EXHIBIT 10
Exchange Agreement
Exchange Agreement dated as of July 30, 1997 by and among Clearwater
Fund IV Ltd., formerly GFL Performance Fund Ltd. ("Clearwater Ltd."), Clearwater
Fund IV LLC ("Clearwater IV"), Clearwater Offshore Fund Ltd. ("Clearwater
Offshore"), (Clearwater Ltd., Clearwater IV and Clearwater Offshore being,
collectively, the "Preferred Shareholders") and XXXX/Biophile International
Corporation (the "Company").
WHEREAS, Clearwater Ltd. owns 2,231 shares of 5% Cumulative
Convertible Preferred Stock, Series C, of the Company ("Series C Preferred
Stock");
WHEREAS, Clearwater IV and Clearwater Offshore own, respectively,
8000 shares and 2,000 shares of 5% Cumulative Convertible Preferred Stock,
Series D, of the Company ("Series D Preferred Stock");
WHEREAS, the parties hereto desire that the Preferred Shareholders
exchange all outstanding shares of Series C Preferred Stock and Series D
Preferred Stock for an equal number of shares of newly issued 5% Cumulative
Convertible Preferred Stock, Series E of the Corporation having the rights,
preferences and designations as set forth on Exhibit A hereto ("Series E
Preferred Stock");
NOW THEREFORE, the parties agree as follows:
1. Exchange of Shares. Each Preferred Shareholder and the Company
hereby agree to exchange each share of Series C Preferred Stock and Series D
Preferred Stock held respectively by each Preferred Shareholder for one share of
Series E Preferred Stock to be issued at the Closing by the Company (the
"Exchange").
2. Closing. The Closing ("Closing") of the Exchange shall take place
at the offices of Rosenman & Colin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 on such date as shall mutually be agreed to by the parties. At the
Closing, (i) each Preferred Shareholder shall deliver to the Company the stock
certificate representing the Series C Preferred Stock and Series D Preferred
Stock held by such Preferred Stockholder, duly endorsed for transfer and (ii)
the Company will deliver to each Preferred Shareholder a stock certificate for
shares of Series E Preferred Stock representing the same number of shares of
Series C Preferred Stock and Series D Preferred Stock held respectively by such
Preferred Shareholder.
3. Registration Rights. The Company agrees to use its best efforts
to amend its Registration Statement on Form S-3 filed
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with the Securities and Exchange Commission on March 31, 1997 so as to cause as
quickly as practicable the registration of the resale by the Preferred
Shareholders of all shares of Common Stock of the Company receivable upon
conversion of Series E Preferred Stock.
4. Dividends. All accrued and unpaid dividends with respect to the
Series C Preferred Stock and Series D Preferred Stock outstanding as of the
Closing shall be paid by the Company on the first date upon which dividends
shall be payable on the Series E Preferred Stock.
5. Lock-up. The Preferred Shareholders agree not to effect any sale
or transfer of (i) any shares of Series E Preferred Stock, (ii) any shares of
Common Stock received upon conversion of Series E Preferred Stock, or (iii) any
shares of Common Stock of the Corporation received by GFL upon conversion of the
Series C Preferred and owned by GFL as of the date hereof, on or before February
28, 1998, other than sales or transfers to "affiliates" as that term is defined
under the Securities Act of 1933 who agree in writing to be bound by the
foregoing.
6. Investment Representation. Each Preferred Stockholder represents
and warrants it is acquiring the Series E Preferred Stock for investment
purposes and not with a view to the distribution thereof.
7. Miscellaneous.
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of laws.
b. This Agreement and the other agreements specifically
referenced herein, embody the entire agreement and understanding between the
parties relating to the subject matter hereof and supersedes all existing and
prior agreements between the parties.
c. This Agreement cannot be amended, waived, discharged, or
terminated except by an instrument in writing duly executed by all of the
parties.
d. This Agreement may be executed in multiple counterparts
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
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CLEARWATER FUND IV LTD.
By: /s/
-------------------------------------
Name:
Title:
CLEARWATER FUND IV LLC
By: /s/
-------------------------------------
Name:
Title:
CLEARWATER OFFSHORE FUND LTD.
By: /s/
-------------------------------------
Name:
Title:
XXXX/BIOPHILE INTERNATIONAL
CORPORATION
By: /s/
-------------------------------------
Name:
Title:
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