EXHIBIT 2.2
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of the 11th day of September 1998 by and between HARRIER, INC., a Delaware
corporation ("Harrier"), and NEW CAPITAL INVESTMENT FUND, a Cayman Islands
corporation ("NCIF").
R E C I T A L S
A. Harrier currently owns 5,000,000 shares of the $.001 par value common
stock ("Common Stock") of Glycosyn Pharmaceuticals, Inc., a Delaware corporation
("Glycosyn").
B. Harrier intends to undertake a reorganization with COPE AG (the "COPE
Reorganization") which is conditioned on Harrier selling 2,850,000 shares
("Shares") of Glycosyn Common Stock to NCIF prior to the consummation of the
COPE Reorganization.
C. The principals of NCIF include certain current executive officers and
directors of Harrier and Glycosyn who are involved in the day-to-day business
activity of Glycosyn and are fully aware of all aspects of its business.
D. NCIF wishes to acquire the Shares on the terms and conditions as
contained in this Agreement.
E. Prior to the transfer of the Shares, Harrier shall have received from
a qualified independent business appraiser an opinion to the effect that the
consideration to be received by Harrier in exchange for the Shares is fair to
the shareholders of Harrier from a financial point of view.
NOW, THEREFORE, the parties agree as follows:
A G R E E M E N T
1. INCORPORATION OF RECITALS. The foregoing Recitals are herein
incorporated by this reference.
2. PURCHASE AND SALE OF SHARES.
2.1 PURCHASE AND SALE OF STOCK. Subject to the terms and conditions
of this Agreement, at the Closing, Harrier will sell to NCIF, and NCIF agrees to
purchase from Harrier, the Shares in exchange for the consideration as set forth
in Section 2.2.
2.2 PURCHASE PRICE. In consideration of its receipt of the Shares,
NCIF agrees:
2.2.1. That concurrent with its receipt of the Shares and
without the need for any further action on the part of NCIF, all of the
indebtedness owing to NCIF by Harrier pursuant to that certain Loan Agreement
between NCIF and Harrier dated June 9, 1996 shall be cancelled; and
2.2.2. Effective as of the Closing, to indemnify, defend and
hold harmless Harrier against and in respect of any and all claims, demands,
losses, costs, expenses, liabilities and damages, including interest, penalties,
and reasonable attorneys' fees, that Harrier shall incur or suffer which arise,
result from or relate to that certain Research and Development Agreement dated
as of May 1, 1993 between Harrier and American Diagnostica, Inc. ("ADI"). In
the event Harrier receives a complaint, claim or other notice of any loss, claim
or damage, liability or action, giving rise to a claim for indemnification under
this Section 2.2.2, Harrier shall promptly notify NCIF of such complaint,
notice, claim or action, and NCIF shall have the right to investigate and defend
any such loss, claim, damage, liability or action. Harrier 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
NCIF, unless NCIF fails to promptly defend, in which case the fees and expenses
of such separate counsel shall be borne by NCIF. In no event shall NCIF be
obligated to indemnify Harrier for any settlement of any claim or action
effected without NCIF's prior written consent.
3. CLOSING. The purchase and sale of the Shares shall take place at
Harrier, Inc., at 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 at 10:00 a.m., California time, on September 11, 1998, or at
such other time and place as Harrier and NCIF shall mutually agree (which time
and place are designated as the "Closing"). At the Closing, Harrier shall
deliver to NCIF a certificate representing the Shares that NCIF is purchasing
against delivery of an executed copy of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF HARRIER. Harrier hereby represents
and warrants to NCIF as follows.
4.1 ORGANIZATION: GOOD STANDING: QUALIFICATION. Harrier is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, has all requisite corporate power and authority
to own and operate its properties and assets and to carry on its business as now
conducted and as proposed to be conducted, to execute and deliver this Agreement
and each other agreement executed concurrently herewith. Harrier is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure so to qualify would have a material adverse affect on its
business, properties, prospects or financial condition.
4.2 AUTHORIZATION. All corporate action on the part of Harrier
necessary for the authorization, execution and delivery of this Agreement and
the performance of its obligations hereunder at the Closing has been taken or
will be taken prior to the Closing, and this Agreement shall constitute the
valid and legally binding obligation of Harrier, enforceable in accordance with
its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally; and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
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4.3 VALIDITY; TITLE. The Shares, when sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, and nonassessable, and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement and under applicable state and federal securities laws. Harrier
shall deliver to NCIF at the Closing the original certificate(s) evidencing the
Shares with such endorsements, assignments and other instruments of transfer, in
form satisfactory to NCIF and its counsel, in order to effectively vest in NCIF
all of Harrier's right, title and interest in and to the Shares. From time to
time after the Closing, and without further consideration, Harrier will execute
and deliver such other instruments of transfer and take such other actions as
NCIF may reasonably request in order to more effectively transfer to NCIF the
securities intended to be transferred hereunder.
