EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
AND
PLAN OF REORGANIZATION
This Stock Purchase Agreement and Plan of Reorganization (this
"Agreement") is made and entered into as of December 31, 2001, by and
among (i) Physician and Pharmaceutical Services, Inc. ("PPSI"), a
corporation organized and existing under the laws of the State of
Pennsylvania, and each of its stockholders (the "PPSI Stockholders")
whose names and addresses are set forth on Exhibit A; and (ii) Univec,
Inc. ("U"), a corporation organized and existing under the laws of the
State of Delaware.
BACKGROUND
U desires to purchase the PPSI Shares and the Xxxxxx Options
(as such terms are defined below) from the PPSI Stockholders on the following
terms and conditions.
The PPSI Stockholders desire to sell the PPSI Shares and the
Xxxxxx Options to U, on the following terms and conditions.
This Agreement and the transactions contemplated herein have
been duly approved by the respective Boards of Directors of U and PPSI.
It is intended that the transactions contemplated hereby
qualify as a tax-free reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
All of the issued and outstanding shares of common stock of
PPSI have been duly authorized, are validly issued, fully paid, and
non-assessable, and are held of record by the shareholders of PPSI in the
amounts set forth opposite their names on Exhibit A of this Agreement.
AGREEMENT
U, PPSI, and the PPSI Stockholders, in consideration of the
foregoing and the mutual covenants and agreements herein contained, and
intending to be legally bound, agree as follows:
ARTICLE 1
DESCRIPTION OF TRANSACTION
Section 1.01 Purchase and Sale. Upon the terms and subject to
the conditions set forth in this Agreement, the PPSI Stockholders agree to sell,
assign, transfer, convey and deliver (i) the PPSI Shares and (ii) options (the
"Xxxxxx Options") to purchase 75,000 shares of common stock of PPSI, $.001 par
value per share (the "PPSI Common Stock") to U, and U agrees to purchase and
accept the PPSI Shares and the Xxxxxx Options from the PPSI Stockholders, on the
Closing Date. For the purposes of this Agreement, "PPSI Shares" shall mean
50,000 shares of PPSI Common Stock.
Section 1.02 Delivery of Options and Stock Certificates;
Instruments of Transfer. On the Closing Date, the PPSI Stockholders shall
deliver to U (x) one or more certificates evidencing the PPSI Shares, (y) the
Xxxxxx Options and (z) such specific assignments, endorsements, other good and
sufficient instruments of conveyance and transfer, in form and substance
satisfactory to U, PPSI and their respective counsel, as shall be reasonably
requested by U to effectively vest in U title to all the PPSI Shares and the
Xxxxxx Options. Simultaneously with the delivery of such instruments, PPSI shall
put U in actual possession and operating control of the business of PPSI. U
shall deliver to each PPSI Stockholder (i) one or more certificates evidencing
the shares of U Common Stock (as defined below) purchased by such PPSI
Stockholder, each of which shall be registered in the name of such stockholder
or its designee and (ii) the PPSI Options (as defined below).
Section 1.03 Purchase Price. The consideration (the "PPSI
Purchase Price"): (A) to be paid to the PPSI Stockholders by U for all the PPSI
Shares shall be 2,567,000 shares of the common stock of U, $.001 par value per
share (the "U Common Stock") and (B) to be paid to the PPSI Stockholders by U
for all the Xxxxxx Options shall be options (the "PPSI Options")(1) to acquire
3,955,000 shares of U Common Stock. The parties understand that the foregoing
Purchase Price shall result in PPSI Stockholders receiving on the Closing Date:
(I) the number of shares of U Common Stock equal to 25.67% of the number of
issued and outstanding shares of U Common Stock on the Closing Date (such
calculation (i) assumes that the TWT Transaction (as defined below) is
consummated and that 722,500 shares of U Common Stock are issued to stockholders
of TWT, and (ii) includes the 2,567,000 shares of U Common Stock issued to the
PPSI Stockholders as part of the PPSI Purchase Price) and (II) the number of
PPSI Options representing the right to acquire at least 25.67% of the U Common
Stock reserved for issuance
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1 Options set forth here do not include incentive stock options issuable to Xx.
Xxxxxx pursuant to his Employment Agreement.
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upon (x) the conversion of Series A Preferred Stock of U, par value $.001 per
share (the "Series A Preferred Stock"), to that number of shares of U Common
Stock set forth on Schedule 1.03 hereto plus (y) the conversion of convertible
debt held by U Stockholders (as defined below) to that number of shares of U
Common Stock set forth on Schedule 1.03 plus (z) the exercise of options and
warrants held by U Stockholders and outstanding on the Closing Date representing
that number of shares of U Common Stock set forth on Schedule 1.03 (such
calculation in the foregoing clause (II) (i) assumes that the TWT Transaction is
consummated and includes the 1,110,000 shares reserved for issuance upon the
exercise of options issued to TWT stockholders, and (ii) includes the 3,955,000
shares reserved for issuance upon the exercise of the PPSI Options granted to
the PPSI Stockholders as part of the PPSI Purchase Price); and provided further
that if U does not consummate a transaction (the "TWT Transaction") with Thermal
Waste Technologies, Inc., a corporation organized under the laws of the State of
Delaware ("TWT"), pursuant to the letter agreement, dated November 11, 2001,
between U and TWT (the "TWT Letter Agreement"), the foregoing PPSI Purchase
Price shall be (X) 2,567,000 shares of U Common Stock and (Y) 3,955,000 PPSI
Options to acquire 3,955,000 shares of U Common Stock and, in such event, the
25.67% referenced in the foregoing clauses (I) and (II) shall be increased to
27.67%.
