SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
This
Series B Convertible Preferred Stock Purchase Agreement (this "Agreement") is made as of
October 14, 2010, by and among Xenogenics Corporation, a Nevada corporation (the
"Company"), and the
Multicell Technologies, Inc., a Delaware corporation (the "Purchaser").
RECITALS
WHEREAS,
effective September 30, 2010, the Company (i) acquired the bioabsorbable stent
assets of Bioabsorbable Therapeutics Inc. pursuant to the Foreclosure Sale
Agreement, dated September 30, 2010 (the “Foreclosure Sale
Agreement”), between the Company and Venture Lending & Leasing V,
Inc., Venture Lending & Leasing IV, Inc., and Silicon Valley Bank, and (ii)
entered into a worldwide exclusive license agreement with Rutgers, The State
University of New Jersey (the “License
Agreement”);
WHEREAS,
the Purchaser advanced a total of $185,000 (the “Advance”) to the Company on
or about September 30, 2010 to enable the Company to enter into the Foreclosure
Sale Agreement and the License Agreement; and
WHEREAS,
in addition to the Advance, the Company owes the Purchaser a total of $385,000,
representing loans and advances previously made by the Purchaser to, or on
behalf of the Company (the “Outstanding Loans”);
and
WHEREAS,
it is in the best interests of both the Company that the Purchaser exchange the
Advance and the Outstanding Loans for shares of the Company’s capital stock and
that the Company also raise additional capital to develop its newly acquired
bioabsorbable stent assets and to fund its other related activities;
and
WHEREAS,
the Purchaser is willing to (i) acquire shares of a new series of preferred
stock in exchange for the Advance and the Outstanding Loans, and (ii) make
additional cash investments in the Company by purchasing shares of such
preferred stock;
NOW,
THEREFORE, in consideration of the mutual promises and covenants herein, the
receipt and sufficiency are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
SECTION
1
Authorization and Sale of
Series B Convertible Preferred Stock
1.1. Authorization
of Series B Preferred Stock. The Company has authorized
the sale and issuance of up to 25,000,000 shares of its Series B Convertible
Preferred Stock, $0.001 par value (the "Series B Preferred"),
having the rights, preferences, privileges and restrictions as set forth in the
Certificate of Designation of Preferences, Rights and Limitations Of
Series B Convertible Preferred Stock, the form of which is attached hereto
as Exhibit A (the "Certificate
of Designation").
1
1.2. Sale and
Issuance of Series B Preferred. Subject to the terms and
conditions hereof, the Company hereby agrees to issue and sell to the Purchaser,
and the Purchaser hereby agrees that it will purchase from the Company up to a
maximum of 22,205,250 shares of Series B Preferred (the "Shares") at a per share
purchase price of $0.0376 (the "Per Share
Price").
1.3. Tranches. The
Company hereby agrees to issue and sell to the Purchaser, and the Purchaser
hereby agrees to purchase, the Shares in three tranches as follows:
(a) At
the First Closing (as defined below), the Company shall issue and sell to the
Purchaser, and the Purchaser shall acquire from the Company, (i) 4,920,213
Shares in exchange for the cancellation of the Advance, and (ii) 10,237,165
Shares in exchange for the Outstanding Loans. Upon the issuance of
the foregoing Shares, the Advance and the Outstanding Loans shall both be deemed
to have been repaid in full, and all of the Company’s obligations to repay the
Advance or the Outstanding Loans shall thereafter irrevocably be terminated and
cancelled.
(b) On
or before November 15, 2010, the Company shall issue and sell to the Purchaser,
and the Purchaser shall acquire from the Company, 3,590,426 Shares for a total
purchase price of $135,000, payable in cash.
(c) On
or before December 31, 2010, the Company shall issue and sell to the Purchaser,
and the Purchaser shall acquire from the Company, 3,457,446 Shares for a total
purchase price of $130,000, payable in cash.
