EQUITY GRANT AGREEMENT
Exhibit
4.1
This
Equity Grant Agreement (this “Agreement”) is made
effective as of the 7 day of April, 2021 (the “Effective Date”), by and
between Celcuity Inc., a Delaware corporation (the
“Company”), and Pfizer
Inc., a Delaware corporation (the “Investor”).
WHEREAS, the
Company and the Investor are entering into a License Agreement
dated the Effective Date (the “License Agreement”) under
which the Company is licensing certain technology from the
Investor;
WHEREAS, the
Company and the Investor are executing and delivering this
Agreement in reliance upon the exemption from
securities registration afforded by Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities Act”), and
Rule 506 of Regulation D as promulgated by the United States
Securities and Exchange Commission (the “Commission”) under the
Securities Act; and
WHEREAS, the
License Agreement provides that, among other things, the Company
will issue to the Investor shares of common stock, par value $0.001
per share (the “Common Stock”), of the
Company upon the terms and conditions stated in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, and intending to be
legally bound hereby, the parties hereto agree as
follows:
1. Issuance of
Shares.
1.1. Shares;Number
of Shares. In consideration of the licenses and rights
granted to the Company under the License Agreement, and subject to
the terms and conditions of this Agreement and in reliance on the
representations and warranties of the Investor set forth herein,
the Company hereby agrees to issue to the Investor, and the
Investor hereby agrees to acquire from the Company, such number of
shares of the Company’s Common Stock (the “Shares”) equivalent in
monetary value on an aggregate basis to five million U.S. dollars
($5,000,000.00), where the number of shares of Company’s
Common Stock issued to Investor shall be calculated by dividing
five million U.S. dollars ($5,000,000.00) by the closing price of a
share of the Company’s Common Stock on the NASDAQ Capital
Market on the Effective Date, rounded to the nearest whole
share.
1.2. Closing;
Delivery of Shares. The issuance of the Shares shall take
place on the Effective Date, remotely via the exchange of documents
and signatures, or at such other time, date and place as the
Company and the Investor mutually agree upon in writing (which time
and place are designated as the “Closing”). On or before
the Closing, the Company will cause the transfer agent for the
Common Stock (the “Transfer Agent”) to issue
the Shares to the Investor and to hold the Shares in book-entry
form for the account of the Investor. The book entry for the Shares
will be subject to a stop transfer order reflecting such the
transfer restrictions referred to in Sections 4.5 and 4.6 of this Agreement. At the
Closing, the Company will deliver to Investor a copy of
Company’s irrevocable instructions to its Transfer Agent for
the Common Stock instructing such Transfer Agent to register the
issuance of the Shares to the Investor via book-entry.
2. Conditions to
Closing.
2.1. Conditions
to the Investor’s Obligations. The obligation of the
Investor to acquire the Shares at the Closing is subject to the
fulfillment to the reasonable satisfaction of the Investor on or
prior to the Closing of each of the following conditions, any of
which may be waived by the Investor:
(a) Each of the
representations and warranties of the Company contained in
Section 3 shall be true and correct in
all material respects or, if subject to materiality or Material
Adverse Effect (as defined in Section 3.1), shall be true and correct
in all respects, at and as of the Closing (except for such
representations and warranties that are made as of a specific date,
which shall be true and correct in all material respects or, if
subject to materiality or Material Adverse Effect, shall be true
and correct in all respects as of such date), as though such
representation or warranty were made as of such date.
(b) The Company shall
have performed in all material respects all obligations and
covenants herein or in the License Agreement required to be
performed by it on or prior to the Closing.
(c) The Company shall
have delivered or caused to be delivered an irrevocable instruction
letter to the Company’s Transfer Agent instructing the
Transfer Agent to issue the Shares to the Investor in book-entry
form for the account of the Investor.
(d) No judgment, writ,
order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or
any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by
any governmental authority, enjoining or preventing the
consummation of the transactions contemplated hereby or in the
License Agreement.
(e) No stop order or
suspension of trading shall have been imposed by the Commission or
any other governmental or regulatory body with respect to public
trading in the Common Stock.
