COMMON STOCK PURCHASE AGREEMENT
EXHIBIT 10.44
EXECUTION
VERSION
This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into as
of February 11, 2009 (the “Effective Date”).
BY
AND BETWEEN
DOR BioPharma Inc., a Delaware
corporation having its principal office at 000 Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the “Company”),
AND
SIGMA-TAU Pharmaceuticals,
Inc, a Nevada corporation having its principal office at 0000
Xxxxxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxxxxx, XX 00000 (hereinafter referred to
as the “Purchaser”).
W
I T N E S S E T H:
WHEREAS, the Company has
developed and is developing through its research activities Beclomethasone
Dipropionate (orBec®) and
owns and/or controls the related know-how and patents; and
WHEREAS, the Company and the
Purchaser are entering into a Collaboration and Supply Agreement (the “Supply
Agreement”) concerning Beclomethasone Dipropionate (orBec®) dated
as of the date hereof; and
WHEREAS, shares of the
Company’s common stock, par value $.001 per share (“Common Stock”), are listed
on the Over -The- Counter bulletin board securities market (the “Market”),
symbol “DORB”; and
WHEREAS, in connection with
the activities under the Supply Agreement, the Company desires to sell and issue
to the Purchaser, and the Purchaser, in order to support further
development of Beclomethasone Dipropionate (orBec®), wishes
to purchase from the Company, twenty-five million (25,000,000) shares of Common
Stock (“Shares”).
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties agree as follows:
ARTICLE
I
1. Definitions. The
following terms as used in this Agreement (or the Schedule(s) hereto) have the
meanings set forth below:
1.1. “Affiliates”
means, with respect to a party, (i) any entity, more than fifty percent (50%) of
the voting equity interests of which is owned and/or controlled directly or
indirectly by such party; (ii) any entity which directly or indirectly owns
and/or controls more than fifty percent (50%) of the voting equity interests of
such party; (iii) any entity which is directly or indirectly under common
control of the referenced party through common ownership or which is directly or
indirectly under common control of the respective shareholders of such
party.
1.2. “Agreement”
has the meaning set forth in the introductory paragraph.
1.3. “Closing”
has the meaning set forth in Article 3.1.
1.4. “Closing
Date” has the meaning set forth in Article 3.1.
1.5. “Common
Stock” has the meaning set forth in the recitals.
1.6. “Company”
has the meaning set forth in the introductory paragraph.
1.7. “Company’s
Knowledge” means the actual knowledge of the executive officers and directors of
the Company, after due and reasonable inquiry.
1.8. “Effective
Date” has the meaning set forth in the introductory paragraph.
1.9. “Exchange
Act” has the meaning set forth in Article 5.3.
1.10. “Holder”
has the meaning set forth in Article 7.
1.11. “Market”
has the meaning set forth in the recitals.
1.12. “Marketing
Authorizations” has the meaning set forth in Article 8.2.
1.13. “Permits”
has the meaning set forth in Article 5.11.
1.14. “Phase 3
Trial” has the meaning set forth in the Supply Agreement.
1.15. “Piggyback
Registration” has the meaning set forth in Article 7.2.
1.16. “Preferred
Stock” has the meaning set forth in Article 5.6(a).
1.17. “Proceeds”
has the meaning set forth in Article 2.1.
1.18. “Product”
has the meaning set forth in the Supply Agreement.
1.19. “Proprietary
Rights” has the meaning set forth in Article 5.10.
1.20. “Purchaser”
has the meaning set forth in the introductory paragraph.
1.21. “Registrable
Securities” shall mean (i) the Shares, (ii) the shares of Common Stock purchased
from the Company by the Purchaser on November 26, 2008 and (iii) any common
stock issued as a dividend or other distribution with respect to, or in exchange
for or in replacement of, such above-described securities; provided, however, that
“Registrable Securities” shall not include any securities sold by a person
either pursuant to a registration statement or Rule 144 as promulgated by the
SEC under the Securities Act, as such Rule may be amended from time to time, or
any similar successor rule that may be promulgated by the SEC.
1.22. “SEC” has
the meaning set forth in Article 5.8.
1.23. “SEC
Reports” has the meaning set forth in Article 5.14.
1.24. “Securities
Act” has the meaning set forth in Article 5.3.
1.25. “Shares”
has the meaning set forth in the recitals.
