STOCK PURCHASE AGREEMENT
Exhibit
10.1
This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of September 27, 2007, is entered into by and between Protein
Polymer Technologies, Inc.,
a
Delaware corporation with an address at 00000
Xxxxxxxx Xxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000
(“PPTI”),
and
TAG
Virgin Islands, Inc.,
with
an
address at The
Tunick Building,
0000
Xxxxxxx Xxxx, Xxxxx 000, Xx. Xxxxxx, XXXX 00000 as
agent
(the “Agent”) for the purchasers listed on the Schedule
of Purchasers
appended
hereto as Schedule
I,
which
may be amended from time to time to add additional purchasers
(collectively, the “Purchasers”).
RECITALS
WHEREAS,
the Purchasers desire to purchase and acquire, and PPTI desires to issue and
sell to the Purchasers, from time to time in accordance with the terms hereof
shares of common stock, par value $0.01 (the “Common
Stock”)
of
PPTI and warrants to purchase Common Stock in the form attached as Exhibit
A
hereto
(the “Warrants”)
as
set
forth on the
Schedule of Purchasers;
and
WHEREAS,
the parties hereto desire to enter into this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Purchase
and Sale of Common Stock; Issuance of Warrants; Registration Rights; Termination
of Agreement.
1.1 Purchase,
Sale and Issuance of Common Stock. Subject
to the terms and conditions of this Agreement, the Purchasers will purchase
from
PPTI (each a “Purchase”)
and
PPTI will sell to the Purchasers, from time to time, shares (the “Shares”)
of
Common Stock. The period during which the Purchases will be effected will
commence on the date hereof and terminate on the date that this Agreement is
terminated as provided in Section
1.5
below.
The Purchase Price shall be determined in accordance with the terms of
Section
1.2
below.
The Agent shall determine, by notice to PPTI (the “Purchase
Notice”),
when
each Purchase shall be made and when the Closing, as
defined in Section
2
below,
for
such Purchase shall be effected. At each Closing, the Purchasers, as provided
in
the
Schedule of Purchasers,
will
purchase from PPTI and PPTI will sell and issue to such Purchasers, the number
of Shares for the Purchase Price set forth in the Purchase Notice for such
Closing. The
Schedule of Purchasers
shall be
amended to reflect each Purchase.
1.2 Definition
of Purchase Price. For the purpose of this Agreement, “Purchase Price” shall
mean the per share closing price of the Common Stock on the day that a Purchase
is effected. The closing price for each such day shall be the last reported
sales price regular way or, in case no such reported sale takes place on such
day, the closing bid price regular way, in either case on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the highest reported bid price as furnished by the National
Association of Securities Dealers, Inc. through NASDAQ or similar organization
if NASDAQ is no longer reporting such information, or by the Pink Sheets, LLC
or
similar organization if the Common Stock is not then quoted on an inter-dealer
quotation system. If on any such date the Common Stock is not quoted by any
such
organization, the fair value of the Common Stock on such date, as determined
in
good faith by PPTI's Board of Directors (the “Board”), shall be used.
1.3 Issuance
of Warrants. At each Closing, subject to the provisions of Section
1.4
below,
PPTI shall issue to each Purchaser purchasing Shares at the Closing, subject
to
compliance with applicable securities laws, Warrants to purchase such number
of
shares of Common Stock as shall equal the number of Shares purchased by such
Purchaser at the Closing. The Warrants shall be cashless and shall be
exercisable commencing immediately for a period of five years at a per share
price, subject to applicable anti-dilution provisions, equal to 10% above the
Purchase Price of the Shares purchased by the Purchaser (the “Warrant Exercise
Price”).
1.4 Agent’s
Right to Advise
Board on Disbursement ot Purchase Proceeds; Registration Rights Agreement.
As additional consideration for the Purchasers agreeing to purchase the Shares
and acquire the Warrants, the Agent will advise the Board on the disbursement
of
the proceeds remitted to PPTI for each Purchase, and PPTI will enter into the
Registration
Rights Agreement
with the
Purchasers in the form appended hereto as Exhibit
B.
1.5 Termination
of Agreement. The Agent may terminate this Agreement at any time upon notice
to
PPTI.
