EXHIBIT 10.11
SECURITIES PURCHASE AGREEMENT
BETWEEN
REGENERX BIOPHARMACEUTICALS, INC.
AND
SIGMA-TAU PHARMACEUTICAL GROUP AND OTHER PURCHASERS
----------------------
DATED AS OF JANUARY 23, 2004
SECURITIES PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of January 23, 2004, (this
"Agreement") is entered into by and among REGENERX BIOPHARMACEUTICALS, INC., a
Delaware corporation (the "Company"), with its principal executive office at 0
Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, and THE PERSONS LISTED ON THE
SCHEDULE OF PURCHASERS attached hereto as Schedule I (each a "Purchaser," and
collectively, the "Purchasers") (all collectively, the "Parties").
RECITALS
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A. The Company and the Purchasers desire that the Company and the
Purchasers enter into a Securities Purchase Agreement, including a related
Warrant which will represent the sole binding obligation between the parties.
B. On the terms and subject to the conditions set forth herein, each
Purchaser is willing to purchase from the Company, and the Company is willing to
sell to such Purchaser, shares of the Company's Common Stock (the "Shares"), no
par value in the amount set forth opposite such Purchaser's name on Schedule I
attached hereto, and the Company is willing to sell to such Purchaser warrant(s)
to purchase the number shares of the Company's Common Stock set forth opposite
such Purchaser's name on Schedule II attached hereto.
C. The Company desires to enter into this Agreement for the purposes,
among others, of establishing certain rights and obligations attendant to such
investment.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing, and the
representations, warranties, and conditions set forth below, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
(a) Issuance and Purchase of Shares. At the Closing (as defined
below), the Company agrees to issue and sell to each of the Purchasers, and,
subject to all of the terms and conditions hereof, each of the Purchasers agrees
to purchase Shares in the amount set forth opposite the respective Purchaser's
name on Schedule I attached hereto. The obligations of the Purchasers to
purchase Shares are several and not joint. The per share purchase price for the
Shares shall be $0.95 (ninety-five cents).
(b) Issuance of Warrants. In consideration for the purchase by the
Purchasers of the Shares and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company will issue to each of the
Purchasers set forth on Schedule II attached hereto a warrant in the form
attached hereto as Exhibit A (each a "Warrant," and collectively, the
"Warrants") to purchase up to the number of shares of Common Stock (the "Warrant
Shares") as set forth opposite the respective Purchaser's name on Schedule II
attached hereto. The Warrant is exercisable, at a price of $1.50 (one dollar and
fifty cents), in whole or in part, at any time and from time to time from the
Date of Grant, as defined in the Warrant, through a period of 30 (thirty) months
after the Date of Grant.
(c) Delivery. The sale and purchase of the Shares and the Warrants
shall take place at a closing (the "Closing") to be held at the offices of
Xxxxxx Xxxxx LLP, 0000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000, on January 20, 2004
(the "Closing Date"), or at such other time or place as the parties shall
mutually agree. The Parties agree that the Closing may occur by facsimile
signature and delivery and that the Parties need not appear in person at the
Closing. At the Closing, or as soon thereafter as practicable, the Company will
deliver to each of the Purchasers a stock certificate representing the Shares
registered in the name of the Purchaser and the respective Warrant to be
purchased by such Purchaser, against receipt by the Company of the corresponding
purchase price set forth opposite such Purchaser's name on Schedule I attached
hereto (the "Purchase Price"). Each of the Warrants will be registered in such
Purchaser's name in the Company's records.
(d) Payment of Purchase Price. The Purchase Price for the Shares
shall be payable by each Purchaser of immediately available funds to an escrow
account at Xxxxx Xxxx, XX, Xxxxxxxxxx, XX on or before the Closing as follows:
Xxxxx Bank N.A.
