EXHIBIT 99.04
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of July 23, 2002, is
by and between Xxxxx XxXxxxxx, M.D. (the "Purchaser") and HyperBaric Systems, a
California corporation (the "Seller"), with respect to the following:
WHEREAS, the Seller desires to offer and sell an aggregate of Two Million
(2,000,000) shares of the common stock of HyperBaric Systems ("HYRB") at a price
of Twenty-Five Cents ($.25) per share, for an aggregate purchase price of Five
Hundred Thousand Dollars ($500,000) (the "Shares") in accordance with the terms
and conditions set forth herein, and
WHEREAS, the Purchaser desires to buy the Shares from the Seller in accordance
with the terms and conditions set forth herein.
THEREFORE, the Purchaser and the Seller agree as follows:
1. SALE OF SHARES. Purchaser hereby agrees to purchase the Shares for an
aggregate purchase price of Five Hundred Thousand Dollars ($500,000) (the
"Purchase Price").
2. PAYMENT OF PURCHASE PRICE; DELIVERY OF SHARES. Commencing on August 1,
2002, Seller shall send to Buyer on the first (1st) and fifteenth (15th) days of
each month, via certified check or wire transfer, the sum of Fifty Thousand
Dollars ($50,000) (each such payment an "Installment") in consideration of the
issuance and sale of Two Hundred Thousand (200,000) of the Shares (each
"Installment Shares"). Upon receipt by Seller of each Installment, Seller shall
immediately cause its transfer agent to send to the Purchaser, via Federal
Express or some other overnight courier, a certificate for the Installment
Shares. The final Installment shall be due on December 15, 2002, and the final
Installment Shares shall be issued, on December 31, 2002.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to the Purchaser as follows:
a. Ownership and Authority to and Sell. Seller represents and warrants
to the Purchaser that the Shares will be fully paid and non-assessable and upon
payment of the Purchase Price will be free and clear of all liens and
encumbrances and that the sale of the Shares as set forth in this Agreement does
not breach or cause a default upon any contract or agreement to which the Seller
is a party.
b. Registration Statement. The Shares were registered on a Form SB-2
Registration Statement that was declared effective on February 7, 2002. Seller
agrees, at its sole cost and expense, to have any opinion letters required by
this transaction delivered to Purchaser. The Registration Statement is
currently effective and the Seller has no knowledge, information or belief that
the effectiveness of the Registration Statement will be suspended or revoked.
c. Authorization to Convey the Shares. Seller, through its President and
CEO, has full power and authority to sell, convey and transfer the Shares to
Purchaser and otherwise consummate the transactions contemplated by this
Agreement and receive payment for the Shares as contemplated by this Agreement.
Purchaser shall acquire good and marketable title to such Shares, free and clear
of all liens. No authorization, approval or consent of any third party is
required for the lawful execution, delivery and performance of this Agreement by
Seller. Seller shall also send Purchaser a copy of the board resolution
authorizing and approving the sale of the Shares to Purchaser.
d. Noncontravention. This Agreement constitutes a valid and legally
binding obligation of Seller, enforceable against it in accordance with its
terms. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby in the manner herein
provided, will constitute a violation of or default under, or conflict with, any
judgment, decree, statute or regulation or any governmental authority applicable
to Seller or any contract, commitment, agreement or restriction of any kind to
which Seller is a party or by which its assets are bound. The execution and
delivery of this Agreement does not, and the consummation of the transactions
described herein will not, violate applicable law, or any mortgage, lien,
agreement, indenture, lease or understanding (whether oral or written) of any
kind outstanding relative to Seller.
e. Governmental Authorizations. Seller is not required to obtain
authorization, approval, consent, or order of, or make a registration or filing,
with, any court or other governmental body in connection with the execution and
delivery by Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby.
f. No Conflict With Other Instruments. The execution of this Agreement and
the consummation of the transactions contemplated hereby, will not result in the
breach of any term or provision of, constitute an event of default under, or
require the consent or approval of any third-party pursuant to, any material
contract, agreement, or instrument to which Seller is a party.
g. No Misrepresentations. None of the information contained in the
representations and warranties of Seller set forth in this Agreement contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained herein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER - The Purchaser
represents and warrants as follows:
a. Non-Affiliation with Seller. The Purchaser is not
now and has not been for at least ninety (90) days
from the date of this Agreement, an Affiliate
of the Seller, as that term is defined in Rule 405
of the Securities Act of 1933, as amended.
b. Execution, Delivery, Authorization, Approval and
Performance of Agreement. The execution, delivery
and performance by Purchaser of this Agreement have
been duly authorized by the Purchaser and do not and
will not conflict with or constitute a default,
breach or violation under any provision of applicable
law or regulation or of any agreement, judgment, injunction,
order, decree or other instrument binding upon Purchaser
or to which its properties are subject. This agreement,
when executed and delivered by Purchaser, will constitute
the legal, valid and binding obligation of Purchaser
enforceable against the Purchaser in accordance with
its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement
of creditors' rights generally.
c. Reliance on Form 10-KSB and 10-QSBs. Purchaser has received
copies of the Seller's Annual Report on Form 10-KSB for the
year ended December 31, 2001 and Quarterly Reports on Form
10-QSB for the quarters ended March 31, 2002 and
June 30, 2002. Seller shall make available for inspection
and review by the Purchaser all financial and other records,
all filings with the SEC, and all other corporate documents
and properties of the Seller as may be reasonably necessary
for the sole purpose of enabling Purchaser to conduct initial
and ongoing due diligence with respect to the Seller and the
accuracy of the Registration Statement. Seller shall not
disclose nonpublic information to the Purchaser or to its
advisors or representatives unless prior to disclosure of
such information the Seller identifies such information
as being nonpublic information and provides the Purchaser
and such advisors and representatives with the opportunity
to accept or refuse to accept such nonpublic information
for review.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The above Representations
and Warranties shall survive the sale of the Shares and may be relied upon by
Seller and Purchaser so long as the relying party does not have actual knowledge
of the invalidity or inaccuracy of said representations and warranties.
