STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of
July 15, 1997, is entered into by and between Unigene Laboratories, Inc., a
Delaware corporation ("Unigene"), and Warner-Lambert Company, a Delaware
corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Unigene and Purchaser simultaneously herewith are
entering into a License Agreement, dated as of July 15, 1997 (the "License
Agreement"), pursuant to which Unigene has licensed to Purchaser rights to use
certain of Unigene's proprietary technology; and
WHEREAS, Unigene in connection therewith wishes to issue and
sell to Purchaser, and Purchaser wishes to purchase from Unigene, on the terms
and conditions set forth in this Agreement, the number of shares of Unigene's
common stock, par value $.01 per share (the "Common Stock"), determined in
accordance with the provisions of Section 1.1 hereof.
NOW THEREFORE, in consideration of the foregoing premises and
the mutual covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
1.1 Purchase of Stock. On the terms and conditions set forth in this
Agreement, Unigene agrees to issue and sell to Purchaser, and Purchaser agrees
to purchase from Unigene, at a purchase price of $3,000,000, the number of
shares of Common Stock that is equal to the total obtained by dividing (i)
$3,000,000, by (ii) the average of the closing sale prices of the Common Stock
as reported by the Nasdaq Stock Market for each trading day during the 30
calendar days preceding and the 30 calendar days beginning on the date of the
first public announcement of the entry by the parties into the License
Agreement; provided that if the calculation described in this Section 1.1 would
create a fractional share, such fractional share shall be disregarded and the
number of shares of Common Stock purchased and sold hereunder shall be the
number of whole shares.
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1.2 Deliveries. On the date of the execution of this Agreement,
Purchaser shall deliver to Unigene, by wire transfer of immediately available
funds to such bank account as shall be designated by Unigene, an amount equal to
$3,000,000. Promptly following the conclusion of the 60-day period referred to
in Section 1.1, Unigene shall deliver to Purchaser a stock certificate
registered in the name of Purchaser representing the number of shares of Common
Stock determined in accordance with Section 1.1 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Unigene. Unigene represents and
warrants to Purchaser that, as of the date hereof:
(a) Organization, Good Standing and Qualification. Unigene is
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware.
(b) Authorization. Unigene has the corporate power necessary
to execute, deliver and perform this Agreement, and such execution, delivery and
performance have been duly authorized by all necessary corporate action on the
part of Unigene. This Agreement has been duly executed and delivered by Unigene
and constitutes a legal, valid and binding obligation of Unigene, enforceable
against Unigene in accordance with its terms.
(c) No Violations. The execution, delivery and performance of
this Agreement by Unigene does not and will not: (i) violate any provision of
Unigene's Certificate of Incorporation or By-laws; (ii) violate, breach or
constitute a default (or an event or condition that with the giving of notice or
the passage of time or both could give rise to a default) under any material
contract or agreement to which Unigene is a party or by which Unigene is bound;
(iii) result in the creation of a lien, security interest, charge or encumbrance
on any property or assets of Unigene; (iv) except for such filings with the
Securities and Exchange Commission or any state securities commission as may be
required to perfect a private placement or limited offering exemption for the
sale of the shares of Common Stock, require the authorization, consent or
approval of, or filing with, any court or any administrative or governmental
body pursuant to any law, statute, rule or regulation to which Unigene is
subject or any order, judgement or decree by which Unigene is bound; or (v)
constitute a default under or violate any law, statute, rule or regulation to
which Unigene is subject or any
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order, judgement or decree of any court, administrative agency or arbitrator by
which Unigene is bound.
(d) Litigation. There is no suit, action or other proceeding
of any nature pending or, to the best knowledge of Unigene, threatened against
Unigene before any court or other governmental agency or instrumentally that
challenges or seeks to prevent the consummation of the transactions contemplated
by this Agreement.
(e) Valid Issuance of Common Stock. The shares of Common Stock
to be issued pursuant to this Agreement have been duly authorized and, upon
issuance in accordance with the terms of this Agreement, will be validly issued,
fully paid and nonassessable.
(f) Capitalization. (a) The authorized capital stock of
Unigene consists of 60,000,000 shares of Common Stock, of which, as of May 15,
1997, (i) 37,264,165 shares were outstanding and (ii) 7,434,719 shares were
reserved for issuance either upon the conversion of outstanding convertible
securities or upon the exercise of outstanding options and warrants. There is
only one class of Common Stock.
(g) Securities Laws. Assuming the accuracy of the
representations and warranties of Purchaser contained in this Agreement, the
sale of the shares of Common Stock to be issued pursuant to the terms of this
Agreement will be exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act").
2.2 Representations and Warranties of Purchaser. Purchaser represents
and warrants to Unigene that, as of the date hereof:
(a) Organization, Good Standing and Qualification. Purchaser
is duly incorporated, validly existing and in good standing under the laws of
the State of Delaware.
(b) Authorization. Purchaser has the corporate power necessary
to execute, deliver and perform this Agreement, and such execution, delivery and
performance have been duly authorized by all necessary corporate action on the
part of Purchaser. This Agreement has been duly executed and delivered by
Purchaser and constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms.
