EXHIBIT 10.1
FORM OF PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 1st day of, September 2000, by and
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between LifeCell Corporation (the "Company"), a corporation organized under the
laws of the State of Delaware, with its principal offices at Xxx Xxxxxxxxxx Xxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, and the purchaser whose name and address is set
forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company has authorized the sale of up to
2,500,000 shares (the "Shares") of common stock, par value $0.001 per share (the
"Common Stock"), of the Company.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
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defined in Section 3), the Company will sell to the Purchaser, and the Purchaser
will buy from the Company, upon the terms and conditions hereinafter set forth,
the number of Shares (at the purchase price) shown below:
Number to Be Price Per Share Aggregate Price
Purchased In Dollars
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The Company proposes to enter into this same form of purchase agreement
with certain other investors (the "Other Purchasers") and expects to complete
sales of the Shares to them. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agents" shall mean Prudential Vector Healthcare Group, a unit of Prudential
Securities Incorporated and Gruntal & Co., L.L.C.
SECTION 3. Delivery of the Shares at the Closing. The completion of the
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purchase and sale of the Shares (the "Closing") shall occur as soon as
practicable and as agreed by the parties hereto following notification by the
staff of the Securities and Exchange Commission (the "Commission") to the
Company of the staff's willingness to declare effective the registration
statement to be filed by the Company pursuant to Section 7.1 hereof (the
"Registration Statement") at a place and time (the "Closing Date") to be agreed
upon by the Company and the Placement Agents and of which the Purchasers will be
notified by facsimile transmission or otherwise.
At the Closing, the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as designated by the Purchaser in writing, representing the number of
Shares set forth in Section 2 above and bearing an appropriate legend referring
to the fact that the Shares were sold in reliance upon the exemption from
registration under the Securities Act of 1933, as amended (the "Securities Act")
provided by Section 4(2) thereof and Rule 506 thereunder. The Company will
promptly substitute one or more replacement certificates without the legend at
such time as the Registration Statement becomes effective in reliance upon
Purchaser's representations and agreements as set forth in this Agreement. The
name(s) in which the stock certificates are to be registered are set forth in
the Stock Certificate Questionnaire attached hereto as part of Appendix I. The
Company's obligation to complete the purchase and sale of the Shares and deliver
such stock certificate(s) to the Purchaser at the Closing shall be subject to
the following conditions, any one or more of which may be waived by the Company:
(a) receipt by the Company of same-day funds in the full amount of the purchase
price for the Shares being purchased hereunder; (b) completion of the purchases
and sales under the Agreements with all of the Other Purchasers; and (c) the
accuracy of the representations and warranties made by the Purchasers and the
fulfillment of those undertakings of the Purchasers to be fulfilled prior to the
Closing. The Purchaser's obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be subject to
the following conditions: (a) the staff of the Commission having notified the
Company of the staff's willingness to declare the Registration Statement
effective on or prior to the 75th day after the date the Registration Statement
was filed by the Company; and (b) the accuracy in all material respects of the
representations and warranties made by the Company herein and the fulfillment in
all material respects of those undertakings of the Company to be fulfilled prior
to Closing. The Purchaser's obligations hereunder are expressly not conditioned
on the purchase by any or all of the Other Purchasers of the Shares that they
have agreed to purchase from the Company.
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SECTION 4. Representations, Warranties and Covenants of the Company.
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The Company hereby represents and warrants to, and covenants with, the
Purchaser, as of the date hereof and as of the Closing, as follows:
4.1 Organization and Qualification. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company does not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, association or
other entity. The Company has the power and authority, corporate or otherwise,
as appropriate, to own, lease and operate its properties and to conduct its
business as described in the Confidential Private Placement Memorandum, dated
[-], 2000 prepared by the Company, including all Exhibits, supplements and
amendments thereto and documents expressly incorporated by reference in any
Exhibits (the "Private Placement Memorandum") and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign
corporation or other appropriate entity to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, properties, business, prospects or results of operations
of the Company (a "Material Adverse Effect").
