EXHIBIT 10.16
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SECURITIES PURCHASE AGREEMENT
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▇▇▇▇▇▇▇▇.▇▇▇, INC.
▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Purchase. Subject to the terms and conditions hereof, the undersigned
agrees to purchase the number of Units of the securities of ▇▇▇▇▇▇▇▇.▇▇▇, Inc.,
a Delaware corporation (the "Company"), as set forth at the end of this
Agreement, at a purchase price of $1.50 per Unit. A "Unit" shall consist of (a)
one share of Common Stock of the Company, par value $.001 per share (a "Share"),
and (b) a warrant, in the form of Exhibit A attached hereto, to purchase one
share of Common Stock of the Company, par value $.001 per share, with an
exercise price of $2.50 per share (the "Warrant"). (The Shares and the Warrants
shall be collectively referred to herein as the "Securities.") The undersigned
hereby tenders the amount set forth at the end of this Agreement, in the form of
a check payable to the order of the Company, or wire transfer, in full payment
of the purchase price for such Securities.
2. Closing. The sum tendered herewith pursuant to Paragraph 1 (the
"Funds") will be held in escrow by the Company, or third parties for the account
of the Company, and shall be released from escrow and remitted to the Company
(the "Equity Closing") only upon the closing of the merger of ▇▇▇▇▇▇▇▇.▇▇▇
Acquisition Corp., a Delaware corporation ("Sub"), with and into Superior
Pharmaceutical Company, an Ohio corporation ("Superior"), as contemplated in the
Agreement and Plan of Merger dated October 20, 2000 by and among the Company,
Sub, Superior, and DynaGen, Inc., a Delaware corporation and parent of Superior
(the "Merger Closing"); provide that, if the Merger Closing does not occur
within sixty (60) days of the date of this Agreement, the Funds shall be
released from escrow by the Company (or third party) and remitted to the
undersigned within ten (10) days thereafter. Promptly upon the Equity Closing,
the Company will cause a certificate for the Shares and the Warrants purchased
hereunder by the undersigned to be issued in the name of and delivered to the
undersigned.
3. Acceptance of Agreement. This agreement shall be accepted by the
Company when it is signed on behalf of the Company and the Funds tendered
concurrently herewith are transferred into escrow to or for the account of the
Company. The Company may refuse to accept any subscription in its sole
discretion.
4. Representations and Warranties of the Undersigned. The undersigned
hereby represents and warrants to the Company, its officers, directors, agents,
and employees as follows:
(a) That he(1) has adequate means of providing for his current needs
and personal contingencies; he has no need now, and anticipates no need in the
foreseeable future, to
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1 Masculine pronouns are used solely for convenience of reference, and are
intended to have general application.
sell the Securities which he hereby agrees to purchase, and he currently has
sufficient financial liquidity to afford a complete loss of his investment in
the Company.
(b) That he has received and carefully reviewed descriptive memoranda
relating to the Company and any other materials relating thereto that he has
requested.
(c) That he has had an opportunity to ask questions of and receive
answers from the authorized representatives of the Company, and to review any
relevant documents and records concerning the business of the Company and the
terms and conditions of this investment, and that any such questions have been
answered to the full satisfaction of the undersigned.
(d) That no person or entity, other than the Company or its
authorized representatives, has offered the Securities to the undersigned.
(e) That he has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Company, or he and his financial and investment advisors
together have such knowledge and experience in financial and business matters
that they are capable of evaluating the merits and risks of an investment in the
Company.
(f) That the Securities for which he hereby subscribes will be
acquired for his own account for investment and not with a view toward
subdivision, resale, or redistribution thereof in a manner prohibited under the
Securities Act of 1933, as amended (the "Act"), and he does not presently have
any reason to anticipate any change in his circumstances or other particular
occasion or event which would cause him to sell his Securities. He has no
contract, undertaking, agreement, understanding, or arrangement with any person
to sell, transfer, or pledge to any person any part or all of the Securities for
which he hereby subscribes, or any interest therein, and has no present plans to
enter into the same,
(g) That (i) it has been called to his attention in connection with
his investment in the Company that such investment is speculative in nature and
involves a high degree of risk, and (ii) he is aware that the Company is in the
start-up stage and thus does not have any operating history.
(h) That he will notify the Company immediately, and in any event
prior to the date this agreement is accepted by the Company, if any event occurs
which would materially and adversely affect any of the above representations or
warranties.
