EXHIBIT 4.5
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the __ day of December,
2001, by and between Able Laboratories, Inc. (the "Company"), a corporation
organized under the laws of Delaware with its principal offices at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, and each of the persons and entities,
severally and not jointly, whose names are set forth on the Schedule of
Purchasers attached hereto as EXHIBIT A (which persons and entities are
hereinafter collectively referred to as "Purchasers" and each individually as a
"Purchaser").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the parties agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms
and conditions of this Agreement, the Company has authorized the sale and
issuance to the Purchasers of the number of shares (the "Shares") of Common
Stock $.01 par value per share (the "Common Stock"), of the Company set forth on
the signature page hereof.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing
(as defined below), the Company will issue and sell the Shares to each
Purchaser, severally and not jointly, and each Purchaser will buy the number of
Shares from the Company set forth opposite such Purchasers name on EXHIBIT A,
upon the terms and conditions hereinafter set forth, at the purchase price set
forth on EXHIBIT A.
2.1. Initial Closing. Subject to an in reliance upon all of the
representations, warranties, covenants, terms and conditions of this Agreement,
the initial closing shall take place at the offices of Xxxxx, Xxxx & Xxxxx, LLP,
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, at 10:00 a.m., Boston time,
on November __, 2001, or at such other location, date and time as many be agreed
upon between the applicable Purchasers and Company (such closing being called
the "Initial Closing" and such date and time being called the "Initial Closing
Date"). The Company's obligation to complete the purchase and sale of the Shares
being purchased hereunder and deliver such stock certificates to the purchasers
at the Initial Closing (the "Initial Purchasers" and each an "Initial
Purchaser") shall be subject to the following conditions, any one or more of
which may be waived by the Company: (a) receipt by the Company of same-day funds
in the full amount of the purchase price for the Shares being purchased
hereunder and (b) the accuracy in all material respects of the representations
and warranties made by the Initial Purchasers and the fulfillment of those
undertakings of the Initial Purchasers to be fulfilled prior to or at the
Initial Closing. The Initial Purchasers' obligation to accept delivery of such
stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the accuracy in all material respects of the representations and
warranties made by the Company herein and the fulfillment of those undertakings
of the Company to be fulfilled prior to or at the Initial Closing.
2.2. Additional Closings.
(a) Subject to and in reliance upon all of the representations,
warranties, covenants, terms and conditions of this Agreement, one or more
additional closings (the "Additional Closings") under this Agreement may be held
at any time before December 31, 2001
for the sale of up to 20,833,333 Shares in the aggregate to one or more
additional persons (the "Additional Purchasers"), subject in each case to the
approval of a majority of the full Board of Directors of the Company.
2.3. All Additional Closings, if any, shall take place at the
offices of Xxxxx, Xxxx & Xxxxx, LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other location as may be agreed upon between the
applicable Additional Purchasers and the Company and on such date or dates,
before December 31, 2001, as may be agreed upon between the applicable
Additional Purchasers and the Company (the dates and times of any such
Additional Closing being called the "Additional Closing Date"). The Company's
obligation to complete the purchase and sale of the Shares being purchased
hereunder and deliver such stock certificates to the Additional Purchasers (the
"Additional Purchasers" each an "Additional Purchaser") at the Additional
Closing shall be subject to the following conditions, any one or more of which
may be waived by the Company: (a) receipt by the Company of same-day funds in
the full amount of the purchase price for the Shares being purchased hereunder
and (b) the accuracy in all material respects of the representations and
warranties made by the Additional Purchasers and the fulfillment of those
undertakings of the Additional Purchasers to be fulfilled prior to or at the
Additional Closing. The Additional Purchasers' obligation to accept delivery of
such stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the accuracy in all material respects of the representations and
warranties made by the Company herein and the fulfillment of those undertakings
of the Company to be fulfilled prior to or at the Additional Closing.
(i) Such Additional Purchaser shall execute and deliver a
counterpart signature page to each of this Agreement and the
Registration Rights Agreement (as defined below) (together, the
"Counterpart Signature Pages"), pursuant to which such Additional
Purchaser shall agree to be a "Purchaser" under each of this Agreement
and the Registration Rights Agreement, entitled to all of the rights
and subject to all of the obligations of a Purchaser under each such
agreement.
(b) As used herein, the term "Closing" shall mean each of the
Initial Closing, and any Additional Closing, and the term "Closing Date" shall
mean each of the Initial Closing Date, and any Additional Closing Date.
SECTION 3. Representations, Warranties and Covenants of the Company.
