Exhibit 10(uu)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and
entered into as of April 18, 2002, by and between FEMMEPHARMA, INC., a
Pennsylvania corporation ("FemmePharma") whose address is 00 Xxxx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxxxxxxx 00000, and KV PHARMACEUTICAL COMPANY ("KV"),
0000 X. Xxxxxx Xx., Xx. Xxxxx, Xxxxxxxx 00000.
1. CONTEMPORANEOUS PRODUCT LICENSE AGREEMENT; DUE DILIGENCE REVIEW.
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1.1. On or about the date of this Agreement, FemmePharma
and KV have entered into a license agreement (the "License Agreement") under
which FemmePharma has granted KV marketing rights relating to a Danazol
containing product, all as more fully set forth in the License Agreement
(the "Danazol Product"). The Product is to be manufactured and sold under
certain technology which is the subject of U.S. Patent #5,993,856 and U.S.
Patent Application 09-355,213 filed June 27, 1999 (the "Patent") owned by
FemmePharma (as defined in the License Agreement, the "Technology").
2. PURCHASE AND SALE OF SHARES.
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2.1. SALE AND ISSUANCE OF INITIAL SHARES - INITIAL CLOSING.
(a) Subject to the terms and conditions of this Agreement,
KV agrees to purchase from FemmePharma, and FemmePharma agrees to issue and
sell to KV 34,965 shares (the "INITIAL SHARES") of Series C Preferred Stock
of FemmePharma, which shall be issued pursuant to the Designation Statement
attached hereto as Exhibit A ("Series C Stock"), for an aggregate purchase
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price of Two Million Dollars ($2,000,000), or a price per share of $57.20
(the "Per Share Price").
(b) The closing of the purchase and sale of the Initial
Shares (the "INITIAL CLOSING") shall take place by teleconference call and
telecopier on the date of this Agreement (the "Initial Closing Date").
(c) At the Initial Closing FemmePharma shall deliver to KV:
(i) a stock certificate representing the Initial
Shares being purchased by KV;
(ii) an Amended and Restated Stockholders Agreement
in the form of Exhibit B hereto (the "Stockholders Agreement") duly executed
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by all of the parties thereto other than KV; and
(iii) a Registration Rights Agreement in the form
of Exhibit C hereto (the "Registration Rights Agreement") duly executed by
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all of the parties thereto other than KV.
(d) If the issuance and sale of the Initial Shares is not
consummated at the Initial Closing, either party not then in breach of this
Agreement can terminate this Agreement by written notice to the other party
of its election to so terminate.
(e) At the Initial Closing KV shall deliver to
FemmePharma:
(i) the purchase price for the Initial Shares by
wire transfer in accordance with wire transfer instructions which shall be
furnished to KV by FemmePharma prior to the Closing;
(ii) the Stockholders Agreement duly executed by
KV; and
(iii) the Registration Rights Agreement duly executed
by KV.
2.2. SALE AND ISSUANCE OF SUBSEQUENT SHARES - SECOND CLOSING.
(a) Subject to the terms and conditions set forth herein,
at a second closing (the "Second Closing") which shall be held on a date and
time mutually agreed to by FemmePharma and KV not later than fifteen (15)
business days following the commencement of the Phase III Studies, as
contemplated by the License Agreement, and provided that the License
Agreement remains in effect, KV agrees to purchase from FemmePharma, and
FemmePharma agrees to issue and sell to KV, 52,447.5 shares of Series C
Stock (the "SECOND CLOSING SHARES") at the Per Share Price, for an aggregate
purchase price of Three Million Dollars ($3,000,000). Conversely, this
Agreement shall automatically terminate and be of no further force or effect
if and upon the termination of the Danazol Product from the License
Agreement prior to the Second Closing.
(b) The purchase and sale of the Second Closing Shares
shall take place in person or by teleconference call and telecopier at the
offices of Xxxxxx, Xxxxx & Xxxxxxx or other location mutually acceptable to
the parties.