4.2 Authorized Capital Stock. The Company has authorized, issued
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and outstanding capital stock as set forth under the heading "Capitalization" in
the Private Placement Memorandum (except for subsequent issuances, if any,
pursuant to this Agreement or pursuant to reservations, agreements, employee or
director benefit plans or the exercise of convertible securities referred to in
the Private Placement Memorandum; the issued and outstanding shares of the
Company's Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable, were not issued in violation of or are not otherwise
subject to any preemptive or other similar rights or other rights to subscribe
for or purchase securities, and conform to the description thereof contained in
the Private Placement Memorandum. Except as disclosed in the Private Placement
Memorandum and options issued under the Company's stock plans after [-], 2000,
the Company does not have outstanding any options or warrants to purchase, or
any preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any shares of capital stock of any
subsidiary and there is no commitment, plan or arrangement to issue, any
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securities or obligations convertible into any shares of capital stock of the
Company or any such options, rights convertible securities or obligations. The
description of the Company's capital stock, stock bonus and other stock plans or
arrangements and the options or other rights granted and exercised thereunder,
contained in the Private Placement Memorandum accurately and fairly presents the
information required to be shown with respect to such capital stock, plans,
arrangements, options and rights.
4.3 Issuance, Sale and Delivery of the Shares. The Shares have
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been duly authorized and, when issued, delivered and paid for in the manner set
forth in this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will conform to the description thereof set forth in the
Private Placement Memorandum. No preemptive rights or other rights to subscribe
for or purchase exist with respect to the issuance and sale of the Shares by the
Company pursuant to this Agreement. Except for rights disclosed in the Private
Placement Memorandum, no stockholder of the Company has any right (which has not
been waived) to request or require the Company to register the sale of any
shares owned by such stockholder under the Securities Act in the Registration
Statement. No further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of the
Shares to be sold by the Company as contemplated herein.
4.4 Due Execution, Delivery and Performance of the Agreements.
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The Company has full legal right, corporate power and authority to enter into
the Agreements and perform the transactions contemplated hereby and thereby.
The Agreements have been duly authorized, executed and delivered by the Company.
The execution, delivery and performance of the Agreements by the Company and the
consummation of the transactions herein and therein contemplated will not
violate any provision of the organizational documents of the Company and will
not result in the creation of any lien, charge, security interest or encumbrance
upon any assets or property of the Company pursuant to the terms or provisions
of, or will not conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company is a party or by
which the Company or any of its assets or properties may be bound or affected
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or, to the Company's knowledge, any statute or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the Company or
any of its properties. No consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental body is
required for the execution, delivery and performance of the Agreements or the
consummation of the transactions contemplated hereby or thereby, except for
compliance with the Blue Sky laws and federal securities laws applicable to the
offering of the Shares. Upon their execution and delivery, and assuming the
valid execution thereof by the respective Purchasers, the Agreements will
constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' 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) and except as
the indemnification agreements of the Company in Section 7.3 hereof may be
legally unenforceable.
4.5 Accountants. Xxxxxx Xxxxxxxx have expressed their opinion
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with respect to the audited consolidated financial statements to be incorporated
by reference into the Registration Statement and the Prospectus which forms a
part thereof from the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, and are independent accountants as required by the
Securities Act and the rules and regulations promulgated thereunder (the "Rules
and Regulations"). The Company's financial statements (including all notes and
schedules thereto) included in or incorporated by reference into the Private
Placement Memorandum present fairly the financial position, the results of
operations, the statements of cash flows and the statements of stockholders'
equity and the other information purported to be shown therein of the Company at
the respective dates and for the respective periods to which they apply and such
financial statements have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods involved.
4.6 No Defaults. The Company is not (i) in violation or default
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of any provision of its certificate of incorporation, bylaws or other
organizational documents, or (ii) in breach of or default with respect to any
provision of any agreement, judgment, decree, order, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which it is
a party or by which it or any of its assets or properties are bound, except for
violations, breaches and defaults which individually or in the aggregate would
not have a Material Adverse Effect; and there does not exist any state of fact
which, with notice or lapse of time or both, would constitute an event of
default on the part of the Company as defined in such documents, except such
defaults which individually or in the aggregate would not have a Material
Adverse Effect.
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4.7 Contracts. The contracts described in the Private Placement
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Memorandum as being in effect on the date hereof that are material to the
Company, are in full force and effect on the date hereof, and the Company is
not, nor to the Company's knowledge, is any other party in breach of or default
under any of such contracts which would have a Material Adverse Effect.
