EXHIBIT 10.11
STOCK SUBSCRIPTION AGREEMENT
This Stock Subscription Agreement (the "Agreement") is made as of the _____
day of _________________, 199__, by and between Cell Pathways, Inc., a Delaware
corporation (the "Corporation"), and _________________________ ("Purchaser").
W I T N E S S E T H:
Whereas, the Corporation hereby agrees to issue and sell to Purchaser, and
Purchaser hereby agrees to purchase and pay for, shares of Series F Convertible
Preferred Stock of the Corporation.
Now, Therefore, It Is Agreed between the parties as follows:
1. Purchaser hereby agrees to purchase from the Corporation and the
Corporation agrees to issue and sell to Purchaser ________________ shares of
Series F Convertible Preferred Stock (the "Shares") at a purchase price of $3.70
per share, for a total of $________________.
2. The issuance of the Shares shall take place promptly after receipt of
funds ("Closing Date").
3. On the Closing Date, the Corporation will deliver to Purchaser a
certificate registered in Purchaser's name representing the number of Shares
purchased on such Closing Date. Purchaser will pay the purchase price for the
Shares being purchased by delivery to the Company of a check in the amount of
$________________, or by wiring such amount to the account of Cell Pathways,
Inc., No. 7867646 with the Northern Trust Company at 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, using Bank Routing Number 000000000.
4. Purchaser acknowledges that he is aware that the Shares to be issued
to him by the Corporation pursuant to this Agreement have not been registered
under the Securities Act of 1933, as amended (the "Act"), and that the Shares
are deemed to constitute "restricted securities" under Rule 144 promulgated
under the Act. In this connection, Purchaser warrants and represents to the
Corporation that Purchaser is obtaining the Shares for Purchaser's own account
and Purchaser has no present intention of distributing or selling said Shares
except as permitted under the Act and applicable state securities laws.
Purchaser further warrants and represents that Purchaser has either (i) a
preexisting personal or business relationship with the Corporation or any of its
officers, directors or controlling persons, or (ii) the capacity to protect his
own interests in connection with the purchase of the Shares by virtue of the
business or financial expertise
1.
of any professional advisors to Purchaser who are unaffiliated with and who are
not compensated by the Corporation or any of its affiliates, directly or
indirectly. Purchaser further acknowledges that the exemption from registration
under Rule 144 will not be available for at least three years from the date of
receipt of the Shares unless at least two years from the date of receipt (i) a
public trading market then exists for the Common Stock of the Corporation, (ii)
adequate information concerning the Corporation is then available to the public,
and (iii) other terms and conditions of Rule 144 are complied with; and that any
sale of the Shares may be made only in limited amounts in accordance with such
terms and conditions and that after ninety days after the Corporation becomes
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Shares may be resold by persons other than affiliates
in reliance on Rule 144 without compliance with paragraphs (c), (d), (e) and
(h) thereof, and by affiliates without compliance with paragraph (d) thereof.
5. All certificates representing the Shares shall have endorsed thereon
the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THUS MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
UNDER THE SECURITIES ACTS OF 1933, AS AMENDED, OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
(b) "THE SALE, TRANSFER OR OTHER DISPOSITION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN AN
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT DATED AS OF DECEMBER 31, 1996, BY
AND AMONG THE COMPANY AND ITS STOCKHOLDERS, A COPY OF WHICH STOCKHOLDERS'
AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE COMPANY
AND WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON REQUEST AND
WITHOUT CHARGE."
(c) "THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO
SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF COMPANY STOCK
OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS."
(d) Any legend required to be placed thereon by appropriate state
Blue Sky officials.
2.
6. Without in any way limiting the foregoing, Purchaser further agrees
that he shall in no event make any disposition of all or any portion of the
Shares which he is being issued unless and until:
(a) There is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made in accordance
with said registration statement; or
(b) (i) He shall have notified the Corporation of the proposed
disposition and shall have furnished the Corporation with a detailed statement
of the circumstances surrounding the proposed disposition, (ii) he shall have
furnished the Corporation with an opinion of his own counsel to the effect that
such disposition will not require registration of such shares under the Act, and
(iii) such opinion of his counsel shall have been concurred in by counsel for
the Corporation, such concurrence not to be unreasonably withheld, and the
Corporation shall have advised him of such concurrence.
7. The Corporation shall not be required (i) to transfer on its books any
Shares which shall have been sold or transferred in violation of any of the
provisions set forth in this Agreement or (ii) to treat as owner of such Shares
or to accord the right to vote as such owner or to pay dividends to any
transferee to whom such Shares shall have been so transferred.
8. As also set forth in the Stockholders' Agreement, dated as of December
31, 1996, Purchaser hereby agrees that for a period of up to a maximum of 180
days following the effective date of the first registration statement of the
Corporation covering Common Stock (or other securities) to be sold on its behalf
in an underwritten public offering, he shall not, to the extent requested by the
Corporation and any underwriter, sell or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any Common Stock of the
Corporation held by him at any time during such period except Common Stock
included in such registration.
In order to enforce the foregoing covenant, the Corporation may impose
stop-transfer instructions with respect to the Common Stock held by Purchaser
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
9. Purchaser hereby makes, constitutes and appoints Xxxxxxx X. Xxxx, or
his successors, the true and lawful Attorney-in-Fact of Purchaser (said person,
or his successor, being herein referred to as the "Attorney-in-Fact") with full
power and authority in the name and on behalf of Purchaser to enter into the
Third Amended and Restated Stockholder Agreement. This Power of Attorney and all
authority conferred hereby are granted and conferred subject to and in
consideration of the interests of the
3.
Corporation and the other Purchasers who purchase the Shares, and, for the
purposes of completing the purchase, this Power of Attorney and all authority
conferred hereby shall be irrevocable and shall not be terminated by any act of
the Purchaser or by operation of law. The Attorney-in-Fact in his place and
stead, and Purchaser hereby ratifies and confirms all that the Attorney-in-Fact
or substitute or substitutes shall do by virtue of these presents.
10. The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of this
Agreement.
11. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or delivery by
facsimile or express courier, or 4 days after deposit in the United States Post
Office, by registered or certified mail with postage and fees prepaid, addressed
to the other party hereto at its address or facsimile number hereinafter shown
below its signature or at such other address as such party may designate by ten
days' advance written notice to the other party hereto.
12. This Agreement shall be governed by the laws of the State of Delaware
and interpreted and determined in accordance with the laws of the State of
Delaware, as such laws are applied by Delaware courts to contracts made and to
be performed entirely in Delaware by residents of that state.
13. This Agreement shall inure to the benefit of the successors and
assigns of the Corporation and, subject to the restrictions on transfer herein
set forth, shall be binding upon Purchaser, his heirs, executors,
administrators, successors and assigns.
14. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
4.
In Witness Whereof, the parties hereto have executed this Agreement as of
the day and year first above written.
Cell Pathways, Inc.
By:
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Title:
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Address:
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Facsimile No.:
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Purchaser:
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Address:
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Facsimile No.:
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5.
