EXHIBIT 2.01
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered into
this 18th day of July, 1997, by and between Intercell Technologies Corporation,
a Colorado corporation, formerly known both as "Secure Luggage Systems, Inc."
and "Emulation Products, Inc." (the "Company"), 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx
#000, Xxxxxxxxxx, Xxxxxxx 00000, and Intercell Corporation, a Colorado
corporation (hereinafter referred to as the "Seller"), 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx #0000, Xxxxxx, Xxxxxxxx 00000.
RECITALS:
WHEREAS, the Seller desires to sell, assign, transfer, convey and deliver
to the Company, and the Company desires to purchase, acquire and receive from
the Seller, all 100 issued and outstanding shares of common stock, no par value
per share (the "IWC Common Shares"), of Intercell Wireless Corp., an Arizona
corporation ("IWC"), 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx #000, Xxxxxxxxxx, Xxxxxxx
00000, and all 100 issued and outstanding shares of common stock, no par value
per share (the "CMI Common Shares"), of Cellular Magnetics, Inc., doing business
as X.X. Xxxxx Company, an Arizona corporation ("CMI"), 00000 Xxxx Xxxxxxxxx
Xxxx, Xxxxxxx Xxxx, Xxxxxxx 00000, owned of record and beneficially by the
Seller, in exchange for the consideration described in Section 1.02 of this
Agreement, on the terms and subject to the conditions set forth herein; and
WHEREAS, Seller desires to sell, assign, transfer, convey and deliver to
the Company certain assets and liabilities of Seller, including without
limitation, all of the Seller's right, title and interest in and to those
certain patent applications, no. 08/658,355 and 08/715,796, relating to the
cellular antenna (the "Patents"), which were filed on behalf of the Seller with
the U.S. Patent and Trademark Office on June 5, 1996, and September 19, 1996,
respectively, and the Company desires to purchase and assume the same pursuant
to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which
constitute a substantive part of this Agreement, and the mutual covenants,
agreements, representations and warranties contained herein, the parties hereto
agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES AND OTHER ASSETS
Section 1.01. SALE AND ASSIGNMENT OF SHARES AND OTHER ASSETS. Subject to
the terms and conditions of this Agreement, at the Closing, the Seller will
sell, assign, transfer, convey and deliver to the Company and the Company shall
purchase, receive and assume the following:
(a) all of the issued and outstanding IWC Common Shares and the CMI
Common Shares (collectively, the "IWC and CMI Common Shares"), free and
clear of all liens, claims or encumbrances;
(b) all of the Seller's right, title and interest in and to the
Patents, substantially in the form of the assignment agreement attached
hereto as Exhibit A (the "Patent Assignment");
(c) a cashier's check, money order or other form of "cleared" funds in
the amount of $345,500.00 (less all payments previously advanced), which
shall include payment for the total amount of $17,500.00 due and payable
pursuant to the provisions of those certain management contracts between
the Seller and Messrs. Xxx Xxxx and Xxxxx X. Xxxxx through June 30, 1997,
and the aggregate amount of $28,000.00 payable in full satisfaction of all
expenses for legal fees incurred by Xx. Xxx Xxxx relating to the American
Microcell Corporation matter, as specified in the Assumption Obligation and
Release attached hereto as Exhibit B (the "Assumption and Release
Agreement");
(d) an opinion of Seller's counsel, substantially in the form attached
hereto as Exhibit C (the "Stock Option Opinion"), certifying the validity
of those certain option agreements to purchase the no par value common
stock of the Seller owned of record and beneficially by Messrs. Xxx Xxxx
and Xxxxx X. Xxxxx; and
(e) if not previously delivered, a xxxx of sale dated as of the
Closing Date, substantially in the form attached hereto as Exhibit D (the
"Xxxx of Sale"), providing for the sale of all of the office furniture and
equipment presently located on the premises of the offices of the
Corporation in Scottsdale, Arizona for an aggregate sale price in the
amount of $75,000.
Section 1.02. CONSIDERATION. As consideration for the properties, rights
and agreements conveyed by Seller of the Company set forth in Section 1.01
above, the Company agrees to pay the following consideration, deliver the
following documents and take the following actions (collectively "the Purchase
Price"):
(a) issue to Seller newly-issued certificates of the Company's common
stock, no par value per share (the "Common Stock"), and Warrants (the
"Warrants") to purchase the Common Stock substantially in the form of the
Warrant Agreement attached hereto as Exhibit E (the "Warrant Agreement").
