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Exhibit
10.1
STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement
(the “ Agreement ”), is made and entered into as
of May 10, 2008, by and among Unigene Laboratories, Inc., a
Delaware corporation (the “ Company ”), and Tin
Lon Investment Limited, a Hong Kong limited liability company (the
“ Investor ”).
1. PURCHASE AND SALE OF
SHARES
1.1. Shares and Purchase
Price . Subject to the terms and conditions of this Agreement,
the Investor agrees to purchase from the Company 1,080,000 shares
(the “ Shares ”) of common stock of the Company,
par value $0.01 per share (the “ Common Stock
”), and such Shares of Common Stock to be purchased at a
purchase price of $1.86 per share (the “ Share Purchase
Price ”) for an aggregate purchase price of $2,008,800.00
(the “ Purchase Price ”).
1.2. Payment of Purchase
Price . The Investor shall pay the Purchase Price by delivering
immediately available funds in United States Dollars by wire
transfer no later than the Closing Date (as defined herein) to the
Company in accordance with the wire transfer instructions provided
to the Investor in writing by the Company at least two business
days prior to the Closing Date.
1.3. Closing . The
completion of the purchase and sale of the Shares (the “
Closing ”) shall occur, subject to the satisfaction or
waiver of the conditions set forth in Section 1.4 and
Section 1.5 below, by exchange and delivery of this
Agreement by facsimile or other means of electronic transmission
and the delivery of the Purchase Price at such time and place or by
such other means as the Company and the Investor shall mutually
agree upon. The date upon which the Closing actually occurs is
herein referred to as the “ Closing Date ”. The
offer and sale of the Shares to the Investor at the Closing Date
pursuant to the terms of this Agreement shall be referred to herein
as the “ Offering .”
1.4. Conditions to the
Investor’s Obligation to Complete the Purchase at the
Closing . The Investor’s obligation to purchase the
Shares from the Company at the Closing is subject to the
satisfaction, on or before the Closing Date, of the following
conditions, provided that these conditions are for the
Investor’s sole benefit and may be waived by the Investor at
any time in its sole discretion by providing the Company with prior
written notice thereof: the representations and warranties of the
Company set forth in Article 2 hereof shall be true and correct in
all material respects as of the date hereof and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date (which shall be true
and correct in all material respects as of such date)), and the
Company shall have performed, satisfied and complied with in all
material respects the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by
the Company on or prior to the Closing Date.
1.5. Conditions to the
Company’s Obligation to Complete the Sale at the Closing.
The Company’s obligation to issue and sell the Shares to the
Investor at the Closing is subject to the satisfaction, on or
before the Closing Date, of each of the following conditions,
provided that
these conditions are for the
Company’s sole benefit and may be waived by the Company at
any time in its sole discretion by providing the Investor with
prior written notice thereof:
(a) The Investor shall make
payment to the Company by wire transfer of the Purchase Price in
accordance with Section 1.2 ; and
(b) The representations and
warranties of the Investor set forth in Article 3 hereof shall be
true and correct as of the date hereof and as of the Closing Date
as though made at that time (except for representations and
warranties that speak as of a specific date (which shall be true
and correct as of such date)), and the Investor shall have
performed, satisfied and complied with in all material respects the
covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by the Investor on or
prior to the Closing Date.
1.6. Issuance of
Shares . The Company shall authorize its transfer agent to
issue and the transfer agent shall issue one or more stock
certificates registered in the name of the Investor, or in such
name of nominee(s) designated by the Investor in writing,
representing in the aggregate the Shares, which certificate shall
be delivered to the Investor at the Closing or shall be sent to the
Investor by international Federal Express on the first business day
following the Closing Date.
1.7. Subscription;
Termination Date . The Investor acknowledges and agrees that
this Agreement shall be binding upon the execution by the Investor
of its signed counterpart signature page to this Agreement and the
delivery thereof to the Company (the “ Subscription
”), provided , however , that in the event that
the Closing shall not have occurred on or prior to 11:59 p.m. on
May 12, 2008 (such date subject to extension by up to 15 days
by the Company by written notice thereof to the Investor), this
Agreement shall be terminated and be of no force and effect. The
Investor hereby acknowledges and agrees that the Subscription
hereunder is irrevocable by the Investor, and that, except as
required by law applicable to the Agreement and the transactions
contemplated thereby in the United States, the Investor is not
entitled to cancel, terminate or revoke this Agreement or any
agreements of the Investor hereunder.
2. REPRESENTATIONS AND WARRANTIES OF
THE COMPANY.
Except as set forth on the
disclosure letter from the Company to the Investor dated as of the
date hereof (the “ Disclosure Letter ”) or as
set forth in the SEC Documents (as defined below), the Company
hereby represents and warrants to the Investor as
follows:
2.1. Organization and
Qualification . The Company is duly organized and validly
existing and is in good standing under the laws of the State of
Delaware. The Company has full corporate power and authority to
own, operate and occupy its properties and to conduct its business
as presently conducted and is registered or qualified to do
business and in good standing in Delaware and in each jurisdiction
in which it owns or leases property or transacts business, except
where the failure to be so qualified and in good standing would not
have a material adverse effect upon the business, assets, financial
condition or results of operation of the Company, and to the
Company’s knowledge, no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or
qualification.