2. Closing.
2.1 Closing
Date. The purchase and sale of the Shares and the Warrants hereunder shall
take
place at a closing (the “Closing”),
which
shall be held at such time and place upon which PPTI and the Agent shall
agree.
2.2 Actions
by PPTI at the Closing. PPTI shall deliver to each Purchaser a
stock
certificate or certificates for the Shares and the Warrants, registered in
the
name of such Purchaser and the executed Registration Rights Agreement.
2.3 Actions
by the Purchasers at the Closing. Each Purchaser shall deliver to PPTI the
Purchase
Price for the Shares and the Warrants purchased at the Closing by such
Purchaser.
3. Representations
and Warranties of PPTI.
PPTI
hereby represents and warrants to the Agent and the Purchasers
that:
3.1
Organization;
Good Standing; Qualification and Corporate Power.
-2-
(a)
PPTI
and
each of its subsidiaries, if any, is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to carry
on
its business as now conducted and as proposed to be conducted. PPTI and each
of
its subsidiaries, if any, is duly qualified to transact business and is in
good
standing in each jurisdiction in which the failure so to qualify would have
a
material adverse effect on its business or properties. True and correct copies
of PPTI Certificate of Incorporation, as amended (the "Certificate
of Incorporation")
and
Bylaws have been provided to the Purchasers or made available via the SEC XXXXX
website.
(b)
PPTI
has
all requisite legal and corporate power and authority to execute and deliver
this Agreement, to issue the Shares and the Warrants and to carry out and
perform its obligations under the terms of this Agreement and to consummate
the
transactions contemplated hereby and thereby. All necessary corporate action
has
been taken by PPTI with respect to the execution, delivery and performance
by
PPTI of this Agreement and the consummation of the transactions contemplated
hereby and thereby. The Shares, when issued in
accordance pursuant to the terms of the Agreement,
will be
legally issued, fully paid and non assessable and each Purchaser will own the
Shares purchased by such Purchaser, free and clear of all liens and
encumbrances. The Warrants, when issued in accordance with the terms of the
Agreement, will constitute the legally binding obligation of PPTI in accordance
with their terms.
3.2
Capitalization
and Voting Rights. PPTI’s authorized capital consists of:
(a)
Common Stock. 1,000,000,000 shares of Common Stock, of which 67,809,204 shares
are issued and outstanding as of the date hereof. The Common Stock is currently
accepted for trading on the Over The Counter Bulletin Board.
(b)
Preferred Stock. 5,000,000 shares of preferred stock (the "Preferred
Stock"),
of
which, as of the date hereof, an aggregate of 65,445 shares are issued and
outstanding.
3.3
Subsidiaries;
Interests of PPTI. Except as set forth in the SEC Documents, as defined in
Section
3.5
below,
PPTI does not currently own or control, directly or indirectly, any interest
in
any other partnership, limited liability company, corporation, joint stock
company, trust, estate, joint venture, association or unincorporated
organization, or any other form of business or professional entity.
3.4
Authorization.
This Agreement and all other agreements executed and delivered by PPTI in
connection therewith, have been duly authorized, executed and delivered by
PPTI
and constitute the legal, valid and binding obligations of PPTI, enforceable
in
accordance with their respective terms, subject to (i) applicable bankruptcy,
insolvency, reorganization and moratorium laws, (ii) other laws of general
application affecting the enforcement of creditors' rights generally and general
principles of equity, (iii) the discretion of the court before which any
proceeding therefor may be brought, and (iv) as rights to indemnity may be
limited by federal or state securities laws or by public policy.
-3-
3.5 SEC
Documents. PPTI has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Securities and Exchange Commission
(the “Commission”)
pursuant to the Securities Act of 1933 (the “Securities
Act”)
and
the Securities Exchange Act of 1934 (the “Exchange
Act”)
(the
“SEC
Documents”).
PPTI
is not currently eligible to use Form S-3 for stockholder registration
statements under the Securities Act. The SEC Documents have complied in all
material respects with the requirements of the Securities Act or the Exchange
Act, as the case may be, and the rules and regulations of the Commission
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading. As of their
respective dates, to the best of PPTI’s knowledge during those respective dates,
the financial statements of PPTI included in the SEC Documents complied as
to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect thereto. Such
financial statements have been prepared in accordance with accounting principles
generally accepted in the United States as in effect from time to time
(“GAAP”),
consistently applied, during the periods involved (except (a) as may be
otherwise indicated in such financial statements or the notes thereto, or (b)
in
the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in
all
material respects the financial condition of PPTI as of the respective dates
thereof and the results of its operations and cash flows for the respective
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the SEC Documents, PPTI
has
not received notification from the Commission, and/or any federal or state
securities bureaus that any investigation (informal or formal), inquiry or
claim
is pending, threatened or in process against PPTI and/or relating to any of
PPTI’s securities.
