Exhibit 10.22
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT made as of the 31st day of October, 1997, between
AyurCore Inc., a Delaware corporation, whose principal offices are located at
0000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 (the "Company"), and
Xxxxxxx X. Xxxxxxxx and Xxxxxxxx Robestoff (together, the "Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company, that number of shares set forth
on the signature page hereto (the "Shares") of the Company's Common Stock, $.001
par value per share (the "Common Stock"), on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
I. AGREEMENT OF PURCHASE AND SALE
1.1 Subject to the terms and conditions hereinafter set forth, the
Purchaser agrees to purchase the Shares from the Company and the Company agrees
to issue and sell the Shares to the Purchaser.
1.2 The purchase price for the Shares shall be $4.00 per Share and shall
be paid by the tender to the Company for cancellation of all principal and
accrued interest owing to the Purchaser under the Company's (i) Promissory Note,
dated March 22, 1996, and (ii) Promissory Note, dated August 12, 1997 (such
notes, copies of which are attached hereto as Exhibit A and Exhibit B,
respectively, the "Notes") owned by the Purchaser.
1.3 Simultaneously with the execution of this Agreement, the Purchaser is
delivering the Notes to the law firm of Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx to
be held in escrow pending an amendment to the Company's charter (i)
reclassifying the Company's Class A and Class B common stock into one class of
common stock and (ii) increasing the number of authorized but unissued shares of
common stock to make available a sufficient number of shares for the issuance of
the Shares contemplated hereby (the "Charter Amendment"). Effectiveness of the
Charter Amendment shall be deemed a condition precedent to the purchase and sale
of the Shares contemplated hereby.
1.4 The Purchaser hereby authorizes and directs the Company to deliver the
Shares to be issued to the Purchaser pursuant to this Agreement to the address
set forth on the signature page hereto.
1.5 The Purchaser understands that the Company reserves the right to
reject the purchase of the Shares hereunder if any of the Purchaser's
representations contained herein shall prove to be untrue.
II. REPRESENTATIONS BY THE PURCHASER
2.1 The Purchaser recognizes that an investment in the Company is highly
speculative and subject to a high degree of risk. The Purchaser understands
that the Company is in need of immediate substantial additional financing in
order to meet its business objectives. The Purchaser understands that if the
Company is not able to obtain additional financing, the Company will not be able
to conduct its operations and Purchaser will in all likelihood lose a
substantial portion or all of the Purchaser's investment. The Purchaser
acknowledges that the Company is in the development stage and has not conducted
any significant operations to date or received any meaningful operating revenues
and expects to incur operating losses for the foreseeable future. The Purchaser
acknowledges that there is no assurance that the Company will ever achieve
meaningful revenues or profitable operations. The Purchaser is aware of the
problems, delays, expenses and difficulties encountered by an enterprise in the
Company's stage of development, many of which may be beyond the Company's
control. These include, but are not limited to, unanticipated problems relating
to product development, testing, regulatory compliance, manufacturing costs,
production and marketing problems, additional costs and expenses that may exceed
current estimates and competition.
2.2 The Purchaser acknowledges that the Purchaser must be a qualified
investor, as described herein, to qualify for the purchase of the Shares, and
that the Purchaser must be able to bear the economic risk of this investment.
2.3 The Purchaser represents that the Purchaser is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Shares Act of 1933, as amended (the "Act").
2.4 The Purchaser acknowledges that the Purchaser has prior investment
experience, including investment in non-listed and non-registered securities, or
the Purchaser has employed the services of an investment advisor, attorney or
accountant to read all of the documents furnished or made available by the
Company to the Purchaser and to evaluate the merits and risks of such an
investment on the Purchaser's behalf; that the Purchaser recognizes the highly
speculative nature of this investment; and is able to bear the economic risk the
Purchaser hereby assumes.
2.5 The Purchaser represents that the Purchaser has been furnished by the
Company during the course of this transaction with
all information regarding the Company which the Purchaser had requested or
desired to know; that all documents which could be reasonably provided have been
made available for the Purchaser's inspection and review; that the Purchaser has
been afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning the terms
and conditions of the investment, and any additional information which the
Purchaser had requested; and that the Company has made no representations
concerning the Company except as set forth herein.
2.6 The Purchaser acknowledges that this transaction has not been reviewed
by the Securities and Exchange Commission ("SEC") and is intended to be exempt
from the registration requirements of the Act. The Purchaser represents that
the Shares being purchased hereunder are being purchased for the Purchaser's own
account, for investment and not for distribution or resale to others. The
Purchaser agrees that the Purchaser will not sell or otherwise transfer such
securities or any interest in such securities unless they are registered under
the Act or unless an exemption from such registration is available. The
Purchaser further agrees that notwithstanding the availability, if any, of any
such exemption, the Purchaser will not sell or otherwise transfer the Shares or
any interest in the Shares except in compliance with all of the provisions and
conditions of Rule 144 promulgated under the Act as if such Rule were
applicable.