The Warrants shall entitle the Seller to purchase one share of the Common
Stock at an exercise price of $2.25 per share during the period ending
three (3) years from the Closing Date. The total number of shares of Common
Stock and Warrants to be issued shall be determined on the basis of one
share of Common Stock and one Warrant for each five (5) shares of common
stock, no par value per share (the "Seller's Common Shares") outstanding on
July 18, 1997;
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(b) agree to register within one year of the Closing Date the Common
Stock, Warrants and the Common Stock underlying the Warrants, to be
delivered to Seller pursuant to subsection 1.02(a) in accordance with the
terms and provisions of the registration rights agreement substantially in
the form attached hereto as Exhibit F (the "Registration Rights
Agreement");
(c) deliver 1,100,000 shares of the no par value common stock of
Seller to Seller;
(d) if not previously delivered, execute and deliver a corporate
promissory note, dated as of the Closing Date, substantially in the form
attached hereto as Exhibit G (the "$2,200,000 Note"). The $2,200,000 Note
shall be for the principal amount of $2,200,000 and bear interest at the
rate of ten percent (10%) per annum and be guaranteed by a stock pledge and
security agreement substantially in the form attached hereto as Exhibit H
(the "Stock Pledge Agreement");
(e) enter into a royalty agreement substantially in the form attached
hereto as Exhibit I (the "Royalty Agreement"), which Royalty Agreement
shall provide the Seller with a 10% royalty on future revenues earned on
the sale of cellular phone antennas with a cap of $5,000,000 on total
royalties;
(f) execute and deliver a secured promissory note, dated as of the
Closing Date, substantially in the form attached hereto as Exhibit J (the
"Secured Promissory Note"). The Secured Promissory Note shall be for the
principal amount of $375,000 and bear interest at the rate of 10% per
annum, be payable on November 30, 1997, and be secured by a security
agreement substantially in the form attached hereto as Exhibit K (the
"Security Agreement"), and a financing statement on Form UCC-1 (the
"Financing Statement"), dated as of the Closing Date;
(g) execute an assignment and assumption of lease agreement
substantially in the form attached hereto as Exhibit L (the "Assignment and
Assumption of Lease Agreement"), wherein the Company will sublease from the
Seller the premises located in Scottsdale, Arizona, presently occupied by
the Seller for the balance of the rental term and upon the same terms and
conditions as currently paid by the Seller or otherwise enter into a new
lease with the landlord of the premises, with Seller being unconditionally
released from all obligations under the old lease; and
(h) enter into an assumption agreement substantially in the form
attached hereto as Exhibit M (the "Assumption Agreement"), wherein the
Company will assume full liability and responsibility for all operating
expenses associated with such entities, including all related personnel and
compensation expenses, including the Seller's obligations to pay the sums
of $35,500.00 and $10,000.00 to Messrs. Xxx Xxxx and Xxxxx X. Xxxxx,
respectively.
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Section 1.03. ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated as set forth in Schedule 1.03 to this Agreement. The parties covenant
and agree that they shall not take any position inconsistent with the provisions
of this Section 1.03 in any filings with any governmental and/or taxing
authorities.
ARTICLE II
CLOSING
Section 2.01. The consummation of the sale to and purchase by the Company
of the IWC and CMI Common Shares and the related obligations and assets of the
Seller set forth in Section 1.01 (the "Closing") shall occur simultaneously with
the signing of this Agreement at the offices of Xxxxx Xxxx, located at 000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 1:00 p.m., Mountain
Daylight Time, on July 18, 1997 (the "Closing Date"), or at such other time,
date and place not later than July 31, 1997, as the parties may mutually agree
in writing. As express conditions subsequent to the effectiveness of this
Agreement, (i) all documents to be delivered at Closing pursuant to the terms
and provisions of this Section 2.01 shall be delivered, in a form satisfactory
to the parties, by Thursday, July 24, 1997, or by such later date to which the
Closing may be extended as provided for in this Agreement, and (ii) all
representations and warranties of the parties to this Agreement must be true and
accurate as of July 24, 1997 or such later date agreed to by the parties. If any
of the preceding conditions subsequent are not met, then this Agreement shall
automatically terminate and be void ab initio, both parties shall pay their own
expenses incurred in connection herewith and neither party hereto shall have any
further obligations hereunder; provided, however, that no such termination shall
constitute a waiver by either party which is not in default of any of its
respective representations, warranties or covenants herein, of any rights or
remedies it might have at law if the other party is in default of any of its
respective representations, warranties or covenants under this Agreement. The
satisfaction of the foregoing conditions subsequent shall result in all acts,
deliveries and confirmations comprising the Closing, regardless of chronological
sequence, being deemed to occur contemporaneously and simultaneously at 5:00
p.m. on the Closing Date.