(c) No Violations. The execution, delivery and performance of
this Agreement by Purchaser does not and will
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not: (i) violate any provision of Purchaser's Certificate of Incorporation or
By-laws; (ii) violate, breach or constitute a default (or an event or condition
that with the giving of notice or the passage of time or both could give rise to
a default) under any material contract or agreement to which Purchaser is a
party or by which Purchaser is bound; (iii) result in the creation of a lien,
security interest, change or encumbrance on any property or assets of Purchaser,
(iv) require the authorization, consent or approval of, or filing with, any
court or any administrative or governmental body pursuant to any law, statute,
rule or regulation to which Purchaser is subject or any order, judgement or
decree by which Purchaser is bound; or (iv) constitute a default under or
violate any law, statute, rule or regulation to which Purchaser is subject or
any order, judgement or decree of any court, administrative agency or arbitrator
by which Purchaser is bound.
(d) Litigation. There is no suit, action or other proceeding
of any nature pending or, to the best knowledge of Purchaser, threatened against
Purchaser before any court or other governmental agency or instrumentally that
challenges or seeks to prevent the consummation of the transactions contemplated
by this Agreement.
(e) Purchase Entirely For Own Account; Investment Experience;
Access to Information. Purchaser is purchasing the shares of Common Stock for
its own account without a view to any distribution thereof in violation of the
Securities Act, or any applicable state securities laws, and Purchaser is
experienced in evaluation and making investments of this type, and has had
access to, and has received, all information concerning Unigene that it
reasonably has required to evaluate its investment in the shares of Common
Stock.
(f) Accredited Investor. Purchaser is financially able to bear
the risks of an investment in the shares of Common Stock and is an "accredited
investor" within the meaning of Rule 501 of Regulation D under the Securities
Act. Purchaser understands and acknowledges that an investment in the Common
Stock is speculative and involves a high degree of risk.
(g) Restricted Securities. Purchaser acknowledges that Unigene
is selling the shares of Common Stock pursuant to an exemption from registration
under Section 4(2) of the Securities Act in reliance on the representations and
warranties of Purchaser herein, and agrees that the shares of Common Stock may
be offered, sold, pledged or otherwise transferred by Purchaser only if the
transaction is registered under the Securities Act or is effected pursuant to an
exemption from such registration requirements.
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(h) Legends. Purchaser agrees that the following legend shall
be placed on the certificate(s) evidencing the shares of Common Stock for so
long as the shares remain "restricted securities" within the meaning of Rule 144
under the Securities Act:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended. Such
shares have been acquired for investment and may not be
offered, sold, pledged or otherwise transferred, except in
compliance with the registration requirements of said Act or
pursuant to an exemption therefrom."
Purchaser understands that, while such legend remains on the certificate(s)
evidencing the shares of Common Stock, Unigene will direct its transfer agent to
maintain "stop transfer" procedures with respect to the shares. Unigene agrees
that, when the Shares of Common Stock become eligible for sale pursuant to the
provisions of Rule 144(k) under the Securities Act, Unigene will direct the
transfer agent to remove the above-referenced legend from any certificates
tendered by Purchaser for such purpose.
ARTICLE III
MISCELLANEOUS
3.1 Expenses. All legal and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
3.2 Amendments; Waivers. Any provisions of this Agreement may be
amended or waived by the parties hereto if, but only if, such amendment or
waiver is in writing and is signed by both parties hereto. No failure or delay
by any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
3.3 No Third Party Beneficiaries. This Agreement is made solely for the
benefit of the parties hereto and shall not confer any rights on any other
person.
3.4 Notices. Any notice, demand, request, consent, approval or other
communication that is required or permitted to be given or made by a party to
the other pursuant to any provision of this Agreement shall be given or made in
writing
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and shall be served personally or shall be sent by facsimile transmission or
overnight delivery addressed to the party as follows:
If to Unigene:
Unigene Laboratories, Inc.
110 Little Falls Road
Fairfield, NJ 07004
Attention: Chief Executive Officer
Telephone: (973) 882-0860
Fax: (973) 227-6088
If to Purchaser:
Warner-Lambert Company
201 Tabor Road
Morris Plains, New Jersey 07950
Attn: President, Pharmaceutical Sector
Fax: (973) 540-4009
With a copy to:
Warner-Lambert Company
201 Tabor Road
Morris Plains, New Jersey 07950
Attn: Vice President and General Counsel
Fax: (973) 540-3927
or to such other address as either party may from time to time advise the other
party hereto by notice in writing. Every such notice so given shall be deemed to
be received only upon delivery to the party to be charged with notice.
3.5 Severability. Should any provision of this Agreement for any reason
be declared invalid or unenforceable, such invalidity shall not affect the
validity or enforceability of any of the other provisions of this Agreement,
which shall remain in full force and effect, and the application of such invalid
or unenforceable provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall be valid and enforced to the
fullest extent permitted by law.
3.6 Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only, do not constitute
a part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
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3.7 Applicable Law. The validity and interpretation of this Agreement,
and the performance by the parties of their respective obligations hereunder,
shall be governed by the laws of the State of New York, without regard to the
choice of law provisions thereof.
3.8 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one
counterpart signed by the party to be charged thereby.
3.9 Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
previous agreements and understandings between the parties with respect to such
matters.
3.10 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns and transferees. This Agreement may not be assigned by either
party without the prior written consent of the other; provided, however, that
either party may assign its rights and delegate its duties hereunder to an
Affiliate thereof without obtaining such consent, provided that the assigning
party agrees to remain primarily (and not secondarily or derivatively) liable
for the full and timely performance by such Affiliate of all its obligations
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
UNIGENE LABORATORIES, INC.
By: /s/ WARREN P. LEVY
-------------------
Warren P. Levy
President
WARNER-LAMBERT COMPANY
By: /s/ MAURICE RENSHAW
--------------------
Maurice Renshaw
Vice President and
President, Parke-Davis,
U.S. and Mexico