EXHIBIT 10.2(a)
ASPENBIO, INC.
SECURITIES PURCHASE AGREEMENT
DECEMBER 28, 2001
TABLE OF CONTENTS
Page
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1. AGREEMENT TO SELL AND PURCHASE...........................................1
1.1 AUTHORIZATION OF SECURITIES.....................................1
1.2 SALE AND PURCHASE...............................................1
2. CLOSING, DELIVERY AND PAYMENT............................................2
2.1 CLOSING.........................................................2
2.2 DELIVERY AT THE FIRST CLOSING...................................2
2.3 DELIVERY AT THE SECOND CLOSING..................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................2
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION...................2
3.2 SUBSIDIARIES....................................................2
3.3 CAPITALIZATION; VOTING RIGHTS...................................3
3.4 AUTHORIZATION; BINDING OBLIGATIONS..............................3
3.4 CLOSING.........................................................3
3.5 FINANCIAL STATEMENTS............................................4
3.6 LIABILITIES.....................................................4
3.7 AGREEMENTS; ACTION..............................................4
3.8 OBLIGATIONS TO RELATED PARTIES..................................5
3.9 CHANGES.........................................................5
3.10 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC......................6
3.11 INTELLECTUAL PROPERTY...........................................6
3.12 COMPLIANCE WITH OTHER INSTRUMENTS...............................7
3.13 LITIGATION......................................................8
3.14 TAX RETURNS AND PAYMENTS........................................8
3.15 EMPLOYEES.......................................................8
3.16 OBLIGATIONS OF MANAGEMENT.......................................9
3.17 REGISTRATION RIGHTS AND VOTING RIGHTS...........................9
3.18 COMPLIANCE WITH LAWS; PERMITS...................................9
3.19 ENVIRONMENTAL AND SAFETY LAWS...................................9
3.20 FULL DISCLOSURE................................................10
3.21 FOREIGN CORRUPT PRACTICES ACT..................................10
3.22 MINUTE BOOKS...................................................10
3.23 INSURANCE......................................................10
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.........................11
4.1 REQUISITE POWER AND AUTHORITY..................................11
4.2 INVESTMENT REPRESENTATIONS.....................................12
4.3 TRANSFER RESTRICTIONS..........................................12
5. CONDITIONS TO CLOSING...................................................13
5.1 CONDITIONS TO PURCHASER'S OBLIGATIONS AT THE CLOSING.:.........13
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY.......................13
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TABLE OF CONTENTS
(continued)
Page
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6. MISCELLANEOUS...........................................................14
6.1 GOVERNING LAW..................................................14
6.2 SURVIVAL.......................................................14
6.3 SUCCESSORS AND ASSIGNS.........................................14
6.4 ENTIRE AGREEMENT...............................................14
6.5 SEVERABILITY...................................................14
6.6 AMENDMENT AND WAIVER...........................................14
6.7 DELAYS OR OMISSIONS............................................15
6.8 NOTICES........................................................15
6.9 EXPENSES.......................................................15
6.10 ATTORNEYS' FEES................................................15
6.11 TITLES AND SUBTITLES...........................................15
6.12 COUNTERPARTS...................................................15
6.13 BROKER'S FEES..................................................15
6.14 INDEMNIFICATION:...............................................15
6.15 USE OF PROCEEDS................................................16
6.16 KNOWLEDGE......................................................16
6.17 PRONOUNS.......................................................16
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ASPENBIO, INC.
SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of December 28, 2001, by and among ASPENBIO, INC., a
Colorado
corporation (the "Company"), and Cambridge Holdings, Ltd., a
Colorado
corporation (the "Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of 1,000,000
shares of its Common Stock (the "Shares") and Warrants to purchase up to 830,000
shares of Common Stock at $1.00 per share (the "Warrants") and the Shares and
the Warrants are collectively referred to as the "Securities";
WHEREAS, the Purchaser desires to purchase the Securities on the terms
and conditions set forth herein;
WHEREAS, the Company desires to secure certain consulting services of
the Purchaser in connection with taking the Company public; and
WHEREAS, the Company desires to issue and sell the Securities to
Purchaser on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties, and covenants hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT TO SELL AND PURCHASE.
AUTHORIZATION OF SECURITIES. On or prior to the First Closing (as defined in
Section 2 below), the Company shall have authorized (a) the sale and issuance to
Purchaser of the Securities and (b) the issuance of such shares of Common Stock
to be issued upon exercise of the Warrants (the "Warrant Shares"). The Warrants
shall be issued to the designees of the Purchaser listed in Purchaser's Schedule
1.1 and in the forms attached hereto as Exhibits A-1 and A-2. Such designees
shall each execute a Subscription Agreement in the form attached hereto as
Exhibit I prior to receipt of the Warrants.
SALE AND PURCHASE. Subject to the terms and conditions hereof, at the Closings
(as hereinafter defined) the Company hereby agrees to issue and sell to the
Purchaser, and the Purchaser agrees to purchase from the Company, the Securities
at an aggregate purchase price of $600,000. As further consideration for the
purchase of the Securities, Purchaser agrees to perform certain consulting
services for the Company as set forth in the Consulting Agreement in the form
attached hereto as Exhibit H (the "Consulting Agreement") pursuant to which the
Purchaser may forfeit 330,000 of the Warrants as provided in the Consulting
Agreement.
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CLOSING, DELIVERY AND PAYMENT.
