COMMON STOCK PURCHASE AGREEMENT
Between
CV THERAPEUTICS, INC.
and
BIOTECH MANUFACTURING LTD.
Dated as of March 7, 1997
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement"),
dated as of this 7th day of March, 1997 (the "Effective Date"),
between CV Therapeutics, Inc. (the "Company") and Biotech
Manufacturing Ltd., a wholly-owned subsidiary of Biogen, Inc.(the
"Purchaser").
WHEREAS, the Purchaser desires to acquire and the Company is
willing to issue and sell to the Purchaser shares of Common
Stock, $.001 par value (the "Common Stock"), of the Company,
subject to the terms and conditions specified herein.
NOW, therefore, in consideration of the premises and the
mutual covenants contained in this Agreement, the parties agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. As used in this Agreement,
references to either gender shall include the other gender, and
the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Agreement" means this Common Stock Purchase Agreement,
as amended, modified or supplemented from time to time.
"Biogen Agreement" means the Research Collaboration and
License Agreement between the Company and Biogen, Inc. of
even date herewith, as amended, modified or supplemented
from time to time.
"Business Day" means any day on which commercial banks
are not authorized or required by law to close in New York,
New York.
"BML Collaboration Agreement" means the Research
Collaboration and License Agreement between the Company and
the Purchaser of even date herewith, as amended, modified or
supplemented from time to time.
"Commission" means the United States Securities and
Exchange Commission, or any other agency successor thereto.
"Common Stock" has the meaning specified in the
recitals to this Agreement.
"Company" means and shall include CV Therapeutics,
Inc., a Delaware corporation, and its successors and
permitted assigns.
"Current Per Share Market Price" of the Common Stock on
any date shall mean the average of the daily closing prices
per share of Common Stock for the 20 consecutive Trading
Days immediately prior to such date; provided that in the
event that the current per share market price of Common
Stock is determined during a period following the
announcement by the Company of (A) a dividend or
distribution on the Common Stock payable in shares of Common
Stock or securities convertible into shares of Common Stock
or (B) any subdivision, combination or reclassification of
the Common Stock and prior to the expiration of 20 Trading
Days after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such
case, the Current Per Share Market Price shall be
appropriately adjusted to reflect ex-dividend trading or
such subdivision, combination or reclassification. The
closing price for each day shall be the last reported sales
price of the Common Stock as reported by the Nasdaq National
Market, or the primary national securities exchange on which
the Common Stock is then quoted; provided, however, that if
the Common Stock is neither traded on the Nasdaq National
Market nor on a national securities exchange, the price
referred to above shall be the price in the over-the-counter
market as reported by the National Association of Securities
Dealers' Automated Quotation System or, if not so reported,
the price as reported by the National Quotation Bureau,
Inc., or any organization performing a similar function.
"First Anniversary Closing" has the meaning specified
in Section 3.01(a).
"First Anniversary Date" has the meaning specified in
Section 3.01(a).
"First Anniversary Shares" has the meaning specified in
Section 3.01(a).
"Initial Closing" has the meaning specified in Section
2.01(b).
"Initial Shares" has the meaning specified in Section
2.01(a).
"Investor Rights Agreement" means the Amended and
Restated Investor Rights Agreement dated May 29, 1996, as
amended, modified or supplemented from time to
time, by and among the Company and certain investors of the
Company (including the Purchaser).
"Loan Agreement" means the Loan Agreement of even date
herewith between the Company and the Purchaser, as amended,
modified or supplemented from time to time.
"Milestone Closing" has the meaning specified in
Section 3.03(a).
"Milestone Date" has the meaning specified in Section
3.03(a).
"Milestone Shares" has the meaning specified in Section
3.03(a).
"Person" means an individual, corporation, partnership,
association, joint venture, trust, or unincorporated
organization, or a government or any agency or political
subdivision thereof.
"Purchaser" means and shall include Biotech
Manufacturing Ltd., a wholly-owned subsidiary of Biogen,
Inc., and its successors and permitted assigns.
"Recapitalization Event" means any stock dividend,
stock split, combination, reorganization, recapitalization,
reclassification, consolidation, merger or similar event
involving a change in the Company's corporate structure.
"Second Anniversary Closing" has the meaning specified
in Section 3.02(a).
"Second Anniversary Date" has the meaning specified in
Section 3.02(a).
"Second Anniversary Shares" has the meaning specified
in Section 3.02(a).
"Securities Act" means the Securities Act of 1933 or
any similar Federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in
effect at the time.
"Shares" means (i) the Initial Shares, (ii) the First
Anniversary Shares, if issued pursuant to Section 3.01,
(iii) the Second Anniversary Shares, if issued pursuant to
Section 3.02, (iv) the Milestone Shares, if issued pursuant
to Section 3.03 and (v) any other shares of Common Stock
issued to the Purchaser in respect of the foregoing Shares
because of any Recapitalization Event.
"Trading Day" means a day on which the principal
national securities exchange on which the Common Stock is
listed or admitted to trading is open for the transaction of
business or, if the Common Stock is not listed or admitted
to trading on any national securities exchange, a Business
Day.
"Transaction Documents" shall mean this Agreement and
any other instruments or certificates to be executed and
delivered in connection with this Agreement upon the Initial
Closing.
ARTICLE II
PURCHASE AND SALE OF THE INITIAL SHARES
SECTION 2.01 Purchase and Sale of the Initial Shares.
(a) Issuance of the Initial Shares. Subject to the terms and
conditions of this Agreement, at the Initial Closing (as defined
below) the Company agrees to issue and sell to the Purchaser and
the Purchaser agrees to purchase from the Company, at an
aggregate purchase price of seven million dollars ($7,000,000),
such number of shares (rounded to the nearest whole share) of
Common Stock (the "Initial Shares") equal to 7,000,000 divided by
the product of 1.35 times the Current Per Share Market Price as
of the date which is two Business Days prior to the Initial
Closing. Notwithstanding the foregoing, in no event shall the
above calculation result in the Purchaser receiving less than
583,333 Initial Shares nor more than 736,842 Initial Shares in
exchange for payment of the aggregate purchase price as specified
above.