The Company hereby represents and warrants to, and covenants with, the
Purchasers as follows:
3.1. Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; and the Company is duly qualified to do business as a foreign
corporation and is good standing in each other jurisdiction in which
qualification is required, except where the failure to be so qualified will not
have a Material Adverse Effect, as defined in Section 3.4.
3.2. Authorized Capital Stock. Immediately prior to the Closing, the
authorized capital stock of the Company consists of:
(i) 225,000,000 shares of Common Stock, $.01 par value per
share, (the "Common Stock") of which 143,007,640 shares are issued and
outstanding at the close of business on November 14, 2001; and
(ii) 10,000,000 shares of Preferred Stock, $.01 par value per
share. Each series of Preferred Stock designated by the Board of
Directors and the shares outstanding as of November 26, 2001 is listed
on Schedule 3.2 hereto.
All subscriptions, warrants, options, convertible securities, and other rights
(contingent or other) to purchase or otherwise acquire equity securities of the
Company issued and outstanding immediately prior to the Closing, or contracts,
commitments, understandings, or arrangements by which the Company or any of its
subsidiaries is or may be obligated to issue shares of Common Stock, or
securities or rights convertible or exchangeable for shares of Common Stock, are
as set forth on Schedule 3.2 hereto. Except as set forth on Schedule 3.2, no
Common Stock nor any subscription, warrant, option, convertible security, or
other right (contingent or other) to purchase or otherwise acquire equity
securities of the Company is outstanding on the Closing Date. The issued and
outstanding shares of the Company's capital stock have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued in compliance
with all applicable federal and state securities laws, and were not issued in
violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities. No holder of Common Stock is entitled to preemptive
or similar rights.
3.3. Issuance, Sale and Delivery of the Shares. The Shares being
purchased hereunder have been duly authorized and, when issued, delivered and
paid for in the manner set forth in this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable, and will be free of any liens or
encumbrances other than liens or encumbrances created or imposed upon the
Purchasers. Except as listed on Schedule 3.3, no preemptive rights or similar
rights of any stockholder of the Company or any of its subsidiaries to subscribe
for or purchase exist with respect to the issuance and sale of the Shares by the
Company pursuant to this Agreement. The Company's issuance of the Shares shall
be in compliance with all applicable federal and state securities laws.
3.4. Due Execution, Delivery and Performance of the Agreements. The
Company has full corporate power and authority to own and operate its properties
and assets, to enter into this Agreement and the Registration Rights Agreement
in the form attached hereto as EXHIBIT B (the "Registration Rights Agreement"
and, together with this Agreement, the "Transaction Documents"), to issue and
sell the Shares, and perform the transactions contemplated by this Agreement and
the Registration Rights Agreement. The Transaction Documents have been duly
authorized, and at the Closing the Transaction Documents will have been duly
executed and delivered by the Company. The execution, delivery and performance
of the Transaction Documents by the Company and the consummation by the Company
of the transactions therein contemplated will not violate any provision of the
Certificate of Incorporation or by-laws of the Company.
The execution, delivery and performance of the Transaction Documents
by the Company and the consummation by the Company of the transactions therein
contemplated will not result in the creation of any lien, charge, security
interest or encumbrance upon any assets of the
Company pursuant to the terms or provisions of, or conflict with, result in the
breach or violation of, or constitute, either by itself or upon notice or the
passage of time or both, a default under any material agreement, mortgage, deed
of trust, lease, franchise, license, indenture, permit or other instrument to
which the Company is a party or by which the Company or any of its properties
may be bound or affected and in each case which individually or in the aggregate
would have a material adverse effect on the condition (financial or otherwise),
properties, business, prospects, or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"), or any statute or
any authorization, judgment, decree, order, rule or regulation of any court or
any regulatory body, administrative agency or other governmental body applicable
to the Company or any of its respective properties. No consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution and delivery of
the Transaction Documents or the consummation of the transactions contemplated
by the Transaction Documents, except for compliance with all federal and state
securities laws applicable to the offering and sale of the Shares.
Upon its execution and delivery, and assuming the valid execution
thereof by the Purchaser, the Transaction Documents will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
3.5. Good Standing of Subsidiaries. Each of the Company's
subsidiaries (i) is listed on Schedule 3.5, (ii) has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of its
incorporation, (iii) has corporate power and authority to own, lease and operate
its properties and to conduct its business as conducted and as proposed to be
conducted, and (iv) is duly qualified and is in good standing as a foreign
corporation in each jurisdiction in which such qualification is required, except
where the failure to be so qualified will not have a Material Adverse Effect.