CLOSING. The first closing of the sale and purchase of the Securities under this
Agreement (the "First Closing") shall take place at 9:00 a.m. on the date
hereof, at the offices of Xxxxxx Xxxxx, LLP, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, XX 00000. The second closing will take place at 9:00 AM at Xxxxxx Xxxxx,
LLP on the second business day subsequent to delivery by the Company to
Purchaser of financial statements of the Company consisting of audited balance
sheets as at December 31, 2001 and 2000 and audited statements of income and
cash flow for the year ended December 31, 2001 and for the period from inception
to December 31, 2000 (which shall include an audited balance sheet and audited
statements of income and cash flow for Vitro Diagnostics, Inc. for the period
between January 1, 2000 and August 31, 2000. (the "Second Closing"). The
Company's audited statements shall be prepared by Xxxxx X'Xxxxxxx, C.P.A., and
shall be in accordance with generally accepted accounting principles.
DELIVERY AT THE FIRST CLOSING. At the First Closing, subject to the terms and
conditions hereof, the Company will deliver to the Purchaser a certificate
representing the 500,000 Shares to be purchased at the First Closing by the
Purchaser, against payment of $300,000 by certified check, or wire transfer made
payable to the order of the Company, and the parties will execute and deliver
the Related Agreements (as defined below), except for the Warrants and the
Consulting Agreement.
DELIVERY AT THE SECOND CLOSING. At the Second Closing, subject to the terms and
conditions hereof, the Company will deliver to the Purchaser a certificate
representing 500,000 Shares and the Warrants to be purchased at the Second
Closing by the Purchaser against payment of $300,000 by certified check, or wire
transfer made payable to the order of the Company and the parties will execute
and deliver the Consulting Agreement.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on a Schedule of Exceptions delivered by the Company to the
Purchaser at the Closing specifically identifying the relevant Section hereof,
the Company hereby represents and warrants to Purchaser as of the date of this
Agreement as set forth below.
ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. The Company has all requisite corporate power and authority to own and
operate its properties and assets, to execute and deliver this Agreement, the
Warrant and the Investor Rights Agreement in the form attached hereto as Exhibit
B (the "Investor Rights Agreement"), the Shareholders Agreement in the form
attached hereto as Exhibit C (the "Shareholders Agreement") and the Consulting
Agreement in the form attached hereto as Exhibit H (the "Consulting Agreement")
(collectively, the "Related Agreements"), to issue and sell the Securities and
the Warrant Shares, and to carry out the provisions of this Agreement and the
Related Agreements and to carry on its business as presently conducted and as
presently proposed to be conducted. The Company is duly qualified and is
authorized to do business and is in good standing as a foreign corporation in
all jurisdictions in which the nature of its activities and of its properties
(both owned and leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so would not have a material adverse effect
on the Company or its business.
SUBSIDIARIES. Except as provided in the Schedule of Exceptions, the Company has
no Subsidiaries and does not own or control any equity security or other
interest of any other
2
corporation, limited partnership or other business entity. The Company is not a
participant in any joint venture, partnership or similar arrangement. As used in
this Agreement, the term "Subsidiary" or "Subsidiaries" means any domestic or
foreign corporation or other business organization, whether or not incorporated,
of which more than fifty percent (50%) of either the equity interest in, or the
voting control of such corporation or organization is, directly or indirectly,
beneficially owned by the Company.
CAPITALIZATION; VOTING RIGHTS.
The authorized capital stock of the Company, immediately prior to the First
Closing, consists of 15,000,000 shares of Common Stock, 8,300,000 shares of
which are issued and outstanding.
Options to purchase 200,000 shares have been granted and are currently
outstanding (as listed on Exhibit D), and 900,000 shares of Common Stock are
reserved for future issuance to officers, directors, employees and consultants
of the Company.
Other than as set forth on Exhibit D, and except as may be granted pursuant to
this Agreement and the Related Agreements, there are no outstanding options,
warrants, rights (including conversion or preemptive rights and rights of first
refusal), proxy or shareholder agreements, or agreements of any kind for the
purchase or acquisition from the Company of any of its securities.
The number and class of the Company's equity securities issuable upon exercise
or conversion of all outstanding options, warrants and other convertible
securities of the Company are as set forth on Exhibit D. The number of shares
issuable upon exercise or conversion of such securities will not be adjusted as
a result of the transactions contemplated by this Agreement except with respect
to the Warrant Shares.
All issued and outstanding shares of the Company's Common Stock (i) have been
duly authorized and validly issued to the persons listed on Exhibit D hereto and
are fully paid and nonassessable, and (ii) were issued in compliance with all
applicable state and federal laws concerning the issuance of securities.
The Warrant Shares have been duly and validly reserved for issuance. When issued
in compliance with the provisions of this Agreement, the Securities and the
Warrant Shares will be validly issued, fully paid and nonassessable, and will be
free of any liens or encumbrances; provided, however, that the Shares and the
Warrant Shares may be subject to restrictions on transfer under state and/or
federal securities laws as set forth herein or as otherwise required by such
laws at the time a transfer is xxxxxxxx.Xx stock plan, stock purchase, stock
option or other agreement or understanding between the Company and any holder of
any equity securities or rights to purchase equity securities provides for
acceleration or other changes in the vesting provisions or other terms of such
agreement or understanding as the result of any merger, consolidated sale of
stock or assets, change in control or any other transaction(s) by the Company.
AUTHORIZATION; BINDING OBLIGATIONS. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization of this Agreement and the Related Agreements, the performance of
all obligations of the Company hereunder and thereunder at the Closings and the
authorization, sale, issuance and delivery of the Securities pursuant hereto and
the Warrant Shares has been taken or will be taken prior to the Closing. This
Agreement and the Related Agreements, when executed and delivered, will be valid
and binding obligations of the Company enforceable in accordance with their
terms, except (a) as limited by applicable
3
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and (b) general
principles of equity that restrict the availability of equitable remedies. The
sale of the Securities and the subsequent exercise of the Warrants into Warrant
Shares are not and will not be subject to any preemptive rights or rights of
first refusal that have not been properly waived or complied with.
