PURCHASE AGREEMENT
AGREEMENT dated as of June 13, 1996 by and among ImmunoTherapeutics,
Inc., a Delaware corporation (the "Company"), Dominion Resources, Inc., a
Delaware corporation ("Seller") and The Aries Fund, a Series of the Aries
Trust, a Cayman Island Trust (the "Trust") and The Aries Domestic Fund, L.P.,
a Delaware limited partnership (the "Partnership") (herein the Trust and the
Fund are collectively referred to as the "Purchasers").
WITNESSETH:
WHEREAS, the Seller desires to sell to Purchasers, at a price of $.10 per
share, 4,000,000 shares of the Company's Common Stock (the "Shares"); and
WHEREAS, the Purchasers desire to purchase the Shares upon and
subject to the terms and conditions hereinafter set forth; and
WHEREAS, such shares were purchased by the Seller from the Company
pursuant to a Purchase Agreement dated March 1, 1996 (the "March Purchase
Agreement") (a copy of which is attached hereto as Exhibit "All); and
WHEREAS, the Company has been joined with and made a party to this
Agreement for the purpose of confirming the transfer of the Shares and the
assignment by the Seller to the Purchasers of certain rights (the "Rights")
under the March Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto hereby agree as follows:
l. Purchase and Sale of the Shares. Subject to the terms and conditions
set forth herein, the Seller hereby agrees to sell and transfer to Purchasers,
and Purchasers hereby agree to purchase from the Seller, in the amounts set
forth on Exhibit "B" hereto, the Shares at the Closing (as such term is
defined in Section 2.1 hereof). The purchase price for the Shares sold
pursuant to this Agreement shall be $.10 per Share, together with the
assignment of the Rights.
2. Closing; Termination.
2.1 Closing. The closing of the purchase and sale of the Shares will
take place at the offices of Purchasers at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx. Such closing (the "Closing") will take place at 11:00 A.M.,
local time, on June 13, 1996. Such Closing may take place at such other time
and place or on such later date as may be mutually agreeable to the parties
hereto. At such Closing, the Seller will deliver to Purchasers certificates
for the Shares purchased as not forth in Section I hereof, against payment of
the purchase price therefor by Purchasers, by wire transfer or certified check
payable to the Seller. The Shares shall be registered in Purchasers, name or
the name of the nominee of Purchasers in such denominations as Purchasers
shall request according to their instructions delivered to the Seller not less
than two (2) days prior to the Closing.
2.2 Termination. In the event that the transactions contemplated by
this Agreement to take place at or prior to the Closing have not been
consummated by June 29, 1996, this Agreement shall, at the option of
Purchasers, terminate and be of no further force and effect, and any payment
made by Purchasers to Seller shall be refunded to Purchasers by Seller, and
there shall be no further liability on the part of any party hereto except for
breaches of this Agreement prior to the time of such termination.
3. Conditions to the Obligations of Purchasers at the Closing. The
obligation of Purchasers to purchase and pay for the Shares to be purchased by
Purchasers at the Closing is subject to the satisfaction on or prior to June
29, 1996 of the following conditions, satisfaction of which conditions shall
not be deemed waived unless waived in writing by Purchasers:
3.1 Opinion of Counsel to the Company. Purchasers shall have
received from Xxxxxxx X. Xxxxxx, P.A., counsel for the Company, its opinion
dated the date of the Closing substantially in the form of Exhibit B hereto.
3.2 Representations And Warranties. All of the representations and
warranties of the Company contained in the March Purchase Agreement shall
continue to be true and correct on the Closing as of the date made.
3.3 Performance of Covenants. All of the covenants and agreements of
the Seller contained in this Agreement and required to be performed on or
prior to the date of the Closing shall have been performed in a manner
reasonably satisfactory in all respects to Purchasers.
3.4 Legal Action. No action or proceeding before any court or
governmental body shall be pending or threatened wherein an unfavorable
judgment, decree or order would prevent the carrying out of this Agreement or
any of the transactions contemplated hereby, declare unlawful the transactions
contemplated by this Agreement or cause such transactions to be rescinded.