(f) Since the Effective
Date, there shall not have occurred any Material Adverse Effect,
and no event shall have occurred or circumstance shall exist that,
in combination with any other events or circumstances, could
reasonably be expected to have or result in a Material Adverse
Effect.
2.2. Conditions
to the Company’s Obligations. The Company’s
obligation to issue the Shares at the Closing is subject to the
fulfillment to the reasonable satisfaction of the Company on or
prior to the Closing of each of the following conditions, any of
which may be waived by the Company:
(a) Each of the
representations and warranties of the Investor contained in
Section 4 shall be true and correct in
all material respects at and as of the Closing, as though such
representation or warranty were made as of such date.
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(b) The License
Agreement shall not have been terminated.
(c) No judgment, writ,
order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or
any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by
any governmental authority, enjoining or preventing the
consummation of the transactions contemplated hereby or in the
License Agreement.
(d) No stop order or
suspension of trading shall have been imposed by the Commission or
any other governmental or regulatory body with respect to public
trading in the Common Stock.
3. Representations and Warranties of the
Company. The Company hereby represents and warrants to the
Investor that:
3.1. Organization, Good Standing and
Qualification. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to
carry on its business as presently conducted or proposed to be
conducted and to own or lease the properties and assets it now owns
or holds under lease. The Company and its Subsidiaries are duly
qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would, individually
or in the aggregate, have a material adverse effect upon the
general affairs, business, management, properties, operations,
condition (financial or otherwise) or results of operations of the
Company or any of its Subsidiaries, taken as a whole
(“Material Adverse
Effect”). The Company has disclosed all of its
subsidiaries required to be disclosed in an exhibit to its
applicable SEC Reports (the “Subsidiaries”). The
Company owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any
liens, and all of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid and,
if applicable in the relevant jurisdiction, non-assessable, and
free of preemptive and similar rights to subscribe for or purchase
securities.
3.2. Capitalization;Valid
Issuance of Shares. The authorized capital of the Company,
as of the last business day immediately prior to the Effective
Date, consists of: (i) 25,000,000 shares of Common Stock, of
which (x) 12,287,896 shares were issued and outstanding,
(y) 1,285,582 shares were reserved for future issuance
pursuant to the Company’s stock-based compensation plans,
including 854,622 shares issuable upon the exercise of stock
options outstanding as of such date, and (z) 352,400 shares
issuable were upon the exercise of stock warrants outstanding as of
such date, and (ii) 2,500,000 shares of preferred stock, par
value $0.001 per share, none of which were issued and outstanding
as of such date. The capital stock of the Company, including the
Common Stock and the Shares to be issued pursuant to this
Agreement, conforms to the description thereof in the SEC Reports.
All of the issued and outstanding shares of capital stock of the
Company are duly authorized and validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, were not issued in violation of or subject
to any preemptive rights or other rights to subscribe for or
purchase securities that have not been waived in writing, and the
holders thereof are not subject to personal liability by reason of
being such holders. The Shares to be issued hereunder by the
Company have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will have been validly
issued and will be fully paid and nonassessable, will not be
subject to preemptive rights or other similar rights of
stockholders of the Company, and will be free and clear of all lien
(except for restrictions on transfer imposed by applicable
securities Laws or contained herein) and the holder thereof will
not be subject to personal liability by reason of being such
holder.
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3.3. Authorization;
No Conflicts; Authority. This Agreement has been duly
authorized, executed and delivered by the Company, and constitutes
a valid, legal and binding obligation of the Company, enforceable
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity. The execution, delivery and performance of
this Agreement and the consummation of the transactions herein
contemplated will not (a) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, (b) result in any
violation of the provisions of the Company’s charter or
bylaws or (c) result in the violation of any law or statute or any
judgment, order, rule, regulation or decree of any court or
arbitrator or federal, state, local or foreign governmental agency
or regulatory authority having jurisdiction over the Company or any
of its properties or assets (each, a “Governmental Authority”),
except in the case of clauses (a) and (c) above as would not result
in a Material Adverse Effect. No consent, approval, authorization
or order of, or registration or filing with any Governmental
Authority is required for the execution, delivery and performance
of this Agreement or for the consummation of the transactions
contemplated hereby, including the issuance of the Shares by the
Company, except such as may be required under the Securities Act,
the Nasdaq Stock Market Rules or state securities or blue sky laws;
and the Company has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby,
including the authorization and issuance of the Shares as
contemplated by this Agreement.
