Exhibit 5
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of December
9, 1999, by and among HALIFAX FUND, L.P., a _____________________________ (the
"Seller"), and GHM, INC., a ________________ corporation (the "Buyer").
WHEREAS, the Buyer desires to purchase and the Seller desires to sell,
upon the terms and conditions set forth in this Agreement, shares of the Series
D Convertible Preferred Stock (the "Preferred Stock") of EPL Technologies, Inc.,
a Colorado corporation (the "Company");
NOW THEREFORE, the Seller and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES.
a. Purchase of Preferred Shares. On the Closing Date (as defined
below), the Seller shall sell to the Buyer and the Buyer shall purchase from the
Seller 162 shares of the Preferred Stock (the "Preferred Shares").
b. Form of Payment. On the Closing Date (as defined below), (i) the
Buyer shall pay One Hundred Sixty Two Thousand Dollars ($162,000) for the
Preferred Shares (the "Purchase Price") by wire transfer of immediately
available funds to the Seller, in accordance with the Seller's written wiring
instructions, against delivery of the certificates representing the Preferred
Shares, and (ii) the Seller shall deliver (or cause the Escrow Agent to deliver)
the certificates representing the Preferred Shares to the Buyer, against
delivery of such Purchase Price.
c. Escrow of Preferred Shares. Upon the execution of this Agreement,
the Seller will deposit with Ballard, Spahr, Xxxxxxx & Xxxxxxxxx (the "Escrow
Agent") the certificates representing the Preferred Shares, which certificates
will be released to the Buyer upon receipt of the Purchase Price by the Seller.
In the event the Closing does not occur on or before December 14, 1999, subject
to extension by written agreement of the parties in their sole discretion (the
"Termination Date"), the Escrow Agent shall return the certificates representing
the Preferred Shares to the Seller.
d. Closing Date. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 5 and Section 6 below, the date and time
of the sale and
purchase of the Preferred Shares pursuant to this Agreement (the "Closing Date")
shall be as soon as practicable after the date hereof, but in no event later
than the Termination Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall occur on the Closing Date at the Philadelphia
offices of the Escrow Agent, or at such other location as may be agreed to by
the parties.
2. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Seller that:
a. Authorization; Enforcement. The Buyer has all requisite power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
authorized. This Agreement has been duly executed and delivered on behalf of the
Buyer, and this Agreement constitutes the valid and binding agreement of the
Buyer enforceable in accordance with its terms.
b. Information; Acknowledgement of Risk; Independence of Action.
(i) The Company has furnished the Buyer and its advisors, if any,
with all
materials relating to the business, finances and operations of the Company and
materials relating to the Preferred Shares which have been requested by the
Buyer or its advisors. The Buyer and its advisors, if any, have been afforded
the opportunity to ask questions of the Company and have received satisfactory
answers to such questions. The Buyer fully understands the financial condition
of the Company and understands that its investment in the Preferred Shares
involves a significant degree of risk. The Buyer is a sophisticated investor
with considerable experience in investments of this nature. The Buyer
acknowledges that the Seller makes no representations or warranties concerning
the business, finances or operations of the Company. Except for the
representations and warranties of the Seller set forth in Section 3 below, the
Buyer acknowledges that the Seller makes no representations or warranties with
respect to the Preferred Shares. In making its decision to enter into this
Agreement and purchase the Preferred Shares pursuant to the terms herein, the
Buyer has in no way relied upon any statement made or information provided by
the Seller. With full recognition of the foregoing, the Buyer wishes to purchase
the Preferred Shares on the terms set forth herein.