1.26. “Sigma-Tau
Nominee” has the meaning set forth in Article 8.1.
1.27. “Supply
Agreement” has the meaning set forth in the recitals.
2
ARTICLE
II
2. Purchase and Sale of
Shares.
2.1. At the
Closing, subject to the terms and conditions contained in this Agreement, in
payment of the full purchase price for the Shares, the Purchaser shall provide a
wire transfer of immediately available funds to the Company in an amount equal
to Four and One-Half Million Dollars (US $4,500,000) (the “Proceeds”) using the
following wire transfer instructions:
Bank
Name: UBS
AG
ABA
No.: 026007993
A/C Name: UBS
Financial Services
Beneficiary: DOR
BIOPHARMA, INC.
Account
No.: Y300354
3
ARTICLE
III
3. Closing; Deliveries at
Closing.
3.1. Closing. The
purchase and sale of the Shares shall take place at a closing (the “Closing”) to
be held at the offices of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. Eastern Time on the date of this
Agreement, or at such other location, time and date as may be mutually agreed
upon by the parties (the “Closing Date”). The Closing shall take
place contemporaneously with the execution and delivery of this Agreement by the
parties thereto.
3.2. Deliveries at
Closing. Within thirty (30) days
from the Closing, the Company shall deliver a stock certificate evidencing the
Shares, all issued in the name of the Purchaser and dated as of the Closing
Date.
4
ARTICLE
IV
4. Conditions to
Closing.
4.1. Conditions to the
Purchaser’s Obligations at Closing. The obligation of the
Purchaser to purchase and pay for the Shares at the Closing is subject to each
of the following conditions precedent:
(a) Officer’s
Certificate. The Purchaser shall have received at the Closing,
a certificate, executed by the appropriate officer of the Company and dated as
of the Closing Date, together with and certifying (i) the names of the officers
of the Company authorized to sign this Agreement together with the true
signatures of such officers; (ii) a copy of the Certificate of Incorporation of
the Company, as amended and in effect as of the Closing Date; (iii) a copy of
the Bylaws of the Company, as amended and in effect as of the Closing Date; (iv)
that the representations and warranties contained in Article 5 hereof are true
and correct as of the Closing Date; and (v) the Company has complied with all
the agreements and satisfied all the conditions herein on its part to be
performed or satisfied on or prior to the Closing Date;
(b) Instruction
Letter. The Company shall have transmitted an instruction
letter to its stock transfer agent directing it to issue to the Purchaser the
stock certificate for the Shares, and the Purchaser shall have received a copy
of such letter.
(c) Conditions to Company’s
Obligations at Closing. The obligation of the Company to issue
and sell the Shares at the Closing is subject to the delivery by the Purchaser
of the Proceeds in immediately available funds to Company’s specified account in
accordance with Article 2.1.
5
ARTICLE
V
5. Representations and
Warranties by the Company. The Company represents and warrants to the
Purchaser as follows:
5.1. Organization and
Standing. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The
Company is qualified to do business and is in good standing as a foreign
corporation in every jurisdiction in which the failure to so qualify would have
a material adverse effect on the financial condition or business of the
Company.
5.2. No
Actions. There are no legal or governmental actions, suits,
proceedings or investigations pending or, to the Company’s knowledge, threatened
to which the Company is or may be a party or of which property owned or leased
by the Company is or may be the subject, or related to environmental or
discrimination matters, which actions, suits, proceedings or investigations,
individually or in the aggregate, might prevent or might reasonably be expected
to have a material adverse affect on the transactions contemplated by this
Agreement or the financial condition or business of the Company. The
Company is not a party to, or subject to the provisions of, any material
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body.
5.3. Compliance with Other
Instruments. The execution and delivery of, and the
performance and compliance with this Agreement and the transactions contemplated
hereby, with or without the giving of notice, will not (i) result in any breach
of, or constitute a default under, or result in the imposition of any lien or
encumbrance upon any asset or property of the Company pursuant to any agreement
or other instrument to which the Company is a party or by which it or any of its
properties, assets or rights is bound or affected, (ii) violate the Certificate
of Incorporation or Bylaws of the Company, or, subject to the accuracy of the
representations and warranties of the Purchaser contained in Article 6 of this
Agreement, any law, rule, regulation, judgment, order or decree or (iii) except
for the registration of the Shares under the Securities Act of 1933, as amended
(the “Securities Act”), and such consents, notifications, approvals,
authorizations, registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and applicable
state securities or “blue sky” laws in connection with the purchase of the
Shares by the Purchaser, the issuance of the Shares and the listing of the
Shares on the Market do not require any consent, notification, approval,
authorization or order of or filing with any court or governmental agency or
body. The Company is not in violation of its Certificate of
Incorporation, as amended, or Bylaws, as amended, nor in violation of, or in
default under, any lien, mortgage, lease, agreement or instrument, except for
such defaults which would not, individually or in the aggregate, have a material
adverse effect on the financial condition or business of the
Company. The Company is not subject to any restriction which would
prohibit the Company from entering into or performing its obligations under this
Agreement.
