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EXHIBIT 4-I
CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
STOCK PURCHASE AGREEMENT
Dated as of May 9, 1996
between
Unimed Pharmaceuticals, Inc.
and
BioChem Pharma (International) Inc.
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS 1
Affiliate 1
Closing 1
Collaboration Agreement 1
First Closing 1
Governmental Body 2
Material Adverse Effect 2
Notice of Compliance 2
Person 2
Registration Rights Agreement 2
SEC 2
Second Closing 2
Securities Act 2
Shares 2
Subsidiary 2
2. SALE OF SHARES 3
2.1 Sale of Shares 3
2.2 Closings 3
3. CONDITIONS TO AND DELIVERIES AT CLOSINGS 3
3.1 Deliveries 3
(a)Company Deliveries at First Closing 3
(b)Company Deliveries at Second Closing 4
(d)Investor Deliveries at Second Closing 4
3.2 Conditions to Investor's Obligations at Closings 4
(a)Delivery 5
(b)First Closing as a Condition to Second Closing 5
(c)Representations and Warranties True 5
(d)Consents Obtained 5
(e)No Material Adverse Change 5
(f)Absence of Litigation, Etc 5
(g)Compliance with Collaboration Agreement 5
3.3 Effect of Breach of Warranty or Failure of Condition 5
3.4 Conditions to Company's Obligations at Closings 6
(a)Delivery 6
(b)First Closing as a Condition to Second Closing 6
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PAGE
(c)Representations and Warranties True 6
(d)Consents Obtained 6
(e)Absence of Litigation, Etc 6
(f)Compliance with Collaboration Agreement 6
4. REPRESENTATIONS AND WARRANTIES 6
4.1 Representations and Warranties of the Company at Each Closing 6
(a)Existence and Power 7
(b)Subsidiaries 7
(c)Authority, Execution, Delivery and Enforceability 7
(d)Capital Stock 7
(e)Valid Issuance of Shares 7
(f)No Conflicts 8
(g)No Consents Required 8
(h)Compliance with Laws 8
(i)SEC Reports 8
(j)No Material Adverse Change 9
(k)Litigation and Adverse Facts 9
(l)Exemption From Federal and State Securities Laws 9
(m)Absence of Default on Material Contracts 9
(n)Broker's Fees 10
(o)Registration Rights 10
(p)Collaboration Agreement 10
4.2 Representations and Warranties of The Investor 10
(a)Power, Authority and Authorization 10
(b)Purchase Entirely for Own Account 10
(c)Disclosure of Information 10
(d)Investment Experience 11
(e)Accredited Investor 11
(f)Restricted Securities 11
(g)Further Limitations on Disposition 11
(h)Legends 12
(i)Broker's Fees 12
5. COVENANTS 12
5.1 Maintain Exchange Act Registration and Listing 12
5.2 Perfect Securities Act and Blue Sky Exemptions 12
5.3 Limitation on Other Registration Rights 13
6. MISCELLANEOUS 13
6.1 Assignments 13
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PAGE
6.2 Notices 13
6.3 Execution in Counterparts 14
6.4 Headings 14
6.5 Exhibit and Schedule References 14
6.6 Publicity 14
6.7 Binding Effect; Governing Law 15
6.8 No Third Party Beneficiaries 15
6.9 Severability 15
6.10Submission to Jurisdiction 15
EXHIBITS
Exhibit A - Registration Rights Agreement
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into
as of this 9th day of May 1996, between UNIMED PHARMACEUTICALS, INC., a
Delaware corporation (the "Company") and BIOCHEM PHARMA (INTERNATIONAL) INC., a
corporation organized under the laws of Canada (the "Investor")
R E C I T A L S:
WHEREAS, the Company and the Investor intend to enter into an agreement
under which the Company will sublicense certain products to the Investor, and
the Investor will undertake certain obligations seeking to obtain registration
of such products in Canada; and
WHEREAS, Investor desires to acquire an equity interest in the Company;
and
WHEREAS, the Company is willing to sell shares of its common stock to the
Investor, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, Investor and the Company
hereby agree as follows:
ARTICLE 1.
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the meanings indicated for purposes of this
Agreement:
Affiliate shall mean any Person which is directly or indirectly controlled
by, controlling, controlled by, or under common control with, that Person.
Closing means the First (closing or the Second Closing, as the case may
be.
Collaboration Agreement means that certain Collaboration Agreement dated
the date hereof, between the Company and the Investor.
