Exhibit 10.1
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STOCK PURCHASE AGREEMENT
DATED AS OF
MAY 6, 1996
AMONG
BONE, MUSCLE AND JOINT, INC.
AND
THE INVESTORS IDENTIFIED HEREIN
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BONE, MUSCLE AND JOINT, INC.
As of May 6, 1996
To Each of the Parties
Named on Schedule I Attached
Hereto:
Stock Purchase Agreement
Ladies and Gentlemen:
The undersigned, BONE, MUSCLE AND JOINT, INC., a Delaware corporation (the
"Corporation"), hereby agrees with each of the parties listed on Schedule I
hereto (each, an "Investor," and, collectively, the "Investors") as follows:
SECTION 1. Issuance and Sale of Common Stock and Series A Preferred
Stock; Closing.
1.1 Authorization of Shares. On the terms and subject to the conditions
hereof, the Corporation has authorized the issuance and sale at the Closing (as
hereinafter defined) of an aggregate of (a) 1,175,000 shares (the "Common
Shares") of common stock, $.001 par value (the "Common Stock"), of the
Corporation and (b) 999,999 shares (the "Series A Preferred Shares;" and
together with the Common Shares, the "Shares") of Series A Convertible Preferred
Stock, $.01 par value (the "Series A Preferred Stock"), of the Corporation.
1.2 Agreement to Purchase and Sell the Shares. At the Closing, the
Corporation is selling to each Investor, and each Investor is severally
purchasing from the Corporation, upon the terms and subject to the conditions
hereinafter set forth, that number of Common Shares and Series A Preferred
Shares set forth opposite the name of such Investor on Schedule I hereto, at a
purchase price of $.01 per Common Share and $1.00 per Series A Preferred Share.
1.3 The Closing. The closing (the "Closing") hereunder with respect to the
Shares is taking place on the date hereof at the offices of ▇'▇▇▇▇▇▇▇▇ Graev &
Karabell, LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, simultaneously
with the execution and delivery of this Agreement (the date hereof being
sometimes referred to herein as the "Closing Date").
1.4 Delivery of Shares to the Investors. At the Closing, the Corporation
shall deliver to each Investor certificates representing that number of Common
Shares and Series
A Preferred Shares set forth opposite such Investor's name on
Schedule I, in each case registered in the name of such Investor and dated the
Closing Date. Delivery to each Investor of the Common Shares and Series A
Preferred Shares to be purchased by such Investor hereunder shall be made
against receipt by the Corporation of a check payable to the Corporation, or a
wire transfer to an account designated by the Corporation, in either case in an
amount equal to the full amount of the purchase price for such Common Shares and
Series A Preferred Shares being purchased by such Investor.
SECTION 2. Representations and Warranties of the Corporation. The
Corporation hereby represents and warrants to the Investors as follows:
2.1 Organization. The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Corporation has all requisite corporate power and authority to own and lease its
properties, to carry on its business as presently conducted and as proposed to
be conducted and to carry out the transactions contemplated hereby. The
Corporation will be qualified to do business as a foreign corporation in the
State of Florida and is not qualified to do business as a foreign corporation in
any other jurisdiction and the failure to be so qualified in any such other
jurisdiction will not have a material adverse effect on the Corporation's
business or financial condition.
2.2 Capitalization. The authorized capital stock of the Corporation
immediately upon consummation of the transactions contemplated hereby shall
consist of:
(a) 10,000,000 shares of Common Stock, of which (i) 1,175,000 shares will
be validly issued and outstanding, fully paid and nonassessable; (ii) 225,000
shares will be reserved for issuance to ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. ("▇▇. ▇▇▇▇▇▇")
pursuant to that certain letter of employment dated as of the date hereof (the
"Employment Letter") between the Corporation and ▇▇. ▇▇▇▇▇▇ in the form of
Exhibit A attached hereto; and (iii) 1,250,000 shares (including those shares
referred to in Section 2.2(a)(ii) hereof) will be reserved for issuance to
senior management employees pursuant to the Corporation's 1996 Stock Option Plan
(the "Stock Option Plan"); and
(b) 5,000,000 shares of preferred stock, $.01 par value (the "Preferred
Stock"), of the Corporation, of which (i) 999,999 shares will be designated
Series A Preferred Stock and all of such shares will be validly issued and
outstanding, fully paid and nonassessable and (ii) 999,999 shares will be
designated Series A-1 Preferred Stock and all of such shares will be reserved
for issuance upon conversion of the Series A Preferred Stock pursuant to Section
6 of Article IV of the Certificate of Designation.
