EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") has been entered into as of May
20, 1999, by and between Halter Capital Corporation, a Texas corporation (the
"Buyer") and Xxxxxx X.
Xxxxxxxx, a resident of Irvine, California (the "Seller").
RECITALS
A. On the Closing Date (as defined herein) Seller will be the legal and
equitable owner of 22,722,634 shares of the common stock, par value $.001 per
share, of Spectrum Pharmaceutical Corporation, a Florida corporation (the
"Company").
B. Seller is willing to sell to Buyer or its designees and Buyer or its
designees is willing to purchase from the Seller exactly 22,472,634 shares of
the Company's common stock (which represents approximately 90.2% of the issued
and outstanding shares of the Company's common stock) (the "Company Shares").
Buyer and Seller have agreed that Seller will retain 250,000 shares of the
Company's common stock.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the parties
hereto agree as follows:
1. Purchase of the Company Shares by the Buyer. Subject to and upon the
terms and conditions contained herein, on the Closing Date (as defined herein),
Seller shall sell, transfer, assign, convey and deliver to the Buyer or its
designees, free and clear of all adverse claims, security interests, liens,
claims and encumbrances (other than restrictions under state and federal
securities laws) and the Buyer or its designees shall purchase, accept and
acquire from the Seller, the Company Shares.
The aggregate purchase price payable to Seller for the Company Shares shall be
One Hundred Fifty Five Thousand Dollars ($155,000.00) (the "Purchase Price").
The Purchase Price shall be paid on the Closing Date by a wire transfer of
$155,000.00 in immediately available funds to or for the account of Seller.
2. Closing. Subject to the conditions precedent set forth herein, the
purchase of the Company Shares shall take place at the offices of the Buyer in
Dallas, Texas on a date which is mutually acceptable to the parties but on or
before June 2, 1999. Such date is herein referred to as the "Closing Date".
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3. Representations and Warranties of the Buyer. Buyer hereby represents
and warrants that the following are true and correct as of the date hereof and
will be true and correct through the Closing Date as if made on that date:
A. Authorization and Validity. The execution, delivery and
performance by the Buyer of this Agreement and the consummation of the
transaction contemplated hereby have been duly authorized by Buyer. This
Agreement has been duly executed and delivered by the Buyer and constitutes
legal, valid and binding obligations of Buyer, enforceable against the Buyer in
accordance with its respective terms, except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
B. Consents/Approvals/Conflict. Except for compliance with
applicable federal and state securities laws, no consent, approval,
authorization or order of any court or governmental agency or other body is
required for the Buyer to consummate the purchase of the Company Shares. Neither
the execution, delivery, consummation or performance of this Agreement shall
conflict with or constitute a breach of any agreement to which the Buyer is a
party or by which it is bound nor, to the best of Buyer's knowledge and belief,
any existing law, rule, regulation, or any decree of any court or governmental
department, agency, commission, board or bureau, domestic or foreign, having
jurisdiction over the Buyer.
C. Investment Intent. The Buyer is acquiring the Company
Shares for its own account for investment and not with a view to, or for sale or
other disposition in connection with, any distribution of all or any part
thereof, except (i) in an offering covered by a registration statement filed
with the Securities and Exchange Commission under the Securities Act covering
the Company Shares, or (ii) pursuant to an applicable exemption under the
Securities Act.
D. Disclosure of Information. Buyer acknowledges that it has
been furnished with sufficient information regarding the Company and its
business, assets, results of operations and financial condition to allow the
Buyer to make an informed decision regarding an investment in the Company
Shares.
E. Investment Experience. Buyer acknowledges that it is able
to fend for itself, can bear the economic risk of its investment in the Company
Shares, and has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of an investment in the
Company Shares. Buyer also acknowledges that it has reviewed the financial and
corporate records of the Company through the date of this Agreement and has
consulted with accountants and attorneys of its selection and received such
accounting and legal advice that it deems necessary to understand the economic
and legal significance of its investment in the Company.
F. Special Agreements Regarding Seller's Retained Shares.
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Buyer and Seller hereby agree to the following conditions that will apply for a
period of one year following the Closing Date (and will survive the Closing
Date) with respect to all of those shares of the Company's common stock which
the Seller then owns:
(1) If the Buyer causes any reverse split or splits of the Company's
common stock, the Buyer will take all steps necessary to insure that the
Seller's remaining shares after such split or splits are sufficient in number so
that Seller's total interest in the Company is not less than one percent (1%) of
the total number of shares then issued and outstanding.
(2) If the Buyer desires to sell control of the Company to any party,
the Buyer will not do so unless that new buyer agrees in a legally enforceable
agreement that in the event that the Company's common stock is subject to any
reverse split or splits by that buyer or by any of its successors in interest,
that the new buyer and all of its successors in interest will be legally bound
to take all steps necessary to insure that the Seller's remaining shares are
sufficient in number so that the Seller's total interest in the Company is not
less than one percent (1%) of the total number of shares then issued and
outstanding.
