STOCK PURCHASE AGREEMENT
Exhibit 1.1
STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of October 5, 2007, by and among
Genitope Corporation, a Delaware corporation, (the “Company”), and Xxxxxxx X. Xxxxxxxxx, Trustee of
The Xxxxxxxxx 1980 Revocable Trust (“Buyer”).
BACKGROUND:
A. The Company has registered on Form S-3 (SEC File No. 333-128357) (the “Registration
Statement”) the issuance and sale of up to $125,000,000 of certain types of securities, including
shares of its Common Stock, $0.001 par value (“Common Stock”), of which $39,300,425.85 remains
available for issuance and sale;
B. The Company has authorized the issuance of up to 500,000 shares of Common Stock (the
“Shares”) pursuant to the terms of this Agreement and under the Registration Statement; and
C. The Buyer desires to purchase, upon the terms and subject to the conditions set forth in
this Agreement, the Shares for an aggregate purchase price of TWO MILLION TWENTY-FIVE THOUSAND
DOLLARS ($2,025,000).
1. PURCHASE AND SALE OF COMMON SHARES.
1.1 Purchase of Common Shares. At the closing (the “Closing”) the Company shall issue
and sell to Buyer, and Buyer agrees to purchase from the Company, the Shares at a price per Share
of FOUR DOLLARS AND FIVE CENTS ($4.05), and for the aggregate purchase price of $ TWO MILLION
TWENTY-FIVE THOUSAND DOLLARS ($2,025,000) (the “Purchase Price”).
1.2 Closing Date. Unless the Company and Buyer agree otherwise, the date and time of
the Closing (the “Closing Date”) shall be at noon, Pacific Time, on the business day immediately
following the date of this Agreement. The Closing shall occur at the offices of Cooley Godward
Kronish LLP, counsel to the Company, located at 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
00000-0000.
1.3 Form of Payment. On the Closing Date, (i) in consideration of the issuance and
sale of the Shares to Buyer at the Closing, Buyer shall pay to the Company, by wire transfer of
immediately available funds in accordance with the Company’s written wire instructions, an amount
equal to the Purchase Price, and (ii) the Company shall instruct its transfer agent to issue and
deliver to Buyer the Shares. The Company shall deliver the Shares to Buyer by electronic transfer
(e.g., DWAC), unless Buyer requests delivery of physical certificates.
2. BUYER’S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants that:
2.1 Information. Buyer and his advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company and materials relating
to the offer and sale of the Shares that have been requested by Buyer, including a prospectus
supplement, dated October 5, 2007, and accompanying prospectus, dated October 5, 2005, with
respect to the offer of the Shares. Buyer and his advisors, if any, have been afforded the
opportunity to ask questions of the Company. Buyer has substantial experience in evaluating and
investing in securities in companies similar to the Company and is capable of evaluating the merits
and risks of his investment in the Company and has the capacity to protect his own interests.
Buyer understands that his investment in the Shares involves a high degree of risk. Neither such
inquiries nor any other investigation conducted by or on behalf of Buyer or his advisors shall
modify, amend or affect Buyer’s right to rely on the truth, accuracy and completeness of the
disclosure made to Buyer or his advisors in respect of the Company or this transaction and the
Company’s representations and warranties contained in this Agreement.
2.2 Acquisition for Own Account. Buyer is acquiring the Shares for Buyer’s own
account for investment only, and not as a nominee, broker, dealer, underwriter or agent, and not
with a view towards resale or distribution of the Shares. Buyer further represents that Buyer does
not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or
grant participations to any person or entity with respect to any of the Shares or any interest in
any of the Shares.
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2.3 No Governmental Review. Buyer understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any recommendation or
endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have
such authorities passed upon or endorsed the merits of the offering of the Shares.
2.4 Certain Trading Activities. Buyer has not executed a Short Sale (defined below)
involving the Company’s securities during the period beginning 30 days prior to the date of this
Agreement. For purposes of this Section and Section 4.3, “Short Sale” means any transaction defined
as such under Rule 200 of Regulation SHO (or any successor regulation) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, short sales, swaps and similar arrangements
(including on a total return basis), and sales and other transactions through non-U.S. broker
dealers or foreign regulated brokers, but only if executed at a time when the Buyer has no
equivalent offsetting long position in the Common Stock of the Company. For purposes of determining
whether the Buyer has an equivalent offsetting long position in the Common Stock of the Company,
any shares of Common Stock currently held by Buyer shall be deemed to be held as “long” by Buyer.
2.5 Validity; Enforcement. Buyer has the requisite right, power, authority and
capacity to enter into this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Buyer and the consummation by him of the
transactions contemplated hereby have been duly authorized by all necessary action and do not
require any consent or authorization of any person or entity that has not been obtained by Buyer.
This Agreement has been duly and validly executed and delivered by Buyer and, assuming due
execution and delivery hereof by the Company, is a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms, subject as to enforceability to general
principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights
and remedies.
2.6 Residency. Buyer is a resident of, and The Xxxxxxxxx 1980 Revocable Trust is
administered in, that state or country specified in Buyer’s address on the signature page hereto.
