Exhibit 4.3
THE COMMON STOCK ISSUABLE PURSUANT TO THIS AGREEMENT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THE
COMMON STOCK ISSUABLE PURSUANT TO THIS AGREEMENT MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT UNDER SUCH ACT AND SUCH LAWS WITH RESPECT TO THE COMMON STOCK ISSUABLE
PURSUANT TO THIS AGREEMENT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
CAVIT SCIENCES, INC.
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made this 25th day of
May 2006 by and between CAVIT SCIENCES, INC., a Florida corporation ("CAVIT" or
the "Company"), and Cortland Fund LLC ("Cortland" or "Investor").
Background
As more fully set forth herein, Investor has agreed to purchase from the
Company shares of Common Stock of the Company ("Common Stock") for a purchase
price not to exceed $32,000.00("Commitment Amount").
Agreement
NOW, THEREFORE, intending to be legally bound hereby, the parties agree as
follows:
1. Commitment. Subject to the terms and conditions hereof, Investor agrees
to purchase from CAVIT shares of Common Stock at a purchase price of $.08 per
share ("Commitment Purchase Amount")not to exceed the Commitment Amount.
2. Share Issuance. Upon the payment of the Commitment Purchase Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to Investor and in the name of Investor, a certificate or certificates
for the number of shares of Common Stock so purchased. Such certificate or
certificates shall be deemed to have been issued and Investor shall be deemed to
have become a holder of record of such Common Stock on and as of the date of the
delivery to the Company of and payment of the Commitment Purchase Price as
aforesaid. If, however, at the date of payment of such Commitment Purchase
Price, the transfer books for the Common Stock shall be closed, the certificates
for the Common Stock shall be issued and Investor shall become a record owner of
such Common Stock on and as of the next date on which such books shall be
opened, and until such date the Company shall be under no duty to deliver any
certificate for such Common Stock.
3. Representations by Investor. Investor represents and warrants to the
Company as follows:
a) Investor has relied only upon the information presented and contained in
the Term Sheet provided by the Company ("Offering Materials"). Investor has
had the opportunity to ask of the person or persons acting on behalf of the
Company any and all relevant questions in connection with any aspect of the
Company including, but not limited to, the Common Stock offered by the
Offering Materials and has received answers which Investor considers to be
reasonably responsive to such questions. Investor has had the opportunity
to verify the accuracy of the information contained in the Offering
Materials.
(b) Investor understands that Investor is subscribing for the Common Stock
without being furnished any literature or prospectus in connection with the
Offering other than the Offering Materials, and that the Offering of the
Common Stock presented in the Offering Materials will not have been
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scrutinized by the Securities and Exchange Commission or by the securities
administrator or similar bureau, agency, or department of the state of
Investor's' residence.
(c) Investor understands (i) that the Common Stock has not been registered
under the Securities Act of 1933, as amended ("Act"), or registered or
qualified under the securities laws of the state of Investor's' residence,
(ii) Investor has no right to require such registration or qualification,
and (iii) that, therefore Investor must bear the economic risk of the
investment for an indefinite period of time because the Common Stock may
not be sold unless so registered or qualified or unless an exemption from
such registration and qualification is available.
(d) The Common Stock is being purchased for Investor's own account for
investment purposes only and not for the interest of any other person and
is not being purchased with a view to or for the resale, distribution,
subdivision or fractionalization thereof. Investor understands that there
is not currently, and may not be at any future date, any established public
trading market for the sale of such securities.
(e) Investor is able to bear the economic risks related to purchase of the
Common Stock for an indefinite period of time (i.e., Investor is able to
afford a complete loss of the Common Stock Investor is subscribing to
purchase). Investor's net worth and assets are sufficient to enable
Investor to purchase shares of Common Stock from Cavit in the amount of the
Commitment Amount pursuant to this Agreement.
(f) Investor's overall commitment to investments which are not readily
marketable is not disproportionate to Investor's net worth and Investor's
investment in the Company will not cause such overall commitment to become
excessive.
(g) Investor has adequate means of providing for Investor's current needs
and possible personal contingencies. Investor has no need for liquidity of
the Common Stock subscribed to be purchased hereby and has no reason to
anticipate any change in Investor's personal circumstances, financial or
otherwise, which might cause or require any sale or distribution of such
Common Stock subscribed to be purchased.
(h) Investor recognizes that the purchase of the Common Stock involves a
high degree of risk including those special risks.
(i) Investor understands that Investor's right to transfer the Common Stock
will be restricted as set forth on the certificate evidencing the Common
Stock. Such restrictions include provisions against transfer unless such
transfer is not in violation of the Act, or applicable state securities
laws (including investor suitability standards).
(j) All information which Investor has provided to the Company including,
but not limited to, financial position, and status as an accredited
investor, and knowledge of financial and business matters is true, correct
and complete as of the date of execution of this Agreement. Investor
understands that the Company will rely in a material degree upon the
representations contained herein.
(k) Investor understands that a legend may be placed on any stock
certificate representing the Common Stock substantially to the following
effect:
On the front side:
"Transfer of the shares represented by this certificate is restricted - see
reverse side."