U shall issue to the PPSI Stockholders, in accordance with
their percentage ownership of PPSI on the Closing Date as set forth in Exhibit
A, such U Common Stock. In making such payment, there shall be no fractional
shares issued; each share of U Common Stock issued pursuant to this Agreement
shall be rounded up to the nearest whole number of shares.
Each PPSI Option shall have an exercise period of ten (10)
years and an exercise price of $.01 per share of U Common Stock. PPSI Options
shall be immediately exercisable.
Section 1.04 Closing; Closing Date. The consummation of the
transactions contemplated by this Agreement (the "Closing") shall take place at
the offices of Xxxxxxxx Xxxxx & Deutsch, 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on December 31, 2001 or on such other date as may be mutually agreed upon
by U and PPSI (the "Closing Date").
Section 1.05 Tax Consequences. For federal income tax
purposes, the transactions set forth in this Article 1 are intended to
constitute a tax-free reorganization within the meaning of Section 368(a) of the
Code. The parties to this Agreement intend that this Agreement constitute a
"plan of reorganization" within the meaning of Sections 1.368-2(g) and
1.368-3(a) of the United States Treasury Regulations and they shall not take an
inconsistent position for any purpose unless there has been a "determination"
(as defined in Section 1313(a) of the Code) requiring the parties to take such a
position.
Section 1.06 Further Action. From and after the Closing, upon
written request from U, PPSI or the PPSI Stockholders, as the case may be, shall
execute, acknowledge and deliver all such further acts, assurances, deeds,
assignments, transfers, conveyances and other instruments and papers as may be
reasonably required to sell, assign, transfer, convey and deliver the PPSI
Shares to U.
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ARTICLE 2
U REPRESENTATIONS AND WARRANTIES
U represents and warrants, on behalf of itself, to each of
PPSI and the PPSI Stockholders that:
Section 2.01 Organization and Standing. U is a corporation
duly organized, validly existing, and in good standing under the DGCL.
Section 2.02 Authorization. U has the requisite corporate
power and authority to enter into this Agreement and perform its obligations
hereunder, and the execution, delivery and performance of this Agreement has
been authorized by all necessary corporate action. This Agreement constitutes
the legal, valid and binding obligation of U, enforceable against U in
accordance with its terms. The U Common Stock to be issued (i) to the PPSI
Stockholders on the Closing Date or (ii) pursuant to the exercise of the options
to acquire U Common Stock issued to such stockholders on the Closing Date,
pursuant to the terms of this Agreement has been duly authorized and when issued
will constitute duly issued, non-assessable shares of U, which shall be free and
clear of all Encumbrances whatsoever; provided, that, upon the effectiveness of
the Registration Statement (as defined below in Section 5.02) such shares shall
be freely tradable. For purposes of this Agreement, the term "Encumbrances"
shall mean any security interest, pledge, mortgage, lien (including, without
limitation, environmental and tax liens), charge, encumbrance, adverse claim,
preferential arrangement or restriction of any kind.
Section 2.03 No Material Change. Except as set forth on
Schedule 2.03 hereto, since September 30, 2001, there has been no material
adverse change in the condition (financial or otherwise), assets, properties,
liabilities, or operations of U, and there has been no material adverse change
in U's stock price or stock trading volume on the NASDAQ Bulletin Board as of
the Closing Date.
Section 2.04 Capitalization. As of the Closing Date, the
capital structure of U is set forth on Schedule 2.04 hereto.
Section 2.05 Stock Options and Warrants. Schedule 2.05 hereto
sets forth, among other matters, (A) outstanding U stock options granted to,
among other parties, U directors and key employees, (B) outstanding U warrants
granted to, among other parties, U directors and key employees and (C) certain
convertible debt obligations of U held by U directors and employees which may be
converted into U Common Stock on the terms set forth on Schedule 2.05.
