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EXHIBIT 10.6
LIFEQUEST MEDICAL, INC.
SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
AUGUST 11, 1998
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SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This AGREEMENT (the "Agreement"), dated as of August 11, 1998, is
entered into by and among LIFEQUEST MEDICAL, INC., a Delaware corporation (the
"Company"), XXXXXXX X. XXXXXXXXX and R. XXXXXXX XXXXX (individually referred to
as "Woodfield" and "Xxxxx", respectively, and together with any permitted
assignees or successors in interest individually referred to as each or any
"Purchaser" and collectively referred to as the "Purchasers").
RECITAL
WHEREAS, the Woodfield and Xxxxx desire to purchase 20 shares and 150
shares, respectively, of Series A Cumulative Convertible Preferred Stock, par
value $.001 per share, of the Company (the "Series A Preferred Stock"), having
the rights, preferences, privileges and restrictions set forth in the Company's
Certificate of Designation and Preferences of Series A Cumulative Convertible
Preferred Stock by resolution, substantially in the form attached hereto as
EXHIBIT A (the "Certificate of Designation"), and the Company desires to sell
to the Purchasers such shares of Series A Preferred Stock on the terms and
subject to the conditions set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the Company and each Purchaser hereby agree as follows:
ARTICLE I - PURCHASE AND SALE
Section 1.1 Purchase and Sale; Purchase Price. Subject to the
provisions of this Agreement, at Closing (as hereinafter defined), the Company
shall sell to Woodfield and Xxxxx and the Woodfield and Xxxxx shall purchase
from the Company 20 shares and 150 shares, respectively, of Series A Preferred
Stock at the purchase price of $20,000 (the "Woodfield Purchase Price") and
$150,000 (the "Xxxxx Purchase Price") (the Woodfield Purchase Price and the
Xxxxx Purchase Price, collectively, the "Purchase Price"), as follows:
PURCHASE NO. OF
PURCHASER PRICE SHARES
--------- ----- ------
Xxxxxxx X. Xxxxxxxxx $20,000 20
R. Xxxxxxx Xxxxx $150,000 150
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Section 1.2 Closing. The purchase and sale of the Series A Preferred
Stock pursuant to Section 1.1 (the "Closing") shall take place at the offices
of Fulbright & Xxxxxxxx, L.L.P., 000 Xxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxx
00000 or at such other place as may be agreed upon by the Company and the
Purchasers, at 10:00 a.m., local time, on August 11, 1998 or at such other time
and date as may be agreed upon by the Company and the Purchasers (the "Closing
Date").
Section 1.3 Transactions at Closing. At the Closing, the Company shall
deliver to each Purchaser a certificate for the shares of Series A Preferred
Stock to be issued and sold to such Purchaser hereunder duly registered in such
Purchaser's name, or in such other name as such Purchaser shall have specified
in writing to the Company, against payment in full by such Purchaser of the
Purchase Price by wire transfer of immediately available funds.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers that:
Section 2.1 Capitalization. On the Closing Date, the authorized
capital stock of the Company shall consist of (a) 2,000,000 shares of preferred
stock, par value $.001 per share, of which 1,170 shares will be designated
"Series A Cumulative Convertible Preferred Stock," and of which no shares are
issued or outstanding prior to the Closing Date and (b) 50,000,000 shares of
common stock, par value $.001 per share (the "Common Stock"), of which
7,212,742 shares are issued and outstanding, a total of 3,595,818 shares are
reserved for issuance pursuant to outstanding options, warrants and debentures,
and 585,000 shares are reserved for issuance upon conversion of the Series A
Preferred Stock. The outstanding shares of Common Stock are duly authorized and
validly issued, fully paid and nonassessable and not subject to preemptive
rights. Holders of shares of the Company's capital stock have no preemptive
rights or rights of first refusal. the Company.