5.4. Shares. The
Shares when issued and paid for pursuant to the terms of this Agreement, will be
duly and validly authorized, issued and outstanding, fully paid, nonassessable
and free and clear of all pledges, liens, encumbrances and restrictions (other
than arising under federal or state securities or “blue sky”
laws). The issuance of the Shares is not subject to any preemptive or
other similar rights.
5.5. Securities
Laws. Subject to the accuracy of the representations and
warranties of the Purchaser contained in Article 6 of this Agreement, the offer,
sale and issuance of the Shares as contemplated by this Agreement are exempt
from the registration requirements of the Securities Act, and from the
registration or qualifications requirements of the laws of any applicable state
or other U.S. jurisdiction.
5.6. Authorized Capital
Stock.
(a) The
capital stock of the Company, as authorized by the Company’s Certificate of
Incorporation immediately prior to the Closing, consists of 250,000,000 shares
of Common Stock, 4,600,000 shares of preferred stock, par value $.001 per
share, 200,000 shares of Series B preferred stock, par value $.05 per
share, and 200,000 shares of Series C preferred stock, par value $.05
per share (collectively, “Preferred Stock”). Immediately
prior to the Closing, 139,524,739 shares of
Common Stock and no shares of the Preferred Stock are issued and
outstanding. All of the outstanding shares of the Company’s capital
stock are duly authorized, validly issued, fully paid and nonassessable and
were issued in compliance with all applicable federal and state
securities laws and have been issued and sold in compliance with all applicable
preemptive or similar rights of all persons.
(b) Except as
set forth on Schedule
5.6(b), there are no outstanding subscriptions, options, warrants,
rights, calls, contracts, demands, commitments, conversion rights or other
agreements or arrangements of any character or nature whatever under which the
Company is or may be obligated (i) to issue or sell shares of its Common Stock
or Preferred Stock, or (ii) to register shares of its Common Stock or Preferred
Stock. No holder of any security of the Company is entitled to any
preemptive or similar rights to purchase any securities of the
Company.
6
5.7. Corporate Acts and
Proceedings. This Agreement has been duly authorized by the
requisite corporate action and has been duly executed and delivered by an
authorized officer of the Company, and is a valid and binding obligation of the
Company, enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting the enforcement of creditors’ rights generally and as to
limitations on the enforcement of the remedy of specific performance and other
equitable remedies. The requisite corporate action necessary to the
authorization, reservation, issuance and delivery of the Shares has been taken
by the Company.
5.8. Filing of
Reports. Since the Company’s Annual Report on Form 10-KSB for
the fiscal year ended December 31, 2007, the Company has filed with the
Securities and Exchange Commission (the “SEC”) all reports and other material
required to be filed by it therewith.
5.9. Compliance with Laws.
The business and operations of the Company have been conducted in accordance
with all applicable laws, rules and regulations of all governmental authorities,
except for such violations which would not, individually or in the aggregate,
have a material adverse effect on the financial condition or business of the
Company.
5.10. Proprietary Rights. No
executive officer or director of the Company has any actual knowledge, after due
and reasonable inquiry, of, nor has the Company given or received any notice of,
any pending conflicts with or infringement of the rights of others with respect
to any patents, patent applications, inventions, trademarks, trade names,
applications for registration of trademarks, service marks, service xxxx
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets (herein called the “Proprietary Rights”) which are material to the
business of the Company, as now conducted or as proposed to be
conducted. No action, suit, arbitration, or legal, administrative or
other proceeding, or investigation is pending or, to the Company’s Knowledge,
threatened which involves any Proprietary Rights. The Company is not
subject to any judgment, order, writ, injunction or decree of any court or any
federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or any
arbitrator, and the Company has not entered into or is a party to any contract
which restricts or impairs the use of any such Proprietary Rights in a manner
which would have a material adverse effect on the financial condition or
business of the Company. The Company has not received written notice
of any pending conflict with or infringement upon any third-party proprietary
rights by the Company.
