----------------------------------------
TRIANGLE PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
dated as of
June 2, 1999
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TABLE OF CONTENTS
PAGE
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SECTION 1 AUTHORIZATION AND SALE OF COMMON STOCK..........................................1
1.1 Authorization..................................................1
1.2 Sale of Common Stock...........................................1
1.3 Alternate Provisions...........................................1
1.4 Definition of Shares...........................................2
SECTION 2 CLOSING DATE; DELIVERY..........................................................2
2.1 Closing Date...................................................2
2.2 Delivery.......................................................2
2.3 Make-Up Closing................................................2
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................................3
3.1 Organization and Standing......................................3
3.2 Corporate Power; Authorization.................................3
3.3 Issuance and Delivery of the Shares............................4
3.4 SEC Documents; Financial Statements............................4
3.5 Governmental Consents..........................................5
3.6 No Material Adverse Change.....................................5
3.7 Authorized Capital Stock.......................................5
3.8 Litigation.....................................................5
3.9 Rights Agreement...............................................6
3.10 Section 203....................................................6
3.11 No Shareholder Vote............................................6
3.12 Other Representations and Warranties...........................7
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.................................7
4.1 Authorization..................................................7
4.2 Investment Experience..........................................7
4.3 Investment Intent..............................................7
4.4 Registration or Exemption Requirements.........................8
4.5 No Legal, Tax or Investment Advice.............................8
4.6 Legends........................................................8
4.7 Securities Ownership...........................................8
SECTION 5 CONDITIONS TO CLOSING OF PURCHASER..............................................8
5.1 Representations and Warranties.................................9
5.2 Performance....................................................9
5.3 Qualifications.................................................9
5.4 Other Agreements...............................................9
5.5 No Prohibition.................................................9
5.6 Existing Investors' Consent....................................9
5.7 Rights Agreement..............................................10
5.8 Board Representative..........................................10
5.9 Satisfaction of Collaboration Agreement Conditions............10
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TABLE OF CONTENTS (Continued)
PAGE
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5.10 Compliance Certificate........................................10
SECTION 6 CONDITIONS TO CLOSING OF COMPANY...............................................10
6.1 Representations and Warranties................................10
6.2 Performance...................................................11
6.3 Qualifications................................................11
6.4 Other Agreements..............................................11
6.5 No Prohibition................................................11
6.6 Existing Investors'Consent....................................11
6.7 Satisfaction of Collaboration Agreement Conditions............11
6.8 Compliance Certificate........................................11
SECTION 7 COVENANTS......................................................................12
7.1 HSR Act.......................................................12
7.2 Stockholder Consent...........................................12
7.3 Use of Funds..................................................12
SECTION 8 MISCELLANEOUS..................................................................12
8.1 Waivers and Amendments........................................12
8.2 Placement Agent's Fee.........................................12
8.3 Governing Law.................................................12
8.4 Dispute Resolution............................................12
8.5 Survival......................................................13
8.6 Successors and Assigns........................................13
8.7 Entire Agreement..............................................13
8.8 Notices, etc..................................................13
8.9 Severability of this Agreement................................14
8.10 Counterparts..................................................14
8.11 Termination...................................................14
8.12 Expenses......................................................15
8.13 Currency......................................................15
8.14 Attorneys' Fees...............................................15
8.15 No Third Party Rights.........................................15
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TRIANGLE PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is
made as of June 2, 1999, by and among Triangle Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), with its principal offices at 0
Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx Xxxxxxxx 00000, and
Xxxxxx Laboratories, an Illinois corporation (the "Purchaser"), with its
principal offices at 000 Xxxxxx Xxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000.
SECTION 1
AUTHORIZATION AND SALE OF COMMON STOCK
1.1 AUTHORIZATION. The Company has authorized the sale
and issuance of shares of its common stock, par value $.001 per share
(together with the associated preferred share purchase rights, the "Common
Stock") pursuant to this Agreement.
1.2 SALE OF COMMON STOCK. Except as otherwise provided
in Section 1.3 below and subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 2.1) the Company agrees to
issue and sell to the Purchaser and the Purchaser agrees to purchase from the
Company 6,571,428 shares of Common Stock (the "Maximum Shares") for the
purchase price of $118,285,704 (or $18.00 per share).