(b) Initial Closing; Delivery of the Initial Shares. The
purchase and sale of the Initial Shares shall take place at a
closing (the "Initial Closing") to be held at the offices of
Biogen, Inc., 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, at [__]
A.M. (local time) on March 10, 1997, or at such other location,
time and date as may be mutually agreed upon by the parties. At
the Initial Closing, subject to the terms and conditions
contained in this Agreement, the Company will provide evidence
satisfactory to the Purchaser that the Company has taken all
steps necessary to cause to be issued to the Purchaser a stock
certificate evidencing the Initial Shares, registered in the name
of the Purchaser and dated as of the date of the Initial Closing,
which stock certificate shall be delivered to the Purchaser
within two Business Days of the Initial Closing, against delivery
of a certified or official bank check payable to the order of the
Company in New York Clearing House or similar same day funds or
against receipt of a wire transfer of immediately available funds
to an account of the Company specified to the Purchaser, in an
amount equal to seven million dollars ($7,000,000), in payment of
the full purchase price for the Initial Shares.
ARTICLE III
PURCHASE OF ADDITIONAL SHARES
SECTION 3.01 Purchase and Sale of First Anniversary Shares.
(a) First Anniversary Shares. On the date which is the first
anniversary of the Effective Date or, if such date is not a
Business Day, on the next Business Day (the "First Anniversary
Date"), unless either the Company or Biogen, Inc. has delivered a
notice of termination of the Research Program (as defined in the
Biogen Agreement) prior to the First Anniversary Date, in
accordance with the provisions of Section 8.5 of the Biogen
Agreement, the Company shall become obligated to issue and sell
to the Purchaser and the Purchaser shall become obligated to
purchase from the Company, in each case subject to and in
reliance upon the representations, warranties, terms and
conditions of this Agreement, at an aggregate purchase price of
two million dollars ($2,000,000), such number of shares (rounded
to the nearest whole share) of Common Stock (the "First
Anniversary Shares") equal to 2,000,000 divided by the Current
Per Share Market Price on the date which is two Business Days
prior to the First Anniversary Date at a closing (the "First
Anniversary Closing").
(b) First Anniversary Closing; Delivery of First Anniversary
Shares. The purchase and sale of the First Anniversary Shares
shall take place at the First Anniversary Closing, to be held at
the principal offices of the Company, at 10:00 a.m. (local time)
on the date determined pursuant to subsection (a) above, or at
such other location, time, or date as may be mutually agreed
upon. At the First Anniversary Closing, subject to the terms and
conditions contained in this Agreement, the Company will issue a
stock certificate evidencing the First Anniversary Shares,
registered in the name of the Purchaser, against delivery of a
certified or official bank check payable to the order of the
Company in New York Clearing House or similar same day funds or
against receipt of a wire transfer of immediately available funds
to an account of the Company specified to the Purchaser, in the
amount equal to two million dollars ($2,000,000), in payment of
the full purchase price for the First Anniversary Shares.
SECTION 3.02 Purchase and Sale of Second Anniversary Shares.
(a) Second Anniversary Shares. On the date which is the second
anniversary of the Effective Date or, if such date is not a
Business Day, on the next Business Day (the "Second Anniversary
Date"), unless either the Company or Biogen, Inc. has delivered a
notice of termination of the Research Program (as defined in the
Biogen Agreement) prior to the Second Anniversary Date, in
accordance with the provisions of Section 8.5 of the Biogen
Agreement, the Company shall become obligated to issue and sell
to the Purchaser and the Purchaser shall become obligated to
purchase from the Company, in each case subject to and in
reliance upon the representations, warranties, terms and
conditions of this Agreement, at an aggregate purchase price of
two million dollars ($2,000,000), such number of shares (rounded
to the nearest whole share) of Common Stock (the "Second
Anniversary Shares") equal to 2,000,000 divided by the Current
Per Share Market Price on the date which is two Business Days
prior to the Second Anniversary Date at a closing (the "Second
Anniversary Closing").
(b) Second Anniversary Closing; Delivery of Second Anniversary
Shares. The purchase and sale of the Second Anniversary Shares
shall take place at the Second Anniversary Closing, to be held at
the principal offices of the Company, at 10:00 a.m. (local time)
on the date determined pursuant to subsection (a) above, or at
such other location, time, or date as may be mutually agreed
upon. At the Second Anniversary Closing, subject to the terms
and conditions contained in this Agreement, the Company will
issue a stock certificate evidencing the Second Anniversary
Shares, registered in the name of the Purchaser, against
delivery of a certified or official bank check payable to the order of
the Company in New York Clearing House or similar same day funds or
against receipt of a wire transfer of immediately available funds
to an account of the Company specified to the Purchaser, in the
amount equal to two million dollars ($2,000,000), in payment of
the full purchase price for the Second Anniversary Shares.
SECTION 3.03 Purchase and Sale of Milestone Shares.
(a) Milestone Shares. Fifteen days after the date on which the
Purchaser gives notice to the Company of its decision to commence
a Phase III clinical study of a PRODUCT for use in CHF, or
otherwise becomes obligated to purchase equity in the Company in
connection with such milestone, as defined and provided for in
the BML Collaboration Agreement, or, if such date is not a
Business Day, on the next Business Day (the "Milestone Date"),
the Company shall become obligated to issue and sell to the
Purchaser and the Purchaser shall become obligated to purchase
from the Company, in each case subject to and in reliance upon
the representations, warranties, terms and conditions of this
Agreement, at an aggregate purchase price of two million five
hundred thousand dollars ($2,500,000), such number of shares
(rounded to the nearest whole share) of Common Stock (the
"Milestone Shares") equal to 2,500,000 divided by the Current Per
Share Market Price on the date which is two Business Days prior
to the Milestone Date at a closing (the "Milestone Closing").