5.11. Permits and
Licenses. The Company owns, possesses or has obtained, and is
operating in compliance with, all governmental, administrative and third party
licenses, permits, certificates, registrations, approvals, consents and other
authorizations (collectively, “Permits”) necessary to own or lease (as the case
may be) and operate its properties, whether tangible or intangible, and to
conduct its businesses or operations as currently conducted, except such
licenses, permits, certificates, registrations, approvals, consents and
authorizations the failure of which to obtain would not have a material adverse
effect on the business, properties, operations, financial condition or results
of operations of the Company, and the Company has not received any notice of
proceedings relating to the revocation, modification or suspension of any
Permits and, to the Company’s Knowledge, there exists no circumstance which
would lead it to believe that such proceedings are reasonably
likely.
5.12. Insurance. The Company maintains
insurance of the type and in the amount reasonably adequate for its business,
including, but not limited to, insurance covering all real and personal property
owned or leased by the Company against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against by similarly situated
companies, all of which insurance is in full force and effect.
5.13. Changes. Since
the Company filed its Form 10-Q on November 14, 2008, the Company has not, to
the extent material to the Company, (i) incurred any debts obligations or
liabilities, absolute, accrued or contingent, whether due or to become due,
other than in the ordinary course of business, (ii) mortgaged, pledged or
subjected to lien, charge, security interest or other encumbrance any of its
assets, tangible or intangible, (iii) waived any debt owed to the Company or its
subsidiaries, (iv) satisfied or discharged any lien, claim, or encumbrance or
paid any obligation other than in the ordinary course of business, (v) declared
or paid any dividends, or (vi) entered into any transaction other than in the
usual and ordinary course of business.
5.14. Reports and Financial
Statements. Prior to the execution hereof, the Company has
delivered to the Purchaser true and complete copies of the Company’s most
recently filed Form 10-KSB, as amended, and the Proxy Statement in connection
with the Company’s most recent Annual Meeting of Stockholders and all Forms 10-Q
and 8-K filed by the Company with the SEC after January 1, 2008, in each case
without exhibits thereto (the “SEC Reports”). As of their respective
filing dates, the SEC Reports were prepared in all material respects in
accordance with the requirements of the Securities Act or the Exchange Act, as
the case may be, and the rules and regulations of the SEC thereunder applicable
to such SEC Reports. The SEC Reports, as they may be updated by any
supplement or amendment to an SEC Report, do not contain any untrue statements
of a material fact and do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The audited consolidated financial statements
and unaudited interim financial statements of the Company included in the SEC
Reports have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and fairly present, in all material respects,
the financial position of the Company as at the dates thereof and the results of
its operations and cash flows for the periods then ended subject, in the case of
the unaudited interim financial statements, to normal year-end adjustments and
any other adjustments described in such financial statements.
5.15. Legal
Compliance. There are no actions, suits, proceedings,
arbitrations or investigations pending or, to the Company’s Knowledge,
threatened against the Company that would be required to be disclosed on a
Form 10-K or Form 10-Q pursuant to Item 103 of Regulation S-K of the Exchange
Act that are not so disclosed.
5.16. Disclosure. The
representations and warranties contained in this Article 5 do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained in this
Article 5 not misleading.
7
ARTICLE
VI
6. Representations, Warranties
and Covenants of the Purchaser.
The Purchaser represents and warrants
to the Company as follows:
6.1. Authorization. The
Purchaser is duly organized, validly existing and in good standing in the
jurisdiction of its organization and has all requisite legal and corporate or
other power and capacity and has taken all requisite corporate or other action
to execute and deliver the Agreement, to purchase the Shares to be purchased by
it and to carry out and perform all of its obligations under the
Agreement. This Agreement has been duly authorized, executed and
delivered and constitutes the legal, valid and binding obligation of the
Purchaser, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and as to limitations on the enforcement of the remedy of
specific performance and other equitable remedies. The person signing
on behalf of the Purchaser has the authority to execute this Agreement on behalf
of the Purchaser.