Section 2.06 SEC Filings. U has filed all reports and
registration statements required to be filed by it with the United States
Securities and Exchange Commission (the "SEC") since July 12, 1999
(collectively, the "U SEC Reports"). As of its filing date, and giving
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effect to any amendments thereof, each U SEC Report complied as to form in all
material respects with the applicable requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be. As of its filing date, and
giving effect to any amendments thereof, each U SEC Report filed pursuant to the
Exchange Act did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
Each U SEC Report that is a registration statement, as amended or supplemented,
if applicable, filed pursuant to the Securities Act, as of the date such
registration statement or amendment became effective, did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
Section 2.07 Financial Statements. Each of the consolidated
financial statements (including, in each case, any related notes thereto)
contained in the U SEC Reports complied as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC under Regulation SB with respect thereto, had been prepared in
accordance with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of the unaudited financial statements
contained therein (the "Interim Financial Statements"), as permitted by Form
10-QSB or the Exchange Act regulations promulgated by the SEC), and each fairly
presented the consolidated financial position of U and its consolidated
subsidiaries in all material respects as at the respective dates thereof and the
consolidated results of its operations and cash flows for the periods indicated
in accordance with GAAP (subject, in the case of the Interim Financial
Statements, to normal audit adjustments which were not and are not expected,
individually or in the aggregate, to be material in amount).
Section 2.08 Absence of Undisclosed Liabilities. U and its
subsidiaries do not have any liabilities or obligations of any nature, whether
accrued or contingent (whether or not required to be reflected in financial
statements in accordance with GAAP), and whether due or to become due, and there
is no existing condition or situation which could reasonably be expected to
result in any such liabilities or obligations other than (i) liabilities
reflected in the consolidated balance sheet of U dated as of September 30, 2001;
(ii) normal or recurring immaterial liabilities incurred since September 30,
2001 in the ordinary course of business consistent with past practices; (iii)
liabilities set forth in Schedule 2.08 hereto; and (iv) liabilities disclosed in
the U SEC Reports.
Section 2.09 Litigation. Except as set forth on Schedule 2.09
hereto, there are no material actions, suits, or proceedings pending or, to the
best of U's knowledge, threatened against or affecting U, its business, its
assets, or the members of its Board of Directors or its executive officers, at
law or in equity, by or before any court or Governmental Entity. For the
purposes of this Agreement, "Governmental Entity" means any federal or national,
state or provincial, municipal or local government, governmental authority,
regulatory or administrative agency, governmental commission, department, board,
bureau, agency or instrumentality,
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political subdivision, court, tribunal, official arbitrator or arbitral body, in
each case whether foreign or domestic.
Section 2.10 Taxes. U has filed all federal, state, and local
income taxes, franchise, payroll, excise, sales, and property taxes, tax reports
or returns required to be filed by law and has paid all taxes and interest and
penalties which have become due (except as noted below). As of September 30,
2001, U is fully up-to-date with its tax filings.
Section 2.11 No Brokers. Except as set forth on Schedule 2.11
hereto, U has not made any agreement or taken any action which might cause any
person, corporation, partnership, governmental or regulatory authority or any
other organization or entity (each, a "Person") to become entitled to a broker's
fee or commission as a result of the transactions contemplated in this
Agreement; and, except as expressly provided herein, U is not and shall not be
liable for any such brokers fees.
ARTICLE 3
PPSI REPRESENTATIONS AND WARRANTIES
PPSI, on behalf of itself only, represents and warrants to U
that:
Section 3.01 Capital Stock. A list of all holders of
authorized, issued and outstanding shares of PPSI stock (including holders of
common stock, preferred stock, warrants, options and similar instruments with
rights to acquire shares of PPSI Common Stock) is set forth in Exhibit A. The
PPSI Stockholders are the only holders of the issued and outstanding stock of
PPSI. Each of the PPSI Stockholders represents and warrants to U that he owns on
the Closing Date the number and class of shares of PPSI stock set forth in
Exhibit A, free and clear of all Encumbrances.
Section 3.02 Organization and Standing. PPSI is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Pennsylvania.
Section 3.03 Authorization. PPSI has the requisite corporate
power and authority to enter into this Agreement and perform its obligations
hereunder. The execution, delivery and performance of this Agreement has been
authorized by all necessary corporate action, and this Agreement constitutes the
legal, valid and binding obligation of PPSI, enforceable against PPSI in
accordance with its terms. The PPSI Shares to be (i) transferred to U on the
Closing Date, pursuant to the terms of this Agreement, have been duly authorized
and issued and constitute non-assessable shares of PPSI, which shall be free and
clear of all Encumbrances whatsoever, and (ii) issued to U pursuant to the
exercise of the options to acquire PPSI Common Stock transferred to U on the
Closing Date, pursuant to the terms of this Agreement, have been duly authorized
and when issued will constitute duly issued, non-assessable shares of PPSI,
which shall be free and clear of all Encumbrances whatsoever.
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Section 3.04 No Material Change. Since October 31, 2001, there
has been no material adverse change in the condition (financial or otherwise),
assets, properties, liabilities, or operations of PPSI.
Section 3.05 Absence of Undisclosed Liabilities. PPSI and its
subsidiaries do not have any liabilities or obligations of any nature, whether
accrued or contingent (whether or not required to be reflected in financial
statements in accordance with GAAP), and whether due or to become due, and there
is no existing condition or situation which could reasonably be expected to
result in any such liabilities or obligations other than (i) liabilities
reflected in the consolidated balance sheet of PPSI dated as of October 31,
2001; (ii) normal or recurring immaterial liabilities incurred since October 31,
2001 in the ordinary course of business consistent with past practices; and
(iii) liabilities set forth in Schedule 3.05 hereto.
