EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of May 24,
1997, is entered into by and between NEORX CORPORATION, a Washington corporation
(the "Company"), and XXXXXXX PHARMA AG, a corporation organized and existing
under the laws of the Federal Republic of Germany (the "Investor").
RECITAL
The Investor desires to purchase from the Company, and the Company
desires to sell to the Investor, shares of the Company's common stock, upon the
terms and conditions set forth herein and in connection with the execution of a
separate Development and Distribution Agreement, dated as of even date herewith.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Purchase and Sale
The Investor hereby agrees to purchase shares of the Company's common
stock (the "Shares") from the Company for an aggregate purchase price as
specified by the Investor (the "Purchase Price"), but not to exceed Four Million
U.S. Dollars (US $4,000,000). The Company hereby agrees to issue, sell and
deliver to the Investor in exchange for the Purchase Price that number of Shares
determined to the nearest whole number by dividing (a) the Purchase Price by (b)
the product of 1.5 multiplied by the average of the last reported sales price of
the Company's common stock on the Nasdaq National Market as reported by Nasdaq
on each of the 20 trading days immediately preceding the date of this Agreement.
The closing of this purchase and sale of the Shares shall take place at
the offices of Xxxxxxx Coie, Seattle, Washington, on the date hereof and at such
time as may be mutually agreed upon between the Company and the Investor (the
"Closing"). At the Closing, the Investor shall pay the Purchase Price to the
Company by bank wire transfer to the account designated by the Company. After
receipt of the Purchase Price, the Company shall (a) deliver to the Investor, or
instruct its transfer agent to deliver to the Investor, a certificate
representing the Shares, (b) deliver a legal opinion to the Investor, dated as
of the date of this Agreement, and (c) cause its special counsel, Xxxxxxx Coie,
to deliver an opinion to the Investor, dated as of the date of this Agreement.
2. Representations and Warranties of the Investor Regarding the Shares
The Investor hereby represents and warrants to the Company as of the
date of this Agreement as follows:
2.1 High Degree of Risk
The Investor recognizes that the Company has not yet developed a
marketable product and that there can be no assurance that the Company will be
able to develop a marketable product or that any such product developed will be
accepted in the marketplace. There can be no assurance that the Company will be
able to obtain its projected goals, and the Company will need significant
additional capital to be successful, which capital may not be readily available
when and as needed.
2.2 Professional Advice
The Investor has obtained, to the extent it deems necessary, its own
professional advice with respect to the risks inherent in the investment in the
Shares, the condition of the Company and the suitability of the investment in
the Shares in light of the Investor's financial condition and investment needs.
2.3 Sophistication
The Investor, either alone or with the assistance of its professional
advisors, has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the prospective
investment in the Shares.
2.4 Suitability
The Investor has adequate net worth and means for providing for its
current financial needs and contingencies and has no need for liquidity of
investment with respect to the Shares. The Investor's overall commitment to
investments that are illiquid or not readily marketable is not disproportionate
to its net worth, and investment in the Shares will not cause such overall
commitment to become excessive.
2.5 Access to Information
The Investor has been given access to all information requested by it
regarding the Company, including, in particular, the current financial condition
of the Company and the risks associated therewith, and has utilized such access
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to its satisfaction for the purpose of obtaining information about the Company
and the Investor has either attended or been given a reasonable opportunity to
attend a meeting with representatives of the Company for the purpose of asking
questions of, and receiving answers from, such representatives concerning the
terms and conditions of the offering of the Shares and to obtain any additional
information, to the extent reasonably available, necessary to verify the
accuracy of information provided about the Company.
2.6 Purchase Entirely for Own Account
The Shares will be acquired for investment for the Investor's own
account, not as a nominee or agent, and not with a view to the distribution of
any part thereof. The Investor has no present intention of selling, granting any
participation in or otherwise distributing the same in a manner contrary to the
Securities Act of 1933, as amended (the "Act"), including, without limitation,
Regulation S of the Act ("Regulation S"), or any applicable state or foreign
securities or Blue Sky laws, and has no 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.
