EXHIBIT 10.57
AGREEMENT
for the purchase of Common Stock of
SUGEN, INC.
by
VISION PHARMACEUTICALS L.P.
TABLE OF CONTENTS
Page
1. Purchase and Sale of Common Stock........................................ 1.
1.1 Initial Issuance of Common Stock................................ 1.
1.2 Subsequent Issuance of Common Stock............................. 1.
2. Closing; Delivery........................................................ 2.
2.1 Closing......................................................... 2.
2.2 Payment and Delivery............................................ 4.
3. Representations, Warranties and Covenants of the Company................. 4.
3.1 Organization.................................................... 4.
3.2 Capitalization.................................................. 4.
3.3 Authority....................................................... 5.
3.4 Financial Statements............................................ 5.
3.5 Issuance of the Shares.......................................... 5.
3.6 No Conflict with Law or Documents............................... 5.
3.7 Absence of Certain Developments................................. 5.
3.8 Litigation...................................................... 6.
3.9 Registration Rights Covenant.................................... 6.
3.10 Covenant to Keep Public Information Available...................12.
3.11 SEC Reports.....................................................12.
3.12 Securities Law Compliance.......................................12.
3.13 Registration Rights.............................................12.
4. Representations, Warranties and Covenants of Purchaser...................12.
4.1 Legal Power.....................................................12.
4.2 Due Execution...................................................13.
4.3 Investment Representations and Covenants........................13.
4.4 Standstill Covenant.............................................14.
4.5 Lockup Covenant.................................................14.
4.6 Right of First Offer............................................15.
5. Miscellaneous............................................................17.
5.1 Governing Law...................................................17.
5.2 Successors and Assigns..........................................17.
5.3 Entire Agreement................................................17.
5.4 Separability....................................................17.
5.5 Amendment and Waiver............................................17.
5.6 Notices.........................................................17.
5.7 Fees and Expenses...............................................18.
5.8 Titles and Subtitles............................................18.
5.9 Counterparts....................................................18.
5.10 Consent to Jurisdiction and Venue...............................18.
5.11 Guarantee.......................................................18.
i.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement) is made as of
September 30, 1996 (the "Effective Date") by and between SUGEN, INC., a Delaware
corporation (the "Company"), and VISION PHARMACEUTICALS L.P., a Texas limited
partnership ("Purchaser"), and, for purposes of Section 5.11 only, ALLERGAN,
INC., a Delaware corporation ("Allergan"). In consideration of the mutual
promises, representations, warranties and conditions set forth in this
Agreement, the Company and Purchaser agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK.
1.1 Initial Issuance of Common Stock.
(a) The Company has authorized the issuance and sale to
Purchaser of up to 191,571 shares (the "Shares") of its common stock, $.01 par
value (the "Common Stock").
(b) In reliance upon Purchaser's representations and
warranties contained in Section 4 hereof and subject to the terms and conditions
set forth herein, the Company agrees to sell to Purchaser the Shares, to be
issued and sold at a price per share equal to $20.88.
(c) In reliance upon the representations and warranties of the
Company contained in Section 3 hereof and subject to the terms and conditions
set forth herein, Purchaser hereby agrees to purchase the Shares at the per
share purchase price set forth above.
1.2 Subsequent Issuance of Common Stock.
(a) The Company agrees to use all reasonable efforts to offer
or, if applicable, to arrange for its underwriters to offer, Purchaser or its
designated affiliate the opportunity to purchase in the Company's next private
offering of equity securities of the Company to institutional investors and/or
individuals (other than a sale of equity securities of the Company in connection
with a scientific or commercial collaboration or intellectual property licensing
agreement) or directed public offering or underwritten public offering of the
Company's Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), on the same terms as
others purchasing in such offering, the number of shares of Common Stock or
other equity securities of the Company (the "Additional Shares") representing an
aggregate investment of $3.0 million. Purchaser hereby confirms its intention to
purchase the Additional Shares in the Company's next offering, provided (i) the
closing date, or effective date if such offering is registered under the
Securities Act, of such offering takes place within two (2) years of the date of
this Agreement; (ii) such offering results in gross proceeds to the Company of
at least $10.0 million; (iii) the purchase of such shares by Purchaser would not
result in beneficial ownership by Purchaser of greater than 9.9% of the then
outstanding Common Stock of the Company; (iv) if such offering is an
underwritten public offering of Common Stock, Purchaser shall not purchase
Common Stock at a price per share
1.