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2.2. Due Authorization
. The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
This Agreement has been duly authorized and validly executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the other party hereto, constitutes a valid and
legally binding obligation of the Company enforceable against the
Company in accordance with its terms, except (i) to the extent
rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws,
(ii) as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and (iii) as
enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
2.3. Reporting Status
. The Company has filed all documents that the Company was required
to file under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), since January 1, 2006
(the “ SEC Documents ”). The SEC Documents
complied as to form in all material respects with the requirements
of the Securities and Exchange Commission (the “ SEC
”) as of their respective filing dates, and the information
contained therein as of the date thereof did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, except to the extent that information contained in
any such document has been revised or superseded by a later filed
SEC Document.
2.4. Capitalization .
Immediately prior to the Closing, the authorized capital stock of
the Company consists of 135,000,000 shares of Common Stock, of
which (i) 87,753,715 shares were issued and outstanding at the
close of business on April 28, 2008, (ii) 3,958,315
shares were reserved for issuance at the close of business on
March 31, 2008 pursuant to options outstanding exercisable or
exchangeable for shares of Common Stock and (iii) 2,371,571
shares were reserved for issuance at the close of business on
March 31, 2008 pursuant to warrants outstanding exercisable or
exchangeable for, or convertible into, shares of Common Stock.
Other than the number of securities indicated in clauses
(ii) and (iii) of the previous sentence, there were as of
March 31, 2008 no other securities of the Company issued or
outstanding which are exercisable or exchangeable for, or
convertible into, shares of Common Stock.
The issued and outstanding
shares of the Company’s capital stock have been duly
authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all applicable federal and
state securities laws, and were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for
or purchase securities. The Shares to be sold pursuant to the
Agreement have been duly and validly authorized, issued, fully paid
and nonassessable, subject to no lien, claim, or encumbrance
(except for any such lien, claim or encumbrance created, directly
or indirectly, by the Investor).
2.5. No Violations; No
Consents . The Company is not in violation of any of its
governing documents, or in violation of any law, administrative
regulation, ordinance or order of any court or governmental agency,
arbitration panel or authority applicable to the
Company,
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which violation, individually or in the
aggregate, would be reasonably likely to materially adversely
affect the validity or enforceability of, or the authority or
ability of the Company to perform its obligations under, this
Agreement. No consent, approval, authorization or other order of,
or registration, qualification or filing with, any regulatory body,
administrative agency, self-regulatory organization, stock exchange
or market, or other governmental body is required for the execution
and delivery of this Agreement by the Company or the sale of the
Shares to be sold by the Company pursuant to this Agreement other
than such as have been made or obtained, or for any securities
filings required to be made under United States federal securities
laws.
2.6. Principal Market
Compliance . As of the Closing Date, the Common Stock is
registered pursuant to Section 12(g) of the Exchange Act, and
is quoted on the NASD OTC Bulletin Board (the “ Principal
Market ”), and the Company has taken no action intended
to terminate the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the Principal
Market. As of the Closing Date, the Company has not been notified
that it is currently in violation of any of the rules, regulations
or requirements of the Principal Market and has no knowledge of any
facts or circumstances currently existing with respect to the
Company that would reasonably lead to delisting or suspension of
the Common Stock by the Principal Market in the foreseeable
future.
2.7. No Registration,
Integration, etc. Assuming the accuracy of the representations
and warranties made by, and compliance with the covenants of, the
Investor in Article 3 hereof, no registration of the Shares
under the Securities Act of 1933, as amended (the “
Securities Act ”), is required in connection with the
offer and sale of the Shares by the Company to the Investor as
contemplated by this Agreement.
3. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE INVESTOR.
The Investor represents,
warrants and covenants to the Company as follows:
3.1. Certain Securities
Law Representations and Warranties; Restrictions on Transfer
.
(a) The Investor (i) is
an “accredited investor” as defined in Regulation D
under the Securities Act, (ii) has the knowledge,
sophistication and experience necessary to make, and is qualified
to make decisions with respect to, investments in securities
presenting an investment decision like that involved in the
purchase of investments in securities issued by the Company and
investments in comparable companies, (iii) can bear the
economic risk of a total loss of its investment in the Shares and
(iv) has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to
purchase the Shares.
(b) The Investor is acquiring
the Shares for its own account for investment only and not with a
view towards, or for resale in connection with, the public sale or
distribution thereof.
(c) The Investor was not
organized for the specific purpose of acquiring the
Shares.
(d) The Investor will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge
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of) any of the Shares except in
compliance with this Agreement (including but not limited to
Section 3.1(m) ), the Securities Act and the Exchange
Act, applicable state securities laws and the rules and regulations
promulgated thereunder, and in the event that any of the foregoing
actions are taken in a jurisdiction other than the United States,
all applicable laws, regulations and rules of those countries or
other jurisdictions.
(e) The Investor understands
that the Shares are being offered and sold to it in reliance on
specific exemptions from the registration requirements of the
United States federal and state securities laws and that the
Company is relying upon the truth
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