STOCK PURCHASE AGREEMENT
Exhibit 10.1
Execution Copy
THIS STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of September 18, 2009, is
made by and between QuikByte Software, Inc., a Colorado corporation (the “Company”), and
each of the Investors listed on Exhibit A hereto (each, an “Investor” and
collectively, the “Investors”).
RECITALS
WHEREAS, the Company is a party to that certain Merger Agreement, dated as of July 14, 2009,
as amended (the “Merger Agreement”), by and among the Company, Sorrento Therapeutics, Inc.,
a Delaware corporation (“Sorrento”), Sorrento Merger Corp., Inc., a Delaware corporation
and wholly-owned subsidiary of the Company (“Merger Sub”), Xxxxxxx Xxxxxxxx, as
Stockholders’ Agent thereunder, and Xxxxx Xxxxxxx, as Parent Representative thereunder, pursuant to
which the Company will acquire Sorrento via a merger whereby Merger Sub will be merged with and
into Sorrento (the “Merger”) with Sorrento continuing as the surviving entity in the Merger
and as a wholly-owned subsidiary of the Company; and
WHEREAS, the closing of the Merger (the “Merger Closing”) is subject to, among other
conditions, the Company’s receipt of an aggregate investment of $2.0 million in exchange for shares
of common stock, $0.0001 par value, of the Company (the “Common Stock”); and
WHEREAS, the Investors desire to acquire from the Company, and the Company desires to issue
and sell to the Investors, in the manner and on the terms and conditions hereinafter set forth,
44,634,374 shares of Common Stock (collectively, the “Shares”); and
WHEREAS, in connection with the Investors’ purchase of the Shares, the Company and the
Investors desire to establish certain rights and obligations between themselves.
NOW, THEREFORE, in consideration of these premises, the mutual covenants and agreements herein
contained and for other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the Company and each of the Investors hereby agree as follows:
SECTION I DEFINITIONS.
The following terms when used in this Agreement have the following respective meanings:
“1933 Act” means the Securities Act of 1933, as amended.
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“Affiliate” means with respect to any Person, any (i) officer, director, partner or
holder of more than 10% of the outstanding shares or equity interests of such Person, (ii) any
relative of such Person, or (iii) any other Person which directly or indirectly controls, is
controlled by, or is under common control with such Person. A Person will be deemed to control
another Person if such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the “Controlled” Person, whether through
ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the recitals hereto.
“Articles of Incorporation” means the Articles of Incorporation of the Company, as
amended and restated and as on file with the Secretary of State of the State of Colorado on the
date of this Agreement.
“Business Day” means a day other than Saturday, Sunday or statutory holiday in the
State of Florida and in the event that any action to be taken hereunder falls on a day which is not
a Business Day, then such action shall be taken on the next succeeding Business Day.
“Bylaws” means the Amended and Restated Bylaws of the Company, as filed with the SEC
on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3.1 hereof.
“Closing” has the meaning set forth in Section 3.1 hereof.
“Common Stock” has the meaning set forth in the recitals hereto.
“Company” has the meaning set forth in the recitals hereto.
“Computershare” has the meaning set forth in Section 3.2(a) hereof.
“GAAP” means generally accepted accounting principles in the United States.
“Governmental Authority” means the United States, any state or municipality, the
government of any foreign country, any subdivision of any of the foregoing, or any authority,
department, commission, board, bureau, agency, court, or instrumentality of any of the foregoing.
“Instruction Letter” has the meaning set forth in Section 3.2(a) hereof.
“Investor(s)” has the meaning set forth in the recitals hereto.
“Investor Lock-Up Agreement” means the lock-up letter agreement substantially in the
form of Exhibit B hereto.
“Knowledge” means the actual knowledge of the officers of the Company after due and
diligence inquiry of the employees or agents of the Company reasonably believed to have knowledge
of such matters.
“Lien” means any mortgage, lien, pledge, security interest, easement, conditional sale
or other title retention agreement, or other encumbrance of any kind.
“Material Adverse Effect” means a change or effect in the condition (financial or
otherwise), properties, assets, liabilities, rights, operations or business of the Company which
change or effect, individually or in the aggregate, could reasonably be expected to be materially
adverse to such condition, properties, assets, liabilities, rights, operations or business.
“Merger” has the meaning set forth in the recitals hereto.