(c) At the Second Closing, FemmePharma shall deliver to KV
a stock certificate representing the Second Closing Shares.
(d) At the Second Closing KV shall deliver the purchase
price for the Second Closing Shares by wire transfer in accordance with wire
transfer instructions which shall be furnished to KV by FemmePharma at least
three business days prior to the Second Closing.
3. REPRESENTATIONS AND WARRANTIES OF KV.
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KV hereby represents and warrants to, and agrees with,
FemmePharma as follows:
3.1. KV is duly authorized to execute this Agreement, and
this Agreement constitutes the legal, valid and binding obligation of KV
enforceable against KV in accordance with its terms, except as such
enforcement may be limited by applicable laws relating to creditors' rights
or principles of equity affecting the availability of remedies.
3.2. KV will acquire the Series C Stock for its own
account for investment and not with a view to the sale or distribution
thereof or the granting of any participation therein, and has no present
intention of distributing or selling to others any of such interest or
granting any participation therein.
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3.3. KV has such knowledge and experience in finance,
securities, investments and other business matters so as to be able to
protect the interests of KV in connection with its purchase of the Series C
Stock. KV is aware that an investment in the Series C Stock is speculative
and subject to substantial risks. KV has no present or contemplated future
need to dispose of any of the Series C Stock and is capable of bearing the
economic risks of an investment in the Series C Stock, including, but not
limited to, the possibility of the complete loss of the purchase price of
the Series C Stock and the limited transferability of the Series C Stock,
which may make the liquidation of its investment impossible for the
indefinite future.
3.4. KV acknowledges that no market exists for the Series
C Stock, that it is unlikely that a market will develop in the foreseeable
future, and that KV may find it impossible to liquidate its investment at a
time when it may desire to do so, or at any other time.
3.5. KV has been advised by FemmePharma that none of the
Series C Stock to be issued to KV, or any stock or securities in which it
may hereafter be converted, will be registered under the Securities Act of
1933 (the "Act"), that the Series C Stock, or any stock or securities in
which it may hereafter be converted, will be issued on the basis of the
statutory exemptions provided by Section 4(2) of the Act and/or Regulation D
thereunder relating to transactions by an issuer not involving any public
offering and under similar exemptions under certain state securities laws,
that this transaction has not been reviewed by, passed upon or submitted to
any federal or state agency or self-regulatory organization where an
exemption is being relied on; and that FemmePharma's reliance thereon is
based in part upon the representations made by KV in this Agreement. KV
acknowledges that KV has been informed by FemmePharma of, or is otherwise
familiar with, the nature of the limitations imposed by the Act and the
rules and regulations thereunder on the transfer of the Series C Stock. In
particular, KV agrees that no sale, assignment or transfer of any of the
Series C Stock or any stock or securities in which it may hereafter be
converted, shall be valid or effective, and FemmePharma shall not be
required to give any effect to such sale, assignment or transfer, in the
absence of: (i) the sale, assignment or transfer of the Series C Stock or
any stock or securities in which it may hereafter be converted, is
registered under the Act, it being understood that the Series C Stock or any
stock or securities in which it may hereafter be converted, is not currently
registered for sale and that FemmePharma has no obligation or intention to
so register the Series C Stock (except as provided in Article 6), (ii) the
shares of Series C Stock are sold, assigned or transferred in accordance
with all of the requirements and limitations of Rule 144 of the Act, it
being understood that Rule 144 is not available at the present time for the
sale of the Series C Stock, or (iii) such sale, assignment or transfer is
otherwise exempt from registration under the Act. KV further understands
that an opinion of counsel and other documents shall be required to transfer
the Series C Stock. KV acknowledges that the Series C Stock shall be subject
to a stop transfer order and the certificate or certificates evidencing
shares of the Series C Stock shall bear the following or a substantially
similar legend or other legend as may appear on the forms of stock
certificates and such other legends as may be required by state securities
laws:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and neither such shares nor
any interest therein may be offered, sold, pledged, assigned or
otherwise transferred in the absence of: (i) a registration
statement with respect thereto is effective under the Act and any
applicable state securities laws or (ii) the issuer of the shares
receives an opinion of counsel to the holder of such shares,
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which counsel and opinion are reasonably satisfactory to the issuer,
that such shares may be offered, sold, pledged, assigned or transferred
in the manner contemplated without an effective registration
statement under the Act or applicable state securities laws."
