EXHIBIT 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 25th day of January, 1995,
between AutoImmune Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), and the purchasers whose names and addresses are set
forth on Exhibit A hereto (the "Purchasers").
Background
The Company has authorized the issuance and sale to the
Purchasers of shares (the "Shares") of the Company's common stock, $.01 par
value per share, and each Purchaser desires to purchase Shares, pursuant to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants, agreements, representations and warranties contained
herein, the parties hereto agree as follows:
1. Agreement to Sell and Purchase the Shares. At the Closing
---------------------------------------------
(as defined in Section 3), upon the terms and conditions contained herein, the
Company hereby sells to the Purchasers, and each Purchaser severally and not
jointly hereby purchases from the Company, for the aggregate purchase price (the
"Aggregate Purchase Price") set forth opposite such Purchaser's name on Exhibit
A hereto, the number of Shares that are purchased with such Purchaser's
Aggregate Purchase Price at the Per Share Purchase Price set forth in Section 2
below.
2. Per Share Purchase Price. The purchase price for each Share
----------------------------
purchased under this Agreement shall be four dollars and fifty cents ($4.50)
(the "Per Share Purchase Price").
3. Closing.
------------
3.1 The completion of the purchase and sale of the Shares (the
"Closing") shall occur at the offices of Messrs. Xxxxxx, XxXxxxxxx & Fish, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, at 10:00 a.m., local time, on
January 25, 1995 simultaneously with the execution and delivery of this
Agreement. The date on which the Closing occurs is referred to herein as the
"Closing Date".
3.2 Promptly following the Closing, the Company shall deliver
to each Purchaser stock certificates in such denominations and in such name(s)
as the individual Purchasers shall have designated, representing the number of
Shares to be purchased by the Purchaser pursuant to Section 1 hereof, against
receipt by the Company or its designee of wire transfers in United States
dollars of immediately available funds in the amounts of the Aggregate Purchase
Price due from each Purchaser as set forth on Exhibit A hereto. At the Closing,
the Company shall have delivered to the Purchasers an opinion of Messrs. Xxxxxx,
XxXxxxxxx & Fish substantially to the effect of Sections 4.1, 4.2 and 4.4 and
covering the additional matters set forth on Exhibit B hereto.
4. Representations and Warranties of the Company. The Company
-------------------------------------------------
hereby represents and warrants to each Purchaser as follows:
4.1 Organization 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
conduct its business as currently conducted and to enter into this Agreement and
to carry out the transactions contemplated hereby.
4.2 Authorized Capital Stock. The authorized capital stock of
-----------------------------
the Company consists of (a) 5,000,000 shares of preferred stock, $.01 par value
per share, of which no shares are issued and outstanding; and (b) 25,000,000
shares of common stock, $.01 par value per share ("Common Stock"), 10,209,184 of
which are duly and validly issued and outstanding and fully paid and
non-assessable. Immediately before the Closing, the only instruments binding on
the Company granting any person any right to acquire shares of Common Stock from
the Company were outstanding warrants to acquire 30,000 shares of Common Stock
and options granted under the Company's stock option plans. There are no
outstanding preemptive rights granted by the Company to acquire shares of its
capital stock.
4.3 Due Execution, Delivery and Performance. The execution,
--------------------------------------------
delivery and performance of this Agreement and the issuance and sale of the
Shares hereunder (a) have been duly authorized by all necessary corporate action
on the part of the Company, and (b) will not violate any law or the Certificate
of Incorporation or By-laws of the Company or any provision of any indenture,
mortgage, agreement, contract or other instrument to which the Company is a
party or by which the Company or any of its properties or assets is bound, or
result in a breach of or constitute (upon notice or lapse of time or both) a
default under any such indenture, mortgage, agreement, contract or other
material instrument or result in the creation or imposition of any lien,
security interest, mortgage, pledge, charge or other encumbrance, of any
material nature whatsoever, upon any properties or assets of the Company or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company is a party or by which it is bound
or to which any of the property or assets of the Company is subject, or conflict
with, or result in a violation of, any law, administrative regulation, ordinance
or order of any court or governmental agency, arbitration panel or authority
applicable to the Company. No consent, approval, authorization or other order of
any regulatory body, administrative agency, or other governmental body in the
United States is required for the valid issuance and sale of the Shares to be
sold pursuant to this Agreement. This Agreement constitutes the valid and
binding obligation of the Company and is enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as enforceability of the indemnification agreements of the Company in
Section 7.3 hereof may in the opinion of a court of competent jurisdiction be
limited by principles of public policy.
4.4 Issuance, Sale and Delivery. When issued and paid for in
--------------------------------
accordance with the terms hereof, the Shares will be validly issued and
outstanding, fully paid and non-assessable.