4.4 APPROVAL OF HARRIER STOCKHOLDERS. Harrier will duly call and
will promptly hold a meeting of its stockholders for the purpose of approving,
among other things, its sale of the Shares on the terms and conditions set forth
in this Agreement and in connection therewith will comply fully with the
applicable provisions of the Bylaws of Harrier and the Delaware General
Corporation Law relating to the calling and holding of a meeting of stockholders
for such purpose.
4.5 GOVERNMENTAL CONSENTS. All consents, approvals, orders,
authorizations or registrations, qualifications, designations, declarations or
filings with any U.S., federal or state governmental authority on the part of
Harrier required in connection with the consummation of the transactions
contemplated herein shall have been obtained prior to and be effective as of the
Closing.
4.6 NO FURTHER REPRESENTATIONS. Except as expressly provided herein,
Harrier makes no representations or warranties concerning Glycosyn, its assets,
operations, contracts or affairs. Harrier states hereby its intent to enter
into this Agreement in strict reliance on NCIF's representations,
acknowledgements and agreements that it is intimately familiar with all aspects
of Glycosyn and that it is willing to acquire the Shares on a "as is", "where
is" and "with all faults basis."
5. REPRESENTATIONS AND WARRANTIES OF NCIF. NCIF hereby represents and
warrants to Harrier as follows.
5.1 ORGANIZATION; GOOD STANDING; QUALIFICATION. NCIF is a
corporation duly organized, validly existing, and in good standing under the
laws of the Cayman Islands. NCIF has all requisite corporate power and authority
to own and operate its properties and assets and to carry on its business as now
conducted and as proposed to be conducted, to execute and deliver this Agreement
and each other agreement executed concurrently herewith. NCIF is duly qualified
to transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on its business,
properties, prospects or financial condition.
5.2 AUTHORIZATION. All corporate action on the part of NCIF
necessary for the authorization, execution and delivery of this Agreement and
the performance of all obligations of NCIF hereunder at the Closing has been
taken or will be taken prior to the Closing, and this Agreement shall constitute
the valid and legally binding obligation of NCIF, enforceable in accordance with
its terms except (i) as limited by applicable bankruptcy, insolvency,
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reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally; and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
5.3 INVESTMENT AND RELATED REPRESENTATIONS.
5.3.1 HARRIER SHARES AS "RESTRICTED" SECURITIES. NCIF is
aware that neither the Shares nor the offer or sale thereof to the NCIF has been
registered under the Securities Act of 1933, as amended ("Securities Act"), or
under any foreign or state securities law. NCIF further understands that no
registration statement has been filed with the Securities and Exchange
Commission ("SEC"), nor with any other U.S. or foreign regulatory authority and
that, as a result, any benefit which might normally accrue to an investor such
as NCIF by an impartial review of such a registration statement by the SEC or
other regulatory commission will not be forthcoming. NCIF acknowledges that the
Shares are being offered pursuant to certain exemptions from Section 5 of the
Securities Act for offers and sale of securities not involving and issuer,
underwriter or dealer. NCIF understands that Shares are "restricted" securities
under U.S. federal securities laws inasmuch as they are being acquired from an
affiliate of the issuer and that under such laws and applicable regulations such
securities may be resold without registration under the Securities Act only in
certain limited circumstances. NCIF represents that it is familiar in general
with Rule 144 under the Securities Act (which provides generally for a one year
holding period and limitations on the amount of "restricted" securities that can
be sold in compliance with the rule upon completion of the holding period), and
understands the resale limitations imposed thereby and by the Securities Act.
NCIF understands that each certificate representing the Shares and any other
securities issued in respect of the Shares upon any stock split, stock dividend,
recapitalization, merger or similar event (unless no longer required in the
opinion of counsel for Glycosyn) shall be stamped or otherwise imprinted with
legends substantially in the following forms (in addition to any legend that may
now or hereafter be required by applicable state law):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THEY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER OF SUCH SECURITIES THAT SUCH OFFER, SALE,
TRANSFER, PLEDGE OR HYPOTHECATION IS IN FULL COMPLIANCE WITH THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS SOLD IN COMPLIANCE WITH
RULE 144 UNDER SUCH ACT."
NCIF agrees that the it will not sell any portion of Shares except pursuant to
registration under the Securities Act or pursuant to an available exemption from
registration under the Securities Act. NCIF understands that Glycosyn shall
refuse to transfer the Shares except in accordance with the restrictions and
agreements of NCIF set forth in this Section 5.3.
5.3.2 INVESTMENT REPRESENTATION. The Shares are being
acquired by NCIF pursuant to this Agreement for investment and not with a view
to the public resale or distribution thereof unless pursuant to an effective
registration statement or exemption under the Securities Act.
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5.3.3 NO PUBLIC SOLICITATION. NCIF is acquiring the Shares
after private negotiation and has not been attracted to the acquisition of the
Shares by any press release, advertising or publication.
5.3.4 INVESTOR SOPHISTICATION AND ABILITY TO BEAR RISK OF
LOSS. NCIF has not been organized for the purpose of acquiring the Shares.
