EXHIBIT 10.4
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of the date of acceptance set forth
below, is entered into by and between XXXXXXXXXX LABORATORIES, INC., a Texas
corporation, with headquarters located at 0000 Xxxxxx Xxxx Xxxx, Xxxxxx,
Xxxxx 00000 (the "Company"), and the undersigned (the "Buyer").
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are executing and delivering this
Agreement in reliance upon the exemption from securities registration
afforded by Rule 506 under Regulation D ("Regulation D") as promulgated by
the United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Buyer wishes to purchase, upon the terms and subject to the
conditions of this Agreement, Series E Convertible Preferred Stock (par value
$100 per share) (the "Preferred Stock") of the Company which will be
convertible into shares of Common Stock, $.01 par value (the "Common Stock"),
of the Company upon the terms and subject to the conditions of such Preferred
Stock, subject to acceptance of this Agreement by the Company;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
a. Purchase. The Buyer hereby agrees to purchase from the Company the
number of shares of Preferred Stock of the Company set forth on the signature
page of this Agreement and having the terms and conditions and being
substantially in the form of the Statement of Resolution attached hereto as
Annex I, at a purchase price of $10,000 per share. The aggregate purchase
price to be paid by Buyer for the Preferred Stock shall be as set forth on
the signature page hereto and shall be payable in United States Dollars.
b. Form of Payment. The Buyer shall pay the aggregate purchase price for
the Preferred Stock by delivering immediately available good funds in United
States Dollars to the escrow agent (the "Escrow Agent") identified in the
Joint Escrow Instructions attached hereto as Annex II (the "Joint Escrow
Instructions") as set forth below. Subject to satisfaction of the conditions
set forth herein, promptly following payment by the Buyer to the Escrow Agent
of the aggregate purchase price of the Preferred Stock, the Company shall
deliver a certificate for the Preferred Stock, registered in the name of
Buyer and duly executed on behalf of the Company, to the Escrow Agent. By
signing this Agreement, the Buyer and the Company each agrees to all of the
terms and conditions of, and becomes a party to, the Joint Escrow
Instructions, all of the provisions of which are incorporated herein by this
reference as if set forth in full.
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c. Method of Payment. Payment into escrow of the purchase price for the
Preferred Stock shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For credit to the account of Xxxxxxx & Xxxxxx, Esqs.
Escrow Account No. 637-0000000
Not later than 1:00 p.m., New York time, on the date which is three (3) New
York Stock Exchange trading days after the Company shall have accepted this
Agreement and returned a signed counterpart of this Agreement to the Escrow
Agent by facsimile, the Buyer shall deposit with the Escrow Agent the
aggregate purchase price for the Preferred Stock, in immediately available
funds. Time is of the essence with respect to such payment, and failure by
the Buyer to make such payment, shall allow the Company to cancel this
Agreement.
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The Buyer represents and warrants to, and covenants and agrees with, the
Company, as of the date of acceptance of this Agreement and as of the Closing
Date (as defined in Section 7 hereof), as follows:
a. The Buyer is purchasing the Preferred Stock, and will be acquiring the
shares of Common Stock issuable upon conversion of, or in payment of
dividends on, the Preferred Stock, or issuable pursuant to Section 2(d) of
the Registration Rights Agreement (as hereinafter defined) (all such shares
of Common Stock herein referred to as the "Shares" and, together with the
Preferred Stock, the "Securities") for its own account for investment only
and not with a view towards the public sale or distribution thereof and not
with a view to or for sale in connection with any distribution thereof.
b. The Buyer is (i) an "accredited investor" as that term is defined in Rule
501 of the General Rules and Regulations under the 1933 Act by reason of Rule
501(a)(3), and (ii) experienced in making investments of the kind described
in this Agreement, and the related documents, (iii) able, by reason of the
business and financial experience of its officers and professional advisors
(who are not affiliated with or compensated in any way by the Company or any
of its affiliates or selling agents), to protect its own interests in
connection with the transactions described in this Agreement, and the related
documents, and (iv) able to afford the entire loss of its investment in the
Preferred Stock.
c. All subsequent offers and sales of any of the "Securities" by the Buyer
shall be made pursuant to registration of the Shares under the 1933 Act or
with respect to the Securities pursuant to an exemption from registration.
