STOCK PURCHASE AGREEMENT
Exhibit 4.8
THIS STOCK PURCHASE AGREEMENT
("Agreement")
is entered into as of April 18, 2006, by and between the undersigned (the
"Purchaser") and
PICTON PHARMACEUTICALS, INC.,
a Delaware corporation having a business address at 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Company”).
RECITALS
WHEREAS, the Company desires
to sell shares of common stock, par value $0.001 per share, of the Company
(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 Company shall transfer to the Purchaser, and the
Purchaser shall acquire from the Company, 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 $0.001 per share, for the total purchase price listed
below the Purchaser's name on the signature page hereto (the "Purchase
Price").
(b) Immediately after the execution of
this Agreement, the Company 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
Company in the amount of the Purchase Price.
2. Violation Of Transfer
Provisions. The Company 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 Company with respect to the
Stock.
4. Representations and
Warranties by the Company.
The Company represents, warrants and
covenants with the Purchaser as follows:
(a) The Company 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 Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms. The execution and delivery of
this Agreement by the Company 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 Company is a party or by
which the Company or any property or asset of the Company is bound or
affected.
(b) The Company 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 Company 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 Company 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.
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(c) The Purchaser understands that the
Stock will not be registered under 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 Company with an opinion of counsel satisfactory in form
and content to the Company 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 Company 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 Company 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 Company, 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 Company concerning the finances,
operations and business of the Company. The Purchaser
acknowledges and agrees that (i) it is not relying upon any statement,
promise or assurance of the Company or any investor in the Company (or any
representative of the Company 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 Company or any such investor (or any
representative of the Company 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 Company 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.
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(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 Company shall have received an
opinion of counsel satisfactory in form and content to the Company
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
HAAST 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 Company shall not be obligated
to transfer any of the Stock if counsel for the Company 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. Registration
Rights.
(a) Defined Terms. Terms used in
this Section 6 and not otherwise defined herein shall have the meanings set
forth below:
(i) “Founders” shall mean
all the purchasers purchasing shares of the Company’s Common Stock pursuant to
stock purchase agreements dated the date hereof.
(ii) “Other Shares” means
at any time those shares of Common Stock which do not constitute Primary Shares
or Registrable Shares hereunder.
(iii) “Primary Shares” means
at any time authorized but unissued shares of Common Stock and shares of Common
Stock held by the Company in its treasury.
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(iv) “Registrable Shares”
means the shares of Common Stock held by the Founders which constitute
Restricted Shares.
(v) “Restricted Shares”
means shares of Common Stock held by the Founders and any other securities which
by their terms are exercisable or exchangeable for or convertible into Common
Stock which are held by the Founders (including exercised or unexercised
warrants for preferred stock or Common Stock or convertible debt
securities). As to any particular Restricted Shares, once issued,
such Restricted Shares shall cease to be Restricted Shares when (i) they have
been registered under the Securities Act, the registration statement in
connection therewith has been declared effective and they have been disposed of
pursuant to such effective registration statement, (ii) they are eligible to be
sold or distributed pursuant to Rule 144 promulgated under the Securities Act
(including, without limitation, Rule 144(k)) in a single transaction by the
Purchaser without limitation, or (iii) they shall have ceased to be
outstanding.
(b) Piggy-Back Registration
Rights.
(i) If the Company at any time
proposes for any reason to register Primary Shares or Other Shares under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act (or any successor forms thereto)), it shall give written notice
to the Purchaser of its intention to so register such Primary Shares or Other
Shares at least 30 days before the initial filing of the registration statement
related thereto and, upon the request, delivered to the Company within 20 days
after delivery of any such notice by the Company, of the Purchaser to include in
such registration Registrable Shares held by the Purchaser (which request shall
specify the number of such Registrable Shares proposed to be included in such
registration), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration (subject
to customary cutback in the event the managing underwriter, if any, advises the
Company that the inclusion of all Registrable Shares requested to be included in
such registration would interfere with the successful marketing (including
pricing) of the Primary Shares or Other Shares proposed to be registered by the
Company).
(ii) The number of requests
permitted by the Purchaser pursuant to this Section 6(b) shall be
unlimited.
