EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of May 18, 2004, by and among
MedCap Partners L.P. ("MEDCAP") and Crdentia Corp., a Delaware corporation (the
"COMPANY" and collectively with MedCap, the "PURCHASERS"), on the one hand, and
the parties listed on the Schedule of Stockholders attached to this Agreement as
EXHIBIT A (each hereinafter individually referred to as a "STOCKHOLDER" and
collectively referred to as the "STOCKHOLDERS").
RECITALS
WHEREAS, the Stockholders collectively own One Million Seven Hundred
Sixty-Six Thousand and Fourteen (1,766,014) of the issued and outstanding shares
of the Company's Common Stock (the "SHARES");
WHEREAS, the Purchasers desire to acquire all of the Shares held by the
Stockholders on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Acquisition of Shares.
1.1 SALE OF SHARES TO MEDCAP. On the Closing Date (as defined
below), the Stockholders shall convey, transfer and assign, upon the terms and
conditions herein set forth, to MedCap, free and clear of all liens, security
interests, pledges, claims and encumbrances of every kind, nature and
description, and MedCap shall accept from the Stockholders, One Million Sixteen
Thousand and Fourteen (1,016,014) Shares in exchange for Seven Hundred Sixty-Two
Thousand Ten Dollars and Fifty Cents ($762,010.50), paid by wire transfers to
accounts designated by the Stockholders or by cashier's checks drawn upon a
federally insured lending institution (the "MEDCAP CASH PAYMENT").
1.2 SALE OF SHARES TO THE COMPANY. On the Closing Date, the
Stockholders shall transfer Seven Hundred Fifty Thousand (750,000) Shares (the
"ESCROW SHARES") to Continental Stock Transfer & Trust Company. (the "ESCROW
AGENT"). The Escrow Agent shall convey, transfer and assign, upon the terms and
conditions herein set forth, to the Company or its assign(s), free and clear of
all liens, security interests, pledges, claims and encumbrances of every kind,
nature and description, the Escrow Shares, as follows:
(a) Beginning on July 1, 2004, and continuing on the
first day of each month through and including June 1, 2005 (each an "INITIAL
PAYMENT DATE"), the Company or its assign(s) shall pay $31,250 to the Escrow
Agent by a wire transfer to an account designated by the Escrow Agent or by a
cashier's check drawn upon a federally insured lending institution, and the
Escrow Agent shall cause 31,250 Escrow Shares to be transferred to the Company
or its assign(s).
1
(b) Beginning on July 1, 2005 and continuing on the
first day of each month through and including June 1, 2006 (each a "SUBSEQUENT
PAYMENT DATE"), the Company or its assign(s) shall pay $46,875 to the Escrow
Agent by a wire transfer to an account designated by the Escrow Agent or by a
cashier's check drawn upon a federally insured lending institution, and the
Escrow Agent shall cause 31,250 Escrow Shares to be transferred to the Company
or its assign(s).
In the event the Company or its assign(s) fails to transfer payment to
the Escrow Agent on any Initial Payment Date or Subsequent Payment Date, as the
case may be, (a) the Escrow Agent shall transfer the to the Stockholders the
Escrow Shares which would otherwise have been transferred to the Company or its
assign(s) on such date, and (b) the Stockholders shall have an option for a
period of thirty (30) days to request that the Escrow Agent return all of the
remaining Escrow Shares to the Stockholders. If the Stockholders do not exercise
the option, the Company or its assign(s) will continue to have the right to
transfer payment to the Escrow Agent in exchange for Shares on any succeeding
Initial Payment Date or Subsequent Payment Date, as the case may be. The
Stockholders' sole and exclusive remedy in the event the Company or its
assign(s) fails to transfer payment to the Escrow Agent on any Initial Payment
Date or Subsequent Payment Date, as the case may be, shall be to have the Escrow
Agent return to the Stockholders the remaining Escrow Shares.
The Escrow Agent shall act pursuant to the terms of this Agreement and
an Escrow Agreement among the Company, the Stockholders and the Escrow Agent in
the form attached hereto as EXHIBIT B (the "ESCROW AGREEMENT").