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d. The Buyer understands that the Preferred Stock is being offered and sold,
and the Shares are being offered, to it in reliance on specific exemptions
from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy
of, and the Buyer's compliance with, the representations, warranties,
agreements, acknowledgements and understandings of the Buyer set forth herein
in order to determine the availability of such exemptions and the eligibility
of the Buyer to acquire the Preferred Stock and to receive an offer of the
Shares. The Buyer understands that, upon the issuance thereof, the
Securities will be characterized as "restricted securities" under United
States federal securities laws, and that under such laws and applicable
regulations such Securities cannot be sold or otherwise disposed of without
registration under the 1933 Act or an exemption therefrom. In this
connection, the Buyer represents that it is familiar with Rule 144
promulgated under the 1933 Act, as currently in effect, and understands the
resale limitations imposed thereby and by the 1933 Act.
e. The Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Preferred Stock and the
offer of the Shares which have been requested by the Buyer, including Exhibit
A hereto. The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and have received complete and
satisfactory answers to any such inquiries. Without limiting the generality
of the foregoing, the Buyer has also had the opportunity to obtain and to
review the Company's (1) Annual Report on Form 10-K and Annual Report to
Shareholders for the fiscal year ended December 31, 1995, (2) Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 1996, and June
30, 1996 (3) definitive Proxy Statement for the annual meeting of
shareholders of the Company held on May 23, 1996 and (4) the private
placement memorandum attached as Exhibit A hereto.
f. The Buyer understands that its investment in the Securities involves a
high degree of risk.
g. The Buyer understands that no United States federal or state agency or
any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities.
h. This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding agreement of the
Buyer enforceable in accordance with its terms, subject as to enforceability
to general principles of equity and to bankruptcy, insolvency, moratorium and
other similar laws affecting the enforcement of creditors' rights generally.
I. The Buyer is not purchasing the Preferred Stock for the purpose of
covering any short sales of the Common Stock made by the Buyer with the
Shares.
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j. The execution, delivery, and performance by Buyer of this Agreement and
the Registration Rights Agreement (as defined in Section 3(b) hereof), and
the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) if Buyer is a corporation, limited liability company,
partnership, trust, or other entity, conflict with or result in a violation
of any provision of the charter, bylaws, or similar organizational documents
of Buyer, (ii) conflict with or result in a violation of any provision of,
or constitute (with or without the giving of notice or the passage of time
or both) a default under, or give rise (with or without the giving of notice
or the passage of time or both) to any right or termination, cancellation,
or acceleration under, any agreement or other instrument or obligation to
which Buyer is a party or by which Buyer or any of its properties may be
bound, (iii) result in the creation or imposition of any lien or encumbrance
upon the properties of Buyer, or (iv) violate any applicable law binding upon
Buyer.
k. No consent, approval, order, or authorization of, or declaration, filing,
or registration with, any governmental agency or authority or any court
(including under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976)
is required to be obtained or made by Buyer in connection with the execution,
delivery, or performance by Buyer of this Agreement or the consummation by
it of the transactions contemplated hereby.
l. Buyer hereby acknowledges and affirms that it has completed its own
independent investigation, analysis, and evaluation of the Company, that it
has made all such reviews and inspections of the business, assets, results
of operations, condition (financial or otherwise), and prospects of the
Company as it has deemed necessary or appropriate, and that in making its
decision to enter into this Agreement and to consummate the transactions
contemplated hereby it has relied solely on (i) its own independent
investigation, analysis, and evaluation of the Company and (ii) the
representations and warranties of the Company contained in this Agreement.
3. COMPANY REPRESENTATIONS, ETC.
The Company represents and warrants to the Buyer that:
a. Concerning the Shares. The Preferred Stock and the Shares have been (or
prior to the Closing Date will be) duly authorized and, when issued against
payment, will be duly and validly issued, fully paid and non-assessable and
will not subject the holder thereof to personal liability by reason of being
such holder. There are no preemptive rights of any stockholder of the
Company, as such, to acquire the Shares. The Company has registered its
Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934
and the Common Stock is listed on NASDAQ/NMS, and has received no notice,
either oral or written, with respect to discontinuance of its continued
eligibility for such listing.