All of the issued and outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is duly paid and nonassessable and is owned
by the Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of capital
stock of each such subsidiary was issued in violation of any preemptive or
similar rights of any third party.
3.6. No Defaults. The Company is not in violation of or default
under any provision of its Certificate of Incorporation or bylaws, or other
organizational documents. Except as disclosed in the Information Documents (as
that term is defined in Section 3.17 below), neither the Company nor any of its
subsidiaries, and to the best of the Company's knowledge, no other party
thereto, is in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company, any of its subsidiaries, or
any of their properties are bound; and there does not exist any state of facts
which, with notice or lapse of time or both, would constitute an event of
default as defined in such documents on the part of the Company or any of its
subsidiaries, except for such breaches and defaults that individually or in the
aggregate would not have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries is in violation of any
judgment, order, or decree by which the Company, any of its subsidiaries, or
their properties is bound. Neither the Company nor any of its subsidiaries is in
violation of any statute, rule, or regulation of any governmental authority,
except for such violations that individually or in the aggregate would not have
a Material Adverse Effect.
3.7. No Actions. Except as disclosed in the Information Documents,
there are no legal or governmental actions, suits or proceedings, or
investigation pending or, to the best of the Company's knowledge, threatened to
which the Company or any of its subsidiaries is or may be a party or of which
property owned or leased by the Company or any of its subsidiaries is or may be
subject (except for litigation that individually or in the aggregate would not
have a Material Adverse Effect); and no material labor problem or labor
disturbance by the employees of the Company or any of its subsidiaries exists,
or, to the best of the Company's knowledge, is imminent. Except for the
"Stipulated Order Amending Agreed Order Of Permanent Injunction" entered in the
matter captioned United States v. Able Laboratories, Inc., Civ. Action No.
91-4916 (D.N.J.), neither the Company nor any of its subsidiaries is a party to
or subject to the provisions of any injunction, judgment, decree or order of any
court, regulatory body, administrative agency or other governmental body.
3.8. Properties. The Company and each of its subsidiaries has, as of
the applicable dates referred to therein, good and marketable title to all the
properties and assets reflected as owned by it in the financial statements
included in the Information Documents, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except (i) those, if any, reflected in such
financial statements or listed in Schedule 3.8, or (ii) those that are not
material in amount and do not adversely affect the use made and currently
proposed to be made of such property by the Company or such subsidiary. The
Company and its subsidiaries hold their leased properties under valid and
binding leases. The Company and its subsidiaries own or lease all such
properties as are necessary to their operations as now conducted. Neither the
Company nor any of its subsidiaries own any real property. Any real property and
facilities held under lease by the Company and its subsidiaries are held by them
under valid, subsisting, and enforceable leases of which the Company and its
subsidiaries are in compliance.
3.9. No Material Change. Since December 31, 2000, except as
disclosed in the Information Documents: (i) the Company and its subsidiaries
have not incurred any material liabilities or obligations, indirect or
contingent, or entered into any material verbal or written agreement or other
transaction that is not in the ordinary course of business; (ii) the Company and
its subsidiaries have not sustained any material loss or interference with their
businesses or properties from fire, flood, windstorm, accident or other
calamity, whether or not covered by insurance; (iii) the Company has not paid or
declared any dividends or other distributions with respect to its Common Stock,
and the Company and each of its subsidiaries is not in default in the payment of
principal or interest on any outstanding debt obligations, if any; (iv) there
has not been any material change in the indebtedness material to the Company or
any of its subsidiaries; and (v) there has not been a Material Adverse Effect in
the condition (financial or otherwise), properties, business or results of
operations of the Company or any of its subsidiaries.
3.10. Intellectual Property.
(a) The Company and its subsidiaries own or have the right to
use all Intellectual Property Rights (as defined below) used by the Company and
its subsidiaries for the conduct of their respective businesses, which
Intellectual Property Rights are the only Intellectual Property Rights necessary
or required for the conduct of their respective businesses as they are currently
being conducted.
(b) Neither the Company nor any of its subsidiaries is in
default of its obligations to pay royalties or other amounts to other persons by
reason of the ownership or use of any Intellectual Property Rights used by the
Company and its subsidiaries for the conduct of their respective businesses.
(c) No Intellectual Property Right owned by the Company or any
of its subsidiaries violates or will violate any license or infringes or will
infringe any Intellectual Property Rights of another. To the best of the
Company's knowledge, no Intellectual Property Right, product or service
marketed, sold or licensed (as licensor or as licensee) by the Company or any of
its subsidiaries, violates or will violate any license or infringes or will
infringe any Intellectual Property Rights of another, nor has the Company or any
of its subsidiaries received any notice that any of the Intellectual Property
Rights used by the Company or any of its subsidiaries for the conduct of their
respective businesses, conflicts or will conflict with the rights of others.
