STOCK PURCHASE AND SALE AGREEMENT CONCERNING SHARES OF CANCER THERAPEUTICS, INC. a Delaware corporation AND CANCER THERAPEUTICS, INC. a Utah corporation BETWEEN DR. ROBERT OLDHAM AND CANCER THERAPEUTICS, INC. a Delaware corporation July___, 2007
CONCERNING
SHARES OF
CANCER
THERAPEUTICS, INC.
a
Delaware corporation
AND
CANCER
THERAPEUTICS, INC.
a
Utah
corporation
BETWEEN
XX.
XXXXXX XXXXXX
AND
CANCER
THERAPEUTICS, INC.
a
Delaware corporation
July___,
2007
This
Stock Purchase and Sale Agreement
(this “Agreement”) is entered into as of the ___t day of
July 2007,
by and between Cancer Therapeutics, Inc., a Delaware corporation (“CTI”), and
Xx. Xxxxxx Xxxxxx, an individual (“Xx.
Xxxxxx”). CTI and Xx. Xxxxxx are referred to collectively herein
as the “Parties.”
Xx.
Xxxxxx holds a certain number of
shares of capital stock of CTI.
This
Agreement contemplates a
transaction in which CTI will redeem from Xx. Xxxxxx, and Xx. Xxxxxx will tender
to CTI, 28,211 shares of common stock of CTI held by Xx. Xxxxxx (“CTI
Shares”). In exchange for the CTI Shares, Xx. Xxxxxx
will accept from CTI, and CTI will transfer to Xx. Xxxxxx, 100 shares of common
stock of Cancer Therapeutics, Inc, a Utah corporation. (“CTI Utah
Shares”).
Now,
therefore, in consideration of the
premises and the mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the Parties agree
as follows.
1. Definitions.
“Adverse
Consequences” means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, damages, dues, penalties, fines, costs, amounts paid in
settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and fees,
including court costs and reasonable attorneys’ fees and expenses.
“Closing”
has the meaning set forth in §2(c) below.
“Confidential
Information” means any information concerning the transactions referred to
herein and the businesses and affairs of CTI that is not already generally
available to the public.
“Liability”
means
any
liability or obligation of whatever kind or nature (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
“Lien”
means
any mortgage,
pledge, lien, encumbrance, charge, or other security interest.
“Person”
means
an individual,
a partnership, a corporation, a limited liability company, an association,
a
joint stock company, a trust, a joint venture, an unincorporated organization,
any other business entity, or a governmental entity (or any department, agency,
or political subdivision thereof).
“Securities
Act” means the
Securities Act of 1933, as amended.
“Tax”
or
“Taxes”
means any federal, state, local, or foreign income, gross receipts, license,
excise, severance, stamp, occupation, premium, windfall profits, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any kind whatsoever,
including any interest, penalty, or addition thereto.
2. Purchase
and Sale of Shares. On and subject to the terms and conditions
of this Agreement, Xx. Xxxxxx hereby redeems the CTI Shares in exchange for
the
CTI Utah Shares, and CTI hereby accepts said redemption from Xx. Xxxxxx and
in
exchange delivers to Xx. Xxxxxx the CTI Utah
3. Shares. Within
thirty (30) days following the closing of the transactions contemplated herein
(“Closing”), CTI will deliver to Xx. Xxxxxx a certificate in the name of Xxxxxx
X. Xxxxxx representing the CTI Utah Shares, and Xx. Xxxxxx will deliver to
CTI
the redeemed CTI Shares.
4. Representations
and Warranties Concerning Transaction.
(a) Xx.
Xxxxxx’x Representations and Warranties. Xx. Xxxxxx represents
and warrants to CTI that the statements contained in this §3(a) are correct and
complete as of the date of this Agreement.
(i) Ownership. Xx.
Xxxxxx owns the CTI Shares.
(ii) Non-contravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) conflict with, result in a breach
of,
constitute a default under, result in the acceleration of , create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Xx. Xxxxxx is a party or by which it is bound or to which any of its
assets is subject, or (B) result in the imposition or creation of a Lien upon
or
with respect to the CTI Shares.
(iii) Brokers’
Fees. Xx. Xxxxxx has no Liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
(iv) Investment. Xx.
Xxxxxx (A) understands that the CTI Utah Shares have not been, and will not
be,
registered under the Securities Act, or under any state securities laws, and
are
being offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, (B) is acquiring the CTI Utah
Shares solely for his own account for investment purposes, and not with a view
to the distribution thereof, (C) has received certain information concerning
CTI
Utah and has had the opportunity to obtain additional information as desired
in
order to evaluate the merits and the risks inherent in holding the CTI Utah
Shares, (D) is able to bear the economic risk and lack of liquidity inherent
in
holding the CTI Utah Shares, and (E) is an Accredited Investor.
(v) CTI
Shares. Xx. Xxxxxx holds of record and owns beneficially the CTI
Shares free and clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state securities laws), Taxes, Liens,
options, warrants, purchase rights, contracts, commitments, equities, claims,
and demands. Xx. Xxxxxx is not a party to any option, warrant,
purchase right, or other contract or commitment that could require Xx. Xxxxxx
to
sell, transfer, or otherwise dispose of the CTI Shares (other than this
Agreement). Xx. Xxxxxx is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of the CTI
Shares.
(b) CTI’s
Representations and Warranties. CTI represents and warrants to
Xx. Xxxxxx that the statements contained in this §3(b) are correct and complete
as of the date of this Agreement and will be correct and complete as of the
Closing Date.
(i) Organization
of CTI. CTI is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation.