more than 3.0% greater than the closing price of the Common Stock on the day of
the pricing of such offering or the day prior to the pricing if the pricing
occurs prior to the opening of the Nasdaq National Market on the day of pricing;
and (v) if such offering is not an underwritten public offering of Common Stock
(A) Purchaser shall not purchase Common Stock at a price per share greater than
the closing price of the Common Stock on the day of the pricing of such offering
or the day prior to the pricing if the pricing occurs prior to the opening of
the Nasdaq National Market on the day of pricing and (B) if the Company's next
offering consists of a private offering of preferred stock, within sixty days
following the closing of such preferred stock offering, Purchaser shall have the
option to purchase Common Stock at a price per share equal to the closing price
of the Common Stock on the day of the pricing of such offering or the day prior
to the pricing if the pricing occurs prior to the opening of the Nasdaq National
Market on the day of pricing in lieu of purchasing the preferred stock offered
in the private offering. However, Purchaser shall be under no obligation to
purchase any or all of such securities.
(b) Notwithstanding anything in this Agreement to the
contrary, in the event the Additional Shares are made available to Purchaser in
accordance with the terms of this Agreement and Purchaser fails to purchase, or
make a bona fide offer to purchase, such securities (provided the provisions of
Section 1.2(a) are complied with), the Company shall have the right for a period
of 90 days from the closing date, or if such offering is registered under the
Securities Act, the effective date, of its offering to terminate the
Collaboration Agreement by giving Purchaser 10 days written notice. In the event
the Company exercises its termination option pursuant to this Section 1.2(b), it
shall retain the payments made under the Collaboration Agreement between the
Company and Purchaser dated as of the date of this Agreement (the "Collaboration
Agreement").
2. CLOSING; DELIVERY.
2.1 Closing. The closing of the sale of purchase of Shares under this
Agreement (the"Closing") shall take place at 5:00 p.m. on the date of
satisfaction of the conditions set forth below (the "Closing Date"), at the
offices of Xxxxxx Godward LLP, Five Palo Alto Square, 3000 El Camino Real, Palo
Alto, California, or at such other time and place as the Company and Purchaser
may agree. At the Closing, the Company will issue and sell, and Purchaser will
purchase, the Shares for an aggregate purchase price of $4,000,002.48.
(a) The obligations of Purchaser to purchase the Shares at the
Closing are subject to the fulfillment on or before the Closing Date of each of
the following conditions, which may be waived only in writing, on or before
October 4, 1996:
(i) The representations and warranties of the Company
contained in Section 3 shall be true and correct in all material respects on and
as of the Closing Date with the same force and effect as if such representations
and warranties had been made on and as of the Closing Date.
2.
(ii) 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
Date.
(iii) 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 in connection with the lawful sale and issuance of
the Shares at the Closing pursuant to this Agreement shall have been obtained
and shall be effective on and as of the Closing Date. No stop order or other
order enjoining the sale of the Shares shall have been issued and no proceedings
for such purpose shall be pending or, to the knowledge of the Company,
threatened by the SEC, or any commissioner of corporations or similar officer of
any state having jurisdiction over this transaction. At the time of the Closing,
the sale and issuance of the Shares shall be legally permitted by all laws and
regulations to which Purchaser and the Company are subject.
(iv) The parties shall have executed and delivered to
each other the Collaboration Agreement dated as of the Closing Date.