3.6
Governmental
Consents. No consent, approval, order, or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state,
local or provincial governmental authority on the part of PPTI is required
in
connection with the consummation of the transactions contemplated by this
Agreement. PPTI and each of its subsidiaries, if any, has obtained all federal,
state, local and foreign governmental licenses and permits material to and
necessary in the conduct of its business, such licenses and permits are in
full
force and effect, no material violations are or have been recorded in respect
of
any such licenses or permits, and no proceeding is pending or threatened to
revoke or limit any thereof. There are no consents or waivers necessary for
the
consummation of the transactions contemplated by this Agreement.
3.7
Litigation.
Except as set forth in the SEC Documents, (i) there is no action, suit,
proceeding, or investigation pending or currently threatened against PPTI,
and
(ii) in PPTI’s reasonable judgment, none of such disclosures are likely to
question the validity of this Agreement, or the right of PPTI to enter into
such
agreements, or to consummate the transactions contemplated hereby or thereby,
or
which might result, either individually or in the aggregate, in any material
adverse change in the assets, condition, affairs, or property of PPTI,
financially or otherwise, or any change in the current equity ownership of
PPTI,
including, without limitation, actions pending or to PPTI’s knowledge threatened
involving the prior employment of any of PPTI’s employees, their use in
connection with PPTI’s business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations under any
agreements with prior employers.
-4-
3.8
Compliance
with Other Instruments. PPTI is not in violation or default of any provisions
of
its Certificate of Incorporation or Bylaws or of any instrument, judgment,
order, writ, decree, or contract to which it is a party or by which it is bound
or, to its knowledge, of any provision of federal or state statute, rule or
regulation, license, or permit applicable to PPTI, the violation or default
of
which would have a material adverse effect on PPTI. The execution, delivery,
and
performance of this Agreement and the consummation of the transactions
contemplated hereby and thereby will not result in any such violation or be
in
conflict with or constitute, with or without the passage of time and giving
of
notice, either a default under any such provision, instrument, judgment, order,
writ, decree, or material contract or an event which results in the creation
of
any lien, charge, or encumbrance upon any assets of PPTI.
4. Representations
and Warranties of the Purchasers.
Each
Purchaser represents and warrants to PPTI as follows:
4.1 Review
and Inspection. The Purchaser is relying on his own analysis regarding PPTI’s
operations, financial condition, assets, liabilities and other relevant matters
as the Purchaser deemed necessary or desirable in order to evaluate the merits
and risks of the prospective investment contemplated herein. The
Purchaser acknowledges
that he has not relied upon any information given to the Purchaser, or any
statements made, by PPTI or any officers or directors of PPTI, except for the
representations and warranties of PPTI expressly made herein.
4.2 Purchaser
Due Diligence. The Purchaser and his representatives are solely responsible
for
the Purchaser’s own “due diligence” investigation of PPTI and its management and
business and for the Purchaser’s analysis of the financial future and viability
of PPTI and desirability of the terms of this investment. The Purchaser
acknowledges that neither PPTI nor any officer or director of PPTI is making
any
representation or warranty regarding any financial projections previously given
to the Purchaser or the assumptions underlying such financial projections,
as
such financial projections are subject to significant business, economic and
other uncertainties and contingencies. The Purchaser acknowledges that if PPTI
is not able to operate profitably or generate positive cash flows, PPTI may
have
difficulty meeting its obligations and may not be able to continue to operate
its business, and the Purchaser could lose all of his investment. The Purchaser
has such knowledge and experience in financial and business matters that he
is
capable of evaluating the merits and risks of the purchase of the Shares
pursuant to the terms of this Agreement and of protecting his interest in
connection therewith.
-5-
4.3 Accredited
Investor Status.