(b) Milestone Closing; Delivery of Milestone Shares. The
purchase and sale of the Milestone Shares shall take place at the
Milestone Closing, to be held at the principal offices of the
Company, at 10:00 a.m. (local time) on the date determined
pursuant to subsection (a) above, or at such other location,
time, or date as may be mutually agreed upon. At the Milestone
Closing, subject to the terms and conditions contained in this
Agreement, the Company will issue a stock certificate evidencing
the Milestone Shares, registered in the name of the Purchaser,
against delivery of a certified or official bank check payable to
the order of the Company in New York Clearing House or similar
same day funds or against receipt of a wire transfer of
immediately available funds to an account of the Company
specified to the Purchaser, in the amount equal to two million
five hundred thousand dollars ($2,500,000), in payment of the
full purchase price for the Milestone Shares.
SECTION 3.04 Limit on Share Ownership. Notwithstanding any
provision of this Agreement to the contrary, Purchaser shall in
no event be required to purchase shares of Common Stock if, after
giving effect to such purchase, the sum of (i) the number of
shares of Common Stock purchased hereunder and (ii) the number of
shares of Common Stock of the Company tendered to the Purchaser
in connection with the Loan Agreement would exceed 19.9% of the
amount of the then outstanding shares of Common Stock.
Notwithstanding the foregoing, in order to insure for the Company
the benefits of the transactions contemplated in this Agreement
and the Loan Agreement, and the covenants set forth in Section
7.01 hereof, to the extent that Purchaser has acquired Voting
Securities in transactions other than those described in Article
III hereof and the Loan Agreement ("Other Voting Securities") the
Purchaser shall sell such Other Voting Securities to the extent
necessary to permit the transactions contemplated herein or in
the Loan Agreement to be consummated without violation of the
provisions of this Section 3.04 and Section 7.01 hereof.
SECTION 3.05 Certain Trading Restrictions. Purchaser will not,
nor will it permit any of its Affiliates (as such term is used in
Rule 12b-2 of the Securities Exchange Act of 1934 (the "Exchange
Act"), such term to have such definition as used throughout this
Agreement) to, during the 30 consecutive Trading Days prior to
the date of any determination of Current Per Share Market Price
hereunder, (a) acquire any Voting Securities (as defined in
Section 7.01), (b) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any
Voting Securities or (c) enter into any swap or similar agreement
that transfers, in whole or in part, the economic risk of
ownership of Voting Securities, whether any such transaction
described in clause (a), (b) or (c) above is to be settled by
delivery of Voting Securities or such other securities, in cash
or otherwise.
SECTION 3.06 Compliance with NASDAQ Stock Market Rule
4460(i)(1)(D). Notwithstanding any provision of this Agreement
to the contrary, except as otherwise permitted by the rules of
the NASDAQ Stock Market, the Company shall in no event be
obligated to issue and sell, and the Purchaser shall in no event
be obligated to purchase, shares of Common Stock pursuant to
Article III hereof or the Loan Agreement, to the extent that such
issuance and sale would result in the number of shares of Common
Stock purchased hereunder and tendered in connection with the
Loan Agreement constituting (i) the sale or issuance of 20% or
more of the Common Stock or (ii) the sale or issuance of
securities constituting 20% or more of voting power for less than
the greater of book or market value.
ARTICLE IV
CONDITIONS TO CLOSINGS
SECTION 4.01 Mutual Conditions to Closings. The obligation of
the Purchaser to purchase and pay for, and the obligation of the
Company to issue and sell to the Purchaser, the Initial Shares at
the Initial Closing, the First Anniversary Shares at the First
Anniversary Closing, the Second Anniversary Shares at the Second
Anniversary Closing, and the Milestone Shares at the Milestone
Closing, in each case is subject to the following conditions:
(i) No Injunction. No injunction or order of any court or other
governmental authority restraining the consummation of the
transactions provided for herein or contemplated by the other
Transaction Documents shall be in effect; and
(ii) No Termination. This Agreement shall not have been
terminated pursuant to Section 8.03, and neither the BML
Collaboration Agreement nor the Biogen Agreement shall have been
terminated.
SECTION 4.02 Conditions to Purchaser's Obligations. The
obligation of the Purchaser to purchase and pay for the Initial
Shares at the Initial Closing, the First Anniversary Shares at
the First Anniversary Closing, the Second Anniversary Shares at
the Second Anniversary Closing and the Milestone Shares at the
Milestone Closing, in each case is subject to the following
additional conditions:
(i) Representations and Warranties. Each of the representations
and warranties of the Company set forth in Article V hereof shall
be true and correct in all material respects on the date of such
closing;
(ii) Executed Counterparts. The Purchaser shall have received
prior to or at the Initial Closing counterparts of each of the
Transaction Documents, the Biogen Agreement, the BML
Collaboration Agreement and the Loan Agreement, each in form and
substance reasonably satisfactory to the Purchaser, duly executed
by the Company;
(iii) Delivery of Stock Certificates. The Company shall have
delivered to the Purchaser (i) at the Initial Closing, evidence
satisfactory to the Purchaser that the Company has taken all
steps necessary to cause to be issued to the Purchaser a stock
certificate evidencing the Initial Shares, as specified in
Section 2.01(b), and (ii) at the other closings contemplated
hereunder, a stock certificate evidencing the First Anniversary
Shares, the Second Anniversary Shares or the Milestone Shares (as
the case may be), registered in the name of the Purchaser;
(iv) Opinion of Counsel. The Purchaser shall have received prior
to or at the Initial Closing an opinion from counsel to the
Company in substantially the form attached hereto as Exhibit A;
(v) Documentation at Initial Closing. The Purchaser shall have
received, prior to or at the Initial Closing, a certificate,
executed by the Secretary of the Company and dated as of the date
of the Initial Closing, together with and certifying as to (A)
the resolutions of the Board of Directors of the Company
authorizing the execution and delivery of this Agreement, the
Biogen Agreement, the BML Collaboration Agreement, the Loan
Agreement and the other Transaction Documents and the performance
by the Company of all transactions contemplated hereby and
thereby; (B) a copy of the Certificate of Incorporation of the
Company, as amended and in effect as of the date of the Initial
Closing; (C) a copy of the by-laws of the Company, as amended and
in effect as of the date of the Initial Closing; and (D) the
names of the officers of the Company authorized to sign the
Transaction Documents together with the true signatures of such
officers;
(vi) Documents and Proceedings. All documents to be provided to
the Purchaser hereunder, and all corporate and other proceedings
taken or required to be taken in connection with the transactions
contemplated hereby and to be consummated at or prior to the
Initial Closing, the First Anniversary Closing and the Second
Anniversary Closing and the Milestone Closing (as the case may
be) and all documents incident thereto, shall be satisfactory in
form and substance to the Purchaser or its counsel; and
(vii) Waiver. Any condition specified in this Section 4.02
may be waived by the Purchaser.
