1
Exhibit 10.10
XXXXX XXXXXXX AND VARIOUS
ENTITIES
May 27, 1999
LIFE SCIENCES, INC.
Attn.: Xxxx X. Xxxxx
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Re: Investment Representations and Agreements - Life Sciences, Inc.
Gentlemen:
This letter sets forth the individual representations, warranties and
acknowledgements of the individual and of each of the entities listed in the
table below (collectively referred to hereinafter as "we", "us", "our" and
similar terms) to Life Sciences, Inc., a Delaware corporation ("LSI", "you" or
the "Company"), and our related individual covenants and agreements with you,
all in connection with the offer to purchase from you shares of common stock,
$.10 par value per share, of LSI (the "Common Stock"), at $.405 per share(1) as
the means of liquidating your individual indebtedness to each of us.
As of the close of business yesterday, May 26, 19992, you were
indebted to us as set forth in the following table, all of which amounts are
due by you in connection with one or more separate loans of money by us to the
Company as reflected in your books and records.
Interest and
Other Charges
Principal (collectively, the
Creditor Name Total Amount ("Principal") "Other Charges")(2)
------------- ------------ ------------- -------------------
Xxxxx Mfgering Corp. $184,530.57 $107,071.31 $ 77,459.26
Industrial Renting Corp. 30,731.17 20,000.00 10,731.17
Continental Salvage Corp. 30,364.74 20,000.00 10,364.74
Xxxxx Xxxxxxx 35,427.95 15,000.00 20,427.95
Xxxxxx Investing Corp. 380,566.56 313,653.63 66,912.93
S&S Machinery Corp. 76,045.81 50,104.45 25,941.36
Apex Organization, Inc. 23,022.39 18,000.00 5,022.39
----------- ----------- -----------
TOTALS $760,689.19 $543,829.39 $216,859.80
During his current visit to Florida, Xxxxx Xxxxxxx has, for himself,
individually, and as an authorized officer of each of the entities named in the
foregoing table (the "Entities") reached agreement with you, and upon
acceptance by you of this letter (this "Investment Representation Letter" or
this "Letter") it shall evidence the agreement between you and us, that the
individual amounts of Principal shall be paid and discharged by the sale and
issuance by you, in a private offering to us, of shares of Common Stock at
$.405
---------------
(1) This amount is the approximate mean between the last available reported
bid and ask prices of the Common Stock in the over-the-counter market
prior to the date hereof.
(2) Interest included in the table is calculated through May 31, 1999, the
five additional days being immaterial under the circumstances. It is
understood that late payment charges were never booked by the Company;
only interest amounts were booked by the Company.
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per share, and that the Other Charges shall be forgiven and extinguished upon
the date of your acceptance of this Letter without any further act or deed by
you or any of us. This would result as of the date of this Letter in the sale
and issuance to us of an aggregate of 1,342,785 whole shares (rounded down in
calculation) of Common Stock (the "Shares"), which individual amounts of Shares
we individually hereby subscribe for and agree to purchase:
Issuee-Creditor Name EIN/SS No. Number of Shares
-------------------- ---------- ----------------
Xxxxx Manufacturing Corp. 00-0000000 264,373
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Industrial Renting Corp. 00-0000000 49,382
000-00xx Xxxxxx
Xxxxxxxx, XX 00000
Continental Salvage Corp. 00-0000000 49,382
Xxxxx Xxxxxxx ###-##-#### 37,037
Xxxxxx Investing Corp. 00-0000000 774,453
S&S Machinery Corp. 00-0000000 123,714
Apex Organization, Inc. 00-0000000 44,444
-------
TOTAL SHARES 1,342,785
It is in this context that we provide you with this Letter as an
inducement to your sale of the Shares to us, and each of us intend and realize
that the Company and its agents and representatives will rely on our individual
representations, warranties, acknowledgements, covenants and agreements set
forth in this Letter in connection with the sale to us of the Shares. We each
understand that reliance will also be placed on the accuracy and completeness
hereof in complying with the obligations of applicable securities laws, and
that failure to comply with those obligations may have significant legal
consequences.
