STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated as of June 20,
1997, between XXXXXXXXXX LABORATORIES, INC., a Texas corporation (the
"Company"), and the persons whose names are set forth on Annex I hereto
(such persons being referred to herein individually as a "Buyer" and
collectively as "Buyers"),
WITNESSETH:
WHEREAS, the Company desires to sell to Buyers, and Buyers desire to
purchase from the Company, shares of Common Stock, par value $.01 per
share, of the Company ("Common Stock");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and intending to be legally
bound hereby, the Company and Buyers hereby agree as follows:
ARTICLE I
TERMS OF THE TRANSACTION
1.1 Agreement to Sell and to Purchase Shares. At the Closing (as
hereinafter defined), and on the terms and subject to the conditions
set forth in this Agreement, the Company shall sell and deliver to each
Buyer, and each Buyer shall purchase and accept from the Company, the
number of shares of Common Stock set forth opposite the name of such
Buyer on Annex I hereto (collectively, the "Shares").
1.2 Purchase Price and Payment. The purchase price for the Shares
shall be $6.015625 per Share (the "Purchase Price"). The total
Purchase Price payable by each Buyer for the Shares to be purchased by
it is set forth opposite the name of such Buyer on Annex I. Such total
Purchase Price shall be paid by each Buyer to the Company at the
Closing either (a) in immediately available funds by confirmed wire
transfer to a bank account designated by the Company or (b) in the form
of a certified or bank cashier's check payable to the order of the
Company.
ARTICLE II
CLOSING AND CLOSING DATE
The closing of the transactions contemplated hereby (the "Closing")
shall take place (i) at the offices of Xxxxxxxx & Knight, A
Professional Corporation, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx, at 12:00 noon, local time, on June 20, 1997, or (ii) at such
other time or place or on such other date as the parties hereto shall
agree. The date on which the Closing is required to take place is
herein referred to as the "Closing Date".
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Buyer that:
3.1 Corporate Organization. The Company is a corporation duly
incorporated, validly existing, and in good standing under the laws of
the State of Texas and has all requisite corporate power and corporate
authority to own, lease, and operate its properties and to carry on its
business as now being conducted.
3.2 Qualification. The Company is duly qualified or licensed to
do business and is in good standing in each jurisdiction in which the
property owned, leased, or operated by it or the conduct of its
business requires such qualification or licensing, except jurisdictions
in which the failure to be so qualified or licensed would not,
individually or in the aggregate, have a material adverse effect on the
business, assets, results of operations, or financial condition of the
Company.
3.3 Capitalization of the Company.
(a) As of June 16, 1997, the authorized capital stock of the
Company consisted of (i) 30,000,000 shares of Common Stock, of which
8,881,293 shares were outstanding, and (ii) 1,000,000 shares of
Preferred Stock, par value $100 per share, of which no shares were
outstanding. All outstanding shares of capital stock of the Company
have been validly issued and are fully paid and nonassessable, and no
shares of capital stock of the Company are subject to, nor have any
been issued in violation of, preemptive or similar rights. As of June
16, 1997, (i) 239,407 shares of Common Stock were issuable upon the
exercise of outstanding options granted under the Company's 1985 Stock
Option Plan; (ii) 1,482,800 shares of Common Stock were reserved for
issuance under the Company's 1995 Stock Option Plan, including 702,700
shares that were issuable upon the exercise of outstanding options;
(iii) 250,000 shares of Common Stock were reserved for issuance under
the Company's 1995 Management Compensation Plan; (iv) 51,000 shares of
Common Stock were reserved for issuance and issuable upon the exercise of
outstanding warrants issued by the Company; and (v) 300,000 shares of a
series of the Company's Preferred Stock designated as Series D
Preferred Stock were reserved for issuance upon the exercise of certain
preferred share purchase rights associated with the Common Stock, which
rights become exercisable by the holders thereof upon the occurrence of
certain events, including the acquisition of, or the announcement of
the intention to acquire, more than 20% of the outstanding Common Stock
by any person or group. Each share of Series D Preferred Stock would
have 100 votes, voting together with the Common Stock, and other rights
superior to those of the Common Stock. The Company has the right, at
its option, to exchange each such preferred share purchase right for
one share of Common Stock or one one-hundredth of a share of Series D
Preferred Stock under certain circumstances.
