STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as of September 30,
1997, by and between LIFECODES CORPORATION, a Delaware corporation having its
principal offices at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Lifecodes"),
and Xxxxxxx Xxxxxxxx, an individual residing at 000 Xxxxxx Xxxxx Xxxx, Xxx
Xxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxxxx").
Xxxxxxxx desires to purchase from Lifecodes, and Lifecodes desires to issue
and sell to Xxxxxxxx, 22,000 shares of Lifecodes's common stock, par value $.10
per share (the "Common Stock") on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, the parties hereto mutually agree as follows:
1. Terms of Purchase and Sale.
1.1 Purchase and Sale of Common Stock. Subject to the terms and conditions
of this Agreement, Lifecodes shall issue and sell to Xxxxxxxx, and Xxxxxxxx
shall purchase from Lifecodes, 22,000 shares of Common Stock of Lifecodes at a
price per share equal to $9.50, or an aggregate purchase price of $209,000 (the
"Purchase Price"). The shares of Common Stock purchased by Xxxxxxxx hereunder
are referred to herein as the "Shares."
1.2 Purchase Price. The Purchase Price shall be paid as follows:
(a) $2,200 shall be paid at Closing (as defined in Section 1.3 below) (the
"Initial Payment"), and
(b) the balance, $206,800, shall be paid in accordance with the terms of a
negotiable, secured promissory note payable to Lifecodes in the form of Exhibit
A attached hereto (the "Note").
1.3 Closing. The purchase and sale of the Shares shall take place at the
offices of Lifecodes located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, on
September 30, 1997 at 10:00 a.m., or such other time (the "Closing Date") and
place as Lifecodes and Xxxxxxxx shall mutually agree (which time and place are
designated as the "Closing"). At the Closing, Lifecodes shall deliver to
Xxxxxxxx a certificate representing the Shares (the "Certificate") against
delivery to Lifecodes by Xxxxxxxx of (i) a check in the amount of the Initial
Payment and (ii) the Note. In addition, at the Closing, Xxxxxxxx shall deliver
and deposit the Certificate with Lifecodes, as security for the payment of all
sums under the Note, with a stock power endorsed in blank and in proper form for
transfer.
1.4 No Registration of Shares. The Shares will be issued to Xxxxxxxx
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance on Regulation D ("Regulation D") promulgated
thereunder by the Securities and Exchange Commission (the "SEC").
2. Representations, Warranties and Covenants of Lifecodes. Lifecodes hereby
represents and warrants to, and covenants with, Xxxxxxxx as follows:
2.1 Organization and Standing. Lifecodes is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has the requisite corporate power and authority to conduct its business as
currently conducted.
2.2 Authorization. All corporate action on the part of Lifecodes to enter
into this Agreement and to perform the transactions contemplated hereby has been
taken on or prior to the closing. Upon due execution and delivery by Xxxxxxxx,
this Agreement shall constitute a valid and legally binding obligation of
Lifecodes, enforceable against Lifecodes in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.3 Issuance, Sale and Delivery of the Shares. When issued and fully paid
for in accordance with the terms of this Agreement, the Shares to be sold
hereunder by Lifecodes will be validly issued, fully paid and non-assessable.
2.4 Non-Contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, order, decree,
ruling, charge, or other restriction of any government agency, or court to which
Lifecodes is subject or any provision of the certificate of incorporation or
bylaws of Lifecodes.
2.5 Consents. Neither the execution and delivery by Lifecodes, nor the
consummation by Lifecodes of any of the transactions contemplated herein,
requires any consent, approval, order or authorization of, or the giving of any
notice to, any governmental agency or any other person, except for such notices,
consents or approvals which have been previously obtained or which will be
obtained before the Closing.
2.6 Other Information. The information concerning Lifecodes set forth in
this Agreement does not contain any untrue statement of material fact or omit to
state a material fact required to be stated herein necessary to make the
statements and facts contained herein, in light of the circumstances in which
they are made, not false or misleading.
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3. Representations, Warranties and Covenants of Xxxxxxxx. Xxxxxxxx hereby
represents and warrants to, and covenants with, Lifecodes as follows:
3.1 Authorization. Xxxxxxxx has full power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby.
Xxxxxxxx has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and upon due execution and delivery by Lifecodes,
this Agreement shall constitute a valid and binding obligation of Xxxxxxxx
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.2 Consents. Neither the execution and delivery by Xxxxxxxx, nor the
consummation by Xxxxxxxx of any of the transactions contemplated herein,
requires any consent, approval, order or authorization of, or the giving of any
notice to, any governmental agency or any other person, except for such notices,
consents or approvals which have been previously obtained or which will be
obtained before the Closing.
3.3 Securities Laws Representations.
(a) Purchase Entirely for Own Account. The Shares are being acquired for
investment for Xxxxxxxx'x own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and Xxxxxxxx has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Xxxxxxxx does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Shares.
(b) Disclosure of Information. Xxxxxxxx believes he has received all
information he considers necessary or appropriate for deciding whether to
purchase the Shares. Xxxxxxxx has had an opportunity to ask questions and
receive answers from Lifecodes regarding the terms and conditions of the
offering of the Shares.
