EXHIBIT 4.3
FORM OF
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of [DATE],
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by and between the undersigned (the "Purchaser") and PARAMOUNT CAPITAL
PHARMACEUTICALS, INC., a Delaware Corporation having a business address at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Corporation").
R E C I T A L S
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A. WHEREAS, the Corporation desires to sell shares of common stock,
par value $.001 per share, of the Corporation (which class of shares is referred
to herein as "Common Stock") to Purchaser, and Purchaser desires to purchase
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these shares, upon the terms and conditions herein specified; and
B. WHEREAS, Purchaser is willing to subject the Stock (as defined
herein) to the restrictions contained herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises herein contained, the parties hereby agree as follows:
1. Issuance and Acquisition of Stock.
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(a) Immediately after the execution of this Agreement by the parties,
the Corporation shall transfer to the Purchaser, and the Purchaser shall acquire
from the Corporation, the number of shares of Common Stock listed beside the
Purchaser's name on the signature page hereto (the "Stock"), at the purchase
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price of $.001 per share, for the total purchase price listed below the
Purchaser's name on the signature page hereto (the "Purchase Price").
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(b) As soon as reasonably practicable after the execution of this
Agreement, the Corporation shall deliver to the Purchaser a certificate or
certificates evidencing the Stock, registered in the name of the Purchaser and
concurrently therewith the Purchaser shall make payment for the Stock by
delivering to the Seller a check payable to the Corporation in the amount of the
Purchase price.
2. Violation Of Transfer Provisions. The Corporation shall not be
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required (i) to transfer on its books any shares of Stock which shall have been
sold, transferred, assigned or pledged in violation of any of the provisions of
this Agreement or (ii) to treat as owner of such shares or to accord the right
to vote as
such owner or to pay dividends to any transferee to whom such shares shall have
been so sold, transferred, assigned or pledged.
3. Rights as Shareholder. Except as otherwise provided herein, the
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Purchaser shall, during the term of this Agreement, exercise all rights and
privileges of a shareholder of the Corporation with respect to the Stock.
4. Representations and Warranties by the Corporation.
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The Corporation represents, warrants and covenants with the Purchaser
as follows:
(a) The Corporation has all necessary power and capacity to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transaction contemplated hereby. This Agreement has been validly
executed and delivered by the Corporation and constitutes the legal, valid and
binding obligation of the Corporation, enforceable against the Corporation in
accordance with its terms. The execution and delivery of this Agreement by the
Corporation do not and the performance of its obligations under this Agreement
will not conflict with or result in any breach or constitute a default under any
contracts to which the Corporation is a party or by which the Corporation or any
property or asset of the Corporation is bound or affected.
(b) The Corporation has good title to the Stock and owns the Stock
free and clear of any security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting rights, charges and
other encumbrances of any nature whatsoever (collectively, "Liens") other than
restrictions on transfer imposed under the Securities Act of 1933, as amended
(the "Securities Act"). Upon delivery thereof to the Purchaser, the Purchaser
shall acquire good title to the Stock, free and clear of any Liens other than
the restrictions set forth in this Agreement and under the Securities Act. The
Stock is validly issued, fully paid and nonassessable. The Corporation is
transferring the Stock to the Purchaser hereunder pursuant to a valid exemption
from registration under the Securities Act.
5. Representations and Warranties by the Purchaser.
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The Purchaser represents, warrants and covenants with the Corporation
as follows:
(a) The Purchaser has all necessary power and capacity to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
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the transaction contemplated hereby. This Agreement has been validly executed
and delivered by the Purchaser and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms. The execution and delivery of this Agreement by the Purchaser
do not and the performance of its obligations under this Agreement will not
conflict with or result in any breach or constitute a default under any
contracts to which the Purchaser is a party or by which the Purchaser or any
property or asset of the Purchaser is bound or affected.
(b) The Stock will be acquired by the Purchaser for his own account
with the Purchaser's own funds for investment purposes and for the Purchaser's
own ac count, not as a nominee or agent for any other person, firm or
corporation, and not with a view to the sale or distribution of all or any part
thereof, and the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing, any or all of the Stock. The
Purchaser does not have any contract, undertaking, agreement or arrangement with
any person, firm or corporation to sell, transfer or grant any participation to
any person, firm or corporation with respect to any or all of the Stock.