(a) At or prior to the Closing, but in no event later than Thursday,
July 24, 1997, the Company shall execute, deliver, or cause to be
delivered, to the Seller:
(i) newly-issued certificates in the name of Seller for that
number of shares of Common Stock and related Warrants set forth in
Section 1.02 of this Agreement and the Warrant Agreement;
(ii) the Registration Rights Agreement;
(iii) stock certificates or other written confirmation evidencing
1,100,000 shares of Seller's no par value common stock, duly executed,
endorsed and/or authenticated for transfer to the Seller;
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(iv) the $2,200,000 Note;
(v) the Stock Pledge and Security Agreement;
(vi) the Royalty Agreement;
(vii) the Secured Promissory Note;
(viii) the Security Agreement and UCC-1 Financing Statement;
(ix) the Assignment and Assumption of Lease Agreement;
(x) the Assumption Agreement; and
(xi) the certified resolutions of the Company's Board of
Directors, certified as of the date of the Closing as being in full
force and effect by an appropriate officer of the Company, duly
adopted by the Board of Directors of the Company adopting and
approving this Agreement, which shall be in form and substance
reasonably satisfactory to the Seller and its counsel.
(b) At or prior to the Closing, but in no event later than Thursday,
July 24, 1997, the Seller shall deliver to the Company:
(i) duly executed, endorsed and/or authenticated for transfer
stock certificates evidencing the ownership by the Seller of the IWC
and CMI Common Shares;
(ii) a cashier's check, money order or other form of "cleared"
funds in the amount of $345,500.00 less all previous payments made to
the Company;
(iii) the Assignment of Patent Agreement;
(iv) the Stock Option Opinion Letter of the Seller's counsel;
(v) the Xxxx of Sale;
(vi) the certified resolutions of the Seller's Board of
Directors, certified as of the date of the Closing as being in full
force and effect by an appropriate officer of the Seller, duly adopted
by the Board of Directors of the Seller adopting and approving this
Agreement, which shall be in form and substance reasonably
satisfactory of the Company and its counsel; and
(vii) the opinion letters of the Seller's and IWC's and CMI's
counsel in the forms attached hereto as Exhibits O, P and Q.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Company as follows (it
being acknowledged that the Company is entering into this Agreement in material
reliance upon each of the following representations and warranties, and that the
truth and accuracy of each of which constitutes a condition precedent to the
obligations of the Company hereunder):
Section 3.01. ORGANIZATION AND CORPORATE POWER. IWC and CMI are
corporations duly organized, validly existing and in good standing under the
laws of the State of Arizona, and to the knowledge of Seller based upon
representations of Xxxxx X. Xxxxx, President of IWC and CMI, are duly qualified
and in good standing to do business as foreign corporations in each jurisdiction
in which such qualification is required and where the failure to be so qualified
would have a materially adverse effect upon said corporations. IWC and CMI have
all requisite corporate power and corporate authority to conduct their
respective businesses as now being conducted and to own and lease the personal
property, and to lease the real property, which they now own and lease,
respectively. The Articles of Incorporation of IWC and CMI, as amended to date,
certified by the Arizona Corporations Commissioner, and the Bylaws of IWC and
CMI, as amended to date, certified by the President and the Secretary of each
corporation, which have been delivered to the Company prior to the execution
hereof, are true and complete copies thereof as in effect as of the date of this
Agreement.
Section 3.02. AUTHORIZATION. The Seller has full power, legal capacity and
authority to enter into this Agreement and the Seller, IWC and CMI have full
power, legal capacity and corporate authority to enter into all attendant
documents and instruments necessary to consummate the transactions contemplated
by this Agreement, to sell, assign, transfer, convey and deliver the IWC and CMI
Common Shares to the Company and to perform all of the obligations to be
performed by each of them hereunder. All agreements, documents and instruments
to be executed in connection herewith by the Seller, IWC and CMI have been
effectively authorized by all necessary action, corporate or otherwise, on the
part of each corporation, which authorizations remain in full force and effect,
have been duly executed and delivered by each corporation and no other corporate
proceedings on the part of the Seller, IWC or CMI are required to authorize the
execution and delivery of such agreements, documents and instruments. This
Agreement has been duly executed and delivered by the Seller; constitutes the
legal, valid and binding obligation of the Seller; and is enforceable with
respect to the Seller in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, priority or
other laws or court decisions relating to or affecting generally the enforcement
of creditors' rights or affecting generally the availability of equitable
remedies. Neither the execution and delivery of this Agreement, the consummation
by the Seller, IWC and CMI of any of the transactions contemplated hereby nor
the compliance by the Seller, IWC or CMI with any of the provisions hereof will
(a) conflict with or result in a breach of, violation of or default under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, lease, credit agreement or other agreement, document, instrument
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or obligation (including, without limitation, any of the Seller's, IWC's or
CMI's charter documents) to which any of the Seller, IWC or CMI is a party or by
which any of the assets or properties of the Seller, IWC or CMI may be bound or
(b) violate any judgment, order, injunction, decree, statute, rule or regulation
applicable to any of the Seller, IWC or CMI or any of the assets or properties
of the Seller, IWC or CMI. To the best knowledge of the Seller, no
authorization, consent or approval of any public body or authority is necessary
for the consummation by the Seller, IWC and CMI of the transactions contemplated
by this Agreement.