6.2. Investor
Status. The Purchaser is an “Accredited Investor” as defined
in Rule 501 of Regulation D promulgated under the Securities Act. The
Purchaser acknowledges receiving and reviewing the documents, including the
documents filed with the SEC included as exhibits thereto. The
Purchaser is aware of the Company’s business affairs and financial condition and
has had access to and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the
Shares. The Purchaser has such business and financial experience as
is required to give it the capacity to utilize the information received, to
evaluate the risks involved in purchasing the Shares, to make an informed
decision about purchasing the Shares and to protect its own interests in
connection with the purchase of the Shares and is able to bear the risks of an
investment in the Shares. The Purchaser is not itself a “broker” or a
“dealer” as defined in the Exchange Act and is not an “affiliate” of the Company
as defined in Rule 405 promulgated under the Securities Act.
6.3. Investment
Intent. The Purchaser is purchasing the Shares for its own
account as principal, for investment purposes only and not with a present view
to or for resale, distribution or fractionalization thereof, in whole or in
part, within the meaning of the Securities Act. The Purchaser
understands that its acquisition of the Shares has not been registered under the
Securities Act or registered or qualified under any state securities or “blue
sky” laws in reliance on specific exemptions therefrom, which exemptions may
depend upon, among other things, the bona fide nature of the Purchaser’s
investment intent as expressed herein. The Purchaser has, in
connection with its decision to purchase the number of Shares set forth in this
Agreement, relied solely upon the representations and warranties of the Company
contained herein. The Purchaser will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of) any of the Shares,
except in compliance with the Securities Act and the rules and regulations
promulgated thereunder and under this Agreement.
6.4. Registration or Exemption
Requirements. The Purchaser further acknowledges and
understands that the Shares may not be resold or otherwise transferred except in
a transaction registered under the Securities Act or unless an exemption from
such registration is available. The Purchaser is able to bear the
economic risk of holding the Shares for an indefinite period of time and can
afford a complete loss of its investment. The Purchaser understands
that until the Shares have been registered for resale by the Company in
compliance with applicable securities laws, the certificates evidencing the
Shares will be imprinted with a legend pursuant to Article 6.5 or otherwise that
prohibits the transfer of the Shares, unless (i) such transaction is registered
or such registration is not required or (ii) if the transfer is pursuant to an
exemption from registration, an opinion of counsel reasonably satisfactory to
the Company is obtained to the effect that the transaction is not required to be
registered or is so exempt.
6.5. Legend. Until
and unless the Registrable Securities are registered under the Securities Act
and any applicable state securities or “blue sky” laws and regulations, and as
permitted by law, each certificate representing the Registrable Securities shall
bear substantially the following legend as applicable (in addition to any
legends required under applicable state securities or “blue sky”
laws):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR THE SECURITIES OR BLUE SKY LAWS OF ANY STATE. SUCH SECURITIES MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT SUCH
REGISTRATION, EXCEPT UPON DELIVERY TO THE COMPANY OF SUCH EVIDENCE AS MAY BE
SATISFACTORY TO COUNSEL FOR THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER
SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS OR ANY RULE OR REGULATION PROMULGATED
THEREUNDER.
6.6. No Legal, Tax or Investment
Advice. The Purchaser understands that nothing in this
Agreement or any other materials presented to the Purchaser in connection with
the purchase and sale of the Shares constitutes legal, tax or investment
advice. The Purchaser has consulted, at its own expense, such legal,
tax and investment advisors as it, in its sole discretion, has deemed necessary
or appropriate in connection with its purchase of the Shares.
6.7. Compliance with Other
Instruments. The execution and delivery of this Agreement, the
purchase of the Shares and the performance by the Purchaser of all other
obligations of the Purchaser contemplated hereby will not (i) violate any law,
rule, regulation, judgment, order or decree applicable to the Purchaser or (ii)
require any consent, approval, authorization or order of, or filing with, any
court or governmental agency or body. The Purchaser is not subject to
any restriction which would prohibit it from entering into or performing its
obligations under this Agreement, except for such restrictions which would not,
individually or in the aggregate, have a material adverse effect on the ability
of the Purchaser to perform its obligations under this Agreement.
6.8. Compliance with Xxxxxxx
Xxxxxxx Rules. The Purchaser agrees to comply with the laws
and rules pertaining to inside information as they relate to the purchase or
sale of the Company’s securities at all times after the effective date of the
registration statement covering the Registrable Securities.