“Merger Agreement” has the meaning set forth in the recitals hereto.
“Merger Closing” has the meaning set forth in the recitals hereto.
“Merger Sub” has the meaning set forth in the recitals hereto.
“Person” means an individual, corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, or Governmental Authority.
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“Purchase Price” means $2.0 million.
“SEC” means the United States Securities and Exchange Commission.
“SEC
Filings” has the meaning set forth in Section 4.2 (f) hereof.
“Shareholders” mean the record holders of shares of capital stock of the Company.
“Shares” has the meaning set forth in the recitals hereto.
“Sorrento” has the meaning set forth in the recitals hereto.
SECTION II PURCHASE AND SALE OF COMMON STOCK.
2.1
Issuance and Purchase of Common Stock. At the Closing, based upon the representations, warranties, covenants and agreements of the
parties set forth in this Agreement, the Company shall issue and sell to each Investor, and each
Investor shall purchase from the Company, that number of Shares set forth opposite such Investor’s
name on Exhibit A attached hereto. At the Closing, the Company shall deliver to each
Investor a copy of the Instruction Letter against payment of that portion of the Purchase Price set
forth opposite such Investor’s name on Exhibit A.
2.2 Payment for Common Stock. At the Closing, for all of the Shares, the Investors shall pay to the Company, in the
aggregate, the Purchase Price. Each Investor shall pay that portion of the Purchase Price set
forth opposite such Investor’s name on Exhibit A. The Investors shall pay the Purchase
Price by wire transfers of immediately available funds to an account designated in writing by the
Company.
SECTION III THE CLOSING.
3.1 Closing . The closing of the issuance and sale of the Shares pursuant to Section 2.1 hereof
and certain of the other transactions contemplated hereby (the “Closing”) shall take place
contemporaneously with the execution of this Agreement (the “Closing Date”) at the offices
of Xxxxxxxxx Xxxxxxx P.A., in Miami, Florida, or such other place as agreed by the parties hereto.
The Closing shall take place immediately prior to the Merger Closing.
3.2 Deliveries by the Company. At the Closing, the Company shall deliver or cause to be delivered to the Investors the
following items (in addition to any other items required to be delivered to the Investors pursuant
to any other provision of this Agreement):
(a) a copy of an instruction letter to Computershare Trust Company, N.A.
(“Computershare”), the transfer agent for the Common Stock, duly executed by an officer of
the
Company directing Computershare to promptly issue certificates representing the Shares being
issued and sold by the Company to the Investors pursuant to
Section 2.1 hereof, duly
recorded on the books of the Company in the names of each of the Investors as set forth on
Exhibit A (bearing a legend that such securities have not been registered under the 1933
Act or any state securities laws) and shall deliver such letter to Computershare (the
“Instruction Letter”); and
(b) a certificate of the Secretary of State of the State of Colorado as to the good standing
of the Company dated within five Business Days prior to the Closing Date.
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3.3 Deliveries by the Investors . At the Closing, each of the Investors shall deliver or cause to be delivered to the Company
(in addition to any other items required to be delivered to the Company pursuant to any other
provision of this Agreement):
(a) payment by wire transfer of immediately available funds necessary to satisfy each
Investor’s obligations to the Company under Section 2.2 hereof and to result in payment to
the Company of the Purchase Price; and
(b) a fully-executed Investor Lock-Up Agreement.
SECTION IV REPRESENTATIONS AND WARRANTIES.
4.1 Representations and Warranties of the Company. In order to induce each of the Investors to purchase the Common Stock that it is purchasing
hereunder, the Company represents and warrants to each of the Investors as of the Closing (unless
another time is expressly provided for herein) as follows:
(a) Organization and Standing. The Company is duly incorporated and validly existing
under the laws of the State of Colorado, and has all requisite corporate power and authority to own
or lease its properties and assets and to conduct its business as it is presently being conducted.
As of immediately prior to the Closing, the Company did not own any equity interest, directly or
indirectly, in any other Person or business enterprise other than Merger Sub. The Company is
qualified to do business and is in good standing in each jurisdiction in which the failure to so
qualify could reasonably be expected to have a Material Adverse Effect upon its assets, properties,
financial condition, results of operations or business. As of immediately prior to the Closing,
the Company had no subsidiaries other than Merger Sub.