4.5 Reports and Financial Statements. The Company has
-------------------------------------
delivered to Purchasers true, accurate and complete copies of the Company's
Annual Report on Form 10-K for the period ended December 31,1993 and the
Company's Quarterly Reports on Form 10-Q for the periods ended March 31, June 30
and September 30, 1994 (collectively, the "Reports"). On their respective dates
of filing, the Reports complied as to form in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the published rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated thereunder. On their respective dates
of filing, the Reports did not include any untrue statement of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading. All
financial statements contained in the Reports fairly present the financial
position of the Company on the dates of such statements and the results of its
operations for the periods covered thereby in accordance with generally accepted
accounting principles consistently applied throughout the periods involved and
prior periods, except as otherwise indicated in the notes to such financial
statements and except that the financial statements included in the Company's
Quarterly Reports on Form 10-Q do not contain the full disclosure in the notes
thereto required by generally accepted accounting principles. Since December 31,
1993 the Company has neither filed nor been required to file with the Commission
a Current Report on Form 8-K.
4.6 No Material Change. Except that the Company has continued
-----------------------
to lose money, there has been no material adverse change in the condition,
financial or otherwise of the Company, or in the assets, liabilities or
properties of the Company, since September 30, 1994.
4.7 Legal Proceedings. There is no material legal or
----------------------
governmental proceeding pending or, to the knowledge of the Company, threatened
to which the Company is or may be a party or of which the business or property
of the Company is or may be subject.
4.8 Governmental Permits, Etc. The Company possesses all
------------------------------
licenses, franchises, governmental approvals, permits or other authorizations
relating to the operation of the business and properties of the Company as
described in the Reports and which the failure to possess would, separately or
in the aggregate, have a material adverse effect on the value or use of the
properties of the Company or the operation of the business of the Company. The
Company is in compliance with the terms of all such licenses, franchises,
governmental approvals, permits or other authorizations and all laws,
ordinances, regulations, and decrees applicable to such properties or business,
except for such non-compliance which does not, separately or in the aggregate,
have a material adverse effect on the value or use of the properties of the
Company or the operation of the business of the Company.
5. Representations, Warranties and Covenants of the
---------------------------------------------------
Purchasers.
-----------
5.1 Each Purchaser severally represents and warrants to, and
covenants with, the Company that: (i) the Purchaser is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in shares presenting an investment decision like
that involved in the purchase of the Shares, including investments in securities
issued by the Company, and has requested, received, reviewed and considered all
information it deems relevant in making an informed decision to purchase the
Shares, (ii) the Purchaser is acquiring the number of Shares set forth on
Exhibit A hereto for investment and with no present intention of distributing
any of such Shares and with the understanding that the certificate representing
the Shares shall bear a legend to the effect that any disposition thereof must
be registered under the Securities Act of 1933, as amended (the "Securities
Act"), or be exempt from such registration (this representation and warranty not
limiting the Purchaser's right to sell pursuant to the Registration Statement to
be filed by the Company pursuant to Section 7.1 hereof (the "Registration
Statement") or to have the restrictive legend removed pursuant to Section 7.1(f)
or be indemnified pursuant to Section 7.3); and (iii) the Purchaser has
completed or caused to be completed the Registration Statement Questionnaire
attached hereto in Exhibit C hereto, for use in preparation of the Registration
Statement and the answers thereto are true and correct to the best knowledge of
the Purchaser as of the date hereof.
5.2 Each Purchaser hereby severally covenants with the Company
not to make any sale of the Shares without effectively causing the prospectus
delivery requirements under the Securities Act to be satisfied and to promptly
advise the Company of any changes in the information concerning the Purchasers
contained in the aforesaid Registration Statement Questionnaire. Each Purchaser
acknowledges that occasionally there may be times when the Company must suspend
the use of the prospectus forming a part of the Registration Statement until
such time as an amendment to the Registration Statement has been filed by the
Company and declared effective by the Commission, or until such time as the
Company has filed an appropriate report with the Commission pursuant to the
Exchange Act. Each Purchaser hereby covenants that it will not sell any Shares
pursuant to any such prospectus during the period commencing at the time at
which the Company gives the Purchaser notice of the suspension of the use of
said prospectus and ending at the time the Company gives the Purchaser notice
that the Purchaser may thereafter effect sales pursuant to said prospectus.
