Exhibit 1.2
________________ Shares
Lifecore Biomedical, Inc.
Common Stock
PURCHASE AGREEMENT
October ___, 1995
XXXXXXX & XXXXXXX DEVELOPMENT
CORPORATION
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Lifecore Biomedical, Inc., a Minnesota corporation (the "Company"),
proposes to sell to Xxxxxxx & Xxxxxxx Development Corporation ("J&J" or "you")
an aggregate of _______________ shares of Common Stock, $.01 stated value per
share (the "Common Stock"), of the Company (the "Shares") with an aggregate
purchase price of $2,000,000. The Shares consist of ______________ authorized
but unissued shares of Common Stock to be issued and sold by the Company.
Concurrently with the sale of the Shares to J&J, the Company intends to sell
________ shares of the Company's Common Stock (plus up to an additional
_________ shares to cover over-allotments) to the several underwriters listed in
Schedule I to that certain Purchase Agreement among the Company and such
underwriters dated of even date herewith (the "Purchase Agreement"). For
purposes of this Agreement, the term "Firm Shares" shall mean the _________
shares which the underwriters have committed to purchase and the term
"Underwritten Shares" shall mean the entire amount of shares purchased by the
underwriters under the Purchase Agreement, including under the over-allotment
option.
The Company hereby confirms its agreement with respect to the sale of the
Shares to J&J.
1. REGISTRATION STATEMENT. A registration statement on Form S-2 (File No.
33-62223) with respect to the Shares and the Underwritten Shares, including a
preliminary form of prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission and delivered to J&J; one or more amendments to such registration
statement have also been so prepared and have been, or will be, so filed.
The Company will prepare and file a prospectus pursuant to Rule 424(b) that
discloses the information previously omitted from the prospectus in reliance
upon Rule 430A. Such registration statement as amended at the time it is or was
declared effective by the Commission, and, in the event of any amendment thereto
after the effective date and prior to the Closing Date (as hereinafter defined),
such registration statement as so amended (but only from and after the
effectiveness of such amendment), including the information deemed to be part of
the registration statement at the time of effectiveness pursuant to
Rule 430A(b), if applicable, is hereinafter called the "Registration Statement."
The prospectus included in the Registration Statement at the time it is or was
declared effective by the Commission is hereinafter called the "Prospectus,"
except that if any prospectus filed by the Company with the Commission pursuant
to Rule 424(b) of the Rules and Regulations or any other prospectus provided to
the Underwriters by the Company for use in connection with the offering of the
Securities (whether or not required to be filed by the Company with the
Commission pursuant to Rule 424(b) of the Rules and Regulations) differs from
the prospectus on file at the time the Registration Statement is or was declared
effective by the Commission, the term "Prospectus" shall refer to such differing
prospectus from and after the time such prospectus is filed with the Commission
or transmitted to the Commission for filing pursuant to such Rule 424(b) or from
and after the time it is first provided to the Underwriters by the Company for
such use. The term "Preliminary Prospectus" as used herein means any
preliminary prospectus included in the Registration Statement prior to the time
it becomes or became effective under the Act and any prospectus subject to
completion as described in Rule 430A of the Rules and Regulations.
2.REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with J&J as follows:
(i) As of the time the Registration Statement (or any
post-effective amendment thereto) is or was declared effective by the
Commission, upon the filing or first delivery to J&J of the Prospectus (or
any supplement to the Prospectus) and at the Closing Date (as hereinafter
defined), (A) the Registration Statement and Prospectus (in each case, as
so amended and/or supplemented) will conform or conformed in all material
respects to the requirements of the Act and the Rules and Regulations,
(B) the Registration Statement (as so amended) will not or did not include
an 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
not misleading, and (C) the Prospectus (as so supplemented) will not or did
not include an 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 in which they are or were
made, not misleading. If the Registration Statement has been declared
effective by the Commission, no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding for that
purpose has been initiated or, to the Company's knowledge, threatened by
the Commission.
(ii) The financial statements of the Company, together with the
notes thereto, set forth in the Registration Statement and Prospectus
comply in all material respects with the requirements of the Act and fairly
present the financial condition of the Company as of the dates indicated
and the results of operations and changes in cash flows for the periods
therein specified in conformity with generally accepted accounting
principles consistently applied
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throughout the periods involved (except as otherwise stated therein), and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein. No other financial statements or schedules are required to be
included in the Registration Statement or Prospectus. Xxxxx Xxxxxxxx LLP,
which has expressed its opinion with respect to the financial statements
and schedules filed as a part of the Registration Statement and included in
the Registration Statement and Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(iii) All reports, proxy statements and other information filed by
the Company with the Commission and incorporated by reference into the
Prospectus, as of the date each was filed, did not include an 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 not
misleading.
