EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made this 28th day of October, 1996, by and between ACUTE
THERAPEUTICS, INC., a Delaware corporation (the "Company"), and The Scripps
Research Institute ("Purchaser").
WHEREAS, Purchaser desires to purchase shares of Common Stock of the
Company, par value $0.001 per share;
WHEREAS, Discovery Laboratories, Inc. is a party to a Letter of Intent,
dated October 18, 1996 (the "Letter of Intent"), in which Discovery has proposed
to purchase shares of Series A Preferred Stock for a purchase price of
$7,500,000;
WHEREAS, Purchaser is granting consent to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("J&J") to
enter into a licensing agreement (the "License Agreement") with the Company
pursuant to which J&J will provide Company with an exclusive worldwide license
to the KL4-Technology (the "License"); and
WHEREAS, Purchaser desires to transfer 5,000 shares of Common Stock of the
Company to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and 5,000 shares of Common Stock of the Company
to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. Purchase of Shares. Subject to the terms hereof, in consideration for
Purchaser's consent to the License Agreement, the Company, subject to Section 3
and Section 4 hereof, agrees to sell and issue to purchaser 40,000 shares of
common stock of the Company (the "Shares").
2. Issuance of Shares. Upon grant of the License by J&J to Company, the
Company shall issue a duly executed certificate evidencing the Shares in the
name of Purchaser.
3. Registration Rights Agreement. Purchaser shall be granted certain
registration rights pursuant to the Registration Rights Agreement attached
hereto as Exhibit A.
4. "Market Stand-Off" Agreement. Purchaser hereby agrees that, during the
period specified by the Company and the underwriter or underwriters of common
stock
(or other securities) of the Company, following the effective date of a
registration statement of the Company filed under the Securities Act of 1933, as
amended (the "Act"), Purchaser shall not, to the extent requested by the Company
and such underwriter but in any case for a period not to exceed 180 days,
directly or indirectly, sell, offer or contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company at any time during such period except common stock
included in such registration, provided, however, that (a) such agreement shall
be applicable only to the first such registration statement of the Company which
covers common stock (or other securities) to be sold on its behalf to the public
in an underwritten offering and (b) all other shareholders of the Company
holding securities of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to common stock held by Purchaser
until the end of such period.
5. Representations and Warranties of Purchaser.
a. Investment Intent. This Agreement is made with Purchaser in
reliance upon its representation to the Company, which by acceptance hereof
Purchaser confirms, that the Shares have been acquired with Purchaser's own
funds for investment for its account, not as a nominee or agent, and not with a
view to the sale or distribution of any part thereof, and that Purchaser has no
present intention of selling, granting participation in, or otherwise
distributing the same, except for the transfer of shares pursuant to those
certain Stock Transfer Agreements, between Purchaser and each of ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, each dated on the date hereof attached hereto as
Exhibit B. By executing this Agreement, Purchaser further represents, except as
described above in this Section 5(a), that it does not have any contract,
undertaking, agreement or arrangement with any person or entity to sell,
transfer, or grant participation, to such person or entity or to any third
person or entity, with respect to any of the Shares.
b. Restricted Securities. Purchaser understands that the Shares have
not been registered under the Act, on the ground that the sale provided for in
this Agreement is exempt from the registration requirements of the Act, and that
the Company's reliance on such exemption is predicated on Purchaser's
representations set forth herein.
Purchaser understands that if the Company does not register with the
Securities and Exchange Commission pursuant to sections 12 or 15 of the
Securities Exchange Act of 1934 or if a registration statement covering the
Shares (or a filing pursuant to the exemption from registration under Regulation
A of the Act) under the Act is not in effect when he or she desires to sell the
Shares, Purchaser may be required to hold the Shares for an indeterminate
period. Purchaser also acknowledges that it understands that any sale of the
Securities that might be made by Purchaser in reliance upon Rule 144 under the
Act may be made only in limited amounts in accordance with the terms and
conditions of that rule and that Purchaser may not be able to sell the Shares at
the time or in the amount Purchaser so desires. Purchaser is familiar with Rule
144 and understands that the Shares constitute "restricted securities" within
the meaning of that Rule.
c. Investment Experience. In connection with the investment representations
made herein Purchaser represents that it is able to fend for itself in 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 his or her investment, has the ability to bear the economic risks of
its investment and has been furnished with and has had access to such
information as Purchaser has requested and deems appropriate to its investment
decision.
d. Limitations on Disposition. Purchaser agrees that in no event will it
make a disposition of any of the Shares, unless and until (a) Purchaser shall
have notified the Company of the proposed disposition and shall have furnished
the Company with a statement of the circumstances surrounding the proposed
disposition, and (b) Purchaser shall have furnished the Company with an opinion
of counsel reasonably satisfactory to the Company to the effect that (i) such
disposition will not require registration of such Shares under the Act, or (ii)
that appropriate action necessary for compliance with the Act has been taken, or
(c) the Company shall have waived, expressly and in writing, its rights under
clauses (a) and (b) of this subparagraph. In addition, prior to any disposition
of any of the Shares, the Company may require the transferee or assignee to
provide in writing investment representations and its agreement to the market
stand-off provisions hereof in a form acceptable to the Company. The
restrictions on disposition imposed by this Section 5(d) shall cease and
terminate as to the Shares when: (i) such securities shall have been effectively
registered under the Act and sold by the holder thereof in accordance with such
registration, or (ii) an opinion of the kind described in the second preceding
sentence states that all future transfers of such securities by the holder
thereof would be exempt from registration under the ▇▇▇▇ ▇▇▇.
The Company shall not be required (i) to transfer on its books any Shares
of the Company which shall have been sold or transferred in violation of any of
the provisions set forth in 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 transferred. Purchaser shall,
during the term of this Agreement, exercise all rights and privileges of a
shareholder of the Company with respect to the Shares after the issuance, and
prior to the repurchase, thereof.
e. Legends. All certificates representing any Shares of the Company subject
to the provisions of this Agreement shall have endorsed thereon the following
legends (except that such certificates shall not be required to bear such legend
after a transfer thereof if the transfer was made in compliance with Rule 144 or
pursuant to a registration statement or, if the opinion of counsel referred to
above is issued and provides that such legend is not required in order to
establish compliance with any provisions of the 1933 Act):
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN STOCK PURCHASE AGREEMENT WHICH INCLUDES A
REGISTRATION RIGHTS AGREEMENT MARKET STAND-OFF AGREEMENT ON THE SALE OF THE
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SECURITIES. COPIES OF THE AGREEMENTS MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION.
(ii) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER
THE SECURITIES ACT OF 1933, OR PURSUANT TO RULE 144 UNDER THE ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT."
(iii) Any legend required to be placed thereon by applicable state
laws.
6. Miscellaneous.
a. Further Instruments and Actions. 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.
b. Notices. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to the other party hereto at his or her
address hereinafter shown below his or her signature or at such other address as
such party may designate by ten (10) days' advance written notice to the other
party hereto.
c. Governing Law, Assignment and Enforcement. This Agreement is
governed by the internal law of New York and shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Purchaser, his or her heirs,
executors, administrators, guardians, successors and assigns.
d. Amendments and Waivers. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous understandings, written or oral. This Agreement may only
be amended with the written consent of the parties hereto and the Company's
assignees pursuant to subsection 4(c) and Section 5 hereof, or the successors or
assigns of the foregoing, and no oral waiver or amendment shall be effective
under any circumstances whatsoever.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ACUTE THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D.
President
Purchaser:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________
(Signature) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE SCRIPPS RESEARCH INSTITUTE
Address: _______________________________
_______________________________
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