2.7 The Purchaser consents that the Company may, if it desires, permit the
transfer of the Shares received out of the Purchaser's name only when the
Purchaser's request for transfer is accompanied by an opinion of counsel
reasonably satisfactory to the Company that neither the sale nor the proposed
transfer results in a violation of the Act or any applicable state "blue sky"
laws (collectively "Securities Laws").
2.8 The Purchaser agrees to hold the Company and its directors, officers
and controlling persons and their respective heirs, representatives, successors
and assigns harmless and to indemnify them against all liabilities, costs and
expenses incurred by them as a result of any misrepresentation made by him
contained herein or in the Confidential Purchaser Questionnaire or any sale or
distribution by the undersigned Purchaser in violation of any Securities Laws.
2.9 The Purchaser consents to such restrictions on transferability and
sale of the Shares as may be requested by a managing underwriter in connection
with an initial public offering of the Company's equity securities (an "IPO"),
which restrictions may include, by way of example, a twelve month lock-up period
following consummation of an initial public offering.
2.10 The Purchaser consents to the placement of a legend on
any certificate or other document evidencing the Shares stating that they have
not been registered under the Act and setting forth or referring to the
restrictions on transferability and sale thereof. The Purchaser is aware that
the Company will make a notation in its records with respect to the restrictions
on the transferability of such securities.
III. REPRESENTATIONS BY THE COMPANY
3.1 The Company represents and warrants to the Purchaser that prior to the
consummation of this purchase and at such date:
(a) The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Delaware and has the corporate power to
conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Agreement by the
Company will have been duly approved by the Board of Directors of the Company
and all other actions required to authorize and effect the sale of the Shares
will have been duly taken and approved.
(c) The Shares have been duly and validly authorized and when issued
and paid for in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable.
(d) The Company has obtained, or is in the process of obtaining, all
licenses, permits and other governmental authorizations necessary to the conduct
of its business; such licenses, permits and other governmental authorizations
obtained are in full force and effect; and the Company is in all material
respects complying therewith.
(e) The Company knows of no pending or threatened legal or
governmental proceedings to which the Company is a party which could materially
adversely affect the business, property, financial condition or operations of
the Company.
(f) The Company is not in violation of or default under, nor will the
execution and delivery of this Agreement, the issuance of the Shares and the
incurrence of the obligations herein and therein set forth and the consummation
of the transactions herein or therein contemplated, result in a violation of, or
constitute a default under, the certificate of incorporation or by-laws, in the
performance or observance of any material obligations, agreement, covenant or
condition contained in any bond, debenture, note or other evidence of
indebtedness to which the Company is a party or by which it or any of its
properties may be bound or in violation of any material order, rule, regulations
writ, injunction, or decree of any government, governmental instrumentality or
court, domestic or foreign. The Company represents that presently it does
not have a sufficient number of authorized but unissued shares of common stock
available for the issuance of the Shares contemplated hereby. The Company
agrees to use its best efforts to cause the Charter Amendment to become
effective.
IV. MISCELLANEOUS
4.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at its registered office, 0000 X.
Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx, 00000, Attention: Xxxxx Xxxxxx,
M.D., CEO, and to the Purchaser at the address set forth on the signature page
hereto. Notices shall be deemed to have been given on the date of mailing,
except notices of change of address, which shall be deemed to have been given
when received.
4.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
4.3 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and merges and supersedes
all prior discussions, agreements and understandings of any and every nature
among them.
4.4 Notwithstanding the place where this Agreement may be executed by any
of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and governed by the laws
of the State of New York. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York City and they hereby submit to
the exclusive jurisdiction of the courts of the State of New York located in New
York, New York and of the federal courts in the Southern District of New York
with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Agreement or any acts or omissions relating to the sale of the securities
hereunder, and consent to the service of process in any such action or legal
proceeding by means of registered or certified mail, return receipt requested,
in care of the address set forth below or such other address as the undersigned
shall furnish in writing to the other.
4.5 This Agreement may be executed in counterparts. Upon the execution
and delivery of this Agreement by the Purchaser, this Agreement shall become a
binding obligation of the Purchaser with respect to the purchase of the Shares
as herein provided.
4.6 The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
4.7 It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not operate, or be construed, as a waiver of
any subsequent breach by that same party.
4.8 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
AYURCORE, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx, M.D.,
Chief Executive Officer
PURCHASERS:
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
By: /s/ Xxxxxxxx Robestoff
--------------------------
Xxxxxxxx Robestoff
Address:
Number of Shares
Being Purchased: 54,741
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Total Principal and
Interest Being Canceled: $218,964.37
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