(c) Investment Experience. Xxxxxxxx has not relied on any business
representations of Lifecodes regarding his purchase of the Shares and, together
with his advisors, Xxxxxxxx has the requisite knowledge and experience to
understand the risks involved in the transactions contemplated hereto.
(d) No Representations on Profits. Xxxxxxxx acknowledges and agrees that
Lifecodes has not made any representations or warranties about the future
profits or business prospects of Lifecodes.
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(e) Restricted Securities. Xxxxxxxx understands that the Shares he is
purchasing pursuant to this Agreement are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from Lifecodes in a transaction not involving a public offering and
that under such laws and applicable regulations the Shares may be resold without
registration under the Securities Act only in certain limited circumstances. In
this connection, Xxxxxxxx is familiar with SEC Rule 144, as presently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act.
(f) Disposition of Shares. Xxxxxxxx will not dispose of any of the Shares
(other than pursuant to SEC Rule 144 or any similar or analogous rule or rules)
unless and until (i) Xxxxxxxx shall have notified Lifecodes of the proposed
disposition and, if reasonably requested by Lifecodes, Xxxxxxxx shall have
furnished Lifecodes with an opinion of counsel reasonably satisfactory in form
and substance to Lifecodes to the effect that such disposition will not require
registration under the Securities Act; or (ii) there is in effect a registration
statement under the Securities Act covering the proposed disposition and the
proposed disposition is made in accordance with such registration statement.
(g) Disposition of Shares. Subject to Section 4.2, Xxxxxxxx further agrees
not to make any disposition of all or any portion of the Shares unless and
until:
(i)Such disposition is in accordance with Rule 144, or
(ii) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement, or
(iii) Xxxxxxxx shall have notified Lifecodes of the proposed
disposition and shall have furnished Lifecodes with a detailed statement of
the circumstances surrounding the proposed disposition, and if reasonably
requested by Lifecodes, Xxxxxxxx shall have furnished Lifecodes with an
opinion of counsel, reasonably satisfactory to Lifecodes, that such
disposition will not require registration under the Securities Act.
3.4 Legends. The certificates evidencing the Shares may bear the
restrictive legends set forth below, except that such certificates shall not
bear such legends if the transfer was made in compliance with Rule 144 or if the
opinion of counsel, if any, referred to in Section 3.2(g)(iii) is to the effect
that such legend is not required in order to establish compliance with any
provisions of the Securities Act:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. AS AMENDED ("ACT"), THE SECURITIES
MAY NOT BE TRANSFERRED UNLESS A REGISTRATION
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STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR SUCH TRANSFER IS
MADE PURSUANT TO RULE 144 OF THE ACT OR AN EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF THE ACT."
(b) Any legend required by the laws of any applicable state or other
jurisdiction governing the Shares.
4. Market Stand-Off Provision. Xxxxxxxx agrees in connection with any
registration of Lifecodes's securities that, upon the request of Lifecodes or
the underwriters managing any underwritten offering of the Lifecodes's
securities, not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any Shares for such reasonable period of
time from the effective date of such registration as the underwriters may
specify. Lifecodes may impose stop-transfer instructions with respect to the
Shares held by Xxxxxxxx that are subject to the foregoing restriction until the
end of such period.
5. Miscellaneous.
5.1 Notices. All notices and communications required hereunder shall be in
writing and if to Xxxxxxxx, mailed or delivered to Xxxxxxxx at 000 Xxxxxx Xxxxx,
Xxx Xxxxxx, Xxxxxxxxxxx 00000, or if to Lifecodes to 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, with a copy of any notice to Xxxxx X. Xxxxxxxxxx, Esq.,
Xxxxxx & Xxxx, Three Stamford Plaza, 301 Tresser Boulevard, Stamford,
Connecticut 06901-3234 or such other address as any party may furnish to the
other in writing. Any notices and communications that are mailed, shall be sent
by registered or certified first-class mail, postage prepaid.
5.2 Entire Agreement. This Agreement, together with the Note, contains the
entire understanding of the parties with respect to the subject matter hereof.
All express or implied agreements and understandings, either oral or written,
heretofore made are expressly merged in and made a part of this Agreement.
5.3 Amendments and Waivers. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by Lifecodes and Xxxxxxxx.
The waiver by either party hereto of any right hereunder or the failure to
perform or of a breach by the other party shall not be deemed a waiver of any
other right hereunder or of any other breach or failure by said other party
whether of a similar nature or otherwise.
5.4 Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
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5.5 Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
5.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut (without giving effect to
the choice of law provisions thereof) and the federal law of the United States
of America.
5.7 Counterparts. This Agreement may be executed in two counterparts, each
of which shall constitute an original, but both of which, when taken together,
shall constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered to the other
party.
5.8 No Brokers; Expenses. Each party represents and warrants to the other
that it has not engaged any broker or other person who would be entitled to any
fees or commissions in respect to the execution of this Agreement or the
consummation of the transactions contemplated hereby. Each party shall bear its
own expenses in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
LIFECODES CORPORATION
By:
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
Xxxxxxx Xxxxxxxx
An Individual
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