(3) The Buyer hereby agrees that in no case will the Seller be
obligated to draft or prepare any documents, legal filings or other instruments
relating to the subject matter of this Subsection 3.F.
(4) In consideration of the Buyer's agreements set forth above in this
Subsection 3. F., Seller hereby agrees that all of the shares of the Company's
common stock which he owns after the Closing Date shall be subject to a
restriction (which may be inserted on the face of his stock certificates) that
provides that the Seller may sell 35,000 shares immediately or at any time and
may sell an additional 25,000 shares in each thirty (30) day period that occurs
after the Closing Date. In the event of a reverse split, Seller will receive
stock certificates representing the additional shares that he is entitled to
receive pursuant to this Subsection 3.F. within two business days after such
reverse split is fully effective according to law.
4. Representations and Warranties of the Seller. The Seller represents
and warrants that the following are true and correct as of the date hereof and
will be true and correct through the Closing Date as if made on that date:
A. Title to Stock. On the Closing Date, the Seller will be the
sole equitable and legal owner of the Company Shares and will have full right,
power and authority to sell and convey the Company Shares and such shares will
be free and clear of any and all liens, mortgages, pledges, or other rights or
encumbrances whatsoever, disclosed or undisclosed. Specifically, on the Closing
Date there will be no beneficial owners of such shares or of any interest in or
to any such shares other than the Seller. Upon surrender of the certificates
representing the Company Shares (accompanied by appropriate stock powers duly
endorsed and guaranteed) to the Buyer for the consideration set forth herein,
the Buyer shall be deemed
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to have obtained good and merchantable title to the Company Shares.
B. Authorization and Validity. This Agreement has been duly
executed and delivered by the Seller and constitutes legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance with its
respective terms, except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally or the availability of
equitable remedies.
C. Consents/Approvals/Conflict. Except for compliance with
applicable federal and state securities laws, no consent, approval,
authorization or order of any court or governmental agency or other body is
required for the Seller to consummate the sale of the Company Shares. Neither
the execution, delivery, consummation or performance of this Agreement shall
conflict with or constitute a breach of any agreement to which the Seller is a
party or by which he is bound nor, to the best of the Seller's knowledge and
belief, any existing law, rule, regulation, or any decree of any court or
governmental department, agency, commission, board or bureau, domestic or
foreign, having jurisdiction over the Seller, nor result in the creation of any
lien or other encumbrance upon the Company Shares.
5. The Company's Affidavit. The Seller shall deliver to the Buyer a
duly executed affidavit, signed by the current President of the Company, Xxxxxx
X. Xxxxxxxx, in which the following representations and warranties are sworn or
affirmed as being true and correct as of the Closing Date.
A. Organization and Good Standing; Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of State of Florida, with all requisite corporate power and authority to
carry on the business in which it is engaged, to own the properties it owns, and
is duly qualified and licensed to do business and is in good standing in all
jurisdictions where the nature of its business makes such qualification
necessary.
B. Capitalization. As of the Closing Date for this Agreement,
the authorized capital stock of the Company consists of 25,000,000 shares of
common stock, par value $.001 per share, of which exactly 24,911,165 shares will
be issued and outstanding as a date before the Closing Date. All of the issued
and outstanding shares of common stock of the Company are duly authorized,
validly issued, fully paid and nonassessable. The Company is not a party to or
bound by, nor does it have any knowledge of, any agreement, instrument,
arrangement, contract, obligation, commitment or understanding of any character,
whether written or oral, express or implied, relating to the sale, assignment,
encumbrance, conveyance, transfer or delivery of any capital stock of the
Company except its obligation to issue 125,000 shares of common stock to Xxxxx
X. Xxxxxx, Xx. pursuant to a Consulting Agreement dated April 13, 1999.
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C. Documents Genuine. All originals and/or copies of the
Company's articles of incorporation and bylaws, each as amended to the date of
this Agreement, and all minutes of meetings and written consents in lieu of
meetings of shareholders, the Board of Directors and committees of that Board,
of the Company, filings with the Securities and Exchange Commission, financial
data, and any and all other documents, material, data, files, or information
which have been or will be furnished to Seller, are true, complete, correct and
unmodified originals and/or copies of such documents, information, data, files
or material.