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. As material
inducement to the Purchasers to enter into this Agreement and purchase the
Shares hereunder, each Stockholder severally makes the following representations
and warranties to the Purchasers:
2.1 The Stockholder owns the number of Shares set forth
opposite such Stockholder's name on EXHIBIT A. The Stockholder has good,
marketable and unencumbered title to such Shares, free and clear of all liens,
security interests, pledges, claims, options and rights of others. There are no
restrictions on the Stockholder's right to transfer such Shares to the
Purchasers pursuant to this Agreement. The Shares are transferable under Rule
144 promulgated under the Securities Act of 1933, as amended (the "Securities
Act"). All transfers of the Shares effected prior to the Closing have complied
with all applicable laws, rules and regulations (including, without limitation,
the Securities Act).
2.2 The consummation of the transactions contemplated by this
Agreement does not violate any other agreements to which the Stockholder is a
party either in whole or in part and the Stockholder has all necessary power and
authority to enter into and perform this Agreement.
2.3 This Agreement constitutes a valid and binding obligation
of the Stockholder.
2.4 There is no action, suit, proceeding or investigation
pending or currently threatened that relates to the Shares or the Stockholder.
2
2.5 The Stockholder has complied with all applicable federal
and state statutes, rules and regulations (the "LAWS") that relate to the
Shares. The execution, delivery and performance of this Agreement and the Escrow
Agreement, and the consummation of the transactions contemplated hereby and
thereby will not result in any violation of any applicable Laws.
2.6 The Stockholder neither is nor will he, she or it be
obligated for any finders' fee or commission in connection with this
transaction.
2.7 The Stockholder has been provided with, and has had an
opportunity to review, each form, report, schedule, statement and other document
filed by the Company under the Exchange Act or the Securities Act, including any
amendment to such document.
2.8 Except for Gera Laun and the Mabery Group, each
Stockholder is an "accredited investor" as defined in Rule 501 of Regulation D
promulgated under the Securities Act.
2.9 The Stockholder is a sophisticated investor, and is
capable of fending for himself with respect to the transactions contemplated by
this Agreement. The Stockholder acknowledges and agrees that there are risks
associated with the transactions contemplated by this Agreement, including, but
not limited to, the risk that the value of the Shares may, in the future, exceed
the amounts the Purchasers have agreed to pay for the Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. As material
inducement to the Stockholders to enter into this Agreement, each Purchaser
severally makes the following representations and warranties to the
Stockholders:
3.1 The consummation of the transactions contemplated by this
Agreement does not violate any other agreements to which the Purchaser is a
party either in whole or in part and it has all necessary power and authority to
enter into and perform this Agreement.
3.2 This Agreement constitutes a valid and binding obligation
of the Purchaser.
3.3 The Purchaser is acquiring the Shares solely for its own
account for investment, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof.
4. ADDITIONAL REPRESENTATION AND WARRANTY OF THE COMPANY. In addition
to the representations and warranties set forth in Section 3, the Company
represents and warrants to the Stockholders that it does not need the consent of
its stockholders to enter into and perform this Agreement.
5. FURTHER AGREEMENTS. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
6. CLOSING.
3
6.1 CLOSING DATE. The closing of the transactions provided for
in this Agreement (herein sometimes called the "CLOSING") shall take place at
the offices of Morrison & Foerster LLP, 3811 Valley Centre Drive, San Diego, CA
92130 at 10:00 a.m. on May 18, 2004, or at such time and in such manner as the
parties mutually agree. The date and time of Closing is sometimes herein called
the "CLOSING DATE."
6.2 DELIVERIES BY THE STOCKHOLDERS AT THE CLOSING. At the
Closing, the Stockholders will deliver or cause to be delivered to MedCap, the
Company and/or the Escrow Agent, as the case may be:
(a) Certificates for One Million Sixteen Thousand and
Fourteen (1,016,014) Shares to MedCap, endorsed by the Stockholders in blank, or
with stock transfer powers executed by the Stockholders in blank attached. The
number of Shares to be transferred by each Stockholder to MedCap is set forth
opposite each Stockholder's name on EXHIBIT A;
(b) Certificates for Seven Hundred Fifty Thousand
(750,000) Shares to the Escrow Agent, endorsed by the Stockholders in blank, or
with stock transfer powers executed by the Stockholders in blank attached. The
number of Shares to be transferred by each Stockholder to the Escrow Agent is
set forth opposite each Stockholder's name on EXHIBIT A; and
(c) The Escrow Agreement, duly executed by the
Stockholders.