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(b) Except as set forth above in this Section 3.3 and as
contemplated by this Agreement, as of June 16, 1997, there were
outstanding (i) no shares of capital stock or other voting securities
of the Company, (ii) no securities of the Company convertible into or
exchangeable for shares of capital stock or other voting securities of
the Company, (iii) no options or other rights to acquire from the
Company, and no obligation of the Company to issue or sell, any shares
of capital stock or other voting securities of the Company or any
securities of the Company convertible into or exchangeable for such
capital stock or voting securities, and (iv) no equity equivalents,
interests in the ownership or earnings, or other similar rights of or
with respect to the Company.
3.4 Authority Relative to This Agreement. The Company has full
corporate power and corporate authority to execute, deliver, and
perform this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery, and performance by the Company of
this Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action of the Company. This Agreement has been duly executed
and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, and similar laws affecting creditors' rights generally,
(ii) equitable principles which may limit the availability of certain
equitable remedies (such as specific performance) in certain instances,
and (iii) public policy considerations with respect to the
enforceability of rights of indemnification.
3.5 Noncontravention. The execution, delivery, and performance by
the Company of this Agreement and the consummation by it of the
transactions contemplated hereby do not and will not (i) conflict with
or result in a violation of any provision of the Restated Articles of
Incorporation or Bylaws of the Company, (ii) conflict with or result in
a violation of any provision of, or constitute (with or without the
giving of notice or the passage of time or both) a default under, or
give rise (with or without the giving of notice or the passage of time
or both) to any right of termination, cancellation, or acceleration
under, any bond, debenture, note, mortgage, indenture, lease,
agreement, or other instrument or obligation to which the Company is a
party or by which the Company or any of its properties may be bound,
(iii) result in the creation or imposition of any lien or encumbrance
upon the properties of the Company, or (iv) assuming compliance with
the matters referred to in Section 3.6, violate any Applicable Law (as
hereinafter defined) binding upon the Company, except, in the case of
clauses (ii), (iii), and (iv) above, for any such conflicts,
violations, defaults, terminations, cancellations, accelerations,
liens, or encumbrances which would not, individually or in the
aggregate, have a material adverse effect on the business, assets,
results of operations, or financial condition of the Company or on the
ability of the Company to consummate the transactions contemplated
hereby.
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3.6 Governmental Approvals. No consent, approval, order, or
authorization of, or declaration, filing, or registration with, any
Governmental Entity (as hereinafter defined) is required to be obtained
or made by the Company in connection with the execution, delivery, or
performance by the Company of this Agreement or the consummation by it
of the transactions contemplated hereby, other than (i) compliance with
any applicable requirements of the Securities Act (as hereinafter
defined); (ii) compliance with any applicable requirements of the
Exchange Act (as hereinafter defined); (iii) compliance with any
applicable state securities laws; and (iv) such consents, approvals,
orders, or authorizations which, if not obtained, and such
declarations, filings, or registrations which, if not made, would not,
individually or in the aggregate, have a material adverse effect on the
business, assets, results of operations, or financial condition of the
Company or on the ability of the Company to consummate the transactions
contemplated hereby. The representations and warranties of the Company
contained in this Section 3.6, insofar as such representations and
warranties pertain to compliance by the Company with the requirements
of the Securities Act and applicable state securities laws, are based
on the representations and warranties of Buyers contained in Sections
4.5, 4.6, 4.7, 4.8, and 4.9.
