Exhibit 10
FORM OF COMMON STOCK PURCHASE
AGREEMENT
COMMON STOCK PURCHASE
AGREEMENT (the “ Agreement ”), dated
as of August 14, 2007, by and among Isolagen, Inc., a Delaware
corporation, with headquarters located at 405 Eagleview Blvd.,
Exton, PA 19341 (the “ Company ”), and the
investors listed on the Schedule of Buyers attached hereto
(individually, a “ Buyer ” and collectively, the
“ Buyers ”).
WHEREAS :
A. The Company and
each Buyer desire to enter into this transaction to purchase the
Purchased Shares (as defined below) set forth herein pursuant to a
currently effective shelf registration statement on Form S-3, which
has at least
$
in unallocated securities registered thereunder (Registration
Number 333-142959) (the “ Registration Statement
”), which Registration Statement has been declared effective
in accordance with the Securities Act of 1933, as amended (the
“ 1933 Act ”), by the United States Securities
and Exchange Commission (the “ SEC
”).
B. Each Buyer
wishes to purchase, and the Company wishes to sell, upon the terms
and conditions stated in this Agreement, that aggregate number of
shares of common stock, par value $.001 per share, of the Company
(the “ Common Stock ”), set forth opposite such
Buyer’s name in column (3) on the Schedule of Buyers (which
aggregate amount for all Buyers together shall be
shares of Common Stock and shall collectively be referred to herein
interchangeably as the “ Purchased Shares ” or
the “ Securities ”).
NOW, THEREFORE ,
the Company and each Buyer hereby agree as follows:
1.
PURCHASE AND SALE OF SECURITIES .
(a) Purchase of
Securities .
Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 6
and 7 below, the Company shall issue and sell to each Buyer, and
each Buyer severally, but not jointly, agrees to purchase from the
Company on the Closing Date (as defined below) (i) the number of
Purchased Shares as is set forth opposite such Buyer’s name
in column (3) on the Schedule of Buyers (the “ Closing
”). The Closing shall occur on the Closing Date at the
offices of the Company or such other mutually agreeable
location.
(b) Purchase
Price . The purchase price for each Purchased Share to be
purchased by each Buyer at the Closing shall be $2.04 (the “
Purchase Price ”).
(c) Closing
Date . The date and time of the Closing (the “ Closing
Date ”) shall be 11:00 a.m., New York City Time on August
17, 2007, after notification of satisfaction (or waiver) of the
conditions to the Closing set forth in Sections 5 and 6 below (or
such later time or date as is mutually agreed to by the Company and
each Buyer). As used herein, “ Business Day ”
means any day other than Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required
by law to remain closed.
(d) Form of
Payment . On the Closing Date, (i) each Buyer shall pay its
Purchase Price to the Company for the Purchased Shares to be issued
and sold to such Buyer at the Closing, by wire transfer of
immediately available funds in accordance with the Company’s
written wire instructions, and (ii) the Company shall cause
American Stock Transfer & Trust Company, the Company’s
transfer agent (the “ Transfer Agent ”) through
the Depository Trust Company (“ DTC ”) Fast
Automated Securities Transfer Program, to credit such aggregate
number of Purchased Shares that such Buyer is purchasing as is set
forth opposite such Buyer’s name in column (3) of the
Schedule of Buyers to such Buyer’s or its designee’s
balance account with DTC through its Deposit Withdrawal Agent
Commission system.
2.
REPRESENTATIONS AND WARRANTIES OF EACH BUYER .
Each Buyer
represents and warrants with respect to only itself
that:
(a) The
Buyer is purchasing the Securities for its own account, in the
ordinary course of its business and the Buyer has no arrangement
with any Person to participate in the distribution of the
Securities. The Buyer represents that it has received the
Prospectus prior to or in connection with its receipt of this
Agreement. In connection with its decision to purchase the
Securities, the Investor has relied only upon the Prospectus and
the documents incorporated by reference therein, and the
representations and warranties of the Company contained
herein.
