any of the following
events: (a) the filing with the Securities and Exchange Commission of a Schedule
13D by any person or entity other than P&U or its affiliates or any other party
holding ten percent (10%) or more (or five percent (5%) or more in the case of
subpart (y) below) of any class of the Company's voting equity securities as of
the date hereof indicating that such person or entity has acquired beneficial
ownership of (x) more than 9.99% of any class of the Company's voting equity
securities, or (y) has acquired at least 5% of any class of the Company's voting
equity securities which Schedule 13D expresses
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed separately
with the Commission pursuant to Rule 24b-2.
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the filing party's intention to assume control of the Company, whether by tender
offer, merger, proxy contest or otherwise; (b) the commencement of a tender
offer by any person or entity to acquire beneficial ownership of 9.99% or more
of the Company's outstanding voting equity securities; or (c) the solicitation
of proxies by any party other than the Company to which Rule 14(a) of the rules
and regulations under the Securities and Exchange Act of 1934, as amended,
applies and is intended to effect a change in the majority of members of the
Company's Board of Directors.
SECTION 7.2 REGISTRATION. Whenever under the preceding Sections of
Article 6, P&U is registering Registrable Shares pursuant to any registration
statement, (i) P&U agrees to timely provide to the Company, at its request, such
information and materials as it may reasonably request in order to effect the
registration of such Registrable Shares and (ii) if the offering is
underwritten, the Company and P&U agrees to execute an underwriting agreement
containing customary terms and conditions.
SECTION 7.3 VOTING AGREEMENT. P&U agrees that it shall, so long as it
holds shares of Common Stock, vote such shares with respect to any proposed
merger or combination or sale of all or substantially all of the assets of the
Company, with or to any other entity in the same proportion as the shares of the
Company's equity securities voted in favor of such transaction by other parties
who are not themselves a party to any such merger, combination or asset sale;
provided, however, that the foregoing voting requirement shall not apply to P&U
in any transaction which is not approved by the Company's Board of Directors or
in the event of a proposed merger or combination or sale of substantially all of
the assets of the Company to a competitor of P&U.
SECTION 7.4 LIMITATION ON SECURITIES ISSUED PURSUANT TO THIS AGREEMENT.
Unless permitted by the applicable rules and regulations of the American Stock
Exchange, in no event shall the total number of shares of Common Stock issued
pursuant to this Agreement exceed the maximum number of shares of Common Stock
that the Company can so issue pursuant to Rule 713(a) of the American Stock
Exchange (or any successor rule or comparable rule of an applicable exchange or
automated quotation system) which, as of the date of this Agreement shall be
19.99% of shares outstanding on the date of this Agreement.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the State of New York and
the United States of America, without regard to choice of law rules thereof.
SECTION 8.2 PUBLIC STATEMENTS. Any statement to the public regarding
this Agreement or any aspect of this Agreement shall be made subject to and in
accordance with the terms of the ISV-900 Project Agreement.
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SECTION 8.3 ASSIGNMENT. The rights and obligations under this Agreement
may not be assigned by either the Company or P&U without the prior written
consent of the other party; provided, however, that the Company may, without the
prior consent of P&U, assign the rights and obligations under this Agreement to
the acquiring company or any of its affiliates in connection with a merger,
combination or sale of all or substantially all of the assets of the Company.
SECTION 8.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, and permitted assigns of the Company and
P&U.
SECTION 8.5 ENTIRE AGREEMENT. This Agreement and the ISV-900 Project
Agreement (and all of their exhibits and appendices (collectively, the
"Agreements")) set forth all of the covenants, promises, agreements, warranties,
representations, conditions, and understandings between the Company and P&U and
supersede and terminate all prior agreements and understandings between these
parties with respect to the subject matter hereof and thereof. There are no
covenants, promises, agreements, warranties, representations, conditions or
understandings, either oral or written, between the Company and P&U other than
as set forth in the Agreement, the ISV-900 Project Agreement (and all of their
exhibits and appendices). The Agreements are intended to define the full extent
of the legally enforceable undertakings of the Company and P&U and no promise or
representation, whether written or oral, which is not set forth explicitly
herein or therein is intended by either party to be legally binding. The Company
and P&U acknowledges that, in deciding to enter into this Agreement and to
consummate the transactions contemplated under this Agreement, neither has
relied upon any statement or representation, written or oral, other than those
explicitly set forth in this Agreement.
SECTION 8.6 SEVERABILITY. Whenever possible, each provision of the
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of the Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of the Agreement. In the event of such invalidity, the parties shall seek to
agree on an alternative enforceable provision that preserves the original
purpose of this Agreement.
SECTION 8.7 AMENDMENT AND WAIVER. Except as otherwise provided herein,
any term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Company and P&U. No amendment to
this Agreement shall be binding upon the parties unless reduced to writing and
signed by the respective authorized officers of the parties. Any amendment or
waiver effected in accordance with this Section shall be binding upon any holder
of any securities purchased under this Agreement (including securities into
which such securities have been converted), each future holder of all such
securities, and the Company.