Section 2.2 Validity of Stock. The Series A Preferred Stock, when
issued, sold and delivered in accordance with the terms of this Agreement, will
be duly authorized and validly issued, fully paid and nonassessable, and will
be free of restrictions on transfer, other than restrictions on transfer under
applicable state and federal securities laws, and not subject to preemptive
rights. The Common Stock issuable upon conversion of the Series A Preferred
Stock purchased under this Agreement has been duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Certification
of Designation, will be duly and validly issued, fully paid, and nonassessable
and will be free of restrictions on transfer other than restrictions on
transfer under applicable state and federal securities laws.
Section 2.3 Authorization; Approvals. All corporate action on the part
of the Company and its stockholders necessary for the authorization, execution,
delivery and performance of all its obligations under this Agreement and for
the authorization, issuance and delivery of the Series A Preferred Stock being
sold under this Agreement and of the Common Stock initially issuable upon
conversion of the Series A Preferred Stock has been (or will be) taken prior to
the Closing. This Agreement, when executed and delivered by or on behalf of the
Company, shall constitute the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The Company has
obtained or will obtain prior to the Closing
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Date all necessary consents, authorizations, approvals and orders, and has made
all registrations, qualifications, designations, declarations or filings with
all federal, state or other relevant governmental authorities required on the
part of the Company in connection with the consummation of the transactions
contemplated by this Agreement, except for such filings as may be required to
be made after the Closing in order to comply with the requirements of
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act") and applicable state laws.
Section 2.4 SEC Reports. The Company has filed all reports,
registration or proxy statements, forms and documents with the SEC that it was
required to file since the date of the initial public offering of its Common
Stock (the "SEC Filings"), all of which have complied in all material respects
with all applicable requirements of the Securities Act and the Exchange Act. As
of their respective dates, each of the SEC Filings, including, without
limitation, any financial statements or schedules included therein, did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. None
of the Company's subsidiaries is required to file any reports, statements,
forms or other documents with the SEC.
ARTICLE III - REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASERS
Each Purchaser represents and warrants to the Company that:
Section 3.1 Authorization; Approvals; No Conflicts. All corporate
action on the part of such Purchaser necessary for the authorization,
execution, delivery and performance of all such Purchaser's obligations under
this Agreement has been (or will be) taken prior to the Closing. This
Agreement, when executed and delivered by or on behalf of the such Purchaser
shall constitute the valid and binding obligation of such Purchaser,
enforceable against such Purchaser in accordance with its terms. Such Purchaser
has obtained or will obtain prior to the Closing Date all necessary consents,
authorizations, approvals and orders, and have made all registrations,
qualifications, designations, declarations or filings with all federal, state
or other relevant governmental authorities required on the part of the such
Purchaser in connection with the consummation of the transactions contemplated
by this Agreement. The execution, delivery and performance of this Agreement
will not result in any violation of, be in conflict with, or constitute, with
or without the passage of time or giving of notice or both, a default under any
terms or provisions of (i) any judgment, decree or order of any court or
government agency or body having jurisdiction over such Purchasers or his
properties; (ii) any agreement, contract, understanding, indenture or other
instrument to which such Purchasers is a party or by which such Purchaser is
bound, the effect of which would have a material adverse effect on the assets,
properties, condition (financial or otherwise), operating results, prospects or
business of such Purchaser; or (iii) any statute, rule or governmental
regulation applicable to such Purchaser.
Section 3.2 Investment Representations. Such Purchaser is acquiring
the Series A Preferred Stock (and any Common Stock into which the Series A
Preferred Stock may be converted) for such Purchaser's own accounts, for
investment purposes and not with a view to, or for sale in connection with, any
distribution of such shares.
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Section 3.3 Investment Experience; Access to Information. Such
Purchaser is an "accredited investor," as that term is defined in Rule 501(a)
promulgated under the Securities Act. s has been afforded prior to the Closing
Date the opportunity to ask questions of, and to receive answers from, the
Company and to obtain any additional information, written and oral, to the
extent the Company has such information or could have acquired it without
unreasonable effort or expense, all as necessary for such Purchaser to make an
informed investment decision with respect to the purchase of the Series A
Preferred Stock.