1.3 ALTERNATE PROVISIONS. The Company shall seek a
written determination from the Nasdaq Stock Market that the purchase and sale
of the Maximum Shares at the Closing does not require stockholder approval
under Rule 4460 of the Nasdaq National Market Issuer Designation Requirements
(a "Written Determination"). If the Company or its counsel receives a Written
Determination on or before the Closing Date (as defined in Section 2.1), then
the provisions of Section 1.2 shall be applicable and the remainder of this
Section 1.3 shall be inapplicable. However, if the Company or its counsel
does not receive a Written Determination on or before the Closing Date, then
Section 1.2 shall be inapplicable and, in lieu thereof, subject to the terms
and conditions of this Agreement, at the Closing the Company agrees to issue
and sell to the Purchaser and the Purchaser agrees to purchase from the
Company 6,116,229 shares of Common Stock (the "Minimum Shares") for the
purchase price of $110,092,122 (or $18.00 per share). As promptly as
practicable after the Closing of the purchase and sale of the Minimum Shares,
the Company will take, in accordance with applicable law and its certificate
of incorporation and bylaws, all action necessary to convene and hold a
meeting of holders of the Company's Common Stock (the "Stockholders Meeting")
to consider and vote upon the approval of the issuance to Purchaser of an
additional 455,199 shares of Common Stock (the "Make-Up Shares"). The
Company's Board of Directors shall recommend that the stockholders of the
Company approve the issuance to Purchaser of the Make-Up Shares and take all
lawful action to solicit such approval. If the issuance to Purchaser of the
Make-Up Shares is not approved at the Stockholders Meeting, then the Company
shall be under no obligation to sell and Purchaser shall be under no
obligation to purchase the Make-Up Shares.
1.4 DEFINITION OF SHARES. As used herein, the term
"Shares" shall be deemed to mean the Maximum Shares if Section 1.2 is
applicable and the Minimum Shares and the Make-Up Shares if Section 1.2 is
not applicable.
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale
of the Maximum Shares or the Minimum Shares, whichever is applicable,
hereunder (the "Closing") shall be held at 10:00 a.m. at the offices of
Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
as soon as practicable, but in any event no later than the fifth business day
following the expiration or early termination of all waiting periods imposed
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR Act"), and satisfaction (or waiver, if permissible) of, all other
closing conditions set forth in Sections 5 and 6 of this Agreement, or at
such other time and place upon which the Company and the Purchaser shall
agree. The date of the Closing is hereinafter referred to as the "Closing
Date".
2.2 DELIVERY. At the Closing, the Company will deliver
to the Purchaser a certificate, registered in the Purchaser's name,
representing the Maximum Shares or the Minimum Shares, whichever is
applicable, to be purchased by the Purchaser. Such delivery shall be against
payment of the purchase price therefor as set forth in Section 1.2 or Section
1.3, whichever is applicable, by wire transfer to the Company to the account
or accounts specified in writing (including bank name(s) and routing
number(s) and any other necessary wire transfer instructions) by the Company
at least two business days prior to the Closing.
2.3 MAKE-UP CLOSING. If the Purchaser purchases the
Minimum Shares at the Closing pursuant to Section 1.3 and the issuance to
Purchaser of the Make-Up Shares is approved at the Stockholders Meeting, then
the Company will, on the fifth business day following the date of the
Stockholders Meeting (the "Make-Up Closing Date"), issue and sell to the
Purchaser and the Purchaser will purchase from the Company the Make-Up Shares
at a purchase price of $8,193,582 (or $18.00 per share) (the "Make-Up
Closing"); provided, however, that the respective obligations of the Company
and the Purchaser to effect the Make-Up Closing shall be subject to the
continued satisfaction or waiver as of the Make-Up Closing of the conditions
set forth in Section 5 (with the exception of Section 5.1 as it applies to
the representation and warranties set forth in Sections 3.6 and 3.8 hereof)
and Section 6 (substituting therein the term "Make-Up Closing" for the term
"Closing," the term "Make-Up Closing Date" for the term "Closing Date" and
the term "Make-Up Shares" for the term "Minimum Shares"). The Make-Up Closing
will take place at such place as the parties hereto may mutually agree. At
the Make-Up Closing, the Company will deliver to the Purchaser a certificate,
registered in the Purchaser's name, representing the Make-Up Shares to be
purchased by the Purchaser. Such delivery shall be against payment of the
purchase price therefor as set forth in this Section 2.3 by wire transfer to
the Company to the account or accounts specified in writing (including bank
name(s) and routing number(s) and any other necessary wire transfer
instructions) by the Company as least two business days prior to the Make-Up
Closing.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as expressly limited in this Section 3, the Company
represents and warrants to the Purchaser as of the date of this Agreement as
follows:
3.1 ORGANIZATION AND STANDING. The Company is a
corporation duly organized and validly existing under, and by virtue of, the