2.7 Due Diligence
The Investor has been solely responsible for its own due diligence
investigation of the Company and the Company's business, and its own analysis of
the merits and risks of the investment made pursuant to this Agreement, and is
not relying on anyone else's analysis or investigation of the Company, its
business or the merits and risks of the Shares other than professionals employed
specifically by the Investor to assist the Investor. In taking any action or
performing any role relative to the arranging of the investment being made
pursuant to this Agreement, the Investor has acted solely in its own interest
and not in the interest of any other person, and no other person has acted as an
agent or fiduciary for the Investor.
2.8 Restricted Securities; Compliance with Regulation S
The Investor understands that (a) the Shares have not been registered
under the Act, (b) the Shares will be issued in reliance on Regulation S and,
therefore, cannot be sold or transferred except in compliance with Regulation S
unless they are subsequently registered under the Act or another exemption from
such registration is available, and (c) the Shares are subject to resale
restrictions as set forth in Section 2.9 of this Agreement and the Investor may
not be able to liquidate its investment in the event of an emergency or pledge
the Shares as collateral security for loans. In this connection, the Investor
represents that it is familiar with Regulation S as currently in effect, and
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understands the resale limitations imposed thereby and by Section 2.9 of this
Agreement. The Investor acknowledges and understands that the Company's reliance
upon such exemptions under Regulation S is predicated in part on the Investor's
representations contained herein. The Investor is not a U.S. person (as that
term is used in Regulation S), is not located in the U.S. and is acquiring the
Shares in an offshore transaction, and such Investor is not acquiring the Shares
for the account or benefit of any U.S. person. The Investor has not, in
connection with the purchase of Shares hereunder, offered, sold (including by
any short sale), or entered into any transaction (including the purchase of any
put or sale of any call) involving the sale or potential sale of the common
stock of the Company in the United States or to or for the account or benefit of
any U.S. person.
2.9 Restrictions on Disposition
(a) For the period of one year from the date of the Closing, the
Investor may not sell, assign or otherwise transfer any interest, direct or
indirect, in all or any part of the Shares or enter into any transaction,
including the purchase of any put or sale of any call or any short sale,
involving the sale or potential sale of the Company's common stock.
(b) Without in any way limiting the covenants set forth above, the
Investor further agrees not to make any disposition of all or any portion of the
Shares unless and until:
(i) if reasonably requested by the Company, the Investor
shall have furnished the Company with an opinion of counsel (which opinion may
be delivered by the Investor's in-house counsel), reasonably satisfactory to the
Company, that such disposition will not require registration of such shares
under the Act; and
(ii) the Company shall have been satisfied that such proposed
disposition complies in all respects with Regulation S or any successor rule
providing a safe harbor for such disposition without registration.
(c) In addition to the foregoing provisions of this Section 2.9, in
order to preserve an orderly market for the Company's common stock, (A) at least
five business days prior to any such proposed disposition, the Investor shall
provide to the Company notice of such disposition; (B) the Investor shall
provide the Company or its agent an opportunity to arrange the sale to one or
more parties of the Shares proposed to be transferred and shall cooperate fully
with the Company or such agent in such process (including discussions of the
terms of such sale with no more than two brokers designated by the Company and
to sell such Shares to one or both of such brokers if an agreement is reached);
and (C) if, after three business days from the date the notice referred to in
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subparagraph (c)(i)(A) is received by the Company, an agreement regarding such a
sale has not been reached, the Investor may dispose of such Shares in any manner
it so chooses so long as such disposition is not in violation of this Agreement,
and the Company agrees to immediately cause its transfer agent to issue a clean
certificate evidencing the Shares, without any restrictive legend thereon, if
applicable securities laws do not require a legend, restriction or holding
period.