First Closing is defined in Section 2.2.
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Governmental Body means any federal, state, local, foreign or other
governmental administrative body, instrumentality, department agency, court,
tribunal, administrative hearing body, arbitration panel, commission or other
similar dispute-resolving panel or body.
Material Adverse Effect means, with respect to the Company or any of its
Subsidiaries, any material adverse change (after giving effect to the
transactions contemplated hereby) in the business, operations, prospects,
condition (financial or otherwise), properties or assets of the Company and its
Subsidiaries, taken as a whole, when any such material adverse change is taken
individually or in the aggregate with all other instances in which the
definition of "Material Adverse Effect" is applicable.
Notice of Compliance means a Notice of Compliance issued by the Canadian
Health Protection Branch to Investor or one of its Affiliates with respect to
any of the products of the Company sublicensed to the Investor under the
Collaboration Agreement.
Person means an individual, partnership, corporation (including business
trust), joint stock company, trust, unincorporated association, financial
institution, joint venture or other entity, or a government or any politic&l
subdivision or agency thereof
Registration Rights Agreement shall mean that certain Registration Rights
Agreement between the Investor and the Company, in substantially the form of
Exhibit A attacher hereto.
SEC means the Securities and Exchange Commission.
Second Closing is Refined in Section 2.2.
Securities Act means the Securities Act of 1933, as amended.
Shares mean the shares of common stock, par value $0.25 par share, of the
Company,
Subsidiary of any Person means any corporation, partnership, limited
liability company or other loyal entity of which more than 50% of the
outstanding capital stools or other securities having ordinary voting power to
elect a majority of the Board of Directors (or other similar governing body) of
such entity (irrespective of whether at the time securities of any other class
or classes of such entity shall or might have voting power upon tho occurrence
of any contingency) is at the time directly or indirectly owned by such Person,
by such Person and one or more of such Person other Subsidiaries or by one or
more of such Person's other Subsidiaries.
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ARTICLE 2.
SALE OF SHARES
2.1 SALE OF SHARES. Subject to the terms and conditions of this Agreement,
the Investor agrees to purchase from the Company, and the Company agrees to
sell to the Investor, that number of Shares which can be purchased with the sum
of four hundred eighty-nine thousand dollars ($489,000) at the First Closing
and that number of Shares of the Company which can be purchased with the sum of
[XXXXXXXXXXXXX] at the Second Closing. The per Share price at the First Closing
shall be equal to one hundred fifteen percent (115%) of the greater of (a.) the
average closing sale prices for the Shares for the ten (10) trading days
preceding the date of execution of this Agreement or (b.) the closing sale
price on the last trading day immediately prior to the date of execution of
this Agreement. The per Share price at the Second Closing shall be equal to
[XXXXXXXXXXX].
2.2 CLOSINGS. The "First Closing" shall be the time at which the Investor
makes its first purchase of Shares hereunder, which shall occur five (5) days
after execution of this Agreement, or on such other date as the Investor and
the Company may jointly determine. The "Second Closing" shall be the time at
which the Investor purchases the balance of the Shares to be purchased by it
hereunder, which shall occur on the day on which is five (5) days after the
issuance of a Notice of Compliance, or if such day is not a business day, on
the next business day. Each Closing shall take place at the offices of the
Company, 0000 Xxxx Xxxx Xxxx Xxxx, Xxxxxxx Xxxxx, XX at 10:00 am local time on
each Closing, or at such other time and place as the Company and Investor
mutually agree upon orally or in writing.
ARTICLE 3.
CONDITIONS TO AND DELIVERIES AT CLOSINGS
3.1 DELIVERIES. The parties shall make the following deliveries:
(a) COMPANY DELIVERIES AT FIRST CLOSING. At the First Closing, the
Company shall deliver to the investor the following:
(i) Certificates representing the Shares to be issued at the
First Closing, issued in the name of the Investor;
(ii) Fully executed counterparts of the Registration Rights
Agreement;
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(iii) Fully executed counterparts of the Collaboration
Agreement;
(iv) A certificate of the Company, signed by the Secretary on
behalf of the Company, as to resolutions of the Company, adopting
and approving this Agreement and the exhibits hereto, and the
transactions contemplated hereby and thereby; and
(v) A certificate signed by the Chief Executive Officer and
Chief Financial Officer of the Company, with respect to the matters
set forth in Section 3.2.c.