FINANCIAL STATEMENTS. The Company has made available to the Purchaser (a) its
audited balance sheet as at December 31, 2000 and audited statement of income
and cash flow for the period from inception to December 31, 2000, and (b) its
unaudited balance sheet as at December 15, 2001 (the "Statement Date") and
unaudited consolidated statement of income and cash flow for the period ending
on the Statement Date (collectively, the "Financial Statements"), copies of
which are attached hereto as Exhibit E. The Financial Statements, together with
the notes thereto, are complete and correct in all material respects, have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated, except as disclosed
therein, and present fairly the financial condition and position of the Company
as of December 31, 2000 and the Statement Date; provided, however, that the
unaudited financial statements have been prepared in accordance with customary
internal bookkeeping practices of the Company. No verification from any third
party has been obtained with respect to the information contained in the
unaudited financial statements.
LIABILITIES. To the Company's knowledge, the Company has no liabilities or
obligations of any nature (whether known or unknown and whether absolute,
accrued, contingent or otherwise) except for liabilities or obligations
reflected or reserved against in the Financial Statements, and except current
liabilities incurred in the ordinary course of business subsequent to the
Statement Date which have not been, either in any individual case or in the
aggregate, materially adverse.
AGREEMENTS; ACTION.
Except for agreements explicitly contemplated hereby, there are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, affiliates or any affiliate thereof.
There are no agreements, understandings, instruments, contracts, proposed
transactions, judgments, orders, writs or decrees to which the Company is a
party or to its knowledge by which it is bound which may involve (i) obligations
(contingent or otherwise) of, or payments to, the Company in excess of $25,000
(other than obligations of, or payments to, the Company arising from purchase or
sale agreements entered into in the ordinary course of business), or (ii) the
transfer or license of any patent, copyright, trade secret or other proprietary
right to or from the Company (other than licenses arising from the purchase of
"off the shelf" or other standard products), or (iii) provisions restricting the
development, manufacture or distribution of the Company's products or services,
or (iv) indemnification by the Company with respect to infringements of
proprietary rights (other than indemnification obligations arising from
purchase, sale or license agreements entered into in the ordinary course of
business).
The Company has not (i) declared or paid any dividends, or authorized or made
any distribution upon or with respect to any class or series of its capital
stock, (ii) incurred any indebtedness for money borrowed or any other
liabilities (other than with respect to dividend obligations, distributions,
indebtedness and other obligations incurred in the
4
ordinary course of business or as disclosed in the Financial Statements)
individually in excess of $25,000 or, in the case of indebtedness and/or
liabilities individually less than $25,000, in excess of $100,000 in the
aggregate, (iii) made any loans or advances to any person, other than ordinary
advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of
any of its assets or rights, other than the sale of its inventory in the
ordinary course of business.
For the purposes of subsections (b) and (c) above, all indebtedness,
liabilities, agreements, understandings, instruments, contracts and proposed
transactions involving the same person or entity (including persons or entities
the Company has reason to believe are affiliated therewith) shall be aggregated
for the purpose of meeting the individual minimum dollar amounts of such
subsections.
OBLIGATIONS TO RELATED PARTIES. There are no obligations of the Company to
officers, directors, shareholders, or employees of the Company other than (a)
for payment of salary for services rendered, (b) reimbursement for reasonable
expenses incurred on behalf of the Company and (c) for other standard employee
benefits made generally available to all employees (including stock option
agreements outstanding under any stock option plan approved by the Board of
Directors of the Company). None of the officers, directors or shareholders of
the Company, or any members of their immediate families, are indebted to the
Company. No officer, director or shareholder, or any member of their immediate
families, is, directly or indirectly, interested in any material contract with
the Company (other than such contracts as relate to any such person's ownership
of capital stock or other securities of the Company). Except as may be disclosed
in the Financial Statements, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
CHANGES. Since the Statement Date, there has not been to the Company's
knowledge:
Any change in the assets, liabilities, financial condition, prospects or
operations of the Company from that reflected in the Financial Statements, other
than changes in the ordinary course of business, none of which individually or
in the aggregate has had or is reasonably expected to have a material adverse
effect on such assets, liabilities, financial condition, prospects or operations
of the Company;
Any resignation or termination of any officer, key employee or group of
employees of the Company; and the Company does not know of the impending
resignation or termination of employment of any such officer, key employee or
group of employees;
Any material change, except in the ordinary course of business, in the
contingent obligations of the Company by way of guaranty, endorsement,
indemnity, warranty or otherwise;
Any damage, destruction or loss, whether or not covered by insurance, materially
and adversely affecting the properties, business or prospects or financial
condition of the Company;
Any waiver by the Company of a valuable right or of a material debt owed to it;
Any direct or indirect loans made by the Company to any shareholder, employee,
officer or director of the Company, other than advances made in the ordinary
course of business;
Any material change in any compensation arrangement or agreement with any
employee, officer, director or shareholder;
Any declaration or payment of any dividend or other distribution of the assets
of the Company;
5
Any labor organization activity related to the Company;
Any debt, obligation or liability incurred, assumed or guaranteed by the
Company, except those for immaterial amounts and for current liabilities
incurred in the ordinary course of business;
Any sale, assignment or transfer of any patents, trademarks, copyrights, trade
secrets or other intangible assets;
Any change in any material agreement to which the Company is a party or by which
it is bound which materially and adversely affects the business, assets,
liabilities, financial condition, operations or prospects of the Company;
Any other event or condition of any character that, either individually or
cumulatively, has materially and adversely affected the business, assets,
liabilities, financial condition, prospects or operations of the Company; or
Any arrangement or commitment by the Company to do any of the acts described in
subsection (a) through (m) above.
TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company has good and marketable
title to its properties and assets, including the properties and assets
reflected in the most recent balance sheet included in the Financial Statements,
and good title to its leasehold estates, in each case subject to no mortgage,
pledge, lien, lease, encumbrance or charge, other than (a) those resulting from
taxes which have not yet become delinquent, (b) minor liens and encumbrances
which do not materially detract from the value of the property subject thereto
or materially impair the operations of the Company, and (c) those that have
otherwise arisen in the ordinary course of business. All facilities, machinery,
equipment, fixtures, vehicles and other properties owned, leased or used by the
Company are in good operating condition and repair and are reasonably fit and
usable for the purposes for which they are being used. To the Company's
knowledge, the Company is in compliance with all material terms of each lease to
which it is a party or is otherwise bound.
INTELLECTUAL PROPERTY.
To the Company's knowledge, the Company and each of its Subsidiaries owns or
possesses adequate licenses or other rights to use all of the patents, patent
applications, trademarks, trademark applications, service marks, service xxxx
applications, trade names, trade secrets, copyrights, copyright applications,
licenses, domain names, and other intellectual property (collectively, the
"Intellectual Property") necessary for the conduct of its business as of the
date hereof and as presently proposed to be conducted. Section 3.11 of Schedule
of Exceptions sets forth, with respect to each item of Intellectual Property of
the Company registered with any domestic or foreign governmental agency (i) a
brief description of such item of Intellectual Property, and (ii) the
jurisdictions covered by such registration or application. The Company has not
received any communication alleging that the Company or any of its Subsidiaries
has violated, or by conducting its business as presently proposed to be
conducted, would violate any of the Intellectual Property of any other person or
entity. The business and operations of the Company and its Subsidiaries as of
the date hereof and as presently proposed to be conducted are not materially
dependent upon any item or items of Intellectual Property of any other person or
entity.
Neither the Company nor any of its Subsidiaries has any obligation to compensate
any person for the use of any Intellectual Property and has not, other than in
the ordinary course of business, granted to any person any license or right to
use such Intellectual
6
Property, whether or not requiring the payment of royalties. To the Company's
knowledge, the Company and each of its Subsidiaries has taken all actions
reasonably necessary to protect its ownership or rights to use its Intellectual
Property. Neither the Company nor any of its Subsidiaries has assigned,
transferred, licensed, pledged, encumbered, or otherwise taken or failed to take
any action with respect to its Intellectual Property and underlying technology
which would be reasonably likely to have a material adverse effect. To the
Company's knowledge, the conduct of the business of the Company or any of its
Subsidiaries as of the date hereof and as presently proposed to be conducted
does not infringe on any Intellectual Property of any third party. To the
Company's knowledge, no third party has infringed or is infringing on any of the
Intellectual Property of the Company or any of its Subsidiaries. To the
Company's knowledge, no technical information developed by and belonging to the
Company or any of its Subsidiaries has been disclosed to a third party who has
not entered into an agreement to maintain the confidentiality of such technical
information.
The Company does not know of any employee or consultant of the Company or any of
its Subsidiaries that is obligated under any agreement (including licenses,
covenants or commitments of any nature) or subject to any judgment, decree or
order of any court or administrative agency, or any other restriction that would
interfere with the use of his or her best efforts to carry out his or her duties
for the Company or any of its Subsidiaries or to promote the interests of the
Company or such Subsidiary or that would conflict with the business of the
Company or any of its Subsidiaries as currently conducted and as proposed to be
conducted. To the Company's knowledge, the conduct of the business of the
Company or any of its Subsidiaries by the employees and contractors of the
Company or any of its Subsidiaries, as currently conducted and as presently
proposed to be conducted, will not conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees or contractors or the
Company or any such Subsidiary is now obligated. The Company does not believe it
is or will be necessary to utilize any inventions of any employees of the
Company or any of its Subsidiaries (or persons the Company or any of its
Subsidiaries currently intends to hire) made prior to their employment by the
Company or such Subsidiary.
COMPLIANCE WITH OTHER INSTRUMENTS. To the Company's knowledge, the Company is
not in material violation or default of any term of its Articles or Bylaws, or
of any provision of any mortgage, indenture, contract, agreement, instrument or
contract to which it is party or by which it is bound or of any judgment,
decree, order, writ. To the Company's knowledge, the execution, delivery, and
performance of and compliance with this Agreement, and the Related Agreements,
and the issuance and sale of the Securities pursuant hereto and of the Warrant
Shares, will not, with or without the passage of time or giving of notice,
result in any such material violation, or be in conflict with or constitute a
material default under any such term, or result in the creation of any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or assets of the
Company or the suspension, revocation, impairment, forfeiture or nonrenewal of
any permit, license, authorization or approval applicable to the Company, its
business or operations or any of its assets or properties. To the Company's
knowledge, the Company has avoided every condition, and has not performed any
act, the occurrence of which would result in the Company's loss of any right
granted under any license, distribution
7
agreement or other agreement required to be disclosed on the Schedule of
Exceptions.
