Exhibit 10.1
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made as of
August 23, 2002, by and among StemCells, Inc., a Delaware corporation (the
"Company") with its principal office at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX 00000
and Triton West Group, Inc., a Cayman Islands corporation with its offices at
the address set forth on the signature page hereto (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and Purchaser agree as follows:
SECTION 1.
AUTHORIZATION AND SALE OF SHARES
1.1. SALE OF SHARES. At the Closing (as defined in Section 2), the
Company will sell to Purchaser, and Purchaser will buy from the Company, upon
the terms and conditions hereinafter set forth, 1,028,038 shares (the "Shares")
of the Company's common stock, par value $0.01 per share (the "Common Stock") at
a purchase price of $1.07 per share, resulting in an aggregate purchase price of
One Million One Hundred Thousand Dollars ($1,100,000.00).
1.2. REGISTRATION OF SHARES. The Shares have been registered on a Form
S-3, File No. 333-83992, which registration statement, together with the
prospectus comprising a part thereof (the "REGISTRATION STATEMENT") has been
declared effective by the Securities and Exchange Commission (the "Commission")
pursuant to the provisions of the Securities Act of 1933, as amended (the
"Act"), and has remained effective since such date and is effective on the date
hereof.
SECTION 2.
CLOSING DATE; DELIVERY
2.1. CLOSING DATE. On the date hereof (the "Closing Date") or in any
event on or before August 26, 2002, the Company shall deliver the Shares to the
Buyer via the Depository Trust Company's ("DTC") Deposit Withdrawal Agent
Commission ("DWAC") system via the DTC instructions set forth on the signature
page hereto. The Purchase Price shall be paid to the Company as set forth in the
Escrow Agreement entered into among the Purchaser, the Company and the escrow
agent signatory thereto, in the form of EXHIBIT A hereto (the "ESCROW
AGREEMENT")). On or before August 26, 2002, the Buyer shall have wired the
Purchase Price to the Escrow Agent pursuant to the wire instructions set forth
in the Escrow Agreement. The obligations of the parties hereunder shall be
conditioned upon the execution and delivery by each other party of the Escrow
Agreement. The Shares must be unlegended and free of any resale restrictions
that may be imposed by or on behalf of the Company. Both parties hereby agree
and
acknowledge that delivery of the Shares via DTC's DWAC system is a material
obligation of the Company and furthermore, with respect to each party's
obligations hereunder, time is of the essence.
2.2. Pursuant to Section 424(b)(2), the Company agrees to file on Form
424(b)(2) the prospectus supplement set forth in EXHIBIT B hereto regarding the
sale of the Shares to Buyer.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser as follows:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
power and authority (corporate and otherwise) to own, lease and operate its
properties and conduct its business as described in the Registration Statement;
the Company is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to so qualify would not subject the Company to any material liability or
disability.
(b) The Company has full power and authority (corporate and otherwise)
to enter into this Agreement and to perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement on the part of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement hereof may be limited to applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles; the performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby, including without limitation, the sale of the Shares, will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any lease, contract or other agreement or
instrument to which the Company is a party or by which its properties are bound,
or (ii) the Certificate of Incorporation or By-laws of the Company or (iii) any
law, order, rule, regulation, writ, injunction or decree of any court or
governmental agency or body binding on the Company; and the Company is not
required to obtain or make (as the case may be) any consent, approval,
authorization, order, designation or filing by or with any court or regulatory,
administrative or other governmental agency or body is required for the
consummation by the Company of the transactions herein contemplated, except such
as have been obtained under the Act and state securities laws.
(c) The authorized capital stock of the Company consists of 75,000,000
shares of Common Stock and 1,000,000 shares of Preferred Stock, $.01 par value
per share. As of the date hereof, the Company has outstanding 24,739,666 shares
of Common Stock and 4,750 shares of Preferred Stock, all of which are validly
issued, fully paid and non-assessable and which represent all of the outstanding
shares of capital stock of the Company.
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(d) The Shares to be purchased from the Company hereunder have been
duly authorized for issuance and, when issued and delivered to the Purchaser by
the Company against payment therefor in accordance with the terms of this
Agreement, will be duly and validly issued and fully paid and nonassessable.
(e) Other than as otherwise disclosed publicly, subsequent to the
respective dates as of which information is given in the Registration Statement
there has not been (i) any material adverse change, or any development which is
likely to cause a material adverse change, in the business, properties or assets
described or referred to in the Registration Statement, or the results of
operations, condition (financial or otherwise), business or results of
operations of the Company, (ii) any transaction which is material to the
Company, (iii) any obligation, direct or contingent, which is material to the
Company, incurred by the Company, (iv) any change in the capital stock or any
material change in the outstanding indebtedness of the Company or (v) any
dividend or distribution of any kind declared, paid or made on the capital stock
of the Company. The Registration Statement and the final prospectus included
therein do not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading in light of the circumstances under which
they were made.