(b) COMPANY DELIVERIES AT SECOND CLOSING. At the Second Closing, the
Company shall deliver to the Investor the following:
(i) Certificates representing the Shares to be issued at the
Second Closing in the name of the Investor; and
(ii) A certificate signed by the Chief Executive Officer and
Chief Financial Officer of the Company, with respect to the matters
set forth in Section 3.2.c.
(c) INVESTOR DELIVERIES AT FIRST CLOSING. At the First Closing, the
Investor shall deliver to the Company the following:
(i) Fully executed counterparts of the Registration Rights
Agreement;
(ii) Fully executed counterparts of the Collaboration
Agreement;
(iii) The purchase price for the Shares to be purchased at the
First Closing, in immediately available funds in U.S. Dollars, in
Chicago, Illinois, at a financial institution to be designated by
the Company, or by such other method of payment as agreed to by the
parties.
(d) INVESTOR DELIVERIES AT SECOND CLOSING. At the Second Closing,
the Investor shall deliver to the Company the purchase price for the
Shares to be purchased at the Second Closing, in immediately available
funds in U.S. Dollars, in Chicago, Illinois, at a financial institution
to be designated by the Company, or by such other method of payment as
agreed to by the parties.
3.2 CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSINGS. The obligation of the
Investor to consummate the transactions contemplated by each Closing is subject
to the satisfaction of each of the following conditions precedent:
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(a) DELIVERY. The Investor shall have received the items required to
be delivered by the Company at such Closing.
(b) FIRST CLOSING AS A CONDITION TO SECOND CLOSING. With respect to
the Second Closing, the First Closing shall have occurred.
(c) REPRESENTATIONS AND WARRANTIES TRUE. (i) The representations and
warranties made by the Company herein and in the Registration Rights
Agreement shall be true and correct in all material respects on each
Closing and (ii) all covenants contained herein and in the Registration
Rights Agreement to be performed by the Company prior to each Closing
shall have been performed to the reasonable satisfaction of or waived by
the Investor.
(d) CONSENTS OBTAINED. All consents required to be obtained as a
condition to each Closing shall have been obtained.
(e) NO MATERIAL ADVERSE CHANGE. Since December 31, 1995, no event
shall have occurred which would have a Material Adverse Effect with
respect to the Company or its assets or business.
(f) ABSENCE OF LITIGATION, ETC. No action, suit, investigation,
proceeding or counterclaim of or before any Governmental Authority or
other Person is pending or threatened against the Company or the Investor
challenging this Agreement or the transactions contemplated hereby or
seeking any material damages in connection herewith or any judgment,
order or injunction that would restrain, prohibit or impose materially
adverse conditions on the stock purchase transactions contemplated
hereby.
(g) COMPLIANCE WITH COLLABORATION AGREEMENT. As a condition to the
Investor's obligations at the Second Closing, the Company shall be in
compliance with the Collaboration Agreement in all material respects and
the Collaboration Agreement shall not have been terminated.
3.3 EFFECT OF BREACH OF WARRANTY OR FAILURE OF CONDITION. In the event of
any breach of representation or warranty by the Company prior to a Closing, of
which the Investor has knowledge, or in the event of a failure to satisfy any
condition to Investor's obligation to such Closing, Investor shall have the
option of waiving such breach or failure of condition and closing the
transactions contemplated hereby, or terminating this Agreement. If Investor
chooses to terminate this Agreement, the Company shall not have any obligation
or liability hereunder (except with respect to the Shares, if any, purchased by
the Investor hereunder prior to such termination and any rights under the
Registration Rights Agreement with respect thereto.) If the Investor elects to
purchase the Shares at such Closing, notwithstanding such breach of warranty
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or failure of condition, then Investor shall not have any claim against
the Company for breach hereunder with respect to the matter so waived with
respect to such purchase.
3.4 CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSINGS. The obligation of the
Company to consummate the transactions contemplated by each Closing is subject
to the satisfaction of each of the following conditions precedent:
(a) DELIVERY. The Company shall have received the items required to
be delivered by the Investor at such Closing.
(b) FIRST CLOSING AS A CONDITION TO SECOND CLOSING. With respect to
the Second Closing, the First Closing shall have occurred.
(c) REPRESENTATIONS AND WARRANTIES TRUE. (i) The representations and
warranties made by the Investor herein and in the Registration Rights
Agreement shall be true and correct in all material respects on each
Closing and (ii) all covenants contained herein and in the Registration
Rights Agreement to be performed by the Investor prior to each Closing
shall have been performed to the reasonable satisfaction of, or waived
by, the Company.
