EXHIBIT 10.11
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 5th day of May, 2003 by and among Molichem Medicines, Inc., a
Delaware corporation with its principal place of business at 000 Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("MMI"); Xxxxxx Xxxxxxxx with an
address at 000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("Xxxxxxxx");
and the Purchasers listed on Schedule A attached hereto and made a part hereof
(singly and collectively referred to herein as the "Purchasers")
PREAMBLE
WHEREAS, MMI, through its operating subsidiary Molichem R&D Inc.
("MRD") is engaged in the discovery, development and marketing of pharmaceutical
products for the treatment of serious respiratory and related conditions; and
WHEREAS, MMI has been unable to adequately fund and complete the
development of its proposed products; and
WHEREAS, MMI has had no operating revenues from the sale of its
products since inception, has incurred substantial losses from operations and
anticipates that operating losses will continue and could increase until such
time, if ever, that its compounds are developed, approved, and successfully
marketed; and
WHEREAS, all of MRD's issued and outstanding shares of capital stock
are owned by MMI (the "MRD Shares");
WHEREAS, the Purchasers have delivered $100,000 in escrow with MMI's
corporate and securities counsel to fund certain expenses relating to the
corporate reorganization of MMI which will, among other things, involve the sale
of MRD; and
WHEREAS, MMI has agreed to issue an aggregate of five million, five
hundred thousand (5,500,000) shares of its restricted common stock to the
Purchasers in consideration thereof in accordance with the terms and conditions
of this agreement.
NOW, THEREFORE, in consideration of the premises, and of the
promises, covenants and conditions contained herein, the parties intending to be
legally bound, hereby agree as follows:
WITNESSETH:
ARTICLE 1
CLOSING
The issuance of the MMI Shares shall take place at the offices of
Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other place as the parties may mutually agree (the "Closing"). The
Closing shall take place upon the execution of this Agreement or as soon
thereafter as is practicable. The date on which the Closing occurs is referred
to herein at the Closing Date. At the Closing:
(a) Xxxxxx Xxxxxxxx shall be appointed as sole officer of MMI in
conjunction with the resignations of Xxxx Xxxxxx as president/CEO and Xxxxxxx
Xxxxxx as CFO. Xx. Xxxxxxxx shall assume the positions of MMI's president,
secretary, treasurer, and chief executive, financial, and accounting officer.
Xxxxxx Xxxxxxxx shall also be appointed to the MMI board, which upon
effectiveness of such appointment will consist of Xxxx Xxxxxx, Xxxxxx Xxxxxx and
Xxxxxx Xxxxxxxx.
(b) An aggregate of 5,500,000 shares (the "Funding Shares") of MMI
restricted common stock shall be issued to the Purchasers in consideration of
their $100,000 funding of MMI's reorganization. The Funding Shares shall have
anti-dilution rights with respect to any reverse stock splits or
recapitalizations effected by MMI within one year of this Agreement. In the
event any reverse stock splits or recapitalizations are effected by MMI within
such one year period, the Funding Shares will not be reduced in number by more
than 50%, such that at the end of the one year period, the number of Funding
Shares outstanding shall not have been reduced to less than 2,750,000.
ARTICLE 2
EXEMPTION FROM REGISTRATION
(a) The Purchasers hereby represent, warrant, covenant and
acknowledge that:
(1) The Funding Shares are being issued to them without
registration under the provisions of Section 5 of the Securities Act
of 1933, as amended (the "Act"), pursuant to the exemption provided
pursuant to Sections 4(2) thereof;
(2) The Purchasers are acquiring the Funding Shares for
investment purposes only, and not with a view to further sale or
distribution.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MMI
MMI hereby represents, warrants and covenants to Xxxxxxxx and the
Purchasers as follows:
(a) MMI is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware, and has the legal
capacity and all necessary corporate authority to enter into and perform this
Agreement and to consummate the transactions contemplated hereby;
(b) As soon as practicable following the Closing, MMI shall transfer
and assign all of its assets and liabilities to MRD, at which time MRD shall
have good and marketable title to all of its assets free and clear of all liens,
claims, charges, and any other encumbrances.
(c) At the Closing, MMI and MRD shall have no outstanding
subscriptions, options, warrants, or other convertible securities that could
result in an obligation to issue additional capital stock of MMI or MRD except
as otherwise set forth in Schedule 3(c);
(d) This Agreement has been duly authorized, executed and delivered
by MMI and constitutes a legal, valid and binding obligation of MMI, enforceable
against MMI in accordance with its terms;
(e) There is no litigation or proceeding pending or, to the best
knowledge of MMI threatened, against MRD or MMI or the properties of MRD or MMI;
(f) MMI and MRD have filed (except for 2002 tax returns for which
extension requests have been filed) with the appropriate governmental agencies
all tax returns and tax reports required to be filed; all Federal, state and
local income, franchise, sales, use, occupation or other taxes due have been
fully paid or adequately reserved for; and MMI or MRD is not a party to any
action or proceeding by any governmental authority for assessment or collection
of taxes, nor has any claim for assessments been asserted against MMI or MRD;
(g) There are presently no contingent liabilities, factual
circumstances, contractually assumed obligations or unasserted possible claims
which are known to MMI, which might result in a material adverse change in the
future financial condition or operations of MMI;
(h) Immediately prior to Closing, there will be 18,679,287 shares of
MMI common stock issued and outstanding.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXXXX AND THE
PURCHASERS
Xxxxxxxx and the Purchasers hereby represent and warrant to MMI as
follows:
(a) They have all necessary authority to enter into and perform this
Agreement and to consummate the transactions contemplated hereby;
(b) This Agreement constitutes a legal, valid and binding obligation
of each of Xxxxxxxx and the Purchasers, enforceable against Xxxxxxxx and the
Purchasers in accordance with its terms;
ARTICLE 5
NOTICE
All notices, demands or other communications given hereunder shall
be in writing and shall be deemed to have been duly given when received if sent
by fax or overnight courier, and if mailed shall be deemed to have been given on
the first business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To Xxxxxxxx and/or Xxxxxx Xxxxxxxx
the Purchasers 000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
To MMI: c/o Dr. Xxxx Xxxxxx
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ARTICLE 6
MISCELLANEOUS
(a) Each of MMI, Xxxxxxxx and the Purchasers agrees to take such
actions as are reasonably necessary to carry out the intentions of the parties
under this Agreement, including but not limited to the prompt execution and
delivery of any documents reasonably necessary to carry out and perform the
terms or intention of this Agreement.