SECTION 4.03 Conditions to Company's Obligations. The
obligation of the Company to issue and sell the Initial Shares at
the Initial Closing, the First Anniversary Shares at the First
Anniversary Closing, the Second Anniversary Shares at the Second
Anniversary Closing and the
Milestone Shares at the Milestone Closing, in each case is subject to the
following additional conditions:
(i) Representations and Warranties. Each of the representations
and warranties of the Purchaser set forth in Article V hereof
shall be true and correct in all material respects on the date of
such closing;
(ii) Executed Counterparts. The Company shall have received
prior to or at the Initial Closing counterparts of each of the
Transaction Documents, the Biogen Agreement, the BML
Collaboration Agreement and the Loan Agreement, each in form and
substance reasonably satisfactory to the Company, duly executed
by the Purchaser (or Biogen, Inc., as the case may be);
(iii) Payment. The Company shall have received payment in
full for the Initial Shares, the First Anniversary Shares, the
Second Anniversary Shares or the Milestone Shares (as the case
may be), in accordance with Section 2.01, 3.01, 3.02 or 3.03, as
applicable;
(iv) Documentation at Initial Closing. The Company shall have
received, prior to or at the Initial Closing, a certificate,
executed by the Secretary or an Assistant Secretary of Biogen,
Inc. and dated as of the date of the Initial Closing, together
with and certifying as to (A) the resolutions of the Board of
Directors of Biogen, Inc. authorizing the execution and delivery
of this Agreement, the Biogen Agreement, the BML Collaboration
Agreement, the Loan Agreement and the other Transaction Documents
and the performance by Biogen, Inc. or the Purchaser of all
transactions contemplated hereby and thereby; and (B) the names
of the officers of each of Biogen, Inc. and the Purchaser
authorized to sign the Transaction Documents together with the
true signatures of such officers;
(v) Documents and Proceedings. All documents to be provided to
the Company hereunder , and all corporate and other proceedings
taken or required to be taken in connection with the transactions
contemplated hereby and to be consummated at or prior to the
Initial Closing, the First Anniversary Closing, the Second
Anniversary Closing and the Milestone Closing (as the case may
be) and all documents incident thereto, shall be satisfactory in
form and substance to the Company or its counsel; and
(vi) Waiver. Any condition specified in this Section 4.03 may be
waived by the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser as follows:
(a) Organization and Standing of the Company. The Company is a
duly organized and validly existing corporation in good standing
under the laws of the State of
Delaware and has all requisite corporate power and authority to own
and operate its assets and properties and to conduct its business as
presently conducted, except where the failure to do so would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(b) Corporate Action. The Company has all necessary corporate
power and has taken all corporate action required to authorize
its execution and delivery of, and its performance under, the
Transaction Documents and the Company has all necessary corporate
power and has taken all corporate action required to authorize
the issuance and sale of the Initial Shares, the First
Anniversary Shares, the Second Anniversary Shares and the
Milestone Shares and to consummate the other transactions
contemplated by the Transaction Documents.
(c) Governmental Approvals. No authorization, consent,
approval, license, exemption of or filing or registration with
any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, is necessary for,
or in connection with, the issuance and sale of (w) the Initial
Shares on the date of the Initial Closing, (x) the First
Anniversary Shares on the date of the First Anniversary Closing,
(y) the Second Anniversary Shares on the date of the Second
Anniversary Closing, or (z) the Milestone Shares on the date of
the Milestone Closing, or the execution and delivery by the
Company of, or for the performance by it of its obligations
under, the Transaction Documents.
(d) Capitalization. As of the date hereof, the authorized
capital stock of the Company is 30,000,000 shares of Common
Stock, $.001 par value, of which 6,211,817 shares are issued and
outstanding as of the date hereof and of which 23,039 shares are
treasury shares as of the date hereof. The Initial Shares, when
issued against payment of the aggregate purchase price set forth
in Section 2.01, the First Anniversary Shares, if and when issued
against payment of the aggregate purchase price set forth in
Section 3.01, the Second Anniversary Shares, if and when issued
against payment of the aggregate purchase price set forth in
Section 3.02, and the Milestone Shares, if and when issued
against payment of the aggregate purchase price set forth in
Section 3.03, will be duly authorized, validly issued and fully
paid and non-assessable and not subject to any lien, claims or
encumbrances by reason of the Company's charter or bylaws or by
reason of any other consensual action taken by the Company. As
of the date hereof, except as described or contemplated in the
IPO Registration Statement (as defined in Section 5.01(j)) and
the SEC Reports (as defined in Section 5.01(k), there are no
options, warrants, convertible securities or other rights to
purchase shares of capital stock or other securities of the
Company which are authorized, issued or outstanding, nor is the
Company obligated in any other manner to issue shares of its
capital stock or other securities, and the Company has no
obligation to purchase, redeem or otherwise acquire any shares of
its capital stock or any interest therein or to pay any dividend
or make any other distribution in respect thereof, except as
contemplated by the Transaction Documents. Except as described
in the IPO Registration Statement and the SEC Reports, and except
as otherwise contemplated by the Transaction Documents, (i) no
person is entitled to any preemptive right, catch-up right, right
of first refusal or similar right with respect to the issuance of
any capital stock of the Company, (ii) there are no restrictions
on the transfer of shares of capital stock of the Company other
than those imposed by relevant federal and state securities laws
and (iii) there exists no agreement between the Company's
stockholders and to which the Company is party with respect to
the voting or transfer of the Company's capital stock or with
respect to any other aspect of the Company's affairs.