ABA #000000000
RNB Corporate Trust Clearing Account #00000000
Sovereign Trust Services
FBO: RegeneRx/Xxxxx Bank Escrow
Account #840130017
Attn: Xxxx Xxxxxxx
Voice: (000) 000-0000
(e) Use of Proceeds. The proceeds of the sale and issuance of the
Shares and Warrants shall be used for the funding of Phase II clinical trials
for chronic dermal wound healing and general corporate purposes.
(f) Registration of Shares. The Company undertakes to register the
Shares with the Securities and Exchange Commission on a registration statement
on Form SB-2, or whatever form the Company is eligible to use, as soon as
practicable after the Closing, but no later than forty-five (45) days after the
Closing.
2. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company
represents and warrants to each Purchaser that:
(a) Due Incorporation, Qualification, etc. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation; (ii) has the power and authority to own, lease
and operate its properties and carry on its business as now conducted; and (iii)
is duly qualified, licensed to do business and in good standing as a foreign
corporation in each jurisdiction where the failure to be so qualified or
licensed could reasonably be expected to have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by the
Company of each Transaction Document to be executed by the Company and the
consummation of the transactions
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contemplated thereby (i) are within the power of the Company and (ii) have been
duly authorized by all necessary actions on the part of the Company.
(c) Enforceability. Each Transaction Document executed, or to be
executed, by the Company has been, or will be, duly executed and delivered by
the Company and constitutes, or will constitute, a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by the Company of
the Transaction Documents executed by the Company and the performance and
consummation of the transactions contemplated thereby do not and will not (i)
violate the Certificate of Incorporation or Bylaws of the Company or any
material judgment, order, writ, decree, statute, rule or regulation applicable
to the Company; (ii) violate any provision of, or result in the breach or the
acceleration of, or entitle any other Person to accelerate (whether after the
giving of notice or lapse of time or both), any material mortgage, indenture,
agreement, instrument or contract to which the Company is a party or by which it
is bound; or (iii) result in the creation or imposition of any Lien upon any
property, asset or revenue of the Company or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization or approval applicable to the Company, its business or operations,
or any of its assets or properties.
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental authority or other
Person (including, without limitation, the shareholders of any Person) is
required in connection with the execution and delivery of the Transaction
Documents executed by the Company and the performance and consummation of the
transactions contemplated thereby.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each Purchaser,
for that Purchaser alone, represents and warrants to the Company upon the
acquisition of the Shares and/or Warrant as follows:
(a) Binding Obligation. Such Purchaser has full legal capacity,
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. Each of this Agreement and each Warrant issued to such
Purchaser is a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity.
(b) Securities Law Compliance. Such Purchaser has been advised that
the Shares and Warrants have not been registered under the Securities Act, or
any state securities laws and, therefore, cannot be resold unless they are
registered under the Securities Act and applicable state securities laws or
unless an exemption from such registration requirements is available. Such
Purchaser is aware that the Company is under no obligation to effect any such
registration with respect to the Shares and Warrants or to file for or comply
with any exemption from registration, except as provided in Section 1(f). Such
Purchaser has not been formed solely for the purpose of making this investment
and is purchasing the Shares and Warrant(s) to be acquired by such Purchaser
hereunder for its own account for investment, not as a nominee or agent, and not
with a view to, or for resale in connection with, the distribution thereof. Such
Purchaser has such knowledge and experience in financial and business matters
that such
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Purchaser is capable of evaluating the merits and risks of such investment, is
able to incur a complete loss of such investment and is able to bear the
economic risk of such investment for an indefinite period of time. Such
Purchaser is an accredited investor as such term is defined in Rule 501 of
Regulation D under the Securities Act.
(c) Access to Information. Such Purchaser acknowledges that the
Company has given such Purchaser access to the corporate records and accounts of
the Company and to all information in its possession relating to the Company,
has made its officers and representatives available for interview by such
Purchaser, and has furnished such Purchaser with all documents and other
information required for such Purchaser to make an informed decision with
respect to the purchase of the Shares and Warrant.
