EXHIBIT
10.16
OMNIBUS
STOCKHOLDERS’ AGREEMENT
This OMNIBUS STOCKHOLDERS’ AGREEMENT (this
“ Agreement ”) is made and entered into
as of October 24, 2003, by and among Arbios Technologies, Inc., a
Delaware corporation (“ Arbios ”),
Historical Autographs U.S.A., Inc., a Nevada corporation (“
HAUSA ”), Spectrum Laboratories, Inc., a
Delaware corporation (“ Spectrum ”),
Cedars-Sinai Medical Center, a California nonprofit public benefit
corporation (the “ Junior Preferred Investor
”), Achilles A. Demetriou, M.D., Ph.D. and Kristin P.
Demetriou, as Trustees of the A & K Demetriou Family Trust
created on November 13, 2000 (collectively, “
Demetriou ”) and Jacek Rozga, M.D., Ph.D. and
Joanna Rozga (collectively, “ Rozga, ”
and, collectively with Demetriou, the " Founders
"). Spectrum, the Junior Preferred Investor, and the Founders are
sometimes collectively hereinafter referred to as the "
Holders ".
RECITALS
A. Arbios has
entered into that certain Agreement and Plan of Reorganization (the
“ Plan of Reorganization ”), dated
October 20, 2003, among Arbios, HAUSA, HAUSA Acquisition, Inc., a
Nevada corporation, Raymond J. Kuh and Cindy K. Swank, pursuant to
which Arbios will merge with HAUSA Acquisition, Inc. (the “
Merger ”). As a result of the Merger, each
share of common stock of Arbios outstanding immediately before the
Merger will be converted into one share of common stock of HAUSA
(the common stock of HAUSA to be issued in the Merger is herein
referred to as the “ Common Stock
”).
B. Arbios and
the Holders are parties to that certain First Amended and Restated
Stockholders’ Agreement, dated as of December 21, 2001 (the
“ Existing Stockholders’ Agreement
”).
C. Arbios, the
Founders and the Junior Preferred Investor are parties to that
certain Investors’ Rights Agreement, dated as of June 29,
2001 (the “ Investors’ Rights Agreement
”).
D. As a result
of the reorganization of Arbios’ ownership that will occur in
the Merger, (i) Arbios and the Holders agree that the Existing
Stockholders’ Agreement should be terminated, effective as of
the Merger, and (ii) Arbios, the Junior Preferred Investor and the
Founders agree that the Investors’ Rights Agreement should be
terminated, effective as of the Merger.
E. Pursuant to
the Plan of Reorganization, all outstanding shares of preferred
stock of Arbios are required to be converted into additional shares
of Arbios common stock, which shares of Arbios common stock will be
converted into shares of Common Stock in the Merger.
F. The Junior
Preferred Investor, the owner of all of the issued and outstanding
shares of Arbios’ preferred stock, is willing to convert its
681,818 shares of Junior Preferred Stock for 681,818 shares of
Arbios common stock immediately prior to the Merger on the terms
and conditions of this Agreement.
G. The parties
to this Agreement agree that the restrictions imposed by the two
Founder’s Restricted Stock Purchase Agreements, each entered
into as of September 1, 2002 by one of the Founders and Arbios (the
“ Founder’s Agreements ”), on
the Arbios shares owned by the Founders will no longer be necessary
or appropriate following the Merger.
H. The Merger
and the other transactions contemplated by the Plan of
Reorganization are scheduled to occur by no later than October 30,
2003.
AGREEMENT
NOW, THEREFORE, for and in consideration of the
premises, covenants and obligations contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
TERMINATION OF PRIOR AGREEMENTS
1.1
Termination of Prior Agreements . Subject to the consummation of the Merger, the
parties to the Existing Stockholders’ Agreement and to the
Investors’ Rights Agreement hereby agree that each such
agreement shall automatically terminate and be cancelled effective
as of the effectiveness of the Merger.
1.2 Waiver
of Rights Under Prior Agreements . Each party to this Agreement who is also a party
to either of the Existing Stockholders’ Agreement or the
Investors’ Rights Agreement hereby waives any and all rights
such party may have under such agreements relating to this
Agreement, the Plan or Reorganization, or any of the transactions
contemplated by any of the foregoing agreements, including the
right to approve such transactions or the right of first refusal to
purchase any shares issuable in any such transactions.