D. Restrictive Covenants. Prior to the Closing Date, the
Company shall conduct its business in the ordinary and usual course (without any
unusual commitments) and in compliance with all applicable laws, rules, and
regulations. Furthermore, the Company will not: (i) make any changes in its
capital structure; (ii ) make any changes in its articles of incorporation or
bylaws; (iii) incur any liability or obligation other than current liabilities
incurred in the ordinary and usual course of business; (iv) incur any
indebtedness for borrowed money, (v) make any loans or advances to any persons
or legal entities; (vi) declare or pay any dividend or make any other
distribution with respect to its capital stock; (vii) issue (except pursuant to
a Form S-8 approved by the Buyer), sell, or deliver or purchase or otherwise
acquire for value any of its stock or other securities; (viii) mortgage, pledge,
or subject to encumbrance any of its assets or properties; (ix) sell or transfer
any of its assets or properties (except the transfer of a patent owned by the
Company in satisfaction of a pending lawsuit); (x) make any investment of a
capital nature; (xi) enter into any contract, agreement, or other commitment
which is material to the business, assets, properties or financial position of
the Company; (xii) issue any options or other instruments enabling anyone to
purchase any of the capital stock of the Company; or (xiii) pay any cash
compensation to any person.
E. Financial Statements. The Seller has already caused the
Company to furnish to the Buyer the Company's audited balance sheet, statements
of income and retained earnings, statements of cash flows, and notes to the
financial statements relevant thereto, as of and for the fiscal year ending
March 31, 1999 which have been prepared by a certified public accountant
acceptable to both the Buyer and Seller. Said financial statements accurately
reflects the then current assets and liabilities of the Company and has been
prepared in accordance with generally accepted accounting principles. The
Company has not entered into or incurred any type of indebtedness or conducted
any kind of business whatsoever since March 31, 1999 (except to settle the
Xxxxxxx lawsuit described in Subsection H. of this Section) and the financial
statements delivered to Seller will accurately reflect the financial condition
of the Company in all material respects as of the Closing Date.
F. Taxes. All income, excise, unemployment, social security,
occupational, franchise and any and all other taxes, duties, assessments or
charges levied, assessed or imposed upon the Company by the United States or by
any state or municipal government or subdivision or instrumentality thereof
which are due and payable as of the Closing Date have been duly paid and all
required tax returns or reports concerning any such items have been duly filed.
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G. Guarantees or Indebtedness to Affiliates. There are no
contracts or commitments by the Company, directly or indirectly, guaranteeing
the payment or performance (or both) of any obligations of any third person or
entity whatsoever including any of the Company's officers, directors, employees
or shareholders. Further, the Company will not be indebted to any of its
officers, directors, employees, or shareholders as of the Closing Date.
H. Pending or Threatened Litigation. Except as disclosed
herein, there are no actions, governmental investigations, suits, arbitrations
or other administrative, criminal or civil actions pending or threatened against
the Company. As of the date of the execution of this Agreement there is pending
in the 15th Judicial District Court for Palm Beach County, Florida a lawsuit
which was filed against the Company by Xxxxx Xxxxxxx (this lawsuit is in the
process of being settled and it is anticipated that the settlement will be
finalized before the Closing Date). In addition, to the best of the Company's
knowledge, the Company does not know of any basis that exists for any such
action, suit, investigation, arbitration or proceeding.
I. Contracts. There are no contracts, agreements,
arrangements or understandings entered into by the Company which cannot be
terminated by the Company upon 30 days written notice to the other party or
parties to such contracts or agreements.
6. Conditions to Obligations of Buyer. All obligations of Buyer under
this Agreement are subject to the fulfillment, prior to or on the Closing Date,
of each of the following conditions (any one or more of which may, in the
Buyer's absolute discretion, be waived by the Buyer):
A. Documents to be Delivered before Closing Date: Prior to
the Closing the Seller shall deliver the following to the Buyer:
(i) Copy of a signed agreement between Xxxxxxx Xxxxxxxx and Seller
whereby Xxxxxxx Xxxxxxxx acknowledges that any claim that he may have that he is
the owner of a valid stock option granted by the Company has been canceled or
extinguished;
(ii) Written proof that the lawsuit filed by Xxxxx Xxxxxxx against the
Company in Palm Beach County, Florida has been dismissed with prejudice;
(iii) Copy of the last federal income tax return filed by the Company;
(iv) Written proof that the Seller has forgiven all of the Company's
indebtedness or other obligations to him under an Employment Agreement dated
June 20, 1992;
(v) Copy of a registration statement on Form S-8 as prepared by Buyer's
counsel and signed by the Company's President, duly filed with the Securities
and Exchange Commission, whereby the Company has issued 18,000,000 shares of its
common stock to the Seller in lieu of
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$18,000 of fees which would have otherwise been due and owing to the Seller for
various services which he rendered in the past for the benefit of the Company;
and
(vi) All original corporate books and records, including the Company's
articles of incorporation and bylaws, minutes of meetings of the shareholders
and the Board of Directors of the Company, all contracts which are currently in
effect or otherwise binding upon the Company, and any other document or
instrument which in the opinion of Buyer is necessary or appropriate to properly
continue the business and corporate status of the Company, as well as the
Company's corporate seal.