(d) There are no claims pending or, to the best of the
Company's knowledge, threatened with respect to any Intellectual Property Rights
necessary or required for the conduct of the business of the Company or any of
its subsidiaries as currently conducted, nor, to the best of the Company's
knowledge, does there exist any basis therefor.
As used herein, the term "Intellectual Property Rights" means all patents,
trademarks, service marks, trade names, copyrights, inventions, trade secrets,
know-how, licenses, proprietary processes and formulae and applications for
patents, trademarks, service marks and copyrights.
3.11. Compliance. The Company and each of its subsidiaries is in
possession of all permits, licenses, and other authorizations material to the
conduct of its business as currently conducted or as proposed to be conducted.
The Company has not been advised, and has no reason to believe, that the Company
or any of its subsidiaries is not conducting business in compliance with all
licenses, permits, and other authorizations material to the conduct of their
business and with all applicable laws, rules, and regulations of the
jurisdictions in which it is conducting business, except where failure to be in
compliance would not have a Material Adverse Effect.
3.12. Taxes. The Company and each of its subsidiaries has filed all
federal, state, county and local tax returns, required to be filed by it, and
the Company and each of its subsidiaries has paid all taxes shown to be due by
such returns as well as all other taxes, assessments and governmental charges
that have become due or payable, including, without limitation, all taxes that
the Company or such subsidiary is obligated to withhold from amounts owing to
employees, creditors and third parties. The Company and its subsidiaries have
established adequate reserves for all taxes accrued but not yet payable. No
audit, action, suit, proceeding, claim, examination, deficiency, or assessment
is currently pending or, to the best of the Company's knowledge, threatened
against the Company or any of its subsidiaries. There is no tax lien (other than
for current taxes not yet due and payable), whether imposed by a Federal, state,
county, or local taxing authority, outstanding against the assets, properties or
business of the Company or any of its subsidiaries.
3.13. Investment Company. The Company is not regulated or required
to be registered as an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
3.14. Integration, etc. The Company has not in the past nor will it
hereafter take any action to sell, offer for sale or solicit offers to buy any
securities of the Company that would bring the offer, issuance or sale of the
Shares, as contemplated by this Agreement, within the provisions of Section 5 of
the Securities Act of 1933, as amended (the "Securities Act"). Neither the
Company nor any of its Affiliates (as defined in Rule 501(b) of Regulation D
under the Securities Act) has directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Securities Act) which is or could be integrated
with the sale of the Shares in a manner that would require the registration
under the Securities Act of the Shares or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) in connection with the offering of the Shares or in
any manner involving a public offering within the meaning of Section 4(2) of the
Act.
3.15. Insurance. The Company maintains the insurance policies
summarized on Schedule 3.15. To the knowledge of the Company, all such insurance
policies are in full force and effect.
3.16. Reporting Company; Listed Securities. The Company has filed
all reports and statements required to be filed by Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), during the
two years preceding the Closing Date on a timely basis and has been subject to
such filing requirements for such two year period. The Company's Common Stock is
quoted on the OTC Bulletin Board Market and is listed for trading on the Boston
Stock Exchange. As of the Closing Date, the Company meets all the requirements
for continued listing on the OTC Bulletin Board Market and the Boston Stock
Exchange, and to the best of the Company's knowledge, there is no stop order
suspending the trading of the Common Stock on the OTC Bulletin Board Market or
the Boston Stock Exchange or any information that would result in the Common
Shares being delisted from the OTC Bulletin Board Market or the Boston Stock
Exchange. All material agreements to which the Company is a party or to which
the property or assets of the Company are subject have been filed as exhibits to
the Information Documents as required under the Exchange Act.