3.5 Consent. The Seller and the Company shall have obtained in
writing all consents required to enable each of them to observe and comply
with all of their respective obligations under this Agreement and to
consummate the transactions contemplated hereby.
3.6 Board and committee Representation. The person designated by
Purchasers shall have been elected as a member of the Company's Board of
Directors and Xxxxxxx XxXxxxx shall have resigned as a Director of the
Company.
3.7 Closing Documents.
(a) The Company shall have delivered to Purchasers a
certificate executed by the President of the Company dated the date of the
Closing stating that the conditions set forth in Sections 3.2 through 3.6
hereof as applicable to the Company have been satisfied, and
(b) the Seller shall have delivered to Purchasers a certificate
executed by the President of the Seller dated the date of the Closing stating
that the conditions set forth in Sections 3.2 through 3.6 hereof am applicable
to the Sellers have been satisfied, and
(c) Purchasers shall have received such certificates,
assignments of the Rights, other documents and instruments as Purchasers may
reasonably request in connection with, and to effect, the
transactions contemplated by this Agreement.
3.8 Proceedings. All corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby to be
consummated at the Closing and all documents incident thereto shall be
reasonably satisfactory in form and substance to Purchasers.
3.9 Redemption of Rights. The Board of Directors shall redeem prior
to the Closing all of the Company' a outstanding rights pursuant to Section
24(a)(i) of the Rights Agreement dated as of September 23, 1994 between the
Company and American Stock Transfer and Trust Company.
4. Conditions to the Obligations of the Seller, at the Closing. The
obligation of the Seller to sell the Shares to Purchasers as set forth herein
at the Closing is subject to the satisfaction on or prior to the date of the
Closing of the following conditions, any of which may be waived by the
Company:
4.1 Representations and Warranties. The representations and
warranties of Purchasers contained in this Agreement shall be true and correct
at and as of the date of the Closing with the same effect as if made on the
date of the Closing, except to the extent of changes caused by the
transactions contemplated hereby.
4.2 Legal Action. No action or proceeding before any court or
governmental body shall be pending or threatened wherein an unfavorable
judgment, decree or order would prevent the carrying out of this Agreement or
any of the transactions contemplated hereby, declare unlawful the transactions
contemplated by this Agreement or cause such transactions to be rescinded.
4.3 Proceedings. All proceedings taken or to be taken by Purchasers
in connection with the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to the Company.
5. Conditions to the Obligations of the Company at the Closing. The
obligation of the Company to fulfill the conditions to the Closing at the
Closing is subject to the satisfaction on or prior to the date of the Closing
of the following conditions, any of which may be waived by the Company:
5.1 Representations and Warranties. The representations and
warranties of Purchasers contained in this Agreement shall be true and correct
at and as of the date of the Closing with the same effect au if made on the
date of the Closing, except to the extent of changes caused by the
transactions contemplated hereby.
5.2 Performance of Covenants. All of the covenants and agreements of
the Purchasers and the Seller contained in this Agreement and required to be
performed an or prior to the date of the Closing shall have been performed in
a manner reasonably satisfactory in all respects to the Company.
5.3 Board and Committee Representation. The person designated by
Purchasers shall have been elected as a member of the Company's Board of
Directors and Xxxxxxx XxXxxxx shall have resigned as a Director of the
Company.
5.4 Legal Action. No action or proceeding before any court or
governmental body shall be pending or threatened wherein an unfavorable
judgment, decree or order would prevent the carrying out
of this Agreement or any of the transactions contemplated hereby, declare
unlawful the transactions contemplated by this Agreement or cause such
transactions to be rescinded.
5.5 Proceedings. All proceedings taken or to be taken by Purchasers
in connection with the transactions contemplated hereby to be consummated at
the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Company.
6. Representation and Warranties of the Seller. The Seller hereby
represents and warrants to Purchasers au follows:
6.1 Organization of Seller. The Seller is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation.
6.2 Authorization. The Seller has full corporate power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Seller, enforceable in accordance with its terms and conditions. The
Seller need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency
in order to consummate the transactions contemplated by this Agreement.
