STOCK PURCHASE AGREEMENT
Exhibit 10.1
This
Agreement dated as of December 24, 2009 is entered into by and among Symbollon
Pharmaceuticals, Inc., a Delaware corporation, residing at 00 Xxxx Xxxxxx, Xxxxx
X, Xxxxxxxx, Xxxxxxxxxxxxx 00000 (the “Company”), and Ninth Inning Investments,
LLC, a Arizona corporation, Xxxxxxx Xxxxxxxx, an individual residing at 0000
Xxxxxxxxxx Xx., Xxx Xxxxx, Xxxxxx 00000, and their designees (collectively, the
“Purchasers”). Certain other terms are defined in Section 8
below.
In
consideration of the mutual promises and covenants contained in the Agreement,
the parties hereto agree as follows:
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1.
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Authorization and Sale
of Securities.
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1.1 Authorization. The
Company has, or before the Closing (as defined in Section 2) will have, duly
authorized and taken all such corporate and other actions within its control as
is necessary for the issuance, sale and delivery, pursuant to the terms of this
Agreement, of 5,000,000 shares of Common Stock (the “Shares”). The
Shares shall hereinafter be referred to as the Securities.
1.2 Issuance of
Securities. Subject to the terms and conditions of this
Agreement, at the Closings (as defined in Section 2) the Company and the
Purchasers agree that the Purchasers will purchase from the Company and the
Company will issue and sell to the Purchasers, in a private placement the Shares
at a purchase price of $0.02 per Share, for an aggregate purchase price of
$100,000 (the “Purchase Price”).
2.
The
Closings. The closing of the sale and purchase of the
Securities shall take place at the offices of the Company, or such other
mutually agreeable location as the parties may deem appropriate, on the
following dates unless the parties shall otherwise agree in writing (the
“Closings”).
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Closing
Dates
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Purchase
Price
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On
or before December 24, 2009
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$ | 25,000 | ||
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On
or before January 12, 2010
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$ | 75,000 | ||
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Total
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$ | 100,000 | ||
The dates
of the Closings are hereinafter referred to as the “Closing
Dates”. At the Closings, the Company shall deliver to the Purchasers
certificates for the number of Shares, against payment of the Purchase
Price.
3.
Representations of the
Company. The Company hereby represents and warrants to the
Purchasers as follows:
3.1 Organization and
Standing. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to conduct its business as presently
conducted and as proposed to be conducted by it and to enter into and perform
this Agreement and to carry out the transactions contemplated
hereby. The Company is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the nature of
the business transacted by it or the character or location of its properties
requires such qualification, except where the failure to so qualify would not
have a Material Adverse Effect.
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3.2 Capitalization. The
authorized capital stock of the Company consists of (i) 93,750,000 shares
of Class A Common Stock, of which 27,473,340 shares are outstanding on the date
hereof, 1,250,000 shares of Class B Common Stock and 5,000,000 shares of
preferred stock . The outstanding shares of capital stock of the
Company have been duly and validly issued and are fully paid and nonassessable,
have been issued in material compliance with all federal and state securities
laws, and were not issued in violation of any preemptive or similar rights to
subscribe for or purchase securities. Except for (i) options to
purchase up to 3,377,500 shares of Common Stock or other equity
awards issued to employees, directors and consultants of the Company and (ii)
warrants to purchase up to 7,293,732 shares of Common Stock, there are no
existing options, warrants, calls, preemptive (or similar) rights, subscriptions
or other rights, agreements, arrangements or commitments of any character
obligating the Company to issue, transfer or sell, or cause to be issued,
transferred or sold, any shares of the capital stock of the Company or other
equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company to repurchase,
redeem or otherwise acquire any shares of its capital stock or other equity
interests. There are no voting agreements or other similar
arrangements with respect to the Common Stock to which the Company is a
party. The Company has not adopted a stockholder rights plan or
similar arrangement relating to accumulations of beneficial ownership of Common
Stock or a change in control of the Company.