Section 3.4 Restrictions on Transfer. Such Purchaser agrees that (a)
such Purchaser will not offer, sell, transfer, give, pledge, hypothecate or
otherwise dispose of the Series A Preferred Stock (or the Common Stock into
which it may be converted) or make any attempt to do the foregoing unless such
offer, sale, transfer, gift, pledge, hypothecation or other disposition is (i)
registered under the Securities Act and any applicable state securities law, or
(ii) in compliance with an opinion of counsel to such Purchaser, delivered to
the Company and reasonably acceptable to counsel for the Company, to the effect
that such offer, sale, pledge, hypothecation or other disposition thereof does
not violate the Securities Act or applicable state securities law, and (b) the
certificate(s) representing the Series A Preferred Stock (and any Common Stock
into which it may be converted) shall bear a legend stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER
THE ACT. NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE
OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH,
IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND
OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS
CORPORATION, IS AVAILABLE.
Upon request of a holder of Series A Preferred Stock (or the Common
Stock into which it has been converted), the Company shall remove the legend
set forth above from the certificates evidencing such Series A Preferred Stock
or Common Stock or issue to such holder new certificates therefor free of such
legend, if with such request the Company shall have received an opinion of
counsel selected by the holder and reasonably satisfactory to the Company, in
form and substance reasonably satisfactory to the Company, to the effect that
such Series A Preferred Stock or Common Stock is not required by the Securities
Act to continue to bear the legend.
Section 3.5 Transfer Instructions. Such Purchaser agrees that the
Company may provide for appropriate transfer instructions to implement the
provisions of Section 3.4 hereof.
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Section 3.6 Fees and Commissions. Such Purchaser has retained not an
Intermediary in connection with the transactions contemplated by this
Agreement, and such Purchaser agrees to indemnify and hold harmless the Company
from liability for any compensation to any Intermediary and the fees and
expenses of defending against such liability or alleged liability.
ARTICLE IV - CONDITIONS TO CLOSING OF THE PURCHASERS
The obligation of each Purchaser on the Closing Date to purchase the
Series A Preferred Stock shall be subject to each of the following conditions
precedent, any one or more of which may be waived by such Purchaser:
(a) Representations and Warranties. The representations and
warranties made by the Company herein shall be true and accurate in all
material respects on and as of the Closing Date as if made on the Closing Date.
(b) Performance. The Company shall have performed and complied
with all agreements and conditions contained herein and other documents
incident to the transactions contemplated by this Agreement required to be
performed or complied with by it prior to or at the Closing.
(c) Consents. The Company shall have secured all permits, consents
and authorizations that shall be necessary or required lawfully to consummate
the transactions contemplated by this Agreement, to issue the Series A
Preferred Stock to be purchased by such Purchaser and to issue the Common Stock
into which the Series A Preferred Stock may be converted.
(d) Compliance Certificates. The Company shall have delivered to
such Purchaser or his representative at the Closing an Officer's Certificate to
the effect that all conditions specified in subsections (a) to (c), inclusive,
have been fulfilled.
(e) Certificate of Designation. The Certificate of Designation
shall have been duly filed with the Secretary of State of the State of
Delaware.
ARTICLE V - CONDITIONS TO CLOSING OF THE COMPANY
The obligation of the Company on the Closing Date to issue and sell
the Series A Preferred Stock to be purchased under this Agreement shall be
subject to (a) the representations and warranties made by each Purchaser herein
being true and accurate on and as of such Closing Date and (b) the closing of
that one certain Series A Cumulative Convertible Preferred Stock Purchase
Agreement dated August 11, 1998 between the Company, Renaissance Capital Growth
& Income Fund III, Inc. and Renaissance US Growth & Income Trust, PLC.