2.7 Legal, Tax or Investment Advice. Buyer understands that nothing in this Agreement
or any other materials presented to Buyer in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. Buyer has consulted such legal, tax and investment
advisors as he, in his sole discretion, has deemed necessary or appropriate in connection with his
purchase of the Shares. Buyer is not relying on Company’s internal or outside counsel for any legal
advice, counsel or representation with regard to Buyer’s purchase of the Shares.
2.8 Broker — Dealer. Buyer is not a “broker” or “dealer,” within the meaning of
Sections 3(a)(4) and 3(a)(5) of the Exchange Act, respectively.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to Buyer that:
3.1 Good Standing; Qualification. The Company is duly organized and validly existing
in good standing under the laws of the State of Delaware. The Company is registered or qualified to
do business and in good standing in California.
3.2 Due Authorization and Valid Issuance. The Company has all requisite power and
authority to execute, deliver and perform its obligations hereunder, and this Agreement has been
duly authorized and validly executed and delivered by the Company and, assuming due execution and
delivery hereof by Buyer, shall constitute a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Shares have been duly authorized, validly issued and, upon
receipt by the Company of the Purchase Price from Buyer, will be fully paid and nonassessable.
3.3 Securities Exchange Compliance and Reporting Status. The Company’s Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market.
The Company has been advised by the Securities and Exchange Commission that the Registration
Statement has been declared effective under the Securities Act of 1933, as amended (the “Securities
Act”) by the Securities and
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Exchange Commission, and the Company has not received any stop order suspending the
effectiveness of the Registration Statement nor any notice that a proceeding for that purpose has
been instituted. The Company has filed in a timely manner all documents that the Company was
required to file under the Exchange Act during the 12 months preceding the date of this Agreement.
4. COVENANTS.
4.1 Commercially Reasonable Efforts. Each party shall use commercially reasonable
efforts to timely satisfy each of the conditions to be satisfied by it as provided in Sections 5
and 6 of this Agreement.
4.2 Restriction on Sales, Short Sales and Hedging Transactions. The Buyer 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 or any interest
therein, or conduct any Short Sale or enter into any hedging transaction with respect to the
Shares, except in compliance with the Securities Act, the Exchange Act, applicable state securities
laws and the respective rules and regulations promulgated thereunder.
5. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Shares to Buyer at the Closing
is subject to the satisfaction, at or before the Closing Date, of each of the following conditions,
provided that these conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion by providing Buyer with prior written notice thereof:
5.1 Buyer shall have delivered to the Company the Purchase Price for the Shares being
purchased by Buyer at the Closing by wire transfer of immediately available funds pursuant to the
wire instructions provided by the Company.
5.2 The representations and warranties of Buyer shall be true and correct in all material
respects, and Buyer shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed, satisfied or
complied with by Buyer at or prior to the Closing Date.
6. CONDITIONS TO BUYER’S OBLIGATION TO PURCHASE.
The obligation of Buyer hereunder to purchase the Shares at the Closing is subject to the
satisfaction, at or before the Closing Date of each of the following conditions, provided that
these conditions are for Buyer’s sole benefit and may be waived by Buyer at any time in his sole
discretion by providing the Company with prior written notice thereof:
6.1 The Company shall have executed this Agreement and delivered same to Buyer.
6.2 Trading in the Company’s Common Stock on the National Global Market shall not have been
suspended.
6.3 The representations and warranties of the Company shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that speak as of a specific date) and the Company shall
have performed, satisfied and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied with by the Company at
or prior to the Closing Date.
7. GOVERNING LAW; MISCELLANEOUS.
7.1 Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of California, without
regard to the principles of conflicts of law thereof.
7.2 Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other parties;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile signature.
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7.3 Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
7.4 Severability. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
7.5 Entire Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Buyer, the Company, their respective affiliates and persons acting
on their behalf with respect to the matters discussed herein, and this Agreement and the agreements
and instruments referenced herein, contain the entire understanding of the parties with respect to
the matters covered herein. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and Buyer, and no provision hereof may be waived other
than by an instrument in writing signed by the party against whom enforcement is sought.
7.6 Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party); or (iii) one business day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company:
Genitope Corporation
0000 Xxxxxxxxx Xx
Xxxxxxx, XX 00000-0000
Attn: Vice President, Legal Affairs
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxxxx Xx
Xxxxxxx, XX 00000-0000
Attn: Vice President, Legal Affairs
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Cooley Kronish Godward LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer:
Xxxxxxx X. Xxxxxxxxx, Trustee of The Xxxxxxxxx 1980 Revocable Trust
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party in accordance with
the above provisions five (5) days prior to the effectiveness of such change.
7.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including any purchasers of the
Shares. Buyer may not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Company.
7.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
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7.10 Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
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IN WITNESS WHEREOF, Buyer and the Company have caused this Stock Purchase Agreement to be duly
executed on the date first written above.
| COMPANY: Genitope Corporation |
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| By: | /s/ Xxx Xxxxxx, Xx. | |||
| Name: | Xxx X. Xxxxxx, Xx., Ph.D. | |||
| Title: | Chief Executive Officer | |||
| BUYER: |
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| /s/ Xxxxxxx X. Xxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx, Trustee of The Xxxxxxxxx 1980 Revocable Trust | ||||
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