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SECTION 8.8 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
and received (a) upon personal delivery, (b) on the fifth day following mailing
by registered or certified mail return receipt requested postage prepaid,
addressed to the Company or P&U at their respective addresses listed below (or
at such other address for a party as shall be specified by like notice;
provided, that notices of a change of address shall be effective only upon
receipt thereof), (c) upon transmission by facsimile (with telephonic notice),
or (d) upon confirmed delivery by overnight commercial courier service:
If to the Company, address to: InSite Vision Incorporated
Attention: Chief Executive Officer
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
with a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Attention: Xxxxxxx X. Xxxxx
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
If to P&U, address to: Pharmacia & Upjohn
Attention: Vice President, Licensing
000 Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000
with a copy to: Pharmacia & Upjohn
Attention: Vice President,
Corporate Law
000 Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000
SECTION 8.9 FEES AND EXPENSES. Except as otherwise provided herein, the
Company and P&U shall bear their own expenses and legal fees incurred on their
behalf with respect to this Agreement and the transactions contemplated hereby.
SECTION 8.10 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
SECTION 8.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, this Agreement is executed and delivered by the
parties as of the date first above written.
INSITE VISION INCORPORATED
By: /s/ X. XXXXX XXXXXXXXXXXXXX
--------------------------------
Name: X. Xxxxx Xxxxxxxxxxxxxx
Title: CEO
PHARMACIA & UPJOHN AB
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title: Sr. VP Corp. Strategy &
Investor Relations
By: /s/ MATS PETTERSSON
--------------------------------
Name: Mats Pettersson
Title: Senior Vice President
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EXHIBIT A
SCHEDULE OF EXCEPTIONS
None
A-1
23
EXHIBIT B
CERTIFICATE OF INCORPORATION
B-1
24
EXHIBIT C
BYLAWS
C-1
25
EXHIBIT D
OPINION OF COUNSEL
Pharmacia & Upjohn AB
c/o Pharmacia & Upjohn Company
000 Xxxxx 000 Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Re: InSite Vision Incorporated
Ladies and Gentlemen:
We have acted as counsel to InSite Vision Incorporated, a
Delaware corporation (the "Company") in connection with the transactions set
forth and contemplated by the Stock Purchase Agreement to be entered into
contemporaneously herewith by and between Pharmacia & Upjohn AB and the Company
(the "Stock Purchase Agreement"). This opinion is furnished to you pursuant to
Section 5.1(d) of the Stock Purchase Agreement.
In rendering the opinions expressed below, we have examined and
are familiar with originals or copies of the Company's Certificate of
Incorporation, and all amendments thereto, as certified by the Delaware
Secretary of State (the "Certificate"), the Company's Bylaws, a Certificate of
Good Standing for the Company issued by the Delaware Secretary of State and such
other agreements, instruments and documents as we have deemed necessary as a
basis for such opinions.
In rendering the opinions set forth herein, we have assumed (i)
the genuineness of all signatures on all documents submitted to us, (ii) the
capacity and competence of each natural person who executed any of these
documents, (iii) the authenticity of all documents submitted to us as originals
and of the originals of all documents submitted to us as copies, (iv) the
conformity with the original documents of all documents submitted to us as
copies and (v) the filing by the Company of all legal forms and documents
required to be filed by the Company, and such filings being made in conformity
with law.
Based on the foregoing and subject to the qualifications and
limitations set forth herein, we are of the opinion that:
1. InSite Vision Incorporated is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is qualified and in good standing as a foreign corporation in each
jurisdiction in which such qualification is required or necessary.
2. The authorized capital of the Company is as set forth in the
Certificate as certified by the Delaware Secretary of State on the date hereof.
D-1
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3. The Company has full corporate power and authority to execute
and deliver the Stock Purchase Agreement and all agreements related thereto, and
to carry out the transactions contemplated thereby.
4. The Stock Purchase Agreement and all agreements related
thereto, have been duly authorized and approved by such directors and officers
that are legally required therefor, have been duly executed and delivered by the
Company.
5. The execution and delivery of the Stock Purchase Agreement and
all other agreements or instruments entered into or delivered in connection with
the transactions contemplated thereby and the performance by the Company of
their terms (i) do not conflict with or result in a violation of the Company's
Certificate or Bylaws or any judgment, order or decree of any court or agency to
which the Company or its assets is subject and (ii) do not conflict with and
will not, with or without notice or lapse of time, constitute a material breach
or default of or result in any lien under any material contract, undertaking,
indenture or other agreement or instrument by which the Company is bound or to
which it is a party.
6. No notice, consent, authorization, approval or order is
required to be given or obtained by the Company of any court or governmental
agency or body for the consummation by the Company of the transactions
contemplated by the Stock Purchase Agreement or any of the other agreements
related thereto.
7. There is no suit, action, or legal, administrative,
arbitration, or other proceeding pending, or threatened against the Company
pertaining to the transactions contemplated by the Stock Purchase Agreement.
The opinions expressed herein are solely for benefit of, and may
be relied upon by, the addressee hereof. The opinions may not be relied upon for
any other purpose or relied upon by any other person, firm or entity for any
purpose. The opinions expressed herein are as of the date hereof.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXXX
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