2.
CONVERSION/EXCHANGE OF PREFERRED
STOCK
2.1 The Junior
Preferred Investor hereby agrees to exchange/convert all of the
681,818 shares of Junior Preferred Stock owned by the Junior
Preferred Investor for 681,818 shares of Arbios common stock (the
“ Exchange ”). In order to effect the
Exchange, the Junior Preferred Investor is hereby delivering to
Arbios the stock certificate representing all of the shares of
Junior Preferred Stock owned by the Junior Preferred Investor,
which certificate has been duly endorsed for cancellation. Subject
to Section 2.2 below, the Junior Preferred Investor hereby
irrevocably instructs Arbios to cancel the foregoing certificate
and the shares of Junior Preferred Stock immediately prior to the
Merger, and Arbios hereby agrees to cancel the Junior Preferred
Stock and to issue the 681,818 shares of Arbios common stock in the
Exchange immediately before the Merger becomes effective. However,
Arbios agrees that it will not cancel the shares of Junior
Preferred Stock until immediately prior to the closing of the
Merger. Arbios and the Junior Preferred Investor hereby agree that
the Exchange shall for all purposes be deemed to be effective
immediately prior to the closing of the Merger if the Merger
occurs, and that the shares of Junior Preferred Stock shall be
deemed to have been exchanged for shares of Arbios common stock at
the time that the Merger occurs. Since the 681,818 shares of Arbios
common stock to be issued to the Junior Preferred Investor in the
Exchange shall, in connection with the Merger, automatically be
converted into 681,818 shares of Common Stock of HAUSA, the parties
hereto agree that the stock certificate to be received by the
Junior Preferred Investor as a result of the Exchange may be issued
as a stock certificate for 681,818 shares of Common Stock of HAUSA
immediately after the Merger.
2.2 In the event
that the Merger has not been consummated by October 31, 2003,
Arbios shall thereafter not cancel the shares of Junior Preferred
Stock and shall promptly thereafter return to the Junior Preferred
Investor the stock certificate representing the Junior Preferred
Stock.
3.
REGISTRATION RIGHTS
3.1
Definitions . For purposes of this
Section 3:
(a)
Registration Rights Holders . The term “
Registration Rights Holder ” means the Junior
Preferred Investor and the Founders, and any assignee of record of
the Registrable Securities to whom rights set forth herein have
been duly assigned in accordance with this Agreement.
(b)
Registration . The terms “ register ,”
“ registered ,” and “ registration
” refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and
the declaration or ordering of effectiveness of such registration
statement.
(c)
Registrable Securities . The term “ Registrable
Securities " means: (i) all shares of Common Stock of HAUSA
listed on Schedule A, which shares are expected to be issued to the
Registration Rights Holders in the Merger, together with any other
shares of HAUSA that may be acquired by the Registration Rights
Holders or any of the Registration Rights Holders' permitted
successors and assigns after the Merger; and (ii) any shares of
Common Stock of HAUSA issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, all such shares of Common Stock
described in clause (i) of this Section 3.1 (c);
excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which rights under this
Section 3 are not assigned in accordance with this Agreement
or any Registrable Securities sold to the public or sold pursuant
to Rule 144 promulgated under the Securities Act.
(d) SEC
. The term “ SEC ” or “ Commission
” means the U.S. Securities and Exchange
Commission.
(e)
Securities Act . The term “ Securities Act
” means the Securities Act of 1933, as amended.
3.2
Piggyback Registrations .
(a)
Registration Rights . Subject to the completion of the
Merger, HAUSA agrees to the following registration provisions.
