STOCK PURCHASE AGREEMENT
Exhibit
10.1
THIS
STOCK PURCHASE AGREEMENT ("Agreement")
is
entered into as of May 16, 2003, by and between HORIZON BIOMEDICAL INVESTMENTS,
LLC (the "Purchaser") and COUGAR BIOTECHNOLOGY, INC., a Delaware Corporation
having a business address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Corporation").
RECITALS
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
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
transfer 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 page hereto (the "Stock"), at
the
purchase price of $0.1765
per
share, for the total purchase price listed below the Purchaser's name on the
signature page hereto (the "Purchase
Price ").
(b) As
soon
as reasonably practicable after the execution of this Agreement, the Corporation
shall deliver to the Purchaser a certificate or certificates evidencing the
Stock, registered in the name of the Purchaser and concurrently therewith the
Purchaser shall make payment for the Stock by delivering to
the
Seller a check payable to the Corporation in the amount of the Purchase
price.
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. Representations
and Warranties by the Corporation.
The
Corporation represents, warrants and covenants with the Purchaser as
follows:
(a) The
Corporation has all necessary power and capacity to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transaction contemplated hereby. This Agreement has been validly executed and
delivered by the Corporation and constitutes the legal, valid and binding
obligation of
the
Corporation, enforceable
against the Corporation
in accordance with its terms. The execution and delivery of this Agreement
by
the Corporation do not and the performance of its obligations under this
Agreement will not conflict with or result in any breach or constitute a default
under any contracts
to which the
Corporation is a party or by which the Corporation or any property or asset
of
the Corporation is bound or affected.
(b) The
Corporation has good title to the Stock and owns the Stock free and clear of
any
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on voting rights, charges and other encumbrances of
any
nature whatsoever (collectively, "Liens")
other
than restrictions on transfer imposed under the Securities Act of 1933, as
amended (the "Securities
Act").
Upon
delivery thereof to the Purchaser, the Purchaser shall acquire good title to
the
Stock, free and clear of any Liens other than the restrictions set forth in
this
Agreement and under the Securities Act. The Stock is validly issued, fully
paid
and nonassessable. The Corporation is transferring the Stock to the Purchaser
hereunder pursuant to a valid exemption from registration under the Securities
Act.
5. Representations
and Warranties by the Purchaser.
The
Purchaser represents, warrants and covenants with the Corporation as
follows:
(a) The
Purchaser has all necessary power and capacity to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transaction contemplated hereby. This Agreement has been validly executed and
delivered by the Purchaser and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms. The execution and delivery of this Agreement by
the
Purchaser do not and the performance of its obligations under this Agreement
will not conflict with or result in any breach or constitute a default under
any
contracts to which the Purchaser is a party or by
which
the Purchaser or any property or asset of the Purchaser is bound or
affected.
(b) The
Stock
will be acquired by the Purchaser for his own account 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.
(c) 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.
(d) 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 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; (ii) the Corporation shall have waived, expressly and
in
writing,
its right under clause (i) of this subsection; and (iii) 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
and limitations of this Agreement applicable to such transferee's transferor
as
if such transferee were a party hereto. The
requirement of subparagraph (iii) 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.
(e) 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 (including investments in development stage biotechnology
companies) as to be capable of evaluating the merits and risks of its investment
in the Corporation, has 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 and 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 acknowledges and agrees that (i) it is not relying upon any
statement, promise or assurance of the Corporation or any investor in the
Corporation (or any representative of the Corporation or 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 the Corporation or any such
investor (or any representative of the Corporation or any such investor); and
that (ii) it 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.
(f) 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.
(g) 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 ARE NOT TRANSFERABLE WITHOUT THE
EXPRESS WRITTEN CONSENT OF XXXXXX HEALTH SCIENCES, INC., (THE "COMPANY") AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE
STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED OR OTHERWISE 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.
ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE STATE SECURITIES OR "BLUE
SKY" LAWS.
(ii) Any
legend required to be placed thereon by any applicable state securities
law.
(h) 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.
6. 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 mall, postage paid return
receipt requested in any case addressed as follows:
(i) If
to the
Corporation:
Cougar
Biotechnology, Inc. 000 Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Att.: Xxxxx
X.
Xxxxx Secretary
(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 or the Corporation 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
New York.
(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.
(1) 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.
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.
| COUGAR BIOTECHNOLOGY, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx X. Xxxxx |
|
| Title: | President | |
| HORIZON BIOMEDICAL INVESTMENTS, LLC | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx, M.D. | |
|
Name:
|
Xxxxxxx X. Xxxxxxxxx, M.D. |
|
| Title: | Managing Member | |
|
Horizon
Biomedical Investments, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
||
| EIN#: | ||
|
NUMBER
OF SHARES OF
|
|
|
COMMON
STOCK
|
|
|
PURCHASABLE:
|
4,250,000
|
|
PURCHASE
PRICE:
|
$
750,000
|
