EXHIBIT 10.1
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of June 30, 1999,
by and among DynaGen, Inc., a corporation organized under the laws of the State
of Delaware (the "Company"), with headquarters located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the undersigned ("Purchaser").
WHEREAS:
A. The Company and Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act").
B. The Company desires to sell and issue to Purchaser and Purchaser
desires to purchase, upon the terms and conditions stated in this Agreement, the
number of shares of Series J Preferred Stock., $.01 par value per share (the
"Preferred Stock"), of the Company convertible into shares of common stock, par
value $.01 per share, of the Company (the "Common Stock") and a warrant to
purchase 33,334 shares of Common Stock (the "Warrant") in accordance with the
terms and conditions set forth herein. The Series J Preferred Stock Designation
setting forth the rights, preferences, including the terms upon which the shares
of Preferred Stock are convertible into shares of Common Stock, is attached
hereto as Exhibit A.
NOW, THEREFORE, the Company and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES AND WARRANT
a. Purchase of Preferred Shares and Warrant. On the Closing Date (as
defined below), subject to the satisfaction (or waiver) of the conditions set
forth in Sections 6 and 7 below, the Company shall issue and sell to Purchaser
and Purchaser agrees to purchase from the Company, up to 15,000 shares of
Preferred Stock (the "Preferred Shares") and a Warrant. The aggregate purchase
price is $1,500,000.00 (the "Purchase Price"). The shares of Common Stock
issuable upon conversion of the Preferred Shares are referred to herein as the
"Conversion Shares." The shares of Common Stock issuable upon exercise of the
Warrant are referred to herein as the "Warrant Shares." The Preferred Shares,
the Conversion Shares, the Warrant and the Warrant Shares are collectively
referred to herein as the "Securities."
b. Form of Payment. On the Closing Date (as hereinafter defined),
Purchaser shall pay the aggregate Purchase Price for the Preferred Shares and
Warrant by wire transfer to the Company and shall deliver by telecopier (with
originals following by first class mail) a fully executed copy of this
Subscription Agreement and the Registration Rights Agreement (as defined below)
to the Company. Payment and delivery instructions are attached as Exhibit B
hereto. Promptly upon receipt of the Purchase Price and the executed agreements,
the Company shall deliver a certificate (the "Certificate") representing the
Preferred Shares, the Warrant, and
the accepted agreements to the Purchaser by Federal Express or other overnight
courier at the address set forth on the signature page of this Agreement.
c. Closing Date. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below, the date and time
of the issuance and sale of the Preferred Shares and the Warrant pursuant to
this Agreement shall take place from time to time as may be mutually agreed upon
by the Company and Purchaser. Each closing shall occur at the offices of the
Company.
2. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and
warrants to the Company that:
a. Investment Purpose. Purchaser is purchasing the Preferred Shares and
the Warrant for Purchaser's own account for investment only and not with a
present view towards the public sale or distribution thereof, except pursuant to
sales that are exempt from the registration requirements of the Securities Act
and/or sales registered under the Securities Act. Purchaser understands that
Purchaser must bear the economic risk of this investment indefinitely, unless
the Preferred Shares, the Warrant Shares or the Conversion Shares, as the case
may be, are registered pursuant to the Securities Act and any applicable state
securities or blue sky laws or an exemption from such registration is available,
and that the Company has no present intention of registering any such Securities
other than as contemplated by the Registration Rights Agreement, dated as of the
date hereof, between the Company and the Purchaser (the "Registration Rights
Agreement").
b. Accredited Investor Status. Purchaser is an "accredited investor" as
defined in Rule 501(a) promulgated under the Securities Act.
c. Reliance on Exemptions. Purchaser understands that the Preferred
Shares, the Conversion Shares, the Warrant ant the Warrant Shares are being
offered and sold to Purchaser in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and Purchaser's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of Purchaser to acquire the
Preferred Shares, the Conversion Shares, the Warrant and the Warrant Shares.
d. Information. Purchaser and its counsel or representative, if any, have been
furnished all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Preferred Shares and
the Warrant which have been requested by Purchaser or its counsel or
representative. Purchaser and its counsel, if any, have been afforded the
opportunity to ask questions of the Company and have received what Purchaser
believes to be complete and satisfactory answers to any such inquiries. Neither
such inquiries nor any other due diligence investigation conducted by Purchaser
or its counsel or any of its representatives shall modify, amend or affect
Purchaser's right to rely on the Company's representations and warranties
contained in Section 3 below. Purchaser has been informed and
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understands that (i) this investment involves a HIGH DEGREE OF RISK, (ii) the
Company's independent auditors have included an explanatory paragraph in their
opinion on the Company's financial statements expressing substantial doubt about
the Company's ability to continue as a going concern, and (iii) the Company's
common stock has been delisted by the NASDAQ Stock Market and is currently
traded on the Boston Stock Exchange.
