SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, made and entered into as of this ____ day
of June, 2005 (the "Agreement"), by and between Xechem International, Inc., a
New Jersey corporation ("Xechem") and CepTor Corporation, a Delaware corporation
(the "Company").
WITNESSETH:
WHEREAS, the parties entered into the CepTor Agreement on March 31, 2004
(the "Original Agreement") to provide a mechanism for among other things,
facilitating the independent financing of the Company, and a means of liquidity
for Xechem.
WHEREAS, the parties entered into a First Amendment to the CepTor
Agreement in April 2004 (the "First Amendment") in order to further the purposes
of the Original Agreement by adding to and modifying certain terms and
provisions of the Original Agreement.
WHEREAS, the parties entered into a Second Amendment to the CepTor
Agreement on December 9, 2004 ( the "Second Amendment" and together with the
Original Agreement and the First Amendment, the "Agreements") in order to
further amend the Original Agreement and the First Amendment.
WHEREAS, in accordance with the foregoing, Xechem desires to cancel the
Agreements and to sell to the Company, and the Company desires to purchase, all
upon the terms and subject to the conditions set forth in this Agreement,
2,886,563 shares of the Company's common stock, par value $.0001 per share (the
"Common Stock", and such shares, the "Shares").
Capitalized terms used herein and not otherwise defined shall have the
same meaning as set forth in the Agreements.
NOW THEREFORE, in consideration of the premises and covenants contained
herein, the parties agree as follows:
1. Sale of Stock.
1.1 Xechem hereby sells, and the Company hereby purchases, the
Shares.
1.2 From time to time, Xechem hereby agrees to execute and
deliver any such certificates, instruments or documents, and to do and perform
such other further acts as shall be deemed necessary, in order to effect the
transfer of the Shares pursuant to this Agreement.
1.3 The aggregate purchase price for the Shares shall be Two
Million Three Hundred Nine Thousand Two Hundred Fifty Dollars and Forty Cents
($2,309,250.40) in cash, plus other good and valuable consideration (the
"Purchase Price") payable by wire transfer to Xechem pursuant to the wire
transfer instructions set forth in Exhibit A hereto.
2. Representations and Warranties of Xechem. Xechem represents and
warrants to the Company as follows:
2.1 Ownership of Shares. Except as set forth on Schedule 2.1
hereto, the Shares are solely owned by Xechem, validly issued, fully paid and
non-assessable and are free and clear of any items and all liens, encumbrances,
claims, charges and assessments and subject to no options, agreements, or
restrictions with respect to transferability.
2.2 Organization and Authorization. Xechem is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey and has all requisite power, legal capacity and authority to
enter into this Agreement, and to assume and perform its obligations hereunder.
This Agreement when duly executed and delivered by Xechem will constitute a
legal, valid and binding obligation of Xechem, enforceable against it in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies.
2.3 Approvals and Consents. No action, approval, consent or
authorization, including, but not limited to, any action, approval, consent or
authorization by any governmental or quasi-governmental agency, commission,
board, bureau, or instrumentality is necessary or required as to Xechem in order
to constitute this Agreement as a valid, binding and enforceable obligation of
Xechem in accordance with its terms.
2.4 No Conflicts; Absence of Default. Neither the execution,
delivery and performance of this Agreement by Xechem, nor the consummation by
Xechem of the transactions contemplated hereby and thereby, nor compliance by
Xechem with the provisions hereof and thereof will (i) conflict with or violate
Xechem's Certificate of Incorporation or Bylaws or (ii) conflict with or violate
any law, administrative regulation or rule or court order, writ judgment or
decree applicable to Xechem or (iii) breach, conflict with, violate or cause a
default under any material contract, license or agreement, permit, instrument or
obligation to which Xechem or any of its assets is or may be bound. There are no
corporate, contractual, statutory or other restrictions of any kind upon the
power and authority of Xechem to execute and deliver this Agreement and to
consummate the transactions contemplated hereunder.
2.5 Solvency. After giving effect to the transactions
contemplated by this Agreement, and subject to currently contemplated financing,
Xechem will be solvent. Xechem will not fail to be solvent as a result of the
execution and delivery of this Agreement or any of the other agreements,
documents or instruments to which it is a party or as a result of the
transactions contemplated hereunder.
2.6 Representations and Warranties of the Company. The Company
represents and warrants that 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 power, legal capacity and authority to enter into this
Agreement and to assume and perform its obligations hereunder. This Agreement
when duly executed and delivered by the Company will constitute a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
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by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies.
3. Covenants of Xechem. (a) Xechem hereby agrees that it shall only
sell the 500,000 shares that it holds on the date hereof after the closing of
the transactions contemplated hereby (the "Remaining Shares"), which Remaining
Shares are being registered pursuant to the Company's registration statement on
Form SB-2 (the "Registration Statement"), pursuant to the terms of this Section
3.
(b) Xechem agrees that, notwithstanding the effectiveness of
the Registration Statement, Xechem shall only sell the Remaining Shares in such
quantities and at such times as would be permissible if such shares were not
registered and were still subject to the restrictions of Rule 144, assuming that
the one year holding period for the shares owned by Xechem were satisfied as of
the date of the effectiveness of the registration statement, if declared
effective prior to the first anniversary of the acquisition of those shares by
Xechem (to ensure that it could sell registered shares before the actual first
anniversary).
4. Termination of Agreements. The Agreements are hereby terminated.
5. Surrender of Options. As additional consideration for the Shares,
Xxxxxxx Xxxxxxx, the Company's Chief Executive Officer, hereby agrees, at the
direction of Xechem, to surrender his options to purchase 43,000,000 shares of
the common stock, par value $ .00001 per share, of Xechem.
6. General Provisions.
6.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
contained herein and supersedes all prior oral or written agreements, if any,
between the parties hereto with respect to such subject matter and, except as
otherwise expressly provided herein, is not intended to confer upon any other
person any rights or remedies hereunder. Any amendments hereto or modifications
hereof must be made in writing and executed by each of the parties hereto.
6.2 Waiver. Any failure by Xechem or the Company to enforce
any rights hereunder shall not be deemed a waiver of such rights.
6.3 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to conflict of laws principles.
6.4 Binding Effect; Assignment. This Agreement and the various
rights and obligations arising hereunder shall inure to the benefit of and be
binding upon Xechem and the Company and their respective successors and assigns.
6.5 Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs and expenses.
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6.6 Headings. The headings or captions contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
XECHEM:
XECHEM INTERNATIONAL, INC.
By:___________________________
Name:
Title:
COMPANY:
CEPTOR CORPORATION
By:___________________________
Name:
Title:
As to Sections 4 and 5 only:
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Xxxxxxx Xxxxxxx
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