SECTION
2
Closing Date;
Delivery
2.1. Closing
Date. Subject
to the satisfaction of the conditions set forth in Sections 5 and 6, it is
anticipated that purchase and sale of the Shares pursuant to Section 1.3(a) (the
“First Closing”) shall
be consummated at a closing to be held at the Company’s offices located at 00
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, on October 15, 2010 at
9:00 a.m., local time, or at such other dates, times and places upon which
the Company and the Purchaser shall agree. Each subsequent purchase
of Shares shall likewise be consummated at the Company’s offices. The
First Closing of each of the two subsequent purchases under Sections 1.3(b) and
1.3(c) is herein referred to as a "Closing," and the date and
time of each such Closing is hereinafter referred to as a "Closing Date".
2.2. Delivery
and Payment. At each Closing, the Company will deliver to the
Purchaser a certificate or certificates, registered in the Purchaser's
name, representing the number of Shares to be purchased by the Purchaser at such
Closing, against payment of the purchase price therefor, by wire transfer of
immediately available U.S. funds per the Company's instructions.
SECTION
3
Representations and
Warranties of the Company
Except as
set forth on Exhibit B attached hereto, the Company represents and warrants to
the Purchaser that, as of the date hereof and as of each Closing
Date.
2
3.1. Organization
and Standing; Amended and Restated Articles of
Incorporation. The Company is a corporation duly organized and
existing under, and by virtue of, the laws of the State of Nevada and is in good
standing under such laws. The Company has requisite corporate power
and authority to own and operate its properties and assets and to carry on its
business as presently conducted. The Company is duly qualified to do
business as a foreign corporation and is in good standing in every other
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the business or financial condition of the Company. The
Company has furnished or made available to the Purchaser true and correct copies
of the Company’s Amended and Restated Articles of Incorporation as in effect on
the date hereof.
3.2. Corporate
Power. The Company has all requisite legal and corporate power
and authority to execute and deliver this Agreement, to sell and issue the
Shares hereunder, to issue the shares of the Company’s $.001 par value common
stock upon the conversion of the Shares (the "Conversion Stock") in
accordance with the provisions of the Certificate of Designation, and to carry
out and perform its obligations under the terms of this Agreement.
3.3. Subsidiaries. The
Company has no subsidiaries or affiliated companies and does not otherwise own
or control, directly or indirectly, any equity interest in any corporation,
association or business entity.
3.4. Capitalization. As
of the date of the First Closing, the authorized capital stock of the Company
will consist of 500,000,000 shares of common stock, $0.001 par value (the "Common Stock"), and 50,000,000
shares of preferred stock of which 25,000,000 have been designated Series B
Convertible Preferred Stock. As of the date of this Agreement,
2,659,004 shares of Common Stock are issued and outstanding, and no shares of
any class of series of preferred stock are outstanding. All shares of
the Company’s previously authorized Series A Convertible Limited Term
Preferred Stock (“Series A
Preferred”) have been cancelled, and no shares of Series A Preferred are
outstanding. The Series B Preferred Stock shall have the rights,
preferences, privileges and restrictions set forth in the Certificate of
Designation. If all of the Shares offered hereby are sold and if all
of such shares of Series B Preferred are converted in accordance with the
terms set forth in the Certificate of Designation, the Shares would be converted
into 22,205,250 shares of Common Stock. All currently outstanding
shares of Common Stock have been duly authorized and validly issued, are
fully paid and nonassessable, and have been issued in compliance with applicable
securities laws. A total of 5,000,000 shares of Common Stock are
reserved for issuance under the Company's 2010 Equity Incentive
Plan. Except as set forth on Exhibit B, there are no options,
warrants or other rights to purchase or acquire any of the Company's authorized
and unissued capital stock.
3.5. Authorization. All
corporate action on the part of the Company, its directors and its stockholders
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company, the authorization, sale, issuance and delivery of the
Shares and the Conversion Stock has been taken or will be taken prior to the
First Closing. This Agreement constitutes a valid and binding
obligation of the Company. The Shares, when issued in compliance with
the provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and will have the rights, preferences, privileges and
restrictions described in the Certificate of Designation; the Common Stock
issuable upon conversion of the Shares has been duly and validly reserved and,
when issued in compliance with the provisions of the Certificate of Designation,
will be validly issued, fully paid and nonassessable; and the Shares and the
Conversion Stock will be free of any liens or encumbrances, other than any liens
or encumbrances created by or imposed upon the Purchaser; provided, however,
that the Shares and the Conversion Stock may be subject to restrictions on
transfer under state or federal securities laws. The issuance of the
Shares is not subject to any preemptive rights or rights of first
refusal.