2.10 Domicile; Principal Place of Business
The Investor represents that it is domiciled in, and has its principal
place of business in, the jurisdiction set forth in the first paragraph of this
Agreement.
2.11 Legends
It is understood that the certificate evidencing the Shares will bear a
legend as follows:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "ACT")
OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES EVIDENCED
BY THIS CERTIFICATE HAVE BEEN ISSUED IN A TRANSACTION GOVERNED
BY REGULATION S PROMULGATED UNDER THE ACT AND MAY NOT BE
TRANSFERRED EXCEPT IN ACCORDANCE WITH SAID REGULATION S, OR
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE ACT.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESALE RESTRICTIONS AS SET FORTH IN A STOCK PURCHASE
AGREEMENT DATED AS OF MAY 23, 1997, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICE OF THE COMPANY."
2.12 Acknowledgment
The Investor, by executing below, acknowledges that it understands that
the Company is relying upon the accuracy and completeness of its representations
and warranties set forth in this Agreement in deciding whether to sell shares of
the Company's common stock to the Investor and in complying with the Company's
obligations under applicable securities laws.
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3. Representations and Warranties of the Investor
The Investor hereby represents and warrants to the Company as of the
date of this Agreement as follows:
3.1 Organization and Existence
The Investor is a corporation duly organized, validly existing and in
good standing under the laws of the Federal Republic of Germany and has all
requisite power and authority to enter into and perform this Agreement. The
Investor has furnished to the Company complete and accurate information with
respect to the beneficial owners of the Investor. The Investor agrees to update
this information promptly if the beneficial owners of the Investor change at any
time.
3.2 Authorization
The execution, delivery and performance by the Investor of this
Agreement have been duly authorized by all necessary action on the part of the
Investor. This Agreement constitutes a valid and binding agreement of the
Investor, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability.
3.3 Governmental Authorization
No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Investor is required
in connection with the valid execution and delivery of this Agreement or the
purchase of the Shares.
3.4 Noncontravention
The execution, delivery and performance by the Investor of this
Agreement do not and will not (a) contravene or conflict with the organizational
documents of the Investor; (b) assuming compliance with the matters referred to
in Section 3.3 hereof, contravene or conflict with or constitute a violation of
any provision of any law, regulation, judgment, injunction, order or decree
binding upon or applicable to the Investor; or (c) constitute a default under or
give rise to any right of termination, cancellation or acceleration of any
material right or obligation of the Investor under any provision of any material
agreement, contract or other instrument binding upon the Investor.
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3.5 Finders' Fees
There is no investment banker, broker, finder or other intermediary who
has been retained by or is authorized to act on behalf of the Investor and who
might be entitled to any fee or commission from the Investor in connection with
the transactions contemplated by this Agreement.
3.6 Financing
The Investor has sufficient funds available to purchase the Shares.
4. Representations and Warranties of the Company
The Company hereby represents and warrants to the Investor as of the
date of this Agreement as follows:
4.1 Corporate Organization
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington and has all requisite
power and authority to enter into and perform this Agreement.
4.2 Corporate Authorization
The execution, delivery and performance by the Company of this
Agreement are within the corporate powers of the Company and have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement constitutes a valid and binding agreement of the Company, enforceable
in accordance with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
4.3 Governmental Authorization
No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Company is required in
connection with the valid execution and delivery of this Agreement or the offer,
sale or issuance of the Shares, except qualification or registration (or taking
such action as may be necessary to secure an exemption from qualification or
registration, if available) of the offer and sale of the Shares under all
applicable federal and state securities laws, which filings and qualifications,
if required, will be accomplished in a timely manner.
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4.4 Noncontravention
The execution, delivery and performance by the Company of this
Agreement do not and will not (a) contravene or conflict with the Articles of
Incorporation or Bylaws of the Company; (b) assuming compliance with the matters
referred to in Section 4.3 hereof, contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to the Company; (c) constitute a default
under or give rise to any right of termination, cancellation or acceleration of
any material right or obligation of the Company under any provision of any
material agreement, contract or other instrument binding upon the Company; or
(d) result in the creation or imposition of any lien on any asset of the
Company.