Section 3.06 Subsidiaries. There are no corporations,
partnerships or other entities in which PPSI owns, of record, beneficially or
otherwise, any direct or indirect equity or other interest or any right
(contingent or otherwise) to acquire the same. PPSI does not have any obligation
to invest in any other Person.
Section 3.07 Litigation. Except as set forth on Schedule 3.07
hereto, there are no material actions, suits, or proceedings pending or, to the
best of PPSI's knowledge, threatened against or affecting PPSI, its business, or
its assets, at law or in equity, by or before any court or governmental
department or agency.
Section 3.08 Financial Statements. Set forth on Schedule 3.08
hereto are the unaudited financial statements of PPSI (balance sheet and
statement of income, changes in stockholder's equity, and cash flow), as of and
for the fiscal year ended October 31, 2001.
Section 3.09 Indebtedness. Set forth on Schedule 3.09 hereto,
are descriptions of all of PPSI's material indebtedness including capital leases
for equipment.
Section 3.10 Taxes. PPSI has filed all federal, state, and
local income taxes, franchise, payroll, excise, sales, and property taxes, tax
reports or returns required to be filed by law and has paid all taxes and
interest and penalties which have become due (except as noted below). As of
October 31, 2001, PPSI is fully up-to-date with its tax filings.
Section 3.11 Employee Benefits. Set forth on Schedule 3.11
hereto are all the Employee Benefit Plans that PPSI maintains or to which PPSI
contributes for the benefit of current and former employees of PPSI. Each
Employee Benefit Plan (and each related trust or insurance contract) complies in
form and operation in all respects with the applicable requirements of the Code,
and the Employee Retirement Income Security Act of 1974, as amended.
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Section 3.12 Intellectual Property. Set forth on Schedule 3.12
hereto is a list and brief description of all intellectual property owned or
utilized by PPSI (the "PPSI Intellectual Property"). PPSI has to the best of its
knowledge delivered all relevant documentation regarding the PPSI Intellectual
Property to U, and U has examined all such documentation as part of its due
diligence to determine the validity of PPSI's title to the PPSI Intellectual
Property.
Section 3.13 No Brokers. Except as set forth on Schedule 3.13
hereto, PPSI has not made any agreement or taken any action which might cause
any Person to become entitled to a broker's fee or commission as a result of the
transactions contemplated in this Agreement; and, except as expressly provided
herein, PPSI is not and shall not be liable for any such broker's fees.
ARTICLE 3A
PPSI STOCKHOLDERS REPRESENTATIONS AND WARRANTIES
Each PPSI Stockholder, severally as to itself and not jointly,
represents and warrants to U as follows:
Section 3A.01 Investment Representations and Warranties. Such
PPSI Stockholder understands that the shares of U Common Stock have not been
registered under the Securities Act (as defined below) and that the certificates
evidencing each share of U Common Stock shall bear a legend noting that it is
not freely tradable.
Section 3A.02 Acquisition for Own Account. Such PPSI
Stockholder is acquiring the shares of U Common Stock for its own account for
investment and not with a view toward distribution in a manner which would
violate the Securities Act.
Section 3A.03 Ability to Protect Its Own Interests and Bear
Economic Risks. Such PPSI Stockholder, by reason of the business and financial
experience of its management, has the capacity to protect its own interests in
connection with the transactions contemplated by this Agreement. Such PPSI
Stockholder is able to bear the economic risk of an investment in the shares of
U Common Stock, and has an adequate income independent of any income produced
from an investment in the shares of U Common Stock and has sufficient net worth
to sustain a loss of all of its investment in the shares of U Common Stock
without economic hardship if such a loss should occur.
Section 3A.04 Accredited Investor. Such PPSI Stockholder is an
"accredited investor" as that term is defined in Regulation D promulgated under
the Securities Act.
Section 3A.05 Access to Information. Such PPSI Stockholder has
been given access to all U documents, records, and other information, has
received physical delivery of all such documents, records and information which
such PPSI Stockholder has requested, and has had adequate opportunity to ask
questions of, and receive answers from, U's officers, employees,
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agents, accountants, and representatives concerning U's business, operations,
financial condition, assets, liabilities, and all other matters relevant to its
investment in the shares of U Common Stock.
Section 3A.06 Restricted Securities.
(a) Such PPSI Stockholder understands that the shares of U
Common Stock will be characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from U in a transaction not
involving a public offering and that under such laws and applicable regulations
such shares of U Common Stock may be resold without registration under the
Securities Act only in certain limited circumstances.
(b) Such PPSI Stockholder acknowledges that the shares of U
Common Stock must be held indefinitely unless subsequently registered under the
Securities Act and under applicable state securities laws or an exemption from
such registration is available.