4. CONDITIONS TO CLOSING OF THE PURCHASERS. Each Purchaser's
obligations at the Closing are subject to the fulfillment, on or prior to the
Closing Date, of all of the following conditions, any of which may be waived
in whole or in part by all of the Purchasers:
(a) Representations and Warranties. The representations and
warranties made by the Company in Section 2 hereof shall have been true and
correct when made, and shall be true and correct on the Closing Date.
(b) Governmental Approvals and Filings. Except for any notices
required or permitted to be filed after the Closing Date with certain federal
and state securities commissions, the Company shall have obtained all
governmental approvals required in connection with the lawful sale and issuance
of the Shares and Warrants.
(c) Legal Requirements. At the Closing, the sale and issuance by
the Company, and the purchase by the Purchasers, of the Shares and Warrants
shall be legally permitted by all laws and regulations to which the Purchasers
or the Company are subject.
(d) Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers.
(e) Transaction Documents. The Company shall have duly executed and
delivered to the Purchasers the following documents:
(A) This Agreement;
(B) Each Warrant issued hereunder.
(f) License Agreement. Closing shall take place simultaneously with
and only upon execution of a license agreement for certain development and
marketing rights pursuant to thymosin beta 4, in Europe and surrounding
countries, from the Company to Sigma-Tau Pharmaceutical Group (or its
affiliate).
5. CONDITIONS TO OBLIGATIONS OF COMPANY. The Company's obligation to
issue and sell the Shares and Warrants at the Closing is subject to the
fulfillment, on or prior to the Closing Date, of the following conditions, any
of which may be waived in whole or in part by the Company:
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(a) Representations and Warranties. The representations and
warranties made by the Purchasers in Section 3 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
(b) Governmental Approvals and Filings. Except for any notices
required or permitted to be filed after the Closing Date with certain federal
and state securities commissions, the Company shall have obtained all
governmental approvals required in connection with the lawful sale and issuance
of the Shares and Warrants.
(c) Legal Requirements. At the Closing, the sale and issuance by
the Company, and the purchase by the Purchasers, of the Shares and/or Warrants
shall be legally permitted by all laws and regulations to which the Purchasers
or the Company are subject.
(d) Purchase Price. Each Purchaser shall have delivered to the
Company the Purchase Price in respect of the Share and/or Warrant(s) being
purchased by such Purchaser referenced in Sections 1(a) and 1(b) hereof and
Schedule I attached.
6. MISCELLANEOUS.
(a) Waivers and Amendments. Any provision of this Agreement may be
amended, waived or modified only upon the written consent of the Company and a
Majority in Interest of the Purchasers.
(b) Governing Law. This Agreement and all actions arising out of or
in connection with this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of law provisions of the State of Delaware or of any other state.
(c) Survival. The representations, warranties, covenants and
agreements made herein shall survive the execution and delivery of this
Agreement.
(d) Successors and Assigns. Subject to the restrictions on transfer
described in Section 6(e) below, the rights and obligations of the Company and
the Purchasers of the Shares shall be binding upon and benefit the successors,
assigns, heirs, administrators and transferees of the parties.
(e) Entire Agreement. This Agreement together with the Warrants and
other Transaction Documents constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof and
this Agreement together with the Warrants and other Transaction Documents
supercede and replace all other Agreements or Warrants or other obligations
between the parties.
(f) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed by registered or certified mail, postage
prepaid, or by recognized overnight courier or personal delivery, addressed (i)
if to a Purchaser, at such Purchaser's address set forth in the Schedule of
Purchasers attached hereto as Schedule I, or at such other address as such
Purchaser shall have furnished the Company in writing, or (ii) if to the
Company, at its address set forth at the beginning of this Agreement, or at such
other address as the Company shall have furnished to the Purchasers in writing.
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(g) Separability of Agreements; Severability of this Agreement. The
Company's agreement with each of the Purchasers is a separate agreement and the
sale of the Shares and Warrants to each of the Purchasers is a separate sale.