(f) The Registration Statement has become effective and the Company has
not received, and has no notice of, any written order of the Commission
preventing or suspending the use of the Registration Statement or the prospectus
contained therein, or proceedings instituted for that purpose.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser acknowledges that it has been given the opportunity to ask
questions of, and receive answers from, the Company's officers concerning the
Company, its business, results, and financial condition, and to obtain any
additional information it needs in making a decision to invest in the Company.
Purchaser further acknowledges that all of its questions have been answered to
its satisfaction, and all information and documents pertaining to its investment
that it has requested have been made available. Purchaser represents, warrants,
acknowledges and agrees that:
(a) the Purchaser understands that the Company may possess material,
non-public information relating to the Company and/or the Shares;
(b) the Purchaser has chosen, for its own business reasons, not to
request, require or expect that the Company provide any such information,
whether or not confidential, to it;
(c) the Purchaser is sophisticated and capable of understanding and
appreciating, and does understand and appreciate, the significance of there
being undisclosed information;
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(d) the Purchaser has independently investigated and evaluated the
value of the Shares and the financial condition and affairs of the Company
without reliance upon any information about the Company other than publicly
available information. Based upon its independent analysis of such information,
obtained from sources other than the Company, the Purchaser has reached its own
business decision to effect the purchase contemplated herein;
(e) Neither the Company, nor any of its affiliates, attorneys,
accountants and financial advisors has furnished any information to the
Purchaser, used by Purchaser in determining to make the purchase contemplated
herein, with respect to the Company or the Shares, other than such information
as is contained in this agreement;
(f) Except for the express representations and warranties contained in
this agreement, neither the Company, nor any of its affiliates, attorneys,
accountants and financial advisors, has made any representations or warranties
to any Purchaser; and
SECTION 5.
MISCELLANEOUS
5.1. WAIVERS AND AMENDMENTS. The terms of this Agreement may be waived
or amended only with the written consent of the Company and Purchaser. The
failure by any party at any time to enforce or to require the performance of any
provision of this Agreement shall in no way be construed to be a waiver of any
such provision and shall not affect the rights of such party hereunder
thereafter to enforce or require the performance of such provision in accordance
with the terms of this Agreement.
5.2. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of California, without regard to the conflict of laws
rules thereof.
5.3. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
Purchaser without the written consent of the Company.
5.4. ENTIRE AGREEMENT. This Agreement, including Exhibit A hereto,
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects thereof.
5.5. NOTICES, ETC. Any notice or other communication required or
permitted under this Agreement shall be in writing and may be sent by personal
delivery, by telecopy, overnight delivery service or U.S. mail, in which event
it shall be mailed first-class, certified or registered, postage prepaid. All
such notices and communications must be addressed to the Company or the
Purchaser, as the case may be, at their respective addresses and telecopy number
(i) in the case of the Company, as set forth at the beginning of this Agreement
in the case of the Company's
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address and to (000) 000-0000 in the case of a telecopy sent to the Company, and
(ii) in the case of the Purchaser as set forth on the signature page hereto, or
at such other address or telecopy number as the Company or Purchaser shall have
furnished to the other party in writing. All notices and other communications
shall be effective upon the earlier of actual receipt thereof and (A) in the
case of notices and communications sent by personal delivery or telecopy, three
hours following the first time during normal business hours following the time
at which such notice or communication arrives at the applicable address or was
successfully sent to the applicable telecopy number, (B) in the case of notices
and communications sent by overnight delivery service, at noon (local time) on
the first business day following the day such notice or communication was sent,
and (C) in the case of notices and communications sent by U.S. mail, five days
after such notice or communication shall have been deposited in the U.S. mail.
5.6. TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
5.7. COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be an original, but both of which together shall constitute
one instrument.
5.8. FURTHER ASSURANCES. Each party to this Agreement shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as the other party hereto may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
5.9. EXPENSES. Except as provided in Section 5.10, the Company and
Purchaser shall each bear its own expense incurred on its behalf with respect to
this Agreement and the transactions contemplated hereby, including fees of legal
counsel.
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5.10. SURVIVABILITY. The respective representations and covenants of
the parties hereto shall survive the Closing of the transactions contemplated
hereby.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers.
STEMCELLS, INC.,
a Delaware corporation
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: General Counsel
TRITON WEST GROUP, INC. ADDRESS FOR NOTICE:
a Cayman Islands corporation ------------------
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
By: /s/ XXXX XXXX
-----------------------------
Name: Xxxx Xxxx
Title: Board of Directors
DTC INSTRUCTIONS:
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