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b. Stock Purchase Agreement; Registration Rights Agreement and Stock. This
Agreement and the Registration Rights Agreement, the form of which is
attached hereto as Annex III (the "Registration Rights Agreement"), have been
duly and validly authorized by the Company, this Agreement has been duly
executed and delivered by the Company and this Agreement is, and the
Registration Rights Agreement, when executed and delivered by the Company,
will be, valid and binding agreements of the Company enforceable in
accordance with their respective terms, subject as to enforceability to
general principles of equity and to bankruptcy, insolvency, moratorium, and
other similar laws affecting the enforcement of creditors' rights generally,
and, in the case of the Registration Rights Agreement, to public policy
considerations with respect to the enforceability of the indemnification
provisions thereof, and the Preferred Stock will, prior to the Closing Date,
be duly and validly authorized for issuance and, when issued and delivered
by the Company against payment therefor in accordance with this Agreement,
will be validly issued, fully paid and nonassessable.
c. Non-contravention. The execution and delivery of this Agreement and the
Registration Rights Agreement by the Company and the consummation by the
Company of the issuance of the Securities and the other transactions
contemplated by this Agreement and the Registration Rights Agreement do not
and will not (assuming the authorizations, approvals and consents referred
to in Section 3(d) are duly obtained) conflict with or result in a breach by
the Company of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or by-laws of the Company, or any
indenture, mortgage, deed of trust, or other material agreement or instrument
to which the Company is a party or by which it or any of its properties or
assets are bound, or any material existing applicable law, rule, or
regulation or any applicable decree, judgment, or order of any court, United
States federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over the Company or any of its
properties or assets; it being understood that this representation and
warranty is made relying exclusively on the representations, warranties and
agreements made by the Distributor (as defined in Section 8(d) hereof) and
Buyer and the other purchasers of the Preferred Stock pursuant to the
offering contemplated by Exhibit A.
d. Approvals. Except for (i) approval of the listing of the Shares on the
NASDAQ/NMS, and (ii) any authorizations, approvals or consents required under
state securities or "blue sky" laws or under foreign securities laws, and
(iii) filing of the State of Resolution attached hereto as Annex I with the
Secretary of State of Texas, no authorization, approval or consent of any
court, governmental body, regulatory agency, self-regulatory organization,
or stock exchange or market or the stockholders of the Company is required
to be obtained by the Company for the issuance and sale of the Securities to
the Buyer as contemplated by this Agreement; it being understood that this
representation and warranty is made relying exclusively on the
representations, warranties and agreements made by the Distributor (as
defined in Section 8(d) hereof) and Buyer and the other purchasers of the
Preferred Stock pursuant to the offering contemplated by Exhibit A.
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e. Information Provided. The information provided by or on behalf of the
Company to the Buyer and referred to in the last sentence of Section 2(e) of
this Agreement, as of the date of filing thereof with the SEC (in the case
of the annual reports, quarterly reports and proxy statement) and as of the
date of Exhibit A (in the case of the private placement memorandum), does not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, provided that this
representation and warranty does not extend to written material furnished to
the Company by Distributor relating to Distributor or the distribution
process.
f. Absence of Certain Changes. Since June 30, 1996, there has been no
material adverse change and no material adverse development in the business,
properties, operations, financial condition, outstanding securities, or
results of operations of the Company, except as disclosed in the documents
referred to in Section 2(e) hereof.
g. Absence of Litigation. Except as disclosed in the documents referred to
in Section 2(e) hereof, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of the Company or any of its subsidiaries, threatened against or
affecting the Company or any of its subsidiaries, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
properties, business, condition (financial or other), or results of
operations of the Company and its subsidiaries taken as a whole or the
transactions contemplated by this Agreement or which would adversely affect
the validity or enforceability of, or the authority or ability of the Company
to perform its obligations under, this Agreement or the Registration Rights
Agreement.
h. Absence of Events of Default. No Event of Default, as defined in any
agreement to which the Company is a party, and no event which, with the
giving of notice or the passage of time or both, would become an Event of
Default (as so defined), has occurred and is continuing under any material
agreement to which the Company is a party, which would have a material
adverse effect on the business, properties, condition (financial or other)
or results of operations of the Company and its subsidiaries taken as a
whole.