3.7 Authorization of Issuance. The Shares have been duly
authorized for issuance and, when issued and delivered by the Company
in accordance with the provisions of this Agreement, will be validly
issued, fully paid, and nonassessable. The issuance of the Shares is
not subject to any preemptive or similar rights.
3.8 Private Offering Memorandum; SEC Filings.
(a) None of the information contained in the Company's
Confidential Private Offering Memorandum dated June 17, 1997 relating
to the private offering of the Shares (the "Private Offering
Memorandum"), as of such date or as of the date hereof, contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements contained therein, in light of the circumstances under which
they are made, not misleading.
(b) The Company has delivered to each Buyer accurate and complete
copies of (i) the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, as amended, (ii) the Company's Annual Report
to Shareholders for the year ended December 31, 1996, (iii) the
Company's Proxy Statement dated April 15, 1997, relating to the 1997
Annual Meeting of Shareholders, (iv) the Company s Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997 and (v) the Company s
Current Report on Form 8-K dated May 21, 1997, in each case in the form
filed by the Company with the Securities and Exchange Commission
(collectively, the "SEC Filings"). None of the SEC Filings, including,
without limitation, any financial statements or schedules included
therein, as of the date of filing thereof, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the
Company included in the SEC Filings present fairly, in conformity with
generally accepted accounting principles applied on a consistent basis
(except as may be indicated in the notes thereto), the consolidated
financial position of the Company as of the dates thereof and its
consolidated results of operations and cash flows for the periods then
ended (subject to normal year-end audit adjustments in the case of any
unaudited interim financial statements).
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3.9 Absence of Undisclosed Liabilities. Except as and to the
extent disclosed in the Private Offering Memorandum and the SEC
Filings, (a) as of December 31, 1996, the Company had no liabilities or
obligations (whether accrued, absolute, contingent, unliquidated, or
otherwise) material to the Company, and (b) since December 31, 1996,
the Company has not incurred any such material liabilities or
obligations, other than those incurred in the ordinary course of
business.
3.10 Absence of Certain Changes. Except as disclosed in the
Private Offering Memorandum and the SEC Filings, since December 31,
1996, there has not been any material adverse change in the business,
assets, results of operations, or financial condition of the Company.
3.11 Scope of Representations and Warranties. Except as set forth
in this Agreement, the Company makes no representations or warranties
to Buyers and hereby disclaims all liability and responsibility for any
representation, warranty, statement, or information made or
communicated (orally or in writing) to any Buyer (including but not
limited to any opinion, information, projection, or advice that may
have been provided to Buyers by any officer, director, employee, agent,
consultant or representative of the Company).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer severally (and not jointly) represents and warrants to
the Company that:
4.1 Authority Relative to This Agreement. Buyer has full power
and authority to execute, deliver, and perform this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Buyer and constitutes a valid and
legally binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, except that such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, and similar laws affecting creditors' rights generally,
(ii) equitable principles which may limit the availability of certain
equitable remedies (such as specific performance) in certain instances,
and (iii) public policy considerations with respect to the
enforceability of rights of indemnification.
4.2 Noncontravention. The execution, delivery, and performance by
Buyer of this Agreement and the consummation by it of the transactions
contemplated hereby do not and will not (i) conflict with or result in
a violation of any provision of, or constitute (with or without the
giving of notice or the passage of time or both) a default under, or
give rise (with or without the giving of notice or the passage of time
or both) to any right of termination, cancellation, or acceleration
under, any bond, debenture, note, mortgage, indenture, lease,
agreement, or other instrument or obligation to which Buyer is a party
or by which Buyer or any of its properties may be bound, (ii) result in
the creation or imposition of any lien or encumbrance upon the
properties of Buyer, or (iii) violate any Applicable Law binding upon
Buyer, except for any such conflicts, violations, defaults,
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terminations, cancellations, accelerations, liens, or encumbrances
which would not, individually or in the aggregate, have a material
adverse effect on the business, assets, results of operations, or
financial condition of Buyer or on the ability of Buyer to consummate
the transactions contemplated hereby.