3.3 Issuance of
Securities. The issuance, sale and delivery of the Securities
have been, or will be on or prior to the Closing Dates, duly authorized by all
necessary corporate action on the part of the Company. The
Securities, when issued, sold and delivered against payment therefore in
accordance with the provisions of this Agreement, will be duly and validly
issued, fully paid and non-assessable and free and clear of any liens or
preemptive, rights of first refusal, or other similar rights (other than
Applicable Securities Laws and the terms of this Agreement).
3.4 Authority for Agreement; No
Conflicts. The execution, delivery and performance by the
Company of this Agreement, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by the
Company, and is enforceable against it in accordance with its terms, except that
such enforcement may be subject to applicable bankruptcy, receivership,
fraudulent transfer, moratorium and similar laws affecting creditors’ rights,
and the remedy of specific performance and injunctive relief may be subject to
equitable defenses and to the discretion of the court for which proceeding
therefore may be brought. The execution and delivery of this
Agreement and performance of the transactions contemplated by this Agreement and
compliance with its provisions by the Company will not conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute a
default under, or require a consent or waiver under, its Certification of
Incorporation or By-Laws (each as amended to date) or any indenture, lease,
agreement or other instrument to which the Company is party or by which it or
any of its properties is bound, or violate any decree, judgment,
order, statute, rule, regulation or other provision of law applicable to the
Company, except in each case as would not result in a Material Adverse
Effect.
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3.5 Governmental
Consents. No consents, approval, order or authorization of, or
regulation, qualification, designation, declaration or filing with, any
governmental authority is required on the part of the Company in connection with
the execution and delivery of this Agreement or the offer, issuance, sale and
delivery of the Shares or the other transactions to be consummated at any
Closing, as contemplated by this Agreement, except for compliance with the
provisions of any laws as to which the failure to be made or obtained would not
result in a Material Adverse Effect and such filings as shall have been made
prior to and shall be effective on and as of the applicable
Closing.
4.
Representations of the
Purchasers. The Purchasers represent and warrant to the
Company as follows:
4.1
Investment. The
Purchasers are acquiring the Shares for their own account for investment and not
with a view to, or for sale in connection with, any distribution thereof, nor
with any present intention of distributing or selling the same. The
Purchasers are each an “Accredited Investor” within the meaning of Rule
501(a)(3) of Regulation D under the Securities Act. The Purchasers
understand that the Shares have not been registered under the Securities Act by
reason of a specific exemption from the registration provisions thereof which
depends upon, among other things, the bona fide nature of their investment
intent as expressed herein. The Purchasers will not transfer the
Shares except in compliance with Applicable Securities Laws and the terms of
this Agreement.
4.2 Power and
Authority. The Purchasers have the full power and authority to
execute, deliver and perform this Agreement. This Agreement, when
executed and delivered by the Purchasers, will constitute a valid and legally
binding obligation of the Purchasers, enforceable in accordance with its
terms.
4.3 State of
Jurisdiction. The Purchasers represent and warrant that all
matters and actions relevant to their considerations, evaluations or executions
of this Agreement or the transactions contemplated hereby by them including,
without limitation, the receipt of any offer to purchase, the receipt and review
of any documents or other materials relevant hereto, the participation in any
communications with the Company or any other party, and the consummation of the
transactions contemplated hereby occurred solely in Arizona.
4.4 Independent
Investigation. The Purchasers have relied solely upon an
independent investigation made by them and their representatives and have, prior
to the date hereof, been given access to and the opportunity to examine all
material contracts and documents of the Company. The Purchasers have
requested, received, reviewed and considered all information they deem relevant
in making a decision to execute this Agreement and to purchase the
Shares. In making their investment decision to purchase the Shares,
the Purchasers are not relying on any oral or written representations or
assurances from the Company or any other person or any representation of the
Company or any other person other than as set forth in this
Agreement.
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4.5 Economic
Risk. The Purchasers understand and acknowledge that an
investment in the Shares involves a high degree of risk. The
Purchasers acknowledge that there are limitations on the liquidity of the
Shares. The Purchasers represent that the Purchasers are able to bear
the economic risk of an investment in the Shares, including a possible total
loss of investment. The Purchasers have such knowledge and experience
in financial and business matters that the Purchasers are capable of evaluating
the merits and risks of the investment in the Shares to be received by the
Purchasers; and that the Purchasers are sophisticated accredited investors with
experience with development stage issuers engaged in biotech and pharmaceutical
businesses.
