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EXHIBIT 99.A
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") dated as of February __, 1999
by and between ________________ ("Buyer") and Xxxx X. Xxxxxxx, an individual
residing in the State of Wisconsin ("Seller").
R E C I T A L S:
A. Seller owns of record and beneficially __ shares (the "Shares") of
the Common Stock, par value $.0025 per share ("Common Stock") of Ophidian
Pharmaceuticals, Inc., a Wisconsin corporation ("Ophidian").
B. Seller desires to sell the Shares to Buyer and Buyer desires to buy
the Shares from Seller, all upon the terms and subject to the conditions set
forth herein.
C. In consideration of the recitals (which are deemed to be a part of
this Agreement) and of the respective representations, warranties, covenants,
agreements and conditions contained herein, Buyer and Seller hereby agree as
follows:
A G R E E M E N T S
1. Purchase and Sale of Shares; Closing.
1.1. Purchase and Sale. Upon the terms and subject to the conditions
set forth in this Agreement, Seller agrees to sell all of Seller's right, title
and interest in and to the Shares to Buyer and Buyer hereby agrees to purchase
the Shares from Seller. The purchase price for the Shares shall be $1.75 per
share resulting in the aggregate purchase price of $_________ (the aggregate
purchase price being referred to herein as the "Purchase Price").
1.2. Closing. The closing (the "Closing") of the purchase and sale of
the Shares hereunder shall occur by the following method unless otherwise agreed
to by the parties in writing. Within 24 hours of Buyer's receipt of confirmation
from Ophidian's Transfer Agent, Continental Stock Transfer & Trust Company, New
York, New York (which in no event shall be provided prior to the satisfaction of
the conditions set forth in Section 4.1 hereof) that the Transfer Agent has
received (a) certificates representing the Shares, duly endorsed by Seller in
blank or accompanied by appropriate stock powers endorsed, and (b) written
instruction from Ophidians legal counsel directing the Transfer Agent to
transfer the Shares from Seller to Buyer, Buyer shall pay the Purchase Price in
full to Seller by wire transfer to the account specified by Seller in Exhibit A
hereto. For purposes of this Agreement, the "Closing Date" shall be the date on
which Seller receives the Purchase Price in the account identified on Exhibit A
hereto.
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1.3 Certain Definitions. For purposes of this Agreement, the term:
(a) "Lien" shall mean all title defects, charges, claims,
restrictions, liens, pledges, security interests, mortgages,
conditional sale or other title retention agreements, assessments,
covenants, restrictions, rights of first refusal, and other burdens,
options, restrictions or encumbrances of any kind but shall not include
the restriction against resale of any securities except in compliance
with the registration requirements pursuant to the Securities Act of
1933, as amended (the "Securities Act"), and any applicable state
securities laws or pursuant to applicable exemptions thereto; and
(b) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or, as applicable, any other entity.
2. Seller's Representations, Warranties and Covenants.
Seller represents and warrants to Buyer that:
2.1. Authority of Seller. Seller has all necessary right, capacity,
power and authority to enter into, execute and deliver this Agreement and
perform its obligations hereunder and the execution, delivery and performance of
this Agreement by Seller does not and will not (i) conflict with or result in
(including following notice, lapse of time or both) a breach, violation or
default of (x) any law, statute, rule or regulation to which Seller or the
Shares is subject (other than generally applicable federal and state securities
laws) or (y) any agreement, instrument, order, judgment or decree by which
Seller or the Shares is bound or subject, (ii) require the consent, waiver,
authorization or approval of any governmental or regulatory authority or of any
other Person which has not been previously obtained or (iii) result in the
creation of any Lien with respect to the Shares.
2.2 Restricted Shares. The Shares to be purchased by Buyer are
restricted shares acquired by Seller in one or more private transactions not
involving a public offering. The Shares will continue to be restricted shares
following the closing of this transaction and Buyer will be prohibited from
reselling the Shares other than in compliance with the registration requirements
of the Securities Act and any applicable state securities laws or an applicable
exemption therefrom. Under Rule 144, Buyer may not use, employ or claim Seller's
holding period for the Shares in attempting to comply with Rule 144, in other
words, the Buyer's holding periods required under Rule 144 for the Shares will
commence on the Closing Date.
2.3 Binding Effect. This Agreement constitutes a valid and
binding obligation of the Seller, enforceable in accordance with its terms.