4.8 No Actions. Except as disclosed in the Private Placement
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Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened to which the Company is or
may be a party or of which property owned or leased by the Company is or may be
the subject, or related to environmental or discrimination matters, which
actions, suits or proceedings, individually or in the aggregate, might prevent
or might reasonably be expected to materially and adversely affect the
transactions contemplated by this Agreement or result in a material adverse
change in the condition (financial or otherwise), properties, business,
prospects or results of the operations of the Company (a "Material Adverse
Change"); and all pending legal or governmental proceedings to which the Company
is a party or of which any of its property or assets is the subject which are
not described in the Private Placement Memorandum, including ordinary routine
litigation incidental to the business, are, considered in the aggregate, not
material. Except as disclosed in the Private Placement Memorandum, the Company
is not a party to or subject to the provisions of any material injunction,
judgment, decree or order of any court, regulatory body administrative agency or
other governmental body.
4.9 Labor. No labor dispute with the employees of the Company
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exists or, to the knowledge of the Company is imminent; and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors which might, singly or in
the aggregate, have a Material Adverse Effect.
4.10 Properties. The Company has valid title to all its
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properties as described in the Private Placement Memorandum, not subject to any
lien, mortgage, pledge, charge or encumbrance of any kind except (i) those, if
any, reflected in the Financial Statements (including the notes thereto), or
(ii) those which are not material in amount and do not materially and adversely
affect the use made and intended to be made of such property by the Company.
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The Company holds its leased properties under valid and binding leases, with
such exceptions as are not materially significant in relation to the business of
the Company. Except as disclosed in the Private Placement Memorandum, the
Company owns or leases all such properties as are necessary to its operations as
now conducted.
4.11 No Material Change. Since June 30, 2000 (i) the Company has
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not incurred any liabilities or obligations, indirect, or contingent, or entered
into any verbal or written agreement or other transaction which is not in the
ordinary course of business or which could reasonably be expected to result in a
material reduction in the future earnings of the Company or in a Material
Adverse Effect; (ii) the Company has not sustained any material loss or
interference with its businesses or properties from fire, flood, windstorm,
accident or other calamity not covered by insurance; (iii) the Company has not
paid or declared any dividends or other distributions with respect to its
capital stock, other than regular quarterly dividends with respect to the Series
B Preferred Stock, and the Company is not in default in the payment of principal
or interest on any outstanding debt obligations; (iv) there has not been any
change in the capital stock of the Company other than the sale of the Shares
hereunder and shares or options issued pursuant to exercise of outstanding
warrants or employee and director stock option plans approved by the Company's
Board of Directors or indebtedness material to the Company (other than in the
ordinary course of business); and (v) there has not been a change that would
result in a Material Adverse Change.
4.12 Intellectual Property. Except as otherwise specifically
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disclosed in the Private Placement Memorandum, (i) the Company owns or has
obtained valid licenses, options or rights to use for the material inventions,
patent applications, patents, trademarks (both registered and unregistered),
trade names, copyrights and trade secrets necessary for the conduct of the
Company's business as currently conducted (collectively, the "Intellectual
Property"); (ii) the Company has not received notice of any third parties who
have any ownership rights to any Intellectual Property that is owned by, or has
been licensed to, the Company for the product indications described in the
Private Placement Memorandum that would preclude the Company from conducting
their respective businesses as currently conducted; (iii) to the Company's
knowledge there are currently no sales of any products that would constitute an
infringement by third parties of any material Intellectual Property owned,
licensed or optioned by the Company; (iv) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the rights of the Company in or to any material Intellectual
Property owned, licensed or optioned by the Company; (v) there is no pending or,
to the Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any material Intellectual Property
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owned, licensed or optioned by the Company; and (vi) there is no pending or, to
the Company's knowledge, threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violate any patent, trademark,
copyright, trade secret or other proprietary right of others as would reasonably
be expected to result in a Material Adverse Effect.
4.13 Compliance. Except as disclosed in the Private Placement
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Memorandum, the Company has not been advised, and has no reason to believe, that
it is not conducting its business in compliance with all applicable laws, rules
and regulations of the jurisdictions in which it is conducting business; except
where failure to be so in compliance would not individually or in the aggregate
have a Material Adverse Effect.