e. Governmental Review. Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
f. Transfer or Resale. Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not been and
are not being registered under the Securities Act or any state securities laws,
and may not be transferred unless (a) subsequently registered thereunder, or (b)
Purchaser shall have delivered to the Company an opinion of counsel (which
opinion shall be in form, substance and scope customary for opinions of counsel
in comparable transactions) to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration, including without limitation Rule 144 promulgated under the
Securities Act (or a successor rule) ("Rule 144"), or (c) transferred without
consideration to an affiliate of Purchaser; (ii) any sale of such Securities
made in reliance on Rule 144 may be made only in accordance with the terms of
said Rule and further, if said Rule 144 is not applicable, any resale of such
Securities under circumstances in which the seller (or the person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined in
the Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the Securities and Exchange
Commission (the "SEC") thereunder; and (iii) neither the Company nor any other
person is under any obligation to register such Securities under the Securities
Act or any state securities laws or to comply with the terms and conditions of
any exemption thereunder (in each case, other than pursuant to the Registration
Rights Agreement).
g. Legends. Purchaser understands that the Preferred Shares and, until
such time as the Conversion Shares and the Warrant Shares have been registered
under the Securities Act as contemplated by Section 5 of this Agreement or
otherwise may be sold by Purchaser pursuant to Rule 144 without any restriction
as to the public resale thereof, the Warrant and the certificates for the
Conversion Shares and the Warrant Share, may bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for such Securities):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
acquired for investment and may not be sold, transferred or assigned in
the absence of an effective registration statement for the securities
under said Act, or an opinion of counsel, in form, substance and scope
customary for opinions of counsel in comparable transactions, that
registration is not required under said Act or unless the Company is
provided with reasonable assurances that the securities were sold
pursuant to Rule 144 under said Act.
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The legend set forth above shall be removed and the Company shall issue
a Warrant or a certificate without such legend upon conversion of the Preferred
Shares or the exercise of the Warrant, as the case may be, to the holder of any
Security upon which it is stamped, if (a) the resale of such Security is
registered under the Securities Act, or (b) such holder provides the Company
with an opinion of counsel, in form, substance and scope customary for opinions
of counsel in comparable transactions, to the effect that a public sale or
transfer of such Security may be made without registration under the Securities
Act or (c) such holder provides the Company with reasonable assurances that such
Security has been sold pursuant to Rule 144 or can be sold pursuant to Rule 144
without any restriction as to the number of Securities acquired as of a
particular date that can then be immediately sold. Purchaser agrees to sell all
Securities, including those represented by a certificate(s) from which the
legend has been removed, pursuant to an effective registration statement and to
deliver a prospectus in connection with such sale (if and to the extent such
delivery is required) or in compliance with an exemption from the registration
requirements of the Securities Act. In the event the above legend is removed
from any Security and thereafter the effectiveness of a registration statement
covering such Security is suspended or the Company determines that a supplement
or amendment thereto is required by applicable securities laws, then upon
reasonable advance notice to Purchaser the Company may require that the above
legend be placed on any such Security that cannot then be sold pursuant to an
effective registration statement or Rule 144 without any restriction as to the
number of Securities acquired as of a particular date that can then be
immediately sold, which legend shall be removed when such Security has been sold
pursuant to Rule 144 or may be sold pursuant to an effective registration
statement or Rule 144 without any restriction as to the number of Securities
acquired as of a particular date that can then be immediately sold.
h. Authorization: Enforcement. This Agreement and the Registration
Rights Agreements have been duly and validly authorized, executed and delivered
on behalf of Purchaser and are valid and binding agreements of Purchaser
enforceable in accordance with their respective terms.
i. Location of Purchaser. Purchaser has advised the Company in writing
with respect to the jurisdictions wherein the investment decision regarding
Purchaser's acquisition of the Preferred Shares and the Warrant has been made.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Purchaser that:
a. Organization and Qualification. The Company is a corporation duly
organized and existing in good standing under the laws of the jurisdiction in
which it is incorporated, and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The Company is
duly qualified as a foreign corporation to do business and is in good standing
in every jurisdiction where the failure so to qualify would have a Material
Adverse Effect. "Material Adverse Effect" means any material adverse effect on
the operations, properties, condition (financial or otherwise) or prospects of
the Company and its subsidiaries, taken as a whole on a consolidated basis or on
the ability of the Company to perform its obligations in connection with the
transactions contemplated hereby on a timely basis.