6.3 DELIVERIES BY MEDCAP AND/OR THE COMPANY AT THE CLOSING. At
the Closing, MedCap and/or the Company, as the case may be, will deliver or
cause to be delivered to the Stockholders the following:
(a) MedCap shall deliver the MedCap Cash Payment to
the Stockholders. Each Stockholder shall receive that portion of the MedCap Cash
Payment set forth opposite such Stockholder's name on EXHIBIT A; and
(b) The Escrow Agreement, duly executed by MedCap and
the Company.
6.4 ADDITIONAL DELIVERY BY THE STOCKHOLDERS. For so long as
the Company has the right to transfer payment to the Escrow Agent in exchange
for Escrow Shares, each Stockholder agrees to immediately provide the Purchasers
with written notice of any change(s) to the representations and warranties of
such Stockholder contained in Section 2.
7. COVENANTS OF THE COMPANY. The Company hereby covenants and agrees
with the Stockholders as follows:
7.1 In the event the Company closes an equity financing
pursuant to which it sells shares of capital stock and receives net proceeds of
at least $3,000,000, the Company's obligations under Section 1.2 shall
accelerate such that the Company shall be obligated to, within thirty (30) days
of the closing of such equity financing, transfer to the Escrow Agent, in
exchange for all of the remaining Escrow Shares, an amount equal to the
aggregate amounts due on all remaining Initial Payment Dates and/or Subsequent
Payment Dates.
4
7.2 In the event the Company closes an equity financing
pursuant to which it sells shares of capital stock and receives net proceeds of
less than $3,000,000, the Company shall, within thirty (30) days of the closing
of such equity financing, transfer ten percent (10%) of the net proceeds of such
equity financing to the Escrow Agent to be applied against amounts due upon one
or more future Initial Payment Dates or Subsequent Payment Dates, as the case
may be.
8. STAND-STILL AGREEMENT.
Each Stockholder hereby agrees that, except as set forth in this
Agreement, it will not, directly or indirectly, without the prior written
consent of the Company, during the period commencing on the date hereof and
ending on May 31, 2006 (i) lend, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for the Company's
Common Stock (whether such shares or any such securities are then owned by the
Stockholder or are thereafter acquired), or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Company's Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of the Company's Common Stock or such other securities, in cash or otherwise.
Notwithstanding the foregoing, nothing in this Agreement shall prohibit the
Stockholders from selling (a) up to 58,000 shares of the Company's Common Stock
that are owned by the Stockholders as of the Closing and are not subject to the
purchase rights contained in this Agreement, and (b) shares of the Company's
Common Stock not subject to the purchase rights contained in this Agreement that
the Stockholders purchase in the public market; provided, however, that the
Stockholders cannot utilize or lend any shares of the Company's Common Stock to
facilitate or consummate any short sale or other derivative transaction with
respect to the Company.
9. INDEMNIFICATION.
The Stockholders shall severally indemnify, defend and hold harmless
the Company and MedCap and their respective officers, directors, employees,
partners, affiliates, agents, successors, subsidiaries and assigns from and
against any and all costs, losses, liabilities, claims, demands, causes of
action or suits of any type that are incident to the Stockholders' ownership of
the Shares and title to the Shares.
10. MISCELLANEOUS.
10.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware.
10.2 HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the transferees, successors, assigns and legal representatives of
the parties hereto. The parties acknowledge and agree that the rights and
obligations of the Company hereunder may be freely assigned, in whole or in
part, to one or more individuals or entities.
5
10.3 COUNTERPARTS. This Agreement may be executed in
counterparts with the same force and effect as if each of the signatories had
executed the same instrument.
10.4 SEVERABILITY. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, then the remainder of this Agreement and application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto.
10.5 AMENDMENT; WAIVER. This Agreement may be amended, and the
observance of any term hereof may be waived, by the written agreement of
Company, MedCap and a majority-in-interest of the Stockholders.
10.6 NOTICES. All notices and other communications required or
permitted under this Agreement will be in writing and will be either hand
delivered in person, sent by certified or registered first class mail, postage
pre-paid, or sent by nationally recognized express courier service. Such notices
and other communications will be effective upon receipt if hand delivered or
sent by telecopier, five days after mailing if sent by mail, and one day after
dispatch if sent by express courier, to the addresses set forth on the signature
pages or Exhibit A, as the case may be, or such other addresses as any party may
notify the other parties in accordance with this Section.