3
3.6. Foreclosure
Sale Agreement; License Agreement. Each of the Foreclosure
Sale Agreement and the License Agreement (the “Material Contracts”) is a
legal, valid and enforceable agreement and will continue to be legal, valid and
enforceable following the consummation of the transactions contemplated by this
Agreement. Neither the Company nor any of the counter-parties to
either of the Material Contracts is or has been in (and no event has occurred
that, with or without notice or lapse of time, would create or constitute a)
breach or violation of, or default under, any of such Material Contract’s
provisions, and to the Company’s knowledge no event has occurred or is likely to
occur that, with or without notice or lapse of time, would give the Company or
any other party to any Material Contract the right to either (i) declare a
default or exercise any remedy under such Material Contract, (ii) accelerate the
performance of, or payment under, such Material Contract, or (iii) cancel,
terminate or modify any such Material Contract.
3.7. Title to
Properties and Assets; Liens, etc. The Company owns its
material properties and assets (including the assets acquired under the
Foreclosure Sale Agreement) free of any material mortgage, pledge, lien,
encumbrance or charge, other than (i) liens for current taxes not yet due
and payable, and (ii) possible minor liens and encumbrances which, when
considered individually or together, do not materially detract from the value of
the property subject thereto or materially impair the operations of the Company,
and which have not arisen otherwise than in the ordinary course of
business.
3.8. Compliance
with Other Instruments, None Burdensome, etc. The Company is
not in violation of any term of its Amended and Restated Articles of
Incorporation or Bylaws. The Company is not in material violation of
(i) any material term or provision of any material mortgage, indebtedness,
indenture, contract, agreement, instrument, judgment or decree and, (ii) to
its knowledge, any order, statute, rule or regulation applicable to the
Company. The execution, delivery and performance of and compliance
with this Agreement, and the issuance of the Shares and the Conversion Stock,
have not resulted and will not result in any violation of, or conflict with, or
constitute a default under, the Company's Amended and Restated Articles of
Incorporation or Bylaws, and have not and will not result in any material
violation of, or materially conflict with, or constitute a material default
under, any of its material agreements nor result in the creation of any material
mortgage, pledge, lien, encumbrance or charge upon any of the material
properties or assets of the Company.
3.9. Registration
Rights. The Company is not under any contractual obligation to
register under the Securities Act of 1933, as amended (the "Securities Act"), any of its
presently outstanding securities or any of its securities which may hereafter be
issued.
3.10. Governmental
Consent, etc. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of this Agreement, or the offer, sale or issuance of the Shares or the
Conversion Stock, or the consummation of any other transaction contemplated
hereby, except the qualification (or taking of such action as may be
necessary to secure an exemption from qualification, if available) of the offer
and sale of the Shares and the Conversion Stock under applicable federal and
state securities laws, which filings and qualifications, if required, will be
accomplished in a timely manner.
4
3.11. Offering. Subject
to the accuracy of the Purchaser's representations in Section 4 hereof, the
offer, sale and issuance of the Shares and the Conversion Stock constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act.
3.12. Brokers
or Finders. Neither the Company nor the Purchaser have
incurred or will incur, directly or indirectly, any liability for brokerage
or finders' fees or agents' commissions or any similar charges in connection
with this Agreement or the transactions contemplated hereby.
3.13. Indebtedness
for Money Borrowed. Except as set forth in Exhibit B, there is
no outstanding indebtedness of the Company for money
borrowed.
SECTION
4
Representations and
Warranties of the Purchaser
The
Purchaser hereby represents and warrants to the Company that, as of the date
hereof and as of each Closing Date:
4.1. Business
and Financial Experience. The Purchaser, by reason of the
Purchaser’s business or financial experience or the business or
financial experience of its professional advisors, has the capacity to
protect the Purchaser’s own interests in connection with the purchase of the
Shares and underlying Conversion Stock.