laws of the State of Delaware and is in good standing as a domestic
corporation under the laws of said state. The Company is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which the
ownership of its property or the nature of its business requires such
qualification except where the failure to so qualify does not have a material
adverse effect on the business of the Company. Except as set forth on
Schedule 3.1, the Company has no subsidiaries or affiliated companies and
does not otherwise have any direct or indirect equity interest in or loans to
any partnership, corporation, limited liability company, joint venture,
business association or other entity. The Company has delivered to Purchaser
complete and correct copies of the Certificate of Incorporation and Bylaws of
the Company as amended to the date hereof.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all
requisite legal and corporate power and authority and has taken all requisite
corporate action to execute and deliver this Agreement and each of the
Related Agreements (as defined in Section 5.4) to sell and issue the Shares
and to carry out and perform all of its obligations under this Agreement and
each of the Related Agreements. This Agreement and each of the Related
Agreements constitute the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization or similar laws relating to or
affecting the enforcement of creditors' rights generally and (ii) as limited
by equitable principles generally. Except as set forth on Schedule 3.2, the
execution and delivery of this Agreement and each of the Related Agreements
does not, and the performance of this Agreement and each of the Related
Agreements and the compliance with the provisions hereof and thereof and the
issuance, sale and delivery of the Shares by the Company will not, conflict
with, or result in a breach or violation of the terms, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien pursuant to the terms of, the Certificate of
Incorporation or Bylaws of the Company or materially conflict with or result
in a material violation of the terms, conditions or provisions of, or
constitute a material default under, or result in the creation or imposition
of any material lien pursuant to the terms of any statute, law, rule or
regulation or any order, judgment, decree or any indenture, mortgage,
license, lease or other material agreement or instrument to which the Company
or any of its properties is subject.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares,
when issued in compliance with the provisions of this Agreement, will be
validly issued, fully paid and nonassessable. The issuance and delivery of
the Shares is not subject to preemptive rights, rights of first refusal or
any other similar rights of any person pursuant to any agreement between the
Company and any such person or pursuant to the Company's Certificate of
Incorporation or Bylaws. At the Closing, the Purchaser will receive good and
marketable title to the Shares free of any liens, encumbrances or
restrictions (unless created by the Purchaser), other than restrictions
expressly set forth in this Agreement or the Related Agreements or
restrictions on transferability under applicable securities laws.
3
3.4 SEC DOCUMENTS; FINANCIAL STATEMENTS. Each report or
proxy statement delivered to the Purchaser is a true and complete copy of
such document as filed by the Company with the Securities and Exchange
Commission (the "SEC"). The Company has delivered to the Purchaser its Annual
Report on Form 10-K for the year ended December 31, 1998 (the "1998 10-K")
its Proxy Statement for the 1999 Annual Meeting of Stockholders and its
Quarterly Report on Form 10-Q for the quarter ended March 31, 0000 (xxx
"Xxxxx Xxxxxxx 00-X"). The Company has filed in a timely manner all documents
that the Company was required to file with the SEC under Sections 13, 14(a)
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since its initial public offering. As of their respective filing
dates, all documents filed by the Company with the SEC (the "SEC Documents")
complied in all material respects with the requirements of the Exchange Act
or the Securities Act of 1933, as amended (the "Securities Act"), as
applicable. None of the SEC Documents as of their respective dates contained
any untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto. The Financial Statements
have been prepared in accordance with generally accepted accounting
principles consistently applied and fairly present in all material respects
the consolidated financial position of the Company and any subsidiaries at
the dates thereof and the consolidated results of their operations and
consolidated cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal, recurring adjustments). Except as reflected
or reserved against in the consolidated financial statements of the Company
at December 31, 1998, as updated by the condensed consolidated financial
statements of the Company at March 31, 1999, to the Company's knowledge, the
Company has no liabilities that are required to be reported in the
consolidated balance sheet of the Company under GAAP except for liabilities
incurred in the ordinary course of business since December 31, 1998, and
liabilities which would not, individually or in the aggregate, have a
material adverse effect on the Company's properties or assets or the business
of the Company as presently conducted or proposed to be conducted.