3.17. Additional Information. A true and complete copy of each
report, schedule, registration statement and definitive proxy statement filed by
the Company with the Commission under the Securities Act and the Exchange Act
during the twelve (12) months preceding the Closing Date (as such documents have
since the time of their filing been amended together with all documents
incorporated by reference therein or attached as exhibits thereto, the
"Information
Documents"), which include all the documents (other than preliminary material)
that the Company was required to file with the Commission under the Exchange Act
since such date, has been made available to the Purchasers. As of their
respective dates, each Information Document and any forms, reports and other
documents filed by the Company during the period commencing on the date of this
Agreement and ending on the last date on which the Company is required to
maintain the effectiveness of the registration statement referred to in the
Registration Rights Agreement (the "Registration Statement"), complied or will
comply in all material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations of the
Commission thereunder applicable to the Information Documents or such other
forms, reports or other documents, and no Information Document contained, or
will contain at the time it was or is filed, any untrue statement of a material
fact or omitted, or will omit at the time they are filed, to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
financial statements, together with the related notes, of the Company included
in the Information Documents comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the Commission with respect thereto, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted by the rules and regulations of
the Commission) and fairly present (subject, in the case of the unaudited
statements, to normal, recurring audit adjustments, which were not individually
or in the aggregate material) in all material respects the financial position of
the Company and its consolidated subsidiaries as at the dates thereof and their
consolidated results of operations and cash flows for the periods then ended.
There were no material liabilities, direct or indirect, fixed or contingent, of
the Company and its consolidated subsidiaries as of the respective dates of such
financial statements that generally accepted accounting principles would require
to be reflected therein that are not reflected therein or in the notes thereto.
Since September 30, 2001, except as disclosed in the Information Documents (i)
there has been no material change in the consolidated condition, financial or
otherwise, or operations of the Company and its consolidated subsidiaries, (ii)
except as set forth in Schedule 3.17 neither the Company nor any of its
consolidated subsidiaries has incurred any indebtedness for money borrowed or
any material liability, contingent or otherwise, except in the ordinary course
of business or entered into any material commitment or other transaction not in
the ordinary course of business, (iii) there has been no event, occurrence, or
development that has resulted or that could result in a Material Adverse Effect,
(iv) the Company has not declared or made any payment or distribution of cash or
other property to its stockholders, officers, or directors (other than in
compliance with existing compensation agreements or stock option plans) with
respect to its capital stock, or purchased, redeemed (or made any agreements to
purchase or redeem) any shares of its capital stock, and (v) the Company has not
altered its method of accounting.
3.18. Legal Opinion. At the Closing, the Company will cause Xxxxx,
Xxxx & Xxxxx LLP, counsel to the Company, to deliver a legal opinion to the
Purchasers as to the matters set forth in EXHIBIT C hereto.
3.19. Outstanding Registration Rights. Except as described in
Schedule 3.19, the Company is not a party to any contract or agreement pursuant
to which any other party or parties thereto have the right to require the
Company (on a best efforts basis or otherwise) (i) to register
securities of the Company under the Securities Act for sale by or on behalf of
such party or parties or (ii) to notify such party or parties of the Company's
intention to file a registration statement under the Securities Act and at the
request of such party or parties to include therein securities of the Company
for sale by or on behalf of such party or parties.
3.20. Environmental and Safety Laws. To the Company's knowledge,
neither the Company nor any of its subsidiaries is in violation of any
applicable statute, law, or regulation relating to the environment or
occupational health and safety, and to its knowledge, no material expenditures
are or will be required in order to comply with any such existing statute, law,
or regulation.
3.21. Other Adverse Facts, etc. To the best of the Company's
knowledge, there are no existing facts or circumstances that materially and
adversely affect, or (insofar as the Company can now reasonably foresee) in the
future may materially and adversely affect, the business, results of operations,
or condition, financial or otherwise, of the Company and its consolidated
subsidiaries that are not disclosed in the Information Documents or in this
Agreement or any exhibit or schedule hereto, or which are required to be
disclosed by the Company in an Information Document.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser.
4.1. Each Purchaser, individually and not jointly, represents and
warrants to, and covenants with, the Company that: (i) it is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in securities representing an investment decision
like that involved in the purchase of the Shares, including investments in
securities issued by the Company, and has requested, received, reviewed and
understood all information it deems relevant in making an informed decision to
purchase the Shares, including, without limitation, the information contained in
the Information Documents; (ii) it acknowledges that the offering of the Shares
pursuant to this Agreement has not been reviewed by the Commission or any state
regulatory authority; (iii) it is acquiring the number of Shares set forth in
the signature page hereto, for its own account for investment only and with no
present intention of distributing any of such Shares or any arrangement or
understanding with any other persons regarding the distribution of such Shares;
(iv) it will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Shares except in compliance with the
Securities Act, rules and regulations promulgated under the Securities Act and
any applicable state securities or blue sky laws; (v) it has completed or caused
to be completed the Stock Certificate Questionnaire, attached hereto as APPENDIX
I and will at the Company's request the Registration Statement Questionnaire
complete or cause to be completed the Registration Statement Questionnaire
attached hereto as APPENDIX II, for use in preparation of the Registration
Statement, and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the effective date of the Registration
Statement; (vi) it has, in connection with its decision to purchase the number
of Shares set forth on the signature page hereof, not relied upon any
representations or other information (whether oral or written) other than as set
forth in the Information Documents and the representations and warranties of the
Company contained herein; (vii) it has had an opportunity to discuss this
investment with representatives of the Company and ask questions of them and
such questions have been answered to the full
satisfaction of the Purchaser; and (viii) it is an "accredited investor" within
the meaning of Rule 501 of Regulation D promulgated under the Securities Act.