(b) Capitalization. As of the Closing Date, the authorized capital stock of the
Company is 600,000,000 shares, consisting of (i) 500,000,000 shares of Common Stock, of which
11,073,946 shares are issued and outstanding as of immediately prior to the Closing, and (ii)
100,000,000 shares of preferred stock, par value $0.0001 per share, of which no shares are issued
and outstanding as of immediately prior to the Closing. The Company has no other class or series
of equity securities authorized, issued, reserved for issuance or outstanding. Except for the
Merger and agreements to be assumed by the Company in connection with the Merger, there are (x) no
outstanding options, offers, warrants, conversion rights, contracts or other rights to subscribe
for or to purchase from the Company, or agreements obligating the Company to issue, transfer, or
sell (whether formal or informal, written or oral, firm or contingent), shares of capital stock or
other securities of the Company (whether debt, equity, or a combination thereof) or obligating the
Company to grant, extend, or enter into any such agreement and (y) no agreements or other
understandings (whether formal or informal, written or oral, firm or
contingent) which require or may require the Company to repurchase any of its Common Stock.
There are no preemptive or similar rights with respect to the Company’s capital stock. There are
no anti-dilution or price adjustment provisions contained in any security issued by the Company (or
in any agreement providing rights to security holders). Other than as contemplated by the Merger
Agreement, the Company is not a party to, and, to the Knowledge of the Company, no Shareholder is a
party to, any voting agreements, voting trusts, proxies or any other agreements, instruments or
understandings with respect to the voting of any shares of the capital stock of the Company, or any
agreement with respect to the transferability, purchase or redemption of any shares of the capital
stock of the Company. The issue and sale of the Shares to the Investors does not obligate the
Company to issue any shares of capital stock or other securities to any Person (other than the
Investors) and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under such securities. The outstanding Common Stock
is all duly and validly authorized and issued, fully paid and nonassessable.
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Immediately following
the Merger Closing, the Shares will represent approximately 19.83% of the issued and outstanding
shares of the capital stock of the Company on a fully-diluted basis.
(c) Capacity of the Company; Authorization; Execution of Agreements. The Company has
all requisite corporate power, authority and capacity to enter into this Agreement and to perform
the transactions and obligations to be performed by it hereunder. The execution and delivery of
this Agreement by the Company, and the performance by the Company of the transactions and
obligations contemplated hereby, including, without limitation, the issuance and delivery of the
Shares to the Investors hereunder, have been duly authorized by all requisite action on the part of
the Company. This Agreement has been duly executed and delivered by a duly authorized officer of
the Company and constitutes a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of the United States (both state and federal),
affecting the enforcement of creditors’ rights or remedies in general from time to time in effect
and the exercise by courts of equity powers or their application of principles of public policy.
(d) Status of Shares. The Shares being issued and purchased hereunder, all of which
are to be issued by the Company to the Investors and paid for by the Investors pursuant to the
terms of this Agreement, are and will be, when issued, (i) duly authorized, validly issued, fully
paid and nonassessable, (ii) issued in compliance with all applicable United States federal and
state securities laws, (iii) subject to restrictions under this Agreement, and applicable United
States federal and state securities laws, have the rights and preferences set forth in the Articles
of Incorporation, and (iv) free and clear of all Liens (except for any Liens imposed on such
Shares, directly or indirectly, by the Investors).
(e) Conflicts; Defaults. The execution and delivery of this Agreement by the Company
and the performance by the Company of the transactions and obligations contemplated hereby and
thereby to be performed by it do not (i) violate, conflict with, or constitute a default under any
of the terms or provisions of, the Articles of Incorporation, the Bylaws, or any provisions of, or
result in the acceleration of any obligation under, any contract, note, debt instrument, security
agreement or other instrument to which the Company is a party or by which the Company, or any of
its assets, is bound; (ii) result in the creation or imposition of any Liens (except for any Liens
imposed, directly or indirectly, by the Investors) or claims upon the Company’s assets or upon any
of the shares of capital stock of the Company; (iii) constitute a violation of any law, statute,
judgment, decree, order, rule, or regulation of a Governmental Authority applicable to the Company;
or (iv) constitute an event which, after notice or lapse of time or both, would result in any of
the foregoing. The Company is not presently in violation of its Articles of Incorporation or
Bylaws.