3.6. During the negotiation of the transactions contemplated
herein, KV and KV's representatives and legal counsel have been
afforded access to corporate books, financial statements, records,
contracts, documents and other information concerning FemmePharma and to its
offices and facilities, have been afforded an opportunity to ask such
questions of FemmePharma's officers, employees, agents, counsel, accountants
and representatives concerning FemmePharma's business, operations, financial
condition, assets, liabilities and other relevant matters as they have
deemed necessary or desirable, and have been given all such information as
has been requested, in order to evaluate the merits and risks of the
prospective investments contemplated herein. In taking any action or
performing any role relative to the arranging of the proposed investment, KV
has acted solely in KV's own interest, and neither KV nor any agents or
employees of KV has acted as an agent of FemmePharma. KV acknowledges that
it has no assurances that the forecasts in the Business Plan provided to KV
by FemmePharma in connection with the Due Diligence Review will be the same
as the actual results achieved by FemmePharma.
4. REPRESENTATIONS AND WARRANTIES OF FEMMEPHARMA.
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In order to induce KV to enter into this Agreement,
FemmePharma represents and warrants to KV that, except as disclosed in the
Disclosure Statement attached hereto, the statements contained in this
Article 4 are true and correct as of the date hereof.
4.1. FemmePharma is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with full corporate power and authority to own, lease, use and
operate its properties and to conduct its business as and where now owned,
leased, used, operated and conducted.
4.2. FemmePharma does not own, directly or indirectly, any
equity or other ownership interest in any corporation, partnership, joint
venture or other entity or enterprise. FemmePharma is not subject to any
obligation or requirement to provide funds to or make any investment (in the
form of a loan, capital contribution, guarantee or otherwise) in any other
person or entity.
4.3. FemmePharma has provided KV with information related
to the Danazol Product (including its formulation and delivery method), the
Technology, the Patent, related clinical information (including the results
of a primate study conducted by FemmePharma), the market for the Danazol
Product, FemmePharma's business, business plans, financial condition,
results of operation and projections therefor, and such other information as
has been requested by KV in connection with the License Agreement and KV's
proposed investment in FemmePharma contemplated by this Agreement. The
information provided also included complete and accurate copies of the
written information provided to certain independent investors (the
"Independent Investors") by FemmePharma in connection with the investment by
the Independent Investors in FemmePharma on or about November 13, 2000, and
December 29, 2000, respectively, in an aggregate amount of $700,000 and
$750,000, respectively (the "Independent Investor
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Investments") under agreements with the Independent Investors for the
Independent Investor Investments (the "Independent Investor Agreements").
The execution and delivery of the Independent Investors Agreements and the
consummation of the transactions contemplated thereby were duly authorized
by the Board of Directors of FemmePharma. The Independent Investor
Agreements were duly executed and delivered by FemmePharma and constitute
the legal, valid and binding obligation of FemmePharma, enforceable against
it in accordance with its terms, except as such enforcement may be limited
by applicable laws relating to creditors' rights or principles of equity
affecting the availability of remedies.
4.4. FemmePharma has all of the corporate power and
authority required to enter into this Agreement and to complete the
transactions contemplated by this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors and, if necessary, the
shareholders of FemmePharma. This Agreement has been duly executed and
delivered by FemmePharma and constitutes the legal, valid and binding
obligation of FemmePharma, enforceable against it in accordance with its
terms, except as such enforcement may be limited by applicable laws relating
to creditors' rights or principles of equity affecting the availability of
remedies.