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2.4 Ownership of Shares. All of the Shares are beneficially owned by
Seller, free and clear of all Liens and no Person has any option or other right
to acquire all or any of the Shares or any right, title or interest in or with
respect to the Shares from Seller. Upon delivery of the certificates
representing the Shares pursuant to this Agreement, the Buyer will acquire good,
valid and marketable title to the Shares, free and clear of all Liens other than
the Lock-up (as defined in Section 4.2(d) below).
2.5 Sale Decision. Seller is making and has made its decision to sell
the Shares pursuant to this Agreement based upon his own investigation and
judgment with respect to the value of the Shares. Seller is one of the principal
stockholders of Ophidian and is fully acquainted with, and has had an
opportunity to ask questions and receive answers from Ophidian, regarding its
financial position, business and prospects, and he has received all the
information he considers necessary or appropriate for deciding whether to sell
the Shares. Seller has not relied upon, and hereby disclaims, any representation
or warranty made by Buyer, except as explicitly set forth herein.
2.6 Accredited Investor. Seller is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Act of 1933, as presently in
effect. Seller has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the proposed
disposition of the Shares.
2.7 Public Documents. Seller represents that he has been provided and
has reviewed a copy of Ophidian's annual report on SEC Form 10-K (the "10-K")
for the fiscal year ended September 30, 1998. To the actual present knowledge of
Seller, the 10-K, as of the date hereof, does not contain any untrue statement
of material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, and
there has not been any event which has occurred since the date of the 10-K which
is reasonably likely to have a material adverse effect on Ophidian's business,
properties, operations, condition (financial or otherwise) or prospects.
2.8 No Broker or Finder. Seller has engaged no broker or finder in
connection with this Agreement or the transactions contemplated hereby.
3. Buyer's Representations, Warranties and Covenants.
Buyer represents and warrants to Seller that:
3.1. Authority of Buyer. To the extent that the Buyer is a trust, the
execution, delivery and performance by Buyer of this Agreement have been duly
authorized by Buyer. Buyer has all necessary right, power, capacity and
authority to enter into, execute and deliver this Agreement and perform its
obligations hereunder and the execution, delivery and performance of this
Agreement does not and will not (i) conflict with or result in (including
following notice, lapse of time or both) a breach, violation or default of (x)
in the case of a Buyer which is a trust, Buyer's trust agreement, (y) any law,
statute, rule or regulation to
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which Buyer is subject or (z) any agreement, instrument, order, judgment or
decree by which Buyer is bound or subject or (ii) require the consent, waiver,
authorization or approval of any governmental authority or of any other Person.
3.2 Restricted Shares. Buyer acknowledges that the Shares are subject
to certain restrictions and that Buyer will be prohibited from reselling the
Shares other than in compliance the registration requirements under the
Securities Act and any applicable state Securities laws or an applicable
exemption therefrom. Under Rule 144, Buyer may not use, employ or claim Seller's
holding period for the Shares in attempting to comply with Rule 144, in other
words, the required holding periods under Rule 144 for the Shares will commence
on the closing Date. Buyer further acknowledges that the certificates
representing the Shares transferred by Seller to Buyer will bear legends
confirming the restrictions on the re-sale of the Shares.
3.3 Binding Effect. This Agreement constitutes a valid and binding
obligation of the Buyer, enforceable in accordance with its terms.
3.4 Sale Decision. Buyer is making and has made a decision to purchase
the Shares pursuant to this Agreement based upon his or its own investigation
and judgment with respect to the value of the Shares. Buyer is, or in the case
of a trust has a trustee who is, a principal stockholder and/or director of
Ophidian. Buyer, or its trustee, is fully acquainted with, and has had an
opportunity to ask questions and receive answers from Ophidian, regarding
Ophidian's financial position, business and prospects. Buyer has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Shares. Buyer has not relied upon, and hereby disclaims, any
representation or warranty made by Seller, except as explicitly set forth
herein.
3.5 Accredited Investor Status; Investment Intent. Buyer is an
"accredited investor" within the meaning of Rule 501 of Regulation D under the
Act of 1933, as presently in effect. If Buyer is an individual, his net worth
along with the net worth of his spouse exceeds $1 million or his individual
income has exceeded $200,000 (or $300,000 with his spouse) for each of the past
two years and he expects to have income in excess of such levels for the current
year. If Buyer is a trust, its assets exceed $5,000,000, it was not formed for
the purpose of investing in Ophidian and its trustee is a sophisticated person.