(1) Representations, Etc. Therefore, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the preceding portions of this Letter is incorporated herein by this
reference, and we each for ourselves individually (severally, and not jointly
and severally) represent, warrant, acknowledge, covenant and agree as follows:
(a) Except as otherwise set forth in the immediately preceding
table, the business address for each of us is 000 - 00xx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000. Our respective employer identification numbers or social security
number are as set forth in that same table. Insofar as we are individually
aware, no commission or other remuneration is payable as a result of our
respective proposed purchases of the Shares, and no general solicitation or
advertisement occurred in connection therewith.
(b) We are each an "accredited investor" within the meaning of
Regulation D under the Securities Act of 1933, as amended ("Securities Act"),
and the Florida Securities and Investor Protection Act ("Florida Act") because,
(i) in the case of Xxxxx Xxxxxxx, his current individual net worth exceeds
$1,000,000 and/or he had individual income(3) in excess of $200,000 in each of
the two most recent years and has a reasonable expectation of reaching the same
income level in the current year, and (ii) in the case of each of the Entities,
each of the three stockholders of each of the Entities (i.e., Xxxxx Xxxxxxx,
Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx), each of whom owns one-third of the
outstanding stock of each of the Entities, is an accredited investor by virtue
of having a current individual net worth in excess of $1,000,000
---------------
3 A measure of a person's income for this purpose is the amount of his
individual adjusted gross income (as reported on a federal income tax
return) increased by: (i) any deduction for a portion of long term capital
gains [Internal Revenue Code ("Code") Section 1202]; (ii) any deduction for
depletion (Section 611 et. seq. of the Code); (iii) any exclusion for
interest on tax-exempt municipal obligations (Section 103 of the Code); and
(iv) any losses of a partnership allocated to the individual limited partner
(as reported on Schedule E of Form 1040).
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and/or because he had individual income(4) in excess of $200,000 in each of the
two most recent years and has a reasonable expectation of reaching the same
income level in the current year. We each also have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of our respective acquisitions of the Shares and of our
investments in LSI. We understand there is no guaranty or assurance that you
ever will be profitable, and that your operating history includes a history of
losses. Accordingly, we are aware of the speculative nature of our proposed
investments and of the significant risks involved, and we represent and warrant
that we can individually bear the economic risk of such investments. We
understand that an investment in LSI is not suitable for any person who does
not so understand such risks. Our respective investments in and commitments to
all non-liquid investments, including our individual proposed purchases of the
Shares, are reasonable in relation to our respective net worths, and we each
have adequate means of providing for our respective current needs and possible
contingencies without disposing of our respective proposed investments in the
Shares. All information we have provided to you concerning our respective
financial positions and knowledge of financial and business matters is correct
and complete as of the date hereof.
(c) We have received and reviewed prior to our individual
determinations to purchase the Shares and prior to the execution and delivery
of this Investment Representation Letter, all of the material information
concerning LSI, the Common Stock, the Shares and other matters that we
considered to be necessary or appropriate in connection with our respective
investment decisions.
(d) Among the documents we have had full and fair access to prior
to the execution and delivery of this Letter are all material contracts to
which LSI is a party or by which you are bound or benefitted, your historical
financial statements and related financial information as requested by one or
more of us, and the minute book of LSI containing the records of the actions of
your Board of Directors and stockholders.
(e) The Shares are to be acquired by us individually, in our own
respective names only, for our own respective accounts, and no other person has
any direct or indirect beneficial ownership interest or other interest therein,
other than the stockholders of the Entities in their capacities as such. The
Shares are to be individually acquired by us solely for investment purposes and
not with a view to resale or distribution, and none of us has any contract,
undertaking, agreement or arrangement for any sale, distribution or other
transfer of any interest in any of the Shares, and no present plans to enter
into any such arrangement.