10.7 CONSTRUCTION. This Agreement has been negotiated by the
respective parties hereto and their attorneys and the language hereof will not
be construed for or against any party. Unless otherwise indicated herein, all
references in this Agreement to "Sections" refer to sections of this Agreement.
The titles and headings herein are for reference purposes only and will not in
any manner limit the construction of this Agreement which will be considered as
a whole.
10.8 STOCK SPLIT, RECAPITALIZATION. The stock amounts set
forth in this Agreement shall be proportionately adjusted for any stock split or
recapitalization effected by the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
CRDENTIA CORP.
By: /s/ James D. Durham
-----------------------
James D. Durham
CHIEF EXECUTIVE OFFICER
14115 Dallas Parkway, Suite 600
Dallas, TX 75254
MEDCAP PARTNERS L.P.
By: /s/ C. Fred Toney
---------------------
---------------------------
---------------------------
500 Third Street, Suite 535
San Francisco, CA 94107
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
RICHARD ANDZEL
/s/ Richard Andzel
-----------------------------
Richard Andzel, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
GERA LAUN
/s/ Gery Laun
------------------------
Gery Laun, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
ANTHONY R. MORGENTHAU
/s/ Anthony R. Morgenthau
------------------------------------
Anthony R. Morgenthau, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
REMSEN GROUP LTD.
By: /s/ Martin I. Saposnick
-----------------------------
President
-----------------------------
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
ARM HOLDINGS, L.P.
By: /s/ Anthony R. Morgenthau
-------------------------------
President, General Partner
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
JOSEPH J. MESSINA
/s/ Joseph J. Messina
--------------------------------
Joseph J. Messina, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
JEFFREY PEARLMAN
/s/ Jeffrey Pearlman
-------------------------------
Jeffrey Pearlman, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
WILMONT HOLDINGS CORP.
By: /s/ Joseph J. Messina
---------------------
President
------------------------------
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
MABERY GROUP, INC.
By: /s/ Robert Gordon
------------------------------
President
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
KAREN A. BAKER
/s/ Karen A. Baker
----------------------------------
Karen A. Baker, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
SIMONE V. PALAZZOLO
/s/ Simone V. Palazzolo
----------------------------------
Simone V. Palazzolo, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
GABLE INTERNATIONAL HOLDINGS LTD.
By: /s/ Hil De Frias
----------------
Director
------------------------------
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
ATLANTIC INTERNATIONAL
By: /s/ Richard Iamunno
-------------------
President
------------------------------
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Common Stock
Purchase Agreement as of the date first above written.