5.3 Each Purchaser further severally covenants that if
required by the Company and an underwriter of Common Stock or other securities
of the Company convertible into Common Stock to be sold by the Company as
necessary in the underwriter's opinion to effect an orderly distribution of the
securities being registered, it shall agree not to sell or otherwise transfer,
or dispose of, any Shares held by such Purchaser for a specified period of time
(not to exceed 90 days) following the effective date of a registration statement
filed by the Company under the Securities Act covering the offer and sale of
Common Stock or such other securities by the Company. Such agreement shall be in
writing in a form reasonably satisfactory to the Company and such underwriter.
The Company may impose stop-transfer instructions with respect to Shares subject
to the foregoing restrictions until the end of the lock-up period.
5.4 Each purchaser further severally represents and warrants
to, and covenants with, the Company that (i) the Purchaser has full right,
power, authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute the
valid and binding obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the enforceability of the indemnification agreements of the
Purchasers in Section 7.3 hereof may be limited by principles of public policy.
6. Survival of Representations, Warranties and Agreements.
----------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein shall survive the execution of this Agreement, the
delivery to Purchasers of certificates representing the Shares being purchased
and the payment therefor.
7. Registration of the Shares; Compliance with the Securities
-------------------------------------------------------------
Act.
----
7.1 Registration Procedures and Expenses. The Company shall:
-----------------------------------------
(a) promptly following the Closing Date, file with
the Commission the Registration Statement on Form S-3 for the sale of
the Shares by the Purchasers from time to time on NASDAQ or in
privately-negotiated transactions;
(b) use its best efforts, subject to receipt of
necessary information from the Purchasers, to cause the Registration
Statement to become effective after it has been filed with the
Commission (the Registration Statement, at the time it becomes
effective, shall comply as to form in all material respects with the
applicable requirements of the Securities Act and the General Rules and
Regulations of the Commission, and at such time neither the
Registration Statement nor the prospectus included therein shall
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading; provided, however, that the Company makes no
representations or warranties as to any statement made in the
Registration Statement or the prospectus included therein in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Purchaser, specifically for use in
connection with the preparation of the Registration Statement and such
prospectus);
(c) prepare and file with the Commission with all
reasonable speed under the circumstances such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith and such reports as may be required to be filed
pursuant to the Exchange Act to keep the Registration Statement
effective until all the Shares have been sold pursuant thereto;
provided, however, that the Company may postpone the filing of any such
amendment, supplement or report for a reasonable period of time, not to
exceed ninety days, if the Company has been advised by legal counsel
that such filing would require the disclosure of a material transaction
or other matter and the Company determines reasonably and in good
faith, and so notifies the Purchasers, that such disclosure would have
a material adverse effect on the Company, and provided, further, that
the Company shall be entitled to give such notice only one in any
365-day period;
(d) furnish to each Purchaser with respect to the
Shares registered under the Registration Statement (and to each
underwriter, if any, of such Shares) such number of copies of
prospectuses and preliminary prospectuses in conformity with the
requirements of the Securities Act and such other documents as the
Purchaser may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares by the Purchaser;
(e) file documents required of the Company for normal
blue sky clearance in states specified in writing by the Purchaser;
provided, however, that the Company shall not be required to qualify to
do business or subject itself to taxation in any jurisdiction in which
it is not now so qualified or so subjected;
(f) at the request of a Purchaser following the
effectiveness of the Registration Statement and upon delivery of
certificates representing Shares which bear the restrictive legend
referred to in Section 5.1(ii), cause to be issued new certificates
free of any such legend; and
(g) bear all expenses in connection with the
procedures in paragraphs (a) through (f) of this Section 7.1 and the
registration of the Shares pursuant to the Registration Statement,
other than fees and expenses if any, of counsel or other advisers to
the Purchaser.
The Company's obligations under 7.1 shall terminate three (3)
years after the Closing Date.
7.2 Transfer of Shares after Registration. Each Purchaser
------------------------------------------
agrees that it will not effect any disposition of the Shares that would
constitute a sale within the meaning of the Securities Act except in compliance
with the Securities Act.
7.3 Indemnification. For the purpose of this Section 7.3:
--------------------
(a) the term "Selling Shareholder" shall include
each Purchaser and any affiliate of such Purchaser;
(b) the term "Registration Statement" shall include
any final prospectus, exhibit, supplement or amendment included in or
relating to either Registration Statement referred to in Section 7.1;
and
(c) the term "untrue statement" shall include any
untrue statement or alleged untrue statement, or any omission or
alleged omission to state in the Registration Statement a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
The Company agrees to indemnify and hold harmless each
Purchaser from and against any losses, claims, damages or liabilities to which
such Purchaser may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any untrue
statement of a material fact contained in the Registration Statement on the
effective date thereof or, assuming such Purchaser is in compliance with the
provisions of the last sentence of Section 5.2, thereafter, or arise out of any
failure by the Company to fulfill any undertaking included in the Registration
Statement and the Company will reimburse such Purchaser or any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that the Company shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement, or the
failure of such Purchaser to comply with the covenants and agreements contained
in Sections 5.2 or 7.2 hereof respecting sale of the Shares.