(f) SEC Filings. The SEC Filings, when filed, complied in all material respects with
the requirements of Section 13 or 15(d) of the 1934 Act, as applicable, did not, as of the dates
when filed,
contain an untrue statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The SEC Filings are all
of the filings that the Company was required to file with the SEC during the periods covered
thereby and all such filings were made on a timely basis when due. The financial statements of the
Company included in the SEC Filings complied in all material respects with the rules and
regulations of the SEC with respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with GAAP applied on a consistent basis during the
periods covered by such financial statements, except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material respects the
financial position of the Company as of and for the dates thereof and for the periods indicated,
and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments. All material agreements
to which the Company is a party or to which the property or assets of the Company are subject and
which are required
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to be disclosed pursuant to the 1934 Act are included as part of or specifically
identified in the SEC Filings.
(g) Material Changes. Since the date of the latest audited financial statements
included within the SEC Filings, except as disclosed in the SEC Filings, (i) there has been no
event that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of the business of a shell corporation consistent
with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP as required to be disclosed in filings made with the SEC, (iii) the
Company has not altered its method of accounting or the identity of its auditors, (iv) the Company
has not declared or made any dividend or distribution of cash or other property to its shareholders
or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock
and (v) the Company has not issued any equity securities to any officer, director or Affiliate.
(h) Absence of Litigation. There is no action, suit, claim, proceeding, inquiry or
investigation before or by any court, public board, government agency, self-regulatory organization
or body pending or, to the Knowledge of the Company, threatened against the Company.
(i) Brokers, Finders, and Agents. The Company is not, directly or indirectly,
obligated to anyone acting as broker, finder or in any other similar capacity in connection with
this Agreement or the transactions contemplated hereby. No Person has or, immediately following
the consummation of the transactions contemplated by this Agreement, will have, any right, interest
or valid claim against the Company or, as a result of any action or inaction by the Company, the
Investors, in either case for any commission, fee or other compensation as a finder or broker in
connection with the transactions contemplated by this Agreement, nor are there any brokers’ or
finders’ fees or any payments or promises of payment of similar nature, however characterized, that
have been paid or that are or may become payable in connection with the transactions contemplated
by this Agreement, as a result of any agreement or arrangement made by the Company.
(j) Application of Takeover Protections. There is no control share acquisition,
business combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Articles of Incorporation or Bylaws that is or could
become applicable to any of the Investors as a result of the Investors and the Company fulfilling
their obligations or exercising their rights under this Agreement, including without limitation, as
a result of the Company’s issuance of the Shares and the Investors’ ownership of the Shares.
(k) Absence of Businesses. Neither the Company nor Merger Sub is engaged in any
business and neither the Company nor the Merger Sub has any liability or obligation of any kind or
nature
other than liabilities or obligations that are disclosed in an SEC Filing or that ordinarily
and customarily relate to the maintenance of a public company or the Merger.
(l) Merger. To the Knowledge of the Company, immediately following the Closing, all
conditions precedent to the Merger Closing will have been satisfied.
(m) Disclosure. All written disclosure materials provided to the Investors regarding
the Company, its business and the transactions contemplated hereby furnished by or on behalf of the
Company are true and correct in all material respects and as otherwise contemplated in this
Agreement and do not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein not misleading. No event or
circumstance has occurred or information exists with respect to the Company or its business,
properties, operations or financial
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condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company, but which has not been so publicly
announced or disclosed.
4.2 Representations and Warranties of the Investors. Each of the Investors hereby severally, but not jointly, represents and warrants to the
Company as of the Closing as follows:
(a) Investment Intent. The Shares being purchased by the Investor hereunder are being
purchased for its own account, not as a nominee or agent, and not with the view to, or for resale
in connection with, any distribution or public offering thereof within the meaning of the 1933 Act.