(e) Registration Rights. As of the Initial Closing Date, no
person has demand or other rights to cause the Company to file
any registration statement under the Securities Act relating to
any securities of the Company or any right to participate in any
such registration statement except as set forth in the Investor
Rights Agreement, as amended.
(f) Enforceability. The Company has duly authorized, executed
and delivered the Transaction Documents, and the Transaction
Documents constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their respective
terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and to general
principles of equity and limitations on availability of equitable
relief, including specific performance, and except as rights to
indemnification therein may be limited by applicable laws.
(g) Absence of Conflicts. The Company's execution, delivery and
performance of its obligations under this Agreement do not and
will not (i) contravene its Amended and restated Certificate of
Incorporation or Restated By-laws (ii) violate any law, rule,
regulation, order, judgment or decree applicable to or binding
upon the Company or its properties, which violation would have a
material adverse effect on the Company and its subsidiaries taken
as a whole, (iii) constitute a breach or default or require any
consent under any agreement or instrument to which the Company is
a party or by which the Company or its properties is bound or
affected which breach or default, or the absence of such consent,
would have a material adverse effect on the Company and its
subsidiaries taken as a whole, or (iv) require any consent,
permit, approval, action, filing or recording.
(h) Financial Statements. The Company has previously furnished
to the Purchaser a copy of the unaudited balance sheet of the
Company at December 31, 1996 and any subsequent complete fiscal
year and the related income statement for the year then ended
(collectively, the "Financial Statements"). The Financial
Statements are correct in all material respects, present fairly
the financial condition and results of operations of the Company,
as of the dates and for the periods indicated, and have been
prepared in accordance with generally accepted accounting
principles consistently applied, subject to the absence of notes
and normal year end adjustments.
(i) Absence of Material Adverse Change. Since the date of the
Financial Statements, there has been no change in the assets,
liabilities or financial condition of the Company which, when
taken together with all other changes in the assets, liabilities
or financial condition of the Company, has had a material adverse
effect on the business, prospects, financial condition,
operations, property or affairs of the Company.
(j) Full Disclosure. The Company has furnished or made
available to Purchaser the following documents, and the Company
warrants that the information contained in such documents, as of
their respective dates (or if amended, as of the date of such
amendment), did not contain any untrue statement of a material
fact, and did not omit to state any material fact necessary to
make any statement, in light of the circumstances under which
such statement was made, not misleading:
(i) The Company's Registration Statement No. 333-12675 declared
effective by the Securities Exchange Commission on November 19,
1996 and Prospectus dated November 19, 1996 (the "IPO
Registration Statement"); and
(ii) All other documents subsequently filed by the Company with
the SEC pursuant to the reporting requirements of the 1934 Act.
(k) SEC Reports.
(i) The Company has filed with the Commission all reports ("SEC
Reports") required to be filed by it under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). All of
the SEC Reports filed by the Company comply in all material
respects with the requirements of the Exchange Act. All
financial statements contained in the SEC Reports have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the period indicated
("GAAP"). Each balance sheet presents fairly in accordance with
GAAP the financial position of the Company as of the date of such
balance sheet, and each statement of operations, of stockholders'
equity and of cash flows presents fairly in accordance with GAAP
the results of operations, the stockholders' equity and the cash
flows of the Company for the periods then ended.
(ii) The SEC Reports, as of their respective dates (or if
amended, as of the date of such amendment), and this Agreement
taken together as a whole will not, on the date of the Initial
Closing or the date of any subsequent closing pursuant to Article
III, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be
state therein, or necessary to make the statements contained
therein, in light of the circumstances under which they were
made, not misleading.
(l) Securities Laws. Assuming the accuracy of the
representations and warranties of the Purchaser contained in
Section 5.02 hereof, the issuance of the Shares is exempt from
the provisions of the Securities Act. All notices, filings,
registrations, or qualifications under state securities or
"bluesky" laws which are required in connection with the offer,
issue and delivery of the Shares pursuant-to this Agreement, if
any, have been or will be completed by the Company.
(m) Closing Date. The representations and warranties of the
Company contained in this Section 5.01 and elsewhere in this
Agreement will be true and correct in all material respects on
the date of the Initial Closing or the date of any subsequent
closing pursuant to Article III, as the case may be, as though
then made, except as affected by the transactions expressly
contemplated by this Agreement.
SECTION 5.02 Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Company as follows:
(a) Organization and Standing. The Purchaser is a duly
organized and validly existing corporation in good standing and
has all requisite corporate power and authority to own and
operate its assets and properties and to conduct its business as
presently conducted, except where the failure to do so would not
have a material adverse effect on the Purchaser and its
subsidiaries taken as a whole.
(b) Corporate Action. The Purchaser has all necessary corporate
power and has taken all corporate action required to authorize
its execution and delivery of, and its performance under, the
Transaction Documents to which it is a party and has all
necessary corporate power and has taken all corporate action
required to authorize its purchase of the Initial Shares, the
First Anniversary Shares, the Second Anniversary Shares and the
Milestone Shares and to consummate the other transactions
contemplated by the Transaction Documents.
(c) Investment Intent. The Purchaser is acquiring (w) the
Initial Shares on the date of the Initial Closing, (x) the First
Anniversary Shares on the date of the First Anniversary Closing,
(y) the Second Anniversary Shares on the date of the Second
Anniversary Closing and (z) the Milestone Shares on the date of
the Milestone Closing for its own account for the purpose of
investment and not with a view to, or for sale in connection
with, the distribution thereof, and that it has no present
intention of distributing or selling such Shares. The Purchaser
understands that such Shares have not been registered under the
Securities Act, or the securities laws of any state or other
jurisdiction, and hereby agrees not to make any sale, transfer or
other disposition of such Shares unless either (i) such Shares
have been registered under the Securities Act and all applicable
state and other securities laws and any such registration remains
in effect or (ii) the Company shall have received an opinion of
counsel in form and substance satisfactory to the Company that
registration is not required under the Securities Act or under
applicable securities laws.