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On the reverse side:
"The shares represented by this certificate have been issued to the
registered owner in reliance upon written representations that these shares
have been taken for investment. These shares have not been registered under
the Securities Act of 1933, as amended ("Act"), and may not be sold,
transferred or assigned unless an opinion of counsel satisfactory to the
company has been received by the company to the effect that such sale,
transfer or assignment will not be in violation of the Act and the rules
and regulations promulgated there under or applicable state securities
laws."
(l) Investor is an "accredited investor" as defined in Rule 501 promulgated
under the Act because Investor's individual net worth (or Investor's joint net
worth with his spouse) on the date hereof exceeds $1,000,000.
4. Anti-Dilution; Right of First Refusal. Subject and pursuant to the
provisions of this Section 4:
a. The Company agrees to protect Investor against dilution of Investor's
ownership percentage of the Company's common stock in the event the Company
issues for purposes other than raising capital, in which event the Company
shall issue to the Investor such additional shares of Common Stock as shall
be necessary to maintain Investor's percentage ownership in the Company.
b. In the event the Company decides to offer additional share of Common
Stock for sale in the future, the Investor shall have a right of first
refusal to purchase Investor's pro rate portion of such shares on the
identical terms and conditions as in such offer.
5. Securities Laws. As a condition to the issuance of any Common Stock
pursuant this Agreement, Investor shall execute and deliver such
representations, warranties, and covenants, that may be required by applicable
federal and state securities law, or that the Company determines is reasonably
necessary in connection with the issuance of such Common Stock. In addition, the
certificates representing the Common Stock shall contain such legends, or
restrictive legends, or stop transfer instructions, as shall be required by
applicable Federal or state securities laws, or as shall be reasonably required
by the Company or its transfer agent. The Investor has completed and delivered a
Subscriber Questionnaire, which is attached hereto as Exhibit "A," and
incorporated herein by reference.
6. Binding Effect. This Agreement shall be binding upon the party's
respective heirs, personal representatives, successors and assigns; provided,
however, that this Agreement shall not be assignable by Investor, in whole or in
part, without the prior consent of the Company.
7. Applicable Law. This Agreement shall be deemed to be a contract made
under the laws of the State of Florida and for all purposes shall be construed
in accordance with the laws thereof regardless of its choice of law rules.
8. Brokers and Finders. Cavit and Investor hereby represent to each other
that no broker or finder has been employed or engaged by either of them in
connection with the transactions contemplated in this Agreement and that all
negotiations relative to this Agreement have been carried on directly between
the parties hereto without the intervention of any other person.
9. Survival of Representations and Warranties, and Remedies. All
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement.
10. Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties hereto with respect to the transactions
contemplated herein, supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties, and there have been no warranties, representations or promises, written
or oral, made by any of the parties hereto except as herein expressly set forth
herein.
11. Waiver, Modification, etc. Any party to this Agreement may waive any of
the terms or conditions of this Agreement or agree to an amendment or
modification to this Agreement by an agreement in writing executed in the same
manner (but not necessarily by the same persons) as this Agreement. No amendment
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or modification of this Agreement shall be binding unless in writing executed by
all of the parties to this Agreement. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall any waiver constitute a continuing
waiver unless otherwise expressly provided.
12. Notice. Any notice or other communications required or permitted
hereunder shall be sufficiently given: (i) three (3) business days after if sent
by certified mail, return receipt requested, postage prepaid, or (ii) one (1)
business day after sent by Federal Express or other overnight courier providing
delivery confirmation for next business day delivery, or (ii) when delivered by
personal delivery, telecopier, or e-mail, in any event delivered to or addressed
as follows:
If to Investor:
Cortland Fund LLC
00000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
If to Cavit:
Cavit Sciences, Inc.
000 X. Xxxxxx Xxxx., Xxxxx 000X
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx, President
13. Counterparts. This Agreement may be signed in two or more counterparts
which counterparts shall constitute a single, integrated agreement binding upon
all the signatories to such counterparts. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of a
manually executed counterpart of this Agreement.
14. Expenses. Except as specifically provided otherwise herein, each party
hereto shall pay its or his own expenses arising from this Agreement and the
transactions contemplated hereby, including, without limitation, all legal and
accounting fees and disbursements; provided, however, that nothing herein shall
limit or otherwise modify any right of the parties to recover such expenses
(including legal fees and costs of litigation) from the other in the event any
party hereto breaches this Agreement.
15. Further Assurances. Each of the parties hereto shall hereafter execute
and deliver such further documents and instruments and do such further acts and
things as may be required or useful to carry out the intent and purpose of this
Agreement and as are not inconsistent with the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Common Stock Purchase Agreement on the date first written above.
Investor:
CAVIT SCIENCES, INC.
Cortland Fund LLC
/s/ Xxxxxxxxxxx Xxxxx By: /s/ Xxxx Xxxx
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Xxxxxxxxxxx Xxxxx Xxxx Xxxx,
Chief Executive Officer
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