Exhibit 4.2
COMMON STOCK PURCHASE AGREEMENT
Dated as of June 20, 2001
by and between
Wasatch Pharmaceutical
and
Xxxx Xxxxxx
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") made as of June
20, 2001, by and between Wasatch Pharmaceutical, Inc. ("Issuer") and Xxxx Xxxxxx
(the "Buyer").
RECITALS:
WHEREAS, the Buyer agreed to allow the Issuer to use the Buyer's Class
A and Class B warrants and rights to the underlying shares of common stock,
registered in the registration statement that became effective on April 12,
2001, as collateral for a loan to be made to the Issuer.
WHEREAS, pursuant to the terms of the Agreement, the Company has
agreed, among other things, to issue to the Buyer options to purchase a
1,000,000 shares of Common Stock, exercisable according to Section 1.3.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. SALE AND PURCHASE OF COMMON STOCK.
1.1 Option to Buy. Subject to the terms and conditions of this
Agreement, Issuer hereby irrevocably grants Buyer an option ("Option") to
purchase up to 1,000,000 shares of the Issuer's common stock ("Shares").
At any time during the Option Period, as set forth in Section 1.3, the
Buyer may exercise his option to purchase the shares, any number of times up to
and until all of the Shares offered herein are purchased.
1.2 Purchase Price. Upon Issuer's receipt of an Exercise Notice (in the
form of Exhibit 1.1 attached hereto), Issuer will sell and Buyer will purchase
the number of Shares set forth in the Exercise Notice.
1.3 Option Period. The Options to purchase common stock evidenced by
this Agreement may be exercised, from time to time, at any time from the date of
this Agreement until January 12, 2007 (the "Expiration Date"). The period from
the date of the Agreement to the Expiration Date shall be referred to in this
Agreement as the Option Period. This Agreement shall expire at 5:00 P.M.,
Pacific Coast Time on the Expiration Date. The Buyer's right to purchase common
stock pursuant to the terms of this Agreement shall expire at 5:00 P.M. Pacific
Coast Time on the Expiration Date, and all of the Buyer's rights to purchase
more shares pursuant to the terms of this Agreement shall cease.
During the Option Period, the Buyer may purchase up to 500,000
shares of common stock at the exercise price of $0.50 per share, and may
purchase a subsequent 500,000 shares of common stock at the exercise price of
$2.00 per share. Such exercise prices for each of the warrants is referred to in
the Agreement as the "Exercise Price."
2. REGISTRATION RIGHTS
2.1 Filing Registration Statement. The Issuer shall file a registration
statement ("Registration Statement") on Form SB-2 (or other suitable form, at
the Company's discretion), covering the resale of the shares of common stock
purchased by the Buyer and shall cover, to the extent allowed by applicable law,
such indeterminate number of additional shares of common stock that may be
issued or become issuable by the Company pursuant to Rule 416 of the Securities
Act.
2.2 Registration Effective Date. The Company shall use its best efforts
to have the Registration Statement declared effective by the SEC.
2.3 Shelf Registration. The Registration Statement shall be prepared as
a "shelf" registration under Rule 415, and shall be maintained effective until
all of the Buyer's securities are resold pursuant to the Registration Statement.
2.4 Supplemental Registration Statement. Anytime the Registration
Statement does not cover a sufficient number of shares of common stock to cover
all of the outstanding shares held by the Buyer, the Company shall promptly
prepare and file with the SEC such supplemental Registration Statement(s) and
prospectuses 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 of the Buyer's shares and shall use its best efforts to
cause such supplemental Registration Statement to be declared effective as soon
as possible.
2.5 Obligations of the Company. Whenever required under this Agreement
to effect the registration, the Company shall, as expeditiously and reasonably
possible:
(a) Prepare and file with the SEC a registration statement
with respect to the subject securities and use its best efforts to cause the
registration statement to become effective and to remain effective until the
Buyer resales the subject securities pursuant to the registration statement.
(b) Prepare and file with the SEC such amendments and
supplements to the registration statement and the prospectus or prepare and file
any additional registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all the
Buyer's shares covered by the supplemental registration statements or such prior
registration statement and to cover the resale of all of the Buyer's shares.
(c) Furnish to the Buyer 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 may be
reasonably requested in order to facilitate the disposition of the Buyer's
shares.
(d) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of the jurisdictions in which the Holders are located, of such
other jurisdictions as shall be reasonably requested by the Holders of the
Registrable Securities covered by such Registration Statement and of all other
jurisdictions where legally required, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(f) As promptly as practicable after becoming aware of such
event, notify the Buyer of any event of which the Company has knowledge, as a
result of which the prospectus included in the Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, use its best efforts promptly to prepare a supplement or amendment
to the Registration Statement to correct such untrue statement or omission, and
deliver a number of copies of such supplement or amendment to the Buyer as the
Buyer may reasonably request.