The
Purchaser is an “Accredited Investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act and the Purchaser is able
to
bear the economic risk of the purchase of the Shares pursuant to the terms
of
this Agreement, including a complete loss of his investment in the
Shares.
4.4 Authority
for Agreement.
The
Purchaser has the full right, power and authority to enter into and perform
his
obligations under the Agreement, and the Agreement constitutes the valid and
binding obligations of the Purchaser enforceable in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, reorganization and moratorium
laws, (ii) other laws of general application affecting the enforcement of
creditors' rights generally and general principles of equity, (iii) the
discretion of the court before which any proceeding therefor may be brought,
and
(iv) as rights to indemnity may be limited by federal or state securities laws
or by public policy..
4.5 Governmental
Consents.
To the
Purchaser’s knowledge, no consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of the
Purchaser is required in connection with the valid execution, delivery and
performance of the Agreement.
4.6 Taxes.
The
Purchaser has not relied on any statements or representations of PPTI or any
of
its agents (other than the representations and warranties set forth herein)
with
respect to the federal, state, local and foreign tax consequences of this
investment and the federal, state, local and foreign tax consequences of
transactions contemplated by this Agreement. With respect to such matters,
the
Purchaser understands that he (and not PPTI) shall be responsible for his own
tax liability that may arise as a result of this investment or the transactions
contemplated by this Agreement.
4.7
Restricted
Securities.
The
Purchaser understands that the Shares and the Common Stock issuable upon
exercise of the Warrants have not been registered under the Securities Act
or
the laws of any state and may not be sold or transferred, or otherwise disposed
of, without registration under the Securities Act and applicable state
securities laws, or pursuant to an exemption therefrom. In the absence of an
effective registration statement or an exemption therefrom covering the Shares
and the Common Stock issuable upon exercise of the Warrants, the Purchaser
will
sell or transfer, or otherwise dispose of, the Shares to be acquired by him
only
in a manner consistent with his representations and agreements set forth herein
and any applicable federal and state securities laws.
4.8
Legends.
It is
understood that the certificates evidencing the Shares may bear the following
legend:
(a)
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES EVIDENCED BY THIS
CERTIFICATE, FILED AND MADE EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
SUCH
APPLICABLE STATE SECURITIES LAWS OR, UNLESS REASONABLY REQUESTED BY THE COMPANY,
THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT AND SUCH APPLICABLE
STATE
SECURITIES LAWS IS NOT REQUIRED.
-6-
(b)
Any
legend required by the securities (“Blue Sky”) laws of any state.
The
legend referred to in clause (a) above shall be removed by PPTI from any
certificate at such time as the holder of the securities represented by the
certificate delivers an opinion of counsel reasonably satisfactory to PPTI
to
the effect that such legend is not required in order to establish compliance
with any provisions of the Securities Act, or at such time as the holder of
such
shares satisfies the requirements of Rule 144(k) or such other substantially
similar rule promulgated under the Securities Act then in effect under the
Securities Act; provided, that PPTI has received from the holder a written
representation that (i) such holder is not an affiliate of PPTI and has not
been
an affiliate during the preceding three months, (ii) such holder has
beneficially owned and paid for the shares represented by the certificate for
a
period of at least two years (or the period of time then required by Rule 144(k)
or such other substantially similar rule promulgated under the Securities Act
then in effect), and (iii) such holder otherwise satisfies the requirements
of
Rule 144(k) as then in effect with respect to such shares.
5. Conditions
to the Obligations of the Purchasers.
The
obligation of the Purchasers to purchase the Shares at the Closing is subject
to
the fulfillment, or the written waiver, of each of the following conditions
on
or before the Closing:
5.1 Accuracy
of Representations and Warranties. Each representation and warranty of PPTI
contained in Section
3
hereof
shall be true on and as of the Closing Date with the same effect as though
such
representation and warranty had been made on and as of that date.
5.2 Performance.
PPTI shall have performed and complied with all covenants, agreements and
conditions contained in this Agreement and required to be performed or complied
with by PPTI prior to or at the Closing.
5.3 Proceedings
and Documents. All documents and instruments incident to the transactions
contemplated at the Closing shall be reasonably satisfactory in substance and
form to each Purchaser and his counsel.
-7-
5.4
Share
Certificates and Warrants. Each Purchaser shall have received a certificate
or
certificates representing such number of Shares of his investment and the
Warrants registered in his name as set forth on the
Schedule of Purchasers.