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b. Authorization: Enforcement. The Company has the requisite corporate
power and authority to enter into and perform this Agreement and the
Registration Rights Agreement, to issue and sell the Warrant and the Preferred
Shares in accordance with the terms hereof, and to issue the Warrant Shares upon
the exercise of the Warrant and the Conversion Shares upon conversion of the
Preferred Shares in accordance with their respective terms. The execution,
delivery and performance of this Agreement and the Registration Rights Agreement
by the Company and the consummation by it of the transactions contemplated
hereby and thereby (including, without limitation, the issuance of the Preferred
Shares and the Warrant and the issuance and reservation for issuance of the
Conversion Shares and the Warrant Shares) have been duly authorized by the
Company's Board of Directors and no further consent or authorization of the
Company, its Board or Directors, or its stockholders is required; this Agreement
has been duly executed and delivered by the Company; and this Agreement
constitutes the valid and binding obligations of the Company enforceable against
the Company in accordance with its respective terms.
c. Issuance of Securities. The Preferred Stock and the Warrant are duly
authorized and, upon issuance in accordance with the terms of this Agreement,
the Preferred Shares and the Warrant will be validly issued, fully paid and
non-assessable. The Warrant Shares and the Conversion Shares have been duly
authorized by the Company's Board of Directors, and have been reserved for
issuance upon conversion of the Preferred Shares and exercise of the Warrant in
accordance with the respective terms thereof, and upon issuance in accordance
with the terms of this Agreement will be validly issued, fully paid and
non-assessable.
d. No Conflicts. To the Company's knowledge, the execution, delivery
and performance of this Agreement and the Registration Rights Agreement by the
Company, the performance by the Company of its obligations hereunder and
thereunder, and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance and reservation
for issuance, as applicable, of the Preferred Shares, the Conversion Shares, the
Warrant and the Warrant Shares) will not (i) result in a material violation of
the Certificate of Incorporation or Bylaws or (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its subsidiaries is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree (including U.S. federal and
state securities laws and regulations) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect or for which consents have been obtained). Except
as described in the SEC Documents (as hereinafter defined), to the Company's
knowledge, neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or other organizational documents and except as
described in the SEC Documents, to the Company's knowledge, neither the Company
nor any of its subsidiaries is in default under, nor has there occurred any
event giving others (with notice or lapse of time or both) any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or
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any of its subsidiaries is a party, except for defaults as would not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect or for which consents have been obtained.
e. SEC Documents, Financial Statements. Since December 31, 1996, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (all of the foregoing, filed prior to the date hereof and after December
31, 1996, and all exhibits included therein and financial statements and
schedules thereto and documents (other than exhibits) incorporated by reference
therein together with any registration statements or other documents filed by
the Company pursuant to the Securities Act prior to the date hereof and all news
releases by the Company being hereinafter referred to herein as the "SEC
Documents"). The Company has made available to Purchaser true and complete
copies of the SEC Documents, except for such exhibits, schedules and
incorporated documents. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of the Company included in the SEC
Documents complied in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with U.S
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to the date of the most recent financial
statements included in the SEC Documents and (ii) obligations under contracts
and commitments incurred in the ordinary course of business and not required
under generally accepted accounting principles to be reflected in such financial
statements, which, individually or in the aggregate, are not material to the
financial condition or operating results of the Company.
f. Absence of Litigation. Except as disclosed in the SEC Documents or
otherwise disclosed to Purchaser, there is no action, suit, proceeding, inquiry
or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the Company
or any of its subsidiaries, threatened against or affecting the Company, any of
its subsidiaries, or any of their respective directors or officers in their
capacities as such, wherein an unfavorable decision, ruling or finding would or
could reasonably be expected to result in a Material Adverse Effect.
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g. Disclosure. All information relating to or concerning the Company
set forth in this Agreement or provided to Purchaser pursuant to Section 2(d)
hereof and otherwise in connection with the transactions contemplated hereby is
true and correct in all material respects and the Company has not omitted to
state any material fact necessary in order to make the statements made herein or
therein, in light of the circumstances under which they were made, not
misleading. No event or circumstance has occurred or exists with respect to the
Company or its subsidiaries or their respective businesses, properties,
prospects, operations or financial conditions, which, under applicable law, rule
or regulation, requires public disclosure or announcement by the Company but
which has not been so publicly announced or disclosed (assuming for this purpose
that the Company's Exchange Act Reports are being incorporated into an effective
registration statement filed by the Company under the Securities Act).