(f) We each understand that the offer and sale of the Shares has
not been registered with or reviewed by the Securities and Exchange Commission
under the Securities Act, with or by any agency under the Florida Act, or with
or by any other state securities law administrator on the grounds, among
others, that the issuance and sale thereof is exempt from those registration
requirements on the grounds, among others, of not involving any public offering
and/or that the Shares in the context of these transactions are a "covered
security" as that phrase is defined in Section 18(a) of the Securities Act and,
accordingly, a "federal covered security" as that phrase is defined and used in
the Florida Act. We each further understand that your, and your agents' and
representatives', reliance on such exemptions are, in material part, based on
our representations, warranties, acknowledgements, covenants and agreements set
forth herein. We also each understand that no federal or state securities law
administrator has reviewed or approved any disclosure or other associated
material concerning the Shares, LSI, the Common Stock or any related matter,
and we each acknowledge that our respective decisions to acquire the Shares is
of our own
----------------
4 See explanation in footnote 3.
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volition and has not been recommended by you or by any federal or state
securities law administrator.
(g) We have been represented by such legal, tax, accounting,
financial and other advisors selected and retained by us as we have
individually found necessary to consult concerning our respective proposed
purchases of the Shares and our respective proposed investments. We have
sufficient knowledge and experience in business and financial matters that we
are individually capable of evaluating all facets of the merits and risks
thereof [or one or more of us have used and relied upon in connection with our
respective decisions to purchase the Shares, our own independent purchaser
representative [insert identity of purchaser representative(s) or insert "N/A":
N/A ]
-----------------------------------
who does have such knowledge and experience and, therefore, the terms - "we"
and "us" in this paragraph (g) shall include (as appropriate in the context)
such identified representative(s) for those of us, if any, who have used such a
representative], and we each investigated all facets of the merits and risks of
such proposed purchases prior to deciding to purchase the Shares. We each
acknowledge that we have had full and fair access to all information concerning
LSI, the Shares (and also to other information considered by us individually to
be necessary or appropriate as a prudent and knowledgeable investor to enable
us individually to make an informed investment decision concerning the
acquisition of the Shares), and that we were previously informed that all
documents, records and books pertaining to such proposed investments were at
all relevant times available for inspection and review by us. We have each
determined the information necessary or appropriate for our respective reviews
of the merits and risks of our proposed investments, and we shall not seek to
hold you, or any of your agents or representatives, liable for matters included
in or omitted from our respective investigations based on such determinations.
We acknowledge that we have had the opportunity to ask questions of, and have
received satisfactory answers from, you and your officers and directors
concerning LSI, the Shares and related matters. We also acknowledge that we
have each had an opportunity to obtain additional information necessary to
verify the accuracy of such information and to evaluate the merits and risks of
our proposed investments. In our respective determinations to acquire the
Shares, no person made any representation or warranty, expressed or implied, to
any of us in any way relating thereto except as expressly set forth or
referenced herein, we have not relied on any oral representation or warranty,
and we did not rely on any offering literature other than the documents and
information made available to us individually as provided herein.
(h) We each understand that the Shares are not readily
transferable, and that there is only a limited over-the-counter market for the
Common Stock, no assurance is given by anyone that an active and substantial
public market will develop, or if developed that it will be sustained, we may
not be able to readily liquidate our proposed investments in the Shares in any
event, and we must bear the economic risk of an investment therein
indefinitely. We also understand there are substantial restrictions on the sale
and transfer of the Shares we are purchasing, and that subsequent sale or other
transfer where permitted will require registration thereof with applicable
federal and state securities law administrators and/or an opinion of our
counsel acceptable to LSI that any such transfer is exempt from such securities
law requirements. We each further understand that legends, including a legend
substantially as set forth in Section (2) below, will be on the certificates
issued to each of us to represent our individual portions of the Shares. We
each agree not to offer, sell, pledge or otherwise transfer any of the Shares
or any interest therein absent compliance with applicable federal and state
securities laws and the referenced legend conditions. We each understand that
neither the Company nor any other person has any obligation to register any
Common Stock or to provide any of us an opinion for the foregoing purposes.