5.6 Execution
of Registration Rights Agreement. PPTI shall have executed and delivered to
the
Purchaser the Registration Rights Agreement in the form appended hereto as
Exhibit
B.
6. Conditions
to the Obligations of PPTI.
The
obligation of PPTI to sell the Shares and deliver the Warrants at the Closing
is
subject to fulfillment, or the written waiver, of each of the following
conditions on or before the Closing:
6.1 Accuracy
of Representations and Warranties. Each representation and warranty of the
Purchasers contained in Section
4
hereof
shall be true on and as of the Closing Date with the same effect as though
such
representation and warranty had been made on and as of that date.
6.2 Performance.
All covenants, agreements and conditions contained in this Agreement and
required to be performed by the Purchasers on or prior to the Closing Date
shall
have been performed or complied with in all material respects.
7.
Covenants
of PPTI.
In
addition to any covenants set forth in PPTI's Certificate of Incorporation,
PPTI
agrees that, so long as any Purchaser and/or an affiliate thereof beneficially
owns any Shares and/or a Warrant remains outstanding:
7.1
Maintenance
of Existence. PPTI shall at all times (a) preserve, renew and keep in full
force
and effect its legal existence and rights and franchises with respect thereto;
and (b) maintain in full force and effect all patents, copyrights, permits,
licenses, trademarks, trade names, approvals, authorizations, leases and
contracts necessary to carry on the business as currently or proposed to be
conducted.
7.2 Payment
of Obligations. PPTI shall pay and discharge at or before maturity, all of
its
material obligations and liabilities, including, without limitation, tax
liabilities, except where the same may be contested in good faith by appropriate
proceedings or as waived, forgiven or modified by the creditor, and will
maintain, in accordance with generally accepted accounting principles as they
then exist, appropriate reserves for the accrual of any of the
same.
7.3 Reservation
of Shares. PPTI shall at all times duly reserve for issuance the shares of
Common Stock issuable upon exercise of the Warrants.
-8-
8.
Indemnity.
PPTI
shall, with respect to the representations, warranties, covenants and agreements
made by it herein indemnify, defend and hold each Purchaser and his employees,
partners, agents, counsel and affiliates (each, an “Indemnified
Party”)
harmless from and against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including legal and accounting
fees and expenses), arising from the untruth, inaccuracy or breach of any such
representations, warranties, covenants or agreements of PPTI contained in this
Agreement or the assertion of any claims relating to the foregoing. Without
limiting the generality of the foregoing, each Indemnified Party shall be deemed
to have suffered liability, loss or damage as a result of the untruth,
inaccuracy or breach of any such representations, warranties, covenants or
agreements if such liability, loss or damage shall be suffered by the
Indemnified Party as a result of, or in connection with, such untruth,
inaccuracy or breach or any facts or circumstances constituting such untruth,
inaccuracy or breach. PPTI shall indemnify and hold harmless each Indemnified
Party against any losses, claims, damages or liabilities, joint or several,
to
which any of the foregoing persons may become subject, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or
are based upon any violations by PPTI of the Securities Act or state Blue Sky
laws applicable to PPTI relating to action or inaction required of PPTI in
connection with the Securities Act or registration or qualification under such
state Blue Sky laws; and shall reimburse each such Indemnified Party for any
legal or any other expenses reasonably incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided,
however,
that no
indemnification shall be required hereunder for the gross negligence or willful
misconduct of any Indemnified Party or material breach by a Purchaser of any
of
the representations and warrants set forth in Section
4
hereof.
In case any such action is brought against an Indemnified Party, PPTI will
be
entitled to participate in and assume the defense thereof with counsel
reasonably satisfactory to such Indemnified Party, and after notice from PPTI
to
such Indemnified Party of its election to assume the defense thereof, PPTI
shall
be responsible for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, provided that if any Indemnified
Party shall have reasonably concluded that there may be one or more legal
defenses available to such Indemnified Party that conflict in any material
respect with those available to PPTI, or that such claims or litigation involves
or could have an effect upon matters beyond the scope of the indemnity provided
by this Section
8,
PPTI
shall reimburse such Indemnified Party and shall not have the right to assume
the defense of such action on behalf of such Indemnified party and PPTI shall
reimburse each such Indemnified Party and any individual, partnership, limited
liability company, corporation, joint stock company, trust, estate, joint
venture, association or unincorporated organization, or any other form of
business or professional entity (“Person”) controlling such Indemnified Party
for that portion of the reasonable fees and expenses of any counsel retained
by
the Indemnified Party. PPTI shall not make any settlement of any claims
indemnified against hereunder without the written consent of the Indemnified
Party or Parties, which consent shall not be unreasonably withheld. Any claim
for indemnification under this Section
8
with
respect to representations and warranties must be made not later than the end
of
the 12-month survival period set forth in Section
9.2.