3.5 GOVERNMENTAL CONSENTS. No consent, approval, order
or authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state, or local governmental authority or, to
the Company's knowledge, with any international governmental authority, on
the part of the Company is required in connection with the execution of this
Agreement except for (a) such filings as have been made prior to the Closing,
except that any notices of sale required to be filed with the SEC under
Regulation D of the Securities Act, or such post-closing filings as may be
required under applicable state securities laws, which will be timely filed
within the applicable periods therefor, (b) the filing of the Nasdaq National
Market Notification Form with the Nasdaq National Market, and (c) such
filings as may be required by the HSR Act.
3.6 NO MATERIAL ADVERSE CHANGE. Except as otherwise
disclosed herein and in the 1998 10-K and the First Quarter 10-Q, since
December 31, 1998, there have not been any changes in the assets,
liabilities, financial condition, business, business prospects or results of
operations of the Company from that reflected in the Financial Statements
except changes in the
4
ordinary course of business which have not been, either individually or in
the aggregate, materially adverse.
3.7 AUTHORIZED CAPITAL STOCK. The authorized capital
stock of the Company consists of (i) 75,000,000 shares of Common Stock, of
which, as of June 1, 1999, 30,734,819 shares were outstanding, and (ii)
5,000,000 shares of Preferred Stock, of which, as of June 1, 1999, 170,000
shares were designated Series A Preferred Stock, none of which were
outstanding, and 1,200,000 shares were designated Series B Junior
Participating Preferred Stock pursuant to that certain Rights Agreement by
and between the Company and American Stock Transfer & Trust Company, dated
February 1, 1999 (the "Rights Agreement"), none of which were outstanding. As
of June 1, 1999, the Company has reserved for issuance shares of Common Stock
in connection with the following options, convertible securities, and plans:
(i) 3,823,723 shares of Common Stock reserved for issuance pursuant to the
Company's 1996 Stock Incentive Plan, of which, at June 1, 1999, options to
purchase 2,552,434 shares of Common Stock were outstanding, (ii) 300,000
shares of Common Stock reserved for issuance under the Company's Employee
Stock Purchase Plan, of which at June 1, 1999, 65,584 shares of Common Stock
had been issued under such plan. Except as set forth in this Section 3.7 and
in Schedule 3.7 hereof, there are no other options, warrants, conversion
privileges or other contractual rights presently outstanding or in existence
to purchase or otherwise acquire any authorized but unissued shares of
capital stock or other securities of the Company.
3.8 LITIGATION. Except as disclosed in the 1998 10-K and
the First Quarter 10-Q, there are no actions, suits, proceedings or
investigations pending or, to the best of the Company's knowledge, threatened
against the Company or any of its properties before or by any court or
arbitrator or any governmental body, agency or official.
3.9 RIGHTS AGREEMENT. Prior to the execution of this
Agreement, the Company has adopted an amendment to the Rights Agreement
substantially in the form set forth as Exhibit 3.9, with the effect that (i)
from the Effective Date (as such term is defined in the Collaboration
Agreement, as hereinafter defined) up until such time as Purchaser holds less
than the Minimum Purchaser Interest (as such term is defined in the
Stockholder Rights Agreement, as hereinafter defined), neither Purchaser nor
its U.S. wholly-owned subsidiaries shall be deemed to be an Acquiring Person
(as defined in the Rights Agreement), that the Distribution Date (as defined
in the Rights Agreement) will not be deemed to occur and that the Rights (as
defined in the Rights Agreement) will not separate from the Common Stock as a
result of entering into this Agreement or any of the Related Agreements or
the consummation of the transactions contemplated hereby or thereby (other
than any purchases permitted under Section 5.3 of the Stockholder Rights
Agreement or otherwise which cause Purchaser's Beneficial Ownership (as the
term "Beneficial Ownership" is defined in the Stockholder Rights Agreement)
of Shares of Common Stock to exceed 21% of the total shares of Common Stock
of the Company outstanding from time to time hereafter) or as a result of the
acquisition by Purchaser of beneficial ownership of shares of Common Stock
not exceeding twenty-one percent (21%) of the total shares of Common Stock
outstanding from time to time hereafter, and (ii) for the period commencing
as of the date of this Agreement and ending on the earlier of (x) the
Effective Date and (y) termination of this Agreement (the "Interim Period"),
neither Purchaser nor its U.S. wholly-owned
5
subsidiaries shall be deemed to be an Acquiring Person (as defined in the
Rights Agreement), that the Distribution Date (as defined in the Rights
Agreement) will not be deemed to occur and that the Rights (as defined in the
Rights Agreement) will not separate from the Common Stock as a result solely
of Purchaser entering into this Agreement and being deemed the Beneficial
Owner (as defined in the Rights Agreement) of the Shares; provided that
Purchaser does not become the Beneficial Owner of any securities of the
Company in addition to the Shares during the Interim Period.