LITIGATION. There is no action, suit, proceeding or investigation pending or, to
the Company's knowledge, currently threatened against the Company that questions
the validity of this Agreement, or the Related Agreements or the right of the
Company to enter into any of such agreements, or to consummate the transactions
contemplated hereby or thereby, or which would reasonably be expected to result,
either individually or in the aggregate, in any material adverse change in the
assets, condition, affairs or prospects of the Company, financially or
otherwise, or any change in the current equity ownership of the Company, nor
does the Company know of any basis for any of the foregoing. The foregoing
includes, without limitation, actions pending or, to the Company's knowledge,
threatened involving the prior employment of any of the Company's employees,
their use in connection with the Company's business of any information or
techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers. The Company is not a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality. There is no action,
suit, proceeding or investigation by the Company currently pending or which the
Company intends to initiate.
TAX RETURNS AND PAYMENTS. The Company has timely filed all tax returns (federal,
state and local) required to be filed by it. All taxes shown to be due and
payable on such returns, any assessments imposed, and to the Company's knowledge
all other taxes due and payable by the Company on or before the Closing, have
been paid or will be paid prior to the time they become delinquent. The Company
has not been advised (a) that any of its returns, federal, state or other, have
been or are being audited as of the date hereof, or (b) of any deficiency in
assessment or proposed judgment to its federal, state or other taxes. The
Company has no knowledge of any liability of any tax to be imposed upon its
properties or assets as of the date of this Agreement that is not adequately
provided for.
EMPLOYEES. To the Company's knowledge, the Company has no collective bargaining
agreements with any of its employees. There is no labor union organizing
activity pending or, to the Company's knowledge, threatened with respect to the
Company. To the Company's knowledge, no employee of the Company, nor any
consultant with whom the Company has contracted, is in violation of any material
term of any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to
contract with, the Company because of the nature of the business to be conducted
by the Company; and to the Company's knowledge the continued employment by the
Company of its present employees, and the performance of the Company's contracts
with its independent contractors, will not result in any such violation. The
Company has not received any notice alleging that any such violation has
occurred. Each of the employees of and consultants to the Company and each of
its Subsidiaries has executed and delivered to the Company a nondisclosure and
inventions agreement substantially in the form of Exhibit F attached hereto. No
employee of the Company has been granted the right to continued employment by
the Company or to any material compensation following termination of employment
with the Company. The Company does not know of any officer, key employee or
group of employees that intends to terminate his, her or their employment with
the Company, nor
8
does the Company have a present intention to terminate the employment of any
officer, key employee or group of employees.
OBLIGATIONS OF MANAGEMENT. Each officer and key employee of the Company is
currently devoting substantially all of his or her business time to the conduct
of the business of the Company. The Company does not know of any officer or key
employee of the Company that is planning to work less than full time at the
Company in the future. No officer or key employee is currently working or, to
the Company's knowledge, plans to work for a competitive enterprise, whether or
not such officer or key employee is or will be compensated by such enterprise.
REGISTRATION RIGHTS AND VOTING RIGHTS. Except as set forth in the Investor
Rights Agreement and Exhibits hereto, the Company is presently not under any
obligation, and has not granted any rights, to register any of the Company's
presently outstanding securities or any of its securities that may hereafter be
issued. To the Company's knowledge, except as contemplated in the Shareholders
Agreement, no shareholder of the Company has entered into any agreement with
respect to the voting of equity securities of the Company.
COMPLIANCE WITH LAWS; PERMITS. To the Company's knowledge, the Company is not in
violation of any applicable statute, rule, regulation, order or restriction of
any domestic or foreign government or any instrumentality or agency thereof in
respect of the conduct of its business or the ownership of its properties which
violation would materially and adversely affect the business, assets,
liabilities, financial condition, operations or prospects of the Company. To the
Company's knowledge, no governmental orders, permissions, consents, approvals or
authorizations are required to be obtained and no registrations or declarations
are required to be filed in connection with the execution and delivery of this
Agreement and the issuance of the Securities or the Warrant Shares, except such
as has been duly and validly obtained or filed, or with respect to any filings
that must be made after the Closing, as will be filed in a timely manner. To the
Company's knowledge, the Company has all franchises, permits, licenses and any
similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects or financial condition of the Company and
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted.
ENVIRONMENTAL AND SAFETY LAWS.
To the Company's knowledge, the Company is not in violation of any applicable
statute, law or regulation relating to occupational health and safety, and to
its knowledge, no material expenditures are or will be required in order to
comply with any such existing statute, law or regulation.
To the Company's knowledge, neither the Company nor any Subsidiary has caused or
allowed, or contracted with any party for, the generation, use, transportation,
treatment, storage or disposal of any Hazardous Substances (as defined below) in
connection with the operation of its business or otherwise in a material
violation of any applicable Environmental Laws. To the Company's knowledge, the
operation of the business and the ownership, lease or occupation of real
property (the "Premises") by the Company and its Subsidiaries are in material
compliance with all applicable Environmental Laws (as defined below) and orders
or directives of any governmental authorities having jurisdiction under such
Environmental Laws, including, without limitation, any
9
Environmental Laws or orders or directives with respect to any cleanup or
remediation of any release or threat of release of Hazardous Substances. Neither
the Company nor any Subsidiary has received any citation, directive, letter or
other communication, written or oral, or any notice of any proceeding, claim or
lawsuit, from any person arising out of the ownership or occupation of the
Premises, or the conduct of its operations, and the Company does not know of any
basis therefor. To the Company's knowledge, the Company and each of its
Subsidiaries has obtained and is maintaining in full force and effect all
necessary permits, licenses and approvals required by all Environmental Laws
applicable to the Premises and the business operations conducted thereon, and is
in compliance with all such permits, licenses and approvals. To the Company's
knowledge, neither the Company nor any Subsidiary has caused or allowed a
release, or a threat of release, of any Hazardous Substance unto, at or near the
Premises, and, to the Company's knowledge, neither the Premises nor any property
at or near the Premises has ever been subject to a release, or a threat of
release, of any Hazardous Substance. For the purposes of this Agreement, the
term "Environmental Laws" shall mean any Federal, state or local law or
ordinance or regulation pertaining to the protection of human health or the
environment, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq. For
purposes of this Agreement, the term "Hazardous Substances" shall include oil
and petroleum products, asbestos, polychlorinated biphenyls, urea formaldehyde
and any other materials classified as hazardous or toxic under any Environmental
Laws.