Section 3.03. CAPITALIZATION.
(a) The authorized capital stock of IWC consists of 10,000,000 IWC
Common Shares, no par value per share. As of the date of this Agreement,
there are 100 IWC Common Shares issued and outstanding, with no IWC Common
Shares held in IWC's treasury. All of the outstanding IWC Common Stock have
been duly authorized and validly issued and fully-paid and nonassessable.
(b) The authorized capital stock of CMI consists of 50,000,000 CMI
Common Shares, no par value per share. As of the date of this Agreement,
there are 100 CMI Common Shares issued and outstanding, with no CMI Common
Shares held in CMI's treasury. All of the outstanding shares of Common
Stock of CMI have been duly authorized and are validly issued and
fully-paid and nonassessable.
(c) There are no warrants, options, calls, commitments or other rights
to subscribe for or to purchase from IWC or CMI any capital stock of IWC or
CMI, respectively, or any securities convertible into or exchangeable for
any shares of capital stock of IWC or CMI, respectively, or any other
securities or agreement pursuant to which IWC or CMI is or may become
obligated to issue any shares of its capital stock, nor is there
outstanding any commitment, obligation or agreement on the part of IWC or
CMI to repurchase, redeem or otherwise acquire any of the outstanding IWC
or CMI Common Shares.
(d) There currently are no rights, agreements or commitments of any
character obligating IWC or CMI, contingently or otherwise, to register any
shares of the capital stock of either corporation under any applicable
federal or state securities laws.
Section 3.04. OWNERSHIP OF IWC AND CMI. The Seller owns 100 IWC Common
Shares and 100 CMI Common Shares, constituting all of the issued and outstanding
shares of capital stock of IWC and CMI, respectively, free and clear of (a) any
lien, charge, mortgage, pledge, conditional sale agreement or other encumbrance
of any kind or nature whatsoever and (b) any claims as to ownership thereof or
any rights, powers or interest therein by any third party, whether legal or
beneficial and whether based on contract, proxy or other document or otherwise.
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Section 3.05. BROKERAGE. The Seller has no obligation to any person or
entity for brokerage commissions, finder's fees or similar compensation in
connection with the transactions contemplated by this Agreement, and the Seller
shall indemnify and hold the Company harmless against any liability or expenses
arising out of any such claim.
Section 3.06. INVESTMENT REPRESENTATION. The Seller has the knowledge and
experience in business and financial matters to meaningfully evaluate the merits
and risks of the disposition of the IWC and CMI Common Shares, the payment of
the cash, the assignment of the patent applications, the execution and delivery
of a xxxx of sale and the delivery of the other consideration as contemplated
hereby in exchange and consideration for the receipt of certain newly-issued
shares of the Common Stock, the receipt of certain of the Seller's Common Shares
to be held as treasury shares or canceled, the receipt of certain promissory
notes, agreements and Warrants and the receipt of other consideration as
contemplated hereby. The Seller has had the opportunity to conduct an
independent review of the business, assets, properties, books and records of the
Company for the purpose of satisfying itself as to the truth, accuracy and
completeness of the representations and warranties made by the Company. The
Seller understands and acknowledges that the newly-issued shares of the Common
Stock and certain of the Seller's Common Shares will be issued and/or delivered
to the Seller in the transactions contemplated hereby without registration or
qualification or other filings being made under the U.S. Securities Act of 1933,
as amended, or any applicable state securities or "Blue Sky" law, in reliance
upon specific exemptions therefrom, and in furtherance thereof the Seller
represents that the shares of the Common Stock will be taken and received by it
for its account for investment, with no present intention of a distribution or
disposition thereof to the Seller's shareholders on or before July 18, 1998 or,
absent a currently effective registration statement, to others within a 12-month
period of time. The Seller further acknowledges and agrees that the instruments
representing the newly issued shares of the Common Stock and Warrants issued to
it shall be subject to a stop-transfer order and shall bear a restrictive
legend, in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
ARE "RESTRICTED SECURITIES," AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY, IS NOT REQUIRED TO BE REGISTERED UNDER
THE ACT."