(c) The Purchaser understands that the Stock will not be registered
under the Securities Act of 1933, as amended (the "Securities Act"), and that
the Stock is being issued and sold to the Purchaser based upon an exemption from
registration predicated in part on the accuracy and completeness of the
Purchaser's representations and warranties appearing herein.
(d) The Purchaser agrees that in no event will the Purchaser sell,
transfer, assign or pledge all or any part of the Stock or any interest therein,
unless and until (i) the Purchaser shall have furnished the Corporation with an
opinion of counsel satisfactory in form and content to the Corporation to the
effect that (A) such disposition will not require registration of the Stock
under the Securities Act or compliance with applicable state securities laws, or
(B) appropriate action necessary for compliance with the Securities Act and
applicable state securities laws has been taken, (ii) the Corporation shall have
waived, expressly and in writing, its right under clause (i) of this subsection,
and (iii) the proposed transferee of the Stock shall have provided the
Corporation with a written agreement or undertaking by which such transferee
agrees to be bound by all terms, conditions and limitations of this Agreement
applicable to such transferee's transferor as if such transferee were a party
hereto. The requirement of sub paragraph (iii) shall not apply to any transfer
(A) pursuant to an offering registered under the Securities Act, (B) pursuant to
Rule 144 under the Securities Act or (c) effected in a market transaction
otherwise exempt from registration under the Securities Act.
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(e) The Purchaser is able to fend for itself in connection with the
transactions contemplated by this Agreement, has such knowledge and experience
in financial and business matters (including investments in development stage
biotechnology companies) as to be capable of evaluating the merits and risks of
its investment in the Corporation, has the ability to bear the economic risks of
its investment for an indefinite period of time and can afford a complete loss
of its investment and has had the opportunity prior to the Purchaser's purchase
of the Stock to ask questions of and receive answers from representatives of
the Corporation concerning the finances, operations and business of the
Corporation. The Purchaser acknowledges and agrees that (i) it is not relying
upon any statement, promise or assurance of the Corporation or any investor in
the Corporation (or any representative of the Corporation or any such investor)
in arriving at the Purchaser's decision to purchase the Stock, and has not
otherwise been induced to purchase the Stock by the Corporation or any such
investor (or any representative of the Corporation or any such investor), and
that (ii) it has decided to purchase the Stock based upon the Purchaser's own
analysis of the merits and risks of investing in the Corporation without the
intervention or assistance of any other person, firm or corporation.
(f) The Purchaser understands and acknowledges that the Purchaser will
not be permitted to sell, transfer, assign or pledge the Stock until it is
registered under the Securities Act or an exemption from the registration and
prospectus delivery requirements of the Securities Act is available to the
Purchaser, and that there is no assurance that such an exemption from
registration will ever be available or that the Purchaser will ever be able to
sell any of the Stock.
(g) All certificates representing the Stock and, until such time as
the Stock is sold in an offering which is registered under the Securities Act or
the Corpora tion shall have received an opinion of counsel satisfactory in form
and content to the Corporation that such registration is not required in
connection with a resale (or subsequent resale) of the Stock, all certificates
issued in transfer thereof or substitution therefor, shall, where applicable,
have endorsed thereon the following (or substantially equivalent) legends:
(i) THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT
TRANSFERABLE WITHOUT THE EXPRESS WRITTEN CONSENT OF
PARAMOUNT CAPITAL PHARMACEUTICALS, INC. (THE "COMPANY") AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY APPLICABLE STATE
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SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH
ACT. ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE
STATE SECURITIES OR "BLUE SKY" LAWS.
(ii) Any legend required to be placed thereon by any applicable
state securities law.
(h) The Corporation shall not be obligated to transfer any of the
Stock if counsel for the Corporation determines that any applicable registration
requirement under the Securities Act or any other applicable requirement of
federal or state law has not been met.
