EXHIBIT 4.3
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is dated this 18th
day of September, 2000, to be effective as of August 9, 2000, between BioSource
International, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxx
("Purchaser").
WHEREAS, the Company and Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 under Regulation D as promulgated by the United States Securities
and Exchange Commission (the "Commission") under Section 4(2) of the Securities
Act of 1933, as amended (the "Securities Act"); and
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Company desires to issue and sell to Purchaser, and Purchaser desires to
acquire from the Company, 40,000 shares of the Company's Common Stock, par value
$ 0.001 per share (the "Common Stock"), at a price of $15.00 per share.
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements hereinafter contained, the Company and Purchaser hereby agree as
follows:
ARTICLE I.
PURCHASE AND SALE OF THE SHARES
1.1 PURCHASE AND SALE. Subject to the terms and conditions set forth
herein, the Company shall issue and sell to Purchaser, and Purchaser shall
purchase from the Company on the Closing Date (as defined below), 40,000 shares
of Common Stock (the "Shares"), at a price per Share of $15.00.
1.2 CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at the offices of Troop Xxxxxxx Pasich Reddick &
Xxxxx, LLP, 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, 00000,
or by transmission by facsimile and overnight courier, on September 18, 2000, or
at such later date or different location as the parties shall agree (the
"Closing Date"). At the Closing:
(a) Purchaser shall deliver, as directed by the Company, an aggregate
payment of $600,000 in United States dollars (the "Purchase Price") in
immediately available funds to an account or accounts designated in writing by
the Company; and
(b) The Company shall instruct its transfer agent to immediately
deliver to Purchaser a stock certificate or certificates, in definitive form,
registered in the name of Purchaser, representing the Shares.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
hereby makes the following representations and warranties to Purchaser:
(a) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with the requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently conducted.
(b) AUTHORIZATION, VALIDITY AND ISSUANCE OF SHARES. The Company has
the requisite corporate power and authority to enter into and perform its
obligations under this Agreement and to issue and sell the Shares in accordance
with the terms hereof. The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated hereby
(including, without limitation, the issuance of the Shares) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors or its stockholders is
required, and the Company has duly executed and delivered this Agreement. This
Agreement constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity). The Shares are and at all times will
hereafter continue to be duly authorized. Upon receipt by the Company of the
Purchase Price, the Shares will be validly issued, fully paid and
non-assessable, free and clear of all taxes, liens, claims, encumbrances and
Company rights of first refusal, other than taxes, liens, claims and
encumbrances created by Purchaser and will not be subject to any preemptive
rights, rights of first refusal or other similar rights of stockholders of the
Company and will not impose personal liability on the holder thereof.
(c) CAPITALIZATION. The capitalization of the Company as of the date
hereof is set forth on Schedule 2(c), including the authorized capital stock,
the number of shares issued and outstanding, the number of shares issuable and
reserved for issuance pursuant to the Company's stock option plans, the number
of shares issuable and reserved for issuance pursuant to securities exercisable
for, or convertible into or exchangeable for any shares of capital stock. All of
such outstanding shares of the Company's capital stock have been, or upon
issuance will be, validly issued, fully paid and nonassessable. Except as set
forth on Schedule 2(c), no shares of capital stock of the Company (including the
Shares) are subject to preemptive rights or any other similar rights of the
shareholders of the Company or any liens or encumbrances. Except for the Shares
and as disclosed in Schedule 2(c), as of the date of this Agreement, (i) there
are no outstanding securities, options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever to which the Company is a party
relating to the issuance by the Company of securities or rights convertible into
or exercisable or exchangeable for, any shares of capital stock of the Company,
or arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company, and (ii) there are no agreements or
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arrangements under which the Company is obligated to register the sale of any of
its securities under the Securities Act.
(d) ACKNOWLEDGMENT REGARDING THE PURCHASER'S PURCHASE OF THE
SECURITIES. The Company acknowledges and agrees that Purchaser is not acting as
a financial advisor or acting as a fiduciary of the Company (or in any similar
capacity) with respect to this Agreement or the transactions contemplated
hereby, and the relationship between the Company and Purchaser is "arms length"
and that any statement made by Purchaser or any of its representatives or agents
in connection with this Agreement and the transactions contemplated hereby is
not advice or a recommendation and is merely incidental to Purchaser's purchase
of the Shares and has not been relied upon by the Company, its officers or
directors in any way. The Company further represents to Purchaser that the
Company's decision to enter into this Agreement has been based solely on an
independent evaluation by the Company and its representatives.