(d) Opportunity to Investigate. The Purchaser (i) has had the
opportunity to ask questions concerning the Company and all such
questions posed have been answered to its satisfaction; (ii) has
been given the opportunity to obtain any additional information
it deems necessary to verify the accuracy of any information
obtained concerning the Company; and (iii) has such knowledge and
experience in financial and business matters that it is able to
evaluate the merits and risks of purchasing the Shares and to
make an informed investment decision relating thereto.
(e) Accredited Investor. The Purchaser is an "accredited
investor" as such term is defined in Regulation D under the
Securities Act.
(f) Enforceability. The Purchaser has duly authorized, executed
and delivered the Transaction Documents to which it is a party,
and such Transaction Documents constitute the legal, valid and
binding obligations of the Purchaser, enforceable in accordance
with their respective terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and
to general principles of equity and limitations on availability
of equitable relief, including specific performance, and except
as rights to indemnification therein may be limited by applicable
laws.
(g) Closing Date. The representations and warranties of the
Purchaser contained in this Section 5.02 and elsewhere in this
Agreement, and all information contained in any writing delivered
by, or on behalf of, the Purchaser to the Company, will be true
and correct in all material respects on the date of the Initial
Closing or the date of any subsequent closing pursuant to Article
III, as the case may be, as though then made, except as affected
by the transactions expressly contemplated by this Agreement.
ARTICLE VI
COVENANTS
SECTION 6.01 Performance. Each party shall perform all of its
obligations hereunder and shall, at or prior to the Initial
Closing, execute and deliver the other Transaction Documents, the
Biogen Agreement and the BML Collaboration Agreement to which it
is contemplated to be a signatory.
SECTION 6.02 Cooperation. Each party shall endeavor in good
faith to perform and fulfill all conditions and obligations on
their respective parts to be fulfilled or performed hereunder or
under the other Transaction Documents, to the end that the
transactions contemplated hereby and thereby will be fully and
timely consummated.
SECTION 6.03 Registration Rights. The Company shall, as
promptly as practicable, and in any event not later than ten (10)
business days after the Initial Closing Date, cause an amendment
to the Investor Rights Agreement to be executed, pursuant to
which, in each case effective as of the date of the Initial
Closing (the "Amendment"):
(a) the Purchaser shall be made a party to the Investor Rights
Agreement and included in the definition of "Investors" for all
purposes of the Investor Rights Agreement;
(b) all shares of Common Stock issued or issuable to the
Purchaser hereunder are included in the definition of
"Registrable Securities" in Section 2.6 of the Investor Rights
Agreement for all purposes of the Investor Rights Agreement; and
(c) the address for the Purchaser to be used for notices and
communications under the Investor Rights Agreement will be:
BIOGEN, INC., 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, Attention: President, with a copy to BIOGEN, INC., 00
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Vice
President and General Counsel.
In the event that the Amendment is not executed within such
period, the Company will enter into a Registration Rights
Agreement with the Purchaser, in form and substance satisfactory
to the Purchaser, granting the Purchaser registration rights with
respect to all shares of Common Stock issued or issuable to the
Purchaser hereunder equivalent to the registration rights the
Purchaser would have had as an Investor under the Investor Rights
Agreement.
SECTION 6.04 Broker's Fee. Each of the Company and the
Purchaser hereby represents and covenants that except for amounts
to be paid to Medical Portfolio Management by Purchaser, there
are no brokers or finders entitled to compensation in connection
with the sale of the Stock, and shall indemnify each other for
any such fees for which they are responsible.
ARTICLE VII
LIMITATIONS AND RESTRICTIONS
SECTION 7.01 Restrictions on Certain Actions by Purchaser.
(a) The Purchaser agrees that, during the period commencing on
the date hereof and ending on the date which is the third
anniversary of the date on which the BML Collaboration Agreement
ceases to be in full force and effect, the Purchaser will not,
nor will it permit any of its Affiliates to, acquire or offer or
propose to acquire any shares of Common Stock or any securities
convertible into, exchangeable for or exercisable for Common
Stock (all such securities, collectively, "Voting Securities")
which, when taken together with any Voting Securities then owned
by the Purchaser and its Affiliates, would, in the aggregate,
exceed an amount equal to fifteen percent (15%) of the Company's
then outstanding Voting Securities, unless in any such case
specifically invited to do so by the Board of Directors of the
Company; provided that this provision shall not prevent the
Purchaser or its Affiliates (i) from acquiring Voting Securities
as a result of the provisions of Article III of this Agreement or
(ii) from acquiring any Voting Securities as a result of the
repayment, in whole or in part, of the Loan Agreement with any
Voting Securities. Notwithstanding any provision of this
Agreement to the contrary, Purchaser shall in no event be
required to purchase shares of Common Stock if, after giving
effect to such purchase, the sum of (i) the number of shares of
Common Stock purchased hereunder and (ii) the number of shares of
Common Stock of the Company tendered to the Purchaser in
connection with the Loan Agreement would exceed 19.9% of the
amount of the then outstanding shares of Common Stock.
Notwithstanding the foregoing, in order to insure for the Company
the benefits of the transactions contemplated in this Agreement
and the Loan Agreement, and the covenants set forth in this
Section 7.01, to the extent that Purchaser has acquired Voting
Securities in transactions other than those described in Article
III hereof and the Loan Agreement ("Other Voting Securities") the
Purchaser shall sell such Other Voting Securities to the extent
necessary to permit the transactions contemplated herein or in
the Loan Agreement to be consummated without violation of the
provisions of Section 3.04 and this Section 7.01.
(b) The Purchaser acknowledges and agrees that irreparable
damage would occur in the event that any of the provisions of
this Section 7.01 were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Section
7.01 and to enforce specifically the terms and provisions hereof
in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which they may
be entitled at law or equity.
