EXHIBIT 10.36
FORM OF STOCK PURCHASE AGREEMENT
BETWEEN THE COMPANY AND THE SHAREHOLDERS
IDENTIFIED ON THE ATTACHED SCHEDULE
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made effective as of
March 28, 1998 by and between_________________________________________
(Shareholder"); Ontro, Inc., a California Corporation (the "Company" or
"Ontro"); and Insta-Heat, Inc., a California corporation ("IHI").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE OF IHI STOCK.
1.1 OWNERSHIP OF IHI STOCK. Shareholder is the beneficial owner
of _______________ common shares of IHI. Subject to the terms and conditions
of this Agreement, Shareholder agrees to sell all of his or her IHI shares to
Ontro for $25.00 per share (the "Purchase Price"). Shareholder hereby
authorizes the custodian of the shares, L. Xxxxx Xxxxx, Esq., to deliver to
Ontro all of his or her IHI shares and agrees to accept the Purchase Price as
payment in full therefore.
1.2 CLOSING. The purchase and sale of the IHI shares shall take
place at the offices of the Company or at such other place as Ontro, IHI and
Shareholder mutually agree upon, verbally or in writing (which time and place
are designated as the "Closing"). The Closing shall take place on the
earlier to occur of (i) fifteen (15) days after the closing of an initial
public offering of Ontro's common stock; or (ii) six (6) months from the date
of this Agreement. At the Closing, Xx. Xxxxx shall deliver to Ontro the
share certificate(s) representing the IHI shares to be sold, and
Shareholder's duly endorsed stock power. Ontro shall deliver a check in the
amount of the Purchase Price payable to the Shareholder. The Closing may take
place via the U.S. mail or other mail courier service if agreed to by the
parties.
2. TERMINATION OF LICENSE AGREEMENT.
2.1 Shareholder hereby consents and agrees to the termination of
the License Agreement between Insta-Heat, Inc. and Ontro, Inc.
3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. This Agreement is
made with Shareholder in reliance upon Shareholder's representations and
warranties to Ontro and to IHI, which by Shareholder's execution of this
Agreement Shareholder hereby confirms, that:
3.1 AUTHORIZATION. This Agreement constitutes Shareholder's
valid and legally binding obligation, enforceable in accordance with its
terms.
3.2 DISCLOSURE OF INFORMATION. Shareholder believes he or she
has received all the information regarding Ontro and IHI, he or she considers
material or desirable in order to decide to sell
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his or her shares of IHI to Ontro. Shareholder further represents that he or
she has had an opportunity to ask questions and receive answers from IHI
regarding Ontro, its business and the terms and conditions of this transfer,
and has had the opportunity to consult with his/her attorney, tax and
investment advisors, and other advisors, has access to such counsel and
advisors and has sought and received such advice and counsel to the extent
desired.
3.3 CONFIDENTIALITY. Shareholder hereby represents, warrants
and covenants that he or she shall maintain in confidence, and shall not use
or disclose without the prior written consent of Ontro, any information about
Ontro furnished to him or her by Ontro, or by IHI whether or not such
information was acquired or disclosed in connection with this Agreement.
This obligation of confidentiality shall not apply, however, to any
information (a) in the public domain through no unauthorized act or failure
to act by Shareholder, or (b) lawfully disclosed to Shareholder by a third
party who possessed such information without any obligation of
confidentiality.
3.4 ADVICE OF PROFESSIONALS. The undersigned has carefully
considered and has been advised by Ontro to have any material provided by
anyone regarding Ontro including but not limited to this Agreement, related
documents and the shares hereunder reviewed by his or her legal counsel prior
to such sale, and to discuss with his or her professional tax and financial
advisors the consequences of the sale of the shares hereunder for his or her
particular tax and financial situation, and he or she has determined to sell
his or her shares. Ontro specifically disclaims any representations regarding
the legal, tax, or financial consequences of the sale.
3.5 NO ENCUMBRANCES. The undersigned represents there are no
liens, encumbrances or security interests granted to third parties with
respect to the shares, and the shares may be transferred to Ontro free of any
prior sale, transfer, hypothecation or encumbrance.
3.6 AUTHORITY. If this Agreement is executed and delivered on
behalf of a partnership, corporation, trust, estate or other entity, (i) the
undersigned's execution, delivery and performance of and under this
Agreement, and all documents ancillary hereto, and the consummation of the
transactions contemplated hereby and thereby have been duly authorized, and
the undersigned is duly authorized (a) to execute and deliver this Agreement
and all other instruments executed and delivered on behalf of such
partnership, corporation, trust, estate or other entity, in connection with
the sale of the shares hereunder; and (b) when executed and delivered by
Shareholder this Agreement will constitute such partnership's, corporation's,
trust's, estate's or other entity's legal, valid and binding obligation
enforceable against it in accordance with its terms.
3.7 LEGENDS. It is understood by Ontro that the certificates
evidencing the shares may bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO INSTA-HEAT, INC. THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT."
(b) Any legend required by the laws of the State of
California or other jurisdiction, including any legend required by the
California Department of Corporations and section 417 and 418 of the
California Corporations Code.
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3.8 REMOVAL OF LEGENDS; FURTHER COVENANTS.