Section 3.07. DISCLOSURE. Neither this Agreement, nor any certificate,
exhibit or other written document or statement, furnished to the Company by the
Seller, IWC or CMI in connection with the transactions contemplated by this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to be stated in order to
make the statements contained herein or therein not misleading.
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Section 3.08. SPECIFIC REPRESENTATION. The Seller specifically represents
that it is not aware of any agreements, contracts, understandings, or
commitments relating to the antenna technology, IWC, the Patents, sales orders,
potential deals or any similar events or transactions except for those
identified on Schedule 3.08 of this Agreement. The Seller acknowledges that if
the Company discovers that a material event or transaction has not been listed
on Schedule 3.08, within the time period set forth in Section 5.02, the Company
shall have the right to rescind this Agreement and cause the parties to be
returned to their "status quo" as if this Agreement had not been executed.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Seller as follows (it
being acknowledged that the Seller is entering into this Agreement in material
reliance upon each of the following representations and warranties, and that the
truth and accuracy of each of which constitutes a condition precedent to the
obligations of the Seller hereunder):
Section 4.01. AUTHORIZATION. The Company has full power, legal capacity and
authority to enter into this Agreement, to execute all attendant documents and
instruments necessary to consummate the transactions herein contemplated, to
purchase and acquire the IWC and CMI Common Shares from the Seller and to
perform all of its obligations hereunder. This Agreement and all other
agreements, documents and instruments to be executed in connection herewith have
been effectively authorized by all necessary action, corporate or otherwise, on
the part of the Company, which authorizations remain in full force and effect
and have been duly executed and delivered by the Company and no other corporate
proceedings on the part of the Company are required to authorize this Agreement
and the transactions contemplated hereby. This Agreement constitutes the legal,
valid and binding obligation of the Company and the Agreement is enforceable
with respect to the Company in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, priority or
other laws or court decisions relating to or affecting generally the enforcement
of creditors' rights or affecting generally the availability of equitable
remedies. Neither the execution and delivery of this Agreement nor the
consummation by the Company of any of the transactions contemplated hereby, or
compliance with any of the provisions hereof, will (a) conflict with or result
in a breach of, violation of or default under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, lease, credit
agreement or other agreement, document, instrument or obligation (including,
without limitation, any of its charter documents) to which the Company is a
party or by which the Company or any of its assets or properties may be bound or
(b) violate any judgment, order, injunction, decree, statute, rule or regulation
applicable to the Company or any of the assets or properties of the Company. To
the best knowledge of the Company, no authorization, consent or approval of any
public body or authority is necessary for the consummation by the Company of the
transactions contemplated by this Agreement.
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Section 4.02. BROKERAGE. The Company has no obligation to any person or
entity for brokerage commissions, finder's fees or similar compensation in
connection with the transactions contemplated by this Agreement and the Company
shall indemnify and hold the Seller harmless against any liability or expenses
arising out of any such claim.
Section 4.03. INVESTMENT REPRESENTATION. The Company has the knowledge and
experience in business and financial matters to meaningfully evaluate the merits
and risks of the acquisition of the IWC and CMI Common Shares in exchange and
partial consideration for the issuance of certain shares of the Common Stock,
the transfer of certain of the Seller's Common Shares to be held as treasury
shares or cancelled, the execution and delivery of certain promissory notes,
agreements and options and the delivery of the other consideration as
contemplated hereby. The Company has had an opportunity to conduct an
independent review of the business, assets, properties, books and records of IWC
and CMI for the purpose of satisfying itself as to the truth, accuracy and
completeness of the representations and warranties made by the Seller. The
Company understands and acknowledges that the IWC and CMI Common Shares were
originally issued to the Seller, and will be sold, assigned, transferred and
conveyed to the Company in the transactions contemplated hereby without
registration or qualification or other filings being made under the U.S.