4.6 No
Conflicts. The execution of and performance of the
transactions contemplated by this Agreement and compliance with its provisions
by the Purchasers will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or require a
consent or waiver under any indenture, lease, agreement or other instrument to
which the Purchasers are a party or by which them or any of their properties are
bound, or violate any decree, judgment, order, statute, rule, regulation or
other provision of law applicable to the Purchasers, which violation would
prevent, impair, hinder or delay the consummation of the transactions
contemplated by this Agreement.
4.7 Governmental
Consents. No consents, approval, order or authorization of, or
regulation, qualification, designation, declaration or filing with, any
governmental authority is required on the part of the Purchasers in connection
with the execution and delivery of this Agreement or the purchase of the Shares
or the other transactions to be consummated at any Closing, as contemplated by
this Agreement.
4.8 Brokers,
Etc. The Purchasers have dealt with no broker, finder,
commission agent or person in connection with the offer or sale of the Shares
and the transactions contemplated by this Agreement and neither the Purchasers
nor the Company is under any obligation to pay any broker’s fees, finder’s fees,
or other fees or commissions in connection with such transactions as a result of
any action by the Purchasers.
5. Conditions to the
Obligations of the Purchasers at the Closings. Notwithstanding
anything to the contrary contained herein, the obligation of the Purchasers to
purchase Securities at the Closings is subject to the fulfillment, or the waiver
by the Purchasers, of each of the following conditions on or before the
Closings:
5.1 Accuracy of Representations
and Warranties. Each representation and warranty of the
Company contained in Section 3 hereof shall be true on and as of Closing Dates
in all material respects with the same effect as though such representation and
warranty had been made on and as of those dates.
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5.2 Performance. The
Company shall have performed and complied in all material respects with all
agreements and conditions contained in this Agreement required to be performed
or complied with by the Company prior to or at the Closings.
5.3 Qualifications. There
shall not be in effect any law, rule or regulation prohibiting or restricting
the sale and issuance of the Securities or requiring any consent or approval of
any person or governmental entity which shall not have been obtained prior to
the issuance of the Securities in the Closings.
5.4 Proceedings and
Documents. All corporate or other proceedings in connection
with the transactions contemplated at the Closings and all documents incident
thereto shall be reasonably satisfactory in form and substance to the Purchasers
and their counsel and the Purchasers shall have received all such counterpart
original and certified or other copies of such documents as they may reasonably
request.
5.5 Issuance of
Shares. The Company shall have taken all steps necessary to
instruct its transfer agent to issue a share certificate or certificates
representing the Shares issued in the Closings.
6.
Conditions to the
Obligations of the Company. Notwithstanding anything to the contrary
contained herein, the obligations of the Company to issue, sell and deliver at
the Closings the Securities are subject to fulfillment, on or before the Closing
Dates, of each of the following conditions:
6.1 Accuracy of Representations
and Warranties. Each representation and warranty of the
Purchasers contained in Section 4 hereof shall be true on and as of the Closing
Dates in all material respects with the same effect as though such
representation and warranty had been made on and as of those dates.
6.2 Performance. The
Purchasers shall have performed and complied in all material respects with all
agreements and conditions contained in this Agreement required to be performed
or complied with by the Purchasers prior to or at the Closings.
6.3 Qualifications. There
shall not be in effect any law, rule or regulation prohibiting or restricting
the sale and issuance of the Securities or requiring any consent or approval of
any person or governmental entity which shall not have been obtained prior to
the issuance of the Securities in the Closings.
6.4 Required
Consideration. The Purchasers shall have paid in accordance
with this Agreement the Purchase Price.
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7.
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Transfer Restrictions
and Registration.