4.14 Environmental Matters. Except as disclosed in the Private
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Placement Memorandum and except as would not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company, (A) the Company is in compliance with all applicable
Environmental Laws, (B) the Company has all permits, authorizations and
approvals required under any applicable Environmental Laws and is in compliance
with the requirements of such permits, authorizations and approvals, (C) there
are no pending or, to the knowledge of the Company, threatened Environmental
Claims against the Company and (D) under applicable law, there are no
circumstances with respect to any property or operations of the Company that are
reasonably likely to form the basis of an Environmental Claim against the
Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
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4.15 Taxes. The Company has filed or obtained filing extensions
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with respect to all federal, state, local and foreign income and franchise tax
returns material to the Company, and has paid or accrued all taxes shown as due
thereon, and the Company has no knowledge of a tax deficiency which has been or
might be asserted or threatened against it which would reasonably be expected to
have a Material Adverse Effect.
4.16 Transfer Taxes. On the Closing Date, all stock transfer or
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other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold to the Purchaser
hereunder will be, or will have been, fully paid or provided for by the Company
and all laws imposing such taxes will be or will have been fully complied with.
4.17 Insurance. The Company maintains insurance of the type and
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in the amount that the Company reasonably believes is adequate for its business,
including, but not limited to, insurance covering all real and personal property
owned or leased by the Company against risks customarily insured against by
similarly situated companies, all of which insurance is in full force and
effect.
4.18 Contributions. The Company has not directly or indirectly,
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(i) made any unlawful contribution to any candidate for public office, or failed
to disclose fully where required by law any contribution in violation of law, or
(ii) made any payment to any federal or state governmental officer or official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
4.19 Investment Company. The Company is not an "investment
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company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for an investment company, within the meaning of the Investment Company Act of
1940, as amended.
4.20 Offering Materials. The Company has not distributed and will
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not distribute prior to the Closing Date any offering material in connection
with the offering and sale of the Shares other than the Private Placement
Memorandum or any amendment or supplement thereto. The Company has not nor will
it take any action independent of the Placement Agents to sell, offer for sale
or solicit offers to buy any securities of the Company which would bring the
offer, issuance or sale of the Shares, as contemplated by this Agreement, within
the provisions of Section 5 of the Securities Act.
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4.21 Related Party Transactions. No transaction has occurred
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between or among the Company and its affiliates, officers or directors or any
affiliate or affiliates of any such officer or director that is required to be
described in the Company's reports and other filings under the Securities
Exchange Act of 1934 (the "Exchange Act") attached as Exhibits to the Private
Placement Memorandum that is not so described.
4.22 Books and Records. The books, records and accounts of the
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Company accurately and fairly reflect, in reasonable detail, the transactions
in, and dispositions of, the assets of, and the results of operations of, the
Company, all to the extent required by generally accepted accounting principles.
The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
4.23 Regulatory Matters. Except as described in the Private
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Placement Memorandum, to the Company's knowledge, there are no rulemaking or
similar proceedings before The United States Food and Drug Administration or
comparable federal, state, local or foreign government bodies which involve or
affect the Company, which, if the subject of an action unfavorable to the
Company, could involve a Material Adverse Change.
4.24 Certain Agreements. The Company has not received any
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communication (whether written or oral) relating to the termination or
threatened termination or modification or threatened modification of any
material consulting, licensing, marketing, research and development, cooperative
or any similar agreement, including, without limitation, the collaborative
research, distribution and license agreements described under the section of the
Company's Annual Report on Form 10-K for the year ended December 31, 1999
entitled "Item 1. Business." Each such collaborative, distribution and
licensing agreement is in effect substantially as described in such section of
the Private Placement Memorandum except that the Amended and Restated
Distributor Agreement with Lifecore Biomedical, Inc., dated July 1, 1999 expired
on July 30, 2000.
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4.25 Employee Agreements. To the knowledge of the Company, if any
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full-time employee identified in the Private Placement Memorandum has entered
into any non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company, such employee is neither in
violation thereof nor is expected to be in violation thereof as a result of the
business conducted or expected to be conducted by the Company as described in
the Private Placement Memorandum or such person's performance of his obligations
to the Company; and the Company has not received written notice that any
consultant or scientific advisor of the Company is in violation of any
non-competition, non-disclosure, confidentiality or similar agreement.