4.3 Governmental Approvals. No consent, approval, order, or
authorization of, or declaration, filing, or registration with, any
Governmental Entity is required to be obtained or made by Buyer in
connection with the execution, delivery, or performance by Buyer of
this Agreement or the consummation by it of the transactions
contemplated hereby.
4.4 Investment Intent. Buyer is acquiring the Shares to be
purchased by it 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 such Shares, or
(ii) pursuant to an applicable exemption under the Securities Act. In
acquiring such Shares, Buyer is not offering or selling, and will not
offer or sell, for the Company in connection with any distribution
thereof, and Buyer does not have a participation and will not
participate in any such undertaking or in any underwriting of such an
undertaking except in compliance with applicable federal and state
securities laws.
4.5 Disclosure of Information. Buyer acknowledges that it or its
representatives have been furnished with substantially the same kind of
information regarding the Company and its business, assets, results of
operations, and financial condition as would be contained in a
registration statement prepared in connection with a public sale of the
Shares. Buyer further represents that it has had an opportunity to ask
questions of and receive answers from the Company regarding the Company
and its business, assets, results of operations, and financial
condition and the terms and conditions of the issuance of the Shares.
4.6 Investment Experience. Buyer acknowledges that it is able to
fend for itself, can bear the economic risk of its investment in the
Shares, and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of a
prospective investment in the Shares. Buyer represents that it is an
"accredited investor" (as such term is defined in Rule 501 of
Regulation D promulgated under the Securities Act).
4.7 Restricted Securities. Buyer understands that, upon the
issuance thereof, the Shares purchased by it will not have been
registered pursuant to the Securities Act or any applicable state
securities laws, that such securities will be characterized as
"restricted securities" under federal securities laws, and that under
such laws and applicable regulations such securities cannot be sold or
otherwise disposed of without registration under the Securities Act or
an exemption therefrom. In this connection, Buyer represents that it
is familiar with Rule 144 promulgated under the Securities Act, as
currently in effect, and understands the resale limitations imposed
thereby and by the Securities Act. Stop transfer instructions may be
issued to the transfer agent for securities of the Company (or a
notation may be made in the appropriate records of the Company) in
connection with the Shares.
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4.8 Legend. It is agreed and understood by Buyer that the
certificates representing the Shares to be purchased by it shall each
conspicuously set forth on the face or back thereof, in addition to any
other legends required by agreement or Applicable Law, a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS.
THESE SHARES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS THEY ARE FIRST SO REGISTERED OR UNLESS COUNSEL FOR THE
CORPORATION OR OTHER COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION SHALL HAVE RENDERED AN OPINION REASONABLY SATISFACTORY
TO THE CORPORATION TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Public Announcements. Neither any of the Buyers nor any of
their respective affiliates shall issue any press release or otherwise
make any public statement with respect to this Agreement or the
transactions contemplated hereby without the prior written consent of
the Company.
5.2 Registration Rights.
(a) Registration of Shares. Subject to the occurrence of the
Closing and the terms and provisions of this Agreement, the Company
shall use its reasonable best efforts to amend the Form S-3
Registration Statement (No. 333-17177) (the Registration Statement )
it currently has on file with the Securities and Exchange Commission
(the "Commission") to the extent requisite to permit the sale or other
disposition of the shares by Buyers.