(v) Purchaser shall have received from Xxxxxx Godward
LLP, counsel for the Company, an opinion dated as of the Closing Date covering
the matters set forth in Exhibit A.
(vi) Purchaser shall have received a certificate
representing the Shares, duly registered in Purchaser's name.
(b) The obligations of the Company are subject to fulfillment
on or before the Closing Date of each of the following conditions, which may be
waived only in writing, on or before October 4, 1996:
(i) The representations and warranties of the
Purchaser contained in Section 4 shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
(ii) 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 it on or before the Closing
Date.
(iii) 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 in connection with the lawful sale and issuance of
the Shares at the Closing pursuant to this Agreement shall have been obtained
and shall be effective on and as of the Closing Date. No stop order or other
order enjoining the sale of the Shares shall have been issued and no proceedings
for such purpose shall be pending or, to the knowledge of the Company,
threatened
3.
by the SEC, or any commissioner of corporations or similar officer of any state
having jurisdiction over this transaction. At the time of the Closing, the sale
and issuance of the Shares shall be legally permitted by all laws and
regulations to which Purchaser and the Company are subject.
(iv) The parties shall have executed and delivered to
each other the Collaboration Agreement dated as of the Closing Date.
(v) Purchaser shall have delivered an aggregate of
$4,000,002.48 to the Company.
2.2 Payment and Delivery. At the Closing, subject to the terms and
conditions hereof, the Company will deliver to Purchaser an opinion from Xxxxxx
Godward LLP, counsel to the Company, covering the matters set forth in Exhibit A
attached hereto and a stock certificate, registered in the name of Purchaser,
representing the Shares to be purchased by Purchaser from the Company, dated as
of the Closing, against payment of the purchase price therefor by wire transfer,
unless other means of payment shall have been agreed upon by Purchaser and the
Company.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Subject to and except as disclosed by the Company in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995 (the
"Form 10-K"), quarterly reports on Form 10-Q for the quarters ended March 31,
1996 and June 30, 1996 (the "Form 10-Qs") and Proxy Statement for the 1996
Annual Meeting of Stockholders, dated as of April 5, 1996 (the "Proxy
Statement"), each previously delivered to Purchaser, or in the Schedule of
Exceptions attached hereto as Exhibit B (the "Schedule of Exceptions"), the
Company hereby represents and warrants to Purchaser as follows as of the date
hereof and as of the Closing Date, and all such representations and warranties
shall survive the Closing:
3.1 Organization. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. The Company has all requisite power and authority to own or lease
its properties and to conduct its business as now conducted. The Company holds
all licenses and permits required for the conduct of its business as now
conducted, which, if not obtained, would have a material adverse effect on the
business, financial condition or results of operations of the Company taken as a
whole. The Company is qualified as a foreign corporation and is in good standing
in all states where the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the business, financial condition or
results of operations of the Company taken as a whole.
3.2 Capitalization. The authorized, issued and outstanding capital
stock of the Company and a description of the Company's stock option and stock
purchase plans is as set forth in the Proxy Statement. All of the issued and
outstanding shares of common stock have
4.
been duly authorized, validly issued and are fully paid and nonassessable.
Except for rights granted under the Company's 1992 Stock Option Plan, 1994
Non-Employee Directors' Stock Option Plan, Employee Stock Purchase Plan,
Long-Term Objectives Stock Option Plan for Senior Management and Preferred Share
Purchase Rights Plan and the outstanding warrants described in the Form 10-K
(certain of which have been exercised as described in Schedule 3.2), there are
no existing subscriptions, options, warrants, calls, commitments, agreements,
conversion or other rights of any character (contingent or otherwise) to
purchase or otherwise acquire from the Company, at any time, or upon the
happening of any stated event, any shares of the capital stock of the Company.
On September 27, 1996, 10,685,896 shares of the Common Stock were outstanding,
and no other shares of Company stock were outstanding.
3.3 Authority. The Company has all requisite power and authority to
enter into this Agreement, and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company, and upon execution and delivery by
the Company, this Agreement will constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws relating to or affecting creditor's rights from time to time in
effect, and subject to general equity principles.