(d) CONSENTS OBTAINED. All consents required to be obtained as a
condition to each Closing shall have been obtained.
(e) ABSENCE OF LITIGATION, ETC. No action. suit, investigation.
proceeding or counterclaim of or before any Governmental Authority or
other Person is pending or threatened against the Company or the Investor
challenging this Agreement or the transactions contemplated hereby or
seeking any material damages in connection herewith or any judgment,
order or injunction that would restrain, prohibit or impose materially
adverse conditions on the transactions contemplated hereby.
(f) COMPLIANCE WITH COLLABORATION AGREEMENT. As a condition to the
Company's obligations at the Second Closing, the Investor shall be in
compliance with the Collaboration Agreement in all material respects and
the Collaboration Agreement shall not have been terminated.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AT EACH CLOSING. The
Company represents and warrants to Investor that on the date hereof and at each
Closing:
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(a) EXISTENCE AND POWER. The Company (i) is a corporation duly
formed, validly existing and in good standing in the jurisdiction of its
formation, (ii) has all powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business
as now conducted and as proposed to be conducted, except where the
failure to do any of the above would not have a Material Adverse Effect
and (iii) is duly qualified and authorized to do business and in good
standing in all jurisdictions where the failure to do so would have a
Material Adverse Effect.
(b) SUBSIDIARIES. Except as set forth in Schedule 4.1.b, each
Subsidiary of the Company is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its
respective incorporation; and each Subsidiary is duly qualified and in
good standing as a foreign corporation authorized to do business in each
jurisdiction where the failure to so qualify would have a Material
Adverse Effect.
(c) AUTHORITY, EXECUTION, DELIVERY AND ENFORCEABILITY. The Company
has the necessary corporate authority to execute, deliver and perform its
obligations under this Agreement and the Registration Rights Agreement
and to consummate the transactions contemplated thereby and hereby. The
Company has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and the
Registration Rights Agreement. This Agreement and the Registration Rights
Agreement constitute, the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms.
(d) CAPITAL STOCK. At March 8, 1996, the capital stock of the
Company consisted of 12,000,000 shares of authorized common stock, par
value $0.25 per share, of which 8,570,886 shares were duly and validly
issued, fully paid and nonassessable. As of such date, the Company had
issued options, warrants and convertible securities covering an
additional 718,292 shares of common stock, and had reserved for issuance
to present and former officers, directors, employees and consultants a
total of 1,000,000 shares pursuant to stock option plans (which number of
reserved shares under stock option plans includes options issued and
which may be issued in the future under such plan.) Except with respect
to such options, warrants and convertible securities and antidilution
provisions in such options, warrants and convertible securities
(including options covering such shares so reserved), the Company had no
agreement or commitments to issue any additional shares of common stock
or any securities exercisable or exchangeable for any shares of common
stock.
(e) VALID ISSUANCE OF SHARES. The Shares to be issued at each
Closing, when issued, sold and delivered in accordance with the
provisions of this Agreement, will be duly and validly issued, fully paid
and nonassessable.
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(f) NO CONFLICTS. Except as set forth on Schedule 4.1.f, neither the
execution, delivery or performance by the Company of this Agreement and
the Registration Rights Agreement nor the compliance by the Company with
any of its obligations hereunder or thereunder, nor the consummation of
any of the transactions contemplated hereby or thereby will (i) conflict
with the Company's Certificate of Incorporation or By-laws or (ii)
conflict with or result in a breach of, or constitute a default under, or
result in the creation or imposition of, any Lien upon any of the
Company's or its Subsidiaries' property or assets under (A) any
indenture, mortgage, deed of trust or other instrument or agreement to
which the Company or its Subsidiaries may be or become bound or to which
any of the Company's property or assets may be or become subject or (B)
any applicable law, rule, regulation, judgment, writ, order or decree of
any Governmental Authority having jurisdiction over the Company's or its
Subsidiaries' properties or assets.
(g) NO CONSENTS REQUIRED. Except as set forth on Schedule 4.1.g, no
order, license, consent, authorization or approval of, or exception by,
or notice to or registration with, any Governmental Authority or any
other Person, and no filing, recording, publication or registration of
any kind, other than those which shall have been obtained or given at or
prior to such Closing, is necessary or advisable in connection with the
execution, delivery and performance by the Company of this Agreement or
the Registration Rights Agreement or for the legality, validity, binding
effect or enforceability thereof.
