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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of this ______________, 1997, (the "Effective
Date") by and between Abaxis, Inc., a California corporation (the
"Corporation"), and Per Xxxx Xxxxxxxxx (the "Purchaser").
WITNESSETH:
WHEREAS, the Corporation desires to issue and the Purchaser desires to
acquire stock of the Corporation as herein described, on the terms and
conditions hereinafter set forth.
WHEREAS, the Purchaser was a consultant of the Corporation pursuant to
that certain Consulting Agreement dated January 1, 1996 between the Corporation
and the Purchaser (the "Consulting Agreement").
WHEREAS, the Purchaser and the Corporation each desire to satisfy any
and all amounts due to the Purchaser, including those due under the Consulting
Agreement pursuant to Section 3 thereof, by issuing shares of the Corporation's
Common Stock to the Purchaser.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Number of Shares and Price Per Share. The Purchaser hereby agrees to
purchase from the Corporation and the Corporation agrees to issue to the
Purchaser Thirty Two Thousand (32,000) shares of the Corporation's Common Stock
(the "Stock") in exchange for cancellation of any and all existing indebtedness
by the Corporation to the Purchaser. Purchaser acknowledges that, upon issuance
of the Stock by the Corporation and delivery of such Stock to the Purchaser, any
and all amounts due to the Purchaser by the Corporation, including those due
under the Consulting Agreement pursuant to Section 3 thereof, shall be satisfied
in full.
2. Warranties and Representations. In connection with the proposed
purchase of the Stock, the Purchaser hereby agrees, represents and warrants as
follows:
(a) The Purchaser is purchasing the Stock solely for his own
account for investment and not with a view to, or for resale in connection with,
any distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Act"). The Purchaser further represents that he does not have any
present intention of selling, offering to sell or otherwise disposing of or
distributing the Stock or any portion thereof; and that the entire legal and
beneficial interest of the Stock he or is purchasing is being purchased for, and
will be held for the account of, the Purchaser only and neither in whole nor in
part for any other person.
(b) The Purchaser is aware of the Corporation's business affairs
and financial condition and has acquired sufficient information about the
Corporation to reach an informed and knowledgeable decision to acquire the
Stock. The Purchaser further represents
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and warrants that he has discussed the Corporation and its plans, operations and
financial condition with its officers, has received all such information as he
deems necessary and appropriate to enable him to evaluate the financial risk
inherent in making an investment in the Stock and has received satisfactory and
complete information concerning the business and financial condition of the
Corporation in response to all inquiries in respect thereof.
(c) The Purchaser realizes that his purchase of the Stock will be
a highly speculative investment, and he is able, without impairing his financial
condition, to hold the Stock for an indefinite period of time and to suffer a
complete loss on his investment.
(d) The Corporation has disclosed to the Purchaser that:
(i) The sale of the Stock has not been registered under
the Act, and the Stock must be held indefinitely unless a transfer of it is
subsequently registered under the Act or an exemption from such registration is
available, and that the Corporation is under no obligation to register the
Stock; and
(ii) The Corporation will make a notation in its records
of the aforementioned restrictions on transfer and legends.
