STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
AGREEMENT,
made as of May 18, 2006, between Xxxxxx X. Xxxxx (the “Seller”) and Third
Security Staff 2001 LLC (the “Buyer”).
WHEREAS,
the Seller is willing to sell to the Buyer, and the Buyer is willing to purchase
from the Seller, One Hundred Thousand (100,000) shares of Common Stock (the
“Shares”) of Clinical Data, Inc., a Delaware corporation (the “Company”),
currently held by the Seller.
ACCORDINGLY,
THE PARTIES AGREE AS FOLLOWS:
1.
Sale
of Shares. The
Seller hereby agrees to sell to the Buyer, and the Buyer hereby agrees to
purchase from the Seller, all of the Shares. The Buyer hereby acknowledges
that
the Shares do not represent the entire equity interest of the Seller in the
Company and agrees that the transactions contemplated by this Agreement will
not
create in, or transfer to, the Buyer any right or interest in any other security
of the Company held by the Seller.
2.
Purchase
Price. The
purchase price for the Shares is Two Million Dollars ($2,000,000) (the “Purchase
Price”). The Purchase Price shall be paid in the form of a $2,000,000 promissory
note of even date from the Buyer to the Seller in the form attached hereto
as
Exhibit
A
(the
“Promissory Note”), against delivery by the Seller to the Buyer of a certificate
or certificates representing the Shares registered in the name of the Buyer
or,
if not so registered, accompanied by stock powers in form sufficient to permit
transfer of the Shares into the name of the Buyer on the books of the stock
transfer agent of the Company.
3.
Representations
and Warranties of the Seller.
The
Seller represents and warrants to the Buyer as follows:
(a)
Shares.
The Seller is the lawful owner of the Shares, and the Seller has the full power
and authority to sell the Shares, free and clear of any liens or encumbrances
whatsoever. All of the Shares have been, to the best knowledge of the Seller,
validly issued and are fully paid and nonassessable; and no person has any
present or future right (conditional, preemptive or otherwise) to acquire any
of
the Shares. Upon delivery of such Shares and payment therefor pursuant hereto,
good and valid title to all such Shares free and clear of all liens or
encumbrances whatsoever, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands will be transferred to Buyer, and
such
Shares shall be validly issued, fully paid and nonassessable.
(b)
No
Breach or Conflict.
The sale of the Shares contemplated by this Agreement does not conflict with,
or
result in a breach of, or a default under, or give rise to a right of
acceleration under, any agreement or instrument to which the Seller is a
party.
(c)
Consent.
No
consent of any other person, and no notice to, filing or registration with,
or
consent, approval or authorization of, any court or governmental authority,
regulatory or self-regulatory agency or any other third party is necessary
or is
required to be made or obtained by Seller, in connection with the execution
and
delivery of this Agreement or the consummation of the transactions contemplated
hereby, except as may be required under the Blue Sky laws of the jurisdiction
in
which the Buyer is resident.
(d) Litigation.
There is
no litigation, arbitration proceeding, governmental investigation, citation
or
action of any kind pending or, to the knowledge of Seller, proposed or
threatened that seeks restraint, prohibition, damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
(e) Fees
and Expenses of Brokers and Others.
Seller
is not committed to any liability for any brokers’ or finders’ fees or any
similar fees in connection with the transactions contemplated hereby, and Seller
has not retained any broker or other intermediary to act on its behalf in
connection with the transactions contemplated by this Agreement.
(f) Purchase
for Investment.
Seller
is acquiring the Promissory Note solely for Seller’s own account for investment
and not with a view to or for sale in connection with any distribution thereof.
Seller acknowledges that the Promissory Note has not been registered under
the
Securities Act of 1933, as amended (the “Securities Act”), the Promissory Note
currently is not freely tradable because it constitutes restricted securities
and Seller must continue to bear the economic risk of the investment in the
Promissory Note unless the Promissory Note is subsequently registered under
the
Securities Act and applicable state securities laws or an exemption from such
registration is available.
(g) Truth
and Completeness of Representations and Warranties.
None of
the information contained in the representations and warranties of the Seller
set forth in this Agreement contains any untrue statement of a material fact
or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
4.
Representations
and Warranties of the Buyer.
The Buyer represents and warrants to the Seller as follows:
(a) Organization
of Buyer.
Buyer
is a limited liability company duly formed and validly existing under the laws
of the Commonwealth of Virginia.
(b) Investment
Intent.
The
Buyer is acquiring the Shares for its own account for investment, not for the
interest of any other person, not for resale to any other person and not with
a
view to or in connection with a sale or distribution, as such term is defined
in
the Securities Act.
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(c)Knowledge
and Experience.
The
Buyer is an “accredited investor” (as such term is defined in Regulation D under
the Securities Act), is knowledgeable and experienced in businesses of the
sort
conducted by the Company.