FULL DISCLOSURE. The Company has provided the Purchaser with all information
requested by the Purchaser in connection with its decision to purchase the
Securities, including all information the Company believes is reasonably
necessary to make such investment decision. Neither this Agreement, the exhibits
hereto, the Related Agreements nor any other document delivered by the Company
to Purchaser or its attorneys or agents in connection herewith or therewith or
with the transactions contemplated hereby or thereby, contain any untrue
statement of a material fact nor omit to state a material fact necessary in
order to make the statements contained herein or therein not misleading. To the
Company's knowledge, there are no facts which (individually or in the aggregate)
materially adversely affect the business, assets, liabilities, financial
condition, prospects or operations of the Company that have not been set forth
in this Agreement, the exhibits hereto, the Related Agreements or in other
documents delivered to Purchaser or their attorneys or agents in connection
herewith.
FOREIGN CORRUPT PRACTICES ACT. To the Company's knowledge, neither the Company
nor any of its Subsidiaries has taken any action which would cause it to be in
material violation of the Foreign Corrupt Practices Act of 1977, as amended, or
any rules or regulations thereunder. To the Company's knowledge, there is not
now, and there has never been, any employment by the Company or any of its
subsidiaries of, or beneficial ownership in the Company or any of its
subsidiaries by, any governmental or political official in any country in the
world.
MINUTE BOOKS. The minute books of the Company made available to the Purchaser
contain a complete summary of all meetings of directors and shareholders since
the time of incorporation.
INSURANCE. The Company has general commercial, fire, casualty and workers'
compensation insurance policies with coverage customary for companies similarly
situated to the Company.
10
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Except as set forth on a Schedule of Exceptions delivered by the Purchaser to
the Company at the Closing specifically identifying the relevant Section hereof,
the Purchaser hereby represents and warrants to the Company as follows (such
representations and warranties do not lessen or obviate the representations and
warranties of the Company set forth in this Agreement):
ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of
Colorado. The Purchaser is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in all jurisdictions
in which the nature of its activities and of its properties (both owned and
leased) makes such qualification necessary, except for those jurisdictions in
which failure to do so would not have a material adverse effect on the Purchaser
or its business.
REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power and authority
under all applicable provisions of law to execute and deliver this Agreement and
the Related Agreements and to carry out their provisions. All action on
Purchaser's part required for the lawful execution and delivery of this
Agreement and the Related Agreements have been or will be effectively taken
prior to the Closing. Upon their execution and delivery, this Agreement and the
Related Agreements will be valid and binding obligations of Purchaser,
enforceable in accordance with their terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and (b) as limited by
general principles of equity that restrict the availability of equitable
remedies
LITIGATION. There is no action, suit, proceeding or investigation pending or, to
the Purchaser's knowledge, currently threatened against the Purchaser that
questions the validity of this Agreement, or the Related Agreements or the right
of the Purchaser to enter into any of such agreements, or to consummate the
transactions contemplated hereby or thereby, or which would reasonably be
expected to result, either individually or in the aggregate, in any material
adverse change in the assets, condition, affairs or prospects of the Purchaser,
financially or otherwise, or any change in the current equity ownership of the
Purchaser, nor does the Purchaser know of any basis for any of the foregoing.
Purchaser is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. Neither the Purchaser, its officers, directors or any
shareholders holding more than 5% of the issued and outstanding shares of the
Purchaser have been subject to action, suit, order, procedure or, to the
knowledge of Purchaser, investigation by the U.S. Securities and Exchange
Commission ("SEC"), the National Association of Securities Dealers, any state
securities commission or other regulatory body. There is no action, suit,
proceeding or investigation by the Purchaser currently pending or which the
Purchaser intends to initiate.
TAX RETURNS AND PAYMENTS. The Purchaser has timely filed all tax returns
(federal, state and local) required to be filed by it. All taxes shown to be due
and payable on such returns, any assessments imposed, and to the Purchaser's
knowledge all other taxes due and payable by the Purchaser on or before the
Closing, have been paid or will be paid prior to the time they become
delinquent. The Purchaser has not been advised (a) that
11
any of its returns, federal, state or other, have been or are being audited as
of the date hereof, or (b) of any deficiency in assessment or proposed judgment
to its federal, state or other taxes. The Purchaser has no knowledge of any
liability of any tax to be imposed upon its properties or assets as of the date
of this Agreement that is not adequately provided for.
FULL DISCLOSURE. The Purchaser has provided the Company with all information
requested by the Company in connection with sale of the Securities, including
all information the Purchaser believes is reasonably necessary to make such a
decision. Neither this Agreement, the exhibits hereto, the Related Agreements
nor any other document delivered by the Purchaser to Company or its attorneys or
agents in connection herewith or therewith or with the transactions contemplated
hereby or thereby, contain any untrue statement of a material fact nor omit to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. To the Purchaser's knowledge, there are no facts
which (individually or in the aggregate) materially adversely affect the
consummation of the transactions contemplated herein that have not been set
forth in this Agreement, the exhibits hereto, the Related Agreements or in other
documents delivered to Company or their attorneys or agents in connection
herewith.