(e) PRIVATE OFFERING; SOLICITATION. The Company and all Persons acting
on its behalf have not (i) made, directly or indirectly, and will not make,
offers or sales of any securities or solicited any offers to buy any security
under circumstances that would require registration of the Shares or the
issuance of such securities under the Securities Act, (ii) distributed any
offering materials in connection with the offering and sale of the Shares, any
amendments and any supplements thereto, or (iii) solicited any offer to buy or
sell the Shares by means of any form of general solicitation or advertising (as
those terms are used in Rule 502(c) of Regulation D under the Exchange Act) in a
manner which would require registration under the Securities Act. Subject to the
accuracy and completeness of the representations and warranties of Purchaser
contained in Section 2.2 hereof, the offer, issuance and sale by the Company to
Purchaser of the Shares is exempt from the registration requirements of the
Securities Act.
2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to the Company as follows:
(a) AUTHORITY. This Agreement has been duly executed and delivered by
Purchaser and constitutes the valid and legally binding obligations of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application, and except that rights to
indemnification and contribution may be limited by federal or state securities
laws or public policy relating thereto.
(b) INVESTMENT INTENT. Purchaser is acquiring the Shares for its own
account and not with a present view to or for distributing or reselling the
Shares or any part thereof or interest therein in violation of the Securities
Act; provided, however, that by making the representations herein, Purchaser
does not agree to hold any of the Shares for any minimum or other specific term
and reserves the right to dispose of the Shares at any time in accordance with
or pursuant to a registration statement or an exemption under the Securities
Act.
(c) PURCHASER STATUS. At the time Purchaser was offered the Shares and
at the Closing Date, (i) it was and will be an "accredited investor" as defined
in Rule 501 under the Securities Act and (ii) Purchaser, either alone or
together with its representatives, had and xxxx
Xxxx 3
have such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Shares.
(d) RELIANCE. Purchaser understands and acknowledges that (i) the
Shares are being offered and sold to Purchaser without registration under the
Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act under Section 4(2) of the Securities Act or
Regulation D promulgated thereunder and (ii) the availability of such exemption
depends in part on, and the Company will rely upon the accuracy and truthfulness
of, the representations set forth in this Section 2.2 and Purchaser hereby
consents to such reliance.
(e) INFORMATION. Purchaser and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Shares which
have been requested by Purchaser or its advisors. Purchaser and its advisors, if
any, have been afforded the opportunity to ask questions of the Company.
Purchaser understands that its investment in the Shares involves a significant
degree of risk, including the risk of a total loss of investment.
(f) GOVERNMENTAL REVIEW. Purchaser understands that no United
States federal or state agency or any other government or governmental agency or
authority has passed upon or made any recommendation or endorsement of the
Shares.
(g) OTHER AGREEMENTS. Purchaser has not, directly or indirectly, made
any agreements with the Company relating to the terms and conditions of the
transactions contemplated by this Agreement except for the Investor Rights
Agreement and as otherwise set forth in this Agreement.
The Company acknowledges and agrees that Purchaser makes no
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 2.2. Purchaser
acknowledges and agrees that the Company makes no representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth in Section 2.1 hereof.
ARTICLE III.
OTHER AGREEMENTS
3.1 TRANSFER RESTRICTIONS; LEGEND.
(a) TRANSFER RESTRICTIONS. Purchaser understands that (i) except as
provided in the Investor Rights Agreement, the Shares have not been and are not
being registered under the Securities Act or any state securities laws, and may
not be transferred unless (A) subsequently registered thereunder, or (B)
Purchaser shall have delivered to the Company an opinion of counsel reasonably
acceptable to the Company (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect that
the Shares to be sold or transferred may be sold or transferred under an
exemption from such registration, or (C) sold under Rule 144 promulgated under
the Securities Act (or a successor rule), or (D) sold or transferred to an
affiliate of Purchaser pursuant to an exemption under the Securities Act; and
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(ii) neither the Company nor any other person is under any obligation to
register such Shares under the Securities Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder, in each case,
other than pursuant to the Investor Rights Agreement.
