XXXXXXXXXX LABORATORIES, INC.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
SECOND OFFER AND AGREEMENT OF SALE AND PURCHASE
May 15, 1997
TO: Each Holder of Series E Convertible Preferred Stock
This letter constitutes an offer (the "Offer") by Xxxxxxxxxx
Laboratories, Inc. (the "Company") to purchase all outstanding shares of
the Company's Series E Convertible Preferred Stock (the "Series E
Shares") for the consideration, and subject to the terms, set forth
herein. If you accept the Offer with respect to your Series E Shares,
this letter will also constitute a legally binding agreement (this
"Agreement") between the Company and you in accordance with the terms
hereof. In addition, if the holders of all of the Series E Shares
accept the Offer, and the purchases contemplated by the Offer are
consummated, this Agreement will have the effect of terminating the
Registration Rights Agreements that the Company entered into with you
and the other holders of the Series E Shares (the "Series E
Shareholders") in October 1996 (collectively, the "Registration
Agreements"), as amended by the Offer and Agreement of Sale and Purchase
dated February 26, 1997 between the Company and each of the Series E
Shareholders. (The Registration Agreements, as so amended, are
hereinafter collectively called the "Amended Registration Agreements.")
More specifically, the terms of this Agreement are as follows:
1. Agreement of Sale and Purchase. At the Closing (as herein
defined), and subject to you and the other Series E Shareholders
tendering an aggregate of 330 Series E Shares to the Company for
purchase, the Company will purchase from you, and you will sell to the
Company, all of your Series E Shares (including fractional shares) in
consideration of the payment of the purchase price payable by the
Company to you at the Closing in the amount set forth in Paragraph 2
hereof. At or before the Closing, (i) you will deliver your stock
certificate representing all of your Series E Shares, together with a
duly executed Stock Power in the form enclosed herewith, to the Company
in care of First Granite Securities, Inc., as agent (the "Agent"), at
0000 00xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000, and (ii) the
Company will wire transfer to the Agent (or, if you so elect, to you)
funds in the amount of the purchase price payable to you for your Series
E Shares at the Closing.
[Note: Please indicate in the blank beside your signature block
on page 3 of this Agreement the number of Series E Shares you are
tendering for purchase by the Company pursuant to the Offer. If you
prefer to have the cash payment set forth in Paragraph 2 wire
transferred directly to your account rather than to the Agent, please so
indicate by completing the optional wire transfer instructions beside
your signature block on page 3 of this Agreement.]
The closing of the sale and purchase of the Series E Shares (the
"Closing") will occur at 10:00 a.m., Eastern Time, on May 21, 1997 or on
such earlier date as the Company may, in its discretion, designate
following the Agent's receipt of stock certificates and duly executed
Stock Powers for 330 Series E Shares. If the Agent does not receive
stock certificates and Stock Powers for an aggregate of 330 Series E
Shares by 6:00 p.m., Eastern Time, on May 20, 1997, the Offer will
expire. Notwithstanding the foregoing, the Company reserves the right
at its discretion to withdraw or amend the Offer at any time prior to
the Closing or to extend the Offer and the date of the Closing beyond
the above-specified time and date of expiration.
2. Purchase Price. At the Closing, the Company will pay you,
as the purchase price for your Series E Shares, an amount equal to the
sum of
(a) $11,490 for each whole Series E Share, and a pro rata
portion of that amount for any fractional Series E Share,
that the Company purchases from you, plus
(b) interest at the rate of 7% per annum on $10,000 for each
whole Series E Share, and interest at the rate of 7% per
annum on a pro rata portion of $10,000 for any fractional
Series E Share, that the Company purchases from you for the
period from February 15, 1997 through the date of the
Closing.
3. Certain Representations. The Company represents and
warrants that it is duly authorized, and has full corporate power and
authority, to execute, deliver and perform this Agreement. You
represent and warrant to the Company that (i) you have received and read
the Confidential Disclosure Memorandum dated May 15, 1997, delivered to
you by the Company in connection with the Offer, and each of the
documents incorporated by reference therein as listed on pages 1 and 2
thereof; (ii) you are duly authorized, and have full power and
authority, to execute, deliver and perform this Agreement; and (iii) you
have, and at the Closing the Company will receive, good and marketable
title to all of the Series E Shares registered in your name and tendered
by you for purchase pursuant to the Offer, free and clear of any liens,
security interests, pledges, voting trusts, voting agreements, stock
transfer restrictions or other encumbrances of any nature whatsoever.
4. Termination of Amended Registration Agreement. Upon
consummation of the Company's purchase of your Series E Shares pursuant
to the Offer, the Amended Registration Agreement between you and the
Company will terminate automatically, and you and the Company will
thereafter have no further liabilities or obligations to each other
thereunder.
5. Miscellaneous Provisions.
(a) Applicable Law. This Agreement will be governed by,
and construed in accordance with, the laws of the
State of New York.
(b) Entire Agreement; Amendment. This Agreement
constitutes the entire agreement between the Company
and you with respect to the subject matter hereof.
This Agreement may not be amended except by an
instrument in writing executed by both the Company and
you.
(c) Successors and Permitted Assigns. This Agreement will
be binding upon, and will inure to the benefit of, the
Company, its successors and assigns, and you, your
successors, assigns, heirs, devisees and personal
representatives. Neither the Company nor you may
assign this Agreement without the prior written
consent of the other party hereto.
If you wish to accept the Offer, and if this Agreement correctly
reflects your understanding with the Company, please so indicate by
completing and signing this Agreement and returning a signed original of
this Agreement to the Agent, together with your stock certificate and
duly executed Stock Power.
Sincerely yours,
XXXXXXXXXX LABORATORIES, INC.
By:
Xxxxx X. Xxxxxxxxxxx
Treasurer and Chief Financial
Officer
ACCEPTED AND AGREED:
____________________
[Print or Type Name of Number of Series E Shares
Shareholder of Record] Tendered for Purchase:
_________________________________
By:________________________ Optional Wire Transfer Instructions:
[Signature of Authorized Person]
Bank:_____________________________
Name:_______________________
Account No.:______________________
Title:______________________
ABA Routing No.:__________________
cc: First Granite Securities, Inc.
Xxxxxx Xxxxxxx, Esq.