INVESTMENT REPRESENTATIONS. Purchaser understands that neither the Securities
nor the Warrant Shares have been registered under the Securities Act. Purchaser
also understands that the Securities are being offered and sold pursuant to an
exemption from registration contained in the Securities Act based in part upon
Purchaser's representations contained in the Agreement. Purchaser hereby
represents and warrants as follows:
INVESTMENT EXPERIENCE. Purchaser has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the Securities and the
Warrant Shares for Purchaser's own account for investment only, and not with a
view towards their distribution.
PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents that by reason of its,
or of its management's, business or financial experience, Purchaser has the
capacity to protect its own interests in connection with the transactions
contemplated in this Agreement, and the Related Agreements. Further, Purchaser
is aware of no publication of any advertisement in connection with the
transactions contemplated in the Agreement.
COMPANY INFORMATION. Purchaser has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company. Purchaser has also had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
LIQUIDITY. Purchaser acknowledges and agrees that the Securities, and, if
issued, the Warrant Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available.
RESIDENCE. The office of the Purchaser in which its investment decision was made
is located at the address of the Purchaser set forth on the signature page
hereof.
TRANSFER RESTRICTIONS. The Purchaser acknowledges and agrees that the Securities
and, if issued, the Warrant Shares are subject to restrictions on transfer
pursuant to the Securities Act and applicable securities laws.
12
CONDITIONS TO CLOSING.
CONDITIONS TO PURCHASER'S OBLIGATIONS AT THE CLOSING. Purchaser's obligations to
purchase the Securities at each of the Closings are subject to the satisfaction,
at or prior to the date for each of the Closings, of the following conditions:
REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF OBLIGATIONS. The
representations and warranties made by the Company in Section 3 hereof shall be
true and correct as of the Closing Date with the same force and effect as if
they had been made as of the Closing Date, and the Company shall have performed
all obligations and conditions herein required to be performed or observed by it
on or prior to the Closing.
CONSENTS, PERMITS, AND WAIVERS. The Company shall have obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Agreement and the Related Agreements (except
for such as may be properly obtained subsequent to the Closing).
CORPORATE DOCUMENTS. The Company shall have delivered to Purchaser or their
counsel, copies of all corporate documents of the Company as Purchaser shall
reasonably request.
RESERVATION OF WARRANT SHARES. The Warrant Shares issuable upon conversion of
the Shares shall have been duly authorized and reserved for issuance upon such
conversion.
SECRETARY'S CERTIFICATE. The Purchaser shall have received from the Company's
Secretary, a certificate having attached thereto (i) the Company's Articles of
Incorporation, as amended, as in effect at the time of the Closing, (ii) the
Company's Bylaws as in effect at the time of the Closing, (iii) resolutions
approved by the Board of Directors authorizing the transactions contemplated
hereby, and (iv) good standing certificates with respect to the Company from the
Secretary of State of
Colorado and any other jurisdiction in which the Company
is qualified to do business, dated a recent date before the Closing.
INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement substantially in the
form attached hereto as Exhibit B shall have been executed and delivered by the
parties thereto.
SHAREHOLDERS AGREEMENT. The Shareholders Agreement substantially in the form
attached hereto as Exhibit C shall have been executed and delivered by the
parties thereto.
PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in connection
with the transactions contemplated at the Closing hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to the Purchaser and their special counsel, and the Purchaser
and their special counsel shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably request.
CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation to issue and
sell the Shares at each Closing is subject to the satisfaction, on or prior to
such Closing, of the following conditions:
REPRESENTATIONS AND WARRANTIES TRUE. The representations and warranties in
Section 4 made by the Purchaser shall be true and correct at the date of each of
the Closings, with the same force and effect as if they had been made on and as
of said date.
PERFORMANCE OF OBLIGATIONS. The Purchaser shall have performed and complied with
all
13
agreements and conditions herein required to be performed or complied with by
the Purchaser on or before the Closing.
INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement substantially in the
form attached hereto as Exhibit B shall have been executed and delivered by the
Purchaser.
CONSENTS, PERMITS, AND WAIVERS. The Company shall have obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Agreement and the Related Agreements (except
for such as may be properly obtained subsequent to the Closing).
SECRETARY'S CERTIFICATE. The Company shall have received from the Purchaser's
Secretary, a certificate having attached thereto (i) resolutions approved by the
Board of Directors authorizing the transactions contemplated hereby, and (ii)
good standing certificates with respect to the Purchaser from the Secretary of
State of
Colorado.
CONFIDENTIALITY. The Confidentiality and Non-disclosure Agreement substantially
in the form attached hereto as Exhibit G shall have been executed and delivered
by the Purchaser.
(g) CONSULTING AGREEMENT. The Consulting Agreement substantially in the form
attached hereto as Exhibit H shall have been executed and delivered by the
parties thereto.
MISCELLANEOUS.
GOVERNING LAW. This Agreement shall be governed in all respects by the laws of
the State of
Colorado.
SURVIVAL. The representations, warranties, covenants and agreements made herein
shall survive any investigation made by the Purchaser and the closing of the
transactions contemplated hereby. All statements as to factual matters contained
in any certificate or other instrument delivered by or on behalf of the Company
pursuant hereto in connection with the transactions contemplated hereby shall be
deemed to be representations and warranties by the Company hereunder solely as
of the date of such certificate or instrument.
SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of the Securities from time to time.
ENTIRE AGREEMENT. This Agreement, the exhibits and schedules hereto, the Related
Agreements and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
SEVERABILITY. In case any provision of the Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
AMENDMENT AND WAIVER.