4.2. Each Purchaser, individually and not jointly, hereby covenants
with the Company not to make any sale of the Shares without satisfying the
prospectus delivery requirements under the Securities Act, if any.
4.3. Each Purchaser, individually and not jointly, further
represents and warrants to, and covenants with, the Company that (i) the
Purchaser has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, (ii) the Purchaser is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, (iii) no
consent, approval, authorization, or other order of any court, regulatory body,
administrative agency or other governmental body that has not been obtained is
required on the part of the Purchaser for the execution and delivery of this
Agreement or the consummation of the transactions contemplated by this
Agreement, and (iv) upon the execution and delivery of this Agreement, this
Agreement shall constitute a valid and binding obligation of the Purchaser
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (v) there is not in effect any order enjoining or
restraining the Purchaser from entering into or engaging in any of the
transactions contemplated by this Agreement.
4.4. Each Purchaser, individually and not jointly, recognizes that
an investment in the Shares is speculative and involves a high degree of risk,
including a risk of total loss of the Purchaser's investment.
4.5. Each Purchaser, individually and not jointly, represents and
warrants that all of the information provided to the Company or its agents or
representatives concerning such Purchaser's suitability to invest in the Company
and the representations and warranties contained herein, are complete, true, and
correct as of the date hereof, and understands that the Company is relying on
the statements contained herein to establish an exemption from registration
under U.S. federal and state securities laws.
4.6. Each Purchaser, individually and not jointly, represents and
warrants that the address set forth in the signature page hereto is such
Purchaser's true and correct domicile.
4.7. Each Purchaser, individually and not jointly, covenants to
provide the Company an updated, accurate and complete plan of distribution at
all times during which the Company is required to keep the Registration
Statement in effect.
4.8. Each Purchaser, individually and not jointly, understands and
agrees that each certificate or other document evidencing any of the Shares
shall be endorsed with a legend in substantially the form set forth below as
well as any other legends required by applicable law, and the Purchaser
covenants that the Purchaser shall not transfer the Shares represented by any
such certificate without complying with the restrictions on transfer described
in the legends endorsed on such certificate:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE
TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS OR (B) EXEMPTIONS FROM
SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE.
AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES,
THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO
REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH
TRANSFER.
SECTION 5. Survival of Representatives and Warranties.
Notwithstanding any investigation made by any party to this Agreement, all
representations and warranties made by the Company and the Purchasers herein and
in any certificates or documents delivered pursuant hereto or in connection
therewith shall survive following the delivery to the Purchasers of the Shares
being purchased and the payment therefor.
SECTION 6. Covenants.
6.1. Corporate Existence. The Company will take all steps necessary
to preserve and continue the corporate existence of the Company. The Company
will comply with all applicable laws and regulations, decrees, orders,
judgements, licenses, and permits ("Applicable Laws"), except where
non-compliance with such Applicable Laws would not have a Material Adverse
Effect.
6.2. Reservation of Common Stock. As of the date hereof, the Company
has authorized and reserved and the Company shall continue to reserve and keep
available, free of preemptive rights, the Shares.
6.3. Exchange Act Registration. The Company will maintain the
registration of its Common Stock under Section 12 of the Exchange Act, will
comply in all respects with its reporting and filing obligations under the
Exchange Act, and will not take any action or file any document (whether or not
permitted by the Exchange Act or the rules thereunder) to terminate or suspend
such registration or to terminate or suspend its reporting and filing
obligations under said Act, until the date which is two years from the Closing
Date.
6.4. Listing of Common Stock. The Company shall prepare and file
with the Boston Stock Exchange an additional shares listing application covering
the Shares and take all steps necessary to cause such shares to be approved for
listing as soon as practicable thereafter.
6.5. Use of Proceeds. The Company will apply all of the proceeds
(net of costs directly related to the preparation and negotiation of this
Agreement and the offering and sale of the Shares) derived from the sale of the
Shares to redeem issued and outstanding shares of
convertible preferred stock, for research and development and for general
working capital purposes.
