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EXHIBIT 10.2
EXCHANGE AGREEMENT
Exchange Agreement dated as of January 30, 1998 by and among
Clearwater Fund IV Ltd., ("Clearwater Ltd."), Clearwater Fund IV LLC
("Clearwater IV"), Clearwater Offshore Fund Ltd. ("Clearwater Offshore"),
(Clearwater Ltd., Clearwater IV and Clearwater Offshore being, collectively, the
"Preferred Shareholders") and XXXX/Biophile International Corporation (the
"Company").
WHEREAS, Clearwater Ltd., Clearwater IV and Clearwater Offshore own,
respectively, 2,231 shares, 8000 shares and 2,000 shares of 5% Cumulative
Convertible Preferred Stock, Series E, of the Company ("Series E Preferred
Stock");
WHEREAS, the parties hereto desire that the Preferred Shareholders
exchange all outstanding shares of Series E for an equal number of shares of
newly issued 5% Cumulative Convertible Preferred Stock, Series G of the
Corporation having the rights, preferences and designations as set forth on
Exhibit A hereto ("Series G Preferred Stock");
NOW THEREFORE, the parties agree as follows:
1. Exchange of Shares. Each Preferred Shareholder and the Company
hereby agree to exchange each share of Series E Preferred Stock held
respectively by each Preferred Shareholder for one share of Series G Preferred
Stock to be issued at the Closing by the Company (the "Exchange").
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2. Closing. The Closing ("Closing") of the Exchange shall take place
at the offices of Rosenman & Colin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 on such date as shall mutually be agreed to by the parties. At the
Closing, (i) each Preferred Shareholder shall deliver to the Company the stock
certificate representing the Series E Preferred Stock held by such Preferred
Stockholder, duly endorsed for transfer and (ii) the Company will deliver to
each Preferred Shareholder a stock certificate for shares of Series G Preferred
Stock representing the same number of shares of Series E Preferred Stock held
respectively by such Preferred Shareholder.
3. Registration Rights. The Company agrees to use its best efforts
to amend its Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on March 31, 1997 and amended on September 26, 1997 so as to
cause as quickly as practicable the registration of the resale by the Preferred
Shareholders of all shares of Common Stock of the Company receivable upon
conversion of Series G Preferred Stock.
4. Dividends. All accrued and unpaid dividends with respect to the
Series E Preferred Stock outstanding as of the Closing shall be paid by the
Company on the first date upon which dividends shall be payable on the Series G
Preferred Stock.
5. Lock-up. The Preferred Shareholders agree not to effect any sale
or transfer of (i) any shares of Series G Preferred Stock, (ii) any shares of
Common
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Stock received upon conversion of Series G Preferred Stock, or (iii) any shares
of Common Stock of the Corporation received by Clearwater Ltd. upon conversion
of the Series C Preferred and owned by Clearwater Ltd. as of the date hereof, on
or before June 30, 1998, other than sales or transfers to "affiliates" as that
term is defined under the Securities Act of 1933 who agree in writing to be
bound by the foregoing.
6. Investment Representation. Each Preferred Stockholder represents
and warrants it is acquiring the Series G Preferred Stock for investment
purposes and not with a view to the distribution thereof.
7. Miscellaneous.
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of laws.
b. This Agreement and the other agreements specifically
referenced herein, embody the entire agreement and understanding between the
parties relating to the subject matter hereof and supersedes all existing and
prior agreements between the parties.
c. This Agreement cannot be amended, waived, discharged,
or terminated except by an instrument in writing duly executed by all of the
parties.
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d. This Agreement may be executed in multiple
counterparts each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
CLEARWATER FUND IV LTD.
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Director
CLEARWATER FUND IV LLC
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Director
CLEARWATER OFFSHORE FUND LTD.
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Director
XXXX/BIOPHILE INTERNATIONAL
CORPORATION
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: President
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