3.4. Exchange
Listing and Exchange Act Registration. The Common Stock is
registered pursuant to Section 12(b) of the Securities Exchange Act
of 1934, as amended (“Exchange Act”) and is
included for listing on the Nasdaq Capital Market and the Company
has not taken any action designed to, or likely to have the effect
of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the Nasdaq Capital
Market, and the Company has not received any notification that the
Commission or the Nasdaq Capital Market is contemplating
terminating such registration or listing. The Company agrees to
notify Investor promptly upon the Company becoming an
“ineligible issuer.” The Company has complied in all
material respects with the applicable requirements of the Nasdaq
Capital Market for maintenance of inclusion of the Common Stock
thereon. No person or entity has any right to cause the Company to
effect the registration under the Securities Act of any securities
of the Company or any Subsidiary.
3.5. SEC
Reports. The Company has timely filed with the Commission
all of the reports and other documents required to be filed by it
under the Exchange Act and the Securities Act and any required
amendments to any of the foregoing (the “SEC Reports”). The SEC
Reports, when they were filed with the Commission, did not contain
an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. None of
the Company’s Subsidiaries is subject to the periodic
reporting requirements of the Exchange Act. As of the date hereof,
there are no outstanding or unresolved comments in comment letters
from the Commission staff with respect to any of the SEC Reports
and the Company has not been notified in writing that any of the
SEC Reports is the subject of ongoing Commission review or
outstanding investigation.
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3.6. Financial
Statements. As of its respective date, the financial
statements, together with the related notes and schedules, of the
Company included in the SEC Reports complied as to form in all
material respects with all applicable accounting requirements and
the published rules and regulations of the Commission and all other
applicable rules and regulations with respect thereto. Such
financial statements, together with the related notes and
schedules, have been prepared in accordance with generally accepted
accounting principles in the United States (“GAAP”) applied on a
consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes
thereto or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or
summary statements), and fairly present in all material respects
the financial condition of the Company and its consolidated
subsidiaries as of the dates thereof and the results of operations
and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). Except
(i) as set forth in the SEC Reports or (ii) for liabilities
incurred in the ordinary course of business subsequent to the date
of the most recent balance sheet contained in the SEC Reports, the
Company has no liabilities, whether absolute or accrued, contingent
or otherwise, required by GAAP to be set forth on a consolidated
balance sheet of the Company or in the notes thereto.
3.7. Certain
Registration Matters. Assuming the accuracy of the
Investor’s representations and warranties set forth in
Section 4, no registration under the
Securities Act is required for the offer and issuance of the
Securities by the Company to the Investor under this Agreement and
the License Agreement.
3.8. Private
Placement. Subject to the accuracy of the representations
made by Investor in Section 4, the offer and issuance of the Shares
to Investor as contemplated hereby is exempt from the registration
requirements of the Securities Act, and will have been registered
or qualified (or are exempt from registration and qualification)
under the registration, permit or qualification requirements of all
applicable state securities Laws. Except as otherwise disclosed by
Company to Investor in writing, Company has not engaged any
brokers, finders or agents, nor incurred, nor will incur, directly
or indirectly, any liability for brokerage or finder’s fees
or agents’ commissions or any similar charges in connection
with this Agreement and the transactions contemplated
hereby.
3.9. Litigation.
Other than as set forth in the SEC Reports filed prior to the
Effective Date, there is no action, suit, prosecution,
investigation, litigation, arbitration, hearing, order, claim,
complaint or other proceeding (“Action”) pending (of
which the Company has received notice or otherwise has knowledge)
or, to the Company’s knowledge, threatened, against the
Company, any of its Subsidiaries or any of their respective
properties or which the Company or any of its Subsidiaries intends
to initiate, except where such Action would not (a) adversely
affect or challenge the legality, validity or enforceability of
this Agreement or the issuance of the Shares or (ii) reasonably be
expected to have a Material Adverse Effect on the
Company.