(i) No representation or warranty by any of us herein contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein not misleading, and the
representations, warranties, acknowledgements, covenants and agreements set
forth herein shall survive the payment, issuance and delivery, of the Shares.
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(j) We each acknowledge that we understand the meaning and legal
consequences of our individual representations, warranties, acknowledgements,
covenants and agreements contained herein, and we each agree to indemnify and
hold LSI and its agents and representatives harmless from and against any and
all loss, damage, liability or expense, including costs and reasonable
attorneys' and paralegal fees, to which any of them may be put or which they
may incur by reason of, or in connection with, any misrepresentation by us
individually, any breach by us individually of any representation or warranty,
or any failure by us individually to fulfill any of our individual covenants or
agreements herein. The representations, warranties, acknowledgements, covenants
and agreements set forth in this Letter are intended to benefit each of the
persons described in the preceding sentence.
(2) Legends. The Shares shall be subject to any legend condition
necessary to assist in complying with applicable federal and state securities
laws, including such legends as may be appropriate under Regulation D as
adopted by the Securities and Exchange Commission under the Securities Act and
the legend set forth below. In any event, each of the certificates representing
the Shares shall have endorsed on it a legend reading substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
OFFERED FOR SALE, SOLD, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THAT ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED.
(3) Interpretation. Any descriptive headings of or in sections and
paragraphs of this Letter are inserted for convenience only and are not a part
of this Letter. No provision in this Investment Representation Letter shall be
construed against any party as the drafter. As used herein, the singular
includes the plural, the plural includes the singular and words in one gender
include the others; the terms "herein", "hereof", "hereunder" and similar
references refer to the whole of this Investment Representation Letter; and
"include", "including" and similar terms are not words of limitation. Whenever
possible, each provision of this Letter shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision shall be
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity only, without invalidating the
remainder of such provision or of the remaining provisions of this Letter.
(4) Miscellaneous. This Investment Representation Letter: (i) contains
the complete statement of all arrangements between LSI and each of us with
respect to its subject matter, and supersedes all previous agreements,
promises, arrangements and understandings, written or oral, relating to its
subject matter; (ii) cannot be assigned by you without our prior written
consent, cannot be assigned by any of us without your prior written consent,
and cannot be modified, amended or waived except by an instrument in writing
signed by the parties necessary to the enforcement thereof; (iii) shall be
binding upon and shall inure to the benefit of your and our respective
successors, permitted assigns, heirs and legal representatives; (iv) may be
executed in any number of counterparts, each of which shall be deemed an
original instrument, but all such counterparts together shall constitute but
one agreement; and (v) shall be governed by, and construed and enforced in
accordance with, the laws of the State of Florida; provided, however, to the
extent Florida law is preempted by federal law, federal law shall apply. LSI
and we each hereby consent to the personal jurisdiction of the state and
federal courts located within the territorial limits of the United States
District Court for the Middle District of Florida, Tampa Division, agree that
venue for any litigation (or mediation or arbitration in connection therewith)
related in any way to this Letter shall only be in Pinellas County, Florida,
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or, if appropriate, the United States District Court for the Middle District of
Florida, Tampa Division, and waive any objection to such exclusive jurisdiction
and venue. If either you or any of us retains the services of counsel to
enforce any provision of this Letter, or because of litigation (or mediation or
arbitration in connection therewith) involving this Letter, the prevailing
party shall be entitled to recover, in addition to any other relief or remedy
obtained, all costs, expenses, and attorneys' and paralegal fees paid or
incurred by it, including costs, expenses and such fees at trial and any
appeal, whether in a court, administrative, arbitration or mediation
proceeding.
Please sign and return the second copy of this Investment Representation Letter
to Xxxxx Xxxxxxx if you find it satisfactory to acknowledge, evidence and
confirm your agreement with all of the foregoing.
Very truly yours,
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx, for himself
and as an authorized officer
of each of the Entities
Confirmed, Accepted and Agreed:
LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx, Vice President
May 27, 1999