6. INDEMNIFICATION.
a. Indemnification by Seller. Seller hereby agrees to indemnify and hold
harmless Purchaser and all of its shareholders, officers, directors, employees
and direct or indirect investors and any of the foregoing person's agents or
other representatives (including, without limitation, those retained in
connection with the transactions contemplated by this Agreement) (collectively,
the "Indemnitees") from and against and in respect of:
(i) Any and all damage or deficiency, including reasonable
attorneys fees and costs, resulting from any misrepresentation,
breach of any representation or warranty or non-fulfillment of
any agreement on the part of Seller under this Agreement or any
instrument or document delivered to Purchaser in connection
therewith; and
(ii) Any and all actions, suits, claims, proceedings,
demands, assessments, judgments, costs and reasonable legal and
other expenses incidental to any of the foregoing.
To the extent that the foregoing undertaking by the Seller may be unenforceable
for any reason, the Seller shall make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities set forth above which is
permissible under applicable law. The indemnity provisions contained herein
shall be in addition to any cause of action or similar rights the Purchaser may
have, and any liabilities to which the Purchaser may be subject.
b. Indemnification by Purchaser. Purchaser hereby agrees to indemnify and
hold harmless Seller from and against and in respect of:
(i) Any and all damage or deficiency, including reasonable attorneys fees
and costs, resulting from any misrepresentation, breach of any representation or
warranty or non-fulfillment of any agreement on the part of Purchaser under this
Agreement or any instrument or document delivered to Purchaser in connection
therewith; and
(ii) Any and all actions, suits, claims, proceedings, demands, assessments,
judgments, costs and reasonable legal and other expenses incidental to any of
the foregoing;
7. GOVERNING LAW. This Agreement and the legal relations among the Parties
hereto shall be governed by and construed in accordance with the laws of the
State of California and that the State or Federal Courts of California shall be
the jurisdiction in which any legal proceedings relative to this Agreement shall
be brought. The foregoing notwithstanding, the Seller agrees to the arbitration
of any disputes relative to this Agreement through the services of a bona fide
independent arbitration service within the United States, at the election of the
Purchaser, in Purchaser's sole and absolute discretion. Upon Purchaser's
written request, arbitration shall be conducted by a panel of three, in
accordance with the commercial rules then in existence with the American
Arbitration Association, with hearings to take place in Santa Xxxxx County,
California and the laws of the State of California shall apply. Any judgment or
award rendered by arbitration may be entered in any court having jurisdiction.
The parties acknowledge that, in addition to any and all damages deemed fair by
the arbitrators, the award may be expanded to include, but not be limited to,
any and all court or arbitration costs, reasonable attorney fees and any other
costs or charges reasonably necessary to the adjudication of the controversy.
Nothing contained herein shall deprive any party of the right to obtain
injunctive or other equitable relief. Remedy at law for any breach or threatened
breach of this Agreement being inadequate, any party hereto is entitled to
enforce the specific performance of this Agreement and to seek both temporary or
permanent injunctive relief without the necessity of providing actual damages
outside of the terms of this Agreement. The parties agree that a facsimile
transmission of this signed agreement shall be legal and binding.
8. NOTICES. All notices hereunder shall be in writing and be delivered or
mailed, certified mail with return receipt requested, to the following
addresses, or by telegram sent to the following addresses with written
confirmation thereafter forwarded:
To the Seller: Attention: Xxxxx Xxxxxx HyperBaric Systems 0000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000 Phone: 000-000-0000 Fax:
To the Purchaser: Xxxxx XxXxxxxx, M.D. xxxxxxxxxxxxx Xxxxx Xxxxxx, XX
00000 Phone: xxxxxxxxxxxx Fax: xxxxxxxxxxxxxx
9. MISCELLANEOUS.
a. Entire Agreement. This Agreement, including the other documents
referred to herein, embodies the entire agreement and understanding of
the Parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties, covenants, or
undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings between the Parties with respect to such subject matter.
b. Amendment. This Agreement may not be amended, supplemented or modified
in whole or in part except by an instrument in writing signed by the party or
parties against whom enforcement of any such amendment, supplement or
modification is sought.
c. Legal Representation. The Seller and Purchaser agree that they have had
adequate opportunity to consult with their own legal counsel concerning this
Agreement and the transactions contemplated thereunder.
d. Construction. The Seller and Purchaser hereto and their respective
legal counsel participated in the preparation of this Agreement; therefore, this
Agreement shall be construed neither against nor in favor of any of the parties
hereto, but rather in accordance with the fair meaning thereof.
e. Accuracy of Representations. The representations and warranties made by
each party in this Agreement were true when made and shall be true at the
closing (except for changes therein permitted by this Agreement), and such party
shall have performed or complied with all covenants and conditions required by
this Agreement to be performed or complied with by such party prior to or at the
closing.
f. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument. It is expressly agreed that the
Agreement may be executed with facsimile signatures which shall be deemed
originals.
EXECUTED BY THE PARTIES HERETO AS OF THE DATE FIRST APPEARING ABOVE.
SELLER: HYPERBARIC SYSTEMS PURCHASER:
By: ---------------- ------------------
Xxxxx Xxxxxx,
its President and CEO Xxxxx XxXxxxxx,M.D.