(h) COMPLIANCE WITH LAWS. Except as set forth in Schedule 4.1.h,
neither the Company nor any of its Subsidiaries is in violation of any
law, ordinance, rule, regulation, order, policy, guideline or other
requirement of any Governmental Authority, which violation would have a
Material Adverse Effect and no such violation has been alleged and the
Company and the Subsidiaries (i) have filed in a timely manner all
reports, documents and other materials required to be filed by it with
any Governmental Authority and the information contained in each of such
filings is true, correct and complete in all material respects, except
where failure to make such filings would not have a Material Adverse
Effect and (ii) have retained all records and documentary evidence
required to be retained by it pursuant to any law, ordinance, rule,
regulation, order, policy, guideline or other requirement of any
Governmental Authority, except where failure to retain such records would
not have a Material Adverse Effect.
(i) SEC REPORTS. The Company has furnished to Investor copies of its
Annual Report for the fiscal year ended December 31, 1995, its Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, two Form
10-C reports with regard to events in February, 1996, its definitive
proxy statement for the 1996 annual meeting of stockholders and a Form
S-3 registration statement covering the proposed sale by stockholders of
the Company of an aggregate of 1,590,000 shares of common stock of the
Company, each filed with the SEC (all of such documents being
collectively called
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the "SEC Documents") each as filed with the SEC. The SEC Documents
constitute all of the documents that the Company was required to file
with the SEC and those which it filed, between December 31, 1995, and the
date hereof. Each of the SEC Documents has been duly filed and when filed
was in compliance in all material respects with the requirements of the
Securities Exchange Act of 1934, to the extent applicable, the Securities
Act of 1933, as amended, and the applicable rules and regulations of the
SEC, except as set forth in Schedule 4.1.h. At the time each of the SEC
Documents did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. Except to the extent
information contained in any SEC Documents has been revised or superseded
by a later filed SEC Document, none of the SEC Documents currently
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein, or necessary in order to
make the statements made therein. not misleading.
(j) NO MATERIAL ADVERSE CHANGE. Since December 31, 1995, there has
been no adverse change in the Company s financial condition, business,
operations or properties which would have a Material Adverse Effect,
except as disclosed in this Agreement or in a Schedule hereto.
(k) LITIGATION AND ADVERSE FACTS. Except as set forth on Schedule
4.1.k, there is no action, suit, proceeding, investigation or
administrative proceeding or arbitration by any Governmental Authority or
other Person (including, without limitation, derivative actions) pending
or known by the Company to be threatened with respect to the Company or
any of its Subsidiaries or assets of any of the foregoing or any of the
stock purchase transactions contemplated hereby as to which there is a
probable likelihood of a Material Adverse Effect.
(l) EXEMPTION FROM FEDERAL AND STATE SECURITIES LAWS. Based upon the
representations of the Investor, the offer, sale and issuance of the
Shares to be issued at the Closing are exempt from the registration
requirements of the Securities Act by virtue of Section 4(2) thereof, are
exempt from the qualification provisions of the state securities laws of
the State of Illinois (the "Blue Sky Laws") by virtue of sections 4C, 4G
and 4Q thereof, and assuming no change in the Securities Act or Blue Sky
Laws between the date hereof and the date of the Second Closing, the
issuance and sale of those Shares which may be issued at the Second
Closing shall also be exempt from the Securities Act and such Blue Sky
Laws under such sections.
(m) ABSENCE OF DEFAULT ON MATERIAL CONTRACTS. Neither the Company
nor its Subsidiaries is in material default under any contract or
contracts which in the aggregate would have a Material Adverse Effect
including, but not limited to, the Collaboration Agreement (with respect
to the Second Closing.)
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(n) BROKER'S FEES. No agent, broker, investment banker, Person, or
firm acting on behalf of the Company is or will be entitled to any
broker's or finder's fee or any other similar commission or similar fee,
directly or indirectly, from any of the parties hereto in connection with
any of the transactions contemplated herein.
(o) REGISTRATION RIGHTS. Except as set forth on Schedule 4.1.o, the
Company has not granted or agreed to grant any registration rights,
including piggyback rights, to any Person other than to Investor.
(p) COLLABORATION AGREEMENT. With respect to the Second Closing, the
Company has met its obligations and is not in default in any material
respect under the Collaboration Agreement.