(e) The Purchaser is aware of the provisions of Rule 144,
promulgated under the Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or an affiliate of such issuer), in a non-public offering subject to
the satisfaction of certain conditions, including among other things: the resale
occurring not less than two years from the date the Purchaser has purchased and
paid for the Stock; the availability of certain public information concerning
the Corporation; the sale being through a broker in an unsolicited "broker's
transaction" or in a transaction directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934); and that any sale of the
Stock may be made by him only in limited amounts during any three-month period
not exceeding specified limitations. The Purchaser further represents that he
understands that at the time he wishes to sell the Stock there may be no public
market upon which to make such a sale, and that, even if such a public market
then exists, the Corporation may not be satisfying the current public
information requirements of Rule 144, and that, in such event, he would be
precluded from selling the Stock under Rule 144 even if the two-year minimum
holding period had been satisfied. The Purchaser represents that he understands
that in the event all of the requirements of Rule 144 are not satisfied,
registration under the Act or compliance with an exemption from registration
will be required; and that, notwithstanding the fact that Rule 144 is not
exclusive, the staff of the SEC has expressed its opinion that persons proposing
to sell private placement securities other than in a registered offering and
otherwise than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
(f) Without in any way limiting the Purchaser's representations
and
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warranties set forth above, the Purchaser further agrees that he shall in no
event make any disposition of all or any portion of the Stock which he is
purchasing unless and until:
(i) There is then in effect a Registration Statement under
the Act covering such proposed disposition and such disposition is made in
accordance with said Registration Statement; or
(ii) The Purchaser shall have (A) notified the Corporation
of the proposed disposition and furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition, and (B)
furnished the Corporation with an opinion of his own counsel to the effect that
such disposition will not require registration of such shares under the Act, and
such opinion of his counsel shall have been concurred in by counsel for the
Corporation and the Corporation shall have advised the Purchaser of such
concurrence.
3. Legends. All certificates representing any shares of Stock subject to
the provisions of this Agreement shall have endorsed thereon the following
legends:
(a) "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
(b) Any legend required to be placed thereon by the California
Commissioner of Corporations.
4. Transfers in Violation of Agreement. The Corporation shall not be
required (i) to transfer on its books any shares of Stock of the Corporation
which shall have been sold or transferred in violation of any of the provisions
set forth in this Agreement or (ii) to treat as owner of such shares or to
accord the right to vote as such owner or to pay dividends to any transferee to
whom such shares shall have been so transferred.
5. Registration Rights.
(a) Definitions. As used in this Section 5, the following terms
shall have the following respective meanings:
(1) The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the
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Act, and the declaration or ordering of the effectiveness of such registration
statement.
(2) The term "Registrable Securities" means (A) the Stock,
(B) common stock issued in lieu of the Stock in any reorganization which has not
been sold to the public or (C) common stock issued in respect of the Stock as a
result of a stock split, stock dividend, recapitalization or the like, which
have not been sold to the public.
(3) The term "Holder" means the person to whom Registrable
Securities were originally issued or qualifying transferees under subsection
5(g) hereof who hold Registrable Securities.
(4) The term "SEC" means the Securities and Exchange
Commission.
(b) Company Registration.
(1) Participation in Company Registration. If at any time
or from time to time, the Company shall determine to register any of its
securities, for its own account or the account of any of its shareholders (other
than a registration relating solely to employee stock option or purchase plans,
or a registration on SEC Form S-4 relating solely to an SEC Rule 145
transaction, or a registration on any form other than SEC Forms X-0, X-0 or S-3,
or their successor forms, which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities), the Company will: (A) promptly
give to the Holder written notice thereof and (B) include in such registration
(and any related qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within ten (10) days after receipt of such
written notice from the Company, by the Holder, except as set forth in
subsection 5(b)(2) below.
(2) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to subsection 5(b)(1). In such event the right of the Holder to
registration pursuant to subsection 5(b) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. A
Holder proposing to distribute their securities through such underwriting shall
(together with the Company and any other shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
subsection 5(b), the underwriter may limit the number of Registrable Securities
to be included in the registration and underwriting, or may exclude Registrable
Securities entirely from such registration and underwriting. The Company shall
so advise the Holder of Registrable Securities which would otherwise be
registered and underwritten pursuant hereto, the number of shares of Registrable
Securities that may be included in the registration and underwriting. If any
Holder disapproves of the terms of any such underwriting, he may elect to
withdraw
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therefrom by written notice to the Company and the underwriter. Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
(c) Expenses of Registration. All expenses incurred in connection
with any registration, qualification or compliance pursuant to this Section 5,
including without limitation, all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company and
expenses of any special audits incidental to or required by such registration,
shall be borne by the Company except as follows:
(i) The Company shall not be required to pay fees or
disbursements of legal counsel of the Holder.