(d) Investment
Risk.
The
Buyer understands that the Shares were acquired by the Seller in a transaction
exempt from the registration requirements of the Securities Act, and are being
sold and transferred to the Buyer in a transaction which the Seller (in reliance
on the representations and warranties made by the Buyer herein) believes exempt
from such registration requirements; and that the Buyer may be required to
hold
the Shares indefinitely. The Buyer is capable of evaluating the merits and
risks
involved in the acquisition of the Shares and is capable of bearing the economic
risk of such investment.
(e) Resale.
The
Buyer is aware that any resale inconsistent with the Securities Act may create
liability on its part and/or the part of the Seller, and agrees not to assign,
sell, pledge, transfer or otherwise dispose of or transfer any of the Shares
unless registered under the Securities Act and applicable state securities
laws
or an exemption from such registration is available.
(f) Legend.
The
certificate representing the Shares will contain a legend substantially as
follows:
“The
shares represented hereby have not been registered under the Securities Act
of
1933 (the “Act”), or any state securities or blue sky laws and may not be
offered, sold, transferred, hypothecated or otherwise assigned except pursuant
to a registration statement with respect to such shares which is effective
under
the Act or pursuant to an available exemption from registration under the Act
relating to the disposition of securities and in accordance with applicable
state securities and blue sky laws.”
(g) Liquidity.
Buyer
has no need for liquidity in this investment.
(h) No
Prospectus.
The
Buyer is acquiring the Shares without being furnished any offering literature
or
prospectus by the Seller.
(i) Risk
Factors.
The
undersigned understands that an investment in the Shares involves significant
risks, and the undersigned has carefully reviewed and is aware of all of the
risk factors related to the purchase of the Shares.
5.
Guaranty.
The
parties hereto agree that it is a condition precedent to delivery and acceptance
of the Promissory Note that Xxxxxx X. Xxxx shall have executed and delivered
to
the Seller a Guaranty in the form attached hereto as Exhibit
B.
6.
Indemnification.
(a) Seller’s
Indemnification.
Seller
hereby indemnifies and holds Buyer and its directors, officers, members and
affiliates (collectively, the “ Buyer Indemnified Parties”) harmless from and
against, and agrees to defend promptly the Buyer Indemnified Parties from and
reimburse the Buyer Indemnified Parties for, any and all losses, liabilities,
claims, damages (including incidental and consequential damages), costs,
expenses (including costs of investigation and defense and reasonable attorneys’
fees) and obligations (hereinafter referred to collectively as “Losses”) that
the Indemnified Parties may at any time suffer or incur, or become subject
to,
as a result of or in connection with: (i) any material breach or inaccuracy
of any of the representations and warranties made by Seller in this Agreement
or
any other agreement or instrument delivered by Seller pursuant to this
Agreement; and (ii) any failure of Seller to carry out, perform, satisfy
and discharge any of its covenants, agreements, undertakings, liabilities or
obligations under this Agreement or under any of the agreements and instruments
delivered by Seller pursuant to this Agreement.
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(b) Buyer’s
Indemnification.
Buyer
hereby indemnifies and holds Seller harmless from and against, and agrees to
defend promptly the Seller from and reimburse the Seller for, any and all Losses
that Seller may at any time suffer or incur, or become subject to, as a result
of or in connection with: (i) any material breach or inaccuracy of any of
the representations and warranties made by Buyer in this Agreement, the
Promissory Note or any other agreement or instrument delivered by Buyer pursuant
to this Agreement; and (ii) any failure of Buyer to carry out, perform,
satisfy and discharge any of its covenants, agreements, undertakings,
liabilities or obligations under this Agreement, the Promissory Note or under
any of the agreements and instruments delivered by Buyer pursuant to this
Agreement.
7.
Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the
undersigned parties and their respective heirs, personal representatives,
successors and assigns.
8.
Entire
Agreement and Amendments.
This
Agreement represents the entire agreement of the parties with respect to the
subject matter hereof, and no other agreement with respect thereto, including
any prior written or oral representation or understanding of the parties, shall
have any further force or effect. The Buyer and the Seller each represents
and
warrants to the other that, in entering this Agreement, he has relied on no
statements, representations, inducements or promises made by the other party
except as are expressly set forth in this Agreement. This Agreement may be
modified only by a subsequent writing signed by both parties to this
Agreement.
9.
Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware.
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and
year first above written.
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THE
BUYER:
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THIRD
SECURITY STAFF 2001 LLC
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/s/Xxxxxx
X. Xxxx
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By:
Xxxxxx X. Xxxx
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Title:
Manager
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THE
SELLER:
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/s/Xxxxxx
X. Xxxxx
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Xxxxxx
X. Xxxxx
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