4.2. Investment
Intent; Blue Sky. The Purchaser is acquiring the Shares and
the underlying Conversion Stock for investment for the Purchaser’s own account,
not as a nominee or agent, and not with a view to, or for resale in connection
with, any distribution thereof. The Purchaser understands that
the issuance of the Shares and the underlying Conversion Stock has not been, and
will not be registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent and the accuracy of the Purchaser's
representations as expressed herein. The Purchaser's address set
forth on the signature page hereof is the Purchaser's true and correct state of
domicile, upon which the Company may rely for the purpose of complying with
applicable federal and state securities laws.
4.3. Rule
144. The Purchaser acknowledges that the Shares and the
underlying Conversion Stock must be held indefinitely unless subsequently
registered under the Securities Act or unless an exemption from such
registration is available. The Purchaser is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited
public resale of shares purchased in a private placement subject to the
satisfaction of certain conditions.
4.4. No Public
Market. The Purchaser understands that no public market now
exists for any of the securities issued by the Company and that the Company has
made no assurances that a public market will ever exist for the Company's
securities.
5
4.5. Restrictions
on Transfer; Restrictive Legends. The Purchaser understands
that the transfer of the Shares and the Conversion Stock is restricted by
applicable state and Federal securities laws, and that the certificates
representing the Shares and the Conversion Stock will be imprinted with legends
restricting transfer except in compliance therewith.
4.6. Access to
Data. During the negotiation of the transactions contemplated
herein, the Purchaser and its representatives and legal counsel have been
afforded full and free access to corporate books, financial statements, records,
contracts, documents, and other information concerning the Company and to its
offices and facilities, have been afforded an opportunity to ask such questions
of the Company's officers, employees, agents, accountants and representatives
concerning the Company's business, operations, financial condition, assets,
liabilities and other relevant matters as they have deemed necessary or
desirable, and have been given all such information as has been requested, in
order to evaluate the merits and risks of the prospective investments
contemplated herein. The Purchaser has received or has had full
access to all the information the Purchaser considers necessary to make an
informed investment decision with respect to the Shares to be
purchased. The Purchaser understands that such discussions, as well
as any written information issued by the Company, were intended to describe
certain aspects of the Company's business and prospects but were not a thorough
or exhaustive description.
4.7. Authorization. All
action on the part of the Purchaser's board of directors necessary for the
authorization, execution, delivery and performance of this Agreement by the
Purchaser, the purchase of and payment for the Shares and the Conversion
Stock, and the performance of all of the Purchaser's obligations under this
Agreement has been taken. This Agreement, when executed and delivered
by the Purchaser, shall constitute valid and binding obligations of the
Purchaser. The person executing this Agreement on behalf of any
Purchaser that is an entity is duly authorized to execute and deliver this
Agreement on behalf of such Purchaser.
4.8. Brokers
or Finders. The Company has not and will not incur, directly
or indirectly, as a result of any action taken by the Purchaser, any liability
for brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement or the transactions contemplated
hereby.
4.9. Limited
Operating History; Risks of Transaction. The Purchaser
acknowledges that the Company acquired the bioabsorbable stent assets on
September 30, 2010 and entered into the License Agreement on September 30, 2010
and, therefore, has no history of researching, developing, producing or selling
any bioabsorbable stent products or other products or services under the rights
and assets the Company acquired on September 30, 2010. Accordingly,
the Purchaser understands that the purchase of the Shares involves substantial
risk, including all of the risks normally associated with the formation and
operation of a new business.
4.10. Purchaser
Due Diligence. The Purchaser has
performed its own due diligence investigation regarding the technology owned by
the Company, the market in which the Company proposes to operate, the Company’s
financial condition, and the Company’s overall business plans. In
light of the foregoing and of the types of risk factors associated with the
Company’s business, the Purchaser has based its decision to invest in the Shares
based on such due diligence. No assurance can be given that the
Company will be able to carry out its current business plan, that its business
plan will not change, or that it will obtain the financial and other results
contained in the business plan and forecasts.