(iv) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation. Each of the Company and its
subsidiaries has full corporate power and authority to own its properties
and conduct its business as currently being carried on and as described in
the Registration Statement and Prospectus, and is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in
which it owns or leases real property or in which the conduct of its
business makes such qualification necessary and in which the failure to so
qualify would have a material adverse effect upon the business, condition
(financial or otherwise) or properties of the Company and its subsidiaries,
taken as a whole.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions that in either event
are material to the Company and its subsidiaries, taken as a whole, nor has
the Company declared or paid any dividends or made any distribution of any
kind with respect to its capital stock; and there has not been any change
in the capital stock (other than a change in the number of outstanding
shares of Common Stock due to the issuance of shares upon the exercise of
outstanding options or warrants), or any material change in the short-term
or long-term debt, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock, of the Company or
any of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in the general affairs,
condition (financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(vi) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or any of its subsidiaries
is a party before or by any court or governmental agency, authority or
body, or any arbitrator, which might result in any material
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adverse change in the condition (financial or otherwise), business,
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(vii) There are no contracts or documents of the Company or any of
its subsidiaries that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations that have
not been so filed.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company, enforceable in accordance with its terms, except
as rights to indemnity hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity. The
execution, delivery and performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument to which the Company is a
party or by which it is bound or to which any of its property is subject,
the Company's charter or by-laws, or any order, rule, regulation or decree
of any court or governmental agency or body having jurisdiction over the
Company or any of its properties; no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement or
for the consummation of the transactions contemplated hereby, including the
issuance or sale of the Shares by the Company, except such as may be
required under the Act or state securities or blue sky laws; and the
Company has full power and authority to enter into this Agreement and to
authorize, issue and sell the Shares as contemplated by this Agreement.
(ix) All of the issued and outstanding shares of capital stock of
the Company, including the outstanding shares of Common Stock, are duly
authorized and validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities, and the holders thereof are not
subject to personal liability by reason of being such holders; the Shares
which may be sold hereunder by the Company have been duly authorized and,
when issued, delivered and paid for in accordance with the terms hereof,
will have been validly issued and will be fully paid and nonassessable, and
the holders thereof will not be subject to personal liability by reason of
being such holders; and the capital stock of the Company, including the
Common Stock, conforms to the description thereof in the Registration
Statement and Prospectus. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's charter,
by-laws or any agreement or other instrument to which the Company is a
party or by which the Company is bound. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights for or relating to
the registration of any shares of Common Stock or other securities of the
Company, except as such rights have been satisfied, waived or terminated.
All of the issued and outstanding shares of capital
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stock of each of the Company's subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and the Company
owns of record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the issued
and outstanding shares of such stock, except that the Company owns 95% of
the outstanding common stock of Lifecore Biomedical SpA. Except as
described in the Registration Statement and the Prospectus, there are no
options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company or any subsidiary of the Company any
shares of the capital stock of the Company or any subsidiary of the
Company. The Company has an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus.
(x) Except when the failure to comply, lack of possession or
invalidity would not have a material adverse effect on the condition
(financial or otherwise), business, results of operations or prospects of
the Company and its subsidiaries taken as a whole, the Company and each of
its subsidiaries holds, and is operating in compliance with, all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of its business and all such franchises, grants,
authorizations, licenses, permits, easements, consents, certifications and
orders are valid and in full force and effect; and the Company and each of
its subsidiaries is in compliance with all applicable federal, state, local
and foreign laws, regulations, orders and decrees.
(xi) The Company and its subsidiaries have good and marketable
title to all property described in the Registration Statement and
Prospectus as being owned by them, in each case free and clear of all
liens, claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus or which do not
interfere in any material respect with the conduct of the business of the
Company or its subsidiaries; the property held under lease by the Company
and its subsidiaries is held by them under valid, subsisting and
enforceable leases with only such exceptions with respect to any particular
lease as do not interfere in any material respect with the conduct of the
business of the Company or its subsidiaries; except as set forth in the
Registration Statement and Prospectus, the Company and each of its
subsidiaries owns or possesses all patents, patent applications,
trademarks, service marks, tradenames, trademark registrations, service
xxxx registrations, copyrights, licenses, inventions, trade secrets and
rights necessary for the conduct of the business of the Company and its
subsidiaries as currently carried on and as described in the Registration
Statement and Prospectus; except as stated in the Registration Statement
and Prospectus, no name which the Company or any of its subsidiaries uses
and no other aspect of the business of the Company or any of its
subsidiaries will involve or give rise to any infringement of, or license
or similar fees for, any patents, patent applications, trademarks, service
marks, tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets or other similar rights of
others and neither the Company nor any of its subsidiaries has received any
notice alleging any such infringement or fee.