4.26 Additional Information. The Company represents and warrants
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that each of the following documents, which the Placement Agents have furnished
to the Purchaser, or will furnish prior to the Closing, as of its date (or date
of filing with the Commission, as applicable), does not contain an untrue
statement of a material fact or omit or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were or will be made, not misleading:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) the Company's Quarterly Reports on Form 10-Q for the periods
ended March 31, 2000 and June 30, 2000;
(c) the Company's Proxy Statement dated April 28, 2000 for the
2000 Annual Meeting of Stockholders;
(d) the Company's current report on Form 8-K filed with the
Commission on July 7, 2000;
(e) the Resale Registration Statement on Form S-3;
(f) the Private Placement Memorandum, including all addenda and
exhibits thereto (other than the Appendices); and
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(g) all other documents, if any, filed by the Company with the
Securities and Exchange Commission since January 1, 2000,
pursuant to the reporting requirements of the Exchange Act.
4.27 Legal Opinions. Prior to the Closing and as a condition to
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the Purchaser's obligation hereunder, counsel to the Company will deliver to the
Placement Agents said counsel's legal opinion concerning the issuance of the
Shares in form and substance as agreed with the Placement Agents. The opinion
shall also state that each of the Purchasers may rely thereon as though it were
addressed directly to such Purchaser.
4.28 Certificate. At the Closing, the Company will deliver to the
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Purchaser a certificate executed by the Chairman of the Board or President and
the chief financial or accounting officer of the Company, dated the Closing
Date, in form and substance reasonably satisfactory to the Purchasers, to the
effect that the representations and warranties of the Company set forth in this
Section 4 are true and correct in all material respects as of the date of this
Agreement and as of the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions herein on its part to be performed
or satisfied on or prior to such Closing Date.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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(a) The Purchaser represents and warrants to, and covenants with, the
Company that: (i) the Purchaser is knowledgeable, sophisticated
and experienced in making, and is qualified to make, decisions
with respect to investments in shares representing an investment
decision like that involved in the purchase of the Shares,
including investments in securities issued by the Company, and
has requested, received, reviewed and considered all information
it deems relevant in making an informed decision to purchase the
Shares; (ii) the Purchaser is acquiring the number of Shares set
forth in Section 2 above in the ordinary course of its business
and for its own account for investment only and with no present
intention of distributing any of such Shares or any arrangement
or understanding with any other persons regarding the
distribution of such Shares within the meaning of Section 2(11)
of the Securities Act; (iii) the Purchaser will not
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directly or indirectly, offer, sell, pledge, transfer
or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with the Securities Act and the Rules
and Regulations; (iv) the Purchaser has completed or caused to be
completed the Registration Statement Questionnaire and the Stock
Certificate Questionnaire, both attached hereto as Appendix I,
for use in preparation of the Registration Statement, and the
answers thereto are true and correct as of the date hereof and
will be true and correct as of the effective date of the
Registration Statement; (v) the Purchaser has, in connection with
its decision to purchase the number of Shares set forth in
Section 2 above, relied solely upon the Private Placement
Memorandum and the documents included therein and the
representations and warranties of the Company contained herein;
(vi) the Purchaser is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D promulgated under the Securities
Act.