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Except for Common Stock issuable upon conversion of the Series A Preferred
Shares and pursuant to the Stock Option Plan and the Employment Letter and upon
the consummation of the transactions contemplated hereby, there will be no (i)
outstanding warrants, options, agreements, convertible securities or other
commitments or instruments pursuant to which the Corporation is or may become
obligated to issue or sell any shares of capital stock or other securities of
the Corporation or (ii) preemptive or similar rights to purchase or otherwise
acquire shares of capital stock of the Corporation pursuant to any provision of
law, the Certificate of Incorporation or By-laws of the Corporation or any
agreement to which the Corporation is party or otherwise.
2.3 Authorization. The execution, delivery and performance by the
Corporation of this Agreement and the agreements referred to herein or
contemplated hereby to which the Corporation is a party (collectively, the
"Related Agreements") and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all requisite corporate action
on the part of the Corporation, and this Agreement and each of the Related
Agreements has been duly executed and delivered by the Corporation and
constitutes the valid and binding obligation of the Corporation, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
relating to or affecting the rights and remedies of creditors and debtors, and
equitable principles generally, regardless of whether such principles are
considered in a proceeding at equity or at law. The execution, delivery and
performance of this Agreement and each of the Related Agreements and compliance
with the provisions hereof and thereof by the Corporation will not (a) violate
in any material respect any law or statute or order, judgment or decree of any
court, administrative agency or other governmental body applicable to the
Corporation or its properties or assets or (b) conflict in any material respect
with or result in any material breach of any of the terms or provisions or
constitute (with due notice or lapse of time, or both) a default under the
Certificate of Incorporation or By-laws of the Corporation or any note,
indenture, mortgage, lease agreement or other material agreement, contract or
instrument to which the Corporation is a party or by which it or any of its
properties or assets may be bound or affected.
2.4 No Consent or Approval Required. No authorization, consent, approval or
other order of, or declaration to or filing with, any governmental agency or
body or other person or entity is required for the valid authorization,
execution, delivery and performance by the Corporation of this Agreement or any
of the Related Agreements.
2.5 Authorization of Shares. The issuance, sale and delivery of the Shares
have been duly authorized by all requisite corporate action of the Corporation
and when issued, sold and delivered in accordance with the terms of this
Agreement, the
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Shares will be validly issued and outstanding, fully paid and nonassessable and
will not be subject to preemptive or other similar rights of the stockholders of
the Corporation or others.
2.6 Commencement of Business. Since its inception, the Corporation has
operated as a development stage company and the Corporation (i) is not a party
to any written or oral contract, agreement or understanding, other than as
contemplated by this Agreement or any Related Agreement; (ii) does not have any
liabilities of any nature whatsoever (matured or unmatured, fixed or
contingent), except the expenses that it has incurred in connection with its
incorporation and organization, legal expenses and other miscellaneous expenses
incident to its operations prior to the date hereof or in connection with or in
preparation for the transactions contemplated hereby; and (iii) is not a party
to or directly or indirectly bound by any indenture, mortgage, deed of trust or
other agreement or instrument relating to the borrowing of money (written or
oral).
2.7 Litigation. There are no actions, suits, proceedings or investigations
pending against the Corporation before any court or governmental agency, nor to
the best of the Corporation's knowledge, is there any action, suit, proceeding
or investigation pending or threatened affecting the Corporation's properties,
assets or operations or its right to employ or retain any of its employees or
consultants.
2.8 Use of Proceeds. The net proceeds received by the Corporation from the
sale of the Shares shall be used by the Corporation for general working capital
purposes as determined by the Board of Directors from time to time.
