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EXHIBIT 3.3
3.3 STOCK PURCHASE AGREEMENT - PRIVATE PLACEMENT
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the _______ day of
_______ 19__, by and between HYPERBARIC SYSTEMS, a California corporation (the
"Company"), and the purchasers set forth on Attachment 1 hereto (the
"Purchasers," or each individually a "Purchaser," which term includes such
Purchaser's successors and assigns).
WHEREAS, the Purchasers desires to purchase shares of Common
Stock of the Company and the Company desires to sell shares of its Common Stock
to the Purchasers;
NOW THEREFORE, it is hereby agreed as follows:
1. Sale of Stock. The Company shall sell to each Purchaser and each
Purchaser shall purchase, jointly but not severally, from the Company that
number of Shares of Common Stock of the Company as is set forth on Attachment 1
hereto opposite each such Purchaser's name, at a price of $____ per share (the
"Purchase Price"). The Shares of Common Stock purchased by the Purchasers
pursuant to this Agreement shall hereinafter be referred to as the "Stock."
2. Payment of Purchase Price. Each Purchaser shall pay the Purchase Price
for the Shares of Common Stock they are purchasing in cash or cash equivalent.
3. Issuance of Shares. As soon as practicable after the execution of this
Agreement and payment for the Stock, the Company shall issue a duly executed
certificate in the name of each Purchaser evidencing the Stock purchased by each
such Purchaser.
4. "Market Stand-Off" Agreement. Each Purchaser hereby agrees that, during
that period of duration specified by the Company and an underwriter of common
stock (or other securities) of the Company, following the effective date of a
registration statement of the Company filed under the Act, Purchaser shall not,
to the extent requested by the Company and such underwriter, directly or
indirectly, offer to sell, contract to sell (including, without limitation, any
short sale), grant any option to purchase or otherwise transfer or dispose of
(other than to donees who agree to be similarly bound) any common stock (or such
other securities) of the Company held by Purchaser at any time during such
period except common stock (or other securities) included in such registration,
provided, however, that (a) such agreement shall be applicable only to the first
such registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten offering,
and (b) all officers and directors of the Company and all persons with
registration rights with respect to securities of the Company enter into similar
agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to such stock held by Purchaser until
the end of such period.
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5. Representations and Warranties of Purchaser.
(a) Investment Intent. This Agreement is made with each Purchaser in
reliance upon such Purchaser's representation to the Company, which by
Purchaser's acceptance hereof he confirms, that the shares of the Stock have
been acquired with Purchaser's own funds, for investment purposes only, for
Purchaser's own account, not as a nominee or agent, and not with a view to the
sale or distribution of any part thereof, and that he or she has no present
intention of selling, granting participation in, or otherwise distributing such
stock. By executing this Agreement, Purchaser further represents that he or she
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer, or grant participations, to such person or to any
third person, with respect to any of such Stock.
(b) Restricted Securities. Each Purchaser understands that the Stock has not
been and will not be registered under the Act on the ground that the sales
provided for is this Agreement are exempt pursuant to section 4(2) of the Act,
and that the Company's reliance on such exemption is predicated on the
Purchaser's representations set forth herein.
Each Purchaser understands that if the Company does not register with
the Securities and Exchange Commission pursuant to sections 12 or 15 of the
Securities Exchange Act of 1934 or if a registration statement covering the
Stock (or a filing pursuant to the exemption from registration under Regulation
A of the Act) under the Act is not in effect when Purchaser desires to sell the
Stock, Purchaser may be required to hold the Stock for an indeterminate period.
The Purchaser also acknowledges that he or she understands that any sale of the
Stock that might be made in reliance upon Rule 144 under the Act may be made
only in limited amounts in accordance with the terms and conditions of Rule 144
and that Purchaser may not be able to sell the Stock at the time or in the
amount it desires. Purchaser is familiar with Rule 144 and understands that the
Stock constitutes "restricted securities" within the meaning of that Rule.
(c) Investment Experience. In connection with his investment representations
made herein, each Purchaser represents that he is able to fend for himself in
the transactions contemplated by this Agreement, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the investment, has the ability to bear the economic risks
of its investment and has been furnished with and has had access to such
information as would be made available in the form of a registration statement
together with such additional information as is necessary to verify the accuracy
of the information supplied and to have all of his or her questions answered by
the Company.
(d) Limitations on Disposition. Each Purchaser agrees that in no event will
he make a disposition of any of the Stock unless and until (a) he shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed
disposition, and (b) shall have furnished the Company with an opinion of counsel
satisfactory to the Company and its counsel to the effect that (i) such
disposition will not require registration of such Stock under the Act, or (ii)
that appropriate action necessary for compliance with the Act has been taken, or
(c) the Company shall have waived, expressly and in writing, its rights under
clauses (a) and (b) of this subsection 5(d).
The Company shall not be required (i) to transfer on its books any
shares of Stock of the Company that shall have been sold or transferred in
violation of any of the provisions set forth in
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this Agreement, or (ii) to treat as owner of such shares or to accord the right
to vote as such owner or to pay dividends to any transferee to whom such shares
shall have been so transferred.
(e) Legends. All certificates representing any shares of Stock of the
Company subject to the provisions of this Agreement shall have endorsed thereon
the following legends:
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN STOCK PURCHASE AGREEMENT THAT INCLUDES A
MARKET STAND-OFF AGREEMENT. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST MADE TO THE SECRETARY OF THE CORPORATION.
(ii) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW
TO DISTRIBUTION OR RESALE, AND MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR PURSUANT TO RULE 144
UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT."
(iii) Any legend required to be placed thereon by applicable state
securities laws.
6. Miscellaneous.
(a) Further Instruments and Actions. The parties agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
(b) Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, sent first class with postage and fees
prepaid, addressed to the other party hereto at its address hereinafter shown
below its signature or at such other address as such party may designate by ten
(10) days' advance written notice to the other party hereto.
(c) Governing Law. This Agreement is governed by the substantive laws of
California without regard to choice of law rules and shall inure to the benefit
of the successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Purchaser, his or her heirs,
executors, administrators, guardians, successors and assigns.
(d) Amendments and Waivers. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous understandings, written or oral. This Agreement may only
be amended with the written consent of the parties hereto and the Company's
authorized assignees, or the successors or assigns of the foregoing, and no oral
waiver or amendment shall be effective under any circumstances whatsoever.
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7. California Commissioner of Corporations. THE SALE OF THE SECURITIES THAT
IS THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA, AND IN THE ABSENCE OF AN EXEMPTION FROM
SUCH QUALIFICATION REQUIREMENT, THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT
OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION
FROM SUCH QUALIFICATION BEING APPLICABLE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HYPERBARIC SYSTEMS,
A CALIFORNIA CORPORATION
BY:
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XXXXX XXXXXX, CHIEF EXECUTIVE OFFICER
ADDRESS: 0000 XXXXXX XXXXXX
XXXX XXXX, XX 00000
PURCHASER
BY:
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ADDRESS:
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PURCHASER
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PURCHASER
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PURCHASER
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PURCHASER
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ATTACHMENT 1
SCHEDULE OF PURCHASERS
NAME NO. SHARES PURCHASED INVESTMENT
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