3.10 SECTION 203. The purchase of Shares pursuant to this
Agreement has been approved by the Board of Directors of the Company prior to
the date of this Agreement for the purposes of Section 203 of the Delaware
General Corporation Law such that after the date of this Agreement, neither
Purchaser nor any of its Affiliates will be subject to the restrictions on
business combination transactions set forth in said Section 203 with respect
to the Company on account of such purchase.
3.11 NO SHAREHOLDER VOTE. The execution, delivery and
performance of this Agreement and the Related Agreements is not required to
be submitted for a vote or other approval of the stockholders of the Company
under Section 271 of the Delaware General Corporation Law. The issuance and
sale by the Company of the Minimum Shares does not require approval of the
stockholders of the Company under any applicable federal or state laws or
regulations or under the rules and regulations of the National Association of
Securities Dealers (including the designation or maintenance criteria of the
NASDAQ National Market) or any other self-regulatory organization applicable
to the Company.
3.12 OTHER REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Company in the Related Agreements
are true and correct as of the date made. Notwithstanding anything to the
contrary herein and anything in any other Related Agreement, the Company
makes no representation and warranty (and shall have no liability) arising
from any requirement to obtain stockholder approval pursuant to the Nasdaq
National Market Issuer Designation Requirements, including Rule 4460
thereunder, with respect to the issuance and sale of the Maximum Shares.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Except as expressly limited in this Section 4, the
Purchaser hereby represents and warrants to the Company as of the date of
this Agreement as follows:
4.1 AUTHORIZATION. Purchaser has all requisite legal and
corporate power and authority and has taken all requisite corporate or other
action to execute and deliver this Agreement and each of the Related
Agreements, to purchase the Shares and to carry out and perform all of its
obligations under this Agreement. This Agreement and each of the Related
Agreements constitutes the legal, valid and binding obligation of the
Purchaser, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, or similar laws relating
to or affecting the enforcement of creditors' rights generally and (ii) as
limited by equitable principles generally.
6
4.2 INVESTMENT EXPERIENCE. Purchaser is an "accredited
investor" as defined in Rule 501(a) under the Securities Act. Purchaser
believes that it has had access to and has acquired sufficient information
about the Company to reach an informed and knowledgeable decision to acquire
the Shares. Purchaser has such business and financial experience as is
required to give it the capacity to protect its own interests in connection
with the purchase of the Shares.
4.3 INVESTMENT INTENT. Purchaser is purchasing the
Shares for its own account as principal, for investment purposes only, and
not with a present view to, or for, resale, distribution or fractionalization
thereof, in whole or in part, within the meaning of the Securities Act.
Purchaser understands that its acquisition of the Shares has not been
registered under the Securities Act or registered or qualified under any
state securities law in reliance on specific exemptions therefrom, which
exemptions may depend upon, among other things, the bona fide nature of
Purchaser's investment intent as expressed herein. Purchaser will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares except (a) in compliance with the Securities Act and
the rules and regulations promulgated thereunder and (b) in compliance with
the terms of the Stockholder Rights Agreement dated as of the date of this
Agreement between the Company and Purchaser (the "Stockholder Rights
Agreement").
4.4 REGISTRATION OR EXEMPTION REQUIREMENTS. Purchaser
further acknowledges and understands that the Shares may not be resold or
otherwise transferred except in a transaction registered under the Securities
Act or unless an exemption from such registration is available.
4.5 NO LEGAL, TAX OR INVESTMENT ADVICE. Purchaser
understands that nothing in this Agreement or any other materials presented
to Purchaser in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. Purchaser has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of the Shares.