(b) Registration Procedures. The reasonable best efforts of the
Company under Section 5.2(a) shall mean that the Company will, subject
to the terms and provisions of this Section 5.2, use its reasonable
best efforts to:
(A) prepare and file with the Commission following the Closing
an amendment to the Registration Statement covering the resale of the
Shares and cause the Registration Statement to become effective within
90 days following the Closing and to remain effective for so long as
may reasonably be necessary to complete the sale or other
disposition of the Shares, provided that the Company shall not in
any event be required to use its reasonable best efforts to maintain
the effectiveness of the Registration Statement for a period in
excess of one (1) year from the Closing;
(B) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus
contained therein as may be necessary to keep the Registration
Statement effective, and comply with the provisions of the
Securities Act, with respect to the sale or other disposition of the
Shares whenever Buyers shall desire to sell or otherwise dispose of
the same, but only to the extent provided in this Section 5.2;
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(C) furnish to each Buyer such numbers of copies of each
amendment to the Registration Statement and the prospectus contained
therein (including each preliminary prospectus), in conformity with
the requirements of the Securities Act, as such Buyer may reasonably
request in order to facilitate the sale or other disposition of the
Shares;
(D) before filing any amendment or supplement to the
Registration Statement or any prospectus to be used in connection
with the offering to be conducted pursuant to the Registration
Statement, furnish to each Buyer copies of all such documents
proposed to be filed.
(c) Required Information. The Company shall not be required to
use its reasonable best efforts to register, or maintain the
effectiveness of any registration of, Shares of a Buyer under the
Securities Act or the securities or blue sky laws of any states unless
and until such Buyer furnishes to the Company such information
regarding such Buyer and its Shares and the intended method of
disposition of such Shares as the Company may reasonably request in
order to satisfy the requirements applicable to such registration.
(d) Limitations on Registration. The rights of Buyers pursuant to
this Section 5.2 shall be subject to the following limitations:
(A) If at any time or from time to time during the
effectiveness of the Registration Statement, the Company is engaged
in or proposes to engage in a registered public offering of
securities of the Company or any other transaction or activity
which, in the good faith determination of the Board of Directors of
the Company, would be adversely affected by offers or sales of the
Shares pursuant to the Registration Statement to the detriment of
the Company, then Buyers shall, upon the written request of the
Company, cease making offers and sales of the Shares pursuant to the
Registration Statement (including sales pursuant to Rule 144 under
the Securities Act) for the period of time specified by the Company,
which period shall not (i) in the case of a registered public
offering, exceed the period beginning ten days prior to the
effective date of the registration statement relating to such
offering and ending 180 days after such effective date, and (ii) in
the case of any other transaction or activity, exceed the period
beginning ten days prior to, and ending 120 days after, the date of
commencement of such other activity or date of consummation of such
other transaction. Buyers agree to enter into such further
agreements with the Company or any underwriter of securities of the
Company deemed necessary by the Company or any such underwriter to
carry out the purposes of this paragraph (A).
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(B) The obligations of the Company pursuant to Sections
5.2(a) and (b) shall cease (i) as to Shares sold or otherwise
disposed of pursuant to the Registration Statement or Section 4(1)
of the Securities Act, or sold or otherwise disposed of in any
manner to a person which, by virtue of this Section 5.2, is not
entitled to the rights provided by this Section 5.2, and (ii) as to
Shares eligible for sale pursuant to Rule 144 promulgated under the
Securities Act, as amended from time to time, or any similar rule
that may hereafter be adopted. The obligations of the Company
pursuant to Sections 5.2(a) and (b) shall also cease if for any
reason the Commission (1) determines that the Company is not
eligible to use Form S-3 to register Shares, (2) fails or refuses to
declare the Registration Statement effective within nine (9) months
after the Closing, despite the Company s use of its reasonable best
efforts to persuade the Commission to declare the Registration
Statement effective, or (3) rescinds or revokes the effectiveness of
the Registration Statement after declaring it effective, or issues a
stop order with respect to the Registration Statement, despite the
Company s use of its reasonable best efforts to persuade the
Commission to allow the Registration Statement to remain effective
or to reinstate the effectiveness thereof or to rescind the stop
order relating thereto.
(C) In no event shall the Company be obligated to effect
more than one registration of Shares under the Securities Act.