SECTION 3. Representations and Warranties of the Investors. Each Investor
hereby severally represents and warrants to the Corporation as follows:
3.1 Authorization. The execution, delivery and performance by such Investor
of this Agreement and the Related Agreements to which such Investor is a party
and the consummation of the transactions contemplated hereby and thereby have
been duly authorized by all requisite action on the part of such Investor, and
this Agreement and each of the Related Agreements has been duly executed and
delivered by such Investor and constitute the valid and binding obligations of
such Investor, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws relating to or affecting the rights and remedies of
creditors and debtors and equitable principles generally, regardless of whether
such principles are considered in a proceeding at equity or at law. The
execution, delivery and performance of this Agreement and each of the Related
Agreements and compliance with the provisions hereof and thereof by such
Investor will not (a) violate in any material respect any law or statute or
order, judgment or decree of any court, administrative agency or other
governmental body
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applicable to such Investor or its properties or assets or (b) conflict in any
material respect with or result in any material breach of any of the terms or
provisions or constitute (with due notice or lapse of time, or both) a default
under the charter or by-laws or agreement of partnership or any similar
organizational document of such Investor or any note, indenture, mortgage, lease
agreement or other material agreement, contract or instrument to which such
Investor is a party or by which it or any of its properties or assets may be
bound or affected.
3.2 Accredited Investor. Such Investor is an "accredited investor" (as such
term is defined in Rule 501 of Regulation D promulgated under the Securities Act
of 1933, as amended (the "Securities Act")).
3.3 Investor Intent. Such Investor is acquiring the Shares for its own
account, for investment and not with a view to, or for resale in connection
with, any distribution thereof, nor with any present intention of distributing
or reselling the same or any part thereof in any transactions that would be in
violation of the Securities Act or any state securities or "blue-sky" laws.
3.4 Restricted Securities. Such Investor understands (i) that the Shares
will not be registered under the Securities Act or any state securities or
"blue-sky" laws by reason of their issuance in a transaction exempt from the
registration requirements of the Securities Act or any state securities or
"blue-sky" laws, (ii) that the Shares must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or any
state securities or "blue-sky" laws or is exempt from such registration, (iii)
that the Corporation is under no obligation to so register any shares of Common
Stock, except as provided in the Registration Rights Agreement (as hereinafter
defined) and (iv) that the certificate(s) evidencing the shares of Common Stock
and Series A Preferred Stock will be imprinted with a legend that prohibits the
transfer substantially as set forth in Section 6.2(b) hereof unless they are
registered or such registration is not required.
3.5 Rule 144. Such Investor understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to such
Investor) promulgated under the Securities Act ("Rule 144") depends on the
satisfaction of various conditions and that, if applicable, Rule 144 may only
afford the basis for sales under certain circumstances only in limited amounts.
3.6 Access to Information; Experience. Such Investor has been furnished
with or has had access during the course of this transaction to all information
necessary to enable such Investor to evaluate the merits and risks of an
investment in the Corporation and such Investor has had an opportunity to
discuss with representatives of the Corporation the business and financial
affairs of the Corporation. Such Investor has conducted its own investigation
and analysis of the business and its investment in the Shares and is not relying
on the Corporation's business plan or any information or opinions contained
therein in making its decision to purchase the Shares. Such Investor has
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substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Corporation such that the
Investor is capable of evaluating the merits and the risks of its investment in
the Corporation and has the capacity to protect such Investor's own interests in
making this investment in the Corporation. Such Investor can afford to suffer a
complete loss of its investment in the Shares.
SECTION 4. Conditions Precedent to Obligations of Investors. The respective
several obligations of the Investors to purchase and pay for the Shares on the
Closing Date, are subject to the following conditions precedent:
4.1 Corporate Proceedings; Consents; Etc. All corporate and/or other
proceedings to be taken by the Corporation, its officers, directors and
stockholders and all waivers and consents to be obtained by the Corporation in
connection with the transactions contemplated by this Agreement and each of the
Related Agreements shall have been taken or obtained.
4.2 Representations and Warranties. The representations and warranties of
the Corporation contained in Section 2 shall be true and correct in all material
respects.
4.3 Blue Sky Matters. All consents, approvals, qualifications and/or
registrations required to be obtained or effected under any applicable state
securities or "blue-sky" laws in connection with the execution and delivery of
the Shares shall have been obtained or effected.
4.4 Election of Directors. Effective upon the Closing, the authorized
number of directors of the Corporation shall be initially fixed at three and the
following persons shall have been duly elected to serve as the directors of the
Corporation: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
4.5 Filing of Certificate of Designation. A Certificate of Designation in
the form of Exhibit B attached hereto setting forth the designations and
preferences of the Series A Preferred Stock and the Common Stock shall have been
filed with, and accepted by, the Secretary of State of the State of Delaware,
and evidence of such filing and acceptance, in form satisfactory to the
Investors, shall have been made available to the Investors.
4.6 Stockholders Agreement. The Corporation and each of the other Investors
shall have executed and delivered a
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stockholders agreement (the "Stockholders Agreement") substantially in the form
of Exhibit C attached hereto.
4.7 Registration Rights Agreement. The Corporation and each of the other
Investors shall have executed and delivered a registration rights agreement (the
"Registration Rights Agreement") substantially in the form of Exhibit D attached
hereto.
4.8 Stock Option Plan. The Board of Directors and the stockholders of the
Corporation shall have adopted the Stock Option Plan substantially in the form
of Exhibit E attached hereto, including the forms of stock option agreements
annexed thereto as Attachments 1, 2 and 3.
SECTION 5. Conditions Precedent to Obligations of Corporation. The
obligation of the Corporation to issue and sell the Shares on the Closing Date
is subject to the following conditions precedent:
5.1 Representations and Warranties. The representations and warranties of
the Investors contained in Section 3 shall be true and correct in all material
respects.
5.2 Blue Sky Matters. All consents, approvals, qualifications and/or
registrations required to be obtained or effected under any applicable state
securities or "blue-sky" laws in connection with the execution and delivery of
the Shares shall have been obtained or effected.
5.3 Stockholders Agreement. The Stockholders Agreement shall have been
executed and delivered by the Corporation and each of the Investors.
5.4 Registration Rights Agreement. The Registration Rights Agreement shall
have been executed and delivered by the Corporation and each of the Investors.
5.5 Payment of Purchase Price. Each Investor shall have delivered the full
purchase price payable by such Investor hereunder as specified in Section 1.2
hereof.
SECTION 6. Affirmative Covenants.
6.1 Information Rights. The Corporation agrees to provide each of the
Investors with the following:
(a) General. The Corporation will permit such persons on reasonable notice
to visit and inspect during normal business hours any of the properties of the
Corporation, to examine its books and records, to make copies thereof and to
take extracts therefrom and to discuss its affairs, finances and accounts with,
and to be advised as to the same by, its officers, consultants, counsel and
accountants, at such reasonable times as
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such persons may desire. In addition, the Corporation will provide to such
persons such other information as from time to time may reasonably be requested.
(b) Monthly Statements. Within 30 days after the end of each monthly
accounting period, an unaudited consolidated financial report of the
Corporation, prepared in accordance with generally accepted accounting
principles consistently applied, except that such financial statements shall not
include footnotes and shall be subject to normal year-end audit adjustments,
including, with respect to such monthly accounting period, the following:
(i) a profit and loss statement for such monthly accounting period,
together with a cumulative profit and loss statement from the first day of
the current year to the last day of such monthly accounting period;
(ii) a balance sheet as at the last day of such monthly accounting
period;
(iii) a statement of cash flow for such monthly accounting period on a
cumulative basis for the fiscal year to date; and
(iv) a comparison between the actual figures for such monthly
accounting period, the comparable figures (with respect to clauses (i) and
(ii) only) for the prior year (if any) and the comparable figures included
in the Budget (as hereinafter defined) for such monthly accounting period.
(c) Quarterly Reports. As soon as available, but not later than 45 days
after the end of each quarterly accounting period, an unaudited consolidated
financial report of the Corporation, prepared in accordance with generally
accepted accounting principles consistently applied, except that such financial
statements shall not include footnotes and shall be subject to normal year-end
audit adjustments, containing the information contemplated by Sections
6.1(b)(i)-(iv) with respect to such quarterly accounting period.
(d) Annual Reports. As soon as available, but not later than 120 days after
the end of each fiscal year of the Corporation, audited financial statements of
the Corporation, which shall include a statement of cash flows and statement of
operations for such fiscal year and a balance sheet as at the last day thereof,
each prepared in accordance with generally accepted accounting principles,
consistently applied, and accompanied by the report of a firm of independent
certified public accountants of recognized standing selected by the Board of
Directors of the Corporation (the "Accountants").
(e) Budget. With respect to each calendar year commencing with the calendar
year ending December 31, 1997, the Corporation shall, not later than March 31 of
each such calendar
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year, prepare a budget (the "Budget") of the Corporation (containing monthly and
quarterly breakdowns of income (loss), balance sheet items and cash flow). The
Budget shall be accepted as the Budget for such fiscal year when it has been
approved by the Board of Directors of the Corporation. The Budget shall be
reviewed by the Corporation periodically and all changes therein and all
material deviations therefrom shall be resubmitted to the Board of Directors in
advance and shall be accepted when approved by the Board of Directors (including
at least one director designated pursuant to Sections 2(a)(ii) and (iii) of the
Stockholders Agreement.)
(f) Termination of Information Rights. Notwithstanding the foregoing
provisions of this Section 6.1, the rights of the Investors and the obligations
of the Corporation under said Section 6.1 shall terminate upon the consummation
of the initial underwritten public offering of the Common Stock of the
Corporation.
6.2 Transfer of Securities.
(a) Restrictions on Transfer. Each Investor acknowledges that the Shares
have not been registered under the Securities Act, that such shares are being
issued pursuant to an exemption from registration under the Securities Act and
that such shares constitute "restricted securities" under Rule 144. Accordingly,
the Shares held by the Investors shall not be sold, transferred, assigned,
pledged, encumbered or otherwise disposed of (each, a "Transfer") except upon
the conditions specified in this Section 6.2, which conditions are intended to
ensure compliance with the provisions of the Securities Act and this Agreement.
(b) Restrictive Legend. Each certificate for shares of Common Stock held by
the Investors and each certificate for any such securities issued to subsequent
transferees of any such certificate shall (unless otherwise permitted by the
provisions of Sections 6.2(c) and 6.2(d)) be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES OR
"BLUE-SKY" LAWS. THESE SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER SAID ACT OR LAWS.
ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS
SUBJECT TO THE CONDITIONS SPECIFIED IN SECTION 6.2
OF THE STOCK PURCHASE AGREEMENT DATED AS OF MAY 6,
1996, AMONG BONE, MUSCLE AND JOINT, INC. AND THE
OTHER PARTIES THERETO, AND NO TRANSFER OF THESE
SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
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REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF BONE, MUSCLE AND
JOINT, INC."
(c) Notice of Transfer. Each Investor agrees, prior to any Transfer of the
Shares, to give written notice to the Corporation of such Investor's intention
to effect such Transfer and to comply in all other respects with the provisions
of this Section 6.2. Each such notice shall describe the manner and
circumstances of the proposed Transfer and shall be accompanied by the written
opinion, addressed to the Corporation, of counsel for the holder of such shares,
stating that in the opinion of such counsel (which opinion and counsel shall be
reasonably satisfactory to the Corporation), such proposed Transfer does not
involve any transaction requiring registration or qualification of such shares
under the Securities Act or the securities or "blue-sky" laws of any relevant
state of the United States; provided, however, that no such opinion of counsel
shall be necessary for a Transfer pursuant to Rule 144. Such Investor shall
thereupon be entitled to Transfer such shares in accordance with the terms of
the notice delivered by it to the Corporation. Each certificate or other
instrument evidencing the securities issued upon the Transfer of any such shares
(and each certificate or other instrument evidencing any untransferred balance
of such shares) shall bear the legend set forth in Section 6.2(b) unless (a) in
such opinion of counsel, registration of any future Transfer is not required by
the applicable provisions of the Securities Act and applicable state securities
or "blue-sky" laws or (b) the Corporation shall have waived the requirement of
such legends; provided, however, that such legend shall not be required on any
certificate or other instrument evidencing the securities issued upon such
Transfer in the event such Transfer shall be made in compliance with the
requirements of Rule 144. No Investor shall Transfer any shares of Common Stock
until such opinion of counsel has been given (unless waived by the Corporation
or unless such opinion is not required in accordance with the provisions of this
Section 6.2).
(d) Removal of Legends, Etc. Notwithstanding the foregoing provisions of
this Section 6.2, the restrictions imposed by this Section 6.2 upon the
transferability of any shares of the capital stock of the Corporation held by
the Investors shall cease and terminate when (a) any such shares are sold or
otherwise disposed of pursuant to an effective registration statement under the
Securities Act or as otherwise contemplated by Section 6.2(c) and, pursuant to
Section 6.2(c), the securities so transferred are not required to bear the
legend set forth in Section 6.2(b) or (b) the holder of such shares has met the
requirements for Transfer of such shares pursuant to subparagraph (k) of Rule
144. Whenever the restrictions imposed by this Section 6.2 shall terminate, as
herein provided, each Investor holding shares as to which such restrictions have
terminated shall be entitled to receive from the Corporation, without expense, a
new certificate not bearing the restrictive
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legend set forth in Section 6.2(b) and not containing any other reference to the
restrictions imposed by this Section 6.2.
SECTION 7. Expenses. The Corporation shall pay its expenses and the
expenses of each of the Investors in connection with the preparation for and
consummation of the transactions contemplated by this Agreement; provided,
however, that in the event the transactions contemplated hereby are not
consummated, the Corporation and each of the Investors shall bear their
respective expenses.
SECTION 8. Key-Person Insurance. Within 120 days after the date hereof, the
Corporation shall obtain, and thereafter maintain in full force and effect, for
so long as ▇▇. ▇▇▇▇▇▇ is employed as an executive officer of the Corporation,
key-person term life insurance coverage on ▇▇. ▇▇▇▇▇▇ in an amount equal to
$1,000,000.
SECTION 9. Notices. All notices, advices and communications to be given or
otherwise made to any party to this Agreement shall be deemed to be sufficient
if contained in a written instrument delivered in person or by telecopier or
duly sent by first class registered or certified mail, return receipt requested,
postage prepaid, or by overnight courier, addressed to such party at the address
set forth below or at such other address as may hereafter be designated in
writing by the addressee to the addresser listing all parties:
(a) if to the Corporation, to:
Bone, Muscle and Joint, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
President
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; and
(b) if to the Investors, to their respective addresses set forth on
Schedule I;
or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by telecopier, on the date of
such delivery, (ii) in the case of nationally-recognized overnight courier, on
the next business day after the date when sent and
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(iii) in the case of mailing, on the third business day following that on which
the piece of mail containing such communication is posted. As used in this
Section 9, "business day" shall mean any day other than a day on which banking
institutions in the State of New York are legally closed for business.
SECTION 10. Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall bind and inure to the benefit of the parties hereto
and the respective successors and permitted assigns of the parties hereto.
SECTION 11. Amendments. The terms and provisions of this Agreement may only
be amended or waived with the written consent of the Corporation and Investors
holding at least 80% of the Common Shares and the Series A Preferred Shares.
SECTION 12. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 14. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein (without reference to any
principles of conflicts of laws).
* * * *
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IN WITNESS WHEREOF, each of the undersigned has caused this Stock Purchase
Agreement to be executed as of the date first written above.
BONE, MUSCLE AND JOINT, INC.
By:__________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
President and Chief
Executive Officer
INVESTORS:
OAK INVESTMENT PARTNERS VI,
LIMITED PARTNERSHIP
By: OAK ASSOCIATES VI,
LIMITED PARTNERSHIP,
its General Partner
By:__________________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
OAK VI AFFILIATES FUND,
LIMITED PARTNERSHIP
By: OAK VI AFFILIATES, LLC,
its General Partner
By:__________________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
DELPHI VENTURES III, L.P.
By: DELPHI MANAGEMENT
PARTNERS III, L.L.C.,
its General Partner
By:__________________________________________
Name:
Title:
DELPHI INVESTMENTS III, L.P.
By: DELPHI MANAGEMENT
PARTNERS III, L.L.C.,
its General Partner
By:___________________________________________
Name:
Title:
▇▇▇▇▇▇ & COMPANY, INC.
By:___________________________________________
Name:
Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