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3.10. Permits;
Compliance with Laws. The Company has all franchises,
permits, licenses and other rights and privileges
(“Permits”) necessary to
permit it to own its properties and to conduct its business as
presently conducted and is in compliance thereunder, except where
the failure to be in compliance would not reasonably be expected to
have a Material Adverse Effect on the Company. The Company is and
has been in compliance with all laws, statutes, rules, regulations,
orders, judgments, injunctions and ordinances of any Governmental
Authority (“Laws”) applicable to its
business, properties and assets, and to the products and services
sold by it, except where the failure to be in compliance has not
had and would not reasonably be expected to have a Material Adverse
Effect on the Company. The Company has made all material filings
and obtained all such material approvals as may be required by the
United States Food and Drug Administration (the “FDA”) or any committee
thereof or from any other U.S. or drug or medical device regulatory
agency, or health care facility Institutional Review Board
(collectively, the “Regulatory Agencies”) to
conduct the clinical trials and manufacturing activities related to
such clinical trials currently being conducted by the Company, and
the Company has operated and currently is in compliance in all
material respects with all applicable rules, regulations and
policies of the Regulatory Agencies, except where the failure to
make such filings, obtain such approval or comply with such rules,
regulations and policies could not reasonably be expected to have a
Material Adverse Effect on the Company. The Company has not
received any written notification of any pending or threatened
Action from any Governmental Authority, including any Regulatory
Agency, that could reasonably be expected to have a Material
Adverse Effect on the Company.
3.11. Absence
of Certain Changes. Since the date of the latest audited
financial statements included within the SEC Reports, (a) the
Company and each of its Subsidiaries has conducted its business
operations in the ordinary course of business consistent with past
practice, (b) there has not occurred any event, change,
development, circumstance or condition that, individually or in the
aggregate, has had or would reasonably be expected to have a
Material Adverse Effect on the Company, (c) the Company has not (i)
declared or paid any dividends, or authorized or made any
distribution upon or with respect to any class or series of its
capital stock, or (ii) sold, exchanged or otherwise disposed of any
of its material assets or rights, and (d) the Company has not
admitted in writing its inability to pay its debts generally as
they become due, filed or consented to the filing against it of a
petition in bankruptcy or a petition to take advantage of any
insolvency act, made an assignment for the benefit of creditors,
consented to the appointment of a receiver for itself or for the
whole or any substantial part of its property, or had a petition in
bankruptcy filed against it, been adjudicated bankrupt or filed a
petition or answer seeking reorganization or arrangement under the
federal bankruptcy laws or any other laws of the United States or
any other jurisdiction.
3.12. Anti-Corruption
and Anti-Bribery Laws. Neither the Company and its
Subsidiaries, nor, to the Company’s knowledge, any of their
respective directors, officer, agents, employees or other
authorized persons acting on behalf of the Company or its
Subsidiaries is aware of or has taken any action, directly or
indirectly, that could result in a violation or a sanction for
violation by such persons of the Foreign Corrupt Practices Act of
1977 or the U.K. Xxxxxxx Xxx 0000, each as may be amended, or
similar law of any other relevant jurisdiction, or the rules or
regulations thereunder; and the Company has instituted and
maintains policies and procedures to ensure compliance
therewith.
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3.13. Economic
Sanctions. Neither the Company and its Subsidiaries, nor, to
Company’s knowledge, any of their respective directors,
officers, agents, employees or other authorized person acting on
behalf of the Company: (a) is, or is controlled or 50% or more
owned in the aggregate by or is acting on behalf of, one or more
individuals or entities that are currently the subject of any
sanctions administered or enforced by the United States
(collectively, “Sanctions” and such
persons, “Sanctioned
Persons” and each such person, a “Sanctioned Person”) or
(b) has, within the last five (5) years, done the Company’s
business in a country or territory that was, or whose government
was, at such time the subject of Sanctions that broadly prohibit
dealings with that country or territory. Within the past five (5)
years, to the knowledge of the Company, it has neither been the
subject of any governmental investigation or inquiry regarding
compliance with Sanctions nor has it been assessed any fine or
penalty in regard to compliance with Sanctions.