(D) The rights and obligations of Buyers under this Section
5.2 may not be assigned or transferred to any person without the
prior written consent of the Company.
(e) Expenses of Registration. In connection with any registration
of the Shares pursuant to the provisions of this Section 5.2, each
Buyer shall pay any brokerage and underwriting discounts and
commissions payable in respect of the Shares sold on such Buyer's
behalf, all fees and expenses of any attorneys and accountants employed
by such Buyer, and any other costs directly incurred by such Buyer, and
the Company shall pay or cause to be paid and shall indemnify and hold
harmless Buyers from and against any and all other costs and expenses
incurred in connection with such registration and related blue sky
registrations and qualifications.
(f) Indemnification. In connection with any registration of the
Shares pursuant to the provisions of this Section 5.2, the Company
shall, to the extent permitted by Applicable Law, indemnify and hold
harmless Buyers to the extent that companies generally indemnify and
hold harmless underwriters in connection with public offerings under
the Securities Act, and each Buyer shall indemnify and hold harmless
the Company, each director and officer of the Company, and each person
who controls the Company within the meaning of the Securities Act to
the extent that selling shareholders generally indemnify and hold
harmless issuers of securities in connection with public offerings
under the Securities Act with respect to the information provided by
such Buyer for use by the Company in the preparation of the
Registration Statement.
(g) Inclusion of Other Securities. Buyers acknowledge that the
Registration Statement, and any prospectus used in connection with the
offering conducted pursuant thereto, may cover, in addition to the
Shares, other shares of Common Stock or other securities of the Company
to be sold by the Company or other persons.
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5.3 Fees and Expenses. Except as otherwise expressly provided in
this Agreement, all fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fee or expense.
5.4 Indemnification of Brokerage. Each of the parties hereto
agrees to indemnify and hold harmless each other party from and against
any claim or demand for a commission or other compensation by any
financial advisor, broker, agent, finder, or similar intermediary
claiming to have been employed by or on behalf of such indemnifying
party and to bear the cost of legal fees and expenses incurred in
defending against any such claim or demand.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment on
or prior to the Closing Date of each of the following conditions:
6.1 Representations and Warranties True. All the representations
and warranties of Buyers contained in this Agreement shall be true and
correct on and as of the Closing Date, except to the extent that any
such representation or warranty is made as of a specified date, in
which case such representation or warranty shall have been true and
correct as of such specified date.
6.2 Covenants and Agreements Performed. Buyers shall have
performed and complied with all covenants and agreements required by
this Agreement to be performed or complied with by them on or prior to
the Closing Date.
6.3 Legal Proceedings. No Proceeding (as hereinafter defined)
shall, on the Closing Date, be pending or threatened seeking to
restrain, prohibit, or obtain damages or other relief in connection
with this Agreement or the consummation of the transactions
contemplated hereby.
6.4 Other Documents. The Company shall have received such
certificates, instruments, and documents as may be reasonably requested
by the Company to carry out the intent and purposes of this Agreement.
6.5 Approval of Counsel to the Company. All legal matters in
connection with the consummation of the transactions contemplated
hereby and all agreements, instruments, and documents delivered in
connection therewith shall be reasonably satisfactory in form and
substance to Xxxxxxxx & Xxxxxx, A Professional Corporation, legal
counsel to the Company.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF BUYERS
The obligations of Buyers to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment on
or prior to the Closing Date of each of the following conditions:
7.1 Representations and Warranties True. All the representations
and warranties of the Company contained in this Agreement shall be true
and correct on and as of the Closing Date, except as affected by
transactions contemplated or permitted by this Agreement and except to
the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall
have been true and correct as of such specified date.
7.2 Covenants and Agreements Performed. The Company shall have
performed and complied with all covenants and agreements required by
this Agreement to be performed or complied with by it on or prior to
the Closing Date.