(c) Such PPSI Stockholder is aware of the provisions of Rule
144 under the Securities Act which permit limited resale of securities purchased
in a private placement.
Section 3A.07 No Public Market. Such PPSI Stockholder
understands that no public market now exists for any of the securities issued by
U pursuant to this Agreement, that U has made no assurances that a public market
will ever exist for the Shares of U Common Stock.
ARTICLE 4
COVENANTS OF U
Section 4.01 Conduct in the Ordinary Course. U, for the twelve
month period beginning on the Closing Date, intends to conduct the operations of
U and PPSI in the same lines of business and in the ordinary course, consistent
with past practices of U and PPSI, respectively.
ARTICLE 5
ADDITIONAL AGREEMENTS
Section 5.01 Expenses. (a) Within 30 days after Closing, U
shall pay to Allegent Growth Strategies LLC ("Allegent"), as a fee for services
in negotiating and structuring the transactions contemplated by this Agreement
(x) US $100,000 cash (certified check or wire transfer) and (y) $13,276;
provided, that the foregoing $13,276 (the "Deferred Amount") shall be deferred
until the time at which U and Allegent agree that it is financially reasonable
for U to pay such amount; provided, further, that in the reasonable discretion
of Allegent, if the foregoing Deferred Amount has not been paid by U to
Allegent, Allegent may convert such Deferred Amount into options to purchase
shares of U Common Stock on the following basis: (i) Allegent
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shall receive options (the "Allegent Options") to purchase the number of shares
of U Common Stock equal to the number obtained by dividing (I) the Deferred
Amount by (II) the average of the closing bid and closing asked prices for the
thirty (30) consecutive trading days preceding the Closing Date, as such prices
are reported in the Wall Street Journal or by any market maker; (ii) each such
option shall have an exercise period of ten (10) years; (iii) the exercise price
for such options shall be the price determined in the foregoing clause (i)(II);
and (iv) such options shall include standard terms and conditions for options of
this nature .
(b) On the Closing Date, U shall pay or reimburse all the
transaction costs related to the transactions contemplated hereby, including
without limitation the fees of counsel and agents for PPSI.
Section 5.02 Registration of U Common Stock to be issued to
PPSI Stockholders. Within 90 days after the Closing Date, U shall prepare and
shall file with the SEC a registration statement on Form SB-2(the "Registration
Statement") with respect to the U Common Stock issued to PPSI Stockholders and
underlying the options issued to such stockholders pursuant to the terms of this
Agreement; provided that (i) U qualifies for registration on such Form SB-2 and
(ii) U and the PPSI Stockholders mutually agree on the appropriate form to
register such shares of U Common Stock. Xx. Xxxxxx shall have first priority for
the registration of U Common Stock issued in exchange for his PPSI Shares. Xx.
Xxxxxx'x shares of U Common Stock shall not be subject to cutbacks at the
request of either U or the underwriter. U shall use all reasonable efforts to
cause the Registration Statement to become effective as soon after such filing
as practicable. PPSI shall furnish U with all information concerning PPSI and
the holders of its capital stock and shall take such other action as U may
reasonably request in connection with the Registration Statement. If at any time
prior to the Closing Date any event or circumstance relating to U, PPSI or any
of their respective subsidiaries, affiliates, officers or directors should be
discovered by such party which should be set forth in an amendment or a
supplement to the Registration Statement, such party shall promptly inform the
others thereof and take appropriate action in respect thereof.
Section 5.03 Audit of PPSI. Following the execution of this
Agreement, PPSI and the PPSI Stockholders each agree to use commercially
reasonable efforts to cooperate with U to develop the documentation (including,
but not limited to any audited financial statements) required to complete the
registration statement referred to in Section 5.02 and to satisfy U's filing
requirements under the Exchange Act. PPSI and the PPSI Stockholders each
represent and warrant to U that that PPSI together with the PPSI Stockholders
have all company records necessary to develop such documentation.
Section 5.04 Further Action. U shall make any necessary
filings with respect to the transactions contemplated hereby under the
Securities Act and the Exchange Act and the rules and regulations thereunder,
and U shall use its reasonable best efforts to take any action required to be
taken under state securities or "blue sky" laws in connection with the issuance
of the shares of U Common Stock in accordance with the provisions of this
Agreement.
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Section 5.05 Nasdaq Bulletin Board Listing. U shall use its
reasonable efforts to cause the shares of U Common Stock, the class to be issued
in the transactions contemplated herein, to continue to be approved for
quotation on the Nasdaq Bulletin Board.
Section 5.06 U Stock Purchase of TWT. PPSI acknowledges that U
has entered into the TWT Letter Agreement pursuant to which U and TWT shall
enter into the TWT Transaction. U shall not execute a stock purchase agreement,
employment agreement between U and Xx. Xxx Xxxxxxx or any other contract,
agreement or understanding, whether oral or written, related to the TWT
Transaction, without the written consent of Dr. Xxxxx Xxxxxx.