6.6. Taxes. The Company will promptly pay and discharge all lawful
taxes, assessments, and governmental charges or levies imposed on it or upon its
income or profits, or upon any of its properties, real or personal, before the
same shall become in default, as well as all lawful claims for labor, materials,
and supplies or otherwise which, if unpaid, might become a lien or charge upon
its properties or any part thereof, except where the failure to do so would not
have a Material Adverse Effect; provided, however, that the Company shall not be
required to pay or cause to be paid any such tax, assessment, charge, levy or
claim prior to institution of foreclosure proceedings if the validity thereof
shall be contested in good faith by appropriate proceedings and if the Company
shall have established reserves deemed by the Company to be adequate with
respect to such tax, assessment, charge, levy, or claim.
6.7. Insurance. The Company will maintain liability, property
damage, and insurance on its insurable property against fire and other hazards
with responsible insurance carriers in the relative proportionate amounts
consistent with the Company's past practice and usually carried by reasonable
and prudent companies conducting businesses similar to that of the Company
except where the failure to do so would not have a Material Adverse Effect.
6.8. Financial Statements and Compliance Certificates. The Company
will keep true books of record and account in which full, true, and correct
entries in accordance with generally accepted accounting principles will be made
of all dealings or transactions in relation to its business and activities.
6.9. Rule 144. As long as the Purchasers own Shares, (i) the Company
agrees to timely file all reports required to be filed by the Company after the
date hereof under the Securities Act and the Exchange Act (including the reports
pursuant to Section 13(a) or 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the
SEC thereunder), (ii) if the Company is not required to file reports pursuant to
such sections, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required for the
Purchasers to sell the Shares under Rule 144, and (iii) the Company will take
such further action as any holder of Shares may reasonably request, all to the
extent required from time to time to enable such Purchaser to sell Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144, including causing its attorneys to issue and
deliver any appropriate legal opinion required to permit a Purchaser to sell
Shares under Rule 144 upon receipt of appropriate documentation relating to such
sale. Upon the request of any Purchaser, the Company shall deliver to such
person a written certification of a duly authorized officer as to whether it has
complied with the foregoing requirements.
SECTION 7. Registration and Transfer of Shares. Subject to the
provisions of this Agreement, Shares may be surrendered for transfer and
reissuance, for exchange, replacement, or cancellation at the offices of the
Company's transfer agent, American Stock Transfer & Trust Company, or such
replacement transfer agent as the Company may designate and notify each
Purchaser. The Company shall permit Shares to be transferred only in accordance
with this Agreement. Upon surrender for transfer of any registered Shares duly
assigned by the registered holder (or its duly authorized attorney) to the
transferee(s) thereof, and subject to satisfaction of the requirements set forth
in Section 5.8 hereof if the sale of such Shares is not registered under the
Securities Act, the Company shall instruct its transfer agent to execute and
deliver a new registered certificate for the Shares. No service charge shall be
assessed for any transfer, registration, reissuance, or exchange hereunder.
SECTION 8. Substitution of Share Certificates. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft, destruction, or
mutilation of any certificate for Shares, and of indemnity satisfactory to it
(which, in the case of any original purchaser of the Shares, shall be a
contractual obligation of such purchaser) and upon surrender, at the office or
agency maintained in accordance with Section 8 hereof, and cancellation of any
certificate, if mutilated, the Company will execute and deliver a new
certificate of like tenor, in lieu of such certificate.
SECTION 9. Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated.
SECTION 10. Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, sent via overnight courier, sent by facsimile, or mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
if to the Company, to:
Able Laboratories, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
with a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
or to such other person at such other place as the Company shall designate to
the Purchasers in writing; and if to the Purchasers, at the address as set forth
on EXHIBIT A, or at such other address or addresses as may have been furnished
to the Company in writing.
Notices provided in accordance with this Section 10 shall be deemed delivered
(i) upon personal delivery with signature required, (ii) one Business Day after
they have been sent to the recipient by reputable overnight courier service
(charges prepaid and signature required) (iii) upon confirmation, answer back
received, of successful transmission of a facsimile message containing such
notice if sent between 9 a.m. and 5 p.m., local time of the recipient, on any
Business Day, and as of 9 a.m. local time of the recipient on the next Business
Day if sent at any
other time, or (iv) three Business Days after deposit in the mail. The term
"Business Day" as used in this Section 10 shall mean any day other than
Saturday, Sunday or a day on which banking institutions are not required to be
open in The Commonwealth of Massachusetts.
SECTION 11. Amendment and Waiver. This Agreement may be amended or
modified only upon the written consent of the Company and the holders of a
majority of the Shares then outstanding. The obligations of the Company and the
rights of the holders of the Shares under this Agreement may be waived only with
the written consent of the holders of a majority of the Shares.