SECTION 7.02 Restrictions on Sales by Purchaser. Purchaser
agrees that until the second anniversary of any Closing
hereunder, it will not, nor will it permit any of its Affiliates
to sell, solicit an offer to sell or propose to sell
(collectively "Sell"), any Shares purchased at such Closing
except as follows:
(a) Purchaser may transfer Shares to any of its Affiliates;
(b) Purchaser shall be permitted to sell or otherwise dispose of
such minimum number of as is required to reduce Purchaser's
ownership to (1) 19.99% of the Company's outstanding Common Stock
or (2) in the event that Purchaser is required to consolidate or
include the Company's profits and losses in its profit and loss
statements (and the aggregate amount of losses to be consolidated
may reasonably exceed $50,000), such lesser amount of the
Company's outstanding Common Stock as may be required in the
written opinion of Purchaser's independent public accountants in
order to avoid such consolidation or inclusion;
(c) Purchaser may sell its Shares pursuant to a tender offer or
exchange offer for all outstanding shares of the Company's Common
Stock approved by the Company's Board of Directors; and
(d) Without duplication of any of the Shares permitted to be
sold pursuant to any of the other provisions of this Section
7.02, Purchaser may sell all or any part of the Shares owned by
Purchaser or its Affiliates pursuant to the registration rights
provisions contained in the Loan Agreement (or any document
relating thereto) or in the Investor Rights Agreement, as amended
(or such other registration rights agreement as may be entered
into between the parties pursuant to the provisions of Section
6.03 hereof); provided, however, that, with respect to any
registration statement or statements relating to a non-
underwritten offering filed pursuant to such agreements,
Purchaser shall not (i) seek to register on such registration
statement or statements, in any period of 12 consecutive months,
shares of Common Stock in an amount in excess of 10% of the
amount of then outstanding Common Stock at the commencement of
such 12 month period or (ii) sell in any period of three
consecutive months shares of Common Stock in an amount in excess
of 2.5% of the amount of then outstanding Common Stock at the
commencement of such three month period.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Notices. All notices, requests, consents and
other communications hereunder shall be in writing, shall be
addressed to the receiving party's address set forth below or to
such other address as a party may designate by notice hereunder,
and shall be either (i) delivered by hand, (ii) made by telecopy
or facsimile transmission (receipt confirmed), (iii) sent by
international overnight or express courier, or (iv) sent by
registered mail, return receipt requested, postage prepaid.
If to the Company: CV Therapeutics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Chief Executive Officer
FAX:
with a copy to: Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
FAX: 000-000-0000
If to the Purchaser: Biogen Manufacturing, Ltd.
Xx. Xxxx'x Xxxx
Xxx Xxxxxx
Xx. Xxxxxx, Xxxxxx XX00X
Channel Islands
Attn: Director
FAX: 000-00-000-000-0000
with a copy to: Biogen, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Vice President and General
Counsel
FAX: 000-000-0000
All notices, requests, consents and other communications
hereunder shall be deemed to have been given either (i) if by
hand, at the time of the delivery thereof to the receiving party
at the address of such party set forth above, (ii) if made by
telecopy or facsimile transmission, at the time that receipt
thereof has been acknowledged by electronic confirmation or
otherwise, (iii) if sent by overnight or express courier, on the
Business Day following the day such notice is delivered to the
courier service, or (iv) if sent by registered mail, on the 5th
Business Day following the day such mailing is made.
SECTION 8.02 Legends. The Purchaser acknowledges that, until
registered under the Securities Act and any applicable state
securities laws or transferred pursuant to the provisions of Rule
144 promulgated under the Securities Act ("Rule 144"), each
certificate representing a Share, whether upon initial issuance
or upon any transfer thereof, shall bear a legend (and the
Company and its transfer agent shall make a notation on its books
of transfer to such effect), prominently stamped or printed
thereon, in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY
APPLICABLE STATE OR OTHER JURISDICTION, HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE AND MAY NOT BE SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING
SUCH SECURITIES UNDER THE ACT AND ANY SECURITIES LAWS
OF ANY APPLICABLE STATE OR OTHER JURISDICTION OR A
WRITTEN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNDER
OTHER APPLICABLE SECURITIES LAWS."
SECTION 8.03 Termination. If the Initial Closing has not
occurred on or prior to June 30, 1997, or if prior to the Initial
Closing the Company or the Purchaser has been notified that the
United States Department of Justice or the Federal Trade
Commission, or any other Federal, state or other governmental
agency or instrumentality the consent of approval of which is
contemplated by the terms of this Agreement, any other
Transaction Document, the Biogen Agreement, the BML Collaboration
Agreement or the Loan Agreement, is prepared to (a) seek a
preliminary injunction to enjoin the consummation of the
transactions contemplated hereunder or thereunder or (b) grant
such consent or approval upon the condition that any material
action or forbearance of action not otherwise specifically
required of the party choosing to terminate pursuant to this
Section 8.03 be taken, then (i) the Company may terminate this
Agreement by written notice to the Purchaser and (ii) the
Purchaser may terminate this Agreement by written notice to the
Company.
SECTION 8.04 Entire Agreement. This Agreement embodies the
entire agreement and understanding between the parties hereto
with respect to the provisions hereof and supersedes all prior
oral or written agreements and understandings relating to the
provisions hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this
Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
SECTION 8.05 Modifications and Amendments. The terms and
provisions of this Agreement may be modified or amended only by
written agreement executed by all parties hereto.
SECTION 8.06 Waivers and Consents. Except as other expressly
provided herein, the terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only
by written document executed by the party entitled to the
benefits of such terms or provisions. No such waiver or consent
shall be deemed to be or shall constitute a waiver or consent
with respect to any other terms or provisions of this Agreement,
whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for
which it was given, and shall not constitute a continuing waiver
or consent.
SECTION 8.07 Assignment. The rights and obligations under this
Agreement may not be assigned by either party hereto without the
prior written consent of the other party (which consent shall not
be unreasonably withheld, except that the Purchaser without the
consent of the Company may assign this Agreement or any of its
rights or obligations to an Affiliate of the Purchaser or to an
entity with which the Purchaser shall merge or consolidate or to
which the Purchaser shall sell or assign all or substantially all
of its assets, and except that the Company may without the
consent of the Purchaser may assign this Agreement to an entity
with which the Company shall merge or consolidate or to which the
Company shall sell or assign all or substantially all of its
assets.