(ii) The Company shall not be required to pay
underwriters' fees, discounts or commissions relating to Registrable Securities.
(d) Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep the Holder participating therein advised in writing as to
the initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(i) Keep such registration, qualification or compliance
pursuant to this Section 5 effective for a period of one hundred eighty (180)
days or until the Holder or Holders have completed the distribution described in
the registration statement relating thereto, whichever first occurs; and
(ii) Furnish such number of prospectuses and other
documents incident thereto as a Holder from time to time may reasonably request.
(e) Indemnification.
(1) The Company will indemnify the Holder of Registrable
Securities, each of its officers, directors and partners, and each person
controlling such Holder, with respect to which such registration, qualification
or compliance has been effected pursuant to this Section 5, and each
underwriter, if any, and each person who controls any underwriter of the
Registrable Securities held by or issuable to such Holder, against all claims,
losses, expenses, damages and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of any rule or regulation promulgated under the Act
or any state securities law applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each
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such Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any reasonable legal and any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage or liability arises
out of or is based on any untrue statement or omission based upon written
information furnished to the Company by an instrument duly executed by such
Holder or underwriter specifically for use therein.
(2) The Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company within the meaning of the Act, and each other such Holder,
each of its officers, directors and partners and each person controlling such
Holder, against all claims, losses, expenses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holder, such directors, officers, partners, persons or
underwriters for any reasonable legal or any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein; provided, however, the total amount for which the
Holder shall be liable under this subsection 5(e)(2) shall not in any event
exceed the aggregate proceeds received by such Holder from the sale of
Registrable Securities held by such Holder in such registration.
(3) Each party entitled to indemnification under this
subsection 5(e) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless such failure resulted in
actual detriment to the Indemnifying Party. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all
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liability in respect to such claim or litigation.
(f) Information by Holder. The Holder of Registrable Securities
included in any registration shall promptly furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to herein.
(g) Transfer of Registration Rights. A Holder's rights to cause
the Company to register their securities and keep information available, granted
to them by the Company under this Section 5, may be assigned to a transferee or
assignee who also receives all shares of Registrable Securities then held by the
Holder; provided that the Company is given written notice by such Holder at the
time of or within a reasonable time after said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned, and such
transferee has agreed to comply with the obligations of this Section 5.
(h) Termination of Registration Rights. The registration rights
contained in this Section 5 shall terminate as to a Holder, when all Registrable
Securities held by such Holder may be sold pursuant to SEC Rule 144 within a
three month period.
6. General.
(a) Notice. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon receipt if delivered
personally or by facsimile at the number hereinafter shown below his signature,
or upon deposit in the United States Post Office, by registered or certified
mail with postage and fees prepaid, addressed to the other party hereto at the
address hereinafter shown below his signature. Either party may designate
another address or facsimile number by ten (10) days' advance written notice to
the other party hereto.
(b) Successors and Assigns. This Agreement shall inure to the
benefit of the successors and assigns of the Corporation and, subject to the
restrictions on transfer herein set forth, be binding upon the Purchaser, his
heirs, executors, administrators, successors and assigns. This Agreement shall
be fully assignable by the Corporation.
(c) Entire Agreement; Amendments. This Agreement shall be
construed under the laws of the State of California (as it applies to agreements
between California residents, entered into and to be performed entirely within
California), and constitutes the entire agreement of the parties with respect to
the subject matter hereof superseding all prior written or oral agreements, and
no amendment or addition hereto shall be deemed effective unless agreed to in
writing by the parties hereto.
(d) Separability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall
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nevertheless continue in full force and effect without being impaired or
invalidated in any way and shall be construed in accordance with the purposes
and tenor and effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"PURCHASER" "CORPORATION"
ABAXIS, INC.
________________________________________ By:
Per Xxxx Xxxxxxxxx
Title:
Address: ___________________________ Address:1320 Chesapeake Terrace
___________________________ Xxxxxxxxx, XX 00000
___________________________
Facsimile: ___________________________ Facsimile: (000) 000-0000
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