EXHIBIT 1
ORAVAX, INC.
Stock Purchase Agreement
This Stock Purchase Agreement (this "Agreement") is made as of October 30,
1998 by and among Orange Acquisition Co. ("the Acquirer") and stockholder
of OraVax, Inc. ("OraVax") whose name is set forth on the signature page of
this Agreement (the "Stockholder").
Background
A. The Stockholder owns shares of 6% Convertible Preferred Stock of
OraVax ("Preferred Stock") which are convertible into shares of Common Stock
of OraVax ("Common Stock").
B. On or prior to November 10, 1998, the Acquirer intends to enter into
an agreement with OraVax providing for the acquisition of OraVax.
C. In connection with its proposed acquisition of OraVax, the Acquirer
desires to purchase the shares of Preferred Stock held by the Stockholder on
the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Purchase and Sale of the Shares
1.1 Purchase of the Shares from the Stockholder. Subject to the
terms and conditions of this Agreement, at the Closing (as defined in Section
6), the Stockholder shall sell, transfer and deliver to the Acquirer, and the
Acquirer shall purchase, acquire and accept from the Stockholder, all the
shares of Preferred Stock held by the Stockholder (the "Shares").
1.2 Purchase Price for the Shares. The purchase price to be paid by
the Acquirer to the Stockholder for the Shares (the "Purchase Price") shall
be payable in the manner described in Section 2 of this Agreement and shall
be calculated as follows:
(a) If the Closing occurs on or before November 3, 1998, then
the Purchase Price shall be equal to $1,070.00 per share plus accrued
dividends thereon.
(b) If the Closing occurs after November 3, 1998 and on or
before November 10, 1998, then the Purchase Price shall be equal to $1,090.00
per share plus accrued dividends thereon.
2. Payment of Purchase Price. At the Closing, the Acquirer shall pay the
Purchase Price to the Stockholder in cash, by cashier's or certified check,
or by wire transfer of immediately available funds to an account designated
by the Stockholder.
3. Lock-up. Upon execution of this Agreement, the Stockholder agrees not
to transfer, sell or otherwise assign any of the Shares to a third party
prior to 8:00 p.m. (Boston time) on November 10, 1998. Further, during the
period commencing at 9:00 a.m. (Boston time) on November 3, 1998 and ending
at 8:00 p.m. (Boston time) on November 10, 1998, the Stockholder agrees (i)
not to convert any shares of Preferred Stock into Common Stock, and (ii) not
to engage in any transaction with respect to securities of OraVax other than
sales (but not short sales) of Common Stock issued to the Stockholder upon
conversion of shares of Preferred Stock prior to November 3, 1998.
Notwithstanding the foregoing, if at any time the Acquirer becomes unable or
unwilling to purchase the Shares as contemplated by this Agreement, the
Acquirer shall so notify the Stockholder as soon as practicable by telephone
and facsimile, and the restrictions set forth in this Section 3 shall be of
no further force or effect.
4. Representations and Warranties
4.1 Representations and Warranties of the Acquirer. The Acquirer
hereby represents and warrants to the Stockholder as follows:
(a) The Acquirer is duly organized and in good standing under
the laws of its jurisdiction of organization and has the requisite corporate
power to own its properties and to carry on its business as now being
conducted. The Acquirer is duly qualified as a foreign corporation to do
business in every jurisdiction other than those in which the failure to so
qualify would not have a material adverse effect on the business, operations
or financial condition of the Acquirer.
(b) The Acquirer has the requisite corporate power and
authority to enter into and perform this Agreement, and this Agreement
constitutes a valid and binding obligation of the Acquirer enforceable
against the Acquirer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to the enforcement of
creditors' rights and remedies or by other equitable principles of law.
(c) The execution, delivery and performance of this Agreement
by the Acquirer do not and will not (i) result in a violation of the
Acquirer's certificate of incorporation, as amended, or by-laws, as amended,
or (ii) conflict with, or constitute a default under, any agreement,
indenture or instrument to which the Acquirer is a party (except for such
conflicts or defaults as would not, individually or in the aggregate, have a
material adverse effect on the business, operations or financial condition of
the Acquirer).
4.2 Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to the Acquirer as follows:
2
(a) The Stockholder has the requisite power and authority to
enter into and perform this Agreement, and this Agreement constitutes a valid
and binding obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to the enforcement of creditors' rights and remedies or by other
equitable principles of law.
(b) The Stockholder is the sole legal and beneficial owner of
the Shares and has the power to convey to the Acquirer good and marketable
title to the Shares free and clear of all liens and encumbrances. The
execution, delivery and performance of this Agreement by the Stockholder do
not and will not conflict with, or constitute a default under, any agreement,
indenture or instrument to which the Stockholder is a party.
5. Conditions to Closing
5.1 Conditions to the Obligations of the Acquirer. The obligations
of the Acquirer under this Agreement are subject to the fulfillment, as of
the Closing, of the following conditions precedent, each of which may be
waived at the sole discretion of the Acquirer:
(a) The Acquirer and OraVax shall have entered into an
agreement providing for the acquisition of OraVax by the Acquirer (the
"Acquisition Agreement").
(b) The representations and warranties of the Stockholder set
forth in Subsection 4.2 shall be true and correct in all material respects.
(c) No statute, rule, regulation, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction which prohibits or seeks to
prohibit the consummation of any of the transactions contemplated by this
Agreement, and no claim or lawsuit shall have been made or filed which
relates to the issuance by OraVax or the purchase by the Acquirer of shares
of the Preferred Stock.
5.2 Conditions to the Obligations of the Stockholder. The
obligations of the Stockholder under this Agreement are subject to the
fulfillment, as of the Closing, of the following conditions precedent, each
of which may be waived at the sole discretion of the Stockholder:
(a) The Acquirer and OraVax shall have entered into the
Acquisition Agreement.
(b) The representations and warranties of the Acquirer set
forth in Subsection 4.1 shall be true and correct in all material respects.
3
(c) No statute, rule, regulation, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction which prohibits or seeks to
prohibit the consummation of any of the transactions contemplated by this
Agreement, and no claim or lawsuit shall have been made or filed which
relates to the issuance by OraVax or the purchase by the Acquirer of shares
of the Preferred Stock.
6. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxx & Dodge
LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx as soon as practicable
following execution by the Acquirer and OraVax of the Acquisition Agreement,
or at such other place and/or time as the Acquirer and the Stockholder may
agree upon.
7. Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given (i) upon personal delivery, (ii) one day
after deposit with an overnight delivery service, postage prepaid, or (iii)
two days after deposit with the United States Post Office, postage prepaid.
All notices shall be addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in
accordance with this Section 7.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and supersedes all prior agreements and understandings,
relating to the subject matter of this Agreement.
9. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Acquirer and the Stockholder.
10. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Delaware.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ORANGE ACQUISITION CO.
By:
--------------------------------
Name:
Title:
Address:
--------------------------
THE STOCKHOLDER
By:
--------------------------------
Name:
Title:
Address:
--------------------------
5
