Exhibit 10.1
STOCK PURCHASE
AGREEMENT
by and between
GTC Biotherapeutics, Inc.
and
LFB Biotechnologies
S.A.S.
November 2, 2009
TABLE OF CONTENTS
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Page
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1.
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PURCHASE AND
SALE
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1
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(a)
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Purchase of
Stock
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1
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2.
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THE
CLOSING
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(a)
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Closing
Date
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1
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(b)
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Form of
Payment
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1
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(c)
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Conditions to
the Purchaser’s Obligation to Purchase the Shares
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2
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(d)
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Conditions to
the Company’s Obligation to Issue and Sell the
Shares
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3
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3.
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REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
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4
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(a)
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Organization
and Qualification
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4
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(b)
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Subsidiaries
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4
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(c)
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Authorization;
Enforcement; Validity
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4
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(d)
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Capitalization
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5
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(e)
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Issuance of
Shares
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5
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(f)
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No
Conflicts
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6
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(g)
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No Violation or
Default
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6
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(h)
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SEC
Documents
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6
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(i)
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Financial
Statements
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6
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(j)
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No Material
Adverse Change
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7
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(k)
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Independent
Accountants
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7
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(l)
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Clinical
Trials
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7
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(m)
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Title to
Intellectual Property
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7
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(n)
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Licenses and
Permits
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8
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(o)
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Environmental
Matters
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8
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(p)
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Tax
Matters
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9
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(q)
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Internal
Control over Financial Reporting
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9
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(r)
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Disclosure
Controls and Procedures
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9
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(s)
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Sarbanes-Oxley
Compliance
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-i-
TABLE OF CONTENTS
(continued)
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Page
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(t)
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Absence of
Litigation
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9
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(u)
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Investment
Company Act
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9
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(v)
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Board
Approval
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10
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4.
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PURCHASER’S REPRESENTATIONS AND
WARRANTIES
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10
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(a)
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Transfer or
Resale
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10
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(b)
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Investment
Purpose
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10
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(c)
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Offshore
Transaction
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10
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(d)
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General
Solicitation
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10
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(e)
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Information
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10
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(f)
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Reliance on
Exemptions
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10
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(g)
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No Governmental
Review
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11
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(h)
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No Antitrust
Filings or Approvals
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11
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(i)
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Authorization;
Enforcement; Validity
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11
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(j)
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No
Conflicts
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11
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(k)
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Short Position
Prior to the Date Hereof
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11
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(l)
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Short Sales and
Confidentiality After the Date Hereof
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12
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(m)
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Ownership
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12
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5.
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RESTRICTIONS ON
TRANSFER; OWNERSHIP OF SHARES
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12
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(a)
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Resales
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12
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(b)
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Rule
144
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12
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(c)
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Legends
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12
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(d)
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Agreement to be
Bound
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13
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(e)
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Security
Ownership
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13
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6.
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REGISTRATION
RIGHTS
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13
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(a)
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Registration
Procedures and Expenses
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13
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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7.
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INDEMNIFICATION
AND CONTRIBUTION
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17
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8.
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PUBLIC
STATEMENTS
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9.
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MISCELLANEOUS
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(a)
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Governing
Law
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(b)
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Entire
Agreement
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(c)
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Amendments and
Waivers
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21
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(d)
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Notices
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21
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(e)
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No Strict
Construction
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(f)
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Further
Assurances
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(g)
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Severability
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(h)
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Successors and
Assigns
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(i)
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Survival
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23
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(j)
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Expenses
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23
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(k)
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Headings
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23
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(l)
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Counterparts
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-iii-
STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement (this
“ Agreement ”) dated as of November 2, 2009
is made by and between GTC Biotherapeutics, Inc., a Massachusetts
corporation, (the “ Company ”), and LFB
Biotechnologies S.A.S., a société par actions
simplifiée established under the laws of France (the “
Purchaser ”).