(a) Any legend endorsed on a certificate pursuant to
Section 3.7 hereof shall be removed (i) if the shares represented by such
certificate shall have been effectively registered under the Securities Act
or otherwise lawfully sold in a public transaction, (ii) if the shares may be
transferred in compliance with Rule 144(k) promulgated under the Securities
Act, or (iii) if Ontro shall have provided Insta-Heat with an opinion of
counsel, in form and substance acceptable to Insta-Heat and its counsel in
their sole discretion and from attorneys reasonably acceptable to Insta-Heat
and its counsel, stating that a public sale, transfer or assignment of the
shares may be made without registration.
(b) Ontro further covenants that Ontro will not transfer
the shares in violation of the Securities Act, the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"), or the rules of the Commission
promulgated thereunder, including Rule 144 under the Securities Act.
3.9 ACKNOWLEDGMENT. The undersigned acknowledges he/she
understands the meaning and legal consequences of the representations and
warranties contained in this Agreement, and the undersigned hereby agrees
IHI, Ontro and each officer, director, employee, agent, legal counsel and
controlling person of Ontro and IHI, past, present or future, may rely on
each such representation and warranty.
3.10 NON-TRANSFERABILITY. Neither this Agreement, nor any of
your interests herein, shall be assignable or transferable by the undersigned
in whole or in part except by operation of law.
3.11 SURVIVAL. The foregoing representations and warranties
shall be true and accurate as of the date of the acceptance hereof by Ontro
and shall survive the execution and delivery of this Agreement and the
delivery of the shares thereafter.
3.12 INDEMNIFICATION. The undersigned shall indemnify and hold
harmless Ontro and IHI who was or is made a party, or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of or arising from any actual or alleged misrepresentation or
misstatement of facts or omission to represent or state facts made by the
undersigned to IHI or Ontro concerning himself/herself which is not remedied
by timely notice to Ontro and IHI against losses, liabilities and expenses
for which Ontro or IHI or any of their respective employees, agents, or
legal counsel which have not otherwise been reimbursed (including attorneys'
fees, judgments, fines and amounts paid in settlement) as actually and
reasonably incurred by such person or entity in connection with such action,
suit or proceeding.
3.13 DUE EXECUTION. The undersigned agrees to execute this
Agreement and the stock power attached hereto as Exhibit "A" in full and
acknowledges the receipt and acceptance by Ontro of such Agreement and stock
power shall be a condition precedent to the delivery of the Purchase Price.
4. CALIFORNIA CORPORATE SECURITIES LAW. THE TRANSFER OF THE SHARES OF
COMMON STOCK WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH COMMON STOCK OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE
SALE OF COMMON STOCK IS EXEMPT FROM QUALIFICATION BY SECTIONS 25100, 25102 OR
25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL
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PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION
BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
5. MISCELLANEOUS.
5.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of Shareholder contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Closing.
5.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding on the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assignees any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
5.3 GOVERNING LAW, VENUE. This Agreement shall be governed by
and construed under the laws of the State of California, irrespective of its
choice of law principles. Venue for any action brought in connection with
the subject matters of this Agreement shall be in a court of competent
jurisdiction located in San Diego County, California.
5.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.6 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or, if
sent by telex or telecopier, upon receipt of the correct answer back, or upon
deposit with the United States Post Office, by registered or certified mail,
or upon deposit with an overnight air courier, in each case postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party
may designate by 10 days' advance written notice to the other parties.
5.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in particular instance and whether retroactively or
prospectively), only with the written consent of Ontro, IHI and Shareholder.
5.8 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ONTRO, INC. SHAREHOLDER:
A CALIFORNIA CORPORATION
By: _______________________________ _____________________________
Xxxxx X. Xxxxxxx, President Signature
______________________________
Name Printed
______________________________
Signature of Joint Shareholder
______________________________
Name Printed
IHI:
INSTA-HEAT, INC.
A CALIFORNIA CORPORATION
BY:_____________________________
Xxxxx X. Xxxxxxxx, Vice President
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Exhibit "A"
STOCK POWER
FOR VALUE RECEIVED, THE UNDERSIGNED DOES (do) HEREBY SELL, ASSIGN AND
TRANSFER TO ______________________________________________________,
_____________________________SHARES OF THE COMMON STOCK INSTA-HEAT, INC.,
REPRESENTED BY CERTIFICATE(s) NUMBERED _______________________, INCLUSIVE,
STANDING IN THE NAME OF THE UNDERSIGNED ON THE BOOKS OF SAID COMPANY.
THE UNDERSIGNED DOES (DO) HEREBY IRREVOCABLY CONSTITUTE AND APPOINT
____________________________ ATTORNEY TO TRANSFER THE SAID STOCK ON THE BOOKS
OF SAID COMPANY, WITH FULL POWER OF SUBSTITUTION IN THE PREMISES.
_____________________________ ____________________
SIGNATURE OF SHAREHOLDER DATE
_____________________________ ____________________
JOINT SHAREHOLDER SIGNATURE DATE
IMPORTANT - READ CAREFULLY:
THE SIGNATURE(S) TO THIS POWER MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE(S) IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
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Exchange Agreement
Page 7
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SCHEDULE "A"
L. Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxxxx Trust
Xxxxxxx Trust
XxXxx Trust
Xxxxx Xxxx
Yale Xxxxxx
Xxxxxx Colt
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xx Xxxxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx
Xxxx Xxxxxxxx
Kadane Trust
Xxxxx Xxxx
Xxxxxxx Xxxxxxx