3.4 Financial Statements. The financial statements of the Company
included in the Form 10-K and Form 10-Qs fairly presented in all material
respects the financial position and results of operations of the Company at
their respective dates and for the respective periods to which they apply; and
such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved except as otherwise stated therein.
3.5 Issuance of the Shares. The Shares, when issued pursuant to the
terms of this Agreement, will be duly and validly authorized and issued, fully
paid and nonassessable.
3.6 No Conflict with Law or Documents. The execution, delivery and
consummation of this Agreement and the transactions contemplated hereby will not
(a) conflict with any provisions of the Certificate of Incorporation or the
Bylaws of the Company; (b) result in any violation of or default or loss of a
benefit under, or permit the acceleration of any obligation under or conflict
with (in each case, upon the giving of notice, the passage of time, or both) any
mortgage, indenture, lease, agreement or other instrument, permit, franchise
license, judgment, order, decree, law, ordinance, rule or regulation applicable
to the Company or its respective properties.
3.7 Absence of Certain Developments. Since June 30, 1996, the Company
has not (a) incurred or become subject to any material liabilities (absolute or
contingent) except current liabilities incurred, and liabilities under contracts
entered into, in the ordinary course of business, consistent with past
practices; (b) mortgaged, pledged or subjected to lien, charge or
5.
any other encumbrance any material assets, tangible or intangible except in the
ordinary course of business, consistent with past practices; (c) sold, assigned
or transferred any material assets or canceled any material debts or obligations
except in the ordinary course of business, consistent with past practices; (d)
suffered any extraordinary losses, or waived any rights of substantial value;
(e) entered into any material transaction other than in the ordinary course of
business, consistent with past practices; or (f) otherwise had any change in its
condition, financial or otherwise, except for changes in the ordinary course of
business, consistent with past practices, none of which individually or in the
aggregate has been materially adverse to the Company.
3.8 Litigation. To the Company's knowledge, there are no actions,
suits, proceedings or investigations pending or threatened against or affecting
the Company that in the aggregate could reasonably be anticipated to result in
any material adverse effect on the Company.
3.9 Registration Rights Covenant.
(a) At any time during the 180-day period immediately
following the earlier of (i) the expiration of the initial Research Term (as
defined in the Collaboration Agreement) without giving effect to any extensions
thereof or (ii) the earlier termination of the Research Term pursuant to Article
X of the Collaboration Agreement, Purchaser shall have the right to cause the
Company to file a registration statement under the Securities Act for a public
offering of all or part of the Shares, but in no event less than 100,000 Shares,
beneficially owned by Purchaser by delivering written notice thereof to the
Company specifying the number of Shares to be included in such registration and
the intended method of distribution thereof (the "Registration Request"). Upon
receipt of the Registration Request, the Company shall, as expeditiously as
possible, use its best efforts to promptly effect the registration under the
Securities Act, and all applicable state securities laws, to the extent
necessary to permit the sale or other disposition by Purchaser of the Shares to
be so registered in accordance with such notice.
(b) The demand registration rights granted in Section 3.9(a)
are subject to the following limitations: (i) the Company shall not be obligated
to effect more than one registration pursuant to Section 3.9(a), (ii) the
Company shall not be obligated to effect such registration for a period of 60
days following the closing of an underwritten public offering of the Company's
equity securities that is in registration at the time of the receipt of the
Registration Request (provided that the period within which Purchaser may demand
registration hereunder will be extended by the number of days by which the
registration requested by Purchaser is delayed pursuant to this sentence); and
(iii) if the Company shall furnish to Purchaser a certificate signed by the
Chairman of the Board of Directors of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration to be
effected at such time, then the Company shall have the right to defer the filing
of the registration for a period of not more than 180 days after receipt of the
Registration Request (provided that the period within which
6.