RECITALS
In accordance with the terms and
conditions of this Agreement and pursuant to exemptions from
registration under the Securities Act of 1933 (as amended from time
to time, the “ Securities Act ”), which may
include without limitation the exemption afforded by Regulation S
promulgated thereunder, the Company has agreed to issue and sell,
and the Purchaser has agreed to purchase a number of shares of
common stock, par value $0.01 per share (the “ Common
Stock ,”), of the Company.
NOW THEREFORE, in consideration of
the promises and the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Purchaser hereby
agree as follows:
(a) Purchase of Stock . At
the Closing (as defined in Section 2), the Company shall issue
and sell to the Purchaser, and the Purchaser shall purchase from
the Company, upon the terms and subject to the conditions set forth
herein 3,387,851 shares of Common Stock (the “ Shares
”) for an aggregate purchase price of $3,625,000.57 (the
“ Purchase Price ”), based on a purchase price
per share of $1.07 (the “ Per Share Purchase Price
”), which is not less than the consolidated closing bid price
of the Common Stock on the NASDAQ Capital Market on
October 30, 2009.
(a) Closing Date . The date
and time of the closing of the purchase and sale of the Shares (the
“ Closing ”) shall occur on November 5,
2009 at 10 a.m. Boston time, at the offices of Edwards Angell
Palmer & Dodge LLP, 111 Huntington Avenue, Boston,
Massachusetts (subject to the satisfaction or waiver of the
conditions set forth in Subsections (c) and (d) of this
Section 2), or at such other location, date and time as may be
agreed upon between the Company and the Purchaser (the “
Closing Date ”).
(b) Form of Payment . On the
Closing Date, the Purchaser shall pay the Company the Purchase
Price for the Shares to be issued and sold to the Purchaser, by
wire transfer of immediately available funds in accordance with the
Company’s written wire instructions previously provided to
the Purchaser, and the Company shall deliver to the Purchaser the
original certificate or certificates representing the Shares,
registered in the name of the Purchaser. For purposes of this
Agreement, “ Business Day ” shall mean any day
other than a Saturday, Sunday or other day on which the New York
Stock Exchange or commercial banks located in Boston, Massachusetts
are permitted or required by law to close.
(c) Conditions to the
Purchaser’s Obligation to Purchase the Shares . The
Purchaser’s obligation to purchase the Shares shall be
subject to the satisfaction, at or before the Closing Date, of each
of the following conditions, provided that these conditions are for
the Purchaser’s sole benefit and may be waived by the
Purchaser at any time in its sole discretion:
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(i)
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receipt of a
copy of the Agreement executed by the Company;
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(ii)
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receipt of
evidence that no further waiver of the Rights Agreement (as defined
in Section 5(e)) is required in connection with the
transactions contemplated by this Agreement;
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(iii)
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receipt of
certificates representing the Shares or receipt of evidence that
the Company’s transfer agent has been irrevocably instructed
to issue certificates, dated the Closing Date, representing the
Shares;
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(iv)
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the
representations and warranties of the Company in this Agreement
shall be true, correct and complete as of the Closing Date (except
for representations and warranties that speak as of a specific
date, which shall be true, correct and complete as of such date)
and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing and receipt of a
certificate, dated the Closing Date, executed by the principal
executive officer and principal accounting officer of the Company
certifying as to such;
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(v)
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receipt by the
Purchaser of a legal opinion, dated the Closing Date, from counsel
to the Company, in form and substance reasonably acceptable to the
Purchaser’s counsel;
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(vi)
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no temporary
restraining order, preliminary or permanent injunction or other
order or decree, and no other legal restraint or prohibition, shall
exist which questions the validity of this Agreement or the right
of the Company or the Purchaser, as the case may be, to enter into
this Agreement or prevents or could reasonably be expected to
prevent the consummation of the transactions contemplated by this
Agreement, nor shall any proceeding have been commenced or
threatened with respect to the foregoing and receipt of a
certificate, dated the Closing Date, executed by the principal
executive officer and the principal accounting officer of the
Company certifying to their knowledge as to such;
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(vii)
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from the date hereof to the
Closing Date, trading in the Common Stock shall not have been
suspended by the SEC or the NASDAQ Capital Market (except for any
suspension of trading of limited duration agreed to by the Company,
which suspension shall be terminated prior to the Closing), and, at
any time prior to the Closing Date, trading in securities generally
as reported by Bloomberg L.P. shall not have been suspended
or
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limited, or minimum prices shall
not have been established on securities whose trades are reported
by such service, or on the NASDAQ Capital Market, nor shall a
banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any
material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each
case, in the reasonable judgment of the Purchaser, makes it
impracticable or inadvisable to purchase the Shares at the Closing;
and
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(viii)
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receipt of such
other information, certificates and documents as the Purchaser may
reasonably request.