h. Current Public Information. The Company is currently eligible to
register the resale of its Common Stock by a stockholder on a registration
statement on Form SB-2 or S-3] under the Securities Act.
i. No General Solicitation. Neither the Company nor any person acting
for the Company has conducted any "general solicitation," as such term is
defined in Regulation D, with respect to any of the Securities being offered
hereby.
j. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Securities being offered hereby under the Securities Act.
k. Dilution. The number of shares of Common Stock issuable upon
conversion of the Preferred Stock may increase substantially in certain
circumstances, including, but not limited to, the circumstance wherein the
trading price of the Common Stock declines prior to the conversion of the
Preferred Stock. The Company has studied and fully understands the nature of the
Securities being sold hereby and recognize that they have a potential dilutive
effect. The Board of Directors of the Company has concluded, in its good faith
business judgment, that such issuance is in the best interests of the Company.
The Company specifically acknowledges that its obligation to issue the shares of
Common Stock upon conversion of the Preferred Stock is binding upon the Company
and enforceable regardless of the dilution such issuance may have on the
ownership interests of other stockholders of the Company.
4. COVENANTS
a. Best Efforts. The parties shall use their best efforts timely to
satisfy each of the conditions described in Sections 6 and 7 of this Agreement.
b. Blue Sky Laws. The Company shall take such action as the Company or
Purchaser shall reasonably determine is necessary to qualify the Securities for
sale to Purchaser pursuant to this Agreement under applicable securities or
"blue sky" laws of the states of the
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United States or obtain exemption therefrom, and shall provide evidence of any
such action so taken to Purchaser.
c. Reporting Status. So long as Purchaser beneficially owns any of the
Securities, the Company shall timely file all reports required to be filed with
the SEC pursuant to the Exchange Act.
d. Use of Proceeds. The Company shall use the proceeds from the sale of
the Preferred Shares and the Warrant for internal working capital purposes and
general corporate purposes.
e. Financial Information. Upon the written request of Purchaser while
holding any Preferred Shares or the Warrant, the Company shall send the
following reports to Purchaser: a copy of its Annual Report on Form 10-K, its
Quarterly Reports on Form l0-Q, any proxy statements, any Current Reports on
Form 8-K and any press releases issued by the Company or any of its
subsidiaries.
f. Reservation of Shares. The Company shall reserve and shall at all
times thereafter have authorized and reserved for the purpose of issuance a
sufficient number of shares of Common Stock to provide for the full conversion
of the shares of Preferred Shares issued in accordance herewith and full
exercise of the Warrant and issuance of the Warrant Shares and Conversion Shares
and in connection therewith and as otherwise required by the terms of the
Preferred Stock.
g. Corporate Existence. So long as Purchaser beneficially owns the
Preferred Shares or the Warrant, the Company shall maintain its corporate
existence, except in the event of a merger, consolidation or sale of all or
substantially all of the Company's assets, as long as the surviving or successor
entity in such transaction (i) assumes the Company's obligations hereunder and
under the agreements and instruments entered into in connection herewith
regardless of whether or not the Company would have had a sufficient number of
shares of Common Stock authorized and available for issuance in order to effect
the conversion of the Preferred Shares and the exercise of the Warrant as of the
date of such transaction, and (ii) is a publicly traded corporation whose common
stock is listed for trading on the Nasdaq Stock Market, the New York Stock
Exchange or The American Stock Exchange.
5. REGISTRATION; TRANSFER AGENT INSTRUCTIONS
a. Registration Rights. The Company and the Purchaser shall enter into
a Registration Rights Agreement as of the date hereof.
b. Transfer Agent Instructions. The Company shall instruct its transfer
agent to issue certificates, registered in the name of Purchaser or its nominee,
for the Conversion Shares in such amounts as specified from time to time by
Purchaser to the Company upon conversion of the Preferred Shares, and for the
Warrant Shares upon exercise of the Warrant. Prior to registration of the
Conversion Shares and the Warrant Shares under the Securities Act or resale
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of such Securities under Rule 144, all such certificates shall bear the
restrictive legend specified in Section 2(g) of this Agreement. The Company
warrants that no instruction other than such instructions referred to in this
Section 5, and stop transfer instructions to give effect to Section 2(f) hereof
in the case of the Conversion Shares and the Warrant Shares prior to
registration of the Conversion Shares and the Warrant Shares under the
Securities Act, will be given by the Company to its transfer agent and that the
Securities shall otherwise be freely transferable on the books and records of
the Company as and to the extent provided in this Agreement and the Preferred
Stock terms. Nothing in this Section shall affect in any way Purchaser's
obligations and agreement set forth in Section 2(f) hereof not to resell the
Securities except pursuant to an effective registration statement (and to
deliver a prospectus in connection with such a sale) or in compliance with an
exemption from the registration requirements of applicable securities law. If
Purchaser provides the Company with an opinion of counsel, which opinion of
counsel shall be in form, substance and scope customary for opinions of counsel
in comparable transactions, to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from
registration, the Company shall permit the transfer, and, in the case of the
Conversion Shares, promptly instruct its transfer agent to issue one or more
certificates in such name and in such denominations as specified by a Purchaser.