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(xii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in breach of or otherwise
in default in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note, indenture, loan agreement
or any other material contract, lease or other instrument to which it is
subject or by which any of them may be bound, or to which any of the
material property or assets of the Company or any of its subsidiaries is
subject.
(xiii) The Company and its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed and are not in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, other
than any which the Company or any of its subsidiaries is contesting in good
faith.
(xiv) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Shares other than any Preliminary Prospectus or the Prospectus
or other materials permitted by the Act to be distributed by the Company.
(xv) The Shares have been approved for listing on the Nasdaq
National Market System.
(xvi) Other than its subsidiaries, Implant Support Systems, Inc.
and Lifecore Biomedical SpA, the Company owns no capital stock or other
equity or ownership or proprietary interest in any corporation,
partnership, association, trust or other entity.
(xvii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xviii) The Company has not incurred any liability for any finder's
or broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xix) Neither the Company nor any of its affiliates is presently
doing business with the government of Cuba or with any person or affiliate
located in Cuba.
(xx) Neither the Company or any of its subsidiaries is an investment
company, as defined in the Investment Company Act of 1940, as amended, or a
company controlled by such an investment company.
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(xxi) Neither the Company nor any of its subsidiaries is involved
in any labor dispute which, either individually or in the aggregate, could
have a material adverse effect on the business, operations, properties,
condition (financial or otherwise), income, earnings or business prospects
of the Company and its subsidiaries (taken as a whole), nor, to the best of
the Company's knowledge, is any such dispute threatened.
(xxii) Neither the Company nor any of its subsidiaries has violated
any federal, state or local environmental, safety or similar law (including
rules and regulations of occupational safety and health agencies)
applicable to its or their business, nor any federal, state or local law
relating to discrimination in the hiring, promotion or pay of employees,
nor any applicable federal, state or local wages and hours laws, nor any
provisions of the Internal Revenue Code of 1986, as amended, or the
Employee Retirement Income Security Act, or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, operations, properties, condition
(financial or otherwise), income, earnings or business prospects of the
Company and its subsidiaries, taken as a whole.
(xxiii) Upon issuance of the Shares to J&J, J&J will be entitled
(upon the expiration of any agreement of J&J not to sell or transfer the
Shares) to resell the Shares without restriction (including, but not
limited to, any requirement to register the Shares or to maintain the
effectiveness of the Registration Statement) under the Securities Act
of 1933, as amended (the "1933 Act"); provided, however, that if J&J is
considered to be an "affiliate" of the Company under the 1933 Act at the
time of any resale, then J&J will be subject to the provisions of Rule 144
under the 1933 Act (without a holding period).
(b) Any certificate signed by any officer of the Company and
delivered to J&J shall be deemed a representation and warranty by the
Company to J&J as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell the
Shares to J&J, and J&J agrees to purchase the Shares from the Company. The
purchase price for each Share shall be $____ per share.
The Shares will be delivered by the Company to you against payment of the
purchase price therefor by wire transfer of same day funds payable to the order
of the Company at the offices of Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx Tower,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be
mutually acceptable, at 9:00 a.m., Minneapolis time, on the third full business
day following the date hereof, or at such other time as you and the Company
determine, such time and date of delivery being herein referred to as the
"Closing Date."
4. COVENANTS. The Company covenants and agrees with J&J as follows:
(a) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the
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Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose.
(b) The Company will use its best efforts to qualify the Shares for
sale under the securities laws of such jurisdictions as in which the Firm
Shares are qualified pursuant to the Purchase Agreement and to continue
such qualifications in effect so long as the Firm Shares are so qualified,
except that the Company shall not be required in connection therewith to
qualify as a foreign corporation or to execute a general consent to service
of process in any state.
(c) During a period of five years commencing with the date hereof,
the Company will furnish to J&J copies of all periodic and special reports
furnished to the stockholders of the Company and all information, documents
and reports filed with the Commission, the National Association of
Securities Dealers, Inc., Nasdaq or any securities exchange.
(d) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the
end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the
effective date of the Registration Statement that shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(e) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay or
cause to be paid (A) all expenses (including transfer taxes allocated to
the respective transferees) incurred in connection with the delivery to J&J
of the Shares and (B) all other costs and expenses incident to the
performance of its obligations hereunder that are not otherwise
specifically provided for herein.