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(d) Conditions to the
Company’s Obligation to Issue and Sell the Shares . The
Company’s obligation to issue and sell the Shares shall be
subject to the satisfaction, at 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:
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(i)
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receipt of a
copy of this Agreement executed by the Purchaser;
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(ii)
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the
representations and warranties of the Purchaser in this Agreement
shall be true, correct and complete as of the date of this
Agreement and the Closing Date (except for representations and
warranties that speak as of a specific date, which shall be true,
correct and complete as of such date) and the Purchaser shall have
performed, satisfied and complied with in all material respects the
covenants, agreements and conditions of the Purchaser to be
performed, satisfied or complied with by it under this Agreement at
or prior to the Closing;
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(iii)
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receipt of a
certificate by the President of the Purchaser stating that the
conditions in paragraphs (ii) and (v) of this Subsection
2(d) have been fulfilled on or prior to the Closing Date in all
material respects;
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(iv)
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receipt of the
Purchase Price;
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(v)
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no temporary
restraining order, preliminary or permanent injunction or other
order or decree, and no other legal restraint or prohibition shall
exist which questions the validity of this Agreement or the right
of the Company or the Purchaser, as the case may be, to enter into
this Agreement or prevents or could reasonably be expected to
prevent the consummation of the transactions contemplated by this
Agreement, nor shall any proceeding have been commenced or
threatened with respect to the foregoing; and
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(vi)
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receipt of such
other information, certificates and documents as the Company may
reasonably request.
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-3-
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3.
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REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
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The Company represents and warrants
to the Purchaser, subject to such exceptions as are set forth in
the SEC Documents (as defined below) or as otherwise disclosed in
the Company’s disclosure letter previously delivered to the
Purchaser, as follows:
(a) Organization and
Qualification . The Company is a corporation, duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has the requisite corporate
power and authority to own its properties and to carry on its
business as now being conducted and as described in the SEC
Documents. Copies of the Company’s Restated Articles of
Organization, as amended (the “ Articles of
Organization ”) and Bylaws of the Company (the “
Bylaws ”), and all amendments thereto, have been filed
as exhibits to the Company’s SEC Documents and have not been
further modified, and except as required by the transactions
contemplated hereby, the Company has no present intention to modify
the Articles of Organization and Bylaws. The Company is duly
qualified as a foreign corporation to do business, and is in good
standing, in every jurisdiction in which its ownership of property
or the nature of the business conducted and proposed to be
conducted by it makes such qualification necessary, except where
the failure to be so qualified or in good standing would not,
individually or in the aggregate, have or reasonably be expected to
result in a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business
(“ Material Adverse Effect ”).
(b) Subsidiaries . Each of
the Company’s Subsidiaries has been duly organized and is
validly existing and in good standing under the laws of its
jurisdiction of organization, is duly qualified to do business and
is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and
authority necessary to own or hold its properties and to conduct
the business in which it is engaged, except where the failure to so
qualify or have such power or authority would not have, singularly
or in the aggregate, a Material Adverse Effect. All the outstanding
shares of capital stock of each Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and
are owned by the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer
or any other claim of any third party. No Subsidiary is currently
prohibited, directly or indirectly, under any agreement to which it
is a party, from paying any dividends to the Company, from making
any other distribution on such Subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such
Subsidiary’s properties or assets to the Company or any other
subsidiary of the Company. For purposes of this Agreement, “
Subsidiaries ” means those entities that are
“significant subsidiaries” of the Company as determined
in accordance with Regulation S-X.