4.5 Validity of the Shares
The Shares have been duly authorized and, when issued and delivered to
and paid for by the Investor pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and such shares are free of preemptive or similar
rights.
4.6 Capitalization
There has been no material change in the authorized capital stock of
the Company as disclosed in the Company's Report on Form 10-Q for the quarter
ended March 31, 1997.
4.7 Nasdaq National Market
The Company's common stock is quoted on the Nasdaq National Market and
the Company is in compliance with the applicable provisions of Schedule D to the
By-laws of the National Association of Securities Dealers, Inc.
4.8 Finders' Fees
There is no investment banker, broker, finder or other intermediary who
has been retained by or is authorized to act on behalf of the Company and who
might be entitled to any fee or commission from the Company in connection with
the transactions contemplated by this Agreement.
5. Public Reports
The Company has provided to the Investor true and complete copies of
all reports, proxy statements and other documents (the "Public Reports") filed
by the Company with the SEC under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1996. The Public Reports
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include all the reports the Company has been required to file under the Exchange
Act since that date. As of their respective dates, none of the Public Reports
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
6. Miscellaneous
6.1 Notices
Any notice required or permitted to be given under this Agreement shall
be in writing, shall specifically refer to this Agreement and shall be effective
on receipt, when given by registered airmail or overnight courier and addressed,
unless otherwise specified in writing, to the addresses described below.
For NeoRx:
NeoRx Corporation
000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: President
with a copy (which shall not constitute notice) to:
Xxxxxxx Coie
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxxx
For Xxxxxxx Pharma:
Xxxxxxx Pharma AG
Xxxxxx-Xxxxx-Xxx. 00
00000 Xxxxxxx
Xxxxxxx
Attn: President
6.2 Amendments; No Waivers
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
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amendment, by the Investor and the Company or, in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
6.3 Expenses
All costs and expenses incurred in connection with this Agreement shall
be paid by the party incurring such cost or expense.
6.4 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; PROVIDED that neither party may assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement without the consent of the
other party hereto.
6.5 Governing Law
The Investor agrees that this Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of
Washington, and that the rights, powers and duties set forth herein shall be
binding upon the Investor and its successors and permitted assigns, and shall
inure to the benefit of its successors and permitted assigns.
6.6 Counterparts; Effectiveness
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
when each party hereto shall have received a counterpart hereof signed by the
other party hereto.
6.7 Entire Agreement
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter of this Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein has been made
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or relied upon by either party hereto. Neither this Agreement nor any provision
hereof is intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
6.8 Captions
The captions herein are included for convenience of reference only and
shall be ignored in the construction or interpretation hereof.
6.9 Lock-Up Agreement
The Investor agrees that, if requested by the Company in conjunction
with an underwritten public offering, the Investor will enter into a written
agreement that it will not, directly or indirectly, offer, sell, contract to
sell, grant any option to purchase, make any short sale, pledge or grant any
interest in, or otherwise dispose of, transfer or make a distribution of any
shares of the Company's common stock for a period of 180 days after the date
such public offering is declared effective by the SEC.
6.10 Survival
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Investor herein and in the certificates for the Shares delivered
pursuant hereto shall survive the execution of this Agreement, the delivery to
the Investor of the Shares being purchased and the payment therefor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
NEORX CORPORATION
By /S/ XXXX X. XXXXXX
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Its PRESIDENT AND CHIEF EXECUTIVE
OFFICER
XXXXXXX PHARMA XX XXXXXXX PHARMA AG
By /S/ XXXXXXX XXXXXXX-XXXXXXX By /S/ XXXX XXXXX
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Its CHIEF EXECUTIVE OFFICER Its VICE PRESIDENT OF RESEARCH
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