(b) LEGEND. Purchaser understands that the Shares and, until such time
as the Shares have been registered under the Securities Act as contemplated by
the Investor Rights Agreement or otherwise may be sold by the Purchaser under
Rule 144, the certificates for the Shares, may bear a restrictive legend in
substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state of the United States. The securities
represented hereby may not be offered or sold in the absence of an
effective registration statement for the securities under applicable
securities laws unless offered, sold or transferred under an available
exemption from the registration requirements of those laws.
The legend set forth above shall be removed and the Company shalL
issue a certificate without such legend to the holder of any Shares upon which
it is stamped, if (i) the sale of such Shares is registered under the Securities
Act or (ii) in connection with the resale of such Shares, such holder provides
the Company with an opinion of counsel, in form, substance and scope customary
for opinions of counsel in comparable transactions, or a "no action" letter from
the staff of the SEC, in either case to the effect that a public sale or
transfer of such Shares may be made without registration under the Securities
Act or (iii) when such Shares may be sold by a person who is not an "affiliate"
of the Company under Rule 144(k). Purchaser agrees to sell all Shares, including
those represented by a certificate(s) from which the legend has been removed,
pursuant to an effective registration statement or under an exemption from the
registration requirements of the Securities Act.
3.2 REGISTRATION RIGHTS PURSUANT TO THE INVESTOR RIGHTS AGREEMENT. Each of
the Company and Purchaser hereby agrees that the Shares shall constitute
"Registrable Securities" as that term is defined in the Investor Rights
Agreement, that the Shares shall be subject to the terms of the Investor Rights
Agreement in all respects and that Purchaser shall be entitled to all of the
rights, benefits and privileges under the Investor Rights Agreement with respect
to the Shares, and the parties agree to cause the Investor Rights Agreement to
be amended to reflect such agreement.
ARTICLE IV.
MISCELLANEOUS
4.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the purchase and sale of the Shares, supersedes all
prior agreements and understandings, oral or written, with respect to such
matters, including without limitation, that certain letter agreement dated
August 2, 2000.
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4.2 NOTICES. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally, (ii) upon receipt, when sent by facsimile, provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party (if received by or before 5:30 p.m. where such
notice is received) or the first (1st) business day following such delivery (if
received after 5:30 p.m. where such notice is received) or (iii) one (1)
business day after deposit with a nationally recognized overnight courier, in
each case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
(i) If to the Company:
BioSource International, Inc.
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Troop Xxxxxxx Pasich Reddick & Xxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) If to Purchaser, to:
Xxxxxxx X. Xxxx
0 Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Each party shall provide written notice to the other parties of any change in
address or facsimile number in accordance with the provisions hereof.
4.3 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
both the Company and Purchaser or, in the case of a waiver, by the party against
whom a waiver of any such provision is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
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4.4 HEADINGS. The titles and headings contained herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
4.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns.
4.6 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
4.7 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of California without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the nonexclusive jurisdiction of the State or Federal
courts sitting in the County of Los Angeles for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, or that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
4.8 SURVIVAL. The representations and warranties of the Company and
Purchaser contained in Sections 2.1 and 2.2 and the agreements and covenants set
forth in Article III, shall survive the Closing and any sale of the Shares
regardless of any investigation made by or on behalf of Purchaser or by or on
behalf of the Company, except that, in the case of representations and
warranties such survival shall be limited to the period of one (1) year
following the Closing Date on which they were made or deemed to have been made
(other than with respect to any claim by a third party against the party to this
Agreement who seeks to assert a claim based on such representations and
warranties).
4.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other parties, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
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4.10 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
4.11 FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other parties may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
4.12 FEES AND EXPENSES. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized persons as
of the date first indicated above.
BIOSOURCE INTERNATIONAL, INC.
By: /S/ XXXXX XXXXXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxxxxx
President and Chief Executive Officer
/S/ XXXXXXX X. XXXX
-----------------------------------------
Xxxxxxx X. Xxxx