7.3 Legal Proceedings. No Proceeding shall, on the Closing Date,
be pending or threatened seeking to restrain, prohibit, or obtain
damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
7.4 Other Documents. Each Buyer shall have received a stock
certificate or certificates in definitive form representing the Shares
purchased by it, registered in the name of such Buyer and duly executed
by the Company.
ARTICLE VIII
TERMINATION, AMENDMENT, AND WAIVER
8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to the
Closing in the following manner:
(a) by mutual written consent of the Company and Buyers; or
(b) by the Company, if, on the Closing Date, any of the
conditions set forth in Article VI shall not have been satisfied and
shall not have been waived by the Company; or
(c) by Buyers, if, on the Closing Date, any of the
conditions set forth in Article VII shall not have been satisfied
and shall not have been waived by Buyers.
8.2 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 8.1 by the Company, on the one hand,
or Buyers, on the other, written notice thereof shall forthwith be
given to the other party specifying the provision hereof pursuant to
which such termination is made, and this Agreement shall become void
and have no effect, except that the agreements contained in this
Section and in Sections 5.1, 5.4, and 5.5 and Article IX shall survive
the termination hereof. Nothing contained in this Section shall
relieve any party from liability for any breach of this Agreement.
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8.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed by or on behalf of all the parties hereto.
8.4 Waiver. No failure or delay by a party hereto in exercising
any right, power, or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right,
power, or privilege. The provisions of this Agreement may not be
waived except by an instrument in writing signed by or on behalf of the
party against whom such waiver is sought to be enforced.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS;
INDEMNIFICATION
9.1 Survival. The representations and warranties of the parties
hereto contained in this Agreement or in any certificate, instrument,
or document delivered pursuant hereto shall survive the Closing,
regardless of any investigation made by or on behalf of any party.
9.2 Indemnification by Company. The Company shall indemnify,
defend, and hold harmless Buyers from and against any and all claims,
actions, causes of action, demands, losses, damages, liabilities,
costs, and expenses (including reasonable attorneys' fees and expenses)
(collectively, "Damages"), asserted against, resulting to, imposed
upon, or incurred by Buyers, directly or indirectly, by reason of or
resulting from any breach by the Company of any of its representations,
warranties, covenants, or agreements contained in this Agreement or in
any certificate, instrument, or document delivered pursuant hereto.
9.3 Indemnification by Buyers. Each Buyer severally (but not
jointly) shall indemnify, defend, and hold harmless the Company from
and against any and all Damages asserted against, resulting to, imposed
upon, or incurred by the Company, directly or indirectly, by reason of
or resulting from any breach by such Buyer of any of its
representations, warranties, covenants, or agreements contained in this
Agreement or in any certificate, instrument, or document delivered
pursuant hereto.
9.4 Procedure for Indemnification. Promptly after receipt by an
indemnified party under Section 9.2 or 9.3 of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under such
Section, give written notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying
party shall not relieve it of any liability that it may have to any
indemnified party except to the extent the indemnifying party
demonstrates that the defense of such action is prejudiced thereby. In
case any such action shall be brought against an indemnified party and
it shall give written notice to the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may wish, to assume the
defense thereof with counsel reasonably satisfactory to such
indemnified party. If the indemnifying party elects to assume the
defense of such action, the indemnified party shall have the right to
employ separate counsel at its own expense and to participate in the
defense thereof. If the indemnifying party elects not to assume (or
11
fails to assume) the defense of such action, the indemnified party
shall be entitled to assume the defense of such action with counsel of
its own choice, at the expense of the indemnifying party. If the
action is asserted against both the indemnifying party and the
indemnified party and there is a conflict of interests which renders it
inappropriate for the same counsel to represent both the indemnifying
party and the indemnified party, the indemnifying party shall be
responsible for paying for separate counsel for the indemnified party;
provided, however, that if there is more than one indemnified party,
the indemnifying party shall not be responsible for paying for more
than one separate firm of attorneys to represent the indemnified
parties, regardless of the number of indemnified parties. The
indemnifying party shall have no liability with respect to any
compromise or settlement of any action effected without its written
consent (which shall not be unreasonably withheld).