4.2 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor represents
and warrants to the Company that on the date hereof and at each Closing:
(a) POWER, AUTHORITY AND AUTHORIZATION. The Investor has the
necessary corporate authority to execute, deliver and perform its
obligations under this Agreement and the Registration Rights Agreement
and to consummate the transactions contemplated hereby and thereby. The
Investor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and the
Registration Rights Agreement. This Agreement and the Registration Rights
Agreement constitute the legal, valid and binding obligations of the
Investor, enforceable against the Investor in accordance with their
respective terms.
(b) PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
Investor in reliance upon the Investor's representation to the Company,
which by the Investor's execution of this Agreement the Investor hereby
confirms, that the Shares will be acquired for investment for the
Investor's own account, not as a nominee or agent. and not with a present
view to the resale or distribution of any part thereof, and that the
Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement,
Investor further represents that Investor does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer
or grant participations to such Person or to any third Person, with
respect to any of the Shares; provided, however that Investor may
transfer the Shares, or any part thereof, subject to the provisions of
this Agreement, to any wholly-owned subsidiary, and such transfer shall
not be deemed to be a distribution by Investor, or a violation of its
representations set forth herein.
(c) DISCLOSURE OF INFORMATION. Investor believes it received all the
information it considers necessary or appropriate for deciding whether to
acquire the Shares. Investor further represents that it has had an
opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the acquisition
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by it of the Shares. Investor represents to the Company that Investor has
made its own independent investigation and analysis of the Company, and
that in making its decision to purchase the Shares, it has relied in part
on that analysis and not solely on the SEC Documents.
(d) INVESTMENT EXPERIENCE. Investor can bear the economic risk of
its investment in the Company and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits
and risks of the investment in the Shares. Investor also represents it
has not been organized for the purpose of acquiring the Shares.
(e) ACCREDITED INVESTOR. Investor is an "accredited investor" within
the meaning of SEC Rule 501 of Regulation D, as presently in effect.
(f) RESTRICTED SECURITIES. Investor understands that the Shares are
characterized as "restricted securities" under the Federal securities
laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances. In this
connection, Investor represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act.
(g) FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting
the representations set forth above, Investor further agrees not to make
any transfer of all or any portion of the Shares (including any transfer
to an Affiliate) unless and until:
(i) A. Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed
disposition; B. the transferee shall have agreed in writing for the
benefit of the Company to be bound by the provisions of this
Agreement applicable to such Shares, and any applicable agreement
to which Investor is a party, including, without limitation, the
Registration Rights Agreement and C. if reasonably requested by the
Company, Investor shall have furnished the Company with an opinion
of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of the Shares under the
Securities Act; or
(ii) There is then in effect a Registration Statement under
the Securities Act covering such proposed disposition and such
disposition is made in accordance with such Registration Statement;
or
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(iii) Investor shall have complied with Rule 144 or Rule 144A
with respect to such transaction, and shall have furnished the
Company with such evidence thereof as the Company shall reasonably
require.
(h) LEGENDS. The certificates evidencing the Shares to be issued at
each Closing may bear one or all of the following legends:
(i) "The securities represented hereby have not been
registered under the Securities Act of 1933, as amended. They may
not be sold, offered for sale, pledged, hypothecated or transferred
in the absence of a registration statement in effect with respect
to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required
or unless sold pursuant to Rule 144 of such Act."
(ii) Any legend which, in the opinion of counsel for the
Company, is required or appropriate under any state or Federal
securities laws, rules or regulations.
(i) BROKER'S FEES. No agent, broker, investment banker, Person, or
firm acting on behalf of the Investor is or will be entitled to any
broker's or finder's fee or any other similar commission or similar fee,
directly or indirectly, from any of the parties hereto in connection with
any of the transactions contemplated herein.
ARTICLE 5.
COVENANTS
5.1 MAINTAIN EXCHANGE ACT REGISTRATION AND LISTING. At all times when the
Investor is holding Shares which it received under this Agreement, the Company
shall maintain its registration of such Shares under the Securities Exchange
Act of 1934 (the "Exchange Act"), shall make all filings required under the
Exchange Act and shall use its best efforts to have the Shares continue to be
listed on the NASDAQ national market list, or on some other comparable
exchange. The Company shall not voluntarily withdraw its Shares from
registration under the Exchange Act or withdraw the Shares from such listing.
