Exhibit 2.1
HUMAN PHEROMONE SCIENCES, INC.
STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (the "Agreement") is made as of May 21,
2003, by and between Human Pheromone Sciences, Inc., a California corporation
(the "Company"), and MK GVD Fund (the "Shareholder").
RECITALS
A. The Shareholder currently holds 17,448 shares of Series BB Preferred
Stock of the Company (the "Shares") and 1,333,333 shares of Series AA Preferred
Stock of the Company ("Series AA Preferred").
B. The Company desires to repurchase from the Shareholder, and the
Shareholder desires to sell to the Company, the Shares at an aggregate purchase
price of $500,000. In connection therewith, the Company desires the Shareholder
to convert, and the Shareholder is willing to convert, its shares of Series AA
Preferred Stock into Common Stock of the Company.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Repurchase of Shares; Conversion of Series AA Preferred. In exchange
for the Company's delivery of the Repurchase Consideration (as defined
hereinafter) at the closing (the "Closing"), which shall take place at the
offices of the Company, 84 West Santa Clara Street, Suite 720, San Jose,
California 95113 on May 21, 2003 or at such other place and time as the Company
and the Shareholder mutually agree, Shareholder hereby agrees to sell, assign
and transfer its entire right, title and interest in the Shares to the Company,
and the Shareholder agrees to convert its shares of Series AA Preferred into
Common Stock. As consideration for the Shareholder's sale of the Shares at the
Closing, the Company agrees to deliver to Seller the sum of $500,000 (the
"Repurchase Consideration"). At the Closing: (i) the Shareholder shall deliver
to the Company (a) the stock certificate(s) representing the Shares, (b) a stock
assignment transferring the Shares to the Company effective as of the Closing
and (c) the stock certificate(s) representing its shares of Series AA Preferred
for conversion, and (ii) the Company shall initiate a bank wire transfer to the
Shareholder's designated bank account in the amount of the Repurchase
Consideration payable as of the date of the Closing. Promptly after the Closing,
the Company shall arrange for its transfer agent to reissue to the Shareholder
an aggregate of 597,777 shares of Common Stock, which shares represent the total
number of shares of Common Stock issuable on conversion of the Series AA
Preferred held by the shareholder.
2. Representations, Warranties, Acknowledgments and Covenants of the
Shareholder to the Company. The Shareholder hereby represents, warrants,
acknowledges and covenants to the Company that:
2.1 Knowledge and Advice. Michael D. Kaufman, who is a principal of the
Shareholder, is a member of the Company's Board of Directors and he has had the
opportunity to discuss the Company's business, management, and financial affairs
with the Company's management, understands the economic implications of the
transactions contemplated by this Agreement, and has had full opportunity to
seek advice of counsel and any other appropriate advice with respect to such
transactions.
2.2 Ownership of Shares. The Shareholder holds and will hold, and is
hereby agreeing to transfer, good and full title to the Shares, free and clear
of any and all liens and encumbrances.
2.3 Preferred Stock. The Shares represents all of the shares of Series
BB Preferred Stock of the Company owned directly or indirectly by the
Shareholder, and the Shareholder does not own directly or indirectly any other
shares of Series BB Preferred Stock of the Company. The 1,333,333 shares of
Series AA Preferred Stock being converted pursuant to this Agreement represent
all of the shares of Series AA Preferred Stock owned by the Shareholder.
2.4 Authority; Execution. All action on the part of the Shareholder
necessary for the authorization, execution and delivery of this Agreement and
the performance of all obligations of the Shareholder has been taken prior to
the Closing. This Agreement constitutes the valid and legally binding obligation
of the Shareholder, enforceable in accordance with its terms, subject to the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies.
3 Representations and Warranties of the Company to the Shareholder. The
Company hereby represents, warrants, acknowledges and covenants to the
Shareholder that:
3.1 Authority; Execution. All action on the part of the Company
necessary for the authorization, execution, delivery and performance of all
obligations of the Company under this Agreement has been taken and this
Agreement constitutes the valid and legally binding obligation of the Company
enforceable in accordance with its terms subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
4. Miscellaneous.
4.1 Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire contract between the Shareholder and the Company relative
to the
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subject matter hereof. Any previous agreement between the Shareholder and the
Company is superseded by this Agreement. Subject to the exceptions specifically
set forth in this Agreement, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective executors,
administrators, heirs, successors and assigns of the parties.
4.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California excluding those laws that
direct the application of the laws of another jurisdiction.
4.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Headings. The headings of the sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
4.5 Notices. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon: (a) personal
delivery; (b) one business day after deposit with a nationally recognized
express courier, specifying next day delivery, with written confirmation of
receipt; or (c) five days after deposit in the United States mail for domestic
delivery, by registered or certified mail, postage prepaid, addressed as set
forth below the name of each party to this Agreement on the signature page of
this Agreement or at such other address as a party may designate by 10 days
advance written notice to the other parties hereto.
4.6 Survival of Warranties, Representation and Acknowledgments. The
warranties, representations, acknowledgments of the parties contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement.
4.7 Costs and Expenses. Each party to this Agreement shall bear its own
costs and expenses (including attorney's fees) incurred in association with the
execution of this Agreement.
4.8 Amendment. This Agreement may be amended only by a written
instrument duly executed by each of the parties or by an authorized
representative of each of the parties.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Repurchase Agreement as of the day and year first above written.
HUMAN PHEROMONE SCIENCES, INC.
a California corporation
/s/ William P. Horgan
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William P. Horgan
Title: Chief Executive Officer
Address: Human Pheromone Sciences, Inc.
84 W. Santa Clara St., Suite 720
San Jose, CA 95113
MK GVD FUND
/s/ Michael D. Kaufman
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Michael D. Kaufman
Address: 2471 East Bayshore Road
Suite 520
Palo Alto, CA 94303