Securities Act of 1933, as amended, or any applicable state securities or "Blue
Sky" law, in reliance upon specific exemptions therefrom, and in furtherance
thereof the Company represents that the IWC and CMI Common Shares will be taken
and received by the Company for its own account for investment, with no present
intention of a distribution or disposition thereof to others. The Company
further acknowledges and agrees that the certificates representing the IWC and
CMI Common Shares sold, assigned, transferred and conveyed to it shall be
subject to a stop-transfer order and shall bear a restrictive legend, in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
ARE "RESTRICTED SECURITIES," AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, IS NOT REQUIRED TO BE REGISTERED UNDER THE
ACT."
Section 4.04. DISCLOSURE. Neither this Agreement, nor any certificate,
exhibit or other written document or statement, furnished to the Seller by the
Company in connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to be stated in order to make the
statements contained herein or therein not misleading.
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Section 4.05. SPECIFIC REPRESENTATION. The Company specifically represents
that neither it nor any of its affiliates are aware of any agreements,
contracts, understandings, or commitments relating to the antenna technology,
IWC, the Patents, sales orders, potential deals or any similar events or
transactions except for those identified on Schedule 4.05 of this Agreement. The
Company acknowledges that if Seller discovers that a material event or
transaction has not been listed on Schedule 4.05, within the time period set
forth in Section 5.02, Seller shall have the right to rescind this Agreement and
cause the parties to be returned to their "status quo" as if this Agreement had
not been executed.
ARTICLE V
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 5.01. TAXES AND EXPENSES.
(a) Except as otherwise expressly provided in subsection 5.01(b)
below, IWC, CMI and the Seller, on the one hand, and the Company, on the
other hand, shall each pay all of their own respective taxes, attorneys'
fees and other costs and expenses payable in connection with or as a result
of the transactions contemplated hereby and the performance and compliance
with all agreements and conditions contained in this Agreement respectively
to be performed or observed by each of them.
(b) The Seller shall pay any and all Arizona and/or Colorado taxes, if
any, which become due on account of the sale, assignment, transfer and
conveyance of the IWC and CMI Common Shares to the Company.
(c) The Company shall pay any and all Arizona and/or Colorado taxes,
if any, which become due on account of the sale, assignment, transfer and
conveyance of the assets sold pursuant to the certain Xxxx of Sale and
Assignment Agreement.
Section 5.02. EXPIRATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of IWC, CMI, the Seller and the Company contained
herein and in any other document or instrument delivered by or on behalf of them
shall survive the Closing for a period of six months.
Section 5.03. INDEMNIFICATION.
(a) INDEMNIFICATION BY SELLER. Seller shall indemnify, defend and hold
harmless the Company and any of its affiliates and their respective
representatives, and their respective heirs, executors, administrators,
successors and assigns (collectively, "Company Representatives"), and shall
reimburse the Company and any of its affiliates and the Company
Representatives, if liability is established by binding judicial or
arbitration authority, for any claim, demand, loss, liability, damage or
expense, including, without limitation, interest, penalties, all reasonable
attorneys', accountants',
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all experts' fees and costs of investigations incurred as a result thereof
(collectively "Damages") resulting from any of the following:
(i) any breach or default in the performance by Seller of any
covenant or agreement of Seller contained herein, in any agreement
contemplated hereby, or in any Exhibit hereto or thereto, or in any
certificate or other instrument delivered or to be delivered by or on
behalf of Seller pursuant hereto or thereto; or
(ii) any breach of warranty or inaccurate or erroneous
representation made by Seller herein, in any agreement contemplated
hereby, or in any Exhibit hereto or thereto, or in any certificate or
other instrument delivered or to be delivered by or on behalf of
Seller pursuant hereto or thereto.
(b) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify,
defend and hold harmless Seller and any of its officers, directors,
affiliates, agents, shareholders, successors and assigns (collectively,
"Seller Representatives"), and shall reimburse Seller and the Seller
Representatives, if liability is established by binding judicial or
arbitration authority, for any Damages resulting from any of the following:
(i) any breach or default in the performance by the Company of
any covenant or agreement of the Company contained herein, in any
agreement contemplated hereby, or in any Exhibit hereto or thereto, or
in any certificate or other instrument delivered or to be delivered by
or on behalf of the Company pursuant hereto or thereto; or
(ii) any breach of warranty or inaccurate or erroneous
representation made by the Company herein, in any agreement
contemplated hereby, or in any Exhibit hereto or thereto, or in any
certificate or other instrument delivered or to be delivered by or on
behalf of the Company pursuant hereto or thereto.