Purchaser may demand registration hereunder will be extended by the number of
days by which the registration requested by Purchaser is delayed pursuant to
this sentence).
(c) In addition to the rights provided by Section 3.9(a), if
the Additional Shares are not freely transferable without restriction under the
Securities Act, within 90 days immediately following the purchase of the
Additional Shares, the Company shall file a registration statement under the
Securities Act for a public offering of the Additional Shares.
(d) If and when the Company is required by the provisions of
Section 3.9(a) or (c) to include any of the Shares or Additional Shares in a
registration under the Securities Act, Purchaser will furnish in writing such
information as is reasonably requested by the Company for inclusion in the
registration statement relating to such offering and such other information and
documentation as the Company shall reasonably request, and the Company will, as
expeditiously as possible:
(i) Prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement with respect to such securities and
use its best efforts to cause such registration to become and remain effective
(i) with respect to the Shares, for such period as may be necessary to permit
the successful marketing of such securities, but not exceeding 120 days
(excluding any period during which a stop order is in effect) and (ii) with
respect to the Additional Shares, until such time as the Additional Shares are
freely transferable without restriction under the Securities Act.
(ii) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of the
Securities Act and to keep such registration statement effective for that period
of time specified in paragraph (i) of this section.
(iii) Furnish to Purchaser such number of
prospectuses and preliminary prospectuses in conformity with the requirements of
the Securities Act and such other documents as such Purchaser may reasonably
request in order to facilitate the public sale or other disposition of the
Shares or Additional Shares registered hereunder.
(iv) Use its best efforts to register or qualify the
Shares or Additional Shares covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as Purchaser shall
reasonably request and do any and all other acts and things which may be
necessary or desirable to enable Purchaser to consummate the public sale or
other disposition in such jurisdictions of the Shares or Additional Shares
covered by such registration statement, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(e) In the event of a registration of any of the Shares or
Additional Shares under the Securities Act pursuant to Section 3.9(a) or (c) in
connection with an underwritten
7.
public offering, the Company will enter into and perform its obligations under
an underwriting agreement, in usual and customary form, with the managing
underwriters of such offering, including without limitation providing usual and
customary indemnification. In the event Purchaser proposes to sell Shares or
Additional Shares in accordance with this Section pursuant to an underwritten
offering, the Company shall have the right to approve the managing underwriters
for such offering; provided, however, that such approval shall not be
unreasonably withheld.
(f) At any time or from time to time following the earlier of
(i) the expiration of initial Research Term (as defined in the Collaboration
Agreement) without giving effect to any extension thereof or (ii) the earlier
termination of the Research Term pursuant to Article X of the Collaboration
Agreement, if the Company shall determine to register any of its securities
under the Securities Act either for its own account or the account of a security
holder or holders exercising their respective demand registration rights, other
than a registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any registration
form that does not permit secondary sales, then the Company will:
(i) promptly give to Purchaser a written notice
thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 3.9(g) below, and in any
underwriting involved therein, all of the Shares specified in a written request
or requests made by Purchaser and received by the Company within twenty (20)
days after the written notice from the Company described in clause (i) above is
mailed or delivered by the Company. Such written request may specify all or a
part of the Shares.
(g) If the registration of which the Company gives notice to
Purchaser is for a registered public offering involving an underwriting, the
Company shall so advise Purchaser as a part of the written notice given pursuant
to Section 3.9(f)(i). In such event, the right of Purchaser to registration
pursuant to Section 3.9(f) shall be conditioned upon Purchaser's participation
in such underwriting and the inclusion of all or any part of the Shares
specified in Purchaser's notice in the underwriting to the extent provided
herein. Purchaser shall (together with the Company and the other holders of
securities of the Company with registration rights to participate therein
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
Notwithstanding any other provision of Sections 3.9(f) or (g), if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all of
the Shares from, or limit the number of Shares to be included in, the
registration and underwriting. The Company shall so advise Purchaser and other
holders of securities requesting registration, and the number of shares that are
entitled to be included in the
8.
