Exhibit 10.34
POLAR MOLECULAR CORPORATION
PURCHASE AGREEMENT
October 19 , 2001
Polar Molecular Corporation
0000 X. Xxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Gentlemen and Ladies:
1. Purchase. This Purchase Agreement (this "Agreement") is entered into by
the undersigned ("Purchaser"), and the Purchaser hereby purchases from Polar
Molecular Corporation, a Delaware corporation (the "Company"), for a total
purchase price of $200,000 (the "Purchase Price") the following: (a) a
Convertible Promissory Note in the principal amount of $200,000 substantially in
the form attached as Exhibit A (the "Note") and (b) 88,889 shares (which number
of shares reflects the effectiveness of the Company's reverse stock split and
which is the equivalent of 800,000 shares on a pre-split basis) of common stock
(the "Stock"), par value $0.0001 per share, of the Company (the "Common Stock").
Upon execution of this Agreement, Purchaser has delivered the full amount of the
Purchase Price, and the Company has executed and delivered the Note and issued
the Stock.
2. Representations and Warranties of Purchaser. Purchaser hereby
represents, warrants, and agrees:
(a) Unregistered Securities. Neither the Note, the Stock,
(collectively, the "Purchased Securities"), the options to purchase shares of
the Common Stock issuable upon conversion of the Note (the "Conversion
Options"), or the shares issuable upon exercise of the Conversion Options
("Conversion Shares" and, together with the Purchased Securities and the
Conversion Options, the "Securities") is registered under the Securities Act of
1933 (the "Securities Act") or any state securities laws. The offering and sale
of the Purchased Securities and issuance of the Conversion Options and
Conversion Shares is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) and/or Section 4(6) of the Securities
Act and the provisions of Regulation D promulgated thereunder, based in part
upon the representations, warranties, and agreements contained herein. Neither
the Securities and Exchange Commission nor any state securities commission has
approved the Securities or passed upon or endorsed the merits of the investment
or reviewed or confirmed the accuracy or determined the adequacy of any
information furnished to Purchaser by the Company.
(b) Access to Information. All documents, records, and books of the
Company pertaining to the investment in the Securities have been made available
for inspection by Purchaser. Purchaser has had a reasonable opportunity to
obtain any additional information, review any additional documents, and meet
with representatives of the Company or have them
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answer any questions and provide additional information regarding this
investment and the finances, operations, business, and prospects of the Company
deemed relevant by Purchaser. All such questions have been answered and
requested information provided to Purchaser's full satisfaction.
(c) Suitability; Accredited Investor. Purchaser has such knowledge and
experience in financial, tax, and business matters to evaluate the merits and
risks of an investment in the Securities and to make an informed investment
decision with respect thereto. Purchaser is aware that an investment in the
Securities involves very significant risks and acknowledges that the Company is
in the development stage and has substantial immediate needs for additional
financing in order to continue in the development stage. Purchaser meets the
requirements of at least one of the suitability standards for an "accredited
investor" as defined under Rule 501(a) of the Securities Act. Purchaser has a
sufficient net worth to sustain a loss of its entire investment in the Company
in the event such a loss should occur; and this investment is a suitable one for
Purchaser.
(d) Investment Intent; Restrictive Legend. Purchaser is acquiring the
Securities solely for Purchaser's own account for investment and not with a view
to resale or distribution. Purchaser must bear the economic risk of the
investment indefinitely because none of the Securities may be sold,
hypothecated, or otherwise disposed of unless subsequently registered under the
Securities Act and applicable state securities laws or an exemption from
registration is available. Legends will be placed on the Note and certificates
representing the Stock and Conversion Shares to the effect that they have not
been registered under the Securities Act or applicable state securities laws and
appropriate notations thereof will be made in the Company's stock books; stop
transfer instructions will be placed with any transfer agent.
3. Representations and Warranties of Company. The Company represents,
warrants, and agrees:
(a) Due Incorporation and Authorization. The Company is duly
incorporated, validly existing, and in good standing under the laws of the State
of Delaware. As of the date of the closing of the transactions contemplated
hereby, the Company shall have duly authorized the issuance and sale of the
Securities in accordance with the terms of this Purchase Agreement by all
requisite corporate action.
(b) Issuance of Securities. The shares of Stock, when issued, and the
Conversion Shares, when issued upon conversion of the Note, will represent
validly authorized, duly issued, fully paid, and nonassessable shares of Common
Stock of the Company. The issuance of the Securities will not conflict with the
certificate of incorporation, as amended, or the bylaws of the Company or any
material contract to which the Company is a party. The Company has complied in
all material respects with all laws applicable to the issuance of the Purchased
Securities, and upon conversion of the Note, the Conversion Options and the
Conversion Shares.
(c) Liens and Security Interests. The Company is the owner of the
"Collateral" (as such term is defined in that certain Security Agreement between
the Company
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and the Borrower dated as of the date hereof and to become effective in
accordance with the terms thereof (the "Note Security Agreement")) free and
clear of any lien, security interest, or other charge or encumbrance except for
the lien and security interest created by that certain Security Agreement
between the Company and certain other parties dated January 30, 2001 (the
"Existing Security Agreement").
(d) Available Funds. As of the date of the closing of the transactions
contemplated hereby, the Company shall have at least $700,000 (including the
proceeds to be delivered to the Company by Purchaser pursuant to the terms of
this Agreement) in available funds to be applied to the retirement of the
Company's existing debt.