4.6 LEGENDS. To the extent applicable, each certificate
or other document evidencing any of the Shares shall be endorsed with the
legends set forth below:
(a) "THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144
PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
(b) "THE SHARES REPRESENTED HEREBY ARE SUBJECT TO
THE RESTRICTIONS ON TRANSFER CONTAINED IN A COMMON STOCK PURCHASE AGREEMENT
AND A STOCKHOLDER RIGHTS AGREEMENT, EACH AS AMENDED
7
FROM TIME TO TIME. THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY OF
SUCH AGREEMENTS TO THE HOLDER HEREOF WITHOUT CHARGE."
(c) Any other legend required by law.
4.7 SECURITIES OWNERSHIP. As of the date hereof,
Purchaser does not "beneficially own" (as such term is defined in Section
5.4(a) of the Stockholder Rights Agreement, subject to the limitation
contained in Section 5.2(c) thereof) any securities of the Company.
SECTION 5
CONDITIONS TO CLOSING OF PURCHASER
The Purchaser's obligation to purchase the Maximum Shares
or the Minimum Shares, as applicable, at the Closing is subject to the
fulfillment or waiver as of the Closing of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in Section 3 and in the Related
Agreements that are qualified as to materiality shall be true and correct as
of the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date and the
representations and warranties of the Company contained in Section 3 and the
Related Agreements that are not qualified as to materiality shall in all
material respects be true and correct on and as of the Closing Date with the
same effect as though such representations and warranties had been made on
and as of the Closing Date.
5.2 PERFORMANCE. The Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or
before the Closing.
5.3 QUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required as of the Closing in
connection with the lawful issuance and sale of the Maximum Shares or the
Minimum Shares, as applicable, pursuant to this Agreement shall have been
duly obtained and shall be effective as of the Closing. Without limiting the
generality of the foregoing, both Purchaser and the Company shall have filed
such forms with the United States Department of Justice ("DOJ") and the
Federal Trade Commission ("FTC") as shall be required by the HSR Act and the
applicable waiting periods under the HSR Act shall have expired or earlier
been terminated without notice from such governmental agencies that
additional inquiries are being made.
5.4 OTHER AGREEMENTS. The Company shall have executed
and delivered the Stockholder Rights Agreement, the Collaboration Agreement,
dated as of the date hereof by and between the parties hereto (the
"Collaboration Agreement"), and the Co-Promotion Agreement, dated as of the
date hereof by and between the parties hereto (collectively, the "Related
Agreements").
8
5.5 NO PROHIBITION. There shall not then be in effect
any order enjoining or restraining the transactions contemplated by this
Agreement or any of the Related Agreements. There shall not be in effect any
law, rule or regulation prohibiting or restricting the purchase and sale of
the Maximum Shares or the Minimum Shares, as applicable, or requiring any
consent or approval of any person in connection with the purchase and sale of
the Maximum Shares or the Minimum Shares, as applicable, which consent or
approval shall not have been obtained.
5.6 EXISTING INVESTORS' CONSENT. The Company's Restated
Investors' Rights Agreement dated June 11, 1996, as amended and in the form
attached hereto as Exhibit 5.6(A) (the "Existing Investors' Rights
Agreement") shall not have been amended or modified in any way without
Purchaser's prior written consent and Purchaser shall have been provided with
a consent by the holders of a majority of the Registrable Securities under
the Existing Investors' Rights Agreement in substantially the form attached
hereto as Exhibit 5.6(B) or such other form as reasonably acceptable to
Purchaser, consenting to the granting of the registration rights to the
Purchaser pursuant to the Stockholder Rights Agreement (the "Existing
Investors' Consent").
5.7 RIGHTS AGREEMENT. Prior to the execution of this
Agreement, the Company shall have adopted an amendment to the Rights
Agreement, substantially in the form set forth as Exhibit 3.9 hereto.
5.8 BOARD REPRESENTATIVE. Arrangements shall have been
made to Purchaser's reasonable satisfaction for one designee of Purchaser to
be elected to the Board of Directors of the Company pursuant to the
Stockholder Rights Agreement.
5.9 SATISFACTION OF COLLABORATION AGREEMENT CONDITIONS.
The conditions of Sections 16.8(a) and (b) (with the exception of Section
16.8(a)(iii)) of the Collaboration Agreement shall have been satisfied.