Buyer has such knowledge and experience in financial and business matters that
he or it is capable of evaluating the merits and risks of the proposed
disposition of the Shares. Buyer is purchasing the Shares for investment
purposes, and not with a view to the resale or distribution of any part of the
Shares. The Buyer does not have any contract, undertaking, agreement or
arrangement with any Person to sell, transfer or grant participations to any
third person, with respect to the Shares.
3.6 Public Documents. Buyer represents that he or it has been provided
and has reviewed a copy of the 10-K for the fiscal year ended September 30,
1998. To the actual present knowledge of Buyer, the 10-K, as of the date hereof,
does not contain any untrue
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statement of material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and there has not been any event which has occurred since the date
of the 10-K which is reasonably likely to have a material adverse effect on
Ophidian's business, properties, operations, condition (financial or otherwise)
or prospects.
3.7 No Broker or Finder. Buyer has engaged no broker or finder in
connection with this Agreement or the transactions contemplated hereby.
4. Conditions to Closing.
4.1 Conditions to Obligations of Buyer. The obligations of Buyer
hereunder are subject to the satisfaction at or prior to the Closing of the
following conditions, unless waived by the Buyer:
(a) Performance. Each of the covenants and obligations of
Seller to be performed at or prior to the Closing shall have been duly
performed;
(b) Representations and Warranties. Each representation and
warranty of Seller shall be true and correct as of the Closing, as if
such representation and warranty had been made at such time, and Buyer
shall have received a certificate to that effect in a form attached
hereto as Exhibit B.
(c) No Litigation. There shall be no injunction or court order
restraining consummation of the transactions contemplated hereby or any
part thereof, and there shall be no pending or threatened action or
proceeding by or before a court or governmental body seeking to
restrain or invalidate all or any portion of any of such transaction,
or seeking damages or other relief against Buyer or any of his or its
affiliates upon the consummation of all or any portion of such
transaction, and there shall not have been adopted any law or
regulation making all or any portion of such transaction illegal.
4.2 Conditions to Obligations of Seller. The obligations of Seller
hereunder are subject to the satisfaction at or prior to the Closing of the
following conditions, unless waived by the Seller:
(a) Performance. Each of the covenants and obligations of
Buyer to be performed at or prior to the Closing shall have been duly
performed;
(b) Representations and Warranties. Each representation and
warranty of Buyer shall be true and correct as of the Closing, as if
such representation and warranty had been made at such time and Seller
shall have received a certificate to that effect in the form attached
hereto as Exhibit C.
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(c) No Litigation. There shall no injunction or court order
restraining consummation of the transactions contemplated hereby or any
part thereof, and there shall be no pending or threatened action or
proceeding by or before a court or governmental body seeking to
restrain or invalidate all or any portion of any of such transaction,
or seeking damages or other relief against Seller or any of his
affiliates upon the consummation of all or any portion of such
transaction, and there shall not have been adopted any law or
regulation making all or any portion of such transaction illegal.
(d) Lock-up Letter. To the extent that the Closing hereunder
shall have occurred prior to February 7, 1999, Seller shall have
delivered a Lock-up Agreement (the "Lock-up"), in substantially the
form attached hereto as Exhibit D, to Xxxxx & Company, Inc. and
Security Capital Trading, Inc., as representatives of the several
underwriters in connection with Ophidian's offering of Units consisting
of shares of Common Stock and warrants to purchase Common Stock
pursuant to that certain prospectus dated May 7, 1998.
5. Survival. The representations, warranties and covenants herein or in
any certificate or other writing delivered pursuant hereto or in connection
herewith shall survive the Closing.
6. Notices. Any notice or other communication under or pursuant to his
Agreement shall be in writing and may be given by any of the following methods:
(a) personal delivery; (b) telecopy transmission; (c) registered or certified
mail, postage prepaid, return receipt requested; or (d) recognized overnight
delivery service. Notice shall be to the appropriate party at the address or
telecopier number listed on the signature page hereto (or in either case to the
address or telecopier number as shall be specified by notice given under this
Agreement).
7. Miscellaneous.
7.1 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns, provided, however, that neither this Agreement, nor any right
hereunder, may be assigned by any party without the consent of the other party
hereto.