6
4.11. Legends. The
Purchaser understands that the certificates evidencing the Shares and the
Conversion Stock will bear the legends set forth below, or a substantially
similar legend:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”) OR UNDER THE SECURITIES LAWS OF CERTAIN STATES.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
The
legend set forth above shall be removed by the Company from any certificate
evidencing Shares or Conversion Stock upon delivery to the Company of an opinion
by counsel, reasonably satisfactory to the Company, that a registration
statement under the Securities Act is at that time in effect with respect to the
legended security or that such security can be freely transferred in a public
sale without such a registration statement being in effect and that such
transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Shares or Conversion
Stock.
SECTION
5
Conditions to Closing of the
Purchaser
The
Purchaser's obligation to purchase the Shares is, unless waived in writing by
the Purchaser, subject to the fulfillment as of each Closing Date of the
following conditions:
5.1. Representations
and Warranties Correct. The representations and warranties
made by the Company in Section 3 hereof shall be true and correct in all
material respects as of such Closing Date.
5.2. Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
or complied with by the Company on or prior to such Closing Date shall have been
performed or complied with in all material respects.
5.3. Blue
Sky. The Company shall have obtained all necessary state
securities law permits and qualifications, or have the availability of
exemptions therefrom, required by any state for the offer and sale of the Shares
and the underlying Conversion Stock.
5.4. Certificate
of Designation. The Certificate of Designation shall have been
filed in the office of the Nevada Secretary of State.
7
5.5. Registration
Rights Agreement. The Company shall have executed and
delilvered to the Purchaser that certain Registration Rights Agreement, in the
form attached hereto as Exhibit C (the “Registration Rights Agreement”),
pursuant to which the Company shall grant to the Purchaser certain demand and
piggy-back registration rights with respect to the Shares and the Conversion
Stock.
SECTION
6
Conditions to Closing of the
Company
The
Company's obligation to sell and issue the Shares is, unless waived in writing
by the Company, subject to the fulfillment as of each Closing Date of the
following conditions:
6.1. Representations
and Warranties Correct. The representations made in
Section 4 hereof by the Purchaser shall be true and correct in all material
respects as of such Closing Date
6.2. Covenants. All
covenants, agreements, and conditions contained in this Agreement to be
performed or complied with by the Purchaser on or prior to such Closing Date
shall have been performed or complied with in all material respects as of such
Closing Date.
6.3. Blue
Sky. The Company shall have obtained all necessary state law
permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Shares and the underlying
Conversion Stock.
6.4. Certificate
of Designation. The Certificate of Designation shall have been
filed in the office of the Nevada Secretary of State.
6.5. Payment. On
or prior to each Closing, Company shall have received the purchase price of the
Shares the Purchaser agreed to purchase at such Closing. At or prior
to the First Closing, the Purchaser shall have delivered to the Company all such
documents and instruments reasonably requested by the Company to evidence the
repayment and cancellation of the Advance and the Outstanding
Loans.
6.6. Registration
Rights Agreement. The Purchaser shall have executed the
Registration Rights Agreement.
SECTION
7
Other Agreements Of The
Parties
7.1. Financial
Information Rights. The Company will provide the following
documents to the Purchaser so long as the Purchaser holds 5,000,000 or more
shares of Series B Preferred:
(i) As
soon as practicable after the end of the fiscal year ending December 31,
2010 and each fiscal year thereafter, and in any event within 90 days after the
end of each such fiscal year, consolidated balance sheets of the Company and its
subsidiaries, if any, as of the end of such fiscal year, and consolidated
statements of operations and consolidated statements of cash flows and
stockholders' equity of the Company and its subsidiaries, if any, for such year,
prepared in accordance with generally accepted accounting principles and setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and audited by independent public accountants selected
by the Company;
8
(ii) As
soon as practicable after the end of the fiscal quarter ending March 31, 2011
and each fiscal quarter thereafter, and in any event within 45 days after the
end of each such fiscal quarter, the Company shall distribute quarterly
financial reports to the Purchaser; and
(iii) At
least thirty days prior to the beginning of each fiscal year, commencing with
the fiscal year beginning December 1, 2010, a budget as adopted by the
Company's Board of Directors for the subsequent fiscal year.