5.10 COMPLIANCE CERTIFICATE. The Company shall have
delivered to the Purchaser a certificate substantially in the form of Exhibit
5.10 attached hereto executed by the Chief Financial Officer of the Company,
dated the Closing Date, and certifying the fulfillment of the conditions
specified in Section 5.1 through 5.8, with the exception of the conditions
specified in Section 5.5 as such conditions may apply to Purchaser.
SECTION 6
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Maximum
Shares or the Minimum Shares, as applicable, at the Closing is subject to the
fulfillment or waiver as of the Closing of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Purchaser contained in Section 4 and in the Related
Agreements that are qualified as to materiality shall be true and correct as
of the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date and the representations
and warranties of the Purchaser contained in Section 4 and the Related
Agreements that are not qualified as to materiality shall in all material
respects be true and
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correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of the Closing Date.
6.2 PERFORMANCE. The Purchaser shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by the Purchaser
on or before the Closing.
6.3 QUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required as of the Closing in
connection with the lawful issuance and sale of the Maximum Shares or the
Minimum Shares, as applicable, pursuant to this Agreement shall have been
duly obtained and shall be effective as of the Closing. Without limiting the
generality of the foregoing, both Purchaser and the Company shall have filed
such forms with the DOJ and the FTC as shall be required by the HSR Act and
the applicable waiting periods under the HSR Act shall have expired or
earlier been terminated without notice from such governmental agencies that
additional inquiries are being made.
6.4 OTHER AGREEMENTS. The Purchaser shall have executed
and delivered each of the Related Agreements.
6.5 NO PROHIBITION. There shall not then be in effect
any order enjoining or restraining the transactions contemplated by this
Agreement or any of the Related Agreements. There shall not be in effect any
law, rule or regulation prohibiting or restricting the purchase and sale of
the Maximum Shares or the Minimum Shares, as applicable, or requiring any
consent or approval of any person in connection with the purchase and sale of
the Maximum Shares or the Minimum Shares, as applicable, which consent or
approval shall not have been obtained.
6.6 EXISTING INVESTORS' CONSENT. If the Existing
Investors' Consent shall not have been obtained, the terms of the
Stockholders' Rights Agreement shall have been modified to the mutual
satisfaction of the parties to the Stockholder Rights Agreement.
6.7 SATISFACTION OF COLLABORATION AGREEMENT CONDITIONS.
The conditions of Sections 16.8(a) and (c) (with the exception of Section
16.8(a)(iii)) of the Collaboration Agreement shall have been satisfied.
6.8 COMPLIANCE CERTIFICATE. The Purchaser shall have
delivered to the Company a certificate substantially in the form of Exhibit
6.8 attached hereto executed by an authorized officer of the Purchaser, dated
the Closing Date, and certifying the fulfillment of the conditions specified
in Section 6.1 through 6.6, with the exception of the conditions specified in
Section 6.5 as such conditions may apply to the Company.
SECTION 7
COVENANTS
7.1 HSR ACT. Purchaser and the Company each shall file
such forms with the DOJ and the FTC as shall be required by the HSR Act as
promptly as practicable upon execution of this Agreement, each shall promptly
respond to any requests for additional information from
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the DOJ or the FTC and shall each cooperate fully with the other with respect
to compliance with the HSR Act.
7.2 STOCKHOLDER CONSENT. The Company shall use its
reasonable efforts to secure the Existing Investor's Consent.
7.3 USE OF FUNDS. The Company shall use the proceeds
from the sale of the Shares to Purchaser and the milestone payments
contemplated by Section 5.1 of the Collaboration Agreement for proper
corporate purposes, including allocating in a responsible manner a sufficient
portion of such proceeds and milestone payments calculated to cause the
Company to use its reasonable efforts to fulfill its obligations under each
of the Related Agreements.
SECTION 8
MISCELLANEOUS
8.1 WAIVERS AND AMENDMENTS. The terms of this Agreement
may be waived or amended only with the written consent of the Company and the
Purchaser.
8.2 PLACEMENT AGENT'S FEE. Each of the parties hereto
hereby represents that, on the basis of any actions and agreements by it,
there are no brokers or finders entitled to compensation in connection with
the sale of the Shares to the Purchaser other than Warburg Dillon Read LLC
and Xxxxxxx, Xxxxx & Co., the fees and expenses of which will be paid by the
Company and Purchaser, respectively.