5.2 PERFECT SECURITIES ACT AND BLUE SKY EXEMPTIONS. The Company will make
all filings required under the Securities Act and the state securities laws of
the State of Illinois, if any, to obtain, secure or perfect applicable
exemptions for the issuance of the Shares to be issued at each Closing
hereunder.
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5.3 LIMITATION ON OTHER REGISTRATION RIGHTS. The Company will not grant to
any Person any registration rights, the effect of which is to restrict,
prohibit, limit or make subordinate the registration rights granted to the
Investor under the Registration Rights Agreement, except pursuant to the grant
of rights to Persons which rights are pari passu with the rights of the
Investor, based upon either the total number of shares of common stock owned
(including those subject to exercisable warrants or convertible securities) or
the number of shares of common stock proposed to be sold by each such party
holding registration rights.
ARTICLE 6.
MISCELLANEOUS
6.1 ASSIGNMENTS. The Investor shall not assign this Agreement, or any of
its rights hereunder, other than to a party to whom it could assign the Shares
directly under Section 4.2.g. Upon any permitted assignment of this Agreement,
the Investor and the assignee shall satisfy the requirements of Section 4.2.g,
as though such assignment were a direct assignment of the Shares. The
assignment of this Agreement shall not release the Investor from its
obligations hereunder. The Company shall not assign this Agreement, or any of
its rights hereunder.
6.2 NOTICES. Any notice, request, delivery, approval or consent required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been sufficiently given if delivered personally, transmitted by
telecopier (confirmation of receipt by confirmed facsimile transmission being
deemed receipt of communication sent by telecopy) or five days after it was
sent, by registered letter (or its equivalent) to the party to which it is
directed at its address shown below or such other address as such party shall
have last given by notice delivered in accordance herewith to the other party:
(a) If to the Investor, addressed to:
BIOCHEM PHARMA (INTERNATIONAL) INC.
000 Xxxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxx
X0X 0X0
Attention: Mr. Xxxxxxx Xxxx
Telecopier: (000) 000-0000
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With a copy to:
BIOCHEM PHARMA INC.
at the same address
Attention: Xx. Xxxxxxx Xxxxxxx,
VP, Legal Affairs and Corporate Secretary
Telecopier: (000) 000-0000;
(b) If to the Company, addressed to:
UNIMED PHARMACEUTICALS, INC.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx XXX 00000-0000
Attention: Xxxxxxx X. Xxxxx, President & CEO
Telecopier: (847) 541 -2533
with a copy to:
Xxxxxxx X. Xxxxxxx
Xxxxxxxx & Xxxxxxx
000 X. Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx XX XXX 00000
Telecopier: (000) 000-0000
6.3 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.4 HEADINGS. The Article, Section and subsection headings are inserted for
convenience only and shall not be deemed to constitute part of this Agreement
or to affect the construction hereof.
6.5 EXHIBIT AND SCHEDULE REFERENCES. Any item or matter disclosed in one
Section, Exhibit or Schedule to this Agreement shall be deemed disclosed in any
other Section, Exhibit or Schedule where such disclosure is relevant even if
there is no express cross-reference, provided that the relevance of the
disclosure is reasonably apparent. Disclosure of items that may or may not be
required to be disclosed by this Agreement does not mean that such items are
material or create a standard of materiality.
6.6 PUBLICITY. either party wishes to make a public disclosure concerning
this Agreement or the terms hereof, the other party shall be provided with an
advance copy of the
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proposed disclosure and shall have three (3) business days within which to
approve or disapprove thereof. Absent approval, no public disclosure concerning
this Agreement or the terms hereof shall be made by either party, except to the
extent required by law or except to the extent that the information to be
disclosed has previously been the subject of an approved disclosure.
6.7 BINDING EFFECT; GOVERNING LAW. This Agreement shall be binding upon and
inure to the benefit of the Company and the Investor and their respective
successors and assigns. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
its conflicts of laws principles.
6.8 NO THIRD PARTY BENEFICIARIES. Except as specifically provided in this
Agreement, no Person not a party to this Agreement, including any employee of
any party to this Agreement, shall have or acquire any rights by reason of this
Agreement, nor shall any party hereto have any obligation or liabilities to
such other Person solely by reason of this Agreement.
6.9 SEVERABILITY. The invalidity of any provision of this Agreement or
portion of a provision shall not affect the validity of any other portion of
this Agreement or the remaining portion of the applicable provision.