(i) That he understands that no federal or state agency has passed
upon or made any recommendation or endorsement of an investment in the
Securities.
(j) That he would come within the following categories of "accredited
investor" under Rule 501(a) of Regulation D of the Securities Exchange
Commission promulgated under the Securities Act of 1933 (Please check all
applicable spaces):
____ (i) His or her net worth exceeds $1,000,000 (may include
spouse's net worth).
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____ (ii) His or her individual income in each of the two immediately
previous years has been more than $200,000 and his or her
current year's income is reasonably expected to be more
than $200,000, or his or her joint income with spouse in
each of the two immediately previous years has been more
than $300,000 and his or her current year's joint income is
reasonably expected to be more than $300,000.
____ (iii) We are a trust with total assets of more than $5,000,000,
not formed for the specific purpose of acquiring the
Securities, whose purchase is being directed by an investor
who, either alone or with his purchaser representative(s),
has such knowledge and experience in financial affairs and
business matters that he is capable of evaluating the
merits and risks of the prospective investments.
____ (iv) We are an organization described in Section 501(c)(3) of
the Internal Revenue Code, a corporation, a Massachusetts
or similar business trust, or a partnership, not formed for
the specific purpose of acquiring the securities, with
total assets in excess of $5,000,000.
____ (v) We are a corporation or partnership and each and every of
our equity owners falls into at least one of the above
categories.
____ (vi) None of the above.
5. Reliance. The undersigned acknowledges that the Company and its
officers, directors, employees, and agents are relying on the truth and accuracy
of the foregoing representations and warranties in the offering of Securities
for sale to the undersigned without having first registered the Securities under
the Act. All representations, warranties, and covenants contained in this
agreement shall survive the acceptance of this agreement and the sale of
Securities in the Company. Notwithstanding the foregoing, however, no
representation, warranty, acknowledgment, or agreement made herein by the
undersigned shall in any manner be deemed to constitute a waiver of any rights
granted to him under federal or state securities laws.
6. Consent to Use of Information. The undersigned hereby consents to the
utilization by the Company, as necessary in connection with dealings with any
governmental and regulatory authorities, of any information supplied to the
Company by the undersigned or by his representatives in connection with the
offer and sale of the Securities, and agrees to supply any additional
information reasonably requested by any such authority.
7. Restrictions on Transfer of Securities.
(a) Opinion of Counsel. The undersigned acknowledges that there are
restrictions on the transferability of the Securities. Since the Securities are
not registered under the Act or applicable state securities laws, and since the
undersigned has no right to require that the Securities be so registered, the
undersigned acknowledges and agrees that he shall have no
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right at any time to sell, assign, pledge, transfer, or otherwise dispose of or
encumber the Securities (except by will or by the laws of descent and
distribution) unless the Company shall first have been provided with an opinion
of counsel acceptable to the Company that such sale is exempt from such
registration under the Act and any applicable state securities laws.
(b) Restrictive Legends. The undersigned acknowledges that each
certificate representing Securities will bear restrictive legends which may
refer to this Securities Purchase Agreement and to the restrictions on transfer
referred to in this Paragraph 7.
8. Notice to Investor. Correspondence and notices to the undersigned
should be sent to the ___ business ___ residence address listed below until such
time as the undersigned shall notify the Company, in writing, of a different
address to which such correspondence and notices are to be sent. If neither
space is marked above, all correspondence will be sent to the undersigned's
residence address.
9. Lock-Up Provisions. In the event the Company has filed a registration
statement under the Securities Act of 1933 for an initial public offering of the
Company's Common Stock, $.001 par value (the "Common Stock"), and if in
connection therewith the Company has obtained lock-up agreements from all of its
then officers and directors not to sell any Securities of Common Stock owned by
them for a specified period of time, then the undersigned shall be bound by the
terms of such agreements with respect to all shares of the Common Stock owned by
the undersigned, whether or not the undersigned has executed such an agreement.
This provision shall survive the termination of this agreement. This agreement
shall be construed as a "lock-up" agreement and may be delivered by the Company
to any underwriter retained in connection with the Company's initial public
offering.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of this
___ day of ______________, 2000.
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Signature
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Business Position or Title Name (Typed or Printed)
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Name of Business United States
Social Security Number, if any
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Business Address Residence Address
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City, State or Province, City, State or Province,
County and Zip Code County and Zip Code
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Units (#) Purchase Price ($)
Accepted and agreed to:
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: _________________________
Dated: ______________________
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