EXHIBIT 10.43
FORM OF STOCK PURCHASE AGREEMENT
BETWEEN THE COMPANY AND THE SHAREHOLDERS
IDENTIFIED ON THE ATTACHED SCHEDULE
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made effective as of
March 28, 1998 by and between __________________________________ (Shareholder");
Ontro, Inc., a California Corporation (the "Company" or "Ontro"); and
Insta-Heat, Inc., a California corporation ("IHI").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE OF IHI STOCK.
1.1 OWNERSHIP OF IHI STOCK. Shareholder is the beneficial owner
of __________________ common shares of IHI. Subject to the terms and conditions
of this Agreement, Shareholder agrees to sell all of his or her IHI shares to
Ontro for $25.00 per share (the "Purchase Price"). Shareholder hereby
authorizes the custodian of the shares, L. Xxxxx Xxxxx, Esq., to deliver to
Ontro all of his or her IHI shares and agrees to accept the Purchase Price as
payment in full therefore.
1.2 CLOSING. The purchase and sale of the IHI shares shall take
place at the offices of the Company or at such other place as Ontro, IHI and
Shareholder mutually agree upon, verbally or in writing (which time and place
are designated as the "Closing"). The Closing shall take place on the earlier
to occur of (i) fifteen (15) days after the closing of an initial public
offering of Ontro's common stock; or (ii) six (6) months from the date of this
Agreement. At the Closing, Xx. Xxxxx shall deliver to Ontro the share
certificate(s) representing the IHI shares to be sold, and Shareholder's duly
endorsed stock power. Ontro shall deliver a check in the amount of the Purchase
Price payable to the Shareholder. The Closing may take place via the U.S. mail
or other mail courier service if agreed to by the parties.
2. TERMINATION OF LICENSE AGREEMENT.
2.1 Shareholder hereby consents and agrees to the termination of
the License Agreement between Insta-Heat, Inc. and Ontro, Inc.
3. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. This Agreement is
made with Shareholder in reliance upon Shareholder's representations and
warranties to Ontro and to IHI, which by Shareholder's execution of this
Agreement Shareholder hereby confirms, that:
3.1 AUTHORIZATION. This Agreement constitutes Shareholder's valid
and legally binding obligation, enforceable in accordance with its terms.
3.2 DISCLOSURE OF INFORMATION. Shareholder believes he or she has
received all the information regarding Ontro and IHI, he or she considers
material or desirable in order to decide to sell
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his or her shares of IHI to Ontro. Shareholder further represents that he or
she has had an opportunity to ask questions and receive answers from IHI
regarding Ontro, its business and the terms and conditions of this transfer, and
has had the opportunity to consult with his/her attorney, tax and investment
advisors, and other advisors, has access to such counsel and advisors and has
sought and received such advice and counsel to the extent desired.
3.3 CONFIDENTIALITY. Shareholder hereby represents, warrants and
covenants that he or she shall maintain in confidence, and shall not use or
disclose without the prior written consent of Ontro, any information about Ontro
furnished to him or her by Ontro, or by IHI whether or not such information was
acquired or disclosed in connection with this Agreement. This obligation of
confidentiality shall not apply, however, to any information (a) in the public
domain through no unauthorized act or failure to act by Shareholder, or (b)
lawfully disclosed to Shareholder by a third party who possessed such
information without any obligation of confidentiality.
3.4 ADVICE OF PROFESSIONALS. The undersigned has carefully
considered and has been advised by Ontro to have any material provided by anyone
regarding Ontro including but not limited to this Agreement, related documents
and the shares hereunder reviewed by his or her legal counsel prior to such
sale, and to discuss with his or her professional tax and financial advisors the
consequences of the sale of the shares hereunder for his or her particular tax
and financial situation, and he or she has determined to sell his or her shares.
Ontro specifically disclaims any representations regarding the legal, tax, or
financial consequences of the sale.
3.5 NO ENCUMBRANCES. The undersigned represents there are no
liens, encumbrances or security interests granted to third parties with respect
to the shares, and the shares may be transferred to Ontro free of any prior
sale, transfer, hypothecation or encumbrance.
3.6 AUTHORITY. If this Agreement is executed and delivered on
behalf of a partnership, corporation, trust, estate or other entity, (i) the
undersigned's execution, delivery and performance of and under this Agreement,
and all documents ancillary hereto, and the consummation of the transactions
contemplated hereby and thereby have been duly authorized, and the undersigned
is duly authorized (a) to execute and deliver this Agreement and all other
instruments executed and delivered on behalf of such partnership, corporation,
trust, estate or other entity, in connection with the sale of the shares
hereunder; and (b) when executed and delivered by Shareholder this Agreement
will constitute such partnership's, corporation's, trust's, estate's or other
entity's legal, valid and binding obligation enforceable against it in
accordance with its terms.
3.7 LEGENDS. It is understood by Ontro that the certificates
evidencing the shares may bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
INSTA-HEAT, INC. THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT
TO RULE 144 OF SUCH ACT."
(b) Any legend required by the laws of the State of
California or other jurisdiction, including any legend required by the
California Department of Corporations and section 417 and 418 of the California
Corporations Code.
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3.8 REMOVAL OF LEGENDS; FURTHER COVENANTS.
