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EXHIBIT 99.3
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 Xxxxxxx Capital Partners, Ltd., a New York corporation (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 acted as a placement agent of the Corporation in
connection with its Series B Convertible Preferred Stock financing.
WHEREAS, the Purchaser and the Corporation the desire to satisfy any and
all amounts due to the Purchaser, except for a cash payment of $120,000, 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 Sixty Thousand (60,000) 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 (including but not limited to indebtedness for
past services performed in connection with the Corporation's Series B
Convertible Preferred Stock financing, receipt of which is hereby acknowledged).
The 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 for fees of any kind for services rendered to the
Corporation by the Purchaser in the Financing, except for a cash payment of
$120,000, shall be satisfied in full.
2. Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants to the Purchaser as follows:
(a) The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of California.
(b) All corporate action on the part of the Corporation, its
officers, directors and shareholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Corporation hereunder and the authorization, issuance and delivery of the Stock
being sold hereunder has been taken, and this Agreement constitutes a valid and
legally binding obligation of the Corporation, enforceable in accordance with
its terms, except as may be limited by bankruptcy, insolvency, moratorium and
other laws of
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general application affection the enforcement of creditors' rights.
(c) The Stock, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will be
free of any liens or encumbrances; provided, however, that the Stock may be
subject to restrictions on transfer under state and/or federal securities laws
as set forth herein, and as may be required by future changes in such laws.
3. 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 a corporation duly organized, validly
existing and in good standing under the laws of the State of New York.
(b) All corporate action on the part of the Purchaser, its
officers, directors and shareholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Purchaser hereunder and the authorization, issuance and delivery of the Stock
being sold hereunder has been taken, and this Agreement constitutes a valid and
legally binding obligation of the Purchaser, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, moratorium and other
laws of general application affection the enforcement of creditors' rights.
(c) 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").
(d) 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 and warrants that he has discussed the
Corporation and its 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.
(e) 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. In addition, the Purchaser has read and is
fully understands 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.
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(f) 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
(ii) The Corporation will make a notation in its records
of the aforementioned restrictions on transfer and legends.
(g) Without in any way limiting the Purchaser's representations
and 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
general summary of the proposed disposition, and (B) furnished the Corporation
with an opinion of its own counsel reasonably acceptable in form and substance
to the Corporation and its counsel to the effect that such disposition will not
require registration of such shares under the Act.
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 CORPORATION RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE
CORPORATION, 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.
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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 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) Corporation Registration.
(1) Participation in Corporation Registration. If at any
time or from time to time, the Corporation 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 Corporation 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 Corporation, by the Holder, except as set forth in
subsection 5(b)(2) below.
(2) Underwriting. If the registration of which the
Corporation gives notice is for a registered public offering involving an
underwriting, the Corporation 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 Corporation 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
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such underwriting by the Corporation. 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
Corporation 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 therefrom by written notice to the Corporation and the
underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration. The Corporation shall
use reasonable commercial efforts to register the Stock in the first
Registration Statement that it intends to file in connection with that certain
Registration Rights Agreement dated as of July 18, 1997 among the Corporation
and the Initial Investors (as defined therein).
(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 Corporation and
expenses of any special audits incidental to or required by such registration,
shall be borne by the Corporation except as follows:
(i) The Corporation shall not be required to pay fees or
disbursements of legal counsel of the Holder.
(ii) The Corporation shall not be required to pay
underwriters' fees, discounts or commissions relating to Registrable Securities.
(d) Registration Procedures. In the case of the registration,
qualification or compliance effected by the Corporation pursuant to this
Agreement, the Corporation will keep the Holder participating therein advised in
writing as to the initiation of the registration, qualification and compliance
and as to the completion thereof. At its expense the Corporation 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 Corporation will indemnify the Holder of
Registrable Securities, the of its officers, directors and partners, and the
person controlling such Holder, with respect to which such registration,
qualification or compliance has been effected pursuant
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to this Section 5, and the underwriter, if any, and the 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 Corporation of any rule or
regulation promulgated under the Act or any state securities law applicable to
the Corporation and relating to action or inaction required of the Corporation
in connection with any such registration, qualification or compliance, and will
reimburse the such Holder, the of its officers, directors and partners, and the
person controlling such Holder, the such underwriter and the person who controls
any such underwriter, for any reasonable legal and any other expenses as
incurred in connection with investigating, defending or settling any such claim,
loss, damage, liability or action, provided that the Corporation 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 and in conformity with written information furnished to the Corporation 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
Corporation, the of its directors and officers, the underwriter, if any, of the
Corporation's securities covered by such a registration statement, the person
who controls the Corporation within the meaning of the Act, and the other such
Holder, the of its officers, directors and partners and the 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 Corporation, 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 the 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 Corporation 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 sub- section 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) The 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
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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 the 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 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 Corporation such
information regarding such Holder and the distribution proposed by such Holder
as the Corporation 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 Corporation to register their securities and keep information available,
granted to them by the Corporation 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 Corporation 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, its
heirs, executors, administrators, successors and
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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 acquisition of the securities contemplated hereby 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. This Agreement is
not intended to supersede the Corporation's obligations under that certain
Engagement Letter among certain of the parties hereto, except for any and all
fees payable for the Corporation's Series B financing.
(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 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.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"CORPORATION"
ABAXIS, INC.
By: __________________________________
Title: __________________________________
Address: 0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
"PURCHASER"
XXXXXXX CAPITAL PARTNERS, LTD.
By: __________________________________
Title: __________________________________
Address:__________________________________ __________________________________
Facsimile:________________________________
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