(g) Provide Buyer with notice of the date that a Registration
Statement or any Supplemental Registration Statement registering the resale of
the Buyer's shares is declared effective by the SEC, and the date or dates when
the Registration Statement is no longer effective.
(h) Provide Buyer the opportunity and a reasonable amount of
time, based upon reasonable notice delivered by the Company, to conduct a
reasonable due diligence inquiry of Company's pertinent financial and other
records and make available its officers and directors for questions regarding
such information as it relates to information contained in the Registration
Statement.
(i) Provide Buyer with the opportunity to review the
Registration Statement and all amendments or supplements thereto prior to their
filing with the SEC.
(j) Provide Buyer with prompt notice of the issuance by the
SEC or any state securities commission or agency of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceeding for such purpose. The Company shall use its best efforts to prevent
the issuance of any stop order and, if any is issued, to obtain the removal
thereof at the earliest possible date.
2.6 Expenses. All expenses, other than commissions and fees, incurred
in connection with registrations, filings or qualifications pursuant hereto,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Company, shall be borne by the Company.
3. REPRESENTATIONS AND WARRANTIES OF ISSUER.
3.1 Issuer represents and warrants to Buyer as follows:
3.1.1 Reporting Company. Issuer is subject to the reporting
requirements of the Securities Exchange Act of 0000 (xxx "x00 Xxx").
3.1.2 Authorized Shares. The Shares constitute a part of the
authorized common stock of Issuer and will upon purchase by Buyer be part of the
issued and outstanding common stock of the Issuer. The Issuer, pursuant to a
resolution of its board of directors, shall provide a certified copy of which is
attached hereto as Exhibit 1.2, indicating that the board of directors has
authorized the Issuer to execute this Agreement and all other documents and
agreements contemplated hereby.
3.1.3 Ownership. Upon Buyer's purchase of any or all of the
Shares, Buyer will own the Shares free and clear of any liens, claims or
encumbrances of any kind or nature. The Shares will be fully paid for and
non-assessable.
3.1.4. Issue Authority. Issuer has the authority to enter into
this Agreement and consummate the transactions contemplated hereby in accordance
with all applicable federal, state and local laws, rules and regulations
including the 1933 Act and 1934 Act.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
4.1 Buyer hereby represents and warrants to Issuer as follows:
4.1.1 Investment Experience. The Buyer has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the prospective investment in the Shares, which are
substantial and has in fact evaluated such merits and risks in making its
decision to invest in the Shares. The Buyer, by virtue of its business and
financial expertise, has the capacity to protect its own interest in connection
with this transaction, or has consulted with tax, financial, legal or business
advisors as to the appropriateness of the investment.
5. APPLICABLE LAW AND JURISDICTION.
5.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of Utah, without regard to conflicts of law
principles.
5.2 In the event of any dispute, controversy, claim or difference that
should arise between the parties out of or relating to or in connection with
this Agreement or the breach thereof, the parties shall endeavor to settle such
conflicts amicably among themselves. Should they fail to do so, the matter in
dispute shall be settled by arbitration in Salt Lake City, Utah, in accordance
with the rules of the American Arbitration Association. Any award or judgment of
the arbitrators shall be final and binding on the parties and shall be
enforceable in any court of competent jurisdiction. All reasonable attorneys'
fees incurred by the prevailing party in the resolution of any dispute,
controversy, claim or difference hereunder shall be borne by the losing party.
5.3 This Agreement may be executed in several counterparts (including
by means of telecopied signature pages), each of which shall be deemed an
original but all of which shall constitute one and the same instrument.
6. NOTICES.
All communications between the parties under the Agreement shall be
sent to an address indicated from time to time by the parties in writing.
IN WITNESS WHEREOF, the undersigned Issuer does represent and certify under
penalty of perjury that the foregoing statements are true and correct and that
by the following signature(s) executed this Agreement on the date marked below.
COMPANY:
WASATCH PHARMACEUTICAL, INC
By: /s/ Xxxxx X. Xxxxx
Buyer:
By: /s/ Xxxx X. Xxxxxx
OPINION EXERCISE FORM
TO: WASATCH PHARMACEUTICAL, INC
The undersigned hereby irrevocably exercises the right to purchase
___________________ of the shares of Common Stock (the "Common Stock") of
Wasatch Pharmaceutical, Inc. a Utah corporation (the "Company", and herewith
makes payment of the exercise price with respect to such shares in full, all in
accordance with the conditions and provisions of the Stock Purchase Agreement.
1. The undersigned requests that stock certificates for such shares be
issued free of any restrictive legend, if appropriate:
Dated: _________
____________________________________
Signature Of Buyer
____________________________________
Print Name
____________________________________
Address