3.14. Money
Laundering. The operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules
and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any
Subsidiary with respect to the Money Laundering Laws is pending or,
to the knowledge of the Company or any Subsidiary,
threatened.
3.15. Accountants.
The Company’s registered public accounting firm is Xxxxxx
PLLP. To the Company’s knowledge, Xxxxxx PLLP are independent
public accountants with respect to the Company within the meaning
of the Securities Act and Exchange Act and the applicable published
rules and regulations thereunder.
3.16. Incorporation
of Other Representations and Warranties. The representations
and warranties of the Company contained in the License Agreement
are incorporated herein by reference and made a part of this
Agreement as if fully set forth herein.
4. Representations and Warranties of the
Investor. The Investor hereby represents and warrants to the
Company that:
4.1. Authorization.
This Agreement has been duly authorized, executed and delivered by
the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
4.2. Purchase
Entirely for Own Account. The Investor is acquiring the
Shares for investment for the Investor’s own account, not as
a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Investor has no present
intention of selling, granting any participation in, or otherwise
distributing the same. The Investor does not presently have any
contract, undertaking, 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.
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4.3. Disclosure
of Information. The Investor has had an opportunity to
discuss the Company’s business, management, financial affairs
and the terms and conditions of the offering of the Shares with the
Company’s management and has had an opportunity to review the
Company’s facilities.The foregoing, however, does not limit
or modify the representations and warranties of the Company in
Section 3 of this Agreement or the
right of the Investor to rely thereon.
4.4. Accredited
Investor. The Investor is an accredited investor as defined
in Rule 501(a) of Regulation D promulgated under the Securities
Act.
4.5. Restricted Securities. The
Investor understands that the Shares have not been, and will not
be, registered under the Securities Act, by reason of a specific
exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the
investment intent and the accuracy of the Investor’s
representations as expressed herein. The Investor understands that
the Shares are “restricted securities”
under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Investor must hold the Shares indefinitely unless they
are registered under the Securities Act and qualified by state
authorities, or an exemption from such registration and
qualification requirements is available. The Investor acknowledges
that the Company has no obligation to register or qualify the
Shares for resale. The Investor further acknowledges that if an
exemption from registration or qualification is available, it may
be conditioned on various requirements including, but not limited
to, the time and manner of sale, the holding period for the Shares,
and on requirements relating to the Company which are outside of
the Investor’s control, and which the Company is under no
obligation and may not be able to satisfy.
4.6. Legends. The Investor
understands that the Shares may bear one or all of the following
legends:
(a) “THE SHARES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.”
(b) Any legend required
by the securities laws of any state to the extent such laws are
applicable to the Shares represented by the certificate,
instrument, or book entry so legended.
5. Resale of Shares.
5.1. Reports
Under Exchange Act. With a view to making available to the
Investor the benefits of Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from
time to time (“Rule
144”), and any other rule or regulation of the
Commission that may at any time permit the Investor to sell
securities of the Company to the public without registration, the
Company shall:
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(a) make and keep
available adequate current public information, as such term is
understood and defined in Rule 144, at all times after the
Effective Date;
(b) use commercially
reasonable efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to the
Investor, so long as the Investor owns any Shares, upon request (i)
to the extent accurate, a written statement by the Company that it
has complied with the reporting requirements of Rule 144, the
Securities Act, and the Exchange Act; (ii) a copy of the most
recent annual or quarterly report of the Company and such other
reports and documents filed by the Company with the Commission; and
(iii) such other information as may be reasonably requested in
availing the Investor of any rule or regulation of the Commission
that permits the selling of any such securities without
registration.