7.2. Corporate
Status. The Company will (a) maintain its corporate
existence and good standing, (b) pay all taxes when due, including withholding
taxes, except for such taxes being contested in good faith by appropriate
proceedings, (c) maintain commercially reasonable and adequate general
liability, casualty and product liability insurance as determined by the
Company’s Board of Directors, and (d) purchase directors and officers liability
insurance promptly following a request for such purchase made by the Purchaser
in such amounts as requested by the Purchaser.
7.3. Termination. The
obligations of the Company under this Section 7 will terminate at such time as
the Company becomes subject to the reporting provisions of the Securities
Exchange Act of 1934, as amended.
SECTION
8
Miscellaneous
8.1. Governing
Law; Jurisdiction. All other disputes arising from this
Agreement shall be governed in all other respects by the internal laws of the
State of Nevada, without regard to conflict of laws provisions. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Rhode Island, for the adjudication of any dispute
hereunder or in connection herewith, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. The prevailing party shall be
entitled to reasonable attorney’s fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.
8.2. Entire
Agreement; Amendment. This Agreement, including the exhibits
hereto, this Agreement, and the other documents delivered at the Closing
pursuant to this Agreement, constitutes the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof, and
no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought.
9
8.3. Notices,
etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed: if to the Purchaser, to the
address or fax number listed after such Purchaser's name on the signature page
hereof or at such other address as the Purchaser shall have furnished to the
Company, and if to the Company, to:
Xenogenics Corporation
00 Xxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
or at
such other address as the Company shall have furnished to the
Purchaser.
Each such
notice or other communication shall for all purposes of this Agreement be
treated as effective or having been given when received if delivered personally,
if sent by facsimile, the first business day after the date of confirmation that
the facsimile has been successfully transmitted to the facsimile number for the
party notified, or, if sent by mail, at the earlier of its receipt or 72 hours
after the same has been deposited in a regularly maintained receptacle for the
deposit of the United States mail, addressed and mailed as
aforesaid.
8.4. Delays or
Omissions. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach or default of another party under this Agreement, shall impair any such
right, power or remedy of such party nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies,
either under this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
8.5. Expenses. The
Company and the Purchaser shall bear their own expenses incurred on their own
behalf with respect to this Agreement and the transactions contemplated
hereby.
8.6. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, and all of which together shall constitute one
instrument.
8.7. Severability. In
the event that any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision, which shall be
replaced with an enforceable provision closest in intent and economic effect as
the severed provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any
party.
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8.8. Titles
and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
[signature
page to follow]
11
The
foregoing agreement is hereby executed effective as of the date first set forth
above.
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“COMPANY”
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“PURCHASER”
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XENOGENICS
CORPORATION
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By:
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/s/ XXXXX XXXXXX
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By:
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/s/XXXXX XXXXXX
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Name: Xxxxx
Xxxxxx
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Name: Xxxxx
Xxxxxx
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Title: Chief
Executive Officer
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Title: Chief
Executive Officer
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Address:
00 Xxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx,
XX 00000
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12
EXHIBIT A
Certificate of
Designation
13
EXHIBIT
B
Schedule of
Exceptions
The
following are the exceptions to the representations and warranties of Xenogenics
Corporation (the "Company") set forth in Section 3 of the Series B Convertible
Preferred Stock Purchase Agreement dated as of October __, 2010 (the
"Agreement") to which this is an Exhibit. All capitalized terms used
and not otherwise defined herein shall have the meanings given them in the
Agreement. Nothing in this Schedule of Exceptions constitutes an
admission of any liability or obligation of the Company to any party, nor an
admission against the Company's interests.
Capitalization. As
of October __, 2010.
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Options:
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Options
Authorized Under 2005 Equity Incentive Plan: _____,000
shares
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Outstanding
options to purchase Common Stock: _____ shares (certain options
are subject to future vesting)
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Warrants:
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Warrants
to purchase a total of 980,001 shares of Common Stock have been issued and
are currently
outstanding.
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Registration
Rights. [DO VENTURE LENDING OR SILICON VALLEY BANK HAVE ANY
REGISTRATOIN RIGHTS???].
Indebtedness for Money
Borrowed. ……...??
14