(ii) Authorization
of Transaction. CTI has full power and authority (including full
corporate or other entity power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of CTI, enforceable in
accordance with its terms and conditions. CTI need not give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement. The execution, delivery,
and performance of this Agreement and all other agreements contemplated hereby
have been duly authorized by CTI.
(iii) Non-contravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which CTI is
subject or any provision of its charter, bylaws, or other governing documents
or
(B) conflict with, result in a breach of, constitute a default under, result
in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which CTI is a party or by which
it
is bound or to which any of its assets is subject.
(iv) Brokers’
Fees. CTI has no Liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which Xx. Xxxxxx could become liable or
obligated.
5. Representations
and Warranties Concerning CTI.
(a) Organization,
Qualification, and Corporate Power. CTI is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of
its
incorporation. CTI is duly authorized to conduct business and is in
good standing under the laws of each jurisdiction where such qualification
is
required. CTI has full corporate power and authority and all
licenses, permits, and authorizations necessary to carry on the businesses
in
which it is engaged and to own and use the properties owned and used by
it. CTI is not in default under or in violation of any provision of
its memorandum and articles.
(b) Non-contravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which CTI is
subject or any provision of its memorandum and articles or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which CTI is a party or by which it is bound or to
which
any of its assets is subject (or result in the imposition of any Lien upon
any
of its assets). CTI does not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement.
(c) Brokers’
Fees. CTI has no Liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
(d) Title
to Assets. CTI has good and marketable title to, or a vlid
leasehold interest in, the properties and assets used by it in the operation
of
its business.
6. Post-Closing
Covenants. The Parties agree as follows with respect to the
period following the Closing.
(a) General. In
case at any time after the Closing any further action is necessary to carry
out
the purposes of this Agreement, each of the Parties will take such further
action (including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request, all at the sole cost
and
expense of the requesting Party.
(b) Confidentiality. The
Parties will treat and hold as such all of the Confidential Information, refrain
from using any of the Confidential Information except in connection with this
Agreement, and deliver promptly to the other party or destroy, at the request
and option of the other party, all tangible embodiments (and all copies) of
the
Confidential Information which are in its possession.
(c) CTI
Utah Shares. The certificate representing the CTI Utah Shares
shall be imprinted with a legend substantially in the following
form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE
TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE
SECURITIES ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE AND
SATISFACTORY TO THE ISSUER OF THE SECURITIES, SUCH OFFER, SLAE, TRANSFER,
PLEDGE, OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
Xx.
Xxxxxx, if desiring to transfer the CTI Utah shares must furnish CTI Utah with
(i) a written opinion satisfactory to CTI Utah in form and substance from
counsel satisfactory to CTI Utah by reason of experience to the effect that
the
holder may transfer the CTI Utah Shares as desired without registration under
the Securities Act.
7. Miscellaneous.
(a) No
Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(b) Entire
Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter
hereof.
(c) Succession
and Assignment. This Agreement shall be binding upon and inure
to the benefit of the Parties named herein and their respective successors
and
permitted assigns. No Party may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of CTI and Xx. Xxxxxx; provided, however, that either Party
may (i) assign any or all of its rights and interests hereunder to one or more
of its affiliates.
(d) Counterparts. This
Agreement may be executed in one or more counterparts (including by means of
facsimile), each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
(e) Headings. The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(f) Notices. All
notices, requests, demands, claims, and other communications hereunder will
be
in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given (i) when delivered personally
to the recipient, (ii) three business day after being sent to the recipient
by
reputable overnight courier service (charges prepaid), (iii) one business day
after being sent to the recipient by facsimile transmission or electronic mail,
or (iv) seven business days after being mailed to the recipient by certified
or
registered mail, return receipt requested and postage prepaid, and addressed
to
the intended recipient as set forth below:
|
If
to Xx. Xxxxxx:
|
If
to CTI:
|
|
00000
Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
|
|
|
Xxxxx
Xxxxxx, Xxxx 00000
|
|
|
Telefax
|
Telefax
x0 000 000 0000
|
Any
Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Utah without giving effect
to
any choice or conflict of law provision or rule.
(h) Amendments
and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by CTI and Xx.
Xxxxxx. No waiver by any Party of any provision of this Agreement or
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be valid unless the same shall be in writing
and signed by the Party making such waiver nor shall such waiver be deemed
to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such default, misrepresentation, or breach of
warranty or covenant.
(i) Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction.
(j) Expenses. Each
of CTI, Xx. Xxxxxx, and CTI Utah will bear its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
(k) Specific
Performance. Each Party acknowledges and agrees that the other
Parties would be damaged irreparably in the event any provision of this
Agreement is not performed in accordance with its specific terms or otherwise
is
breached, so that a Party shall be entitled to injunctive relief to prevent
breaches of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in addition to any other remedy to which such Party
may be entitled, at law or in equity.
(l) Submission
to Jurisdiction. Each of the Parties submits to the jurisdiction
of any state or federal court sitting in Salt Lake County, State of Utah, in
any
action or proceeding arising out of
or
relating to this Agreement and agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court. Each of
the Parties waives any defense of inconvenient forum to the maintenance of
any
action or proceeding so brought and waives any bond, surety, or other security
that might be required of any other Party with respect thereto.
*****
IN
WITNESS
WHEREOF, the Parties hereto have executed this Agreement as of the date first
above written.
Cancer
Therapeutics,
Inc. Xx.
Xxxxxx Xxxxxx
By:
____________________________________ ___________________________________
Xxxxx
Xxxxxxx
Director