ARTICLE VI - REGISTRATION RIGHTS
Section 6.1 Shelf Registration. The Company shall file a "shelf"
registration statement on an appropriate form under the 1933 Act (the "Shelf
Registration") covering all of the Common Stock into which the Series A
Preferred Stock is convertible (the "Registrable
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Securities") within ninety (90) days from the Closing and shall use its best
efforts to cause the Shelf Registration to be declared effective and to keep
the Shelf Registration continuously effective until all of the Registrable
Securities registered therein cease to be Registrable Securities. The
securities shall cease to be Registrable Securities when (a) the Shelf
Registration shall have become effective under the Securities Act and such
securities shall have been disposed of pursuant to the Shelf Registration, or
(b) such securities shall have been sold as permitted by Rule 144 under the
Securities Act. The Company agrees, if necessary, to supplement or amend the
Shelf Registration, as required by the registration form utilized by the
Company or by the instructions applicable to such registration form or by the
Securities Act, and the Company agrees to furnish to the holders of the
Registrable Securities copies of any such supplement or amendment prior to its
being used.
Section 6.2 Obligations of the Company. Whenever required to effect
the registration of any Registrable Securities pursuant to this Agreement, the
Company shall, as expeditiously as reasonably possible:
(a) Furnish to each Purchaser such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by him;
(b) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by such
Purchaser, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify as a broker-dealer in any states
or jurisdictions or to do business or to file a general consent to service of
process in any such states or jurisdictions;
(c) Notify each Purchaser of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto and
covered by such registration statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; and
(d) In the event of the notification provided for in Section
6.2(c) above, the Company shall use its best efforts to prepare and file with
the SEC (and to provide copies thereof to each Purchaser) as soon as reasonably
possible an amended prospectus complying with the Securities Act.
(e) For so long as any Purchaser holds beneficially or of record
(including shares issuable upon the conversion of the Series A Preferred Stock)
five percent (5%) or more of the shares of Common Stock from time to time
outstanding, such Purchaser shall agree to any restrictions on its resale of
the Registrable Securities, whether in public or non-public transactions, for a
period not in excess of ninety (90) days in any period of twelve (12)
consecutive months, as required by the managing underwriter, representative or
selling agent of
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any public or private offering of securities by the Company and shall execute
and deliver to the Company and such managing underwriter, representative or
selling agent an agreement to such effect, if each other director and executive
officer of the Company and holder of five percent (5%) or more of the shares of
Common Stock from time to time outstanding likewise agrees to such restrictions
on resale and executes and delivers such an agreement.
Section 6.3 Expenses of Registration. All expenses (other than
underwriting discounts and commissions) incurred in connection with the
registration or sale of the Registrable Securities pursuant to this Section,
including, without limitation, all registration, filing and qualification fees,
printer's expenses, and accounting and legal fees and expenses of the Company,
shall be borne by the Company.
Section 6.4 Indemnification Regarding Registration Rights. If any
Registrable Securities are included in a registration statement under this
Section:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages, liabilities
(joint or several) or any legal or other costs and expenses reasonably incurred
by him in connection with investigating or defending any such loss, claim,
damage, liability or action to which he may become subject under the Securities
Act, the Exchange Act or other federal or state law, insofar as such losses,
claims, damages, costs, expenses or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (each a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact with respect to the Company or its securities
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements therein;
(ii) the omission or alleged omission to state therein a material fact with
respect to the Company or its securities required to be stated therein or
necessary to make the statements therein not misleading; or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act,
any federal or state securities law or any rule or regulation promulgated under
the Securities Act, the Exchange Act or any state securities law.
Notwithstanding the foregoing, the indemnity agreement contained in this
Section 6.4(a) shall not apply and the Company shall not be liable (i) in any
such case for any such loss, claim, damage, costs, expenses, liability or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Purchaser,
underwriter or controlling person, or (ii) for amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld.
