Exhibit 2.4
AGREEMENT
This Agreement, dated as of December 6th, 1999, is concluded by and
among Xxxxx X. Xxxxxxx, with an address at 00 Xxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
(the "Seller"), and Bruker Daltonics, Inc., a Massachusetts Corporation with its
principal place of business at 00 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx, XX
00000 (the "Buyer").
WHEREAS, the Seller owns fifty thousand (50,000) shares (the "Shares")
of the Common Stock, $.01 par value per share, of ProteiGene, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, the Buyer desires to purchase from the Seller the Shares,
NOW THEREFORE, in consideration of mutual covenants, promises and
agreements contained herein, as well as other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by each of the parties
hereto, and intending to be legally bound hereby, the parties hereto agree as
follows:
1.0 PURCHASE AND SALE OF SHARES
No later than December 6th, 1999 (the "Closing"), the Seller will sell
to the Buyer the Shares for an aggregate purchase price of fifty thousand
dollars ($50,000). At or before the Closing, the Buyer shall make payment of the
aggregate purchase price to the Seller and the Seller shall deliver to each
Buyer a certificate representing the Shares purchased by the Buyer. The parties
shall also exchange such other documents and instruments as may be reasonably
requested by any of them.
2.0 REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyers as follows:
2.1 ORGANIZATION AND CORPORATE POWER. The Company and the Buyer are
each duly organized, validly existing and in good standing under the laws of the
jurisdictions of their organization and have all requisite power and authority
to own their properties and to carry on their businesses as presently conducted.
The Company and the Buyer are duly licensed or qualified to do business as a
foreign entity in each jurisdiction wherein the character of their property, or
the nature of the activities presently conducted by them, makes such
qualification necessary.
2.2 AUTHORIZATION. The Seller has all necessary power and has taken, or
will take before the Closing, all necessary action required for the due
authorization, execution, delivery and performance by the Seller of this
Agreement and any other agreements or instruments executed by the Seller in
connection herewith or therewith (collectively the "Related Agreements"), the
consummation of the transactions contemplated herein or therein, and for the due
authorization, issuance and delivery of the Shares. This
Agreement and the Related Agreements will each be a valid and binding obligation
of the Seller enforceable in accordance with its respective terms.
2.3 GOVERNMENT APPROVALS. No consent, approval, license or
authorization of, or designation, declaration or filing with, any court or
governmental authority is or will be required on the part of the Seller in
connection with the execution, delivery and performance by the Seller of this
Agreement and any of the Related Agreements.
2.4 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. The Seller is in
compliance with all of the provisions of this Agreement, and in all material
respects with the provisions of each mortgage, indenture, lease, license, other
agreement or instrument, judgment, decree, judicial order, statute, and
regulation by which it is bound or to which any of its properties are subject.
The execution, delivery or performance of this Agreement and the Related
Agreements with or without the giving of notice or passage of time, or both,
will not violate, or result in any breach of, or constitute a default under, or
result in the imposition of any encumbrance upon any asset of the Seller or the
Company pursuant to any provision of the charter or by-laws of the Seller or the
Company, or any statute, rule or regulation, contract, lease, judgment, decree
or other document or instrument by which the Seller or the Company is bound or
to which any of their respective properties are subject.
2.5 DISCLOSURES. Neither this Agreement, the Related Agreements, nor
any other agreement, document or written statement made by the Seller and
furnished by the Seller to the Buyer in connection with the transactions
contemplated hereby, contains any untrue statement of material fact or omits to
state any material fact necessary to make the statements contained herein or
therein not misleading.
2.6 SHARES. The Seller owns the entire right, title and interest in and
to the Shares, free and clear of any liens and encumbrances of any nature
whatsoever. The Shares are validly issued, fully paid and non-assessable.
3.0 REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyer hereby warrants to the Seller the following:
3.1 AUTHORIZATION. The Buyer has all requisite corporate power and
authority and has taken all necessary corporate action required for the due
authorization, execution, delivery and performance of this Agreement and the
Related Agreements and the consummation of the transactions contemplated herein
or therein. This Agreement and the Related Agreements to which the Buyer is a
party constitute legal, valid and binding obligations of such Buyer, enforceable
against such Buyer in accordance with their respective terms.