4.5. (a) (i) FemmePharma's authorized capital stock
consists solely of: (A) 19,000,000 shares of Common Stock, no par value, of
which 1,429,379 shares are issued and outstanding, Management Options (the
"Management Options") are outstanding for the purchase of 925,823 shares and
Warrants (the "Warrants") are outstanding for the purchase of 200,000
shares, and (B) 2,000,000 shares of Preferred Stock, no par value, of which:
(x) 713,500 shares are designated Series A Preferred Stock (and 713,375
shares are issued and outstanding), (y) 713,500 shares are designated Series
B Preferred Stock (and 713,500 shares are issued and outstanding), and (z)
130,000 shares are designated Series C Preferred Stock, no par value (none
of which shares are issued and outstanding). The registered shareholders of
the currently outstanding Common Stock and Preferred Stock and the holders
of the issued and outstanding Management Options and Warrants are as set
forth in Schedule 4.5. Xxxxxxxx X. XxXxxxx ("XxXxxxx") owns the shares of
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Common Stock shown to be owned by her in Schedule 4.5, free and clear of all
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pledges, liens or encumbrances and such shares are not subject to any
agreement regarding the sale, transfer or voting thereof.
(ii) No shares of capital stock of FemmePharma
have been issued and are held in its treasury.
(iii) Except for the shares of Common Stock
reserved for the conversion of the Preferred Stock purchased by the
Independent Investors and upon the exercise of the Management Options and
the Warrants, and the shares of Common Stock reserved for issuance upon the
conversion of shares of Series C Stock issuable pursuant to this Agreement
(including shares of Series C Stock which may be issued in respect of
dividend payments), no shares of Common Stock have been reserved for
issuance upon the exercise of stock purchase options or any other rights to
purchase Common Stock or otherwise promised to be issued or sold. The
issuance of all of such shares of Common Stock that are so issuable has been
duly authorized, and such shares have been duly reserved for issuance, by
the Board of Directors of FemmePharma.
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(iv) Each outstanding share of FemmePharma Common
Stock is duly authorized and validly issued, fully paid and non-assessable,
and has not been issued in violation of any preemptive rights, rights of
first refusal or similar rights.
(b) FemmePharma has paid no cash dividends on any Common
Stock and has entered into no agreement for the payment of any future
dividends.
(c) FemmePharma knows of no agreements among the holders
of the Common Stock which limit or control the manner in which the parties
thereto vote their Common Stock.
4.6. Upon the payment by KV of the Per Share Price for the
Series C Stock to be purchased by KV and the issuance and delivery of such
shares of Series C Stock to KV by FemmePharma contemplated hereunder, all of
such shares of Series C Stock will be duly authorized, validly issued, fully
paid and non-assessable, and no further governmental authorization or
approval of FemmePharma is or will be required in connection with the
issuance thereof.
4.7. Neither the execution and delivery of this Agreement
by FemmePharma, nor the completion of the transactions contemplated hereby
by FemmePharma, will:
(i) Conflict with or result in a breach of the
Articles of Incorporation or Bylaws of FemmePharma;
(ii) Violate, or conflict with, or result in a
breach of any provision of, or constitute a default (or an event which, with
the giving of notice, the passage of time or otherwise, would constitute a
default) under, or entitle any party (with the giving of notice, the passage
of time or otherwise) to terminate, accelerate or call a default under, or
result in the creation of any encumbrance upon any of the properties or
assets of FemmePharma under, any of the terms or conditions of any note,
bond, mortgage, indenture, deed of trust, license, contract, undertaking,
agreement, lease or other instrument or obligation to which FemmePharma is a
party or by which it or its assets are bound or subject;
(iii) Violate any law applicable to FemmePharma
or any of its assets; or
(iv) Require any action or consent or approval
of, or review by, or registration or filing by FemmePharma with, any third
party or any governmental authority.
4.8. The books of account and financial records of
FemmePharma are currently maintained on a cash basis and fairly reflect the
assets and liabilities of FemmePharma on a cash basis, but do not include
accruals for any items of income or expense, and the Income and Expense
Statements and balance sheets for the years ended December 31, 2000 and
December 31, 2001, respectively, provided to KV by FemmePharma fairly
present the financial condition, assets and liabilities of FemmePharma as at
the respective dates and the results of its operations and cash flows for
the periods covered thereby. FemmePharma has provided to KV projections of
its future business and results of operation for 2002 (the "Projections").
FemmePharma has used its current knowledge in preparing the Projections;
however, there is no assurance that the Projections will be achieved by
FemmePharma. FemmePharma owns all of its assets free and clear of all liens,
claims and encumbrances.
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4.9. Since December 31, 2000, FemmePharma has conducted
its business in the ordinary course, consistent with past practice, and, to
its knowledge, there has been no material adverse change in the assets,
liabilities, results of operation, prospects, business or financial
condition of FemmePharma, or any event, occurrence or development which may
reasonably be expected to result in such a change or which would adversely
affect the ability of FemmePharma to consummate the transactions
contemplated hereby; provided, that since December 31, 2000 FemmePharma's
financial condition has deteriorated due to continued operations without
revenues.
4.10. FemmePharma maintains and operates a single location
for the conduct of its business in the Commonwealth of Pennsylvania and is
licensed to transact business in the states set forth in Schedule 4.10.
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FemmePharma has all licenses, permits, authorizations and administrative
approvals ("Authorizations") required for the conduct of its business in
each state in which FemmePharma conducts its business, except where the
failure to have any such Authorization would not have a material adverse
effect on FemmePharma or the business conducted by FemmePharma. FemmePharma
is in compliance, in all material respects, with all laws, regulations and
orders applicable to it or to the conduct or operation of its business or
the ownership or use of its assets.
4.11. There are no legal proceedings pending or, to the
knowledge of FemmePharma, threatened against FemmePharma or its assets.
4.12. Schedule 4.12 contains a list of all material
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trademarks, trade names, copyrights, patents and other intellectual property
assets owned by FemmePharma, except for licenses implied by the sale of a
product and perpetual, paid-up licenses for commonly available software
programs under which FemmePharma is the licensee ("FemmePharma's
Intellectual Property"). There are no outstanding or, to the knowledge of
FemmePharma, threatened disputes or disagreements with respect to any such
intellectual property assets. To its knowledge, none of FemmePharma's
Intellectual Property infringes or is alleged to infringe the intellectual
property rights of any other person.
4.13. FemmePharma has filed or caused to be filed on a
timely basis all tax returns and reports which have been required to be
filed by FemmePharma and has paid or made provision for the payment, when
due, of all taxes payable by FemmePharma pursuant thereto or otherwise, the
failure of which would have a material adverse affect on FemmePharma.
4.14. FemmePharma has no obligation or liability to any
broker, finder or agent in connection with the License Agreement or this
Agreement.
5. INDEMNIFICATION.
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5.1. By KV. KV agrees to indemnify, defend and hold
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harmless FemmePharma and each officer, director, partner, employee, agent
and controlling person of FemmePharma, past, present or future, from and
against any and all loss, damage or liability due to or arising out of a
breach of any representation or warranty made by KV in Article 3 hereof.
5.2. By FemmePharma. FemmePharma agrees to indemnify,
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defend and hold harmless KV and each officer, director, partner, employee,
agent and controlling person of KV,
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past, present or future, from and against any and all loss, damage or
liability due to or arising out of a breach of any representation or
warranty of FemmePharma made in Article 4 hereof.
6. COVENANT OF FEMMEPHARMA.
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6.1. FemmePharma covenants and agrees with KV that
subsequent to the closing of the transactions contemplated by this Agreement
(the "Closing"), FemmePharma will provide KV with a copy of FemmePharma's
financial statements, including a balance sheet, income statement and
statement of cash flows, prepared in accordance with generally accepted
accounting principles (GAAP), consistently applied from period to period,
for each of the first three fiscal quarters of FemmePharma not later than 30
days after the end of each such quarter and for each fiscal year of
FemmePharma not later than 75 days after the end of the fiscal year. If the
financial statements of FemmePharma for the fiscal year are audited,
FemmePharma shall provide KV with a copy of such audited financial
statements and of the auditors' opinion related thereto. In addition,
FemmePharma shall provide KV or a representative of KV; (i) reasonable
access from time to time (but not necessarily more often than quarterly
following the receipt of such financial statements) during normal business
hours to the chief executive officer and chief financial officer of
FemmePharma in order to keep KV informed of and to review the status of
FemmePharma's business, results of operation and financial condition; and
(ii) such additional access to FemmePharma's records as is necessary to
allow KV to comply with requirements of any applicable law or administrative
or regulatory requirement applicable to KV; provided that, any such
information shall be held by KV in confidence and not used or disclosed by
KV except to the extent it is legally compelled to do so. In addition,
FemmePharma shall provide KV with a copy of all notices and other
communications by FemmePharma with the holders of its common stock
generally. This covenant shall terminate at the earlier of such time as: (a)
FemmePharma has a public offering of securities registered under the
Securities Act of 1933; provided, however, that FemmePharma will continue
thereafter to provide KV copies of such financial information at such times
as are required by KV to comply with applicable securities laws, or (b) KV
no longer owns any shares of Series C Stock or Common Stock of FemmePharma.
7. CONDITIONS PRECEDENT TO KV'S OBLIGATION TO CLOSE.
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KV's obligation to purchase the Series C Stock and to take
any other actions required to be taken by KV at either the Initial Closing
or the Second Closing is subject to the satisfaction, at or prior to the
applicable Closing, of each of the following conditions (any of which may be
waived by KV, in whole or in part):
7.1. Accuracy of Representations. The representations and
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warranties of FemmePharma in this Agreement shall have been accurate as of
the date of this Agreement and shall continue to be accurate as of the
Closing Date as if made on the Closing Date, and FemmePharma shall have
delivered to KV at the Closing a Certificate that such representations and
warranties are true and correct on the Closing Date.
7.2. No Proceedings. There shall not be outstanding or
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then threatened against FemmePharma or KV any proceeding by a third party:
(a) involving any challenge to, or seeking damages or other relief in
connection with, any of the transactions contemplated by this Agreement
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or the License Agreement, or (b) that prevents, delays, makes illegal or
otherwise interferes with the sale and delivery of the Series C Stock
contemplated hereby.
7.3. License Agreement. The License Agreement shall have
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been entered into by FemmePharma and KV and shall be in full force and
effect, and FemmePharma shall not be in breach thereof.
7.4. Second Closing. With respect to the Second Closing,
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(i) the Initial Closing shall have been consummated, and (ii) the Phase III
Studies shall have commenced pursuant to and as defined in the License
Agreement.
7.5. Performance. FemmePharma shall have performed all of
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the covenants required by this Agreement to be performed by it on or before
the Closing.
8. CONDITIONS PRECEDENT TO FEMMEPHARMA'S OBLIGATION TO CLOSE.
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FemmePharma's obligation to sell the Series C Stock to KV
hereunder and to take the other actions required to be taken by FemmePharma
at either the Initial Closing or the Second Closing is subject to the
satisfaction, at or prior to such Closing, of each of the following
conditions (any of which may be waived by FemmePharma in whole or in part):
8.1. Accuracy of Representations. KV's representations and
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warranties in this Agreement shall have been accurate as of the date of this
Agreement and as of the Closing Date as if made on the Closing Date, and KV
shall have delivered to FemmePharma at the Closing a certificate that such
representations and warranties are true and correct on the Closing Date
8.2. KV's Performance. The covenants and obligations that
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KV is required to perform or to comply with pursuant to this Agreement at or
prior to the Closing shall have been performed and complied with.
8.3. No Proceedings. There shall not be outstanding or
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then threatened against FemmePharma or KV any proceeding: (a) involving any
challenge to, or seeking damages or other relief in connection with, any of
the transactions contemplated by this Agreement or the License Agreement, or
(b) that prevents, delays, makes illegal or otherwise interferes with the
sale and delivery of the Series C Stock contemplated hereby.
8.4. License Agreement. The License Agreement shall have
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been entered into by FemmePharma and KV and shall be in full force and
effect, and KV shall not be in breach thereof.
8.5. Second Closing. With respect to the Second Closing,
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(i) the Initial Closing shall have been consummated, and (ii) the License
Agreement shall not have been terminated with respect to the Danazol
Product.
8.6. Performance. KV shall have performed all of the
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covenants required by this Agreement to be performed by it on or before the
Closing.
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9. MISCELLANEOUS PROVISIONS.
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9.1. All warranties, representations, indemnities and
agreements hereunder shall survive any termination or revocation of this
Agreement for a period of two years.
9.2. Should any one or more of the provisions of this
Agreement be determined by a judicial or administrative authority having
jurisdiction thereof to be illegal or unenforceable, such illegal or
unenforceable provisions shall be so modified by the authority making such
determination, if and to the extent possible, so as to give effect to the
intentions of the parties expressed herein, and all other provisions of this
Agreement shall be given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be affected thereby.
9.3. Except as otherwise provided herein, all the terms,
provisions, representations and warranties of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the respective
successors and assigns of the parties hereto.
9.4. It is the intention of the parties hereto that the
laws of Pennsylvania should govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of
the parties hereto, without regard to conflict or choice of law principles.
9.5. This Agreement contains the entire agreement between
the parties hereto relating to the sale by FemmePharma and purchase by KV of
the Series C Stock and may be amended only by a written amendment signed by
all the parties hereto.
9.6. No failure or delay of any party hereto in exercising
any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
9.7. The rights and remedies herein provided shall be
cumulative and not exclusive of any other rights or remedies provided by law
or otherwise.
9.8. All notices, requests, consents, and other
communications required or permitted hereunder shall be in writing and shall
be delivered, or mailed first class postage prepaid, Express, registered or
certified mail, or sent by prepaid next business day courier:
(i) If to FemmePharma at the address set forth for
FemmePharma at the beginning of this Agreement;
(ii) If to KV at the address set forth for KV at
the beginning of this Agreement;
or such other address as to which FemmePharma, or KV shall have specified by
written notice to the other in accordance with this Section 9.8; and such
notices and other communications shall for all purposes of this Agreement be
treated as being effective or having been given when delivered, if delivered
personally, or, if sent by mail, at the earlier of their receipt or 72 hours
after the same have been deposited in the United States Mail, addressed and
postage prepaid as aforesaid, or if
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sent by prepaid next business day courier on the business day following
delivery thereof to the courier.
9.9. This Agreement may be executed in two or more
counterparts with the same effect as if all parties hereto had signed the
same documents. All such counterparts shall be deemed an original, shall be
construed together and shall be considered one and the same instrument.
Facsimile signatures shall be as effective as original signatures hereto.
9.10. Copies of this Agreement which are true copies of
the original and are manually signed by the parties shall be deemed
duplicate originals.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed on the date and year first above written.
FEMMEPHARMA, INC.
By: /s/ Xxxxxxxx X. XxXxxxx
------------------------------
Xxxxxxxx X. XxXxxxx
President
KV PHARMACEUTICAL COMPANY
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
Senior Vice President
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