(ii) The Buyer acknowledges that the Seller may be in possession
of information, including material non-public information concerning the Company
or the Preferred Shares (the "Material Information"), which may not be known to
the Buyer. Such Material Information may include, but not be limited to,
information concerning the financial condition, results of operations,
businesses, projections, assets, liabilities, management, appraisals, plans and
proposals, and securities and the market therefor of the Company. The Buyer
represents and acknowledges that any and all non-public information available to
the Seller may be materially adverse to the Buyer's own interests and that, if
the Buyer were in possession of some or all of that
-2-
information, the Buyer might not enter into the transactions contemplated by
this Agreement. The Buyer acknowledges and agrees that it is not relying on the
Seller to disclose, and the Seller is not disclosing, any information including
Material Information. The Buyer has conducted its own investigation, to the
extent the Buyer deemed necessary or desirable for the purpose of entering into
the transactions contemplated by this Agreement, regarding the Company and the
Preferred Shares and agrees that, notwithstanding any other term or provision of
this Agreement, the Seller shall have no liability whatsoever to the Buyer based
on the Seller's knowledge, use, possession or non-disclosure of any information
including the Material Information. The Buyer has requested, received, reviewed
and considered all information it deems necessary or appropriate to make an
informed decision regarding the purchase of the Preferred Shares and has
independently, without reliance upon the Seller or any representations or
warranties by the Seller, made its own analysis and decision to enter into this
Agreement. Based upon the foregoing, the Buyer for itself and its heirs,
executors administrators, successors and assigns hereby releases, remises,
acquits and forever discharges the Seller and each of the Seller's investment
managers, directors, officers, representatives, employees, partners and agents,
each of its and their successors and assigns, and each of the affiliates of each
of the foregoing from any and all claims, demands, controversies, actions,
causes of action, obligations, liabilities, costs, expenses, fees and damages
whatsoever, of any or all character, nature and kind, in law or in equity, past
or present, known or unknown, suspected or unsuspected, from the beginning of
time which arise on account of or in any way grow out of the Seller's possession
of any information (including Material Information) or the Seller's failure to
disclose such information (including Material Information) to the Buyer.
(iii) The Buyer acknowledges and agrees (A) that the Buyer has
acted independently in its decision to purchase the Preferred Shares from the
Seller; (B) that, prior to entering into this Agreement, the Buyer had no
agreement, arrangement or understanding whatsoever with the Seller or any other
person with respect to the Company or the Preferred Shares; and (C) that, upon
consummation of the transactions contemplated by this Agreement, the Buyer will
have no such agreement, arrangement or understanding.
c. Investment Purpose. The Buyer is purchasing the Preferred Shares
and the shares of Common Stock issuable upon conversion of or otherwise pursuant
to the Preferred Shares for its own account and not with a present view towards
the public sale or distribution thereof, except pursuant to sales registered or
exempted from registration under the Securities Act of 1933, as amended (the
"Securities Act").
d. Accredited Investor Status. The Buyer is an "accredited investor"
as that term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
-3-
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Buyer that:
a. Authorization; Enforcement. The Seller has all requisite power
and authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
authorized. This Agreement has been duly executed and delivered on behalf of the
Seller, and this Agreement constitutes the valid and binding agreement of the
Seller enforceable in accordance with its terms.
b. Ownership of Preferred Shares. The Seller is the beneficial and
record owner of the Preferred Shares being sold to the Buyer pursuant to this
Agreement, the Seller has good and valid title to the Preferred Shares, and at
the Closing the Seller shall deliver to the Buyer the Preferred Shares free from
all taxes, liens, claims and encumbrances.
4. COVENANTS.
a. Best Efforts. The parties shall use their best efforts to satisfy
timely each of the conditions described in Sections 5 and 6 of this Agreement.
b. Expenses. Each of the parties to this Agreement shall bear its
own expenses.
5. CONDITIONS TO THE SELLER'S OBLIGATION TO SELL. The
obligation of the Seller hereunder to sell the Preferred Shares to the Buyer at
the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions thereto, provided that these conditions are for
the Seller's sole benefit and may be waived by the Seller at any time in its
sole discretion:
a. The Buyer shall have executed this Agreement and delivered the
same to the Seller.
b. The Buyer shall have delivered the Purchase Price in accordance
with Section 1(b) above.
c. The representations and warranties of the Buyer shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time, and the Buyer shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Buyer at or prior to the Closing Date.
-4-
d. No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction
or any self-regulatory organization having authority over the matters
contemplated hereby which prohibits the consummation of any of the transactions
contemplated by this Agreement.
6. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE. The
obligation of the Buyer hereunder to purchase the Preferred Shares from the
Seller at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Buyer's sole benefit and may be waived by the Buyer at any time in its
sole discretion:
a. The Seller shall have executed this Agreement and delivered the
same to the Buyer.
b. The Seller or the Escrow Agent shall have delivered to the Buyer
the certificates representing the Preferred Shares in accordance with Section
1(b) above.
c. The representations and warranties of the Seller shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made at such time, and the Seller shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Seller at or prior to the Closing Date.
d. No litigation, statute, rule, regulation, executive order,
decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by or in
any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
7. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed in the State of Delaware (without regard to principles
of conflict of laws). Both parties irrevocably consent to the jurisdiction of
the United States federal courts and the state courts located in Delaware with
respect to any suit or proceeding based on or arising under this Agreement or
the transactions contemplated hereby and irrevocably agree that all claims in
respect of such suit or proceeding may be determined in such courts. Both
parties irrevocably waive the defense of an inconvenient forum to the
maintenance of such suit or proceeding. Both parties further agree that
-5-
service of process upon a party mailed by first class mail shall be deemed in
every respect effective service of process upon the party in any such suit or
proceeding. Nothing herein shall affect either party's right to serve process in
any other manner permitted by law. Both parties agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
b. Counterparts; Signatures by Facsimile. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same instrument, and shall become effective when counterparts have been
signed by each party and delivered to the other party. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement.
e. Entire Agreement; Amendments. This Agreement contains the entire
understanding of the parties with respect to the matters covered herein and,
except as specifically set forth herein, neither the Seller nor the Buyer makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the party to be charged with enforcement.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and shall be effective five days
after being placed in the mail, if mailed by regular United States mail, or upon
receipt, if delivered personally or by courier (including a recognized overnight
delivery service) or by facsimile, in each case addressed to a party. The
addresses for such communications shall be:
If to the Seller:
___________________________
___________________________
___________________________
___________________________
Attention:_________________
Facsimile: ________________
-6-
If to the Buyer:
GHM, Inc.
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: ____________________
Each party shall provide notice to the other party of any
change in address.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective permitted successors
and assigns. Neither the Seller nor the Buyer shall assign this Agreement or any
rights or obligations hereunder without the prior written consent of the other.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
i. Survival. The representations and warranties of the Buyer set
forth in Sections 2(b) and 2(c) hereof shall survive the Closing hereunder. The
Buyer agrees to indemnify and hold harmless the Seller and each of the Seller's
investment managers, directors, officers, representatives, employees, partners
and agents, each of its and their successors and assigns, and each of the
affiliates of each of the foregoing for loss or damage arising as a result of or
related to any breach or alleged breach by the Buyer of any of its
representations and warranties set forth in this Agreement, including
advancement of expenses as they are incurred.
j. Publicity. Neither the Seller nor the Buyer shall issue any press
release or make any public statement concerning this Agreement and the
transactions contemplated hereby without the prior approval of the other party.
k. Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
-7-
m. Remedies. Each of the parties acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the other party by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each such party acknowledges that the remedy at law for a breach of
its obligations under this Agreement will be inadequate and agrees, in the event
of a breach or threatened breach by such party of the provisions of this
Agreement, that the non-breaching party shall be entitled, in addition to all
other available remedies in law or in equity, to an injunction or injunctions to
prevent or cure any breaches of the terms or provisions of this Agreement and to
enforce specifically the terms and provisions of this Agreement, without the
necessity of showing economic loss and without any bond or other security being
required.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
-8-
IN WITNESS WHEREOF, the undersigned Buyer and Seller have
caused this Agreement to be duly executed as of the date first above written.
GHM, INC.
By:__________________________________
Name:_______________________
Title:______________________
HALIFAX FUND, L.P.
By:__________________________________
Name:_______________________
Title:______________________
-9-