8
ARTICLE
VII
7. Reporting, Registration
Rights, Indemnification. As used herein, “Holder” shall mean
the Purchaser or any subsequent transferee of the Registrable Securities of the
Purchaser in accordance with the terms of this Agreement.
7.1. Required
Registration.
(a) At any
time following the Effective Date, the Holders who hold and propose to sell
Registrable Securities with an aggregate value of at least One
Million Dollars (US $1,000,000) shall have the right to require the Company to
register under the Securities Act on Form S-1 or other comparable or successor
form such shares by delivering written notice thereof to the
Company. All such registrations shall be
non-underwritten. For so long as the Company may be obligated to
effect a registration statement pursuant to this Article 7.1, the Company shall
use its reasonable best efforts to be and remain eligible to use Form S-1 or
other appropriate comparable or successor form under the Securities
Act.
(b) The
Company shall be obligated to register Registrable Securities pursuant to this
Article 7.1 on not more than one occasion during any twelve-month rolling
period, or on more than two occasions in the aggregate; provided, however, that such
obligation shall be deemed satisfied only when a registration statement covering
all shares of Registrable Securities requested to be included in such
registration statement by the Holders thereof, for sale in accordance with the
method of disposition specified by the requesting Holders, shall have become
effective or if the Holders participating in the registration withdraw from the
registration, unless such withdrawal is required pursuant to Article 7.2
below.
7.2. Piggy-Back
Registration. If the Company at any time proposes to register
any of its securities under the Securities Act for sale to the public, whether
for its own account or for the account of other security holders or both (except
with respect to registration statements on Forms X-0, X-0 and any successor
forms thereto) (a “Piggyback Registration”), each such time it shall promptly
give written notice to such effect to all Holders of outstanding Registrable
Securities at least twenty (20) days prior to filing such
registration. Upon the written request of any such Holder received by
the Company within ten (10) days after the giving of any such notice by the
Company, to register any of its Registrable Securities, the Company will cause
such Registrable Securities to be included in the securities to be covered by
the Registration Statement proposed to be filed by the Company, all to the
extent requisite to permit the resale or other disposition by the Holder of such
Registrable Securities so registered. If any Piggyback Registration
shall be, in whole or in part, an underwritten public offering of Common Stock,
the number of Registrable Securities to be included in such an underwriting may
be eliminated or reduced (pro rata among all requesting holders of Common Stock
based upon the number of shares of Common Stock requested to be registered by
all requesting holders) if and to the extent that the managing underwriter(s)
shall be of the good faith written opinion that such inclusion would adversely
affect the success of such an underwriting.
7.3. Registration
Procedures. If and whenever the Company is required by the
provisions of Article 7.1 to effect the registration of any Registrable
Securities under the Securities Act, the Company will, as expeditiously as
reasonably possible take the following actions:
(a) Prepare
and file with the SEC a registration statement with respect to such securities
as soon as reasonably practicable after delivery of the applicable notice, and
in any event within thirty (30) days thereof, and use its commercial best
efforts to cause such registration statement to become effective within ninety
(90) days after delivery of such notice and remain effective for the period of
the distribution contemplated thereby (determined as hereinafter provided);
provided, however, that that
Company’s obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for a
period not to exceed ninety (90) days in any twelve-month period if in the
reasonable judgment of the Company’s Board of Directors it would be detrimental
to the Company to effect a registration at such time.
(b) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the related prospectus as may be necessary to keep such
registration statement effective for the period specified in Article 7.3(a)
above and comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
in accordance with the sellers’ intended method of disposition set forth in such
registration statement for such period; provided, however, the Holders hereby
acknowledge that the Company may notify the Holders of the suspension of the use
of the prospectus forming a part of the registration statement until such time
as an amendment to such registration statement has been filed by the Company and
declared effective by the SEC or until the Company has otherwise amended or
supplemented such prospectus, and upon receipt of such notice the Holders shall
immediately suspend the use of the prospectus and shall not offer or sell any
securities pursuant to said prospectus during the period commencing at the time
at which the Company gives the Holders notice of the suspension of the use of
said prospectus and ending at the time the Company gives the Holders notice that
Holders may thereafter effect sales pursuant to said
prospectus. Notwithstanding anything herein to the contrary, the
Company (i) shall not suspend use of the registration statement by Holders
unless such suspension is in the good faith opinion of the Company and its
counsel advisable under the federal securities laws and the rules and
regulations promulgated thereunder; and (ii) shall use its best efforts to amend
such registration statement or amend or supplement such prospectus as soon as
practicable to again permit sales pursuant to said prospectus.