SECTION 8.08 Benefit. All statements, representations,
warranties, covenants and agreements in this Agreement shall be
binding on the parties hereto and shall inure to the benefit of
the respective successors and permitted assigns of each party
hereto. Nothing in this Agreement shall be construed to create
any rights or obligations except among the parties hereto, and no
person or entity shall be regarded as a third-party beneficiary
of this Agreement.
SECTION 8.09 Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed in
accordance with and governed by the law of the State of Delaware,
without giving effect to the conflict of law principles thereof.
SECTION 8.10 Severability. In the event that any court of
competent jurisdiction shall determine that any provision, or any
portion thereof, contained in this Agreement shall be
unenforceable in any respect, then such provision shall be deemed
limited to the extent that such court deems it enforceable, and
as so limited shall remain in full force and effect. In the
event that such court shall deem any such provision, or portion
thereof, wholly unenforceable, the remaining provisions of this
Agreement shall nevertheless remain in full force and effect.
SECTION 8.11 Interpretation. The parties hereto acknowledge
and agree that: (1) each party and its counsel reviewed and
negotiated the terms and provisions of this Agreement and have
contributed to its revision; (ii) the rule of construction to the
effect that any ambiguities are resolved against the drafting
party shall not be employed in the interpretation of this
Agreement; and (iii) the terms and provisions of this Agreement
shall be construed fairly as to all parties hereto and not in
favor of or against any party, regardless of which party was
generally responsible for the preparation of this Agreement.
SECTION 8.12 Headings and Captions. The headings and captions
of the various subdivisions of this Agreement are for convenience
of reference only and shall in no way modify, or affect the
meaning or construction of any of the terms or provisions hereof.
SECTION 8.13 Enforcement. Each of the parties hereto
acknowledges and agrees that the rights acquired by each party
hereunder are unique and that irreparable damage would occur in
the event that any of the provisions of this Agreement to be
performed by the other party were not performed in accordance
with their specific terms or were otherwise breached.
Accordingly, in addition to any other remedy to which the parties
hereto are entitled at law or in equity, each party hereto shall
be entitled to an injunction or injunctions to prevent breaches
of this Agreement by the other party.
SECTION 8.14 No Waiver of Rights, Powers and Remedies. No
failure or delay by a party hereto in exercising any right, power
or remedy under this Agreement, and no course of dealing between
the parties hereto, shall operate as a waiver of any such right,
power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party
hereto, nor any abandonment or discontinuance of steps to enforce
any such right, power or remedy, shall preclude such party from
any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the
right of such party to pursue other available remedies. No
notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand
to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party
giving such notice or demand to any other or further action in
any circumstances without such notice or demand.
SECTION 8.15 Expenses. Each of the parties hereto shall pay
its own fees and expenses in connection with this Agreement and
the transactions contemplated hereby whether or not the
transactions contemplated hereby are consummated.
SECTION 8.16 Confidentiality. Each of the Purchaser, on the
one hand, and the Company, on the other hand, acknowledges and
agrees that any information or data it has acquired from the
other, not otherwise properly in the public domain, was received
in confidence. Each party agrees not to divulge, communicate or
disclose, or use to the detriment of the disclosing party or for
the benefit of any other person or persons, or misuse in any way,
any confidential information of the disclosing party concerning
the subject matter hereof; provided that (i) the foregoing
obligation with respect to the disclosure and use of such
information shall not apply to any information which such party
can demonstrate (A) was at the time of disclosure to such party
or thereafter, but prior to its disclosure by such party to any
third party, through no fault of such party, publicly available
(other than as a result of disclosure by such party), (B) has
been disclosed to such party on a nonconfidential basis from a
source other than any other party which, to such party's
knowledge, was not prohibited from disclosing such information to
such party by a legal, contractual, fiduciary or other
obligation, (C) has been independently developed by the such
party without the violation of any of my obligations under this
Agreement, the Biogen Agreement, the BML Collaboration Agreement
or the Loan Agreement or (D) is required to be disclosed by
applicable law (including, without limitation, the federal
securities laws) and (ii) such party may, if required by subpoena
or valid legal process, disclose any such information, but only
to the extent so required and only after using its best efforts
to give the other party or parties (as the case may be) prior
notice of such required disclosure in order to afford such party
or parties an opportunity to obtain an injunction, a protective
order or other relief.
SECTION 8.17 Publicity. No party shall issue any press release
or otherwise make any public statement with respect to the
execution of, or the transactions contemplated by, this Agreement
without the prior written consent of the other party, except as
may be required by applicable law, rule or regulation; provided
that once such other party has consented to a party's issuance or
making of a press release or public statement, any subsequent
issuance or making of such press release or public statement by
such party shall not require the separate written consent of the
other party. However, the parties recognize that the Purchaser
and the Company are each a publicly held company obligated under
the federal securities laws to make disclosures of
material events affecting it. Consequently, if advised by counsel
that such party is required to make such announcement under Federal or
state securities laws, the Purchaser or the Company (as the case
may be) may make such announcement. Such party agrees promptly
to inform the other party of such advice by counsel, provide a
copy of such announcement prior to disclosure and, if
practicable, to give the other party an opportunity to comment
upon the form of any required announcement.
SECTION 8.18 Counterparts. This Agreement may be executed in
one or more counterparts, and by different parties hereto on
separate counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Company and the Purchaser have
caused this Agreement to be executed in their names by their duly
authorized officers or representatives effective as of the date
first above written.
CV THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: CEO
BIOTECH MANUFACTURING LTD.
By:
Name:
Title:
IN WITNESS WHEREOF, the Company and the Purchaser have
caused this Agreement to be executed in their names by their duly
authorized officers or representatives effective as of the date
first above written.
CV THERAPEUTICS, INC.
By:
Name:
Title:
BIOTECH MANUFACTURING LTD.
By: /s/ Xxxxx X.X. Xxxxxxxx
Name:
Title:
