EXHIBIT 10.17
REAADS MEDICAL PRODUCTS, INC.
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STOCK PURCHASE AGREEMENT
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SEPTEMBER 1, 1993
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of September, 1993, by
and between REAADS MEDICAL PRODUCTS, INC., a Delaware corporation (the
"Company"), and CHUGAI PHARMACEUTICAL CO. LTD., ("Purchaser").
In consideration of the mutual promises, covenants and conditions set
forth below, the parties mutually agree as follows:
1. PURCHASE AND SALE OF STOCK.
Section 1.1. ISSUANCE AND SALE. Subject to the terms and conditions in
this Agreement, the Company shall issue and sell to Purchaser at Closing a total
of 185.19 shares of its Common Stock, $.01 par value per share (the "Purchased
Stock") at a purchase price of $2,700.00 per share (the "Purchase Price").
2. CLOSING OF PURCHASE AND SALE.
Section 2.1. CLOSING. Subject to the conditions to closing set forth
below, the Company will sell to Purchaser, and Purchaser will purchase from the
Company, 185.19 shares of Purchased Stock at a price per share equal to the
Purchase Price. Closing of the sale and purchase of the Purchased Stock shall
take place (the "Closing") at the offices of Xxxxxxxxxx Black and Xxxx on
September 1, 1993, at 12:00 noon or such other place, date and time as may be
mutually agreed to by the Company and Purchaser (the "Closing Date"). At the
Closing, the Company will deliver to Purchaser, upon tender of the purchase
price in immediately available funds or by bank check, stock certificates
representing the shares of Purchased Stock issued to Purchaser under this
Agreement.
3. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following meanings:
"ACT" shall mean the Securities Act of 1933, as amended.
"COMPANY" shall mean Reaads Medical Products, Inc.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"GOOD ACCOUNTING PRACTICE" shall mean, as to a particular
corporation, such accounting practice as, in the opinion of the independent
certified public accountants regularly retained by such corporation, conforms at
the time to generally accepted accounting
principles applied on a consistent basis (except for changes in application in
which such accountants concur). Any accounting terms not defined in this
Agreement shall have the respective meanings given to them under Good Accounting
Practice consistent with those applied in the preparation of the Company's
consolidated financial statements.
"MATERIAL ADVERSE EVENT" shall mean an occurrence having a
consequence which in fact is or may be materially adverse, either individually
or when viewed in the aggregate with all occurrences, as to the business,
operations, assets, or financial condition of the Company.
"PERSON" shall mean an individual, a partnership, a corporation,
an association, a joint stock company, a trust, a limited liability company, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PROPRIETARY RIGHTS" shall mean all patents, patent applications,
trademarks, trademark applications, trade secrets, service marks, trade names,
copyrights, inventions, drawings, designs, customer lists, proprietary know-how
or information, other rights with respect thereto, or any other intangible
property rights.
"STOCK PURCHASE AGREEMENT" or "AGREEMENT" shall mean this Stock
Purchase Agreement dated as of the date hereof, and as it may be amended from
time to time, and entered into between the Company and Purchaser.
"SUBSIDIARY" shall mean any corporation or partnership in which
the Company owns more than fifty percent (50%) of the stock having voting power
to elect a majority of the Board of Directors of that corporation or
partnership. "Subsidiary" also includes any partnership in which the Company or
one of its subsidiaries is a general partner or owns more than fifty percent
(50%) of the units of limited partnership.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants for itself as follows:
Section 4.1. REQUISITE POWER AND AUTHORITY. Purchaser has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and to carry out its provisions. All action on
Purchaser's part required for the lawful execution and delivery of this
Agreement has been or will be effectively taken prior to the Closing Date. Upon
execution and delivery, this Agreement will be a valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting
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enforcement of creditors' rights and (ii) as limited by the application of
general principles of equity.
Section 4.2. CONSENTS. All consents, approvals, orders, authorizations
or registration, qualification, designation, declaration or filing with any
governmental or banking authority on the part of Purchaser required in
connection with the consummation of the transactions contemplated in this
Agreement have been or shall have been obtained prior to and be effective as of
the Closing.
Section 4.3. INVESTMENT REPRESENTATIONS. Purchaser understands that the
Purchased Stock has not been registered under the Act. Purchaser also
understands that the Purchased Stock is being offered and sold pursuant to an
exemption from registration contained in the Act based in part upon Purchaser's
representations contained in this Agreement. Purchaser hereby represents and
warrants as follows:
(A) RESTRICTED STOCK. Purchaser understands that the Purchased
Stock has not been registered under the Act, and the Company has no present
intention no registering the Purchased Stock. Purchaser understands that, it has
no registration rights with respect to the Purchased Stock, except as set forth
in Article 8 hereof.
(B) PURCHASER BEARS ECONOMIC RISK. Purchaser is in a position to
bear the economic risk of this investment indefinitely unless the Purchased
Stock is registered pursuant to the Act, or an exemption from registration is
available. Purchaser also understands that, even if available, such exemption
may not allow Purchaser to transfer all or any portion of the Purchased Stock,
if any, under the circumstances, in the amount or at the times Purchaser might
propose.
(C) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Purchased Stock for its own account for investment and not with a view toward
its distribution.
(D) PURCHASER CAN PROTECT ITS OWN INTERESTS. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transaction contemplated in this Agreement. Purchaser is not a corporation or
partnership specifically formed for the purpose of consummating this
transaction.
(E) ACCREDITED INVESTOR. Purchaser qualifies as an "accredited
investor," as such term is defined in Regulation D under the Act.
(F) ACCESS TO INFORMATION. Purchaser has been given access to all
Company documents, records, and other information, has received physical
delivery of all those which it has requested, and has had adequate opportunity
to ask questions of, and receive
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answers from, the Company's officers, employees, agents, accountants and
representatives concerning the Company's business, operations, financial
condition, assets, liabilities and all other matters relevant to its investment
in the Purchased Stock. Such access to information and any investigation
undertaken by Purchaser shall not constitute a waiver of any representations and
warranties of the Company hereunder.
Section 4.4. RESTRICTIVE LEGEND.
(A) Each certificate representing Purchased Stock shall (unless
otherwise permitted by the provisions of this Agreement) be stamped or otherwise
imprinted with a legend substantially in the form of the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER ANY FEDERAL OR STATE SECURITIES
LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED,
OR OTHERWISE TRANSFERRED UNLESS SO REGISTERED OR QUALIFIED OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION
EXISTS. THE AVAILABILITY OF ANY EXEMPTION FROM REGISTRATION OR
QUALIFICATION MUST BE ESTABLISHED BY AN OPINION OF COUNSEL FOR
THE SHAREHOLDER, WHICH OPINION AND COUNSEL MUST BE REASONABLY
SATISFACTORY TO THE COMPANY.
(B) Purchaser hereby consents to the restrictions contained above
and to the notation of "stop-transfer" restrictions in the Company's stock
transfer books relative to its holdings and to assist in the enforcement of the
limitations set forth herein.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as provided in the Schedule of Exceptions attached hereto as
Exhibit A or as otherwise disclosed in this Agreement or any of the Exhibits
attached hereto, the Company represents and warrants to Purchaser as follows:
Section 5.1. CORPORATE ORGANIZATION. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware, with perpetual corporate existence; and has full power and authority
and legal right to conduct its business as presently conducted. The Company is
duly qualified to do business in Colorado as a foreign corporation. The Company
is not required to be licensed or qualified to transact business in any
jurisdiction other than the States of Delaware and Colorado.