7.4. Expenses. All
expenses incurred pursuant to Article 7 (including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
incurred in connection with complying with state securities or “blue sky” laws,
fees of the NASD, transfer taxes, fees of transfer agents and registrars and
fees and disbursements of counsel) in connection with each such registration
statement shall be borne by the Company.
7.5. Changes in Common
Stock. If, and as often as, there is any change in the Common
Stock by way of a stock split, stock dividend, combination or reclassification,
or through a merger, consolidation, reorganization or recapitalization, or by
any other means, appropriate adjustment shall be made in the provisions hereof
so that the rights and privileges granted hereby shall continue with respect to
the Common Stock as so changed.
7.6. Rule 144
Reporting. With
a view to making available the benefits of certain rules and regulations of the
SEC that may at any time permit the sale of the Registrable Securities to the
public without registration, the Company agrees to:
(a) make and
keep Current Public Information available, as understood and defined in Rule 144
under the Securities Act;
(b) use
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
(c) furnish
to the Holders promptly upon request a written statement by the Company as to
its compliance with the reporting requirements of such Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as such Holder may reasonably request in availing itself of any
rule or regulation of the SEC allowing such Holder to sell any Registrable
Securities without registration.
7.7. Certain Holder
Obligations. As a condition to the inclusion of its
Registrable Securities in a registration effected pursuant to Article 7.1 the
Holder will promptly provide the Company with such information as the Company
shall reasonably request in order to prepare the applicable registration
statement for such registration, including, but not limited to, information
regarding the Holder, the securities of the Company owned beneficially or of
record by the Holder, the distribution proposed by the Holder, a customary
selling security holder’s questionnaire and, upon the Company’s request, the
Holder shall provide such information in writing and signed by the Holder and
stated to be specifically for inclusion in the applicable
registrations.
9
ARTICLE
VIII
8. Undertakings.
8.1. Election of
Director. To the extent the Purchaser continues to beneficially own
ten percent (10%) of the aggregate number of shares of Common Stock issued
by the Company, the Purchaser shall have the right to nominate one (1) member of
the Company’s Board of Directors, who shall be reasonably satisfactory to the
Company.
For the
2009 annual election of the Company’s Board of Directors, the Purchaser has
designated Xxxxx Xxxxxxxx (the “Sigma-Tau Nominee”) as its
nominee. The Company shall recommend such nominee to its shareholders
and use its best efforts to secure the election of the Sigma-Tau
Nominee. If, after the Effective Date, it is determined that the
Sigma-Tau Nominee cannot be nominated for the 2009 annual election of the
Company’s Board of Directors, the Company shall appoint such Nominee to fill any
current vacancy that exists on the Company’s Board of Directors.
8.2. Use of
Proceeds. The Company undertakes that the Proceeds, and the
proceeds from the sale of Common Stock purchased from the Company by the
Purchaser on November 26, 2008, will be used to support the costs and expenses
related to the Phase 3 Trial, as such term is defined in the Supply Agreement,
and other activities necessary to obtain and maintain the authorizations
(“Marketing Authorizations”) issued by all applicable regulatory authorities
which are necessary for the marketing, use, distribution and sale of the
Product, as such term is defined in the Supply
Agreement. Accordingly, the Company undertakes to utilize such
Proceeds only for the furtherance of the Phase 3 Trial and the Product
development activities necessary to obtain and maintain the Marketing
Authorizations in the United States of America (including its territories and
possessions, as well as Puerto Rico), Canada and Mexico. The Company
shall send to the Purchaser quarterly reports showing the proper allocation of
the Proceeds received.
10
ARTICLE
IX
9. Costs and
Expenses. Each party agrees to pay its own costs and expenses
in connection with the preparation, execution and delivery of this Agreement and
other instruments and documents to be delivered hereunder and
thereunder.
11
ARTICLE
X
10. Miscellaneous.
10.1. Headings. The
headings of the Articles of this Agreement have been inserted for convenience of
reference only and do not constitute a part of this Agreement.