(b) To the extent permitted by law, each Purchaser who
participates in a registration pursuant to the terms and conditions of this
Agreement shall indemnify and hold harmless the Company, each of its directors
and officers who have signed the registration statement, each Person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act, each of the Company's employees, agents, counsel and
representatives, any underwriter and any other Purchaser selling securities in
such registration statement, against any losses, claims, damages, costs,
expenses, liabilities (joint or several) to which the Company or any such
director, officer, controlling person, employee, agent,
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representative, underwriter, or other such Purchaser, may become subject, under
the Securities Act, the Exchange Act or other federal or state law, only
insofar as such losses, claims, damages, costs, expenses or liabilities or
actions in respect thereto arise out of or are based upon any Violation, in
each case to the extent and only to the extent that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Purchaser expressly for use in connection with such. Each such Purchaser will
indemnify any legal or other expenses reasonably incurred by the Company or any
such director, officer, employee, agent representative, controlling person,
underwriter or other Purchaser, in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 6.4(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, costs, expenses, liability
or action if such settlement is effected without the prior written consent of
the Purchaser, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 6.4 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 6.4,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the reasonable fees and expenses
of such counsel to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relieve the indemnifying party of its obligations under this Section 6.4,
except to the extent that the failure results in a failure of actual notice to
the indemnifying party and such indemnifying party is materially prejudiced in
its ability to defend such action solely as a result of the failure to give
such notice.
(d) If the indemnification provided for in this Section 6.4 is
unavailable to an indemnified party under this Section 6.4 in respect of any
losses, claims, damages, costs, expenses, liabilities or actions referred to
herein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, costs, expenses, liabilities or
actions in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand and of the Purchaser, on the other, in connection
with the Violation that resulted in such losses, claims, damages, costs,
expenses, liabilities or actions. The relative fault of the Company, on the one
hand, and of the Purchaser, on the other, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of the
material fact or the omission to state a material fact relates to information
supplied by the Company or by the Purchaser, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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(e) The Company, on the one hand, and the Purchasers, on the other
hand, agree that it would not be just and equitable if contribution pursuant to
this Section 6.4 were determined by a pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of losses, claims, damages,
costs, expenses, liabilities and actions referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses incurred by such
indemnified party in connection with defending any such action or claim.
Notwithstanding the provisions of this Section 6.4, neither the Company nor the
Purchasers shall be required to contribute any amount in excess of the amount
by which the total price at which the securities were offered to the public
exceeds the amount of any damages which the Company or each such Purchaser has
otherwise been required to pay by reason of such Violation. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
Section 6.5 Reports Under the Exchange Act. So long as the Company has
a class of securities registered pursuant to Section 12 of the Exchange Act,
with a view to making available to the Purchasers the benefits of Rule 144
under the Securities Act and any other rule or regulation of the SEC that may
at any time permit a Purchaser to sell securities of the Company to the public
without registration or pursuant to a shelf registration on Form S-3, if
applicable, the Company agrees to use its reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act;
(c) Use its best efforts to include, upon notice of issuance, all
Common Stock covered by such registration statement on NASDAQ National Market
if the Common Stock is then quoted on NASDAQ National Market; or list all
Common Stock covered by such registration statement on such securities exchange
on which any of the Common Stock is then listed; or, if the Common Stock is not
then quoted on NASDAQ National Market or listed on any national securities
exchange, use its best efforts to have such Common Stock covered by such
registration statement quoted on NASDAQ National Market or, at the option of
the Company, listed on a national securities exchange; and
(d) Furnish to any Purchaser, so long as the Purchaser owns any
Registrable Securities, (i) forthwith upon request a copy of the most recent
annual or quarterly report of the Company and such other SEC reports and
documents so filed by the Company, and (ii) such other information (but not any
opinion of counsel) as may be reasonably requested by any Purchaser seeking to
avail itself of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
Section 6.6 Assignment of Registration Rights. Subject to the terms
and conditions of this Agreement, the right to cause the Company to register
Registrable Securities pursuant
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to this Agreement may be assigned by Purchaser to any transferee or assignee of
such securities; provided that said transferee or assignee is a transferee or
assignee of at least ten percent (10%) of the Registrable Securities and
provided that the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and provided, further, that such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act; it being the intention that so long as Purchaser holds any Registrable
Securities hereunder, either Purchaser or its transferee or assignee of at
least ten percent (10%) may exercise the registration rights hereunder. Other
than as set forth above, the parties hereto hereby agree that the registration
rights hereunder shall not be transferable or assigned and any contemplated
transfer or assignment in contravention of this Agreement shall be deemed null
and void and of no effect whatsoever.