(c) Authorization; Enforcement;
Validity . The Company has the requisite corporate power and
authority to enter into and perform its obligations under this
Agreement and to issue the Shares in accordance with the terms
hereof. The execution and delivery of this Agreement by the Company
and the consummation and performance by the Company of the
transactions contemplated hereby, including, without limitation,
the issuance of the Shares, have been duly
-4-
authorized by all requisite corporate action.
This Agreement has been duly executed and delivered by the Company.
This Agreement constitutes the valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors’
rights and remedies.
(d) Capitalization . The
capitalization of the Company is as described in the
Company’s most recent periodic report filed with the
Securities and Exchange Commission (the “ SEC ”)
as updated by any current report filed with the SEC thereafter, and
all of the issued shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable, and have been issued in compliance with federal and
state securities laws. The Company has not issued any capital stock
since such filings other than pursuant to the exercise of stock
options under the Company’s stock option plans, the issuance
of shares of Common Stock to employees pursuant to the
Company’s employee stock purchase plan (such issuances and
any such stock options, whenever issued or granted, being
collectively “ Employee Equity Transactions ”),
pursuant to the conversion or exercise of outstanding securities
that are convertible into or exercisable for Common Stock, or
pursuant to publicly disclosed equity financings. The
Company’s Common Stock is registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the
“ Exchange Act ”), and is listed for trading on
the Nasdaq Capital Market (“ Nasdaq ”). The
Company is in compliance with the continued listing criteria of
Nasdaq and all Nasdaq corporate governance requirements that are
applicable to the Company. Except for Employee Equity Transactions
and as set forth in the SEC Documents, (i) no shares of the
Company’s capital stock are subject to preemptive rights or
any other similar rights or any liens or encumbrances;
(ii) there are no outstanding options, warrants, rights to
subscribe to, calls or commitments relating to, or securities or
rights convertible into, any shares of capital stock of the Company
or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company is or may
become bound to issue additional shares of capital stock of the
Company or any of its Subsidiaries or options, warrants, rights to
subscribe to, calls or commitments relating to, or securities or
rights convertible into, any shares of capital stock of the Company
or any of its Subsidiaries.
(e) Issuance of Shares . The
Shares are duly authorized and, upon issuance in accordance with
the terms hereof, will be (A) validly issued, fully paid and
non-assessable and (B) free from all taxes, liens and charges
in the United States of America with respect to the issuance
thereof, other than any liens or encumbrances created by or imposed
by the Purchaser, and not subject to preemptive rights or other
similar rights of stockholders of the Company. Except for the
filing of any notice prior or subsequent to the Closing that may be
required under applicable state and/or Federal securities laws (or
comparable laws of any other jurisdiction) or the rules of Nasdaq,
no authorization, consent, approval, license, exemption of or
filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, is or will be
necessary for, or in connection with, the execution and delivery by
the Company of this Agreement, for the offer, issue, sale,
execution or delivery of the Shares, or for the performance by the
Company of its obligations under this Agreement.
-5-
(f) No Conflicts . The
execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a
violation of the Company’s Articles of Organization or
Bylaws; (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under any agreement, indenture or instrument to which the
Company or any of its Subsidiaries is a party; (iii) result in
a violation of any law, rule, regulation, order, judgment or decree
applicable to the Company or any of its Subsidiaries; or
(iv) result in the imposition of a mortgage, pledge, security
interest, encumbrance, charge or other lien on any asset of the
Company or its Subsidiaries, except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations, violations
and impositions as described in clauses (ii), (iii) or
(iv) of this sentence as would not, individually or in the
aggregate, have or result in a Material Adverse Effect.
(g) No Violation or Default .
Neither the Company nor any of its Subsidiaries is (i) in
violation of its Articles of Organization or Bylaws or other
organizational documents; (ii) in default (or subject to an
event which with notice or lapse of time or both would become a
default) under any agreement, indenture or instrument to which the
Company or any of its Subsidiaries is a party; or (iii) in
violation of any law, rule, regulation, order, judgment or decree
applicable to the Company or a