NCIF acknowledges that it is able to protect its interests in connection with
the acquisition of the Shares and can bear the economic risk of investment in
such securities without producing a material adverse change in NCIF's financial
condition. NCIF otherwise has such knowledge and experience in financial or
business matters that NCIF is capable of evaluating the merits and risks of the
investment in the Shares.
5.4 GOVERNMENTAL CONSENTS. All consents, approvals, orders,
authorizations or registrations, qualifications, designations, declarations or
filings with any U.S., federal or state governmental authority on the part of
NCIF required in connection with the consummation of the transactions
contemplated herein shall have been obtained prior to and be effective as of the
Closing.
5.5 THIRD PARTY CONSENTS. All third party consents, approvals,
orders or authorizations required to be obtained by NCIF in connection with the
consummation of the transactions contemplated herein have been obtained.
5.6 DISCLAIMER OF WARRANTY. NCIF acknowledges and agrees that it is
acquiring the Shares "AS-IS", "WHERE-IS" and "WITH ALL FAULTS" and subject to
any conditions which may exist, without any representations or warranties by
Harrier except as expressly provided herein. NCIF acknowledges that it is
relying solely upon its own inspections, examinations and evaluations of the
Shares and Glycosyn and is accepting assignment of the Shares without the
standard representations, warranties or covenants customarily provided to the
purchaser of a business.
6. CONDITIONS OF TO THE PARTIES' OBLIGATIONS AT CLOSING. The obligations
of the parties under Section 2 of this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions, the waiver of
which shall not be effective against any party unless such waiver is in writing
and signed by the party against whom the waiver is sought to be enforced.
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein shall be true and correct on and as of the Closing
with the same effect as though such representations and warranties had been made
on and as of the date of such Closing.
6.2 PERFORMANCE. Each party shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with on or before the Closing.
6.3 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required to complete the purchase and sale described herein
shall be duly obtained and effective as of the Closing.
6.4 HARRIER STOCKHOLDER APPROVAL. The holders of the outstanding
shares of the
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Harrier Common Stock shall have approved, in accordance with Delaware General
Corporation Law, Harrier's sale of the Shares pursuant to the terms and
conditions of this Agreement.
6.5 FAIRNESS OPINION. Harrier shall have received the fairness
opinion referred to in the Recitals.
6.6. PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to NCIF, which shall have received all such counterpart originals and
certified or other copies of such documents as it may reasonably request.
7. TERMINATION. This Agreement and each party's obligations hereunder
may be terminated at any time and for any reason, effective upon the delivery of
written notice by the terminating party, up to the time of the Closing.
8. MISCELLANEOUS.
8.1 CUMULATIVE REMEDIES. Any person having any rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages by reason of any breach of any provision of
this Agreement, and to exercise all other rights granted by law, which rights
may be exercised cumulative and not alternatively.
8.2 SUCCESSORS AND ASSIGNS. The rights and obligations of the
parties under this Agreement shall not be assignable without the written consent
of COPE and Harrier and any such purported assignment with their written consent
shall be void AB INITIO. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
8.3 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement or the other documents.
8.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts when taken together will constitute one and the
same agreement.
8.5 NOTICES. Any approvals, consents or notices required or
permitted to be sent or given shall be delivered in writing personally or
mailed, certified mail, return receipt requested, to the following addresses and
shall be deemed to have been received within five days after such mailing:
If to NCIF: New Capital Investment Fund
Georgetown, Grand Cayman
Cayman Islands, British West Indies
Attn: Xxxx Xxxxxx, Director
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with a copy to: Xxxxxxx and Xxxxxx
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
If to Harrier: Harrier, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx XxXxxx, President
with a copy to: Xxxxxxxxxxx Xxxxx & Xxxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
8.6 GOVERNING LAW; ARBITRATION. The validity, meaning and effect of
this Agreement shall be determined in accordance with the laws of the State of
California, applicable to contracts made and to be performed in that state,
without regard to its conflicts of laws rules; provided however that the Federal
Arbitration Act of the United States shall govern issues as to arbitrability.
If a dispute arises in connection with or relating to this Agreement and the
parties are unable to resolve it within forty-five (45) days through direct
negotiations, the dispute shall be referred to final and binding arbitration to
be held in Los Angeles, California in accordance with the rules of the American
Arbitration Association for Commercial Arbitration (as they may be amended from
time to time). The award of the arbitrator(s) shall be final and binding upon
the parties hereto and may be enforced by any court of competent jurisdiction.
8.7 LITIGATION COSTS. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default, or misrepresentation in connection with any
of the provisions thereof, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it or they
may be entitled.
8.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
thereof, and supersedes all prior and contemporaneous agreements and
understandings.
IN WITNESS WHEREOF, each of the parties to this Agreement has executed or
caused this Agreement to be executed as of the date first above written.
"HARRIER"
Harrier, Inc.,
a Delaware corporation
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By: /s/ Xxxxx XxXxxx
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Xxxxx XxXxxx, President
"NCIF"
New Capital Investment Fund,
a Cayman Islands corporation
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Director
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