(b) THE PURCHASER HEREBY COVENANTS WITH THE COMPANY NOT TO MAKE ANY
SALE OF THE SHARES UNDER THE REGISTRATION STATEMENT WITHOUT
EFFECTIVELY CAUSING THE PROSPECTUS DELIVERY REQUIREMENT UNDER THE
SECURITIES ACT, AND THE PURCHASER ACKNOWLEDGES AND AGREES THAT
SUCH SHARES ARE NOT TRANSFERABLE ON THE BOOKS OF THE COMPANY
UNLESS THE CERTIFICATE SUBMITTED TO THE TRANSFER AGENT EVIDENCING
THE SHARES IS ACCOMPANIED BY A SEPARATE OFFICER'S CERTIFICATE:
(I) IN THE FORM OF APPENDIX II HERETO, (II) EXECUTED BY AN
OFFICER OF, OR OTHER AUTHORIZED PERSON DESIGNATED BY, THE
PURCHASER, AND (III) TO THE EFFECT THAT (A) THE SHARES HAVE BEEN
SOLD IN ACCORDANCE WITH THE REGISTRATION STATEMENT, THE
SECURITIES ACT AND THE RULES AND REGULATIONS AND ANY APPLICABLE
STATE SECURITIES OR BLUE SKY LAWS AND (B) THE REQUIREMENT OF
DELIVERING A CURRENT PROSPECTUS HAS BEEN SATISFIED. The Purchaser
acknowledges that there may occasionally be times when the
Company must suspend the use of the prospectus forming a part of
the Registration Statement until such time as an amendment or
supplement to the Registration Statement or the Prospectus has
been filed by the Company and any such amendment to the
Registration Statement is declared effective by the Commission,
or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act; provided,
however, that the Company shall not be permitted to suspend the
use of such prospectus for more than an aggregate of up to sixty
days in any one year period and provided, further, that the
Company shall not be permitted to suspend the use of such
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prospectus on more than three occasions in any one year period.
The Purchaser hereby covenants that it will not sell any Shares
pursuant to said prospectus during the period commencing at the
time at which the Company gives the Purchaser written notice of
the suspension of the use of said prospectus and ending at the
time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said
prospectus. The Purchaser further covenants to notify the Company
promptly of the sale of any and all of its Shares.
(c) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power,
authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all
necessary action, obtained all necessary consents and has
satisfied or will satisfy all notification and filing
requirements necessary to authorize the execution, delivery and
performance of this Agreement by the Purchaser, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall
constitute a legal, valid and binding obligation of the
Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' 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) and except as the indemnification agreements of the
Purchaser in Section 7.3 hereof may be legally unenforceable.
14
SECTION 6. Survival of Representations, Warranties and Agreements.
-----------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agents, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
SECTION 7. Registration of the Shares; Compliance with the Securities Act.
---------------------------------------------------------------
7.1 Registration Procedures and Expenses. The Company shall:
---------------------------------------
(a) as soon as practicable, prepare and file with the Commission the
Registration Statement on Form S-3 relating to the sale of the
Shares by the Purchaser from time to time on the Nasdaq National
Market or the facilities of any national securities exchange on
which the Company's Common Stock is then traded or in
privately-negotiated transactions;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Purchasers, to cause the staff of the
Commission to notify the Company of the staff's willingness to
declare the Registration Statement effective within 75 days after
the Registration Statement is filed by the Company;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the
Registration Statement effective until the earlier of (i) two
years after the effective date of the Registration Statement or
(ii) the date on which the Shares may be resold by the Purchasers
without registration by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares registered
under the Registration Statement (and to each underwriter, if
any, of such Shares) such number of copies of prospectuses and
such other documents as the Purchaser may reasonably request, in
order to facilitate the public sale or other disposition of all
or any of the Shares by the Purchaser; provided, however, that
the obligation of the Company to deliver copies of prospectuses
to the Purchaser shall be subject to the receipt by the Company
15
of reasonable assurances from the Purchaser that the Purchaser
will comply with the applicable provisions of the Securities Act
and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser;
provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not so
consented; and
(f) bear all expenses in connection with the procedures in paragraphs
(a) through (e) of this Section 7.1 and the registration of the
Shares pursuant to the Registration Statement, other than fees
and expenses, if any, of counsel or other advisers to the
Purchaser or the Other Purchasers or underwriting discounts,
brokerage fees and commissions incurred by the Purchaser or the
Other Purchasers, if any.
7.2 Transfer of Shares After Registration. The Purchaser agrees
----------------------------------------
that it will not effect any disposition of the Shares or its right to purchase
the Shares that would constitute a sale within the meaning of the Securities
Act, except as contemplated in the Registration Statement referred to in Section
7.1, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Purchaser or
its plan of distribution.
7.3 Indemnification. For the purpose of this Section 7.3:
---------------
(i) the term "Purchaser/Affiliate" shall mean the Purchaser and
any person who controls the Purchaser within the meaning of
Section 15 of the Securities Act; and
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or
relating to the Registration Statement referred to in
Section 7.1.