Except as set forth in this Agreement, the Company makes no
representations or warranties to Buyer and hereby disclaims all liability and
responsibility for any representation, warranty, statement, or information
made or communicated (orally or in writing) to Buyer in connection with this
Agreement or the transactions contemplated hereby (including but not limited
to any opinion, information, projection, or advice that may have been
provided to Buyer by an officer, director, employee, agent, consultant or
representative of the Company).
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4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
a. Transfer Restrictions. The Buyer acknowledges that (1) the Preferred
Stock has not been and is not being registered under the provisions of the
1933 Act or any other applicable securities laws and, except as provided in
the Registration Rights Agreement, the Shares have not been and are not being
registered under the 1933 Act or any other applicable securities laws, and
may not be transferred unless (A) subsequently registered thereunder or (B)
the Buyer shall have delivered to the Company an opinion of counsel, such
counsel to be reasonably satisfactory to the Company and such opinion to be
reasonably satisfactory in form, scope and substance to the Company, to the
effect that the Securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration; (2) any sale of
the Securities made in reliance on Rule 144 promulgated under the 1933 Act
may be made only in accordance with the terms of said Rule and further, if
said Rule is not applicable, any resale of such Securities under
circumstances in which the seller, or the person through whom the sale is
made, may be deemed to be an underwriter, as that term is used in the 1933
Act, may require compliance with some other exemption under the 1933 Act or
the rules and regulations of the SEC thereunder; and (3) neither the Company
nor any other person is under any obligation to register the Securities
(other than pursuant to the Registration Rights Agreement) under the 1933 Act
or any other applicable securities laws or to comply with the terms and
conditions of any exemption thereunder.
b. Restrictive Legend. The Buyer acknowledges and agrees, and each
transferee of the Securities shall acknowledge and agree, that the Preferred
Stock, and, until such time as the Shares have been registered under the 1933
Act as contemplated by the Registration Rights Agreement and sold in
accordance with such Registration Statement, the certificates for the Shares,
shall bear a restrictive legend in substantially the following form and any
other legends required by agreement or applicable law (and a stop-transfer
order may be placed against transfer of the certificates for the Securities):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
c. Registration Rights Agreement. Subject to and contingent upon the
closing of the sale and purchase of the Preferred Stock, the parties hereto
agree to enter into the Registration Rights Agreement, in the form attached
hereto as Annex III, on or before the Closing Date.
d. Filings. The Company undertakes and agrees to make all necessary filings
in connection with the sale of the Preferred Stock to Buyer as required by
United States laws and regulations, or by any domestic securities exchange
or trading market, and to provide a copy thereof to the Buyer promptly after
such filing.
e. NASDAQ Notification. The Company shall timely file all required reports
with respect to the listing of the Shares on the NASDAQ/NMS with the National
Association of Securities Dealers, Inc. and shall provide evidence of such
filing to the Buyer.
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f. Use of Proceeds. The Company will use the proceeds from the sale of the
Preferred Stock (excluding amounts paid by the Company for legal fees and
finder's and other fees and expenses in connection with the sale of the
Preferred Stock) as described in the private placement memorandum attached
as Exhibit A.
5. TRANSFER AGENT INSTRUCTIONS.
Subject to the occurrence of the closing hereunder, and not later than the
Closing Date, the Company will irrevocably instruct its transfer agent to
issue certificates for the Shares from time to time upon conversion of the
Preferred Stock as specified from time to time by the Company to the transfer
agent, bearing the restrictive legend specified in Section 4(b) of this
Agreement prior to registration of the Shares under the 1933 Act and sale of
the Shares pursuant to such registration, registered in the name of the Buyer
or its nominee and in such denominations to be specified by the Buyer in
connection with each conversion of the Preferred Stock. The Company warrants
that no instruction other than such instructions referred to in this Section
5 and stop transfer and other instructions to give effect to Sections 4(a)
and (b) hereof prior to registration of the Shares under the 1933 Act and
sale of the Shares pursuant to such registration will be given by the Company
to the transfer agent with respect to the Shares and that the Shares shall
otherwise be freely transferable on the books and records of the Company as
and to the extent provided in and subject to this Agreement, the Registration
Rights Agreement, and applicable law. Nothing in this Section shall affect
in any way the Buyer's obligations and agreement to comply with all
applicable securities laws upon resale of the Securities. If the Buyer
provides the Company with an opinion of counsel reasonably satisfactory to
the Company, and in accordance with clause (1)(B) of Section 4(a) of this
Agreement that registration of a resale by the Buyer of any of the Securities
is not required under the 1933 Act or any other applicable securities laws,
the Company shall (except as provided in clause (2) of Section 4(a) of this
Agreement) permit the transfer of the Securities and, in the case of the
Shares, promptly instruct the Company's transfer agent to issue one or more
share certificates in such name and in such denominations as specified by the
Buyer to effect such transfer.