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7.1 Legend. Unless
and until otherwise permitted, each certificate representing the Shares shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
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“THE
SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. NO
TRANSFER, SALE OR OTHER DISPOSITION OF THESE SHARES MAY BE MADE UNLESS A
REGISTRATION STATEMENT WITH RESPECT TO THESE SHARES HAS BECOME EFFECTIVE UNDER
SAID ACT, OR SYMBOLLON PHARMACEUTICALS, INC. IS FURNISHED WITH AN OPINION OF
COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH REGISTRATION IS NOT
REQUIRED.”
and any
legend required by any applicable state securities laws.
7.2 Required
Registration. The Company hereby agrees to use its
commercially reasonable efforts to file within thirty (30) days following the
final closing of the purchase of the Shares a registration statement under
the Act covering the resale of the Shares and to use its commercially reasonable
efforts to have such registration statement declared effective within ninety
(90) days of the final closing of the purchase of the Shares. The
Company shall use its commercially reasonable efforts to maintain the
effectiveness of the registration statement until the first to occur of (i) the
completion of the distribution of the Shares covered thereby, or (ii) such time
as the Shares covered thereby may be sold without restrictive legend under Rule
144 or other exemption from the registration requirements of the Securities
Act. The Company agrees to keep the registration statement current
during such period. The Company’s obligation shall be limited to one
registration covering the Shares.
7.3 Non-public
Information. Notwithstanding anything to the contrary in this
Section 7, the Company shall have the right (i) to defer the initial filing or
request for acceleration of effectiveness of any registration or (ii) after
effectiveness, to suspend effectiveness of any such registration statement, if,
in the good faith judgment of the board of directors of the Company, such delay
in filing or requesting acceleration of effectiveness or such suspension of
effectiveness is necessary in light of the existence of material non-public
information (financial or otherwise) concerning the Company disclosure of which
at the time is not, in the opinion of the board of directors of the Company, (A)
otherwise required and (B) in the best interests of the Company; provided
however that the Company will use its commercially reasonable efforts to
terminate such delay or suspension as soon as practicable.
7.4 Payment of
Expenses. The Company shall bear the expense (excluding
underwriting commissions, dealers’ fees, brokers’ fees, concessions applicable
to the Shares, legal fees and expenses of the Purchasers and any out-of-pocket
expenses of the Purchasers) of all registrations pursuant to this Section
7.
7.5 Indemnification. The
Company hereby agrees to indemnify and hold harmless the Purchasers and any
underwriter against all losses, claims, damages, liabilities and expenses (under
the Applicable Securities Laws, or common law or otherwise) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or any other document prepared and/or furnished to the
Purchasers incident to such registration statements or prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein complete or not
misleading except insofar as such losses, claims, damages, liabilities or
expenses are caused by any untrue statement or omission contained in information
furnished in writing to the Company by the Purchasers expressly for use
therein. In connection with any registration statement in which the
Purchasers are participating, and as a condition to the obligation of the
Company to cause any Shares of the Purchasers to be included in a registration
statement pursuant to this Section 7, the Purchasers will furnish to the Company
in writing such information as shall reasonably be requested by the Company for
use in any such registration statement or prospectus and will indemnify,
severally and not jointly, the Company, its directors and officers, each person,
if any, who controls the Company within the meaning of the Applicable Securities
Laws, such underwriters and each person who controls such underwriters within
the meaning of the Applicable Securities Laws, against any losses, claims,
damages, liabilities and expenses resulting from any untrue statement or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated in the registration statement or prospectus
and necessary to make the statements therein complete or not misleading, but
only to the extent that such untrue statement or omission is contained in
information so furnished in writing by the Purchasers expressly for use
therein.
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Promptly
after receipt by any person entitled to indemnity hereunder (the “Indemnified
Party”) of notice of the commencement of any action in respect of which
indemnity may be sought against another party hereunder (the “Indemnifying
Party”) such Indemnified Party will notify the Indemnifying Party in writing of
the commencement thereof, and, subject to the provisions hereinafter stated, the
Indemnifying Party shall assume the defense of such action (including the
employment of counsel, who shall be counsel reasonably satisfactory to such
Indemnified Party), and the payment of expenses as incurred insofar as such
action shall relate to any alleged liability in respect of which indemnity may
be sought against the Indemnifying Party. Such Indemnified Party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall not be at the expense of the Indemnifying Party unless (i) the employment
of such counsel has been specifically authorized by the Indemnifying Party or
(ii) the Indemnifying Party shall have failed to assume the defense of such
action or proceeding. The Indemnifying Party shall not be liable to
indemnify any person for any settlement of any such action effected without the
Indemnifying Party’s consent, which consent shall not be unreasonably withheld
or delayed.
