STOCK SUBSCRIPTION AGREEMENT
THIS STOCK SUBSCRIPTION AGREEMENT ("Agreement") is entered into as
of August 15, 1995, by and between the undersigned (the "Purchaser") and
MicroBio Inc., a Delaware corporation with a place of business at 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation").
RECITALS
A. WHEREAS, the Corporation desires to sell shares of common stock,
par value $.001 per share, of the Corporation (which class of shares is referred
to herein as "Common Stock") to Purchaser, and Purchaser desires to purchase
these shares, upon the terms and conditions herein specified; and
B. WHEREAS, Purchaser is willing to subject the Stock (as defined
herein) to the restrictions contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and of
the mutual promises herein contained, the parties hereby agree as follows:
1. Issuance and Acquisition of Stock.
(a) Immediately after the execution of this Agreement by the
parties, the Corporation shall issue to the Purchaser, and the Purchaser shall
acquire from the Corporation, the number of shares of Common Stock listed beside
the Purchaser's name on the signature hereto (the "Stock") for the total
purchase price listed below the Purchaser's name on the signature page hereto
(the "Purchase Price").
(b) Upon the execution of this Agreement, the Purchaser shall
make payment for the Stock by delivering to the Corporation a check payable to
the Corporation in the amount of the Purchase Price. Within ninety days after
the execution of this Agreement by the parties and receipt by the Corporation of
the Purchase Price, the Corporation shall deliver to the Purchaser a certificate
or certificates evidencing the Stock, registered in the name of the Purchaser
and concurrently therewith.
2. Violation Of Transfer Provisions. The Corporation shall not be
required (i) to transfer on its books any shares of Stock which shall have been
sold, transferred, assigned or pledged in violation of any of the provisions of
this Agreement or (ii) to treat as owner of such shares or to accord the right
to vote as such owner or to pay dividends to any transferee to whom such shares
shall have been so sold, transferred, assigned or pledged.
3. Rights as Shareholder. Except as otherwise provided herein, the
Purchaser shall, during the term of this Agreement, exercise all rights and
privileges of a shareholder of the Corporation with respect to the Stock.
4. Securities Laws. The Purchaser represents and warrants to and
covenants with the Corporation as follows:
(a) The Stock will be acquired by the Purchaser with the
Purchaser's own funds for investment purposes and for the Purchaser's own
account, not as a nominee or agent for any other person, firm or corporation,
and not with a view to the sale or distribution of all or any part thereof, and
the Purchaser has no present intention of selling, granting any participation
in, or otherwise distributing, any or all of the Stock. The Purchaser does not
have any contract, undertaking, agreement or arrangement with any person, firm
or corporation to sell, transfer or grant any participation to any person, firm
or corporation with respect to any or all of the Stock.
(b) The Purchaser understands that the Stock will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and that the Stock is being issued and sold to the Purchaser based upon an
exemption from registration predicated in part on the accuracy and completeness
of the Purchaser's representations and warranties appearing herein.
(c) The Purchaser agrees that in no event will the Purchaser
sell, transfer, assign or pledge all or any part of the Stock or any interest
therein, unless and until (i) the Purchaser shall have notified the Corporation
of the proposed disposition and shall have furnished the Corporation with a
statement of the circumstances surrounding the proposed disposition, and (ii)
the Purchaser shall have furnished the Corporation with an opinion of counsel
satisfactory in form and content to the Corporation to the effect that (A) such
disposition will not require registration of the Stock under the Securities Act
or compliance with applicable state securities laws, or (B) appropriate action
necessary for compliance with the Securities Act and applicable state securities
laws has been taken, or (iii) the Corporation shall have waived, expressly and
in writing, its right under clauses (i) and (ii) of this subsection, and (iv)
the proposed transferee of the Stock shall have provided the Corporation with a
written agreement or undertaking by which such transferee agrees to be bound by
all terms, conditions
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and limitations of this Agreement applicable to such transferee's transferor as
if such transferee were a party hereto. The requirement of subparagraph (iv)
shall not apply to any transfer (A) pursuant to an offering registered under the
Securities Act, (B) pursuant to Rule 144 under the Securities Act or (C)
effected in a market transaction otherwise exempt from registration under the
Securities Act.
(d) The Purchaser is able to fend for itself in connection
with the transactions contemplated by this Agreement, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Corporation, as the ability to bear
the economic risks of its investment for an indefinite period of time and can
afford a complete loss of its investment, has had the opportunity prior to the
Purchaser's purchase of the Stock to ask questions of and receive answers from
representatives of the Corporation concerning the finances, operations and
business of the Corporation. The Purchaser is not relying upon any statement,
promise or assurance of any investor in the Corporation (or any representative
of any such investor) in arriving at the Purchaser's decision to purchase the
Stock, and has not otherwise been induced to purchase the Stock by any such
investor (or any representative of any such investor), and the Purchaser has
decided to purchase the Stock based upon the Purchaser's own analysis of the
merits and risks of investing in the Corporation without the intervention or
assistance of any other person, firm or corporation.
(e) The Purchaser understands and acknowledges that the
Purchaser will not be permitted to sell, transfer, assign or pledge the Stock
until it is registered under the Securities Act or an exemption from the
registration and prospectus delivery requirements of the Securities Act is
available to the Purchaser, and that there is no assurance that such an
exemption from registration will ever be available or that the Purchaser will
ever be able to sell any of the Stock.
(f) All certificates representing the Stock and, until such
time as the Stock is sold in an offering which is registered under the
Securities Act or the Corporation shall have received an opinion of counsel
satisfactory in form and content to the Corporation that such registration is
not required in connection with a resale (or subsequent resale) of the Stock,
all certificates issued in transfer thereof or substitution therefor, shall,
where applicable, have endorsed thereon the following (or substantially
equivalent) legends:
(i) THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED FOR SALE, TRANSFERRED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE ENCUMBERED OR DISPOSED OF (A "TRANS-
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FER") UNLESS SUCH TRANSFER COMPLIES WITH THE PROVISIONS OF A
SUBSCRIPTION AGREEMENT BETWEEN THE REGISTERED HOLDER AND THE
CORPORATION (THE "AGREEMENT") (A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF THE CORPORATION AND WHICH WILL BE FURNISHED
BY THE CORPORATION TO THE HOLDER HEREOF UPON WRITTEN REQUEST
AND WITHOUT CHARGE). THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES
OR "BLUE SKY" LAWS. ACCORDINGLY, NO TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE AGREEMENT AND (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AMENDMENT THERETO UNDER THE ACT OR
(B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT
AND UNDER ANY APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
(ii) Any legend required to be placed thereon by any applicable
state securities law.
(iii) A legend to the effect that such shares of stock are subject
to a Stock Subscription Agreement between the Purchaser and
the Corporation that limits the transferability of the shares
under certain conditions and applies to any transferee of such
shares.
(g) The Corporation shall not be obligated to transfer any of
the Stock if counsel for the Corporation determines that any applicable
registration requirement under the Securities Act or any other applicable
requirement of federal or state law has not been met.
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5. General Provisions.
(a) No Assignments. The Purchaser shall not transfer, assign
or encumber any of its rights, privileges, duties or obligations under this
Agreement without the prior written consent of the Corporation, and any attempt
to so transfer, assign or encumber shall be void.
(b) Notices. All notices and other communications which are
required or permitted to be given pursuant to the terms of this Agreement shall
be in writing and shall be sufficiently given (i) if personally delivered, (ii)
if sent by telex or facsimile, provided that "answer-back" confirmation is
received by the sender or (iii) upon receipt, if sent by registered or certified
mail, postage paid return receipt requested in any case addressed as follows:
(i) If to the Corporation, to
MicroBio Inc.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(ii) If to the Purchaser, to the address set forth on the
signature page of this Agreement.
The address of a party, for the purposes of this Section 6(b)(ii), may be
changed by giving written notice to the other party of such change in the manner
provided herein for giving notice. Unless and until such written notice is
received, the addresses as provided herein shall be deemed to continue in effect
for all purposes hereunder.
(c) Standoff Agreement. The Purchaser agrees that, in
connection with each underwritten public offering registered under the
Securities Act of shares of Common Stock or other equity securities of the
Corporation by or on behalf of the Corporation, the Purchaser shall not sell or
transfer, or offer to sell or transfer, any shares of Common Stock or other
equity securities of the Corporation for such period as the managing underwriter
of such offering determines is necessary to effect the underwritten public
offering.
(d) Choice of Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the internal laws (without
giving effect to the conflicts of law principles) of the State of Delaware.
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(e) Severability. The parties hereto agree that the terms and
provisions in this Agreement are reasonable and shall be binding and enforceable
in accordance with the terms hereof and, in any event, that the terms and
provisions of this Agreement shall be enforced to the fullest extent permissible
under law. In the event that any term or provision of this Agreement shall for
any reason be adjudged to be unenforceable or invalid, then such unenforceable
or invalid term or provision shall not affect the enforceability or validity of
the remaining terms and provisions of this Agreement, and the parties hereto
hereby agree to replace such unenforceable or invalid term or provision with an
enforceable and valid arrangement which, in its economic effect, shall be as
close as possible to the unenforceable or invalid term or provision.
(f) Successors. All references in this Agreement to the
Corporation shall include any and all successors in interest to the Corporation
whether by merger, consolidation, sale of all or substantially all assets or
otherwise, and this Agreement shall inure to the benefit of the successors and
assigns of the Corporation and, subject to the terms herein set forth, shall be
binding upon the Purchaser, its successors and permitted assigns.
(g) Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
(h) Modification, Amendment and Waiver. No modification,
amendment or waiver of any provision of this Agreement shall be effective
against the Corporation unless the same shall be in a written instrument signed
by an officer of the Corporation on its behalf and such instrument is approved
by its Board of Directors. The failure at any time to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter to enforce
each and every provision hereof in accordance with its terms.
(i) Further Assurances. The parties agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
(j) Integration. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof.
(k) Headings. The headings of the Sections and paragraphs of
this Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
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(l) Gender and Number. As used in this Agreement, the
masculine, feminine or neuter gender, and the singular or plural, shall be
deemed to include the others whenever and wherever the context so requires.
Additionally, unless the context requires otherwise, "or" is not exclusive.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed by their respective
officers, partners or other representatives, thereunto duly authorized, all as
of the day and year first above written.
MICROBIO INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
PURCHASER:
By: /s/ X. X. Xxxxxxxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxxxxxxx
Address: 0 Xxxx Xxxx Xxxx
Xxxxxxxxxxx, XX 00000
Tax#: ###-##-####
NUMBER OF SHARES
OF COMMON STOCK
SUBSCRIBED FOR: 3,000
PURCHASE PRICE: $3.00
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