(c) CLAIMS FOR INDEMNITY. Whenever a claim for Damages shall arise for
which one party ("Indemnitee") shall be entitled to indemnification
hereunder, Indemnitee shall notify the other party ("Indemnitor") in
writing within 30 days of the first receipt of notice of such claim, and in
any event within such shorter period as may be necessary for Indemnitor to
take appropriate action to resist such claim. Such notice shall specify all
facts known to Indemnitee giving rise to such indemnity rights and shall
estimate the amount of the liability arising therefrom. The right of
Indemnitee to indemnification and the estimated amount thereof, as set
forth in this notice, shall be deemed agreed to by Indemnitor unless,
within 30 days after the mailing of such notice, Indemnitor shall notify
Indemnitee in writing that it disputes the right of Indemnitee to
indemnification, or that Indemnitor elects to defend such claim in the
manner provided in Section 5.03(d) below. If Indemnitee shall be duly
notified of such dispute, the parties shall attempt to settle and
compromise the same, or if unable to do so within 20 days of Indemnitor's
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delivery of notice of a dispute, such dispute shall be settled by
binding arbitration before a single arbitrator in the City and County of
Denver, State of Colorado, in proceedings conducted by the American
Arbitration Association and pursuant to such organization's rules for
commercial disputes, and any rights of indemnification established by
reason of such settlement, compromise or arbitration shall promptly
thereafter be paid and satisfied by Indemnitor.
(d) DEFENSE OF CLAIMS. Upon receipt by Indemnitor of a notice from
Indemnitee with respect to any claim of a third party against Indemnitee,
and acknowledgment by Indemnitor (whether after resolution of a dispute or
otherwise) of Indemnitee's right to indemnification hereunder with respect
to such claim, Indemnitor shall assume the defense of such claim with
counsel reasonably satisfactory to Indemnitee and Indemnitee shall
cooperate to the extent reasonably requested by Indemnitor in defense or
prosecution thereof and shall furnish such records, information and
testimony and attend all such conferences, discovery proceedings, hearings,
trials and appeals as may be reasonably requested by Indemnitor in
connection therewith. If Indemnitor shall acknowledge Indemnitee's right to
indemnification and elect to assume the defense of such claim, Indemnitee
shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of Indemnitee. If
Indemnitor has assumed the defense of any claim against Indemnitee,
Indemnitor shall have the right to settle any claim for which
indemnification has been sought and is available hereunder; provided that,
to the extent that such settlement requires Indemnitee to take, or
prohibits Indemnitee from taking, any action or purports to obligate
Indemnitee, then Indemnitor shall not settle such claim without the prior
written consent of Indemnitee. If Indemnitor does not assume the defense of
a third party claim and disputes Indemnitee's right to indemnification,
Indemnitor shall have the right to participate in the defense of such claim
through counsel of its choice, at Indemnitor's expense, and Indemnitee
shall have control over the litigation and authority to resolve such claim
subject to this Section 5.03.
ARTICLE VI
MISCELLANEOUS
Section 6.01. OTHER DOCUMENTS. Each of the parties hereto shall execute and
deliver such other and further documents and instruments, and take such other
and further actions, as may be reasonably requested of it for the implementation
and consummation of this Agreement and the transactions herein contemplated.
Section 6.02. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and the successors and assigns of
each of them, but shall not confer, expressly or by implication, any rights or
remedies upon any other party.
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Section 6.03. GOVERNING LAW. This Agreement is made and shall be governed
in all respects, including validity, interpretation and effect, by the laws of
the State of Colorado.
Section 6.04. NOTICES. All notices, requests or demands and other
communications hereunder must be in writing and shall be deemed to have been
duly made if personally delivered or mailed, postage prepaid, to the parties as
follows:
If to the Company, to: Intercell Technologies Corporation
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx #000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxx, President and
Chief Executive Officer
If to the Seller, to: Intercell Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxxxx #0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxxx, President and
Chief Executive Officer
With copies to: Xxxxx Xxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx #0000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxxxx and Xxxxxx X.
Xxxxxxxxx
Either party hereto may change its address by written notice to the other party
given in accordance with this Section 6.04.
Section 6.05. ENTIRE AGREEMENT. This Agreement and all exhibits and
schedules, which comprise a material and substantive part of this Agreement,
attached hereto contain the entire agreement between the parties and supersede
all prior agreements, understandings and writings between the parties with
respect to the subject matter hereof and thereof. Each party hereto acknowledges
that no representations, inducements, promises or agreements, verbal or
otherwise, have been made by either party, or anyone acting with authority on
behalf of either party, which are not embodied herein or in an exhibit hereto,
and that no other agreement, statement or promise may be relied upon or shall be
valid or binding. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated verbally. This Agreement may be amended or any
term hereof may be changed, waived, discharged or terminated by an agreement in
writing signed by both parties hereto.
Section 6.06. HEADINGS. The captions and headings used herein are for
convenience only and shall not be construed as part of this Agreement.
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Section 6.07. ATTORNEYS' FEES. In the event of any litigation between the
parties hereto, the non-prevailing party shall pay the reasonable expenses,
including but not limited to the attorneys' fees, of the prevailing party in
connection therewith.
Section 6.08. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but both of which taken together shall
constitute but one and the same document.
Section 6.09 PUBLICITY. Each party expressly agrees that it will not make
any public statement or announcement, whether written or oral, or cause any
unaffiliated party to do the same, with respect to this Agreement and the
transactions contemplated herein, without the prior written consent of the other
party until such time as all conditions subsequent as contained in Schedule 2.01
of this Agreement have been satisfied in full.
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IN WITNESS THEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
THE SELLER:
INTERCELL CORPORATION
ATTEST:
By /s/ Xxxx Xxxxx By /s/ Xxxx X. Xxxxxxxxx
----------------------------- -----------------------------------------
Xxxx Xxxxx, Secretary Xxxx X. Xxxxxxxxx, President and Chief
Executive Officer
THE COMPANY:
INTERCELL TECHNOLOGIES CORPORATION
ATTEST:
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxx
---------------------------- -----------------------------------------
Xxxxxx X. Xxxxxxx, Secretary Xxxxx X. Xxxxx, President and Chief
Executive Officer
16
ADDENDUM TO STOCK PURCHASE AGREEMENT
This Addendum to Stock Purchase Agreement ("Addendum") is made and entered
into this 25th day of July, 1995, by and between Intercell Technologies
Corporation, a Colorado corporation (the "Company"), and Intercell Corporation,
a Colorado corporation ("Seller"). The Company and Seller are sometimes referred
to herein as the "Parties."
RECITALS
WHEREAS, the Parties have entered into that certain Stock Purchase
Agreement dated July 18, 1997 (the "Agreement"); and
WHEREAS, the parties desire to enter into this Addendum to supplement
certain provisions contained in the Agreement and further define certain
understandings of the Parties.
NOW, THEREFORE, in consideration for the foregoing Recitals, which are
hereby made a substantial part of this Addendum, and the mutual covenants,
agreements, representations and warranties contained herein, the Parties hereto
agree as follows.
1. TERMS. Terms not otherwise defined herein shall have the meanings set
forth in the Agreement.
2. PAYMENT OF LEGAL FEES. The Parties hereby agree that the aggregate
amount of expenses and legal fees incurred by Xx. Xxx Xxxx in connection with
the American Microcell Corporation legal matter is $29,236.00 and not $28,000.00
as set forth in Section 1.01(c) of the Agreement. By execution of this Addendum
Seller hereby undertakes to reimburse Xx. Xxxx the additional amount of
$1,236.00
3. EXTENSION OF CLOSING DATE. Pursuant to Section 2.01 of the Agreement,
the parties agree to extend the date in which the express conditions subsequent
set forth in Section 2.01 are due to occur from Thursday, July 24, 1997 to
Monday, July 28, 1997.
4. EXECUTION VIA FACSIMILE. The Parties hereby agree that due to Xx. Xxxxx
being unable to attend the Closing, that said Closing shall be conducted via
facsimile pursuant to the following terms:
Signatures on all agreements executed in connection with the
Agreement at the Closing, including this Addendum, may be executed by
facsimile transmission and shall be binding upon the Parties
transmitting the same by facsimile transmission. Counterparts with
original signatures shall be provided to the respective attorneys of
the other parties within five (5) days of the applicable facsimile
transmission; provided, however, that the failure to provide the
original counterpart shall have no effect on the validity or the
binding nature
of such agreement. The Parties expressly agree that this provision
shall be applicable and binding on the Parties, irrespective of whether
the applicable agreement specifically provides for execution by
facsimile signature.
5. ALLOCATION OF PURCHASE PRICE. The Parties agree to use their best
efforts to reach an agreement in good faith on the manner in which the Purchase
Price shall be allocated on Schedule 1.03 of the Agreement.
6. EFFECT OF ADDENDUM. Except as expressly set forth in this Addendum, the
terms and provisions contained in the Agreement and any document or agreement
delivered in relation thereto shall remain in full force and effect.
2
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
INTERCELL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxxxx, President and Chief
Executive Officer
INTERCELL TECHNOLOGIES CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxx, President and Chief
Executive Officer
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