B. Documents to be Delivered at Closing. At the Closing, the
Seller shall deliver the following to the Buyer:
(i) Stock certificate(s) representing the Company Shares, which are to
be delivered pursuant to this Agreement, accompanied by duly executed stock
powers bearing the registered owner's signature which shall be subject to a
Medallion Guarantee;
(ii) A certificate executed by the Seller, dated the Closing Date,
certifying that the representations and warranties of the Seller contained in
this Agreement are then true in all respects and that the Seller has complied
with all agreements and conditions required by this Agreement to be performed or
complied with by him.
(iii) The Company's affidavit, as described in Section 5, above, duly
executed by the President of the Company; and
(iv) Resignations from all of the Company's officers and directors, and
a certificate of the Company setting forth the Board resolution pursuant to
which new directors have been elected for the Company, dated the Closing Date,
electing those persons designated by the Buyer, as directors of the Company.
7. Conditions to Obligations of Seller. All obligations of Seller under
this Agreement are subject to the fulfillment, prior to or on the Closing Date,
of each of the following conditions (any one or more of which may, in the
absolute discretion of the Seller, be waived by the Seller):
A. Documents to be Delivered to the Seller. At the Closing,
the following documents shall be delivered to the Seller:
A certificate executed by the Buyer, dated the Closing Date,
certifying that:
(A) The representations and warranties of Seller contained in
this Agreement are then true in all respects; and
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(B) Seller has complied with all agreements and conditions
required by this Agreement to be performed or complied with by it.
B. Payment of the Purchase Price. The Purchase Price shall
have been paid on the Closing Date by a wire transfer of $155,000.00 in
immediately available funds to the Seller's bank for the Seller's account.
8. Miscellaneous.
A. Amendment. This Agreement may be amended, supplemented or
modified only by an instrument in writing executed by all the parties hereto.
B. Assignment. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto without the written
consent of the party not seeking assignment.
C. Parties In Interest; No Third Party Beneficiaries. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other Agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
D. Entire Agreement. Except as referred herein, this Agreement
and the agreements contemplated hereby constitute the entire agreement of the
parties regarding the subject matter hereof, and supersede all prior agreements
and understandings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof.
E. Severability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
F. Survival of Representations, Warranties and Covenants. The
representations, warranties, covenants and special agreements contained herein
shall survive the
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Closing and all statements contained in any certificate, exhibit or other
instrument delivered by or on behalf of Seller, the Company or the Seller, as
the case may be, and, notwithstanding any provision in this Agreement to the
contrary, shall survive the Closing.
G. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. IF EITHER PARTY
SHALL BE REQUIRED TO EMPLOY AN ATTORNEY TO ENFORCE OR DEFEND ITS RIGHTS
HEREUNDER, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS REASONABLE
ATTORNEY'S FEES.
H. Captions. The captions in this agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
I. References to this Agreement. Use of the words "herein",
"hereof", "hereto" and the like in this Agreement shall be construed as
references to this Agreement as a whole and not to any particular Article,
Section or provision in this Agreement, unless otherwise noted.
J. Notice. Any notice or communication which may be given
hereunder shall be in writing and given by depositing the same in the mail,
addressed to the party to be notified, postage prepaid and certified with return
receipt requested, or by delivery by prepaid telegram. Such notice shall be
deemed received on the date on which it is delivered or on the fourth business
day following the date on which it was mailed. For purposes of notice, the
addresses of the parties shall be:
If to the Buyer: Halter Capital Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to Seller: Xxxxxx X. Xxxxxxxx
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
K. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. Execution and delivery of
facsimile copies bearing the facsimile signature of a party shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
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L. Further Assurances. From time to time subsequent to the
execution of this Agreement, the parties hereto and each of them agree to take
all such further action, and to execute and deliver all such additional
documents, as are reasonably necessary to effect the transactions contemplated
by this Agreement.
M. Consulting Agreement. The parties hereto have agreed that
the transaction to be consummated pursuant to this Agreement does NOT entitle
Xxxxx X. Xxxxxx, Xx. to receive a fee pursuant to Section 9 of the Consulting
Agreement dated April 13, 1999 by and among Xxxxx X. Xxxxxx, Xx., as a
consultant, Spectrum Pharmaceutical Corporation and Xxxxxx Xxxxxxxx. To evidence
his consent to the agreement set forth in this Section M, and for no other
purpose, Xxxxx X. Xxxxxx, Xx. has signed this Agreement below.
Seller:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Buyer: Halter Capital Corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------------------
Xxxxx X. Xxxxxx, Xx., Vice President
For the limited purposes set forth in Section 8. M. above.
/s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxx X. Xxxxxx, Xx., individually
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