SECTION 12. Changes. This Agreement may not be modified or amended
except pursuant to an instrument in writing, signed by the Company and the
Purchasers. Any provision in this Agreement to the contrary notwithstanding,
changes in or additions to this Agreement may be made, and compliance with any
covenant or condition herein set forth may be omitted, if the Company (a) shall
obtain from the holders of record of Shares aggregating not less than a majority
of the number of the Shares at the time outstanding their consent thereto in
writing and (b) shall deliver copies of such consent in writing to any such
holders of record who did not execute the same; provided, however, that without
the consent in writing of all holders of the Shares purchased pursuant to this
Agreement, no such consent shall reduce the percentage of the number of the
Shares the consent of the holders of which shall be required under this Section
12.
SECTION 13. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 14. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice of law provisions thereof.
SECTION 16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but both of
which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other party.
SECTION 17. Remedies. In addition to being entitled to exercise all
rights provided herein or granted by law, including recovery of damages, each of
the Purchasers will be entitled to specific performance of the obligations of
the Company under the Transaction Documents. The Company and each of the
Purchasers agree that monetary damages may not be adequate compensation for any
loss incurred by reason of any breach of the obligations under the Transaction
Documents and hereby agree to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be adequate.
SECTION 18. Confidentiality. Each Purchaser covenants and agrees to
use, and to use its best efforts to ensure that its authorized representatives
shall use, the same degree of care with
the Company's Confidential Information as such Purchaser uses to protect its own
financial, confidential and proprietary information. For purposes hereof,
"Confidential Information" includes all financial, confidential and proprietary
information which is provided to such Purchaser under this agreement or is
otherwise provided to such Purchaser and identified by the Company in writing to
such Purchaser as being of a confidential nature, but shall not include any
information which (i) was available to or in possession of such Purchaser or any
employees thereof or any beneficial owner of a partnership interest in such
Purchaser (collectively referred to herein as "Permitted Recipients") prior to
the time of disclosure to such Purchaser by the Company or its representatives,
(ii) is or becomes generally available to the public other than as a result of a
disclosure by any of such Permitted Recipients, or (iii) is or becomes available
to such Permitted Recipients on a nonconfidential basis by a third party which
is not bound by a confidentiality agreement with the Company. Notwithstanding
the preceding sentence, a Purchaser may (a) disclose such Confidential
Information when required by law or governmental order or regulation or when
required by a subpoena or other process, provided that such Purchaser shall use
reasonable efforts to give the Company prior written notice thereof with
sufficient time to seek a protective order or confidential treatment; (b)
disclose such Confidential Information to the extent necessary to enforce this
Agreement; and (c) disclose such Confidential Information to its attorneys,
accountants, consultants and other professionals, partners, members and
affiliates to the extent necessary to obtain their services in connection with
its investment in the Company, provided that the requirements of this Section 18
shall in turn be binding on any such attorney, accountant consultant, other
professional, partner, member or affiliate.
SECTION 19. Entire Agreement. This Agreement (including the
attachments hereto) contains the entire agreement of the parties with respect to
the subject matter hereof and supersedes and is in full substitution for any and
all prior oral or written agreements and understandings between them related to
such subject matter, and neither party hereto shall be liable or bound to the
other party hereto in any manner with respect to such subject matter by any
representations, indemnities, covenants or agreements except as specifically set
forth herein.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their duly authorized
representatives shown below:
ABLE LABORATORIES, INC.
By:
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Name:
----------------------------------
Title:
---------------------------------
PURCHASERS
------------------------------------
(PRINT NAME OF STOCKHOLDER EXACTLY AS IT
SHOULD APPEAR ON THE STOCK CERTIFICATE)
By:
------------------------------------
(SIGNATURE OF STOCKHOLDER OR REPRESENTATIVE,
IF AN ENTITY)
Name:
----------------------------------
Title:
---------------------------------
Tax ID number:
-------------------------
Address:
-------------------------------
-------------------------------
Facsimile:
-----------------------------
------------------------------------
(PRINT NAME OF STOCKHOLDER EXACTLY AS IT
SHOULD APPEAR ON THE STOCK CERTIFICATE)
By:
------------------------------------
(SIGNATURE OF STOCKHOLDER OR REPRESENTATIVE,
IF AN ENTITY)
Name:
----------------------------------
Title:
---------------------------------
Tax ID number:
-------------------------
Address:
-------------------------------
-------------------------------
Facsimile:
-----------------------------
