Exhibit 10.2
STOCK PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (this “ Agreement ”) by
and between MDRNA, INC., a Delaware corporation (the “
Company ”), and BIOMED REALTY, L.P., a Maryland
limited partnership (“ BioMed ”), is executed
and effective as of March 5, 2009 (the “ Effective
Date ”).
RECITALS
WHEREAS, BMR-3450 Monte Villa
Parkway LLC, a Delaware limited liability company (the “
Landlord ,” as successor-in-interest to Phase 3
Science Center LLC), and the Company entered into that certain
Lease dated as of April 23, 2002, as amended by that certain
First Amendment to Lease dated as of July 1, 2003, that
certain Second Amendment to Lease dated as of January 29,
2004, and that certain Third Amendment to Lease dated as of the
Effective Date (the “ Third Amendment ,” and
collectively, the “ Lease ”);
WHEREAS, pursuant to
Section 6 of the Third Amendment, the Company and BioMed, the
sole member of the Landlord, enter into this Agreement pursuant to
which the Company shall issue to BioMed, and BioMed shall acquire
from the Company, an aggregate of One Million Five Hundred Thousand
(1,500,000) shares (the “ Shares ”) of the
Company’s common stock, par value $0.006 per share (the
“ Common Stock ”), on the terms and subject to
the conditions specified herein.
NOW, THEREFORE, in consideration
of the premises and mutual covenants contained herein, the parties
hereto hereby agree as follows:
1. Issuance of Shares .
1.1
Issuance of Shares . On the Effective Date and subject to
the terms and conditions of this Agreement, in consideration of
entering into the Third Amendment and for other good and valuable
consideration the sufficiency of which is hereby recognized, the
Company agrees to issue to BioMed, and BioMed agrees to acquire
from the Company, the Shares.
1.2
Delivery of Shares . No later than five (5) business
days following the Effective Date, the Company shall deliver to
BioMed or cause to be delivered to BioMed, a share certificate
registered in BioMed’s name representing the Shares that
BioMed is to receive from the Company.
2. Representations and Warranties of
the Company . The Company hereby represents and warrants to
BioMed as of the Effective Date, and with respect to
Sections 2.7, 2.8, 2.9 and 2.10 for so long as BioMed holds
the Shares, as follows:
2.1
Organization; Good Standing . 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 carry on its business as presently conducted and
as proposed to be conducted, and is qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which the conduct of its business requires such
qualification.
2.2
Authorization . All corporate action on the part of the
Company, its respective officers, directors and shareholders
necessary for the authorization, execution and delivery of this
Agreement, the performance of all obligations of the Company
hereunder, and the authorization, issuance and delivery of the
Shares has been taken, and this Agreement constitutes a valid and
legally binding obligation of the Company, enforceable in
accordance with its terms. The Shares being purchased by BioMed
hereunder, when issued, sold and delivered in accordance with the
terms of this Agreement for the consideration expressed herein,
will be duly and validly issued, fully paid and nonassessable, and
not subject to preemptive or other similar rights of the
Company’s stockholders or others.
2.3
Percentage of Outstanding Stock . The Shares represent less
than five percent (5.0%) of the voting interest and less than five
percent (5.0%) of the value of the outstanding stock of the
Company.
2.4
Securities Laws . Subject to the accuracy of the
representations and warranties of BioMed set forth in
Section 3 below, the offering, issuance and sale of the
Shares to BioMed is exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended (“
Securities Act ”) by virtue of Rule 506 of
Regulation D promulgated by the Securities Act, and no
consent, approval, qualification, registration or filing under any
federal or state securities law is required in connection
therewith, except for the filing of a Form D, which shall be
filed with the Securities and Exchange Commission after the Shares
are issued and which the Company agrees to file in a timely manner
whenever required. Rule 506 of Regulation D is available
to the offering, issuance, sale and delivery of the Shares to
BioMed because, among other things, (1) there has been no
general solicitation or general advertisement in connection with
such offering, issuance and sale to BioMed, and (2) there are
no other offerings of securities of the Company which could be
integrated with the offering, issuance and sale of the Shares
contemplated by this Agreement.
2.5
Restrictions . The Shares will be free of restrictions on
transfer other than restrictions on transfer set forth in this
Agreement or as otherwise required by applicable federal and state
securities laws.
2.6
No Violation . Neither the execution, delivery and
performance of this Agreement by the Company nor the issuance, sale
and delivery of the Shares contemplated hereby will violate,
conflict with or result in any breach of any of the terms,
conditions or provisions of, constitute a default under, or require
any consent not obtained as of the Effective Date under,
(1) the certificate of incorporation or by-laws of the
Company, (2) any agreement, contract, arrangement or
understanding to which the Company is a party (including, but not
limited to, any shareholders’ or similar agreements), or
(3) any statute or any rule, regulation, order, judgment or
decree of any court or other governmental body applicable to the
Company.
2.7
Health Care / Lodging Facilities . The Company does not
operate or manage any health care facilities (including a
congregate care facility or assisted living facility) or lodging
facilities or provide any person, under a franchise, license or
otherwise, rights to any brand name under which any lodging
facility or health care facility is operated.
2.8
Annual Reports . The Company shall furnish to BioMed, as
soon as practicable and in any event within 90 days after the
end of each fiscal year of the Company, audited, consolidated
annual financial statements certified by an independent certified
public accountant and prepared in accordance with U.S. GAAP;
provided, however, that so long as the Company remains subject to
the reporting requirements