6. General Provisions.
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(a) No Assignments. The Purchaser shall not transfer, assign or
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encumber any of its rights, privileges, duties or obligations under this
Agreement without the prior written consent of the Corporation, and any attempt
to so transfer, assign or encumber shall be void.
(b) Notices. All notices and other communications which are required
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or permitted to be given pursuant to the terms of this Agreement shall be in
writing and shall be sufficiently given (i) if personally delivered, (ii) if
sent by telex or facsimile, provided that "answer-back" confirmation is received
by the sender or (iii) upon receipt, if sent by registered or certified mail,
postage paid return receipt requested in any case addressed as follows:
(i) If to the Corporation:
Paramount Capital Pharmaceuticals, Inc.
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000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Att.: Xxxxx X. Xxxxx
Secretary
(ii) If to the Purchaser, to the address set forth on the
signature page of this Agreement.
The address of a party, for the purposes of this Section 6(b)(ii), may be
changed by giving written notice to the other party of such change in the manner
provided herein for giving notice. Unless and until such written notice is
received, the addresses as provided herein shall be deemed to continue in effect
for all purposes hereunder.
(c) Standoff Agreement. The Purchaser agrees that, in connection with
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each underwritten public offering registered under the Securities Act of shares
of Common Stock or other equity securities of the Corporation by or on behalf of
the Corporation, the Purchaser shall not sell or transfer, or offer to sell or
transfer, any shares of Common Stock or other equity securities of the
Corporation for such period as the managing underwriter of such offering or the
Corporation determines is necessary to effect the underwritten public offering.
(d) Choice of Law; Consent to Jurisdiction. This Agreement shall be
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governed by and construed in accordance with the internal laws (without giving
effect to the conflicts of law principles) of the State of New York.
(e) Severability. The parties hereto agree that the terms and
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provisions in this Agreement are reasonable and shall be binding and enforceable
in accordance with the terms hereof and, in any event, that the terms and
provisions of this Agreement shall be enforced to the fullest extent permissible
under law. In the event that any term or provision of this Agreement shall for
any reason be adjudged to be unenforceable or invalid, then such unenforceable
or invalid term or provision shall not affect the enforceability or validity of
the remaining terms and provisions of this Agreement, and the parties hereto
hereby agree to replace such unenforceable or invalid term or provision with an
enforceable and valid arrangement which, in its economic effect, shall be as
close as possible to the unenforceable or invalid term or provision.
(f) Successors. All references in this Agreement to the Corporation
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shall include any and all successors in interest to the Corporation, whether by
merger, consolidation, sale of all or substantially all assets or otherwise, and
this Agreement shall inure to the benefit of the successors and assigns of the
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Corporation and, subject to the terms herein set forth, shall be binding upon
the Purchaser, its successors and permitted assigns.
(g) Counterparts. This Agreement may be executed in two counterparts,
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each of which shall be deemed an original, but which together shall constitute
one and the same instrument.
(h) Modification, Amendment and Waiver. No modification, amendment or
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waiver of any provision of this Agreement shall be effective against the
Corporation unless the same shall be in a written instrument signed by an
officer of the Corporation on its behalf and such instrument is approved by its
Board of Directors. The failure at any time to enforce any of the provisions of
this Agreement shall in no way be construed as a waiver of such provisions and
shall not affect the right of either party thereafter to enforce each and every
provision hereof in accordance with its terms.
(i) Further Assurances. The parties agree to execute such further
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instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
(j) Integration. This Agreement constitutes the entire agreement of
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the parties with respect to the subject matter hereof.
(k) Headings. The headings of the Sections and paragraphs of this
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Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(l) Gender and Number. As used in this Agreement, the masculine,
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feminine or neuter gender, and the singular or plural, shall be deemed to
include the others whenever and wherever the context so requires. Additionally,
unless the context requires otherwise, "or" is not exclusive.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed by their respective
officers, partners or other representatives, thereunto duly authorized, all as
of the day and year first above written.
PARAMOUNT CAPITAL
PHARMACEUTICALS, INC.
By:
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Name:
Title:
PURCHASER:
By:
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Name:
Address: ---------------------
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NUMBER OF SHARES OF
COMMON STOCK PURCHASABLE:
PURCHASE PRICE:
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