Unless otherwise expressly provided herein, the rights of each Purchaser
hereunder are several rights, not rights jointly held with any of the other
Purchasers. Any invalidity, illegality or limitation on the enforceability of
the Agreement or any part thereof, by any Purchaser whether arising by reason of
the law of the respective Purchaser's domicile or otherwise, shall in no way
affect or impair the validity, legality or enforceability of this Agreement with
respect to other Purchasers. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
REGENERX BIOPHARMACEUTICALS, INC.
a Delaware corporation
By: /s/ X.X. Xxxxxxxxxxx
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Name: X.X. Xxxxxxxxxxx
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Title: President and Chief Executive Officer
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PURCHASERS:
DEFIANTE FARMACEUTICA L.D.A. DLJSC XXX FBO XXXXXXX X. XXXXXX
a Portuguese corporation
/s/ Xxxxx Xxxxxxx da Xxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xx. Xxxxx Xxxxxxx da Xxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Director
/s/ Xxxxxx X. XxXxx /s/ Xxxx Xxxxxxxxxx
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xxxxxx X. XxXxx Name: Xxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx X. Silver
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxx X. Silver
/s/ Xxxxx X. Xxxx /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxx /s/ Xxxx Xxxxxx by Xxxxx X. Xxxxxx, attorney in fact
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx Xxxxxx by Xxxxx X. Xxxxxx, attorney in fact
---------------------------------------------------------
/s/ Xxxxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx Name: Xxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxx, Xxxxxxxx X. Xxxx
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx, Xxxxxxxx X. Xxxx
/s/ Xxxx X. & Xxxxx Xxxx Xxxxxx /s/ G. Xxxx Xxxxxxxxx & Xxxxxx Xxxxxxxxx JT TEN
----------------------------------------------------------- ---------------------------------------------------------------
Name: Xxxx X. & Xxxxx Xxxx Xxxxxx Name: G. Xxxx Xxxxxxxxx & Xxxxxx Xxxxxxxxx JT TEN
/s/ G. Xxxx Xxxxxxxxx Cust. for Devon Xxx Xxxxxxxxx UTMA/MD /s/ G. Xxxx Xxxxxxxxx Cust. for Xxxxxxx Xxxx Xxxxxxxxx UTMA/MD
----------------------------------------------------------- ---------------------------------------------------------------
Name: G. Xxxx Xxxxxxxxx Cust. for Devon Xxx Xxxxxxxxx UTMA/MD Name: G. Xxxx Xxxxxxxxx Cust. for Xxxxxxx Xxxx Xxxxxxxxx UTMA/MD
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/s/ G. Xxxx Xxxxxxxxx Cust. for Xxxxxx Xxxx Xxxxxxxxx UTMA/MD /s/ Xxxxxxx Xxxxxxx
------------------------------------------------------------- ---------------------------------------------------------
Name: G. Xxxx Xxxxxxxxx Cust. for Xxxxxx Xxxx Xxxxxxxxx UTMA/MD Name: Xxxxxxx Xxxxxxx
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxx
------------------------------------------------------------- ---------------------------------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx Xxxxx
XXX & XXXXX XXXXXX (JT) XXX & XXXX XXXXXXX (JT)
/s/ Xxx Xxxxxx /s/ Xxx XxXxxxx
------------------------------------------------------------- ---------------------------------------------------------
Name: Xxx Xxxxxx Name: Xxx XxXxxxx
/s/ Xxxxx Xxxxxx /s/ Xxxx XxXxxxx
------------------------------------------------------------- ---------------------------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxx XxXxxxx
REGEN ASSOCIATES, LLC
/s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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SCHEDULE I
SCHEDULE OF PURCHASERS
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Name and Address Purchase Price of Shares
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SCHEDULE II
SCHEDULE OF WARRANT HOLDERS
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Name and Address Warrant Amount
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EXHIBIT A
WARRANT
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