6. STOCK DELIVERY INSTRUCTIONS.
The Preferred Stock shall be delivered by the Company to the Escrow Agent
pursuant to Section 1(b) hereof on a delivery against payment basis at the
closing.
7. CLOSING DATE.
The date and time of the issuance and sale of the Preferred Stock to Buyer
hereunder (the "Closing Date") shall be not later than 12:00 Noon, New York
time on October ____, 1996, or such other mutually agreed to time or date,
but not later than _________________, 1996 unless waived by the Company. The
closing shall occur on the Closing Date at the offices of the Escrow Agent
in New York City or such other location mutually agreed upon.
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8. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Buyer understands that the Company's obligation to sell and deliver the
Preferred Stock to the Buyer pursuant to this Agreement is conditioned upon:
a. The receipt and acceptance by the Company of this Agreement as evidenced
by execution of this Agreement by the Company for at least $20,000,000 in
Preferred Stock (or such lesser amount as the Company, in its sole
discretion, shall determine);
b. Delivery by the Buyer to the Escrow Agent and by the Escrow Agent to the
Company of good funds as payment in full of an amount equal to the aggregate
purchase price for the Preferred Stock in accordance with Sections 1(b) and
(c) hereof;
c. The accuracy on the Closing Date of the representations and warranties
of the Buyer contained in this Agreement as if made on the Closing Date and
the performance by the Buyer on or before the Closing Date of all covenants
and agreements of the Buyer required to be performed on or before the Closing
Date;
d. The accuracy on the Closing Date of the representations and warranties
of First Granite Securities, Inc. (the "Distributor"), the placement agent
for the offering and sale of the Preferred Stock, contained in the placement
agent agreement between the Company and the Distributor as if made on the
Closing Date, and the performance by the Distributor on or before the Closing
Date of all covenants and agreements of the Distributor required to be
performed on or before the Closing Date under such agreement, and the
delivery by the Distributor to the Company of a certificate to such effect,
dated the Closing Date.
e. Consummation on the Closing Date of the sale by the Company pursuant to
the offering contemplated by Exhibit A of not less than an aggregate of 2,000
shares of Preferred Stock for an aggregate purchase price of not less than
U.S. $20,000,000; and
f. There shall not be in effect any law, rule or regulation or court or
governmental order, injunction or decree, prohibiting or restricting the
transactions contemplated hereby or by the private placement memorandum
attached as Exhibit A, or requiring any consent or approval which shall not
have been obtained, and no legal proceeding shall be pending or threatened
seeking to restrain, prohibit, or obtain damages or other relief in
connection with such transactions;
g. All authorizations, consents and approvals of or filings with
governmental authorities or other persons necessary or required in connection
with the transactions contemplated by this Agreement and the private
placement memorandum attached as Exhibit A hereto shall have been duly
obtained or made.
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9. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the Preferred
Stock is conditioned upon:
a. Acceptance by the Company of this Agreement for the sale of Preferred
Stock, as indicated by execution of this Agreement by the Company;
b. Delivery by the Company to the Escrow Agent of the Preferred Stock and
the Registration Rights Agreement in accordance with this Agreement;
c. The accuracy on the Closing Date of the representations and warranties
of the Company contained in this Agreement as if made on the Closing Date and
the performance by the Company on or before the Closing Date of all covenants
and agreements of the Company required to be performed on or before the
Closing Date; and
d. On the Closing Date, the Escrow Agent, on behalf of the Buyers, having
received an opinion of counsel for the Company, dated the Closing Date,
substantially in the form set forth in Annex IV attached hereto.
10. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
abandoned at any time prior to the closing in the following manner:
a. By mutual written consent of the Company and Buyer; or
b. By the Company, if, on the Closing Date, any of the conditions to its
obligations set forth in this Agreement shall not have been satisfied and
shall not have been waived by the Company; or
c. By Buyer, if, on the Closing Date, any of the conditions to its
obligations set forth in this Agreement shall not have been satisfied and
shall not have been waived by Buyer.