9. Miscellaneous.
9.1 Assignment.
This Agreement and all of the provisions hereof will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as provided in Section
8,
neither
this Agreement nor any of the rights, interests or obligations hereunder may
be
assigned by any party without prior written consent of the other
party.
-9-
9.2 Survival
of Representations and Warranties. The warranties, representations and covenants
of PPTI and the Purchasers contained in or made pursuant to this Agreement
shall
survive the execution and delivery of this Agreement and the Closing for a
period of 12 months and shall in no way be affected by any investigation of
the
subject matter thereof made by or on behalf of the Purchasers or
PPTI..
9.3 Notices.
Unless otherwise provided, any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given (i) upon
personal delivery to the party to be notified, (ii) four days after deposit
with
the United States Post Office, by registered or certified mail, postage prepaid,
or (iii) one day after deposit with a reputable overnight courier service and
addressed to the party to be notified:
If
to
PPTI:
Protein
Polymer Technologies, Inc.
00000
Xxxxxxxx Xxxxxx Xxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx
X. Xxxxxxxxx, III
President
and Chief Executive Officer
If
to the
Purchasers:
TAG
Virgin Islands, Inc.
The
Tunick Building
0000
Xxxxxxx Xxxx, Xxxxx 000
Xx.
Xxxxxx, XX 00000
Attn: Xxxxx
Xxxxxxxxxxx, President
9.4 Brokers.
Each Purchaser, on the one hand, and PPTI, on the other hand (a) represents
and warrants to the other party that he/it has not retained any finders or
brokers in connection with the transactions contemplated by this Agreement,
and
(b) will indemnify and save the other party harmless from and against any
and all claims, liabilities or obligations with respect to brokerage or finders’
fees or commissions, or consulting fees in connection with the transactions
contemplated by this Agreement asserted by any Person on the basis of any
statement or representation alleged to have been made by him/it.
9.5 Expenses.
PPTI and the Purchasers shall bear their own expenses incurred with respect
to
this Agreement and the transactions contemplated hereby except that PPTI shall
pay the reasonable fees and expenses incurred by the Purchasers for the legal
services rendered to them with respect to this Agreement and the transactions
contemplated hereby.
-10-
9.6 Entire
Agreement. This Agreement and the other documents delivered pursuant to the
Agreement at the Closing embody the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersede
all
prior agreements and understandings relating to such subject
matter.
9.7 Amendments
and Waivers. Any term of this Agreement may be amended and the observance of
any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of PPTI and the Purchasers. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall
be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
9.8 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which shall be one and the same
document.
9.9 Section
Headings. The Section headings are for the convenience of the parties and in
no
way alter, modify, amend, limit, or restrict the contractual obligations of
the
parties.
9.10 Severability.
Any part, provision, representation or warranty of this Agreement that is
prohibited or that is held to be void or unenforceable shall be ineffective
solely to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
9.11 Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the jurisdiction
to be determined by Agent (without
regard to its conflict of laws principles). The parties hereto irrevocably
consent to the exclusive personal jurisdiction of the federal and state courts
located in the jurisdiction to be determined by Agent, as applicable, for any
matter arising out of or relating to this Agreement.
(signature
page to follow)
-11-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
| PROTEIN POLYMER TECHNOLOGIES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Plamodon, III | |
|
Name: Xxxxxxx
X. Xxxxxxxxx, III
Title: President
and Chief Executive Officer
|
||
|
TAG VIRGIN ISLANDS, INC.,
as agent for the Purchasers
|
||
| |
|
|
| By: | Xxxxx Xxxxxxxxxxx | |
|
Name: Xxxxx
Xxxxxxxxxxx
Title: President
|
||
-12-