(c) Registrations on Form
S-3. Anything
contained in Section
6(a) to the contrary notwithstanding, at such time as the Company shall
have qualified for the use of Form S-3 promulgated under the Securities Act or
any successor form thereto, the Purchaser shall have the right to request an
unlimited number of registrations of Registrable Shares held by the Purchaser on
Form S-3 (which may, at the Purchaser’s request, be shelf registrations pursuant
to Rule 415 promulgated under the Securities Act) or its successor form, which
request or requests shall (i) specify the number of Registrable Shares intended
to be sold or disposed of and the holders thereof, (ii) state whether the
intended method of disposition of such Registrable Shares is an underwritten
offering or a shelf registration and (iii) relate to Registrable Shares having
an aggregate offering price (before underwriting discounts and commissions) of
at least $1,000,000.
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(d) Expenses. All expenses incurred
by the Company and the Purchaser in complying with their obligations pursuant to
this Agreement and in connection with the registration and disposition of
Registrable Shares, including, without limitation, all registration and filing
fees (including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), fees and expenses of complying with securities and
blue sky laws, printing expenses, fees and expenses of the Company’s counsel and
accountants and fees and expenses of one counsel selected by the holders of
Registrable Shares requesting such registration shall be paid by the Company;
provided, however, that all
underwriting discounts, selling commissions applicable to the Registrable Shares
and Other Shares shall be borne by the holders selling such Registrable Shares
and Other Shares, in proportion to the number of Registrable Shares and Other
Shares sold by each such holder.
(e) Other Terms and
Provisions. The Purchaser hereby agrees to comply with all terms and
provisions set forth in the registration documents into which the Company enters
in connection with the applicable registration of Primary Shares or Other Shares
as reasonably requested by the Company, including without limitation, customary
lock-up provisions, underwriting agreements, indemnification, and permitted
suspensions, etc. as if the Purchaser was a party thereto.
(f) Assignment. Notwithstanding Section 7(a) below,
Purchaser may assign its rights under this Section 6 to any
purchaser or permitted transferee of Registrable Shares; provided, however, that such
purchaser or transferee shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement agreeing to
be treated as a Purchaser whereupon such purchaser or transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement as if such purchaser or transferee was originally included in the
definition of “Purchaser” herein and had originally been a party
hereto.
(g) Mergers,
Etc. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not be
the surviving corporation unless the surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company hereunder, and for that purpose references hereunder
to “Registrable Shares” shall be deemed to include the common stock, if any,
which the Purchaser would be entitled to receive in exchange for Common Stock
under any such merger, consolidation or reorganization, provided that, to the
extent the Purchaser receives securities that are by their terms convertible
into shares of common stock of the issuer thereof, then any such shares of
common stock as are issued or issuable upon conversion of said convertible
securities shall be included within the definition of “Registrable
Shares”.
(h) Amendment, Waiver, etc. of
Registration Rights. Notwithstanding, Section 7(h) below,
the terms and provisions of this Section 6 may be modified, amended, waived or
terminated with the written consent of Founders holding more than fifty percent
(50%) of the Registrable Securities issued on the date hereof.
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7. General
Provisions.
(a) No
Assignments. Subject to Section 6(f) above, 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 Company, 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)
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If
to the Company:
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Picton Pharmaceuticals,
Inc.
000 Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn.: President
(ii)
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If
to the Purchaser, to the address set forth on the signature page of this
Agreement.
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The
address of a party, for the purposes of this Section
7(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 Company by or on
behalf of the Company, the Purchaser shall not sell or transfer, or offer to
sell or transfer, any shares of Common Stock or other equity securities of the
Company for such period as the managing underwriter of such offering or the
Company 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.
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(f) Successors. All
references in this Agreement to the Company shall include any and all
successors in interest to the Company, 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 Company 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. Subject to Section 6(h) above, no modification,
amendment or waiver of any provision of this Agreement shall be effective
against the Company unless the same shall be in a written instrument signed by
an officer of the Company 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.
(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.
Balance
of the Page Intentionally Left Blank; Signature Page Follows
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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.
PICTON
PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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PURCHASER:
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Name:
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Address:
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SS#:
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NUMBER OF
SHARES OF
COMMON STOCK
PURCHASABLE:
PURCHASE
PRICE:
$
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