If the
indemnification provided for in this Section is held by a court of competent
jurisdiction to be unavailable to the Indemnified Party with respect to any
loss, liability, claim, damage or expense referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other hand in connection with the
statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The
relevant fault of the Indemnifying Party and the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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7.6 Notice. The
Company shall provide notice to the Purchasers of any “stop order” or other
notice affecting the Purchasers’ right to sell the Shares under any effective
registration statement.
8.
Definitions. When
used in this Agreement, the following terms shall have the meanings
indicated.
“Applicable
Securities Laws” means the applicable Federal and state securities
laws.
“Common
Stock” means the Company’s Class A Common Stock, $.001 par value per
share.
“Closing
Dates” shall have the meaning specified in Section 2.
“Closings”
shall have the meaning specified in Section 2.
“Commission”
means the Securities and Exchange Commission.
“Company”
means Symbollon Pharmaceuticals, Inc., a Delaware corporation.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Indemnified
Party” shall have the meaning specified in Section 7.5.
“Indemnifying
Party” shall have the meaning specified in Section 7.5.
“Material
Adverse Effect” means a material adverse effect on the business, prospects,
condition (financial or otherwise), assets or results of operations of the
Company taken as a whole.
“Purchasers”
means Ninth Inning Investments, LLC and Xxxxxxx Xxxxxxxx, and any subsequent
valid designee or transferee.
“Purchase
Price” shall have the meaning specified in Section 1.2.
“Securities”
shall have the meaning specified in Section 1.1.
“Securities
Act” means the Securities Act of 1933, as amended.
“Shares”
shall have the meaning specified in Section 1.1.
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9.
Notices. All
notices, requests, consents, and other communications under this Agreement shall
be in writing and shall be delivered in person with receipt acknowledged or
mailed by first class certified or registered mail, return receipt requested,
postage prepaid, by reputable overnight mail or courier, with receipt confirmed,
or by telecopy and confirmed by telecopy answerback, addressed as
follows:
If to the
Company:
Symbollon
Pharmaceuticals, Inc.
00 Xxxx
Xxxxxx, Xxxxx X
Xxxxxxxx,
Xxxxxxxxxxxxx 00000
Telephone:
(000) 000-0000
Attn:
President
To the
Purchasers:
Ninth
Inning Investments, LLC
0000 X.
000xx
Xx.
Xxxxxxxxxx,
XX 00000
Telephone: (000)
000-0000
Fax: (000)
000-0000
Xxxxxxx
Xxxxxxxx
0000
Xxxxxxxxxx Xx.
Xxx
Xxxxx, XX 00000
Telephone: (000)
000-0000
Fax: (000)
000-0000
or at
such other address or addresses as may have been furnished in writing by any
party to the other in accordance with the provisions of this Section
9. Notices and other communications provided in accordance with this
Section 9 shall be deemed delivered upon receipt.
10. Entire
Agreement. This Agreement, together with the Exhibits and
documents incorporated by reference herein, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
11. Amendments and
Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Purchasers. Any amendment or waiver
effected in accordance with this Section 11 shall be binding upon each
party. No waivers of or exceptions to any terms, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
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12. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall be one and the same
document.
13. Section
Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the parties.
14. Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
15. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of The Commonwealth of Massachusetts.
16. Successors and
Assigns. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto, provided that the Purchasers may not assign their
rights hereunder without the prior written consent of the Company.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
SYMBOLLON
PHARMACEUTICALS, INC.
By: /s/ Xxxx X.
Xxxxxxxxx
Xxxx
X. Xxxxxxxxx, President
NINTH
INNING INVESTMENT, LLC
By: /s/ Xxxxxx & Xxxxx
Xxxxxxx
Trustees
of the Xxxxxxx Revocable Trust
/s/ Xxxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxxx
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