This Agreement may be amended or modified only upon the written agreement of the
Company and the Purchaser.
The obligations of the Company and the Purchaser under the Agreement may be
waived only written consent of the other party but any waiver or failure to
insist upon strict
14
compliance with such obligations shall not operate as a waiver of, or estoppel
with respect to, any subsequent failure of compliance.
DELAYS OR OMISSIONS. It is agreed that no delay or omission to exercise any
right, power or remedy accruing to any party, upon any breach, default or
noncompliance by another party under this Agreement or the Related Agreements,
shall impair any such right, power or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of or in any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character on the Purchaser's part of any breach, default or
noncompliance under this Agreement, the Related Agreements or any waiver on such
party's part of any provisions or conditions of the Agreement or the Related
Agreements 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 the Related Agreements, by law, or otherwise afforded to any party,
shall be cumulative and not alternative.
NOTICES. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed facsimile if sent during normal business
hours of the recipient, if not, then on the next business day, (c) five (5)
business days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) business day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
Company and to the Purchaser at their respective addresses as set forth on the
signature page hereof or at such other address as the Company or such Purchaser
may designate by ten (10) days advance written notice to the other party hereto.
EXPENSES. Each party will pay its own legal, accounting and other expenses
incurred by such party or on its own behalf in connection with this Agreement
and the Related Agreements.
ATTORNEYS' FEES. In the event that any suit or action is instituted to enforce
any provision in this Agreement, the prevailing party in such dispute shall be
entitled to recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
TITLES AND SUBTITLES. The titles of the sections and subsections of the
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
COUNTERPARTS. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
BROKER'S FEES. Each party hereto represents and warrants that no agent, broker,
investment banker, person or firm acting on behalf of or under the authority of
such party hereto is or will be entitled to any broker's or finder's fee or any
other commission directly or indirectly in connection with the transactions
contemplated herein. Each party hereto further agrees to indemnify each other
party for any claims, losses or expenses incurred by such other party as a
result of the representation in this Section 6.13 being untrue.
INDEMNIFICATION. Each party hereto agrees to indemnify and hold harmless the
other party, its affiliates, directors, officers, agents and representatives as
follows:
15
INDEMNIFICATION FOR CLAIMS. As used herein, the term "Claims" refers to any
losses, damages, liabilities, or claims including costs or expenses (including
but not limited to attorneys' fees and other expenses of investigation in
defense of any such claims) which arise as a result of any breach or violation
of the covenants, agreements, warrants, or representations contained in this
Agreement or the Related Agreements. Any party who has breached or violated any
covenant, agreement, warranty, or representation giving rise to a Claim shall be
referred to as an "Indemnifying Party" and any party who has suffered or is
threatened with suffering losses in connection with such a Claim shall be
referred to as an "Indemnified Party." The Indemnifying Party will be obligated
to indemnify the Indemnified party with respect to any Claim occasioned by a
breach or violation of this Agreement or the Related Agreements on the part of
the Indemnifying Party.
NOTICE. Any Indemnified Party shall promptly advise any Indemnifying Party in
writing of the existence of any Claim caused or permitted by such Indemnifying
Party as soon as feasible and in no event later than ten days after the
Indemnified Party becomes aware of such actual or potential Claim. Thereafter,
if the Indemnifying Party acknowledges its obligation in writing, the
Indemnified Party will afford the Indemnifying Party a reasonable opportunity to
undertake the defense, settlement, or other resolution of the Claim, and the
Indemnified Party shall cooperate fully with the Indemnifying Party in resolving
such matter. If the Indemnifying Party fails or refuses to acknowledge its
liability or to undertake such defense, settlement, or other resolution of such
Claim, then the Indemnified Party may itself defend, settle, or otherwise
resolve the Claim, and the Indemnifying Party shall be solely responsible for
all costs incurred by the Indemnified Party in connection therewith.
USE OF PROCEEDS. The proceeds from the sale of the Securities shall be used by
the Company for research and development and for general corporate purposes.
KNOWLEDGE. Whenever a statement of any party to this Agreement is qualified by
that party's "knowledge", "knowledge" means the actual knowledge of the person
making such statement at the time or times that such statement is made without
any requirement for further inquiry. If the statement is made by the Company,
such knowledge shall include the actual knowledge of the Company's officers and
directors; otherwise, the actual knowledge of a person shall not be imputed to
any other person.
PRONOUNS. All pronouns contained herein, and any variations thereof, shall be
deemed to refer to the masculine, feminine or neutral, singular or plural, as to
the identity of the parties hereto may require.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the parties hereto have executed the
SECURITIES
PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY:
ASPENBIO, INC.
By: Xxxxx Xxxxx, President
Address: 0000 Xxxxxxxxx Xxx, Xxxx. X-0
Xxxxxxxxx, XX 00000
PURCHASER:
Cambridge Holdings, Ltd.
By: Xxxxxxx Xxxxx, President
000 X. Xxxxxxxxxx Xxxx. Xxxx 00
Xxxxxx, XX 00000
SECURITIES PURCHASE AGREEMENT
SIGNATURE PAGE
LIST OF EXHIBITS
Warrants..................................................... Exhibit A
Investor Rights Agreement.................................... Exhibit B
Shareholders Agreement....................................... Exhibit C
List of Shareholders and Optionholders....................... Exhibit D
Financial Statements......................................... Exhibit E
Proprietary Information and Inventions Agreement............. Exhibit F
Confidentiality and Non-disclosure Agreement................. Exhibit G
Consulting Agreement......................................... Exhibit H
Subscription Agreement....................................... Exhibit I