The Investor understands that such Shares have not been registered under the 1933 Act by reason of
their issuance in a transaction exempt from the registration and prospectus delivery requirements
of the 1933 Act pursuant to Section 4(2) thereof and/or the provisions of Rule 506 of Regulation D
promulgated thereunder, and under the securities laws of applicable states and agrees to deliver to
the Company, if requested by the Company, an investment letter in customary form. The Investor
further understands that the certificates representing such Shares bear a legend substantially
similar to the following and agrees that it will hold such Shares subject thereto:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED DIRECTLY OR INDIRECTLY
FROM THE ISSUER WITHOUT BEING REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE SECURITIES LAWS, AND ARE RESTRICTED
SECURITIES AS THAT TERM IS DEFINED UNDER RULE 144 PROMULGATED UNDER THE ACT. THESE
SHARES MAY NOT BE SOLD, PLEDGED, TRANSFERRED, DISTRIBUTED OR OTHERWISE DISPOSED OF
IN ANY MANNER (“TRANSFER”) UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY
APPLICABLE SECURITIES LAWS, OR UNLESS THE REQUEST FOR TRANSFER IS ACCOMPANIED BY A
FAVORABLE OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE ISSUER, STATING THAT
THE TRANSFER WILL NOT RESULT IN A VIOLATION OF THE ACT OR ANY APPLICABLE SECURITIES
LAWS.
(b) Capacity of the Investor; Execution of Agreement. Such Investor has all requisite
power, authority and capacity to enter into this Agreement and to perform the transactions and
obligations to be performed by it hereunder. The execution and delivery of this Agreement, and the
performance by the Investor of the transactions and obligations contemplated hereby, have been duly
authorized by all requisite corporate or individual, as the case may be, action of the Investor.
This Agreement has been duly executed and delivered by the Investor and constitutes a valid and
legally
binding agreement of the Investor, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws, both state and federal, affecting the enforcement of creditors’ rights or remedies in
general from time to time in effect and the exercise by courts of equity powers or their
application of principles of public policy.
(c) Accredited Investor/Qualified Institutional Buyer. Each Investor is an
“accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the 1933
Act or a “qualified institutional buyer” within the meaning of Rule 144A(a)(1) promulgated
under the 1933 Act.
(d) Suitability and Sophistication. The Investor has (i) such knowledge and
experience in financial and business matters that it is capable of independently evaluating the
risks and merits of purchasing the Shares it is purchasing; (ii) independently evaluated the risks
and merits of purchasing such Shares and has independently determined that the Shares are a
suitable investment for it; and (iii) sufficient financial resources to bear the loss of its entire
investment in such Shares. The
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Investor has had an opportunity to review: the Company’s Annual
Report on Form 10-K for the year ended December 31, 2008, the Company’s quarterly reports on Form
10-Q for the periods ended March 31, 2009 and June 30, 2009, the Company’s current report on Form
8-K filed with the SEC on July 14, 2009 and other filings made by the Company under Section 13(a)
of the 1934 Act since July 7, 2008 (the “SEC Filings”).
(e) Brokers, Finders, and Agents. The Investor is not, directly or indirectly,
obligated to anyone acting as broker, finder, or in any other similar capacity in connection with
this Agreement or the transactions contemplated hereby. No Person has or, immediately following
the consummation of the transactions contemplated by this Agreement, will have, any right, interest
or valid claim against the Company or the Investor for any commission, fee or other compensation as
a finder or broker in connection with the transactions contemplated by this Agreement, nor are
there any brokers’ or finders’ fees or any payments or promises of payment of similar nature,
however characterized, that have been paid or that are or may become payable in connection with the
transactions contemplated by this Agreement, as a result of any agreement or arrangement made by
the Investor.
(f) Nationality; Residence. Each Investor is a citizen of the United States of
America and a resident of, or organized within, the state set forth underneath such Investor’s name
on Exhibit A attached to this Agreement.
(g) General Solicitation. The Investor is not purchasing the Shares as a result of
any advertisement, article, notice or other communication regarding the Shares published in any
newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general advertisement.
4.3 Rule 144. Each Investor acknowledges that the Shares it will be purchasing must be held indefinitely
unless subsequently registered under the 1933 Act or unless an exemption from such registration is
available. Each Investor acknowledges that the Company is neither obligated, nor has the present
intention, to register the Shares for resale pursuant to a registration statement filed with the
SEC. Each of the Investors is aware of the provisions of Rule 144 promulgated under the 1933 Act
which permit limited resale of shares purchased in a private placement subject to the satisfaction
of certain conditions, including, among other things, the provisions of Rule 144(i), which provide
additional conditions that must be satisfied by (a) an issuer with (i) no or nominal operations;
and (ii) either (A) no or nominal assets; (B) assets consisting solely of cash and cash
equivalents; or (C) assets consisting of any amount of cash and cash equivalents and nominal other
assets; or (b) an issuer that has been at any time previously
an issuer described in (a), and each Investor is further aware that the provisions of Rule
144(i) are applicable to the Company.