ARTICLE VII - MISCELLANEOUS
Section 7.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect to
the subject matter hereof. No party shall be liable or bound to any other party
in any manner by any warranties, representation, or covenants except as
specifically set forth herein or therein.
Section 7.2 Survival of Representations and Warranties. The
warranties, representations and covenants of the Company and the Purchasers
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
Section 7.3 Notices. All notices, requests, demands, consents and
other communications herein shall be in writing and shall be deemed, unless
otherwise specified herein, to have been duly given if personally delivered or
mailed, first-class certified mail, postage prepaid and return receipt
requested or sent by recognized overnight courier service or transmitted by
telex or facsimile, as follows:
(a) If to the Company:
LifeQuest Medical, Inc.
00000 Xxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile number: (000) 000-0000
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with a copy to (which shall not constitute
effective notice to the Company):
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile number: (000) 000-0000
(b) If to Woodfield:
Xxxxxxx X. Xxxxxxxxx
00000 Xxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
(c) If to Xxxxx:
R. Xxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Facsimile number: (000) 000-0000
or such other addresses as each of the parties hereto may provide from time to
time in writing to the party. For purposes of computing the time periods set
forth in this Section 7.3, the delivery date shall be deemed to be (i) three
(3) days after the date of mailing, (ii) the date personally delivered or sent
by telex or facsimile, or (iii) the business day after the date sent by
recognized overnight courier service.
Section 7.4 Amendments. Any term of this Agreement may be amended only
with the written consent of the Company and the holders of the Series A
Preferred Convertible Stock not previously sold to the public. Any amendment
effected in accordance with this paragraph shall be binding upon each holder of
Series A Preferred Stock purchased under this Agreement at the time outstanding
(including Common Stock into which such Series A Preferred Stock have been
converted), each future holder of such securities, and the Company.
Section 7.5 Waiver and Consent. No action taken pursuant to this
Agreement, including any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance
with any party hereto or a breach of any representations, warranties, covenants
or agreements contained herein. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach, and no failure by any party to exercise
any right or privilege hereunder shall be deemed a waiver of such party's
rights or privileges hereunder or shall be deemed a waiver of such party's
rights to exercise the same at any subsequent time or times hereunder.
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Section 7.6 Successors and Assigns. Except as otherwise expressly
provided in this Agreement, all of the terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto (including permitted transfers of
any shares of Series A Preferred Stock sold hereunder or any Common Stock
issued upon conversion thereof).
Section 7.7 Rights of Purchasers. Each Purchaser shall have the
absolute right to exercise or refrain from exercising any right or rights that
such Purchaser may have by reason of this Agreement or any Series A Preferred
Stock, including the right to consent to the waiver of any obligation of the
Company under this Agreement and to enter into any agreement with the Company
for the purpose of modifying this Agreement or any agreement effecting any such
modification.
Section 7.8 Execution and Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, and
all of which together shall constitute one instrument.
Section 7.9 No Third Party Beneficiaries. Except as otherwise
provided, this Agreement has been and is made solely for the benefit of and
shall be binding upon the Company and the Purchasers and no other person shall
acquire or have any rights under or by virtue of this Agreement.
Section 7.10 Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the remaining
provisions hereof or affecting the validity, unenforceability or legality of
such provision in any other jurisdiction.
Section 7.11 GOVERNING LAW. THIS AGREEMENT AND THE LEGAL RELATIONS
AMONG THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAW
DOCTRINE.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
LIFEQUEST MEDICAL, INC.
By:
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Xxxxxxx X. Xxxxxxxxx
Vice President and Chief Financial Officer
PURCHASERS:
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XXXXXXX X. XXXXXXXXX
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R. XXXXXXX XXXXX