4. Use of Proceeds. The Company agrees to use all of the proceeds from the
sale of the Purchased Securities together with the proceeds of securities sold
to other persons first to redeem the Company's outstanding Series B Preferred
Stock in order to obtain the release of the liens granted pursuant to the
Existing Security Agreement. Upon redemption of all of the Company's outstanding
Series B Preferred Stock, the proceeds of the Purchased Securities shall be used
(a) for working capital, and (b) for general corporate purposes. Without the
prior written consent of Purchaser, the Company shall not use the proceeds from
the sale of the Purchased Securities for any acquisition of securities or assets
of any business as a going concern.
5. Registration Rights. In connection with an initial public offering of
the Company's securities and prior thereto, the Company hereby agrees that the
Company shall enter into a registration rights agreement granting Purchaser
"piggy-back" registration rights for the Stock, upon standard and customary
terms (including typical underwriter restrictions on the timing of the offering
and the number of securities to be offered in such offering), for any
registration of the Company's common stock taking place at least one hundred
eighty (180) days after the conclusion of the initial public offering of the
Company's securities.
6. Covenants of Purchaser.
(a) Subordination. Upon the request of the Company, Purchaser hereby
agrees to subordinate, on usual and customary terms, the repayment of
indebtedness evidenced by the Note with respect to equipment loans or leases
incurred in the ordinary course of business from financial institutions, if the
Company is requested by such financial institutions to obtain such agreement of
subordination. Purchaser hereby further acknowledges that all rights that
Purchaser has to repayment of the indebtedness evidenced by the Note are second
in priority to the rights of Affiliated Investments, L.L.C. to the repayment by
the Company of the principal amount of $600,000, pursuant to the terms of the
Company's note in favor of Affiliated Investments, L.L.C.
(b) Restrictions on Transfer of Securities. Purchaser shall not sell,
assign, transfer, give, pledge, hypothecate, encumber or otherwise dispose of
the Securities without the prior written consent of the Company, which consent
shall not be unreasonably withheld.
(c) Lock-Up. In connection with an initial public offering of the
Company's securities, Purchaser agrees that, without the prior written consent
of the Company, Purchaser
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shall not offer, sell, contract to sell, or otherwise dispose of any shares of
Stock or Conversion Shares for and during the period beginning on the date that
the Company executes an underwriting agreement with respect to such public
offering and continuing to and including 180 days thereafter, for sales of
securities under Rule 144 under the Securities Act, and two years in the case of
all sales and dispositions, after the effective date of the registration
statement under the Securities Act for such offering.
7. Covenant of the Company. The Company and Purchaser shall execute the
Note Security Agreement in substantially the form attached hereto as Exhibit B
concurrent with the execution of this Agreement and the Note.
8. Modification. This Agreement shall not be modified or waived except in a
writing signed by both parties.
9. Notices. Any notice or other communication hereunder shall be in writing
and shall be mailed by certified mail, return receipt requested, transmitted by
facsimile, or delivered against receipt to the party to whom it is to be given
(a) if to Company, at the address set forth above, or facsimile number, or (b)
if to Purchaser, at the address or facsimile number set forth on the signature
page hereof (or, in either case, to such other address or facsimile number as
the party shall have furnished in writing in accordance with the provisions of
this Section 8). Each such notice or other communication shall for all purposes
of this Agreement be treated as effective or have been given when (x) delivered
if delivered personally, (y) if transmitted by facsimile, upon conclusion of the
transmission, or (z) if sent by certified mail, at the time of certification
thereof.
10. Assignability. This Agreement and the rights, interests and obligations
hereunder are not transferable or assignable by Purchaser, without the prior
written consent of the Company.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Colorado without regard to its
conflicts of laws principles. Purchaser hereby irrevocably submits to the
jurisdiction of any State of Colorado or United States court sitting in the City
and County of Denver over any action or proceeding arising out of or relating to
this Agreement or any agreement contemplated hereby, and all claims in respect
of such action or proceeding may be heard and determined in such court.
Purchaser further waives any objection to venue in the State of Colorado and any
objection to any action or proceeding in such State on the basis of an
inconvenient forum. PURCHASER HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
12. Confidentiality. Purchaser agrees that any information or data it has
acquired from or about the Company, not otherwise properly in the public domain,
was received in confidence. Purchaser shall not divulge, communicate, or
disclose, except as may be required by law or for the performance of this
Agreement, or use to the detriment of the Company or for the benefit of any
other person, or misuse in any way any confidential information of the Company,
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including without limitation any technical, trade, or business secrets of the
Company and any technical, trade, or business materials that are treated by the
Company as confidential or proprietary, including without limitation ideas,
discoveries, inventions, developments, know-how and improvements belonging to
the Company and confidential information obtained by or given to the Company
about or belonging to third parties.
13. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between Purchaser and the Company with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings, if any,
relating to the subject matter hereof.
(b) Survival. Purchaser's and the Company's representations and
warranties made in this Agreement shall survive the execution and delivery
hereof and of the Note and the Stock.
(c) Fees and Expenses. Each party hereto shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers, or
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby, whether or not the transactions contemplated
hereby are consummated.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
(e) Severability. Each provision of this Agreement shall be considered
separate. If for any reason any provision or provisions hereof are determined to
be invalid or contrary to applicable law, such invalidity shall not impair the
operation of or affect the remaining portions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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The undersigned Purchaser has executed this Agreement as of October 19, 2001.
PURCHASER:
XXXXXXXX HOLDINGS, INC.:
C/O THE XXXXXXXX COMPANY
0000 X. Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: President
ACCEPTED AND AGREED October , 2001.
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COMPANY:
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