SECTION V MISCELLANEOUS.
5.1 Waivers and Amendments. This Agreement may be amended or modified in whole or in part only by a writing which makes
reference to this Agreement executed by the Investors and the Company. The obligations of any
party hereunder may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party claimed to have given
the waiver; provided, however, that any waiver by any party of any violation of, breach of, or
default under any provision of this Agreement or any other agreement provided for herein shall not
be construed as, or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this Agreement or any other
agreement provided for herein.
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5.2 Entire Agreement. This Agreement (together with the Exhibits hereto) and the other agreements and instruments
expressly provided for herein, together set forth the entire understanding of the parties hereto
and supersede in their entirety all prior contracts, agreements, arrangements, communications,
discussions, representations and warranties, whether oral or written, among the parties with
respect to the subject matter hereof.
5.3 Governing Law. This Agreement shall in all respects be governed by and construed in accordance with the
internal substantive laws of the State of Florida without giving effect to the principles of
conflicts of law thereof. Each of the parties hereto irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement brought by any other party or its
successors or assigns shall be brought and determined in any Florida state or federal court sitting
in Miami-Dade County, Florida (or, if such court lacks subject matter jurisdiction, in any
appropriate Florida state or federal court), and each of the parties hereby irrevocably submits to
the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property,
generally and unconditionally, with regard to any such action or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby.
5.4 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. EACH OF THE PARTIES HERETO ALSO
WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF THE OTHER PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO ENTER INTO THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY FURTHER ACKNOWLEDGES AND AGREES
THAT EACH HAS REVIEWED OR HAD THE OPPORTUNITY TO REVIEW THIS WAIVER WITH ITS RESPECTIVE LEGAL
COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH SUCH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
5.5 Public Announcements. Except as provided below in this Section 5.5, none of the parties hereto shall publicly
disclose the execution, delivery or contents of this Agreement other than (i) with the prior
written consent of the other parties hereto, or (ii) as required by any applicable law (including
for the purpose of holding shareholder or stockholder meetings and proxies therefor), the
applicable rules of any stock exchange, or any Governmental Authority. Without limiting the
foregoing, the parties understand that this Agreement will be publicly filed by the Company with
the SEC and that the Company may issue press releases and/or public statements with respect to this
Agreement and the Merger. Nothing contained herein shall prohibit the Company from making any such
disclosure if required by any applicable law or any Governmental Authority.
5.6 Notices. Any notice, request or other communication required or permitted hereunder shall be in
writing and be deemed to have been duly given (a) when personally delivered or sent by facsimile
transmission (the receipt of which is confirmed in writing), (b) one Business Day after being sent
by a nationally recognized overnight courier service or (c) five Business Days after being sent by
registered or certified mail, return receipt requested, postage prepaid, to the parties at their
respective addresses set forth below.
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| If to the Company: | QuikByte Software, Inc. | |||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxx Xxxxxxx, CEO | ||||
| Facsimile: (000) 000-0000 | ||||
| with a courtesy copy (not | Xxxxxx X. Xxxxxxxx, Esq. | |||
| constituting notice) to: | Xxxxxxxxx Xxxxxxx, P.A. | |||
| 0000 Xxxxxxxx Xxxxxx | ||||
| Xxxxx, Xxxxxxx 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| if to Investors: | At the addresses set forth across from each Investor’s name on Exhibit A hereto. | |||
| Any party by written notice to the other may change the address or the persons to whom notices or copies thereof shall be directed. |
5.7 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, and all of which together will constitute one and the same instrument. Any
facsimile, scanned or e-mailed copy of this Agreement will be deemed an original for all purposes
and any
facsimile, scanned or e-mailed copy of an original written signature shall be deemed to have
the same effect as an original written signature.
5.8 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns, except that the Company may not assign or
transfer its rights hereunder without the prior written consent of the Investors and no Investor
may assign or transfer its rights hereunder without the prior written consent of the Company.