Each Purchaser agrees to indemnify and hold harmless the
Company (and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and against any
losses, claims, damages or liabilities to which the Company (or any such
officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure to comply with the covenants and agreements contained in
Sections 5.1 or 7.2 hereof respecting sale of the Shares (unless such failure
was caused by the Company), or any untrue statement of a material fact contained
in the Registration Statement on the effective date thereof or thereafter if
such untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Purchaser specifically for use in
preparation of the Registration Statement, and the Purchaser will reimburse the
Company (or such officer, director or controlling person, as the case may be),
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim.
Promptly after receipt by any indemnified person of a notice
of a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein, and,
to the extent it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists or shall exist a conflict or interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to this Section 7.3 is made but it is found
in a final judgment of a court of competent jurisdiction (not subject to further
appeal) that such indemnification may not be enforced in such case, even though
the express provisions hereof provided for indemnification in such case, then
the Company, on the one hand, and the Purchaser, on the other hand, shall
contribute to the losses, claims, damages, liabilities or costs to which the
indemnified persons may be subject in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in any such losses, claims,
liabilities or costs, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified parties shall be
determined with reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities or costs referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
7.4 Termination of Conditions and Obligations. The conditions
----------------------------------------------
precedent imposed by Section 5 or this Section 7 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares when
such Shares shall have been effectively registered under the Securities Act and
sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Shares or at
such time as an opinion of counsel reasonably satisfactory to the Company shall
have been rendered to the effect that such conditions are not necessary in order
to comply with the Securities Act.
7.5 Information Available. So long as the Registration
--------------------------
Statement is effective covering the resale of Shares owned by each Purchaser,
the Company will furnish to each Purchaser:
(a) as soon as practicable after available (but in
the case of the Company's Annual Report to Shareholders, within 120
days after the end of each fiscal year of the Company), one copy of (i)
its Annual Report to Shareholders (which Annual Report shall contain
financial statements audited in accordance with generally accepted
accounting principles by a national firm of certified public
accountants), (ii) its Annual Report on Form 10-K, (iii) its quarterly
report on Form 10-Q, (iv) a full copy of the particular Registration
Statement covering the Shares (the foregoing, in each case, including
exhibits), (v) proxy statements and (vi) any other reports sent to
stockholders of the Company or filed with the Securities and Exchange
Commission;
(b) upon the reasonable request of the Purchaser, all
other information that is generally available to the public; and
(c) upon the reasonable request of the Purchaser, an
adequate number of copies of the prospectuses to supply to NASDAQ or
any other party requiring such prospectuses;
and the Company, upon the reasonable request of each Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss all information relevant for disclosure in the Registration Statement
covering the Shares and will otherwise cooperate with any Purchaser conducting
an investigation for the purpose of reducing or eliminating such Purchaser's
exposure to liability under the Securities Act, including the production of
information at the Company's headquarters. Prior to disclosing any information
to a Purchaser which the Company deems to be confidential, the Company may
require the Purchaser to sign an agreement to protect the confidentiality of
such information in a form reasonably satisfactory to the Company.
8. Broker's Fee. The Purchasers severally represent to the
----------------
Company that they have taken no action which would entitle anyone to a broker's
or finder's fee or other compensation in connection with the transactions
contemplated hereby.
9. Notices. All notices, requests, consents and other
-----------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
electronic facsimile transmission, cable telegram or telex or by registered or
certified airmail, addressed as follows:
(a) if to the Company, to
AutoImmune Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
with a copy so mailed to:
Xxxxxx, XxXxxxxxx & Fish
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxxxxx, Esq.
or to such other person at such other place as the
Company shall designate to the Purchasers in writing; and
(b) if to any Purchaser, at its address as set forth on
Exhibit A hereto, or at such other address or addresses as may have
been furnished to the Company and Purchasers in writing.
10. Changes. This Agreement may not be modified or amended
------------
except pursuant to an instrument in writing signed by the Company and the
Purchasers.
11. Headings. The headings of the various sections of this
-------------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
12. Severability. In case any provision contained in this
-----------------
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13. Counterparts. This Agreement may be executed in two or
-----------------
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
14. Governing Law. This Agreement shall be governed by and
------------------
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts without regard to conflicts-of-law principles.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
AUTOIMMUNE INC.
By:
------------------------------
Its President
FOUR PARTNERS
By:
------------------------------
Trustee of the General Partner