(b) Certain costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid from an escrow
account held by Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP, as previously agreed.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of laws of
principles and each party hereby agrees that all performances due and
transactions undertaken pursuant to this Agreement shall be deemed to be due or
have occurred in New York, and the exclusive venue and place of jurisdiction for
any litigation arising from or related to this Agreement shall be the state or
federal courts located in the State and County of New York.
(d) The headings used in this Agreement are for convenience only, do
not form a part of this Agreement, and shall not affect in any way the meaning
or interpretation of this Agreement.
(e) This Agreement may be executed in one or more counterparts which
when taken together shall constitute one agreement.
(f) This Agreement is intended for the benefit of the parties hereto
and is not for the benefit of, nor may any provisions hereof be enforced by any
other person, firm or entity.
(g) This Agreement may be amended, modified and supplemented in
writing only by the mutual consent of the parties hereto.
(h) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties, and any
attempts to do so without the consent of the other parties shall be void and of
no effect.
(i) In the event any party breaches the terms of this Agreement, the
non-breaching parties shall be entitled to the recovery of their attorney's fees
and other professional costs and fees incurred in enforcing their rights
hereunder.
(j) This writing constitutes the entire agreement and understanding
between the parties hereto with respect to the subject matter contained herein.
Neither party is relying on any representation or statement not contained in
this writing. This Agreement supercedes and cancels any prior agreements
relating to the subject matter contained herein.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
MOLICHEM MEDICINES, INC. THE PURCHASERS:
By: /S/ XXXX XXXXXX /S/ XXXX XXX XXXXXXX
Name: Xxxx Xxxxxx, PhD. Xxxx Xxx Xxxxxxx
Title: President
GROUP INTERCAPITAL, INC.
/S/ XXXXXX XXXXXXXX By: /S/ XXXXXX XXXXXXX
---------------------------- ------------------------
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx, President
GESTION CM 2000 INC.
By: /S/ XXXXXXX XXXXXXX
Xxxxxxx Xxxxxxx, President
/S/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
/S/ XXXXXXX XXXXXXX
Xxxxxxx Xxxxxxx
SCHEDULE A
NAME NUMBER OF FUNDING SHARES
------------------------------------- -----------------------------
Gestion CM 2000, Inc. 500,000
c/o Xxxx Xxx Xxxxxxx
1801 XxXxxx Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxx Xxxxxxx 500,000
00 Xxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxx X0X 0X0
Xxxxxxx Xxxxxxx 500,000
000 Xx Xxxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxx Xxx Xxxxxxx 1,250,000
0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Group Intercapital, Inc. 2,750,000
000 Xx. Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx X00 0X0
TOTAL 5,500,000
SCHEDULE 3(C)
LIST OF MOLICHEM MEDICINES, INC. OUTSTANDING SUBSCRIPTIONS, OPTIONS, WARRANTS
OR OTHER CONVERTIBLE SECURITIES AT CLOSING
STOCK OPTIONS:
NAME NUMBER OF OPTIONS EXERCISE PRICE EXERCISE PERIOD
---- ----------------- -------------- ---------------
Xxxx Xxxxxx 220,000 $1.50 Through 1/29/11
Xxxxxx Xxxxxxxx 550,000 $1.50 Through 1/18/06 (200,000); Through
6/21/11 (350,000)
Xxxxxxx Xxxxx 100,000 $1.50 Through 1/18/06
Xxxxx Xxxxxxxx 214,445 $1.50 Through 1/29/11
Xxx Xxxxxx 161,805 $.01 (20,138); Through 9/9/07 (20,138); Through
$1.50 (141,667) 1/18/06 (100,000); Through 9/16/11
(41,667)
Vatche Tchakamakian 150,000 $1.50 Through 1/18/06
Xxxx Xxx Xxxxxxx 100,000 $1.50 Through 1/18/06
Xxxxxx Xxxxxxx 100,000 $1.50 Through 1/18/06
Xxxxxxx Xxxxxx 20,864 $.01 Through 9/9/07
Xxxxxxx Xxxxxx 20,000 $3.50 Through 6/30/05
Xxxx Xxxxxxxxx 49,382 $.01 Through 9/9/07
F. Xxxxxx Xxxxxxx 30,864 $.01 Through 9/9/07
Read XxXxxxxx 28,000 $1.50 Through 1/18/06
Xxxxxxxx Xxxxxxxxxxx 10,000 $1.50 Through 6/26/11
Xxxx Xxxxx 10,000 $1.50 Through 6/26/11
Xxxx Xxxx Swing 2,500 $3.50 Through 6/20/11
---------------------
TOTAL 1,767,860
LIST OF MOLICHEM R&D, INC. OUTSTANDING SUBSCRIPTIONS, OPTIONS, WARRANTS
OR OTHER CONVERTIBLE SECURITIES AT CLOSING
None.