ARTICLE X
MISCELLANEOUS
10.1 Notices. All notices, requests, demands, and other
communications required or permitted to be given or made hereunder by
any party hereto shall be in writing and shall be deemed to have been
duly given or made if delivered personally or transmitted by first
class registered or certified mail, postage prepaid, return receipt
requested, to the parties at the addresses set forth opposite their
names on the signature page hereof (in the case of the Company) and on
Annex I hereto (in the case of Buyers) (or at such other addresses as
shall be specified by the parties by like notice).
10.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject
matter hereof.
10.3 Binding Effect; Assignment; No Third Party Benefit. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors,
and permitted assigns. Except as otherwise provided in this Agreement,
neither this Agreement nor any of the rights, interests, or obligations
hereunder shall be assigned by any of the parties hereto. Except as
provided in Section 5.2, nothing in this Agreement, express or implied,
is intended to or shall confer upon any person other than the parties
hereto, and their respective heirs, legal representatives, successors,
and permitted assigns, any rights, benefits, or remedies of any nature
whatsoever under or by reason of this Agreement.
10.4 Severability. If any provision of this Agreement is held to
be unenforceable, this Agreement shall be considered divisible and such
provision shall be deemed inoperative to the extent it is deemed
unenforceable, and in all other respects this Agreement shall remain in
full force and effect; provided however, that if any such provision may
be made enforceable by limitation thereof, then such provision shall be
deemed to be so limited and shall be enforceable to the maximum extent
permitted by applicable law.
12
10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
10.6 Counterparts. This Agreement may be executed by the parties
hereto in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same agreement.
Each counterpart may consist of a number of copies hereof each signed
by less than all, but together signed by all, the parties hereto.
ARTICLE XI
DEFINITIONS
As used in this Agreement, each of the following terms has the
meaning given it in this Article:
"Applicable Law" means any statute, law, rule, or regulation
or any judgment, order, writ, injunction, or decree of any
Governmental Entity to which a specified person or property is
subject.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Governmental Entity" means any court or tribunal in any
jurisdiction (domestic or foreign) or any public, governmental, or
regulatory body, agency, department, commission, board, bureau, or
other authority or instrumentality (domestic or foreign).
"Proceedings" means all proceedings, actions, suits,
investigations, and inquiries by or before any arbitrator or
Governmental Entity.
"Securities Act" means the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by their duly authorized
representatives, all as of the day and year first above written.
XXXXXXXXXX LABORATORIES, INC.
Address:
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000 By: ./s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
President and Chief Executive
Officer
BUYER:
Address:
Xxxxxxx X. Xxxxxxxxx
13
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by their duly authorized
representatives, all as of the day and year first above written.
XXXXXXXXXX LABORATORIES, INC.
Address:
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000 By: ./s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
President and Chief Executive
Officer
BUYER:
Address:
Xxxx X. Xxxxxxx
IN WITNESS WHEREOF, the parties have executed this Agreement, or
caused this Agreement to be executed by their duly authorized
representatives, all as of the day and year first above written.
XXXXXXXXXX LABORATORIES, INC.
Address:
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000 By: ./s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Ph.D., X.Xx.
President and Chief Executive
Officer
BUYER:
Address:
Xxxxx X. Xxxxxxxxx
14
ANNEX I
Total
Name of Buyer Number of Shares
Purchase Price
Xxxxxxx X. Xxxxxxxxx 165,000
$992,578.13
ANNEX I
Total
Name of Buyer Number of Shares
Purchase Price
Xxxx X. Xxxxxxx 240,000
$1,433,750.00
ANNEX I
Total
Name of Buyer Number of Shares
Purchase Price
Xxxxx X. Xxxxxxxxx 10,000
$60,156.25