5.9 Third Parties. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer
upon or give any Person other than the parties hereto and their successors and assigns any rights
or remedies under or by reason of this Agreement.
5.10 Exhibits. The Exhibits attached to this Agreement are incorporated herein and shall be part of this
Agreement for all purposes.
5.11 Expenses. Each party shall bear and pay all of the legal, accounting and other costs and expenses
incurred by it in connection with the transactions contemplated by this Agreement.
5.12 Headings. The headings in this Agreement are solely for convenience of reference and shall not be
given any effect in the construction or interpretation of this Agreement.
5.13 Interpretation. Whenever the context may require, any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall
include the plural and vice versa.
[Signature Page Follows]
10
IN WITNESS WHEREOF, the Company and each of the Investors have executed this Agreement as of
the date first above written.
| COMPANY: | ||||||
| QuikByte Software, Inc., a Colorado corporation |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INVESTOR (if an individual): | INVESTOR (if an entity): | |||||
| (Signature) | (Legal Name of Entity) | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
11
EXHIBIT A
SCHEDULE OF INVESTORS
| Name, Address and | Number of | |||||||
| State of Residence or Organization | Shares Purchased | Purchase Price | ||||||
Total: |
44,634,374 | $ | 2,000,000.00 | |||||
A-1
EXHIBIT B
INVESTOR LOCK-UP AGREEMENT
QuikByte Software, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, CEO
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, CEO
Ladies and Gentlemen:
The undersigned, a holder of shares of Sorrento Therapeutics, Inc., a Delaware corporation
(“Sorrento”), and/or QuikByte Software, Inc., a Colorado corporation (together with its
successors, “Parent”), will hold shares of common stock, $0.0001 par value, of Parent
(“Parent Shares”) after the transactions contemplated by that certain Merger Agreement,
dated as of July 14, 2009 by and among Sorrento, Parent, Sorrento Merger Corp., Inc., a Delaware
corporation, Xxxxxxx Xxxxxxxx, an individual as the Stockholders’ Agent thereunder, and Xxxxx
Xxxxxxx, an individual as Parent Representative thereunder, as amended (the “Merger
Agreement”). For good and valuable consideration, the undersigned hereby irrevocably agrees
that following the closing of the merger contemplated under the Merger Agreement (the
“Merger”), the undersigned will not, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in the future of) any
Parent Share, including, Parent Shares that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the United States Securities and
Exchange Commission and Parent Shares that may be issued upon exercise of any options or warrants,
or securities convertible into or exercisable or exchangeable for Parent Shares, (2) enter into any
swap or other derivatives transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of Parent Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Parent Shares or other securities, in cash
or otherwise, (3) make any demand for or exercise any right or cause to be filed a registration
statement, including any amendments thereto, with respect to the registration of any Parent Shares
or securities convertible into or exercisable or exchangeable for Parent Shares or any other
securities of Parent, or (4) publicly disclose the intention to do any of the foregoing, in each
case, for a period commencing on the date of the closing of the Merger and ending on the
twenty-four (24) month anniversary of such date. Notwithstanding the foregoing, this Lock-Up
Letter Agreement shall automatically terminate and the undersigned holder will be automatically
released from any transfer restrictions hereunder on the last business date that is immediately
prior to the consummation of a Change of Control. For purposes hereof, a “Change of Control” shall
mean any transaction or series of transactions involving (i) any merger, consolidation, share
exchange, business combination, issuance of securities, direct or indirect acquisition of
securities, recapitalization, tender offer, exchange offer or other similar transaction involving
Parent, as a result of which the shareholders of Parent immediately prior to such transaction hold,
in the aggregate, less than 50% of the voting power of Parent or the surviving entity immediately
after such transaction on a fully-diluted basis; (ii) any direct or indirect sale, lease, exchange,
transfer, license, acquisition or disposition of all or substantially all of the business or assets
(including intangible assets) of Parent; or (iii) any liquidation or dissolution of Parent.
In furtherance of the foregoing, Parent and its transfer agent on its behalf are hereby
authorized to decline to make any transfer of securities if such transfer would constitute a
violation or breach of this Lock-Up Letter Agreement.
B-1
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
| Yours truly, | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Dated:
Accepted and Acknowledged:
QuikByte Software, Inc.
By: |
||||
Name:
|
||||
Title:
|
||||
B-2