7.2 Entire Agreement; Amendment. This Agreement, including the recitals
hereto, and the other instruments referred to herein embody the entire agreement
of the parties hereto with respect to the subject matter hereof and supersede
all prior agreements with respect thereto. This Agreement may be amended, and
any provision hereof waived, but only in a writing signed by the party against
whom such amendment or waiver is sought to be enforced.
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7.3 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one and the same
instrument.
7.4 Further Assurances. Buyer and Seller each agree to execute and
deliver such other documents, certificates, agreements and other writings and to
such other actions as may be reasonably requested by the other party in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement.
7.5 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or enforceability without rendering
invalid or unenforceable the remaining terms and provisions of this Agreement,
or affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
7.6 Captions. The captions herein are inserted for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
7.7 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Illinois without giving effect to principles of
conflict of laws.
7.8 Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(a) By the mutual written consent of Buyer and Seller;
(b) By Buyer, by written notice to Seller on any date after
March 1, 1999 if the Closing has not taken place by such date;
(c) By Seller, by written notice to Buyer on any date after
March 1, 1999 if the Closing has not taken place by such date; or
(d) By Buyer, by written notice to Seller, at any time after a
proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law is filed against
Ophidian.
Upon any such termination, the transactions contemplated hereby shall be
abandoned without further action by any party, and neither party to this
Agreement shall have any right or claim against the other on account of such
termination unless this Agreement is terminated by a party on account of the
breach of any representation, warranty, term or covenant herein by the other
party, in which case the terminating party shall be entitled to all of its
rights and remedies at law or in equity.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the
parties hereto as of the day and ate first above written.
SELLER:
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Xxxx X. Xxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopier: 608/262-9343
BUYER:
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EXHIBIT A
Wire Transfer Instructions
Account Number:
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EXHIBIT B
FORM OF SELLER'S CERTIFICATE
The undersigned hereby certifies that my representations and warranties
contained in the Purchase Agreement dated as of February , 1999, between me and
are true and correct on and as of the date hereof.
This Certificate is being furnished to the Buyer with the understanding
that it will be relied upon by the Buyer, as well as by Ophidian and the law
firm of XxXxxxxxxx Xxxxxxx, LLP, as counsel to Ophidian, in conjunction with its
rendering of a legal opinion to Ophidian regarding the transfer.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
day of , 1999.
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Xxxx X. Xxxxxxx
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EXHIBIT C
FORM OF BUYER'S CERTIFICATE
The undersigned hereby certifies that the undersigned's representations
and warranties contained in the Purchase Agreement dated as of February _____,
1999, between the undersigned and Xxxx X. Xxxxxxx are true and correct on and
as of the date hereof.
This Certificate is being furnished to the Seller with the
understanding that it will be relied upon by the Seller, as well as by Ophidian
and the law firm of XxXxxxxxxx Sinykin, LLP, as counsel to Ophidian, in
conjunction with its rendering of a legal opinion to Ophidian regarding the
transfer.
The undersigned hereby further certifies that he or it has received or
has had access to all information necessary for the purchase of the Shares
referred to in the Purchase Agreement, he or it has been fully advised regarding
the restrictive status of the stock,and the undersigned is purchasing the Shares
for investment purposes only and with no intent of re-sale.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
day of _____, 1999.
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EXHIBIT X
XXXXX & COMPANY, INC.
SECURITY CAPITAL TRADING, INC.,
As Representatives of the several Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In order to induce Xxxxx & Company, Inc. and Security Capital Trading,
Inc., the representatives of the several underwriters (the "Representatives") to
consent to the transfer of ___ shares (the "Shares") of the Common Stock, par
value $.0025 per share ("Common Stock") of Ophidian Pharmaceuticals, Inc., a
Wisconsin corporation ("Ophidian") by Xxxx X. Xxxxxxx ("Xxxxxxx"),
notwithstanding the terms of that certain letter agreement executed by Xxxxxxx
in favor of the Representatives, dated as [May 7, 1998], the undersigned hereby
agrees that from the date hereof until February 7, 1999, the undersigned will
not, without the prior written consent of the Representatives, sell, contract or
offer to sell, issue, transfer, assign, pledge, distribute or otherwise dispose
of, directly or indirectly, the Shares.
In order to enable the aforesaid covenants to be enforced, the
undersigned hereby consents to the placing of legends and/or stop-transfer
orders with the transfer agent of Ophidian's securities with respect to the
Shares.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to the
choice of law or conflicts of law principles.
Dated: February __, 1999
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Address Signature
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Social Security Number or Name
Taxpayer I.D. Number
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