16
(a) The Company agrees to indemnify and hold harmless each of the
Purchasers and each Purchaser/Affiliate, against any losses,
claims, damages, liabilities or expenses, joint or several, to
which such Purchasers or such Purchaser/Affiliate may become
subject, under the Securities Act, the Exchange Act, or any other
federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company),
insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof as contemplated below) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement, including the prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as
amended at the time of effectiveness of the Registration
Statement, including any information deemed to be a part thereof
as of the time of effectiveness pursuant to paragraph (b) of Rule
430A, or pursuant to Rule 434, of the Rules and Regulations, or
the prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of
the Registration Statement at the time of effectiveness if no
Rule 424(b) filing is required (the "Prospectus"), or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state in any of them a
material fact required to be stated therein or necessary to make
the statements in any of them not misleading in light of the
circumstances under which they were made, or arise out of or are
based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this
Agreement, or any failure of the Company to perform its
obligations hereunder or under law, and will reimburse the
Purchaser and each such Purchaser/Affiliate for any legal and
other expenses as such expenses are reasonably incurred by such
Purchaser or such Purchaser/Affiliate in connection with
investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided,
however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage, liability or
17
expense arises out of or is based upon (i) an untrue statement
or alleged untrue statement or omission or alleged omission made
in the Registration Statement, the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by the Purchaser
expressly for use therein, or (ii) the failure of such Purchaser
to comply with the covenants and agreements contained in Sections
5(b) or 7.2 hereof respecting the sale of the Shares, or (iii)
the inaccuracy of any representations made by such Purchaser
herein or (iv) any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was
delivered to the Purchaser prior to the pertinent sale or sales
by the Purchaser.
(b) Each of the Purchasers will severally indemnify and hold harmless
the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act
against any losses, claims, damages, liabilities or expenses to
which the Company, each of its directors, each of its officers
who signed the Registration Statement or controlling person may
become subject, under the Securities Act, the Exchange Act, or
any other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written
consent of such Purchaser) insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof
as contemplated below) arise out of or are based upon (i) any
failure to comply with the covenants and agreements contained in
Sections 5(b) or 7.2 hereof respecting the sale of the Shares or
(ii) the inaccuracy of any representation made by such Purchaser
herein or (iii) any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the
18
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any Purchaser expressly for use therein, and will reimburse the
Company, each of its directors, each of its officers who signed
the Registration Statement or controlling person for any legal
and other expense reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration
Statement or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this Section
7.3 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this Section 7.3
promptly notify the indemnifying party in writing thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
for contribution or otherwise than under the indemnity agreement
contained in this Section 7.3 or to the extent it is not
prejudiced as a result of such failure. In case any such action
is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other
indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be a conflict between the positions of the indemnifying party
and the indemnified party in conducting the defense of any such
action or that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel
to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of
19
such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7.3 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection
with the assumption of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses
of more than one separate counsel, approved by such indemnifying
party in the case of paragraph (a), representing all of the
indemnified parties who are parties to such action, or (ii) the
indemnified party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of action, in each of which cases the reasonable
fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an
indemnified party under paragraphs (a), (b) or (c) of this
Section 7.3 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the placement of
Common Stock or
20
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but the relative fault of the Company and the Purchaser
in connection with the statements or omissions or inaccuracies in
the representations and warranties in this Agreement that
resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
each Purchaser on the other shall be deemed to be in the same
proportion as the amount paid by such Purchaser to the Company
pursuant to this Agreement for the Shares purchased by such
Purchaser that were sold pursuant to the Registration Statement
bears to the difference (the "Difference") between the amount
such Purchaser paid for the Shares that were sold pursuant to the
Registration Statement and the amount received by such Purchaser
from such sale. The relative fault of the Company on the one hand
and each Purchaser on the other shall be determined by reference
to, among other things, whether the untrue or alleged statement
of a material fact or the omission or alleged omission to state a
material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by
the Company or by such Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in paragraph (c) of
this Section 7.3, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in
paragraph (c) of this Section 7.3 with respect to the notice of
the threat or commencement of any threat or action shall apply if
a claim for contribution is to be made under this paragraph (d);
provided, however, that no additional notice shall be required
with respect to any threat or action for which notice has been
given under paragraph (c) for purposes of
21
indemnification. The Company and each Purchaser agree that it
would not be just and equitable if contribution pursuant to this
Section 7.3 were determined solely by pro rata allocation (even
if the Purchaser were treated as one entity for such purpose) or
by any other method of allocation which does not take account of
the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 7.3, no Purchaser
shall be required to contribute any amount in excess of the
amount by which the Difference exceeds the amount of any damages
that such Purchaser has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
The Purchasers' obligations to contribute pursuant to this Section 7.3 are
several and not joint.