6.10 SUBMISSION TO JURISDICTION. The Company and the Investor hereby
irrevocably submit to the jurisdiction and exclusive venue of any state or
Federal court located in the State of Delaware over any action or proceeding to
enforce or defend any right under this Agreement or the Registration Rights
Agreement, or under any amendment, instrument, document, or agreement
delivered, or that may in the future be delivered, in connection herewith or
therewith, and the Company and the Investor hereby irrevocably agree that all
claims in respect of any such action or proceeding may be heard and determined
in such state or Federal court. The Company and the Investor hereby irrevocably
waive, to the fullest extent they may effectively do so, the defense of an
inconvenient forum to the maintenance of any such action or proceeding. The
Company and the Investor agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. The Company and
the Investor agree not to institute any legal action or proceeding against the
Company, the Investor or any of their directors, officers, employees, agents or
properties, arising out of or relating to this agreement or any of the
documents referred to above, in any court other than one hereinabove specified
in this Section 6.10. Nothing in this Section 6.10 shall affect the right of
the Company or the Investor to serve legal process in any other manner
permitted by law, or the right of the Company or the Investor to bring any
action or proceeding against the property of the Company or the Investor in the
courts of any other jurisdictions.
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IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as the case may be, as of the date first above written.
THE COMPANY:
UNIMED PHARMACEUTICALS, INC.,
By:
Name and Title:
INVESTOR:
BIOCHEM PHARMA (INTERNATIONAL) INC.
By:
Name and Title:
By:
Name and Title:
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SCHEDULES
Schedule 4.1.b Exceptions to due organization, qualification of Subsidiaries
Schedule 4.1.f Conflicts with corporate documents, loans, etc. resulting from
this Agreement
Schedule 4.1.g Consents required
Schedule 4.1.h Violations of law, failure to file reports, failure to retain
required records.
Schedule 4.1.m Defaults under contracts.
Schedule 4.1.o Registration rights granted to other parties
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SCHEDULE 4.1.B
EXCEPTIONS TO DUE ORGANIZATION, QUALIFICATION OF SUBSIDIARIES
None
23
SCHEDULE 4.1.F
CONFLICTS WITH CORPORATE DOCUMENTS, LOANS, ETC. RESULTING FROM THIS AGREEMENT
None
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SCHEDULE 4.1.G
CONSENTS REQUIRED
None
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SCHEDULE 4.1.H
VIOLATIONS OF LAW, FAILURE TO FILE REPORTS, FAILURE TO RETAIN REQUIRED RECORDS.
The Company failed to file two reports with the Securities and Exchange
Commission as required. These reports were two Form 10-C reports, to report an
increase of 5% or more of the issued and outstanding common stock of the
Company, one of which should have been filed in February 1996. and the other of
which should have been filed in March 1996. Those reports have now been filed.
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SCHEDULE 4.1.M
DEFAULTS UNDER CONTRACTS.
None
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SCHEDULE 4.1.O
REGISTRATION RIGHTS GRANTED TO OTHER PARTIES
The Company has granted registration rights to Xxxx Xxxxxx and The Xxxx X.
Xxxxxx Trust with respect to the shares of common stock. warrants and options
held by them.
The Company has issued a warrant to Life Sciences Corporation covering 50,000
shares. This warrant grants to the holder the right to put the warrant to the
Company, in which case the Company is required to pay the holder the equity in
the Warrant. This put expires in the event that the Company registers the
shares subject to the Warrant. The Company has filed a registration statement
with the SEC covering the resale of such Shares, which has not become
effective.
The Company has granted to Laboratories Besins Iscovesco, S. A. rights to have
shares issued to it registered under a Registration Rights Agreement dated as
of August 11, 1995.
The Company has granted to a group of investors who purchased an aggregate of
1,400,000 Shares the right to have such shares registered, pursuant to a
registration rights agreement dated as of February 29, 1996. The Company has
filed a registration statement with the SEC covering such Shares, which has not
become effective. The registration of such shares will not terminate the
registration rights of the holders of such shares, unless the shares are
actually sold pursuant to the registration statement.
The Company has granted to Sunrise Securities Corp. the right to have an
aggregate of 140,000 Shares which may be issued to it upon exercise of warrants
issued on February 29, 1996. The Company has filed a registration statement
with the SEC covering such Shares, which has not become effective. The
registration of such shares will not terminate the registration rights of the
holders of such shares, unless the shares are actually sold pursuant to the
registration statement.