HAUSA shall notify the Registration Rights Holders in writing at
least thirty (30) days prior to filing any registration statement
under the Securities Act for purposes of effecting a public
offering of securities of HAUSA (including, but not limited to,
registration statements relating to secondary offerings of
securities of HAUSA), and will afford the Registration Rights
Holders an opportunity to include in such registration statement
all or any part of the Registrable Securities then held by the
Registration Rights Holders. Notwithstanding the foregoing, the
registration rights provided by this Section 3.2 shall not apply to
any registration statement (i) relating to any employee benefit
plan or an SEC Rule 145 transaction, (ii) filed by HAUSA pursuant
to those certain Subscription Agreements--Bridge Offering entered
into in September 2003 between Arbios and the purchasers of
$400,000 of Arbios’ convertible promissory notes, or (iii)
filed by HAUSA pursuant to those certain Subscription Agreements
entered into between Arbios and the investors who purchased up to
$4,010,000 of Arbios’ Units (consisting of shares of Arbios
common stock and warrants) in September and October 2003. If a
Registration Rights Holder desires to include in any such
registration statement all or any part of the Registrable
Securities held by such Registration Rights Holder, it shall,
within twenty (20) days after receipt of the above-described notice
from HAUSA, so notify HAUSA in writing, and in such notice shall
inform HAUSA of the number of Registrable Securities such
Registration Rights Holder wishes to include in such registration
statement. If a Registration Rights Holder decides not to include
all of its Registrable Securities in any registration statement
thereafter filed by HAUSA, such Registration Rights Holder shall
nevertheless continue to have the right to include any Registrable
Securities in any subsequent registration statement or registration
statements as may be filed by HAUSA with respect to offerings of
its securities, all upon the terms and conditions set forth
herein.
(b)
Underwriting . If a registration statement under which HAUSA
gives notice under this Section 3.2 is for an underwritten
offering, then HAUSA shall so advise the Registration Rights
Holders in writing. In such event, the right of each Registration
Rights Holder to have its Registrable Securities included in a
registration pursuant to this Section 3.2 shall be conditioned
upon such Registration Rights Holder's participation in such
underwriting and the inclusion of such Registration Rights Holder's
Registrable Securities in the underwriting to the extent provided
herein. In connection with such underwritten offering, each
participating Registration Rights Holder shall enter into an
underwriting agreement in customary form with the managing
underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the
managing underwriter or underwriters determine(s) in good faith
that marketing factors require a limitation of the number of shares
to be underwritten, then the managing underwriter(s) may exclude
shares (including Registrable Securities) from the registration and
the underwriting, and the number of shares that may be included in
the registration and the underwriting shall be allocated,
first , to HAUSA in full for shares of HAUSA stock it
proposes to offer in a primary offering, and second , to the
participating Registration Rights Holders ratably in accordance
with the number of shares each requesting Registration Rights
Holder requested to be underwritten; provided ,
however , that the right of the underwriters to exclude
shares (including Registrable Securities) from the registration and
underwriting as described above shall be restricted so that the
aggregate number of Registrable Securities of all Registration
Rights Holders included in any such registration is not reduced
below ten percent (10%) of the shares included in the registration.
If a Registration Rights Holder disapproves of the terms of any
such underwriting, such Registration Rights Holder may elect to
withdraw therefrom by written notice to HAUSA and the underwriter,
delivered at least twenty (20) business days prior to the effective
date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration. Any such exclusion or withdrawal
in such underwriting shall not limit the rights of the Registration
Rights Holder to include its Registrable Securities in any
subsequent underwritten offering under this Section
3.2(b).
(c)
Expenses . All expenses incurred in connection with a
registration pursuant to this Section 3.2 (excluding
underwriters' and brokers' discounts and commissions), including,
without limitation all federal and “blue sky”
registration and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for HAUSA, shall be borne by
HAUSA. The participating Registration Rights Holders shall bear
their proportionate share (based on the total number of their
shares sold in such registration) of any counsel representing all
of the participating Registration Rights Holders and all discounts,
commissions or other amounts payable to underwriters or brokers in
connection with such registration.
3.3
Obligations of HAUSA . Whenever required to effect the
registration of any Registrable Securities under this Agreement,
HAUSA shall, as expeditiously as reasonably possible:
(a) Prepare and
file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request
of any participating Registration Rights Holder, keep such
registration statement effective for ninety (90) days (or until all
Registrable Securities included therein have been sold if the
registration is filed on Form S-3 or any similar successor
form).
(b) Prepare and
file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.
(c) Furnish to
each participating Registration Rights Holder such number of copies
of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other
documents as such Registration Rights Holder may reasonably request
in order to facilitate the disposition of the Registrable
Securities owned by the Registration Rights Holder that are
included in such registration.
(d) Use its
reasonable efforts to register and qualify the securities covered
by such registration statement under such other securities or
“blue sky” laws of such jurisdictions as shall be
reasonably requested by any participating Registration Rights
Holder, provided that HAUSA shall not be required in connection
therewith or as a condition thereto to qualify