3.2 GOVERNMENT APPROVALS. No consent, approval, license or
authorization of, or designation, declaration or filing with, any court or
governmental authority is or
will be required on the part of the Buyer in connection with the execution,
delivery and performance by the Buyer of this Agreement and the Related
Agreements.
3.3 INVESTMENT REPRESENTATIONS. The Buyer is acquiring the Shares
solely for its own account as an investment and not with a view to any
distribution or resale thereof in violation of the Securities Act of 1933, as
amended (the "Act"). The Buyer has been advised that the Shares have not been
registered under the Act or under the provisions of any state securities or
"blue sky" law. The Buyer, by accepting the Shares, agrees and acknowledges that
it will not transfer such Shares unless such transfer is made (i) pursuant to an
effective registration statement under the Act and in compliance with all
applicable state securities or "blue sky" laws, or (ii) pursuant to an available
exemption from registration under, or otherwise in compliance with the Act and
all applicable state securities or "blue sky" laws. The Buyer has been further
advised and understands that no public market now exists for any of the
securities issued by the Company and that a public market may never exist for
the Shares. The Buyer is an accredited investor for purpose of the Act.
4.0 CONDITIONS OF BUYER'S OBLIGATION
4.1 EFFECT OF CONDITIONS. The obligation of the Buyer to purchase and
pay for the Shares at or before the Closing shall be subject to the satisfaction
of each of the conditions stated in the following Sections of this Article.
4.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Seller contained in this Agreement shall be true and correct on the date
of the Closing, with the same effect as though made on and as of that date.
4.3 PERFORMANCE. The Seller shall have performed and complied with all
of the agreements, covenants and conditions contained in this Agreement required
to be performed at or prior to the Closing.
4.4 NO MATERIAL ADVERSE CHANGE. The business, properties, assets and
condition (financial or otherwise) of the Seller and the Company shall not have
been materially adversely affected since the date of this Agreement whether by
fire, casualty, act of God or otherwise, and there shall have been no other
changes in the business, properties, assets, condition (financial or otherwise),
management or prospects of the Seller and the Company that would have a material
adverse effect on their respective businesses or assets.
5.0 CONDITIONS OF SELLER'S OBLIGATION
5.1 EFFECT OF CONDITIONS. The obligation of the Seller to sell the
Shares at the Closing shall be subject at its election to the satisfaction of
each of the conditions stated in the following Section of this Article.
5.2 REPRESENTATIONS AND WARRANTIES; PERFORMANCE. The representations
and warranties of the Buyer contained in this Agreement shall be true and
correct on the date of such Closing with the same effect as though made on and
as of that date.
6.0 TERMINATION
This Agreement may be terminated, and the transactions contemplated
hereby abandoned, at any time prior to the Closing by the written agreement of
the Seller and the Buyer.
7.0 MISCELLANEOUS
7.1 SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants and agreements made herein or in any certificates or documents
executed in connection herewith shall survive for three (3) months after
Closing.
7.2 AMENDMENTS AND WAIVERS. Amendments or additions to this Agreement
may be made and compliance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively) upon the written
consent of the Seller and the Buyer.
7.3 NOTICES. All notices, requests, consents, reports and demands shall
be in writing and shall be hand delivered, sent by facsimile or other electronic
medium, or mailed, postage prepaid, to the Seller or the Buyer at the address
set forth below or to such other address as may be furnished in writing to the
other parties hereto. All such notices and communications shall be deemed to
have been duly given three (3) business days after being deposited in the mail,
postage prepaid, if mailed, one (1) business day after being sent by overnight
courier, delivery charges prepaid; when receipt acknowledged, if telecopied or
sent by electronic medium; and upon delivery, if delivered by hand.
The Seller: Xxxxx X. Xxxxxxx, Ph.D.
00 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
The Buyers: Bruker Daltonics, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: President or Treasurer
7.4 EXPENSES. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby.
7.5 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement or any exhibit hereto may be delivered via telecopier, with the
intention that they shall have the same effect as an original counterpart
hereof.
7.6 EFFECT OF HEADINGS. The article and section headings herein are for
convenience only and shall not affect the construction hereof.
7.7 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the Commonwealth of
Massachusetts without giving effect to the conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties have executed hereto this Agreement as
of the date first written above.
SELLER:
XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
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BUYER:
BRUKER DALTONICS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Title: TREASURER
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