(b) The
Buyer, together with its affiliates (as that term is defined under
Rule 405 of the Act), has not, prior to the date of this Agreement,
sold, offered to sell, solicited offers to buy, disposed of,
loaned, pledged or granted any right with respect to (collectively,
a “ Disposition ”), the Securities purchased in
the offering. Such prohibited sales or other transactions
would include, without limitation, effecting any short sale or
having in effect any short position (whether or not such sale or
position is against the box and regardless of when such position
was entered into) or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with
respect to the Securities purchased in the offering made by the
Prospectus.
(c) The
Buyer shall not issue any press release or make any other public
announcement relating to this Agreement unless the Buyer is advised
by its counsel that such press release or public announcement is
required by law. The Buyer will timely make all required
filings and disclosures relating to the Buyer’s purchase of
the Securities as may be required under the Exchange Act, if
any.
(d) The
Buyer has the requisite power and authority to enter into and to
consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Buyer and the
consummation by it of the transactions contemplated hereunder have
been duly authorized by all necessary action on the part of the
Buyer. This Agreement has been duly executed by the Buyer
and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Buyer
enforceable against the Buyer in accordance with its terms, except
as may be limited by any bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting
the enforcement of creditors’ rights generally or by general
principles of equity.
(e) The
Buyer understands that nothing in this Agreement or any other
materials presented to the Buyer in connection with the purchase or
sale of the Securities constitutes legal, tax or investment
advice. The Buyer has consulted such legal, tax or investment
advisors as it, in its sole discretion, deems necessary or
appropriate in connection with its purchase of the
Securities.
(f) The
Buyer hereby acknowledges that it is acting independently from any
other investor in connection with the offering, and that it is not
acting as a member of a “group” (as such term is
defined in Rule 13d of the Exchange Act) with any other investor in
connection with the offering.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY .
The Company hereby
makes the following representations and warranties to each
Buyer:
(a)
Organization and Qualification . Each of the Company and
each of its wholly owned U.S. subsidiaries as identified in the SEC
Reports (as defined below, each a “ Subsidiary
”) is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on
its business as currently conducted. Neither the Company nor any
Subsidiary is in violation of any of the provisions of its
respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and
each Subsidiary is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not, individually or in the aggregate, have or
reasonably be expected to result in (i) an adverse effect on the
legality,
2
validity or
enforceability of any Transaction Document, (ii) a material and
adverse effect on the results of operations, assets, prospects,
business or financial condition of the Company and the
Subsidiaries, taken as a whole, or (iii) an adverse impairment to
the Company’s ability to perform on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or
(iii), a “ Material Adverse Effect
”).
(b)
Authorization; Enforcement . The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of this Agreement and any other
documents or agreements executed in connection with the
transactions contemplated hereunder (collectively, the “
Transaction Documents ”) and otherwise to carry out
its obligations hereunder and thereunder and to issue the
Securities in accordance with the terms hereof and thereof. The
execution and delivery of each of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated
hereby and thereby, including, without limitation, the issuance of
the Purchased Shares, have been duly authorized by all necessary
action on the part of the Company and no further action is required
by the Company, its Board of Directors or its shareholders in
connection herewith and therewith. Each Transaction Document has
been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except (a) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting
creditors’ rights generally, (b) as enforceability of any
indemnification and contribution provisions may be limited under
the federal and state securities laws and public policy, and (c)
that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor
may be brought.
(c) No
Conflicts . The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance of the Purchased
Shares) do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, any certificate of
designations, preferences and rights of any outstanding series of
preferred stock, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any material agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt
or otherwise) or other material understanding to which the Company
or any Subsidiary is a party or by which any property or asset of
the Company or any Subsidiary is bound or affected, or (iii) result
in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is
subject (including federal and state securities laws and
regulations of whichever of the New York Stock Exchange, Inc., the
American Stock Exchange or the Nasdaq National Market (the “
Pr