ARTICLE 6
CONDITIONS PRECEDENT TO PPSI'S OBLIGATIONS
Section 6.01 Conditions Precedent to PPSI's obligations. The
obligations of PPSI to effect the Closing are conditioned upon the following
actions:
(a) The Board of Directors of U shall appoint Xx. Xxxxx X.
Xxxxxx as President and CEO of U as of the Closing Date and enter into an
employment agreement with Xx. Xxxxxx in the form of the employment agreement set
forth in Exhibit B of this Agreement.
(b) U shall amend its Bylaws, pursuant to the DGCL, in order
to provide that the Board of Directors of U may not issue any new equity
securities, or securities by their terms convertible into equity securities
other than pursuant to options, warrants and commitments in effect on the
Closing Date, without the consent of Xx. Xxxxxx.
(c) Xx. Xxxxxx and the shareholders of U set forth on Schedule
6.01(c) (such parties, the "U Stockholders") shall have executed a voting
agreement, in the form of Exhibit C hereto, pursuant to which Xx. Xxxxxx and
such shareholders agree to the following: Xx. Xxxxxx shall have the power to
recommend the appointment of members of the Board of Directors of U pursuant to
the following conditions: (A) as of the Closing Date, Xx. Xxxxxx shall serve on
the Board as an additional member and shall add one other additional member of
such Board; (B) in the event that, through Xx. Xxxxxx'x relationships and
contacts, U receives a cumulative investment equal to or greater than
$1,500,000, as such consideration may be determined in the good faith discretion
of the Board of Directors, Xx. Xxxxxx shall have the power to appoint two
members of the Board of Directors of U (in addition to the appointments referred
to in clause (A)); one such appointee to replace an existing member of such
Board and the other as an additional member of such Board; and (C) in addition
to his power to appoint members of the Board of Directors of U pursuant to the
foregoing clauses (A) and (B), in the event that, through Xx. Xxxxxx'x
relationships and contacts, U receives contracts which produce at least
$7,000,000 in gross revenue (as defined by GAAP) during the calendar year 2002,
Xx. Xxxxxx shall have the power to appoint one additional member of the Board of
Directors of U.
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(d) The delivery of a favorable opinion from Snow, Xxxxxx and
Xxxxxx, counsel to U, dated the Closing Date, in a form substantially similar to
that attached hereto as Exhibit D.
ARTICLE 7
CONDITIONS TO CLOSING
Section 7.01 Conditions to Each Party's Obligation to Effect
the Closing. The respective obligations of each party to this Agreement to
effect the Closing shall be subject to the satisfaction prior to the Closing
Date of the following conditions:
(a) HSR Act. The waiting period applicable to the
consummation of the transactions contemplated hereby under the HSR Act, if
applicable, shall have expired or been terminated.
(b) Shareholder Approval. This Agreement shall
have been approved and adopted by the requisite shareholder vote of PPSI, in
accordance with such party's constitutive documents and the laws of the State of
Pennsylvania.
(c) Governmental Approvals. All authorizations,
consents, orders or approvals of any Governmental Entity required to consummate
the transactions contemplated by this Agreement shall have been obtained and be
in effect.
(d) No Injunctions or Restraints; Illegality. No
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal or regulatory
restraint or prohibition preventing the consummation of the Closing or limiting
or restricting the conduct or operation of the business of U and PPSI after the
Closing shall have been issued and be in effect, nor shall any proceeding
brought by an administrative agency or commission or other Governmental Entity,
seeking any of the foregoing be pending, nor shall there be any action taken, or
any statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the Closing which makes the consummation of the Closing illegal or
prevents or prohibits the Closing.
ARTICLE 8
MISCELLANEOUS
Section 8.01 Notices. All notices, requests, demands, claims,
and other communications shall be in writing and shall be deemed duly given if
it is sent by registered or certified mail, or international courier, return
receipt requested, postage prepaid, and addressed to the recipient as set forth
below:
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To U: Xx. Xxxx Xxxxxxxxxx
U, Inc.
00 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Snow, Becker, Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: XXXXXX X. XXXXXX, ESQ.
To PPSI: Xx. Xxxxx X. Xxxxxx
00 X. Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxx & Deutsch, LLP
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx X. Deutsch, Esq.
All notices shall be effective upon receipt.
Section 8.02 Entire Agreement and Amendment. This Agreement
and the Schedules and Exhibits referenced herein constitute the entire agreement
between and among the parties and supercedes all prior understandings,
agreements, or representations by or among the parties, written or oral. This
Agreement cannot be modified or otherwise amended unless in a signed writing
between and among all the parties hereto.
Section 8.03 Waiver. No consent or waiver, expressed or
implied, by any party to this Agreement of any breach or default by any other
party hereto in the performance of any
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obligations hereunder or the validity of any representation or warranty herein
shall be deemed or construed to be a consent or waiver to or of any other breach
or default by such party.
Section 8.04 Interpretation. The parties hereby agree that if
any question of interpretation of this Agreement arises, that all parties hereto
have participated in the drafting of this Agreement, and therefore the
interpretation of this Agreement shall not be construed against one party as the
party responsible for drafting this Agreement.
Section 8.05 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be an original and all of which shall
taken together operate as one instrument. Execution copies transmitted by
facsimile shall be considered original versions hereof.
Section 8.06 Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement will be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to any choice of law or conflict of law provisions or rules that
would cause the application of the laws of any other jurisdiction.
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The parties have, intending to be legally bound, signed this
Agreement below, as of the date first above written.
UNIVEC, INC.
By: s/ Xxxx Xxxxxxxxxx
--------------------------------------------------------------------
Xxxx Xxxxxxxxxx, Chairman of the Board
PHYSICIAN AND PHARMACEUTICAL SERVICES, INC.
By: s/ Xxxxx Xxxxxx
-----------------------------------------------------------
Dr. Xxxxx Xxxxxx, President
PPSI STOCKHOLDER
By: s/ Xxxxx Xxxxxx
--------------------------------------------------------------------
Dr. Xxxxx Xxxxxx
15
EXHIBIT C
Voting Agreement
THIS VOTING AGREEMENT (the "Voting Agreement") is entered into
effective as of December 31, 2001, by and among Univec, Inc. ("U"), a
corporation organized and existing under the laws of the State of
Delaware, "U Stockholders" as defined in the Stock Purchase Agreement
(defined below), Physician and Pharmaceutical Services, Inc. ("PPSI"),
a corporation organized and existing under the laws of the State of
Pennsylvania, and Dr. Xxxxx Xxxxxx, PPSI's sole stockholder ("Xx.
Xxxxxx" or the "PPSI Stockholder"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in
the Stock Purchase Agreement dated as of December 31, 2001 (the "Stock
Purchase Agreement") by and among PPSI, U and the PPSI Stockholder.
WHEREAS, pursuant to Section 6.01(c) of the Stock Purchase
Agreement, Dr. Xxxxx Xxxxxx is entitled to appoint certain persons (the "Xxxxxx
Appointees") for election to the Board of Directors of U pursuant to certain
conditions more particularly set forth below;
WHEREAS, the U Stockholders desire to appoint certain persons
(the "Insider Appointees") for election to the Board of Directors of U;
WHEREAS, the U Stockholders agree to enter into this Agreement
to induce PPSI and the PPSI Stockholder to enter into the Stock Purchase
Agreement; and
WHEREAS, Xx. Xxxxxx agrees to enter into this Agreement to
induce U to enter into the Stock Purchase Agreement.
Now therefore, as an inducement to PPSI and the PPSI
Stockholder, and to U, to enter into the Stock Purchase Agreement, Xx. Xxxxxx
and the U Stockholders do hereby enter into this Voting Agreement and agree as
follows:
1. Each of the U Stockholders shall vote all shares of the
capital stock of U owned from time to time by such U Stockholder in favor of the
election of the Xxxxxx Appointees pursuant to the following conditions: (A) as
of the date hereof, Xx. Xxxxxx shall serve on the Board and shall add one
additional member of such Board; (B) in the event that, through Xx. Xxxxxx'x
relationships and contacts, U receives a cumulative investment equal to or
greater than $1,500,000, as such consideration may be determined in the good
faith discretion of the Board of Directors of U, Xx. Xxxxxx shall have the power
to appoint two members of the Board of Directors of U (in addition to the
appointments referred to in clause (A)); one such appointee to replace an
existing member of such Board and the other as an additional member of such
Board; and (C) in addition to his power to appoint members of the Board of
Directors of U pursuant to the foregoing clauses (A) and (B), in the event that,
through Xx. Xxxxxx'x relationships and contacts, U receives contracts which
produce at least $7,000,000 in gross revenue (as defined by GAAP) during the
calendar year 2002, Xx. Xxxxxx shall have the power to appoint one additional
member of the Board of Directors of U.
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2. Pursuant to the terms of this Agreement, Xx. Xxxxxx shall
vote his shares of the capital stock of U at any time owned by him in favor of
the election of the Insider Appointees, provided that such vote does not
conflict with the election of the Xxxxxx Appointees.
2A. Each of Xx. Xxxxxx and the U Stockholders shall vote the
shares for which a proxy is granted under this Agreement, pursuant to Section 3
below, in accordance with the recommendations of the Board of Directors of U
(the "Board Recommendations") to U stockholders on all proposals that are
submitted for approval to the stockholders of U.
3. Each of Xx. Xxxxxx and the U Stockholders hereby grants to
Xx. Xxxxxx and Xx. Xxxx Xxxxxxxxxx (collectively, the "Proxy Holder"), and
executes in favor of the Proxy Holder, a proxy to vote all shares of the capital
stock of U owned of record or beneficially by Xx. Xxxxxx or such U Stockholder,
as the case may be, in (i) favor of the election of the Xxxxxx Appointees and
the Insider Appointees; provided that such vote for the Insider Appointees does
not conflict with the election of the Xxxxxx Appointees and (ii) accordance with
the Board Recommendations. Each of Xx. Xxxxxx and the U Stockholders gives
written consent with respect to all the voting equity securities owned by the
grantor of the proxy (x) for the election of the Xxxxxx Appointees and the
Insider Appointees in the manner set forth above and (y) in favor of the Board
Recommendations, granting unto the Proxy Holder full power and authority to do
and perform each and every act and thing in connection with the voting of the
stock of Xx. Xxxxxx or such U Stockholder, as the case may be, which such Proxy
Holder may deem appropriate or necessary, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said
grantee may lawfully do or cause to be done by virtue hereof. Such proxy is
coupled with an interest, irrevocable and shall survive the death or disability
of such U Stockholder (if an individual) or Xx. Xxxxxx and any merger,
consolidation, liquidation, bankruptcy, insolvency, dissolution or similar
transaction affecting Xx. Xxxxxx or such U Stockholder, or the shares of the
capital stock of U owned of record by Xx. Xxxxxx or such U Stockholder, if the
Person who becomes the record or beneficial holder of the shares is otherwise a
U Stockholder. In the event that, for any reason, the foregoing proxy shall
become unenforceable or shall have expired, then Xx. Xxxxxx or such U
Stockholder shall execute and grant a new proxy on the same terms as provided
herein. The proxy granted hereunder, and the obligations of Xx. Xxxxxx or such U
Stockholder under this Voting Agreement, shall be noted on the stock
certificates of Xx. Xxxxxx or such U Stockholder and in the stock transfer and
voting records and registrar of U.
4. The U Stockholders acknowledge that PPSI and the PPSI
Stockholder are relying upon this Voting Agreement in connection with the
execution, delivery and performance by PPSI and the PPSI Stockholder of the
Stock Purchase Agreement.
5. Xx. Xxxxxx acknowledges that U is relying upon this Voting
Agreement in connection with the execution, delivery and performance by U of the
Stock Purchase Agreement.
6. This Voting Agreement shall expire on the earlier of (i)
the tenth anniversary of the date of this Agreement or (ii) the termination of
Xx. Xxxxxx'x employment by U without Due Cause or by Xx. Xxxxxx for Good Reason
(as such terms are defined in the
17
Employment Agreement, between U and Xx. Xxxxxx, dated January 1, 2002). This
Voting Agreement shall be governed by the laws of the State of Delaware without
giving effect to any choice of law or conflict of law provisions or rules that
would cause the application of the laws of any other jurisdiction. In witness
whereof, the parties have executed and delivered this Voting Agreement as of the
date first set forth above.
U STOCKHOLDERS
----------------------
Name: Xxxx Xxxxxxxxxx
----------------------
Name: Dr. Xxxx Xxxx
----------------------
Name: Xxxx Xxxxx
----------------------
Name: Xxxxxxx Xxxxx
----------------------
Name: Xxxxx Xxxxxxxx
----------------------
Name: Xx. Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxx
UNIVEC, INC.
By:
------------------------
Xx. Xxxx Xxxxxxxxxx
Chairman of the Board
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Physician and Pharmaceutical Services, Inc.
By:
------------------------
Dr. Xxxxx Xxxxxx
Chief Executive Officer
PPSI STOCKHOLDER
------------------------
Name: Dr. Xxxxx Xxxxxx
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Exhibit D
Form of legal opinion including the following matters:
Corporate Matters:
1. U is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. U
has full power and authority to own its properties and
assets and to carry on its business as now conducted.
2. The execution, delivery and performance by U of the Stock
Purchase Agreement are within U's corporate powers, have
been duly authorized by all necessary corporate action,
and do not contravene (i) the Certificate of Incorporation
or (ii) any law, rule or regulation applicable to U (iii)
any material contractual or legal restriction contained in
any agreement of which we have knowledge to which U is a
party.
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for the due execution,
delivery and performance by U of the Stock Purchase
Agreement, except notice filings under State and federal
securities laws.
4. The Stock Purchase Agreement has been duly executed and
delivered on behalf of U. The Stock Purchase Agreement is
the legal, valid and binding obligation of U enforceable
against U in accordance with its terms.
5. The shares of U Common Stock issued to the PPSI
Stockholders on this date pursuant to the Stock Purchase
Agreement have been duly authorized by all necessary
action of U, are validly issued and are fully paid and
non-assessable. The shares of U Common Stock, when issued
upon exercise of the PPSI Options issued to the PPSI
Stockholders on the date hereof pursuant to the Stock
Purchase Agreement, will be duly authorized by all
necessary action by U and will be validly issued and fully
paid and non-assessable.
6. To our knowledge, there are no actions or proceedings
pending against U before any court, governmental agency or
arbitrator.
7. Assuming the accuracy of the representations made by the U
in the Stock Purchase Agreement, the sale of the shares of
U Common Stock and the PPSI Options to the PPSI
Stockholders contemplated by the Stock Purchase Agreement
is a transaction exempt from the registration requirements
of the Securities Act of 1933, as amended, by reason of
the provisions of Section 4(2) thereof.
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