(a) Any legend endorsed on a certificate pursuant to
Section 3.7 hereof shall be removed (i) if the shares represented by such
certificate shall have been effectively registered under the Securities Act or
otherwise lawfully sold in a public transaction, (ii) if the shares may be
transferred in compliance with Rule 144(k) promulgated under the Securities Act,
or (iii) if Ontro shall have provided Insta-Heat with an opinion of counsel, in
form and substance acceptable to Insta-Heat and its counsel in their sole
discretion and from attorneys reasonably acceptable to Insta-Heat and its
counsel, stating that a public sale, transfer or assignment of the shares may be
made without registration.
(b) Ontro further covenants that Ontro will not transfer
the shares in violation of the Securities Act, the Securities and Exchange Act
of 1934, as amended (the "Exchange Act"), or the rules of the Commission
promulgated thereunder, including Rule 144 under the Securities Act.
3.9 ACKNOWLEDGMENT. The undersigned acknowledges he/she
understands the meaning and legal consequences of the representations and
warranties contained in this Agreement, and the undersigned hereby agrees IHI,
Ontro and each officer, director, employee, agent, legal counsel and controlling
person of Ontro and IHI, past, present or future, may rely on each such
representation and warranty.
3.10 NON-TRANSFERABILITY. Neither this Agreement, nor any of your
interests herein, shall be assignable or transferable by the undersigned in
whole or in part except by operation of law.
3.11 SURVIVAL. The foregoing representations and warranties shall
be true and accurate as of the date of the acceptance hereof by Ontro and shall
survive the execution and delivery of this Agreement and the delivery of the
shares thereafter.
3.12 INDEMNIFICATION. The undersigned shall indemnify and hold
harmless Ontro and IHI who was or is made a party, or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of or
arising from any actual or alleged misrepresentation or misstatement of facts or
omission to represent or state facts made by the undersigned to IHI or Ontro
concerning himself/herself which is not remedied by timely notice to Ontro and
IHI against losses, liabilities and expenses for which Ontro or IHI or any of
their respective employees, agents, or legal counsel which have not otherwise
been reimbursed (including attorneys' fees, judgments, fines and amounts paid in
settlement) as actually and reasonably incurred by such person or entity in
connection with such action, suit or proceeding.
3.13 DUE EXECUTION. The undersigned agrees to execute this
Agreement and the stock power attached hereto as Exhibit "A" in full and
acknowledges the receipt and acceptance by Ontro of such Agreement and stock
power shall be a condition precedent to the delivery of the Purchase Price.
4. CALIFORNIA CORPORATE SECURITIES LAW. THE TRANSFER OF THE SHARES OF
COMMON STOCK WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH
THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF
SUCH COMMON STOCK OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF COMMON
STOCK IS EXEMPT FROM QUALIFICATION BY SECTIONS 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL
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PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION
BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
5. MISCELLANEOUS.
5.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of Shareholder contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the Closing.
5.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding on the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assignees any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
5.3 GOVERNING LAW, VENUE. This Agreement shall be governed by and
construed under the laws of the State of California, irrespective of its choice
of law principles. Venue for any action brought in connection with the subject
matters of this Agreement shall be in a court of competent jurisdiction located
in San Diego County, California.
5.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 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.
5.6 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or, if sent
by telex or telecopier, upon receipt of the correct answer back, or upon deposit
with the United States Post Office, by registered or certified mail, or upon
deposit with an overnight air courier, in each case postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by 10 days' advance written notice to the other parties.
5.7 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 particular instance and whether retroactively or prospectively),
only with the written consent of Ontro, IHI and Shareholder.
5.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ONTRO, INC. SHAREHOLDER:
A CALIFORNIA CORPORATION
By:
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Xxxxx X. Xxxxxxx, President Signature
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Name Printed
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Signature of Joint Shareholder
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Name Printed
IHI:
INSTA-HEAT, INC.
A CALIFORNIA CORPORATION
BY:
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Xxxxx X. Xxxxxxxx, Vice President
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Exhibit "A"
STOCK POWER
FOR VALUE RECEIVED, THE UNDERSIGNED DOES (DO) HEREBY SELL, ASSIGN AND
TRANSFER TO ___________________________________________,
_____________________ SHARES OF THE COMMON STOCK INSTA-HEAT, INC.,
REPRESENTED BY CERTIFICATE(S) NUMBERED _____________________, INCLUSIVE,
STANDING IN THE NAME OF THE UNDERSIGNED ON THE BOOKS OF SAID COMPANY.
THE UNDERSIGNED DOES (DO) HEREBY IRREVOCABLY CONSTITUTE AND APPOINT
_____________________________________________________________ ATTORNEY TO
TRANSFER THE SAID STOCK ON THE BOOKS OF SAID COMPANY, WITH FULL POWER OF
SUBSTITUTION IN THE PREMISES.
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SIGNATURE OF SHAREHOLDER DATE
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JOINT SHAREHOLDER SIGNATURE DATE
IMPORTANT - READ CAREFULLY:
THE SIGNATURE(S) TO THIS POWER MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE(S) IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
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SCHEDULE A
Xxxxx Xxxxxx
Xxxxx & Xxxxxx Xxxx
Xxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxxxx Trust
Xxxxxx Xxxx
Yale Xxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxx & Xxxxx Xxxxxxx
Xxxxx/Xxxxxx Xxxxxx
Xxxxx Xxxx
Xxxxx XxXxx Trust
L. Xxxxx Xxxxx
Xxxxxx Xxxxx
Xx Xxxxxxx Trust
Ed & Xxxxx Xxxxxxxxxx
Xxxxxx & Haven Xxxx
Xxxxxxx Winston
