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EXHIBIT 4.6
AGREEMENT
AGREEMENT dated as of June 25, 1997 (the "Closing Date") by and between
Intracel Corporation, a Delaware corporation (the "Company") and Creditanstalt
American Corporation (the "Purchaser").
WHEREAS, the Purchaser currently owns 139,390 shares of the Company's
Series A-1 Preferred Stock, par value $.01 per share (the "Securities");
WHEREAS, the Purchaser wishes to purchase from the Company, and the
Company wishes to issue and sell to the Purchaser, 139,390 shares of its
Series A-3 Preferred Stock, par value $.01 per share (the "Exchange
Securities"), the purchase price for which shall be paid by exchanging the
Securities for the Exchange Securities, all on the terms and conditions
hereinafter set forth; and
WHEREAS, the Purchaser and the Company wish to extend to the Exchange
Securities the registration rights the Purchaser currently enjoys with respect
to the Securities pursuant to that certain Registration Rights Agreement Series
A-I Preferred Stock, dated November 16, 1995 (the "Registration Rights
Agreement").
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements contained herein, intending to be legally bound hereby, the parties
hereto agree as follows:
1. Sale of Securities.
1.1 Transfer of Securities, etc. The Company hereby issues and sells to
the Purchaser, and the Purchaser hereby purchases and acquires from the Company
on the date hereof (the "Closing Date"), the Exchange Securities.
1.2 Payment of Purchase Price. The purchase price being paid by the
Purchaser for the Exchange Securities (the "Purchase Price") is the Securities.
The Purchase Price is being paid by delivery by the Purchaser on the date
hereof of certificates representing the Securities, and the Purchaser hereby
conveys, transfers, assigns and delivers to the Company all right, title and
interest, legal and equitable, in and to the Securities to the Company, free
and clear of all liens, claims and encumbrances.
1.3 Closing. The closing with respect to the transactions provided for in
this Agreement is taking place on the date hereof at the offices of Xxxxxxxx &
Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
2. Representations, Warranties and Covenants of the Purchaser. The
Purchaser hereby represents, warrants and covenants as follows:
2.1 Ownership of Securities. The Purchaser has good and marketable title
to the Securities. Upon the consummation of the transactions contemplated
hereby, the Purchaser will
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have transferred to the Company, and the Company will have acquired, good and
valid title to the Securities, free and clear of all liens, claims and
encumbrances.
2.2. Authorization, etc. The Purchaser has full corporate power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser. This Agreement constitutes a valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
2.3 No Conflict. The execution and delivery of this Agreement by the
Purchaser and the consummation of the transactions contemplated hereby will not
conflict with, violate or constitute a breach or default under any of its
material agreements.
2.4 Purchase for Investment, etc. The Purchaser represents and warrants
that it understands that the Exchange Securities have not been registered under
the Securities Act of 1933, as amended, or any applicable state securities laws.
The Purchaser represents and warrants that it is an "accredited investor"
within the meaning of the Federal securities laws and the rules and regulations
thereunder. The Purchaser represents and warrants that it is purchasing the
Exchange Securities for investment and not with a view toward the distribution
thereof.
2.5 No Control. The Purchaser will not exercise or attempt to exercise,
directly or indirectly, a controlling influence over the management or the
policies of the Company.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
3.1 Authorization, etc. The Company has full corporate power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company. This Agreement constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms.
3.2 Designation. A Certificate of Designation with respect to the
Exchange Securities has been filed with the Secretary of State of the State of
Delaware. Upon the issuance of the Exchange Securities pursuant to this
Agreement, and the payment of the Purchase Price, the Exchange Securities will
be validly issued, fully paid and non-assessable.
3.3 No Conflict. The execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated hereby will not
conflict with, violate or constitute a breach or default under any of its
material agreements.
4. The Closing.
4.1 Company Closing Documents. On the Closing Date, the Company will be
delivering to the Purchaser a certificate representing the Exchange Securities.
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4.2 Purchaser Closing Documents. On the Closing Date, the Purchaser
will be delivering to the Company the Purchase price through delivery of a
certificate representing the Securities.
5. Miscellaneous.
5.1 Counterparts. This Agreement may be executed in one or more
counterparts, but all such counterparts shall constitute one and the same
instrument.
5.2 Amendments: Non-assignability of Rights. This Agreement may be
amended only with the prior written consent of the parties hereto.
5.3 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, without regard to the
conflicts of laws and rules thereof.
5.4 Integration and Severability. The covenants and agreements of the
parties hereto (or their predecessor) set forth in that certain Convertible
Preferred Stock Purchase Agreement dated as of November 16, 1995 (the "Original
Agreement") are incorporated by reference as if set forth in full herein. In
addition, the parties hereto agree that all references in the Registration
Rights Agreement to the Securities shall be deemed to be references to the
Exchange Securities and that, except for such change, the Registration Rights
Agreement shall continue in full force and effect in accordance with its terms.
This Agreement (including such incorporation by reference of the Original
Agreement set forth in this Section 5.4) and the Registration Rights Agreement
as amended by this Section 5.4 embodies the entire agreement and understanding
among the parties hereto, and supersedes all prior agreements and
understandings, relating to the subject matter hereof. In case any one or more
of the provisions contained in this Agreement or in any instrument contemplated
hereby, or any application thereof, shall be invalid, illegal or unenforceable
in any respect, under the laws of any jurisdiction, the validity, legality and
enforceability of the remaining provisions contained herein and therein, and any
other application thereof, shall not in any way be affected or impaired thereby
or under the laws of any other jurisdiction.
5.5 Headings. The headings of the articles, sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
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IN WITNESS WHEREOF, the parties hereby have executed this Agreement on
the date first above stated.
INTRACEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
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CREDITANSTALT AMERICAN CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President
By: /s/ KATY XXXXX XXXXXXX
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Katy Xxxxx Xxxxxxx
Senior Vice President
General Counsel
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