8.3 GOVERNING LAW. This Agreement shall be governed in
all respects by and construed in accordance with the laws of the State of
Delaware without any regard to conflicts of laws principles.
8.4 DISPUTE RESOLUTION. The parties hereto agree that
any disputes which may arise during the term of this Agreement which relate
to either party's rights and/or obligations hereunder shall be resolved in
accordance with the ADR provisions contained in Exhibit 8.4 hereto, except
that either party may seek judicial relief or enforcement to pursue equitable
or other remedies not addressed by the ADR provisions, including without
limitation specific performance or injunctive relief, to pursue a claim of
fraudulent or otherwise inequitable treatment under the ADR proceedings or to
otherwise enforce a judgment under the ADR proceedings.
8.5 SURVIVAL. The representations, warranties, covenants
and agreements made in this Agreement shall survive any investigation made by
the Company or the Purchaser and the Closing.
8.6 SUCCESSORS AND ASSIGNS. The provisions hereof shall
inure to the benefit of, and be binding upon, the successors and permitted
assigns of the parties to this Agreement. Notwithstanding the foregoing,
neither party shall assign this Agreement without the prior written consent
of the other party, except that Purchaser may assign this Agreement to any
direct or indirect wholly-owned domestic (i.e., incorporated in a state of
the U.S.) subsidiary of
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Purchaser; provided, however, that no such assignment shall relieve or limit
Purchaser's obligations hereunder.
8.7 ENTIRE AGREEMENT. This Agreement and the Related
Agreements constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof.
8.8 NOTICES, ETC. All notices and other communications
required or permitted under this Agreement shall be in writing and may be
delivered in person, by facsimile, overnight delivery service or registered
or certified United States mail, addressed to the Company or the Purchaser,
as the case may be, at their respective addresses set forth below, or at such
other address as the Company or the Purchaser shall have furnished to the
other party in writing:
If to the Company:
Triangle Pharmaceuticals, Inc.
0 Xxxxxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Chief Executive Officer and
General Counsel
Copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxx "X" Xxxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
If to the Purchaser:
Xxxxxx Laboratories
Dept. 309; Bldg. AP30
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President, Pharmaceutical
Operations and
Senior Vice President, International Operations
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Copy to:
General Counsel
Xxxxxx Laboratories
Dept. 364; Building AP6D
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and other communications shall be effective upon actual receipt
thereof by the person to whom notice is directed.
8.9 SEVERABILITY OF THIS AGREEMENT. If any provision of
this Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
8.10 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
8.11 TERMINATION.
(a) OUTSIDE DATE. If the Effective Date has not
occurred within ninety (90) days from the execution of this Agreement (other
than through the failure of the party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement or any of the other
Related Agreements) or such later date as the parties hereto may agree,
either party may terminate this Agreement by written notice to the other.
(b) TERMINATION OF COLLABORATION AGREEMENT. This
Agreement is subject to termination upon termination of the Collaboration
Agreement pursuant to the terms of Sections 16.5 (b) and (c) of the
Collaboration Agreement.
8.12 EXPENSES. Except as provided by the ADR provisions
contained in Exhibit 8.4 and Section 8.14 hereof, the Company and the
Purchaser each shall bear its own expenses incurred on its behalf with
respect to this Agreement and the transactions contemplated hereby, including
fees of legal counsel; provided, however, that the Company and Purchaser
shall share equally the fee(s) required to be paid in connection with the
filing(s) required under the HSR Act in connection with the transactions
contemplated by this Agreement and the other Triangle-Xxxxxx Alliance
Agreements.
8.13 CURRENCY. All references to "dollars" or "$" in this
Agreement shall be deemed to refer to United States dollars.
8.14 ATTORNEYS' FEES. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party
may be entitled.
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8.15 NO THIRD PARTY RIGHTS. Except where expressly
provided to the contrary, nothing in this Agreement shall create or be deemed
to create any rights in any person or entity not a party to this Agreement.
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The foregoing agreement is hereby executed as of the date
first above written.
"COMPANY"
TRIANGLE PHARMACEUTICALS, INC., a
Delaware corporation
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
"PURCHASER"
XXXXXX LABORATORIES, an Illinois
corporation
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
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