Section 5.2. AUTHORIZATION; NO BREACH. The Company has full power,
authority, and legal right to execute and deliver, and to perform and observe
the provisions of, this Agreement. This Agreement has been duly authorized,
executed, and delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable in accordance with its terms except (i) as
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limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights and
(ii) as limited by the application of general principles of equity.
Section 5.3. CAPITALIZATION.
(A) Authorized and Issued. As of the Closing Date, the authorized
and issued capitalization of the Company will consist of:
(1) PREFERRED STOCK. One Thousand (1,000) shares of
preferred stock with par value of one cent ($0.01) per share, none of which was
outstanding prior to the Closing.
(2) COMMON STOCK. Five Thousand (5,000) shares of
common stock, $.01 par value, of which 1,454.44 shares are outstanding, duly and
validly issued, fully paid, and nonassessable.
(B) NO OTHER RIGHTS OUTSTANDING. Except as disclosed in or
contemplated by this Agreement or Exhibit A attached hereto, there are no other
outstanding subscriptions, warrants, options, conversion privileges, rights of
first refusal, or other rights or agreements (whether or not presently
exercisable by their respective terms) providing for the purchase, issuance or
sale of any shares of capital stock of the Company or any preemptive or
contractual rights with respect to issuance of such capital stock.
Section 5.4. FINANCIAL STATEMENTS. The Company has furnished to
Purchaser an unaudited balance sheet of the Company as at June 30, 1992 and the
related statement of income and accumulated deficit for the fiscal year then
ended, together with a compilation report thereon by Xxxxxx X. Xxxxx Company,
P.C., and an unaudited balance sheet of the Company as at May 31, 1993 and the
related statement of income and accumulated deficit for the eleven months ended
May 31, 1993. All such financial statements, including the schedules thereto,
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except that the financial statements omit the
statement of cash flows and substantially all of the footnote disclosures
required by generally accepted accounting principles. Such financial statements
fairly present in all material respects the financial conditions and results of
operations of the Company at the dates and for the periods indicated. The
Company has suffered no Material Adverse Event since May 31, 1993.
Section 5.5. OUTSTANDING INDEBTEDNESS. The Company does not have any
material liabilities or obligations, absolute or contingent. The Company has
performed in all material respects all Obligations heretofore required to be
performed by it and is not in default under, or in breach of, or in receipt of
any claim of default under or breach of, any material agreement. The Company
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has no present expectation or intention of not performing in all material
respects all such obligations and it has no knowledge of any breach or
anticipated breach by other parties. The Company is not a party to any contract
or commitment which, if properly performed by all parties thereto in accordance
with the terms thereof, could constitute a Material Adverse Event affecting the
Company.
Section 5.6. COMPLIANCE. The Company is not in violation of any term of
its Certificate of Incorporation, as amended, any directors or shareholders
resolutions, or Bylaws, or in violation in any material respect, either in any
case or in the aggregate, of any mortgage, indenture, contract, agreement,
instrument, judgment, decree, order, statute, rule or regulation applicable to
the Company. The Company has conducted its business, in compliance with, and is
currently in compliance with, all applicable laws, regulations, orders,
judgments and decrees except for such non-compliances, if any, which in the
aggregate would not have a material adverse effect on the business, assets,
operations or financial condition of the Company. The execution and delivery of
this Agreement by the Company and the consummation of the transactions
contemplated hereby (a) will not violate any provision of the Certificate of
Incorporation or By-Laws of the Company or any resolutions of the Company's
Board of Directors or stockholders, (b) will not violate any statute, rule,
regulation, order or decree of any governmental entity by which the Company or
any of its properties or assets is bound and (c) will not result in a violation
or breach of, or constitute a default under, any material license, franchise,
permit, indenture, agreement or other instrument to which the Company is a party
or by which the Company or any of its assets or properties is bound.
Section 5.7. TITLE TO PROPERTY. Except for leased property listed in
Exhibit A, the Company has good and marketable title to all tangible personal
property, Proprietary Rights, and other assets used in or necessary to the
operation of its business. Such properties and assets are not subject to any
material liens, mortgages, pledges, encumbrances or charges of any kind except
liens for current taxes and assessments not delinquent. All leases by which the
Company leases real or personal property are in good standing, are valid and
effective in accordance with their respective terms, and the Company enjoys
quiet enjoyment under all such leases. All property owned or used by the Company
is in good condition and repair. The Company has complied in all material
respects with all environmental laws and regulations.
Section 5.8. MATERIAL CONTRACTS AND COMMITMENTS. The Company has no
material contracts (including without limitation, any employee benefit plans),
mortgages, agreements, and instruments, other than this Agreement and those
listed in the Exhibit A attached hereto.
Section 5.9. NO PENDING LITIGATION OR PROCEEDINGS. Except as listed in
Exhibit A, there are no actions, suits, investigations or
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proceedings (whether or not purportedly on behalf of the Company) pending,
affecting or, to the best of the Company's knowledge, threatened against the
Company, before or by any governmental instrumentality, domestic or foreign, or
any court, arbitrator or grand jury. The Company is not in default with respect
to any judgment, order, demand, or regulation of any court, arbitrator, grand
jury or of any governmental agency. No event has occurred nor does any condition
exist on the basis of which any litigation, proceeding or investigation might
properly be instituted. Neither the Company nor, to the best knowledge of the
Company, any officer of the Company, is in default with respect to any order,
writ, injunction, decree, ruling or decision of any court, commission, board or
other government agency which default or defaults might constitute, either in
any case or in the aggregate, a Material Adverse Event as to the Company or any
of its properties or assets. The foregoing sentences include, without limiting
their generality, actions pending or threatened (or any basis therefor known to
the Company) involving the prior employment of any of the Company's officers or
employees or their use in connection with the Company Is business of any
information or techniques allegedly proprietary to any of their former
employers.
Section 5.10. BROKERS AND FINDERS. In the event of Closing of the stock
purchase contemplated under this Agreement, the Company will be obligated to pay
cash finder's fees to each of Daiwa America Strategic Advisors Corporation and
Xxxxxx Xxxxxxx & Associates. Except for the foregoing parties, the Company has
not retained and is under no obligation to pay any investment banker, broker, or
finder in connection with the transactions contemplated by the Agreement.
Section 5.11. NO REGISTRATION RIGHTS OUTSTANDING. The Company is not
under any obligation to register any of its presently outstanding securities or
any of its securities which may be issued in the future.
Section 5.12. THE BUSINESS PLAN. The Business Plan of the Company dated
April 20, 1992, annexed hereto as Exhibit C, as amended and supplemented by the
additional information contained in Exhibit C, fairly and accurately summarizes
in all material respects the Company's current plans with respect to the conduct
of its business.
Section 5.13. REPRESENTATIONS TRUE AND CORRECT. This Agreement and the
Exhibits attached hereto do not contain any untrue statement of a material fact
or omit any material fact necessary in order to make the statements contained
herein and therein not misleading. Except for general economic or industry
conditions, there is no information known to the Company which has not been
disclosed in this Agreement or any of its Exhibits which materially and
adversely affects, or in the future may (so far as the Company can reasonably
foresee) materially and adversely affect, the business, properties, assets or
condition, financial or other, of the Company.
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Section 5.14. RELATED PARTIES. To the best knowledge of the Company, no
officer, director or key employee of the Company, or of any related party of any
such person, has, either directly or indirectly, (i) an interest in any
corporation, partnership, firm, or other person or entity which furnishes or
sells services or products which are similar to or compete with those furnished
or sold by the Company, or (ii) a beneficial interest in any contract or
agreement to which the Company is a party or by which it may be bound. For
purposes of this Section there shall be disregarded any interest which arises
solely from the ownership of less than two percent (2%) equity interest in a
corporation whose stock is regularly traded on any national securities exchange
or in the over-the-counter market.
Section 5.15. EMPLOYEES. To the best knowledge of the Company, no
employee of the Company is in violation of any term of any employment contract,
patent disclosure agreement, or any other contract or agreement with any Person
due to the relationship of any such employee with the Company and the nature of
the business now conducted or to be conducted by the Company. No officer or, to
the Company's knowledge, employee of the Company is a party to or bound by any
agreement, contract or commitment, or subject to any restrictions, particularly
but without limitation in connection with any previous employment of any such
person, which either in any case or in the aggregate materially and adversely
affects, or in the future may (so far as the Company can reasonably foresee)
materially and adversely affect, the business or operations of the Company or
the right of any such person to participate in the affairs of the Company. To
the best knowledge of the Company, no officer or key employee of the Company has
any present intention of terminating his employment with the Company and the
Company has no present intention of terminating any such employment. All
employees of the Company have executed a Confidential Information, Invention and
Copyright Agreement with the Company substantially in the form annexed hereto as
Exhibit D.
Section 5.16. PROPRIETARY RIGHTS.
(A) The Company owns or possesses adequate ownership of all
Proprietary Rights used in its business, and the same are sufficient to conduct
said business as it has been and is contemplated as being conducted. Exhibit A
contains a list of all patents and patent applications filed by the Company
covering Proprietary Rights used in the conduct of the Company's business.
(B) To the best knowledge of the Company, the current and
proposed operations of the Company do not conflict with nor infringe upon, and
no one has asserted to the Company that such operations conflict with or
infringe upon, any intangible property rights owned, possessed, or used by any
other Person.
(C) There are no facts which would result in any claim which
would have a material adverse effect on the respective condition (financial or
otherwise) of the business, net worth,
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assets, properties, or operations of the Company based on an assertion that it
does not have the unrestricted rights to use, free of any rights or claims of
others, all Proprietary Rights in the development, manufacture, use, sale, or
other disposition of any or all products or services presently being or
contemplated to be used, furnished, or sold in the conduct of business.
(D) There are no outstanding licenses or agreements of any kind
relating to Proprietary Rights, nor is the Company bound by or a party to any
licenses or agreements of any kind relating thereto, nor is the Company bound by
or a party to any licenses or agreements of any kind with respect to the
patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and proprietary rights of any Person.
(E) To the best knowledge of the Company, none of its employees
is obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of his
best efforts to promote the interests of the Company or that would conflict with
the Company's business as now conducted or presently proposed to be conducted.
To the best knowledge of the Company, except for inventions previously acquired
by the Company, it is not and will not be necessary for the Company to utilize
any inventions of any of its employees made while such employee was an employee
of another Person.
Section 5.17. TRANSACTIONS WITH AFFILIATES. There are no loans, leases
or other continuing transactions between the Company and any Person owning 5% or
more of the common stock of the Company or any member of such stockholder's
immediate family or any corporation or other entity controlled by such
stockholder or by a member of such stockholder's immediate family.
Section 5.18. SUBSIDIARIES. The Company does not own any shares of stock
or any other security or interest in any other Person.
Section 5.19. NO MATERIAL ADVERSE CHANGE. Except as set forth on Exhibit
A, since the date of inception of the Company there has been no occurrence with
respect to the Company that would constitute a Material Adverse Event and there
has been no material adverse change in the Company's financial condition,
operating results, business prospects, employee relations, customer relations or
otherwise.
Section 5.20. AGREEMENTS BETWEEN STOCKHOLDERS. Except as listed in
Exhibit A, there exist no agreements between any stockholder and the Company, or
to the best knowledge of the Company, between any of the stockholders of the
Company, relating to the Company or its capital stock, except for this
Agreement, the Company's Stock Purchase Plan and related common stock options,
and an Employee Stock Restriction Agreement with Xxxxxx X. Xxxxxx.
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Section 5.21. GOVERNMENTAL CONSENT. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or the other agreements contemplated hereby, or the
consummation by the Company of any of the transactions contemplated hereby or
thereby.
6. CONDITIONS TO PARTIES' OBLIGATIONS.
Section 6.1. CONDITIONS TO PURCHASER'S OBLIGATIONS. Purchaser's
obligation to purchase the Purchased Stock and to otherwise consummate the
transactions contemplated in this Agreement is subject to satisfaction of the
following conditions at the Closing.
(A) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The Company's
representations and warranties in this Agreement and in any certificate or
document delivered pursuant to this Agreement shall be true and correct on and
as of the Closing.
(B) OFFICER'S CERTIFICATE. Purchaser shall have received a
certificate in form acceptable to Purchaser dated as of the Closing Date and
signed by the President and by the Treasurer of the Company to the effect that
the conditions of Subsections 6.1(A) and (F) have been satisfied.
(C) GOOD STANDING CERTIFICATES. The Company shall have delivered
to counsel for Purchaser a good standing certificate for the Company for the
States of Delaware and Colorado.
(D) OPINION OF COMPANY COUNSEL. Purchaser shall have received an
opinion dated as of the Closing Date of Xxxxxxxxxx Black and Xxxx, counsel for
the Company, satisfactory to Purchaser and its counsel, to the effect that:
(1) The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
with perpetual corporate existence; is duly qualified and in good standing as a
foreign corporation under the laws of the State of Colorado; and has full power
and authority and legal right to conduct its business as presently conducted.
(2) The Company has full power, authority, and legal right
to execute and deliver, and to perform and observe the provisions of, this
Agreement and all other agreements and documents provided for in this Agreement
to which the Company is a party (the "Documents").
(3) The Documents have each been duly authorized,
executed, and delivered by the Company and constitute valid and binding
obligations of the Company enforceable in accordance with their respective terms
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of
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general application affecting enforcement of creditors' rights and (ii) as
limited by the application of general principles of equity.
(4) The execution, delivery, and performance of the
Documents by the Company and the offering, sale and issuance of the Purchased
Stock do not violate the terms of its Certificate of Incorporation, as amended,
directors' or shareholders' resolutions, or Bylaws of the Company.
(5) Immediately following consummation of all transactions
contemplated in the Agreement to be consummated at the Closing, the authorized
capital stock of the Company consists of One Thousand (1,000) shares of
preferred stock with par value of one cent ($0.01) per share, none of which is
outstanding; and Five Thousand (5,000) shares of one class of common stock of
$.01 par value per share, of which 1,639.63 shares are outstanding, duly and
validly issued, fully paid, and nonassessable. The shares of Purchased Stock of
the Company issued to Purchaser pursuant to this Agreement have been duly
authorized for issuance and are validly issued, fully paid, and nonassessable
shares of the common stock of the Company, and have been duly registered in the
names of Purchaser on the books of the Company. The form of stock certificate
for the Purchased Stock has been duly adopted by the Company and conforms to all
applicable legal requirements. Except as disclosed in the Agreement and Exhibit
A attached thereto, to our knowledge, there are no outstanding subscriptions,
options, warrants, rights of first refusal, or other rights with respect to the
purchase, issuance or sale of any capital stock of the Company.
(6) The offer, sale, and issuance of the Purchased Stock
in conformity with the terms of the Agreement constitute transactions exempt
from the registration requirements of the Securities Act.
(7) To the best of Counsel's knowledge and except as set
forth in this Agreement and the Exhibits attached to the Agreement, there are no
actions, proceedings, or investigations pending or threatened against the
Company or its properties which, either in any case or in the aggregate, might
result in any material adverse change in the business or financial condition of
the Company or any of its properties or assets or in any material impairment of
the right or ability of the Company to carry on its business as now conducted or
as proposed to be conducted, or in any material liability on the part of the
Company, and none which questions the validity of the Documents or any action
taken or to be taken in connection therewith.
(8) Without investigation for this purpose other than
reasonable inquiry of the Company's officers and directors, Counsel has become
aware of no facts which would lead it to believe that any employee of the
Company is in violation of any term of any employment contract, patent
disclosure agreement, or any other contract or agreement due to the relationship
of any such employee
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with the Company and the nature of the business now conducted or to be conducted
by the Company.
Such Counsel may base that portion of its opinion pertaining
to factual matters upon certificates or letters signed by the Company or
corporate officers of the Company, and may base that portion of its opinion
pertaining to the laws of any jurisdiction other than the United States and the
State of Colorado upon the opinion of counsel in such other jurisdiction,
provided copies of such certificates, letters, and opinions are furnished to
Purchaser with said opinion, and that Purchaser may rely on such certificates,
letters, and opinions.
(E) PROCEEDINGS AND DOCUMENTS SATISFACTORY. All documents and
proceedings incident to the transaction contemplated by this Agreement shall be
satisfactory in form and substance to Purchaser and their counsel. Purchaser
shall have received all documents or other evidence which Purchaser and its
counsel may have requested in connection with such transaction, including copies
of records of all corporate proceedings in connection with such transaction and
in compliance with the conditions set forth in this Section 6.1 in form and
substance satisfactory to Purchaser.
(F) CERTIFIED CHARTER AND BYLAWS. The Company shall have
delivered to counsel for Purchaser a copy of the Company's Certificate of
Incorporation, as amended, and Bylaws, which copies shall be certified by the
Secretary of the Company to be true and correct as of the Closing Date.
(G) DISTRIBUTION AGREEMENT; DEVELOPMENT AND MANUFACTURING
MEMORANDUM. Purchaser and the Company shall have entered into (i) a Distribution
Agreement substantially in the form of Exhibit E annexed hereto and (ii) a
Development and Manufacturing Memorandum substantially in the form of Exhibit F
annexed hereto.
Section 6.2. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The Company's
obligation to consummate the transactions contemplated in this Agreement is
subject to the satisfaction of the following conditions at the Closing:
(A) ACCURACY OF REPRESENTATIONS AND WARRANTIES. Purchaser's
representations and warranties herein or in any document delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(B) PROCEEDINGS SATISFACTORY. All corporate and other proceedings
in connection with the transactions contemplated by this Agreement and all
documents incident to it shall be satisfactory in form and substance to the
Company and its counsel, and the Company and its counsel shall have received all
such originals or other copies of such documents as they may reasonably request.
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Section 6.3. FAILURE OF CONDITIONS. In the event any of the conditions
set forth in Sections 6.1 or 6.2 are not satisfied and are not waived by the
appropriate party, this Agreement shall terminate and the parties shall be free
of any rights or obligations hereunder.
7. COVENANTS OF THE COMPANY.
The Company's covenants and obligations as set forth in this Article 7
shall continue in full force and effect so long as any of the Purchased Stock is
outstanding until the first to occur of: (i) the date on which the Company is
required to file a report with the SEC pursuant to Section 13(a) or (15) of the
Exchange Act, by reason of the Company's having registered any of its common
stock pursuant to Section 12(g) of the Exchange Act; (ii) the date on which the
Company consummates the sale of all or substantially all, of its assets; or
(iii) the effective date of a merger, reorganization or consolidation of the
Company (a "Merger") in which the holders of the outstanding voting securities
of the Company immediately prior to such Merger do not hold a majority of the
voting securities of the surviving entity outstanding immediately after such
Merger:
Section 7.1. OFFICE OR AGENCY MAINTAINED. The Company will maintain an
office in Colorado where Purchased Stock may be presented for exchange,
registration, or transfer.
Section 7.2. CORPORATE EXISTENCE. The Company will at all times
maintain, preserve, and renew its corporate existence and its rights, and comply
with all related laws applicable to the Company, but nothing contained in this
Section shall require the Company to maintain, preserve, or renew any right
which, in the opinion of the Board of Directors, is not necessary or desirable
in the conduct of the business of the Company; nor shall anything in this
Section require the Company to comply with any law so long as its validity or
applicability shall be contested in good faith.
Section 7.3. PROPERTIES MAINTAINED. The Company will, insofar as it is
not prevented by causes beyond its control, at all times maintain, preserve,
protect, and keep its property in good repair, working order, and condition. The
Company will make all repairs, renewals, replacements, extensions, additions,
betterments and improvements to its property as are necessary and proper from
time to time, so that the business may be conducted properly and efficiently at
all times, but nothing in this Section shall prevent the Company from selling,
abandoning, or otherwise disposing of any material asset or property, if, in the
opinion of the Board of Directors, such property is no longer of use in the
business of the Company, and such disposition is in the interest of the Company
and not disadvantageous to the holders of the Purchased Stock.
Section 7.4. INSURANCE. The Company will provide for itself insurance
against loss or damage of the kinds customarily insured against by corporations
similarly situated, with reputable insurers
13
or with the United States Government, in such amounts, with such deductibles as
shall be necessary for the Company not to become a coinsurer, and by such
methods as shall be adequate for companies of a similar size and character. The
Company will at all times similarly maintain, in full force and effect,
comprehensive general liability insurance against loss or damage to it for
bodily injury or death in or about any premises occupied by it, and liability
insurance against loss or damage to it, for bodily injury or death or injury to
property occurring by reason of its operation of any motor vehicle.
Section 7.5. TAXES, ASSESSMENTS AND OTHER CHARGES PAID. The Company will
duly pay and discharge, as they become due and payable, all taxes, assessments
and governmental and other charges, levies, or claims levied or imposed, which
if unpaid might become a lien or charge upon the franchises, properties, assets,
earnings, or business of the Company, but nothing contained in this Section
shall require the Company to pay and discharge any such tax, assessment, charge,
levy, or claim so long as the Company in good faith shall contest its validity
and shall set aside on its books adequate reserves therefor.
Section 7.6. INDEBTEDNESS PAID. The Company will pay punctually when due
and payable any indebtedness incurred or assumed by it. The Company will also
perform and observe the associated covenants, provisions, and conditions to be
performed and observed by the company, in connection with any mortgage, pledge,
security interest, or other lien existing at any time upon any of the assets of
the Company, but nothing contained in this Section shall require the Company to
pay any such indebtedness or to perform or observe any such covenants,
provisions, and conditions so long as the Company in good faith shall contest
any claim which may be asserted against it in respect of any such indebtedness
or of any such covenants, provisions, and conditions and shall set aside on its
books adequate reserves therefor.
Section 7.7. GOOD ACCOUNTING AND CORPORATE PRACTICE. The Company will at
all times maintain appropriate corporate records, including records of all
directors or shareholders meetings, minutes and all share transactions, and keep
proper books of record and account (including ledgers and order books) in which
full, true, and correct entries will be made of its transactions in accordance
with Good Accounting Practice.
Section 7.8. COMPLIANCE WITH LAWS. The Company will comply with all
applicable statutes, rules, regulations, orders, and restrictions of the United
States of America, foreign countries, states, and municipalities, and of any
governmental agency and instrumentality of the foregoing, and of any court,
arbitrator, or grand jury, applicable to the Company's business and assets,
except those being contested in good faith.
14
Section 7.9. INFORMATION RIGHTS.
(A) FINANCIAL STATEMENTS. The Company will furnish to Purchaser
certain financial statements (as set forth below) for so long as Purchaser owns
at least 50 shares of the Purchased Stock:
(1) As soon as practicable after the end of each fiscal
year, and in any event within 90 days thereafter; and
(2) As soon as practicable after the end of each fiscal
quarter of each fiscal year, and in any event within 45 days thereafter.
The financial statements so provided shall include consolidated balance sheets
of the Company as at the end of such period, consolidated statements of income
and surplus for that period, and consolidated statements of cash flow for the
Company for that period. The statements shall be prepared in accordance with
Good Accounting Practice and, in case of the fiscal year end statements, shall
be approved by the Company's Board of Directors.
(B) ANNUAL PLAN. For so long as Purchaser owns at least 50 shares
of Purchased Stock, the Company will also furnish to Purchaser, on or before
June 15 of each fiscal year, a preliminary Proposed Annual Plan and Operations
Budget as approved by the Board of Directors, which shall then be finalized
within ninety (90) days after the end of the fiscal year utilizing the final
results from the previous year. The Annual Plan and Operations Budget shall be a
working document, and shall be in any form chosen by the management of the
Company and acceptable to its Board of Directors.
(C) VISITATION RIGHTS. Subject to nondisclosure obligations with
respect to the Company's confidential information, Purchaser or its employees or
representatives, may from time to time reasonably request the right to visit and
inspect any of the properties of the Company, to examine and make extracts from
the books and records of the Company, and to discuss its affairs, finances and
accounts with its officers, directors, and independent accountants, all at
reasonable times and as often as may be reasonably requested, and the Company
shall comply with such requests. Subject to the same obligation, Purchaser shall
receive timely notice of, shall receive all material distributed in connection
with, and shall have the right to attend as an observer, all meetings of the
Board of Directors of the Company. This right shall apply to Purchaser only so
long as it owns at least 50 shares of Purchased Stock.
Section 7.10. TAXES AND INTEREST PAID BY THE COMPANY.
(A) TAXES. The Company shall pay, and save Purchaser harmless
against, all liability with respect to amounts payable as a result of any
documentary, stamp, use, or similar taxes which may be determined to be payable
in connection with the issuance and delivery of any of the Purchased Stock,
delivery and performance of
15
this Agreement, or any modification, amendment, or alteration of the terms of
any of the Purchased Stock.
(B) INTEREST. Provided that Purchaser promptly notifies the
Company of all claims made against it, the Company will pay any interest or
penalties resulting from nonpayment or delay in payment of any tax to be paid
under section 7.10(A) hereof, and any income taxes in respect of any
reimbursement by the Company for any of such taxes, interest or penalties.
Section 7.11. MATERIAL CONTRACTS. The Company will perform and observe
all material covenants and provisions of all material contracts to which it is
party. Nothing in this Section shall require the Company to perform or observe
any such covenant or provision so long as the Company shall in good faith
contest the validity, enforceability, or application to it of any such covenant
or provision.
Section 7.12. NEW DEVELOPMENTS. The Company shall cause all
technological developments, inventions, discoveries or improvements by the
Company's employees to be fully documented in accordance with the best
prevailing appropriate industrial professional standards, cause all key
employees and consultants of the Company to execute appropriate patent
assignment agreements to the Company and, where possible and appropriate, to
file and prosecute United States and foreign patent applications relating to and
protecting such developments on behalf of the Company.
Section 7.13. MATERIAL ADVERSE EVENTs. The Company shall promptly (but
in any event within fifteen (15) days) after the Company's discovery of any
Material Adverse Event affecting the Company, deliver a detailed statement to
Purchaser specifying the nature and period of existence of such Event and what
actions (if any) the Company has taken and/or proposes to take with respect
thereto. For purposes of this Section 7.13, a Material Adverse Event shall
include, without limitation: (i) the filing of any litigation which, if
determined adversely, would have a material effect on the business, financial
condition or prospects of the Company; (ii) the discovery that the Company is
not in compliance with any material provision of this Agreement or its
Certificate of Incorporation, (iii) any notices of material default received by
the Company arising out of any of the Company's banking relationships or
arrangements; (iv) the existence of any dispute between the Company and its
accountants concerning any material item relating to the Company's financial
statements; and (v) the cancellation of a material order or the loss of a
material customer.
Section 7.14. USE OF PROCEEDS. The proceeds received from the issuance
of Purchased Stock, net of the finder's fees referenced in Section 5.9 above,
will be used for working capital and general corporate purposes.
Section 7.15. RIGHT TO PURCHASE ADDITIONAL STOCK. Until such time as the
Company shall have effected a public offering of its
16
Common Stock pursuant to the Act, the Company shall afford Purchaser the right
to purchase, in connection with any future issuances of its Common Stock (or
securities convertible into or exchangeable or exercisable for its Common Stock)
(a "Future Stock Sale"), on the same terms as afforded to other investors, up to
such amounts of the offered securities as will enable Purchaser to maintain a
ten percent (10%) interest in the Common Stock of the Company on a fully diluted
basis. The Company shall give Purchaser written notice of the terms and
provisions of any Future Stock Sale, and Purchaser shall have 30 days from the
date of such notice within which to exercise the purchase right granted hereby.
If the Company does not complete the Future Stock Sale within 45 days following
the lapse of the foregoing 30 day purchase right period, the Company shall again
comply with the provisions of this section 7.15.
Section 7.16. BOARD REPRESENTATION. At any time that (a) Purchaser owns
at least ten percent (10%) of the Company's outstanding common stock or (b)
either (i) a Distribution Agreement between the Company and Purchaser
substantially in the form of Exhibit E hereto or (ii) a definitive agreement
regarding the development and manufacture of a specific product by the Company
for Purchaser executed pursuant to the Development and Manufacturing Memorandum
(or any supplement or amendment thereto or replacement therefor) remains in
effect, the Company shall, at Purchaser's request, cause one designee of
Purchaser to be elected to and serve upon the Company's Board of Directors.
8. REGISTRATION RIGHTS
Section 8.1. DEFINITIONS.
As used in this Article 8:
(A) the terms "register", "registered" and registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act (and any post-effective amendments filed or required to
be filed) and the declaration or ordering of effectiveness of such registration
statement;
(B) the term "Registrable Securities" means the Purchased Stock issued
to Purchaser under this Agreement, any Common Stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the Purchased Stock, and any other shares of Common Stock of the
Company that are acquired by Purchaser from the Company;
(C) the term "Holder" shall mean any holder of Registrable Securities;
(D) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Act;
17
(E) "Registration Expenses" shall mean all expenses incurred by the
Company in compliance with Section 8.2 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company); and
(F) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for each of the Holders.
Section 8.2. COMPANY REGISTRATION.
(A) If the Company shall determine to register any of its securities
either for its own account or for the account of a security holder exercising a
demand registration right, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a transaction of the type
described in Rule 145 under the Act, or any successor to Rule 145, or a
registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, the Company will:
(1) promptly give to each of the Holders a written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such Registrable Securities under the applicable blue sky or
other state securities laws); and
(2) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made by the Holders within 20 days after receipt of the written notice
from the Company described in clause (1) above, except as the number of such
Registrable Securities may be limited by Section 8.2 (B) below. Such written
request may specify all or a part of the Holders' Registrable Securities.
(B) UNDERWRITING. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise each of the Holders as a part of the written notice given pursuant to
Section 8.2 (A) (1). In such event, the right of each of the Holders to
registration pursuant to this Section 8.2 shall be conditioned upon such
Holders' participation in such underwriting and the inclusion of such Holders'
Registrable Securities in the underwriting to the extent provided herein. The
Holders shall (together with the Company and any other shareholders distributing
their securities
18
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for underwriting by the
Company. Notwithstanding any other provision of this Section 8.2, if the
underwriter determines that marketing factors require a limitation on the number
of shares to be underwritten, the underwriter may (subject to the allocation
priority set forth below) exclude from such registration and underwriting some
or all of the Registrable Securities which would otherwise be underwritten
pursuant hereto. The Company shall so advise all Holders of securities
requesting registration, and the number of securities that are entitled to be
included in the registration and underwriting shall be allocated in the
following manner: the number of shares that may be included in the registration
and underwriting by each of the Holders and the other Persons requesting to
participate in such registration (other than the Company, in the case of a
registration for the account of the Company, and other than securities held by
holders who by contractual right demanded such registration) shall be reduced,
on a pro rata basis, by such minimum number of shares as is necessary to comply
with such limitation. If any of the Holders or any Person disapproves of the
terms of any such underwriting, he or it may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
(C) NUMBER. Each of the Holders shall be entitled, pursuant to this
Section 8.2, to have his or its shares included in a maximum of three
registrations which have been declared or ordered effective.
Section 8.3. EXPENSES OF REGISTRATION.
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Article 8 shall be borne by the
Company, and all Selling Expenses shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of their shares so
registered.
Section 8.4. REGISTRATION PROCEDURES.
In the case of each registration effected by the Company pursuant to
this Article 8, the Company will keep the Holders, as applicable, advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will:
(A) Keep such registration effective for a period of 120 days or
until the Holders, as applicable, have completed the distribution described in
the registration statement relating thereto, whichever first occurs; provided,
however, that (i) such 120-day period shall be extended for a period of time
equal to the period during which the Holders, as applicable, refrain from
19
selling any securities included in such registration in accordance with
provisions in Section 8.10 hereof;
(B) Furnish such number of prospectuses and other documents incident
thereto as each of the Holders, as applicable, from time to time may reasonably
request; and
Section 8.5. INDEMNIFICATION.
(A) The Company will indemnify each of the Holders, as applicable, each
of its officers directors and partners, and each person controlling each of the
Holders, with respect to each registration which has been effected pursuant to
this Section 8, and each underwriter, if any, and each Person who controls any
underwriter, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Act or any
statute, rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each of the
Holders, each of its officers, directors and partners, and each Person
controlling each of the Holders, each such underwriter and each Person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to any Holder or underwriter or person controlling such Holder or
underwriter to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by such Holder or underwriter or
Person controlling such Holder or underwriter and stated to be specifically for
use therein.
(B) Each of the Holders will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each Person who controls the Company or such
underwriter within the meaning of the Act and the rules and regulations
thereunder, each other shareholder having securities included in such offering,
and each of their officers, directors, and partners, and each Person controlling
such other shareholder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
20
registration statement, prospectus, offering circular or other document made by
such Holder, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading by such Holder, and will reimburse the Company and such other
shareholders, directors, officers, partners, Persons, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use therein;
provided, however, that the obligations of each of the Holders hereunder shall
be limited to an amount equal to the proceeds to such Holder of securities sold
as contemplated herein.
(C) Each party entitled to indemnification under this Section 8.5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom provided that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party's expense (unless (i) the employment of counsel by such
Indemnified Party has been authorized by the Indemnifying Party, (ii) the
Indemnified Party shall have reasonably concluded that there may be a conflict
of interest between the Indemnifying Party and the Indemnified Party in the
defense of such action, in each of which cases the fees and expenses of counsel
shall be at the expense of the Indemnifying Party), and provided further that
the failure of any Indemnified Party to give notice as provided herein, if
prejudicial to the Indemnifying Party's ability to defend such action, shall
relieve the Indemnifying Party of its obligations under this Article 8. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(D) If the indemnification provided for in this Section 8.5 is
held by a court of competent jurisdiction to be unavailable to
21
an Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions which resulted
in such loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(E) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in a negotiated
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall be controlling.
Section 8.6. INFORMATION BY THE HOLDERS.
Each of the Holders holding securities requested to be included in any
registration, shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Article
8.
Section 8.7. RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of the restricted
securities to the public without registration, the Company agrees to:
(A) Make and keep public information available as those terms are
understood and defined in Rule 144 under the Act, at all times from and after
ninety (90) days following the effective date of the first registration under
the Act filed by the Company for an offering of its securities to the general
public;
(B) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the Act and
the Exchange Act at any time after it has become subject to such reporting
requirements; and
(C) So long as the Investor owns any Registrable Securities, furnish to
the Investor upon request, a written statement by the
22
Company as to its compliance with the reporting requirements of Rule 144 (at any
time from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed as the Investor may reasonably request in availing itself of any rule
or regulation of the commission allowing the Investor to sell any such
securities without registration.
Section 8.8. "MARKET STAND-OFF" AGREEMENT.
Each of the Holders shall agree, if requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, not to sell or
otherwise transfer or dispose of any Common Stock (or other securities) of the
Company held by such Holder during the one hundred eighty (180) day period
following the effective date of a registration statement of the Company filed
under the Act, provided that such agreement only applies to the first such
registration statement of the Company which includes securities to be sold on
the Company's behalf to the public in an underwritten offering.
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop-transfer instructions with
respect to the shares (or other securities) subject to the foregoing restriction
until the end of said one hundred eighty (180) day period.
Section 8.9. ASSIGNABILITY OF REGISTRATION RIGHTS.
The Registration Rights granted pursuant to this Article 8 shall be
assignable at the option of each of the Holders, in whole or in part, to any
transferee of Registrable Securities (i) so long as such transferee owns at
least 50% of the Registrable Securities originally purchased by Purchaser from
the Company; or (ii) if the transferee is an affiliate of the transferring
Holder; provided that the Company is given written notice by such Holder at the
time or within a reasonable period of time after said transfer, stating the name
and address of such transferee or assignee and identifying the securities with
respect to which such registration rights are assigned.
Section 8.10. SUBSEQUENT GRANT OF REGISTRATION RIGHTS. If the Company
should subsequent to the date of this Agreement grant registration rights to any
Person holding 185 or fewer shares of Common Stock or securities convertible or
exercisable therefor (appropriately adjusted for stock splits or
recapitalizations occurring after the date hereof), the Company shall so advise
Purchaser in writing, setting forth the terms and provisions of the registration
rights so granted. If Purchaser believes that the registration rights so granted
are more favorable than the registration rights granted to
23
Purchaser by this Article 8, then Purchaser shall be entitled to the benefit of
such subsequent registration rights in lieu of the registration rights granted
hereby.
9. MISCELLANEOUS.
Section 9.1. CONFIDENTIAL INFORMATION. All copies of financial
information, marketing and sales information, pricing, marketing plans, business
plans, financial and business projections, manufacturing processes and
procedures, formulae, methodologies, inventions, product designs, product
specifications and drawings, and other confidential and/or proprietary
information of the Company disclosed to Purchaser in the course of negotiating
this Agreement or under or pursuant to this Agreement (the "Company Confidential
Information") will be held in confidence and not used or disclosed by Purchaser
or any of its employees, affiliates or agents. It is agreed that Company
Confidential Information will not include information that: (a) is proven to
have been known to Purchaser prior to receipt of such information from the
Company; (b) is disclosed by a third party having the legal right to disclose
such information and who owes no obligation of confidence to the Company; (c) is
now, or later becomes part of the general public knowledge or literature in the
art, other than as a result of a breach of this Agreement by Purchaser. This
provision shall survive the termination of this Agreement for any reason.
Section 9.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Company in this Agreement and in
certificates or other documents delivered pursuant hereto shall survive for a
period of two (2) years following the Closing Date.
Section 9.3. ASSIGNABILITY OF RIGHTS. The Company may not assign any of
its rights under this Agreement without Purchaser's written consent. Subject to
compliance with Section 4.4 hereof, the provisions of this Agreement which are
for Purchaser's benefit as a purchaser or holder of Purchased Stock are also for
the benefit of, and enforceable by any subsequent holder of such Purchased Stock
who is not a competitor of the Company.
Section 9.4. COMMUNICATIONS AND NOTICES. Except as otherwise provided
for in this Agreement, all communications and notices provided for in this
Agreement shall be in writing. They shall become effective when mailed (postage
paid, certified mail, return receipt requested), sent by air courier, hand
delivered (including telecopy or courier service) receipted by the addressee, to
the address as indicated on the signature pages hereto, or to such other address
and for such attention, as any party may from time to time designate by notice
duly given in accordance with the provisions of this Section 9.4.
Section 9.5. LAW GOVERNING. This Agreement shall be construed in
accordance with and governed by the laws of the State of Colorado.
24
Section 9.6. SUBSEQUENT INSTRUMENTS AND ACTS. The parties agree that
they will execute any further instruments and perform any acts that may become
necessary to carry out this Agreement.
Section 9.7. SEVERABILITY. If any term, provision, covenant, or
condition of this Agreement, or its application to any person or circumstance,
shall be held by a court of competent jurisdiction to be invalid, unenforceable,
or void, the remainder of this Agreement and such term, provision, covenant, or
condition as applied to other persons or circumstances shall remain in full
force and effect.
Section 9.8. ENTIRE AGREEMENT: AMENDMENTS.
(A) This Agreement and the other Documents delivered pursuant
hereto constitutes the full and entire understanding and agreement among the
parties with respect to the subject hereof and thereof.
(B) This Agreement may not be amended orally. An amendment to
this Agreement, or of any supplement hereto, and of the rights and obligations
of the holders of the Purchased Stock, may be made with the written consent of
the Company and of the holders of not less than a majority of the shares of
Purchased Stock.
Section 9.9. GENDER, NUMBER, AND TENSE. Throughout this Agreement, as
the context may require, the masculine gender includes the feminine and neuter,
and the neuter gender includes the masculine and feminine.
Section 9.10. 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.
Section 9.11. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 9.12. DELAYS, OMISSION, AND WAIVERS. No delay or omission to
exercise any right, power or remedy accruing to the Company or to Purchaser upon
any breach or default of any party hereto under this Agreement, will impair any
such right, power or remedy of the Company or Purchaser nor will it be construed
to be a waiver of any such breach or default, or an acquiescence therein, nor
will any similar breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring; nor will any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of the Company or Purchaser of any breach or default under
this Agreement or any waiver on the part of the Company or
25
Purchaser of any provisions or conditions of this Agreement, must be in writing
and will be effective only to the extent specifically set forth in such writing.
No waiver by Purchaser (or transferees thereof) of any provision of this
Agreement will be effective without a written consent signed by Purchaser (or
transferee thereof) holding at least a majority of the Purchased Stock.
Section 9.13. PURCHASER'S REMEDIES. No waiver of any breach of this
Agreement shall constitute or be construed as a waiver by Purchaser of any
subsequent breach by the Company. No remedy herein conferred upon Purchaser is
intended to be exclusive of any other remedy herein or as provided by law, but
each shall be cumulative and shall be in addition to every other remedy set
forth in this Agreement, the Exhibits, or existing at law, in equity, or by
statute. The parties specifically acknowledge that under certain circumstances
the parties may be entitled to specific performance and/or injunctive relief
where without such remedies the damage to the injured parties may be irreparable
and money damages inadequate. Moreover, in any suit between or among the parties
hereto for such breach of any of the provisions hereof, the prevailing party in
such suit shall be entitled to receive from the breaching party, reasonable
attorneys' fees and disbursements incurred in the prosecution of such suit.
Section 9.14. STOCK SPLITS, RECAPITALIZATION, ETC. Any right,
obligation, covenant or agreement contained in this Agreement which is subject
to or conditioned upon a specific number of shares of Purchased Stock shall be
appropriately adjusted for any stock splits, stock dividends, or
recapitalization of the capital stock of the Company occurring after the date
hereof.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
THE COMPANY:
REAADS MEDICAL PRODUCTS, INC.,
a Delaware Corporation
By: /S/ XXXX X. XXXXX
-------------------------------
Xxxx X. Xxxxx
President
Address:
00000 Xxxxx Xx., Xxx. 000
Xxxxxxxxxxx, XX 00000
Telefax No.: 000-000-0000
AMOUNT
PURCHASER: PURCHASED
CHUGAI PHARMACEUTICAL CO. LTD. $500,013.00
185.19 Purchased Shares
By: /S/ XXXXX XXXXXXXX
--------------------------------------
Xxxxx Xxxxxxxx
President
Address:
0-0, Xxxxxxxx 0-Xxxxx
Xxxx-xx, Xxxxx 000, Xxxxx
Attention: /S/ DIRECTOR, LEGAL DEPARTMENT
--------------------
Telefax No.: 00-0000-0000
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
27
EXHIBITS CHECKLIST
EXHIBIT TITLE
A Schedule of Exceptions
B Stock Purchase Plan and Form of Stock Option Agreement
C Business Plan and supplement thereto
D Form of Confidential Information, Invention and Copyright
Agreement
E Distribution Agreement
F Development and Manufacturing Memorandum
EXHIBIT A
SCHEDULE OF EXCEPTIONS
SECTION 5.3 CAPITALIZATION. The Company has outstanding and unexercised common
stock options covering 205 shares of common stock.
SECTION 5.8 MATERIAL CONTRACTS AND COMMITMENTS. The Company is party to the
following material agreements:
I. LICENSE, DISTRIBUTION AND OEM AGREEMENTS.
Pursuant to a License Agreement dated October 19, 1990, the
Company has granted to Sanofi Diagnostics a perpetual,
non-exclusive worldwide license to use the REAADS technology to
manufacture and market certain autoimmune products. Sanofi has
paid certain monies to the Company to date, and continues to pay
a royalty of 5% of net sales until December 31, 1995 or until
total aggregate royalties equal $1.5 million.
OEM agreements have been executed with BioPool International
(U.S./Canada), Alpha Biotech S.P.A. [formerly known as
Schiapparelli Diagnostici Ismunit (Italy)], Schiapparelli
Biosystems B.V. (ElectroNucleonics International) (the
Netherlands), Medic (Italy), IDS (United Kingdom), Chromogenix
(formerly Kabi Diagnostica of Sweden), Sigma Diagnostics (U.S.),
Cambridge Life Sciences plc, and Helena Laboratories (U.S.).
Distributor agreements for marketing the REAADS-labeled product
line have also been executed with Alpha Biotech S.P.A.,
Immuno-Mex (Mexico), Tsu Sheng (Taiwan), Karnataka (India), Zotal
(Israel), Bond Bio-Tech (United Kingdom), Anagen/Promed (United
Kingdom), Cormedica S.A. (Spain), LanganBach Services (Ireland),
Xxxxx Diagnostic (Hungary), and Labor and Technik (Germany).
The Company also has executed a letter of intent dated July 28,
1993 with Helena Laboratories Corporation regarding the
negotiation of a Product Development Agreement concerning
coagulation/vascular disease detection products.
II. EMPLOYMENT AGREEMENTS.
Employment Agreement with Xx. Xxxx X. Xxxxx dated December 31,
1990, covering the three-year period ending December 30, 1993.
Employment Agreement with Xxxxxx X. Xxxxxx dated December 30,
1990, covering the three-year period ending December 31, 1993.
Employment Agreement with Xxxxxxxx Xxxxxxx dated February 1,
1993, covering the three-year period ending January 31, 1996.
III. OTHER MATERIAL AGREEMENTS.
Purchase Agreement, dated July 19, 1990, between the Company and
Biostar Medical Products, Inc., pursuant to which the Company is
obligated to pay an aggregate of $600, 000 in royalties to
Biostar at the rate of 5% of net sales of products based upon the
technology purchased by the Company from Biostar under the
Purchase Agreement. An aggregate of $122,698.68 in royalties have
been paid to Biostar through May 31, 1993.
Lease Agreement between the Company and Stream Associates, Inc.
(d/b/a MetroTech Centre Office Park), dated March 13, 1991,
covering the Company's headquarters facilities located at 00000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000.
Lease Agreement between the Company and Stream Associates, Inc.
(d/b/a MetroTech Centre Office Park), dated April 7, 1992,
covering a portion of the Company's research and manufacturing
space.
SECTION 5.9 NO PENDING LITIGATION OR PROCEEDINGS. The Company presently is in
discussions with Medix Biotech, Inc., regarding a dispute over charges for
products supplied by Medix. Medix and the Company have verbally agreed to a
settlement of $30,000.00, pending drafting of a mutually acceptable settlement
agreement and release.
SECTION 5.14 RELATED PARTIES. The Company has an arrangement with Xxxxxx X.
Xxxxxx, its vice president and a stockholder, pursuant to which Xx. Xxxxxx will
factor (i.e., finance) Company receivables at a rate more favorable than the
Company can obtain at other commercial factoring organizations. The Company also
maintains a relationship with a commercial factor.
SECTION 5.16(D) PROPRIETARY RIGHTS. Royalty arrangement with Biostar Medical
Products, Inc. referenced in Section 5.8 above.
Please see the License, Distribution and OEM Agreements referenced in Section
5.8 above.
Set forth below is a listing of patents and patent applications pertaining to
Proprietary Rights used in the conduct of the Company's business, specifically
diagnostic testing of autoimmune antibodies, anti-dsDNA antibodies, and
anti-cardiolipin:
U.S. Patent No. 5,183,735
Issued February 2, 1993
"Method and Diagnostic Test Kit For Detection of Anti-dsDNA Antibodies"
U.S..Application Serial No. 07/743,304
Filed October 23, 1991
"Method and Diagnostic Test Kit For Detection of Anti-Cardiolipin"
Status: On appeal to Board of Patent Appeals & Interferences
EPO Patent Application No. 90904518.9
Filed February 26, 1990
"Method and Diagnostic Test Kit For Detection of Anti-Cardiolipin"
Status: Awaiting substantive examination
U.S. Application Serial No. 07/743,305
Filed October 23, 1991
"Method and Diagnostic Test Kit For Detection of Autoimmune Antibodies"
Status: On appeal to to Bord of Patent Appeals & Interferences
EPO Patent Application No. 90904577.5
Filed February 26, 1990
"Method and Diagnostic Test Kit For Detection of Autoimmune Antibody"
Status: Awaiting substantive examination
REAADS MEDICAL PRODUCTS, INC.
OFFICERS' CERTIFICATE
The undersigned, Xxxx X. Xxxxx and Xxxxxxxx X. Xxxxxxx, certify on
behalf of Reaads Medical Products, Inc. as follows:
1. Xxxx X. Xxxxx is the duly elected and acting President of Reaads
Medical Products, Inc., a Delaware corporation (the "Company") and Xxxxxxxx X.
Xxxxxxx is the duly elected and acting Treasurer of the Company.
2. Each of the representations and warranties of the Company made in
the Stock Purchase Agreement (the "Agreement") dated as of September 1, 1993
between the Company and Chugai Pharmaceutical Co. Ltd., is true and correct in
all material respects as of the date hereof, and the Company has fully performed
all of its obligations under the Agreement to be performed at or prior to the
closing.
Dated: September _____, 1993.
REAADS MEDICAL PRODUCTS, INC.
By: /S/ XXXX X. XXXXX
-------------------------------------
Xxxx X. Xxxxx, President
By: /S/ XXXXXXXX X. XXXXXXX
-------------------------------------
Xxxxxxxx X. Xxxxxxx, Treasurer
SECRETARY'S CERTIFICATE
I, Xxxxxx X. Xxxxxx, Secretary of Reaads Medical Products, Inc., a
Delaware corporation, do hereby certify that the following is a full, true and
correct copy of the resolutions of the Board of Directors of the corporation,
duly adopted by the Board of Directors of the corporation as required by law and
by the Bylaws of the corporation effective as of the date hereof.
"RESOLVED, that the form, terms, and provisions of the
Stock Purchase Agreement between the Corporation and
Chugai Pharmaceutical Co. Ltd. ("Purchaser")
substantially in the form attached hereto as Exhibit A,
and all transactions necessary or proper to effectuate
the same, be and hereby are approved in all respects,
and the officers of the Corporation are hereby
authorized to execute the Stock Purchase Agreement and
all documents and stock certificates required thereunder
for and on behalf of the Corporation; and further
RESOLVED, that upon receipt in full of the consideration
payable by Purchaser under the Stock Purchase Agreement,
the officers of the Corporation be, and they are hereby
are, authorized to issue a stock certificate to
Purchaser representing the 185.19 shares of the
Corporation's Common Stock to be purchased by Purchaser
pursuant thereto at an aggregate purchase price of
$500,013 ($2,700 per common share), which such shares
shall be considered duly authorized, validly issued,
fully paid and nonassessable."
I further certify that the foregoing resolutions are still in full force
and effect and have not been amended or revoked and that the specimen signatures
appearing below are the signatures of the proper officers authorized to sign for
this corporation by consent of the Board of Directors.
AUTHORIZED SIGNATURES:
/S/ XXXX X. XXXXX /S/ XXXXXX X. XXXXXX
-------------------------------- -------------------------------
Xxxx X. Xxxxx, President Xxxxxx X. Xxxxxx, Secretary
/S/ XXXXXXXX X. XXXXXXX
--------------------------------
Xxxxxxxx X. Xxxxxxx, Treasurer
I further certify that the Certificate of Incorporation of the
corporation and bylaws of the corporation attached to this Secretary's
Certificate are true and correct copies of the Certificate of Incorporation and
bylaws of the corporation as in effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary, and
affixed the corporate seal of the said corporation, this ____ day of September,
1993.
/S/ XXXXXX X. XXXXXX
-----------------------------
[Corporate Seal] Xxxxxx X. Xxxxxx, Secretary
I, Xxxx X. Xxxxx, President of Reaads Medical Products, Inc., certify
that Xxxxxx X. Xxxxxx is the Secretary of the corporation and that the specimen
signature appearing on the preceding page of this Secretary's Certificate above
his name is the signature of Xx. Xxxxxx.
/S/ XXXX X. XXXXX
-----------------------------
Xxxx X. Xxxxx, President
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