6.3 Non-Contravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate any provision of Seller's charter or by-laws, or (b) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which the Seller is a party or by
which it is bound or to which any of its assets is subject.
6.4 Brokers' Fees. The Seller has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this agreement for which the Purchasers could
become liable or obligated.
6.5 Shares. The Seller holds of record and owns -beneficially the
Shares, free and clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state securities laws), taxes,
security interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. The Seller is not a party to any
option, warrant, purchase right, or other contract or commitment that could
require the Seller to sell, transfer, or otherwise dispose of any capital
stock of the Company (other than this Agreement) . The Seller is not a party
to any voting trust, proxy, or other agreement or understanding with respect
to the voting of any capital stock of the Company. All of the Shares are
validly issued, fully paid and non-assessable.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchasers as follows:
7.1 Organization of the Company. The Company is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of
its incorporation.
7.2 Authorization. The Company has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the company, enforceable in accordance with its terms and conditions.
The Company need not give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement.
7.3 Non-Contravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate any provision of the Company's charter to by-laws, or (b)
conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which the Company is a party or
by which it is bound or to which any of its assets is subject.
7.4 March Purchase Agreement. All of the representations and
warranties of the company contained in Section 6 of the March Purchase
Agreement are true and correct on the date of this Agreement.
7.5 Assignment of Rights. The Rights assigned and transferred by
Seller to the Purchasers pursuant to this Agreement will be, upon consummation
with the Closing, enforceable against the Company by the Purchasers as
assignee of Seller after the date of the Closing in accordance with the terms
thereof.
8. Representations and Warranties of the Purchasers. The Purchasers
jointly and severally represent and warrant to Seller and the Company as
follows:
8.1 Organization of the Purchasers. Each of the Purchasers are
entities duly organized or created, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation.
8.2 Authorization. Each of the Purchasers has full corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of each of the Purchasers, enforceable in accordance with
its terms and conditions. Each of the Purchasers need not give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
8.3 Non-Contravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate any provision of either of Purchasers' organizational
documents (which includes all documents pursuant to which Purchasers were
organized or created), or (b) conflict with, result in a beach of, constitute
a default under, result in the acceleration of, crate in any party the right
to accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
either of Purchasers is a party or by which either is bound or to which any of
its assets is subject.
8.4 Brokers' Fees. Neither of the Purchasers has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which Seller
could become liable or obligated.
8.5 Investment. Purchasers are not acquiring the Shares with a view
to or for sale in connection with any distribution thereof within the meaning
of the Securities Act of 1933. Each of Purchasers is acquiring the Shares to
be purchased by it for its own account, beneficially and not as a nominee for
or for the account of any other person.
9. Covenants of the Seller. The Seller covenants and agrees with
Purchasers and the Company as follows:
9.1 Assignment of Rights. Concurrently with and subject to
consummation of the Closing, the Seller has assigned to the Purchasers the
following Rights under the March Purchase Agreement: (i) all rights of
Dominion to the performance of those obligations of the Company set forth in
Section 8 of the March Purchase Agreement, (ii) all rights of Dominion, if
any, to enforce any claims of Dominion against the Company for breach of any
representation or warranty against the Company set forth in Section 6 of the
March Purchase Agreement, and (iii) the rights, as a holder of Securities
under Section 9 of the March Purchase Agreement, to registration of the shares
under the Securities Act of 1933, as amended.
10. Covenants of the Company. The Company covenants and agrees with
the Seller and the Purchasers as follows:
10.1 Consent to Assignment of the Rights. The Company herewith
consents to the assignment of the Rights and agrees that such Rights shall be
enforceable by the Purchasers as set forth in Section 9.1 hereof.
11. Miscellaneous.
11.1 Survival of Representations, warranties and Covenants. All
representations, warranties, covenants and agreements contained in this
Agreement, or in any document, exhibit, schedule or certificate by any party
delivered in connection herewith shall survive the execution and delivery of
this Agreement and the date of each Closing and the consummation of the
transactions contemplated hereby, regardless of any investigation made by any
party or on its behalf, provided that, such representations and warranties
shall survive until December 31, 1996.
11.2 Expenses. The Seller agrees to pay, and save Purchasers
harmless against liability for the payment of (a) fees and expenses
(including, without limitation, attorneys' fees) incurred with respect to any
amendments or waivers (whether or not the same shall become effective) under
or with respect to this Agreement and the transactions contemplated hereby,
(b) stamp and other taxes which may be payable in respect of the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby including the issuance, delivery and acquisition of the
Shares, and (c) fees and expenses (including, without limitation, reasonable
attorneys' fees) incurred in respect of the enforcement of the rights granted
under this Agreement and the transactions contemplated hereby.
11.3 Amendments and Waivers. This Agreement and all exhibits and
schedules hereto set forth the entire agreement and understanding among the
parties as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
This Agreement may be amended, the Company may take any action herein
prohibited or omit to take any action herein required to be performed by it,
and any breach of any covenant, agreement, warranty or representation may be
waived, only if the Company has obtained the written consent or waiver of (a)
Purchasers, if the amendment, action, omission or waiver is one which affects
their rights or obligations under this Agreement and (b) the holders of 51% of
the Shares then
outstanding if the amendment, action, omission or waiver is one which affects
their rights or obligations under this Agreement. No course of dealing between
or among any persons having any interest in this Agreement will be deemed
effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any person under or by reason of this Agreement.
11.4 Successors and Assigns. This Agreement may not be assigned by
the Company except with the prior written consent of the holders of 51% of the
Shares then outstanding. This Agreement shall be binding upon and inure to the
benefit of each of the Company and Seller and their respective permitted
successors and assigns and Purchasers and their successors and assigns. The
provisions hereof which are for Purchasers, benefit as purchasers or holders
of the Shares, are also for the benefit of, and enforceable by, any subsequent
holder of such Shares.
11.5 Notices. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given personally or when
mailed by certified or registered mail, return receipt requested and postage
prepaid, and addressed to the addresses of the respective parties set forth
below or to such changed addresses as such parties may have fixed by notice;
provided, however, that any notice of change of address shall be effective
only upon receipt:
To the Purchasers:
Aries Financial Services, inc.
000 Xxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a Copy to:
Xxxxx Xxxxxx, Esquire
000 Xxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
To the Company:
ImmunoTherapeutics, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxxx 00000
Attention: Xx. Xxxxxx Vesica
With a Copy to:
Xxxxxxx X. Xxxxxx, P.A.
0 Xxxxxxxxxxxx xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
To the Seller:
Dominion Resources, inc.
The Abbey
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
With a Copy to:
Xxxxxxx X. XxXxxxx, III, Esquire Xxxxxxx'x Corner
00 Xxxx Xxxxxx - Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxx 00000-0000
11.6 Governing Law. The validity, performance, construction and
effect of this Agreement shall be governed by the internal laws of the State
of New Jersey without giving effect to principles of conflicts of law.
11. 7 Counterparts. This Agreement may be executed in any number of
counterparts and, notwithstanding that any of the parties did not execute the
same counterpart, each of such counterparts shall, for all purposes, be deemed
an original, and all such counterparts shall constitute one and the same
instrument binding on all of the parties thereto.
11.8 Headings. The headings of the Sections hereof are inserted as a
matter of convenience and for reference only and in no way define, limit or
describe the scope of this Agreement or the meaning of any provision hereof.
11.9 Severability. In the event that any provision of this Agreement
or the application of any provision hereof is declared to be illegal, invalid
or otherwise unenforceable by a court of competent jurisdiction, the remainder
of this Agreement shall not be affected except to the extent necessary to
delete such illegal, invalid or unenforceable provision unless the provision
held invalid shall substantially impair the benefit of the remaining portion
of this Agreement.
EXHIBIT "B"
The ARIES Fund, 3,000,000
A Series of the ARIES TRUST
The Aries Domestic Fund, L.P. 1,000,000