registration and underwriting shall be allocated first to the Company for
securities being sold for its own account and thereafter the number of shares
that are entitled to be included in the registration shall be allocated among
Purchaser and other holders requesting inclusion of shares on a pro rata basis,
subject to any prior agreements among the Company and its other stockholders,
but only to the extent that such other agreements provide for additional
limitations on the number of shares such other stockholders or the Company will
be entitled to include in the registration, which agreements are in effect as of
the Effective Date. If Purchaser or any other person does not agree to the terms
of any such underwriting, Purchaser and any other such person shall be excluded
therefrom by written notice from the Company or the underwriter. Any Shares or
other securities excluded or withdrawn from such underwriting shall also be
withdrawn from such registration.
(h) As used herein, "Registration Expenses" shall mean all
expenses incurred by the Company in complying with this Section 3.9, including,
without limitation, all registration, qualification and filing fees; printing
expenses; fees and disbursements of counsel for the Company (and the fees and
disbursements of counsel for the Company in its capacity as counsel to the
Purchaser hereunder; if Company counsel does not make itself available for this
purpose, the Company will pay the reasonable fees and disbursements of one
counsel for the Purchaser as selected by Purchaser) and of the Company's
independent accounting firm; blue sky fees and expenses; underwriting discounts
and commissions and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company). Purchaser will pay
all Registration Expenses in connection with a registration pursuant to Section
3.9(a) hereof; provided, however, that in the event Purchaser withdraws its
demand for registration after having learned of a material adverse change in the
condition, business, or prospects of the Company from that known to Purchaser at
the time of its demand (in which case Purchaser shall retain its rights pursuant
to Section 3.9(a)), all Registration Expenses shall be borne by the Company. All
Registration Expenses in connection with any registration pursuant to Section
3.9(c) and (f) hereof shall be borne by the Company; provided, however, that any
incremental filing fees or other expenses incurred by the Company solely by
reason of Purchaser's exercise of registration rights pursuant to Section 3.9(f)
shall be borne by the Purchaser.
(i) The rights conferred upon Purchaser under this Section 3.9
may be assigned by Purchaser to any permitted transferee of the Shares or the
Additional Shares, as applicable, provided that each such transfer complies with
Section 4.5, and provided, further, that only Purchaser shall be authorized to
give notice to the Company of any request for registration under Section 3.9(a)
and only Purchaser shall be entitled to receive notice pursuant to Section
3.9(c) hereof.
(j) In the event any Shares or Additional Shares are included
in a registration statement under Sections 3.9(a), (c) or (f):
(i) To the extent permitted by law, the Company will
indemnify and hold harmless Purchaser, the partners, officers, directors and
legal counsel of Purchaser, any
9.
underwriter (as defined in the Securities Act) for Purchaser and each person, if
any, who controls Purchaser or such underwriter within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation") by the Company: (a) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (b) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (c) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law in connection with the offering covered by such
registration statement; and the Company will reimburse Purchaser and each
partner, officer or director, underwriter or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however,
that the indemnity agreement contained in this Section 3.9(j)(i) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld, nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by Purchaser or such partner, officer,
director, underwriter or controlling person of Purchaser.
(ii) To the extent permitted by law, Purchaser will
indemnify and hold harmless the Company, each of its directors, its officers and
legal counsel and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other person selling
securities under such registration statement or any of such other person's
partners, directors or officers or any person who controls such person, against
any losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter or other
such person, or partner, director, officer or controlling person of such person
may become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by Purchaser under an
instrument duly executed by Purchaser and stated to be specifically for use in
connection with such registration; and Purchaser will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or other person, or partner, officer, director
or controlling person of such other person in connection with investigating or
defending any such loss, claim, damage, liability or action if it is judicially
determined that there was such a Violation; provided, however, that the
indemnity agreement contained in this Section 3.9(j)(ii)
10.