11. GOVERNING LAW: MISCELLANEOUS.
a. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of New York. Any action brought to enforce, or
otherwise arising out of, this Agreement shall be heard and determined only
in either a federal or state court sitting in the County of New York in the
State of New York, U.S.A. A facsimile transmission of this signed Agreement
shall be legal and binding on all parties hereto. This Agreement may be
signed in one or more counterparts, each of which shall be deemed an
original. The headings of this Agreement are for convenience of reference
and shall not form part of, or affect the interpretation of, this Agreement.
b. If any provision of this Agreement shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement or the validity
or enforceability of this Agreement in any other jurisdiction.
c. This Agreement may be amended only by an instrument in writing signed by
the party to be charged with enforcement.
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d. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof.
e. Any notices required or permitted to be given under the terms of this
Agreement shall be in writing and shall be sent by United States registered
or certified mail with postage prepaid, return-receipt requested, or
delivered personally or by prepaid courier, or by telefacsimile, cable,
telegram or telex, and shall be effective three business days after being
placed in the mail, if mailed, or upon receipt, if delivered personally or
by courier, in each case addressed to a party at such party's address shown
in the introductory paragraph or on the signature page of this Agreement or
such other address as a party shall have provided by notice to the other
party in accordance with this provision.
f. Neither Buyer nor any of its affiliates shall issue any press release or
otherwise make any public statement with respect to this Agreement or the
transactions contemplated hereby without the prior written consent of the
Company.
g. Except as otherwise expressly provided in this Agreement, the Joint
Escrow Instructions or the Registration Rights Agreement, all fees and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fee or expense.
h. The parties hereto agree to indemnify and hold harmless each other from
and against any claim or demand for a commission or other compensation by any
financial advisor, broker, agent, finder, or similar intermediary claiming
to have been employed by or on behalf of such indemnifying party and to bear
the cost of legal fees and expenses incurred in defending against any such
claim or demand.
I. The representations and warranties of the parties hereto contained in
this Agreement or in any certificate, instrument, or document delivered
pursuant hereto shall survive the closing, regardless of any investigation
made by or on behalf of any party.
j. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors,
and permitted assigns. Neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by any of the parties
hereto. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any person other than the parties hereto, and their
respective heirs, legal representatives, successors, and permitted assigns,
any rights, benefits, or remedies of any nature whatsoever under or by reason
of this Agreement.
k. No failure or delay by a party hereto 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 provisions of
this Agreement may not be waived except by an instrument in writing signed
by or on behalf of the party against whom such waiver is sought to be
enforced.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Buyer or one
of its officers thereunto duly authorized as of the date set forth below.
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NUMBER OF SHARES OF PREFERRED STOCK TO BE PURCHASED:
AGGREGATE PURCHASE PRICE OF SUCH PREFERRED STOCK:$
SIGNATURE(S) FOR INDIVIDUAL SUBSCRIBER(S)
IN WITNESS WHEREOF, the undersigned represents that the foregoing statements
are true and correct and that he, she or they have executed this Stock
Purchase Agreement this ______ day of ______________, 1996.
_______________________________________________________________________
Printed Name Signature
_______________________________________________________________________
Address
Telecopier No. ________________________________________________________
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing statements
are true and correct and that it has caused this Stock Purchase Agreement to
be duly executed on its behalf this ________ day of ___________________,
1996.
________________________________ _____________________________________
Address Printed Name of Subscriber
________________________________
By: _________________________________
Telecopier No. _________________(Signature of Authorized Person)
_____________________________________
________________________________ Printed Name and Title
Jurisdiction of Incorporation
or Organization
This Agreement has been accepted as of the date set forth below.
XXXXXXXXXX LABORATORIES, INC.
By:
Title:
Date:
ANNEX STATEMENT OF RESOLUTION OF SERIES E CONVERTIBLE PREFERRED STOCK
ANNEX IIJOINT ESCROW INSTRUCTIONS
ANNEX IIIREGISTRATION RIGHTS AGREEMENT
ANNEX IVOPINION OF COUNSEL
EXHIBIT APRIVATE PLACEMENT MEMORANDUM
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