(f) The Company will not, without your prior written consent, offer
for sale, sell, contract to sell, grant any option for the sale of or
otherwise issue or dispose of any Common Stock or any securities
convertible into or exchangeable for, or any options or rights to purchase
or acquire, Common Stock, except (i) to the Underwriters pursuant to the
Purchase Agreement or (ii) pursuant to existing stock option plans or
employee stock purchase plans, for a period of 90 days after the
commencement of the public offering of the Securities by the Underwriters.
(g) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder for the purposes set forth in the
Prospectus.
(h) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National Market
System.
5. CONDITIONS OF J&J'S OBLIGATIONS. The obligations of J&J hereunder are
subject to the accuracy, as of the date hereof and at the Closing Date (as if
made at such Closing Date), of and compliance with all representations,
warranties and agreements of the Company contained herein, to
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the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Registration Statement shall have become effective under the
Act, and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or threatened by the Commission.
(b) The First Closing of the sale of the Firm Shares by the Company
to the several underwriters listed in Schedule I to the Purchase Agreement
shall have occurred.
(c) All of the legal opinions and accountant's letters delivered
pursuant to Section 5 of the Purchase Agreement shall be addressed to J&J
and shall be satisfactory to J&J, and J&J shall be entitled to rely on such
opinions and letters.
(d) In addition, the opinion of Xxxxxxxxx & Xxxxxx P.L.L.P. delivered
to J&J or a separate opinion of such counsel shall contain an opinion to
the effect that, upon issuance of the Shares to J&J, J&J will be entitled
(upon the expiration of any agreement of J&J not to sell or transfer the
Shares) to resell the Shares without restriction (including, but not
limited to, any requirement to register the Shares or to maintain the
effectiveness of the Registration Statement) under the Securities Act
of 1933, as amended, and applicable state securities laws; provided,
however, that if J&J is considered to be an "affiliate" of the Company
under the 1933 Act at the time of any resale, then J&J will be subject to
the provisions of Rule 144 under the 1933 Act (without a holding period).
(e) The closing certificate delivered in accordance with Section 5(h)
of the Purchase Agreement also shall be addressed to J&J.
All such opinions, certificates and other documents will be in compliance
with the provisions hereof only if they are satisfactory in form and substance
to you. The Company will furnish you with such conformed copies of such
opinions, certificates, letters and other documents as you shall reasonably
request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless J&J against any
losses, claims, damages or liabilities, joint or several, to which J&J may
become subject, under the Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company) insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A,
if applicable, any Preliminary Prospectus, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse J&J for any legal or other expenses
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reasonably incurred by it in connection with investigating or defending
against such loss, claim, damage, liability or action. This indemnity
agreement shall be in addition to any liabilities which the Company may
otherwise have.
(b) Promptly after receipt by an indemnified party under subsection
(a) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any
liability that it may have to any indemnified party. In case any such
action shall be brought against any indemnified party, and it shall notify
the indemnifying party of the commencement hereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of the
indemnifying party's election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. An indemnifying party shall not be
obligated under any settlement agreement relating to any action under this
Section 6 to which it has not agreed in writing.
(c) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls J&J within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of J&J or the
Company, and shall survive delivery of, and payment for, the Shares to and by
J&J hereunder.
8. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at the time it is executed.
(b) J&J shall have the right to terminate this Agreement by giving
notice as hereinafter specified at any time at or prior to the Closing Date if
the Underwriters terminate the Purchase Agreement as provided therein. Any such
termination of this Agreement shall be without liability of either party to the
other party, except that the provisions of Section 4(a)(viii) and Section 6
hereof shall at all times be effective.
(c) If J&J elects to terminate this Agreement as provided in this
Section, the Company shall be notified promptly by J&J by telephone, telegram or
a facsimile transmission, confirmed by letter.
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9. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to J&J, shall be mailed,
telegraphed or delivered to Xxxxxxx & Xxxxxxx Development Corporation, Xxx
Xxxxxxx & Xxxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xx. Xxxx
Xxxx, with a copy to the General Counsel at the same address, and if to the
Company, shall be mailed, telegraphed or delivered to it at 0000 Xxxxx
Xxxxxxxxx, Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, or in each case to
such other address as the person to be notified may have requested in writing.
All notices given by telegram or facsimile transmission shall be promptly
confirmed by letter. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
10. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
Please sign and return to the enclosed duplicates of this letter whereupon
this letter, will become a binding agreement between the Company and J&J in
accordance with its terms.
Very truly yours,
LIFECORE BIOMEDICAL, INC.
By:
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Xxxxx X. Xxxxxx
Its: President
Confirmed as of the date first above mentioned:
XXXXXXX & XXXXXXX DEVELOPMENT
CORPORATION
By:
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Its:
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