c. Rule 144. The Company will use its best efforts to make all filings
and take all other actions so that Rule 144 promulgated under the Securities Act
of 1933, as amended, will be available for the resale of the Conversion Shares
and the Warrant Shares.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
The obligation of the Company hereunder to issue and sell the Preferred
Shares and the Warrant to Purchaser 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 Company's sole benefit and
may be waived by the Company at any time in its sole discretion.
a. Purchaser shall have executed the execution page to this Agreement
and delivered the same to the Company.
b. Purchaser shall have delivered the Purchase Price for the Preferred
Shares and the Warrant.
c. The representations and warranties of Purchaser shall be true and
correct in all material respects.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by 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.
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7. CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE
The obligation of Purchaser hereunder to purchase the Preferred Shares
and the Warrant on the Closing Date is subject to the satisfaction of each of
the following conditions, provided that these conditions are for Purchaser's
sole benefit and may be waived by Purchaser at any time in Purchaser's sole
discretion:
a. The Company shall have executed the signature page to this Agreement
and the Registration Rights Agreement and delivered the same to Purchaser.
b. The Company shall have delivered to Purchaser one or more duly
executed Certificates representing the Preferred Shares and the Warrant
purchased hereby in the principal amount being purchased by Purchaser in
accordance with Section 1(b) above.
c. The representations and warranties of the Company shall be true and
correct as of the Closing Date in all material respects and the Company shall
have performed, satisfied and complied in all material respects the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by 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.
8. GOVERNING LAW; MISCELLANEOUS
a. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware. The parties consent
to the jurisdiction of the United States District Courts for the Southern
District of New York in any suit or proceeding based on or arising under this
Agreement and agree that all claims in respect of such suit or proceeding may be
determined in such court. The parties irrevocably waive the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The parties
further agree that service of process mailed by first class mail shall be deemed
in every respect effective service of process in any suit or proceeding arising
hereunder. Nothing herein shall affect Purchaser's right to serve process in any
other manner permitted by law. The 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. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party.
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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 or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement: Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor Purchaser make any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived other than by an instrument in writing signed by
the party to be charged with enforcement and no provision of this Agreement may
be amended other than by an instrument in writing signed by the Company and
Purchaser.
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, overnight delivery
service or by confirmed telecopy, and shall be effective five days after being
placed in the mail, if mailed, or upon receipt or refusal of receipt, if
delivered personally or by courier, overnight delivery service or confirmed
telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
DynaGen, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
Chu, Ring & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇, Esq.
If to Purchaser:
to the address set forth on the signature
page hereof.
Each party shall provide notice to the other parties 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 successors and assigns. Neither
the Company nor Purchaser shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of
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the other. This provision shall not limit Purchaser's right to transfer the
Securities pursuant to the terms of the Preferred Stock and this Agreement or to
assign Purchaser's rights hereunder to any such transferee, nor shall this
provision limit the right of Purchaser to transfer or assign its rights under
such agreements and instruments to an affiliate (provided that Purchaser makes
no more than two (2) such transfers), provided that the representations and
warranties set forth in Section 2 are true and correct with respect to such
affiliate or managed account.
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 parties and the
agreements and covenants set forth in Sections 2, 3, 4 and 5 shall survive the
closing hereunder and any conversion of the Preferred Shares or exercise of the
Warrant, notwithstanding any due diligence investigation conducted by or on
behalf of Purchaser.
j. Publicity. Purchaser shall not make any press release or other
public statement concerning the transactions contemplated hereby without the
prior written consent of the Company.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
PURCHASER
KENILWORTH LLC
By: _____________________________
Name:___________________________
Title:
Address: ▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇) Limited
Commercial Centre
PO Box 31106 SMB
Grand Cayman
Cayman Islands
British West Indies
Number of shares purchased: 10,000
Aggregate Purchase Price: $1,000,000
ACCEPTED:
DYNAGEN, INC.
By: _____________________________
Name:___________________________
Title:____________________________
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