JOSEPH SALERNO
/s/ Joseph Salerno
-----------------------------
Joseph Salerno, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
EXHIBIT A
SCHEDULE OF STOCKHOLDERS
NO. OF SHARES NO. OF SHARES PORTION OF
NUMBER OF DELIVERED TO DELIVERED TO MEDCAP CASH
NAME AND ADDRESS SHARES MEDCAP ESCROW AGENT PAYMENT
---------------- ------ ------ ------------ -------
Richard Andzel 37,500 21,336 16,164 $16,002.22
2616 Aqua Vista
Ft. Lauderdale, FL 33301
Gera Laun 25,000 14,224 10,776 $10,668.15
13 Second Avenue
Bayville, NY 11709
Anthony R. Morgenthau 37,500 21,336 16,164 $16,002.22
380 Leucadendra Drive
Coral Gables, FL 33156
Remsen Group Ltd. 277,000 159,515 117,485 $119,635.65
21 Schermerhorn
Brooklyn, NY 11201
ARM Holdings 300,000 172,722 127,278 $129,541.79
One Financial Plaza
Suite 2504
Ft. Lauderdale, FL 33394
Joseph J. Messina 54,450 30,480 23,970 $22,860.32
33 Wilputte Place
New Rochelle, NY 10804
Jeffrey Pearlman 70,550 40,641 29,909 $30,480.42
50 Pecan Valley Drive
New City, NY 10956
Wilmont Holdings Corp. 197,000 112,778 84,222 $84,583.17
33 Wilputte Place
New Rochelle, NY 10804
Mabery Group 95,000 54,865 40,135 $41,148.57
444 Madison Ave.
Suite 2904
NY, NY 10022
Karen A. Baker 12,728 10,160 2,568 $7,620.08
6220 79th Street
Middle Village, NY
11379
Simone V. Palazzolo 35,000 20,320 14,680 $15,240.21
444 Madison Ave.
Suite 2904
NY, NY 10022
Gable Intl Holdings Ltd. 375,786 215,395 160,391 $161,546.23
Attn: Hildeberto S. de Frias
31 Church Street
PO Box 1564
Hamilton Bermuda HMFX
Atlantic International 218,500 124,970 93,530 $93,727.29
Capital
95 Front Street
Hamilton, HM 12
Bermuda
Joseph Salerno 30,000 17,272 12,728 $12,954.18
20 5th Ave., #3D
NY, NY 10001
TOTALS: 1,766,014 1,016,014 750,000 $762,010.50
EXHIBIT B
ESCROW AGREEMENT
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is made and entered into as of
May 18, 2004, by and among Crdentia Corp., a Delaware corporation ("Company"),
the stockholders listed on the Schedule of Stockholders attached hereto as
ATTACHMENT A (each a "Stockholder" and collectively the "Stockholders") and
Continental Stock Transfer & Trust Company, as escrow agent ("Escrow Agent").
A. Company, MedCap Partners L.P. ("MedCap") and the Stockholders
entered into a Stock Purchase Agreement (the "Purchase Agreement") on May 18,
2004, a copy of which is attached hereto as ATTACHMENT B. The capitalized terms
used in this Agreement and not otherwise defined herein will have the same
meanings ascribed to them in the Purchase Agreement. This Agreement is the
Escrow Agreement, as that term is defined in the Purchase Agreement.
B. The Purchase Agreement provides for the acquisition by the Company
and MedCap of 1,766,014 shares of the Company's Common Stock (the "Shares") held
by the Stockholders.
C. Section 1.2 of the Purchase Agreement provides that, upon the
Closing Date, the Stockholders shall deliver 750,000 Shares (the "Escrow
Shares") to the Escrow Agent to be placed in an escrow account designated as the
Crdentia Escrow Account or an account having a similar designation (the "Escrow
Account").
D. The parties hereto desire to establish the terms and conditions
pursuant to which the Escrow Shares will be deposited, held in and disbursed
from the Escrow Account.
E. This Agreement shall be effective on and as of the Closing Date.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. ESCROW.
(a) DEPOSIT OF ESCROW SHARES. Upon the Closing Date, the
Stockholders shall deliver and deposit with Escrow Agent the Escrow Shares,
endorsed in blank, or with stock transfer powers executed in blank attached
thereto. Set forth on ATTACHMENT A hereto is a list setting forth the names and
addresses of the Stockholders, the number of Escrow Shares transferred by each
Stockholder to the Escrow Agent, and their respective ownership interests in the
aggregate number of Escrow Shares transferred by all the Stockholders to the
Escrow Agent hereunder (the "Percentage Interests"). Escrow Agent shall hold the
Escrow Shares in escrow under this Agreement until required to release such
Escrow Shares pursuant to the terms of this Agreement and the Purchase
Agreement.
(b) DIVIDENDS AND ADJUSTMENT TO ESCROW SHARES. Any shares of
Company Common Stock issued as a result of, or issued upon the conversion or
exercise of any security issued as a result of, any stock dividend,
reclassification, stock split, subdivision or combination of shares,
recapitalization, merger or other events occurring with respect to the Escrow
Shares while they are held in escrow under this Agreement ("Additional Escrow
Shares") will be delivered to Escrow Agent and held in escrow and distributed to
the Company or returned to the Stockholders, as required by the terms of the
Purchase Agreement and this Agreement, in the same manner and in the same
proportions as the Escrow Shares. After the issuance of any Additional Escrow
Shares, the Company shall promptly deliver to Escrow Agent a revised ATTACHMENT
A setting forth the revised number of Escrow Shares and the updated Percentage
Interests of the Stockholders in the Escrow Shares. For all purposes of this
Agreement, Additional Escrow Shares issued with respect to Escrow Shares will be
treated the same as (and will be considered to be) Escrow Shares.
2. DISTRIBUTIONS FROM ESCROW.
(a) RELEASE OF ESCROW SHARES. Subject to the terms and
conditions set forth herein and in the Purchase Agreement, the Escrow Agent
shall release the Escrow Shares pursuant to the provisions of Section 1.2 of the
Purchase Agreement. Following any Initial Payment Date or Subsequent Payment
date, as the case may be, the Escrow Agent will promptly transfer the requisite
number of Escrow Shares to the Company, one or more of the Company's assign(s),
or the Stockholders, as the case may be. In addition, the Escrow Agent may
release the Escrow Shares pursuant to a written demand executed by the Company,
on the one hand, and the Stockholders, on the other hand.
(b) PAYMENTS TO STOCKHOLDERS. Any funds received by the Escrow
Agent pursuant to Section 1.2 or Section 7 of the Purchase Agreement shall be
promptly distributed to the Stockholders in accordance with their respective
Percentage Interests.
(c) NO ENCUMBRANCE. No Escrow Shares, or any beneficial
interest therein, may be sold, assigned, or transferred, pledged or otherwise
encumbered by any Stockholder, or be taken or reached by any legal or equitable
process in satisfaction of any debt, obligation or other liability of any
Stockholder while the Escrow Shares are being held in escrow under the terms of
this Agreement and the Purchase Agreement.
3. LIMITATION OF ESCROW AGENT'S LIABILITY.
(a) Escrow Agent will incur no liability with respect to any
action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other document believed by it to be genuine
and duly authorized, nor for any other action or inaction, except its own
willful misconduct or gross negligence. Escrow Agent will have no duty to
inquire into or investigate the validity, accuracy or content of any document
delivered to it. Escrow Agent will not be responsible for the validity or
sufficiency of this Agreement. In all questions arising under this Agreement,
Escrow Agent may rely on the advice or opinion of its counsel, and for anything
done, omitted or suffered in good faith by Escrow Agent based on such advice,
Escrow Agent will not be liable to anyone. Escrow Agent will not be required to
take any action hereunder involving any expense unless the payment of such
expense is made or provided for in a manner satisfactory to it.
(b) In the event conflicting demands are made or conflicting
notices are served upon Escrow Agent with respect to the Escrow Account, Escrow
Agent will have the absolute right, at Escrow Agent's election, to do either or
3
both of the following: (i) resign so a successor can be appointed pursuant to
Section 5 or (ii) file a suit in interpleader and obtain an order from a court
of competent jurisdiction located in the County of Kent, Delaware (the
"Stipulated Jurisdiction") requiring the parties to interplead and litigate in
such court their several claims and rights among themselves. For the purpose of
this Section 3(b), the parties each consent to the personal jurisdiction of the
federal and state courts in the Stipulated Jurisdiction and waive any objection
to the venue (except those arising from subject-matter jurisdiction of the
court) and rights to request dismissal on the grounds of forum non conveniens or
similar doctrines. In the event such interpleader suit is brought and Escrow
Shares are deposited as required by applicable procedural rules governing
litigation in interpleader in the Stipulated Jurisdiction, Escrow Agent will be
entitled (upon court order) to be fully released and discharged from all further
obligations imposed upon it under this Agreement, and Company and the
Stockholders will equally pay Escrow Agent all costs, expenses and reasonable
attorney's fees expended or incurred by Escrow Agent pursuant to the exercise of
Escrow Agent's rights under this Section 3 (such costs, fees and expenses will
be treated as extraordinary fees and expenses for the purposes of Section 4).
Either Company or the Stockholders will be entitled to reimbursement from the
other party of any extraordinary fees and expenses of Escrow Agent in the event
that such party prevails in such dispute.
(c) Each party to this Agreement (other than Escrow Agent),
jointly and severally (each an "Indemnifying Party" and together the
"Indemnifying Parties") hereby covenants and agrees to reimburse, indemnify and
hold harmless Escrow Agent, Escrow Agent's officers, directors, employees,
counsel and agents (severally and collectively, "Escrow Agent"), from and
against any damage, liability or loss suffered, incurred by, or asserted against
Escrow Agent (including amounts paid in settlement of any action, suit,
proceeding, or claim brought or threatened to be brought and including
reasonable expenses of legal counsel, collectively, "Loss") arising out of, in
connection with or based upon any act or omission by Escrow Agent (and/or any of
its officers, directors, employees, counsel or agents) relating in any way to
this Agreement or Escrow Agent's services hereunder. This indemnity will exclude
any indemnification for any Loss arising in whole or in part, directly or
indirectly, from any gross negligence or willful misconduct on Escrow Agent's
part.
4. EXPENSES OF ESCROW AGENT. All fees and expenses (if any) of Escrow
Agent incurred in the ordinary course of performing its responsibilities under
this Agreement will be paid by Company. Any extraordinary fees and expenses,
including without limitation any fees or expenses incurred by Escrow Agent in
connection with a dispute over the distribution of Escrow Shares will be paid
equally by Company and the Stockholders upon receipt of a written invoice by
Escrow Agent.
5. SUCCESSOR ESCROW AGENT. In the event Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, Escrow Agent may
resign and be discharged from its duties or obligations hereunder by giving
notice of its resignation to the parties to this Agreement, specifying a date
not less than ten (10) days following such notice date of when such resignation
will take effect. Company will designate a successor Escrow Agent prior to the
expiration of such ten (10) day period by giving written notice to Escrow Agent
and the Stockholders. If Company does not appoint a successor escrow agent, the
4
Escrow Agent may apply to a court of competent jurisdiction to do so. Escrow
Agent will promptly deliver the Escrow Shares to such designated successor.
6. GENERAL PROVISIONS
(a) GOVERNING LAW. The internal laws of the State of Delaware
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto.
(b) ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. This
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. The rights and
obligations of the Company hereunder may be freely assigned, in whole or in
part, to one or more individuals or entities.
(c) SEVERABILITY. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, then the remainder of this Agreement and application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto.
(d) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, bear the signatures of all
parties reflected hereon as signatories.
(e) AMENDMENT; WAIVER. This Agreement may be amended by the
written agreement of Company, Escrow Agent and the Stockholders, PROVIDED THAT,
if Escrow Agent does not agree to an amendment agreed upon by Company and the
Stockholders, Escrow Agent will resign and Company will appoint a successor
Escrow Agent in accordance with Section 5. No amendment of the Purchase
Agreement will increase Escrow Agent's responsibilities or liability hereunder
without Escrow Agent's written agreement. No waiver by any party hereto of any
condition or of any breach of any provision of this Agreement will be effective
unless such waiver is set forth in a writing signed by such party. No waiver by
any party of any such condition or breach, in any one instance, will be deemed
to be a further or continuing waiver of any such condition or breach or a waiver
of any other condition or breach of any other provision contained herein.
(f) NOTICES. All notices and other communications required or
permitted under this Agreement will be in writing and will be either hand
delivered in person, sent by certified or registered first class mail, postage
pre-paid, or sent by nationally recognized express courier service. Such notices
and other communications will be effective upon receipt if hand delivered or
sent by telecopier, five days after mailing if sent by mail, and one day after
dispatch if sent by express courier, to the following addresses, or such other
addresses as any party may notify the other parties in accordance with this
Section:
5
If to the Company:
Crdentia Corp.
14115 Dallas Parkway, Suite 600
Dallas, Texas 75254
Facsimile No.: (972) 392-2722
Attention: Chief Executive Officer
6
with copies to:
Morrison & Foerster LLP
3811 Valley Centre Drive, Suite 500
San Diego, CA 92130
Facsimile No.: (858) 720-5125
Attention: Steven G. Rowles, Esq.
If to a Stockholder:
At the address set forth on ATTACHMENT A
If to Escrow Agent:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, NY 10004
Facsimile: (212) 616-7616
Attention: Roger Bernhammer
Notwithstanding the foregoing, notices addressed to Escrow Agent shall be
effective only upon receipt.
(g) CONSTRUCTION. This Agreement has been negotiated by the respective
parties hereto and their attorneys and the language hereof will not be construed
for or against any party. Unless otherwise indicated herein, all references in
this Agreement to "Sections" refer to sections of this Agreement. The titles and
headings herein are for reference purposes only and will not in any manner limit
the construction of this Agreement which will be considered as a whole.
[The remainder of this page is intentionally left blank]
7
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
CRDENTIA CORP.
By: /s/ James D. Durham
-----------------------
James D. Durham
Chief Executive Officer
ESCROW AGENT:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: /s/ Roger Bernhammer
-----------------------
Print Name: Roger Bernhammer
Title: Vice President
[Signature Page To Escrow Agreement]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
RICHARD ANDZEL
/s/ Richard Andzel
- -----------------------------
Richard Andzel, an individual
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
GERA LAUN
/s/ Gery Laun
- ------------------------
Gery Laun, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ANTHONY R. MORGENTHAU
/s/ Anthony R. Morgenthau
- ------------------------------------
Anthony R. Morgenthau, an individual
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
REMSEN GROUP LTD.
By: /s/ Martin I. Saposnick
- -----------------------------
President
- -----------------------------
[SIGNATURE PAGE TO COMMON STOCK AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ARM HOLDINGS, L.P.
By: /s/ Anthony R. Morgenthau
- -------------------------------
President, General Partner
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
JOSEPH J. MESSINA
/s/ Joseph J. Messina
- --------------------------------
Joseph J. Messina, an individual
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
JEFFREY PEARLMAN
/s/ Jeffrey Pearlman
- -------------------------------
Jeffrey Pearlman, an individual
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
WILMONT HOLDINGS CORP.
By: /s/ Joseph J. Messina
- ---------------------
President
- ------------------------------
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
MABERY GROUP, INC.
By: /s/ Robert Gordon
- ------------------------------
President
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
KAREN A. BAKER
/s/ Karen A. Baker
- ----------------------------------
Karen A. Baker, an individual
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
SIMONE V. PALAZZOLO
/s/ Simone V. Palazzolo
- ----------------------------------
Simone V. Palazzolo, an individual
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
GABLE INTERNATIONAL HOLDINGS LTD.
By: /s/ Hil De Frias
- ----------------
Director
- ------------------------------
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ATLANTIC INTERNATIONAL
By: /s/ Richard Iamunno
- -------------------
President
- ------------------------------
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
JOSEPH SALERNO
/s/ Joseph Salerno
- -----------------------------
Joseph Salerno, an individual
[SIGNATURE PAGE TO ESCROW AGREEMENT]
ATTACHMENT A
SCHEDULE OF STOCKHOLDERS AND PERCENTAGE INTERESTS
- ----------------------------------- ---------------------- --------------------
Shareholder Name Percentage Interest
And Address Escrow Shares of all Escrow Shares
- ----------------------------------- ---------------------- --------------------
Richard Andzel 16,164 2.2%
2616 Aqua Vista
Ft. Lauderdale, FL 33301
- ----------------------------------- ---------------------- --------------------
Gera Laun 10,776 1.4%
13 Second Avenue
Bayville, NY 11709
- ----------------------------------- ---------------------- --------------------
Anthony R. Morgenthau 16,164 2.2%
380 Leucadendra Drive
Coral Gables, FL 33156
- ----------------------------------- ---------------------- --------------------
Remsen Group Ltd. 117,485 15.7%
21 Schermerhorn
Brooklyn, NY 11201
- ----------------------------------- ---------------------- --------------------
ARM Holdings 127,278 17.0%
One Financial Plaza, Suite 2504
Ft. Lauderdale, FL 33394
- ----------------------------------- ---------------------- --------------------
Joseph J. Messina 23,970 3.2%
33 Wilputte Place
New Rochelle, NY 10804
- ----------------------------------- ---------------------- --------------------
Jeffrey Pearlman 29,909 4.0%
50 Pecan Valley Dirve
New City, NY 10956
- ----------------------------------- ---------------------- --------------------
Wilmont Holdings Corp. 84,222 11.2%
33 Wilputte Place
New Rochelle, NY 10804
- ----------------------------------- ---------------------- --------------------
Mabery Group 40,135 5.4%
444 Madison Avenue, Suite 2904
New York, NY 10022
- ----------------------------------- ---------------------- --------------------
Karen A. Baker 2,568 0.3%
6220 79th Street
Middle Village, NY 11379
- ----------------------------------- ---------------------- --------------------
Simone V. Palazzolo 14,680 2.0%
444 Madison Avenue, Suite 2904
New York, NY 10022
A-1
- ----------------------------------- ---------------------- --------------------
Gable Int'l Holdings Ltd. 160,391 21.3%
Attn: Hildeberto S. de Frias
31 Church Street
PO Box 1564
Hamilton Bermuda HMFX
- ----------------------------------- ---------------------- --------------------
Atlantic International Capital 93,530 12.4%
95 Front Street
Hamilton, HM 12 Bermuda
- ----------------------------------- ---------------------- --------------------
Joseph Salerno 12,728 1.7%
20 5th Avenue, #3D
New York, NY 10001
- ----------------------------------- ---------------------- --------------------
TOTALS 750,000 100%
- ----------------------------------- ---------------------- --------------------
A-2
ATTACHMENT B
STOCK PURCHASE AGREEMENT