10.2. Law, Dispute Resolution and
Jurisdiction. This
Agreement shall be governed, construed and interpreted in accordance with the
laws of New Jersey, without regard to the principles of conflicts of law
thereof. All disputes between the parties arising out of or in relation to this
Agreement shall be exclusively and finally resolved by the Courts of New
Jersey.
10.3. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the Company and the Purchaser and their respective successors and
assigns, provided that neither the Company nor the Purchaser may assign or
transfer any or all of its rights or obligations under this Agreement without
the prior written consent of the other party and any attempted assignment
without such consent shall be null and void.
10.4. Amendments. No
amendment, modification, waiver, discharge or termination of any provision of
this Agreement nor consent to any departure by the Purchaser or the Company
therefrom shall in any event be effective unless the same shall be in writing
and signed by the party to be charged with enforcement, and then shall be
effective only in the specific instance and for the purpose for which
given. No course of dealing between the parties hereto shall operate
as an amendment of, or a waiver of any right under, this Agreement.
10.5. Severability. 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. If any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part, such provision shall be interpreted so as to remain enforceable to the
maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provisions shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
10.6. Notices. Any notice
required to be given hereunder shall be considered properly given if sent by
registered air-mail, telecopier, or by personal courier delivery to the
respective address of each party as follows:
Sigma-Tau
Pharmaceuticals, Inc.
0000
Xxxxxxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxxx,
XX 00000
Attn.:
Xxx XxXxxxx
Fax:
(000) 000-0000
And
Attn.:
Xxxx Xxxxxxxxxxxxxxx
Address:
000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000
Fax:
(000) 000-0000
or to
such other address as a party may designate in writing. Such notice will be
considered received at the date of the receipt by the addressee.
10.7. Waiver. 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.
10.8. Other
Documents. 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.
10.9. Publicity. Except
as otherwise required by applicable law or by obligations pursuant to any
listing agreement with or rules of any securities exchange or automated
quotation system, each party shall, and shall cause its respective Affiliates
to, not issue any press release or make any other public statement relating to,
connected with or arising out of this Agreement or the matters contained herein
without the other party’s prior written approval of the contents and the manner
of presentation and publication thereof (which approval shall not be
unreasonably withheld or delayed).
10.10. No Third Party
Beneficiaries. Nothing in this Agreement shall create or be
deemed to create any rights in any person or entity not a party to this
Agreement, except for the Holders of Registrable Securities and certain
indemnitees.
10.11. Survival. The
representations, warranties, covenants and agreements made herein by the Company
and the Purchaser shall survive the Closing.
10.12. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by and delivered to each
party. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing such signature page with the same force and effect as if such
facsimile signature page were an original.
10.13. Entire
Agreement. This Agreement represents the entire agreement and
understanding between the parties hereto with respect to the subject matter
thereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter thereof. No statement, representation,
warranty, covenant or agreement of any kind not expressly set forth in the
Agreement shall affect, or be used to interpret, change or restrict, the express
terms and provisions of the Agreement.
[Signature
Page Follows]
[Signature
Page to Common Stock Purchase Agreement]
12
IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed in duplicate by their duly
authorized officers effective as of the Effective Date.
By:
/s/Xxxxxxxxxxx X.
Xxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxx,
Ph.D.
Title: President and CEO
SIGMA-TAU
PHARMACEUTICALS, INC.
By:
/s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Chief Executive
Officer
13
EXECUTION
VERSION
SCHEDULE
5.6(b)
(i) As of the
Effective Date, there are issued and outstanding (a) options to
purchase 16,730,039 shares of Common Stock and (b) warrants to purchase
41,464,184 shares of Common Stock.
(ii) In
addition to the registration rights granted to the Purchaser under this
Agreement, the Company has entered into the following agreements: (a)
Registration Rights Agreement dated February 14, 2008 between the Company and
Fusion Capital Fund II, LLC (Exhibit 10.35 to the Company’s Registration
Statement on Form S-1 filed with the SEC on February 14, 2008) , (b)
Registration Rights Agreement dated January 12, 2009 between the Company and
accredited investors (Exhibit 10.3 to the Company’s Form 8-K filed with the SEC
on January 21, 2009), and (c) the shares of Common Stock purchased by Sigma-Tau
Pharmaceuticals, Inc. from the Company pursuant to a Letter of Intent executed
on November 26, 2008.
14