7.4 Termination of Conditions and Obligations. The restrictions
-------------------------------------------
imposed by Section 5 or this Section 7 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares on the date
all such Shares are eligible for sale under Rule 144(k) or at such time as an
opinion of counsel satisfactory in form and substance to the Company shall have
been rendered to the effect that such conditions are not necessary in order to
comply with the Securities Act.
7.5 Information Available. So long as the Registration Statement
----------------------
is effective covering the resale of Shares owned by the Purchaser, the Company
will furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 130 days after
the end of each fiscal year of the Company), one copy of (i) its
Annual Report to Stockholders (which Annual Report shall contain
financial statements audited in accordance with generally
accepted accounting principles by a national firm of certified
public accountants), (ii) if not included in substance in the
Annual Report to Stockholders, its Annual Report on Form 10-K,
(iii) its Quarterly Reports on Form 10-Q, (iv) its Current
Reports on Form 8-K, and (v) a full copy of the particular
Registration Statement covering the Shares (the foregoing, in
each case, excluding exhibits);
22
(b) upon the reasonable request of the Purchaser, all exhibits
excluded by the parenthetical to subparagraph (a)(v) of this
Section 7.5;
(c) upon the reasonable request of the Purchaser, a reasonable number
of copies of the prospectuses to supply to any other party
requiring such prospectuses; and
(d) upon the reasonable request of the Purchaser, the Company will
meet with the Purchaser or a representative thereof at the
Company's headquarters to discuss information relevant for
disclosure in the Registration Statement covering the Shares,
subject to appropriate confidentiality limitations as the Company
may reasonably require.
SECTION 8. Broker's Fee. The Purchaser acknowledges that the Company
-------------
intends to pay to the Placement Agents a fee in respect of the sale of the
Shares to the Purchaser. Each of the parties hereto hereby represents that, on
the basis of any actions and agreements by it, there are no other brokers or
finders entitled to compensation in connection with the sale of the Shares to
the Purchaser.
SECTION 9. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
LifeCell Corporation
Xxx Xxxxxxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Chief Financial Officer
Facsimile: 000-000-0000
23
or to such other person at such other place as the Company shall designate
to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may have
been furnished to the Company in writing.
SECTION 10. Changes. This Agreement may not be modified or amended except
-------
pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 11. 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.
SECTION 12. 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.
SECTION 13. Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York and the federal
law of the United States of America, without regard to conflicts of law
provisions.
SECTION 14. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all 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 parties.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
LIFECELL CORPORATION
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Print or Type:
Name of Purchaser (Individual or Institution):
_________________________________________
Name of Individual representing Purchaser (if an Institution)
_________________________________________
Title of Individual representing Purchaser (if an Institution)
_________________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser:
___________________________
Address:___________________
Telephone:_________________
Facsimile:_________________
25
Appendix I
(one of two)
LIFECELL CORPORATION
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of this Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
_________________________________________________________________________
2. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above:
___________________________________________________________________________
3. The mailing address of the Registered Holder listed in response to item 1
above:
___________________________________________________________________________
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
___________________________________________________________________________
26
LIFECELL CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
2. Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Agreement and those shares purchased by you
or your organization through other transactions:
3. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates?
Yes No
---------- ----------
If yes, please indicate the nature of any such relationships below:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
27
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
__________________ [fill in official name of individual or institution] hereby
certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on ________
[date] in accordance with Registration Statement number _______ [fill in the
number of or otherwise identify Registration Statement] and the requirement of
delivering a current prospectus by the Company has been complied with in
connection with such sale.
Print or Type:
Name of Purchaser
(Individual or Institution):
________________________________
Name of Individual representing Purchaser (if an Institution)
________________________________
Title of Individual representing Purchaser (if an Institution):
________________________________
Signature by:
Individual Purchaser or Individual representing Purchaser:
________________________________
28