5.2. Removal
of Legends. In connection with any sale or disposition of
the Shares by Investor pursuant to Rule 144 or pursuant to any
other exemption under the Securities Act such that the purchaser
acquires freely tradable shares and upon compliance by Investor
with the requirements of this Agreement, the Company shall cause
the Transfer Agent to issue replacement certificates representing
the Shares sold or disposed of without restrictive legends or
record the Shares sold or disposed of in book-entry form without
such restrictions. Upon the Shares becoming freely tradable by
Investor as a non-affiliate pursuant to Rule 144, the Company shall
deliver to the Transfer Agent irrevocable instructions to remove
restrictive legends or stop-transfer orders with respect to the
Shares.
6. Miscellaneous.
6.1. Entire
Agreement; Amendments; Waivers. This Agreement, together
with the License Agreement, constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof,
and any and all other prior or contemporaneous written or oral
agreements relating to the subject matter hereof existing between
the parties hereto are expressly canceled. This Agreement may not
be amended, modified or waived except by an instrument in writing
signed by each of the parties hereto.
6.2. Successors
and Assigns. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by either party without the
prior written consent of the non-assigning party;provided, however, that
Investor may assign this Agreement without the Company’s
consent to an affiliate of the Investor. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
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6.3. Further
Assurances; Survival. The parties shall execute and deliver
all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions
contemplated hereby and to evidence the fulfillment of the
agreements herein contained. The provisions of this Agreement will
survive termination.
6.4. Notices.
Except as otherwise provided herein, all communications hereunder
shall be in writing and, if to the Investor, shall be mailed via
overnight delivery service or hand delivered to Pfizer Inc., 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Senior Vice
President, Worldwide Business Development (with a copy to Pfizer
Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx
X. Xxxxxxxx);if to the Company, shall be mailed via overnight
delivery service or hand delivered to Celcuity Inc., 00000 00xx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, Attention: Xxxxx X.
Xxxxxxxx, with a copy (which shall not constitute notice) to
Xxxxxxxxxx & Xxxxx, P.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxx;or in each case to
such other address as the person to be notified may have requested
in writing. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice
of a new address for such purpose.
6.5. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by and construed and enforced in accordance with the internal laws
of the State of Delaware, without regard to the principles of
conflicts of law thereof.
6.6. Titles
and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this
Agreement.
6.7. Counterparts.
This Agreement may be executed and delivered by facsimile, by
electronic mail attaching a portable document file (.pdf) or any
electronic signature complying with the U.S. federal ESIGN Act of
2000 (e.g., xxx.xxxxxxxx.xxx). This
Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts
shall each be deemed to be an original and all such counterparts
shall together constitute one and the same instrument.
6.8. Severability.
If any provision of this Agreement should be held invalid, illegal
or unenforceable in any jurisdiction, the parties will negotiate in
good faith a valid, legal and enforceable substitute provision that
most nearly reflects the original intent of the parties and all
other provisions hereof will remain in full force and effect in
such jurisdiction and will be liberally construed in order to carry
out the intentions of the parties hereto as nearly as may be
possible. Such invalidity, illegality or unenforceability will not
affect the validity, legality or enforceability of such provision
in any other jurisdiction.
6.9. No
Strict Construction. The language used in this Agreement is
deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied
against a party.
6.10. Expenses.
The Company and Investor are each liable for, and will pay, their
own expenses incurred in connection with the negotiation,
preparation, execution and delivery of this Agreement, including,
without limitation, attorneys’ and consultants’ fees
and expenses. The Company shall pay any and all transfer, stamp,
issuance and similar taxes, costs and expenses (including, without
limitation, fees and expenses of the transfer agent) that may be
payable with respect to the delivery of the Shares to
Investor.
[Signature page follows]
10
IN
WITNESS WHEREOF, the parties have executed this Equity Grant
Agreement as of the Effective Date.
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THE
COMPANY:
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By:
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/s/ Xxxxx X.
Xxxxxxxx
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Name:
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Xxxxx X.
Xxxxxxxx
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Title:
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Chief Executive
Officer
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INVESTOR:
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PFIZER
INC.
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By:
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/s/ Xxxx
Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Senior Vice
President & Chief Scientific Officr, Pfizer Oncology
R&d
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