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Purchaser, which consent shall not be unreasonably withheld; provided further,
that in no event shall any indemnity under this Section 3.9(j)(ii) exceed the
net proceeds from the offering received by such Purchaser
(iii) Promptly after receipt by an indemnified party
under this Section 3.9(j) of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 3.9(j),
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 3.9(j), but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
3.9(j).
(iv) If the indemnification provided for in this
Section 3.9(j) is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any losses, claims, damages or liabilities
referred to herein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violation(s) that resulted
in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, that in no event shall any contribution by
Purchaser hereunder exceed the proceeds from the offering received by Purchaser.
(v) The obligations of the Company and Purchaser
under this Section 3.9(j) shall survive completion of any offering of securities
in a registration statement pursuant to Section 3.9. No indemnifying party, in
the defense of any such claim or litigation, shall, except with the consent of
each indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the
11.
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(k) If Purchaser purchases the Additional Shares in a private
offering in which investors obtain registration rights, Purchaser shall be
entitled to either the registration rights provided to investors in such private
offering or the registration rights provided herein, in its discretion.
3.10 Covenant to Keep Public Information Available. The Company
covenants and agrees that it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder as such may be amended from time to time (the
"Rules"), and will take such further actions as Purchaser may reasonably
request, all to the extent required from time to time to enable Purchaser to
sell Shares at such times as are permitted by this Agreement without
registration under the Securities Act within the limitations of Rule 144 of the
Rules or any similar rule or regulation hereafter adopted by the SEC. Upon the
request of Purchaser, the Company will supply Purchaser with a certificate
certifying compliance with this provision.
3.11 SEC Reports. All of the reports filed by the Company under the
Exchange Act prior to the date of this Agreement (the "SEC Reports") comply in
all material respects with the requirements of the Exchange Act. None of the SEC
Reports contains, as of the respective dates thereof, any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
3.12 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of Purchaser contained in Section 4, the offer,
issuance, sale and delivery of the Shares constitute an exempt transaction under
the Securities Act, and the offer, issuance, sale and delivery of Additional
Shares pursuant to Section 1.2 shall be made in compliance with the Securities
Act.
3.13 Registration Rights. Except as set forth in the Schedule of
Exceptions, the Company is not under any obligation to register any of its
presently outstanding securities or any of its securities which may hereafter be
issued.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser hereby represents, warrants and covenants with the Company as
follows:
4.1 Legal Power. Purchaser has the requisite partnership power and is
authorized to enter into this Agreement, to purchase the Shares hereunder and to
carry out and perform its obligations under the terms of this Agreement.
12.
4.2 Due Execution. This Agreement has been duly authorized executed and
delivered by Purchaser, and upon due execution and delivery by the Company, this
Agreement will be a valid and binding agreement of Purchaser.
4.3 Investment Representations and Covenants.
Purchaser is acquiring the Shares for its own account, not as nominee
or agent, for investment and not with a view to or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act. Purchaser understands that the Shares have not been registered
under the Securities Act, but are instead being offered and sold to Purchaser
pursuant to an exemption from registration contained in the Securities Act based
in part upon the following representations and warranties:
(a) Purchaser is capable of evaluating the merits and risks of
its investment in the Company and has the capacity to protect its own interests.
Purchaser must bear the economic risk of this investment unless the Shares are
registered pursuant to the Securities Act, or an exemption from registration is
available. Purchaser understands that the Company has no present intention of
registering the Shares. Purchaser also understands that there is no assurance
that any exemption from registration under the Securities Act will be available
and that, even if available, such exemption may not allow such Purchaser to
transfer all or any portion of the Shares under the circumstances, in the
amounts or at the times Purchaser might propose.
(b) Purchaser is acquiring the Shares for such Purchaser's own
account for investment only, and not with a view towards their distribution.
(c) Purchaser represents that by reason of its, or of its
management's, business or financial experience, Purchaser has the capacity to
protect its own interests in connection with the transactions contemplated in
this Agreement.
(d) Purchaser has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations and facilities. Purchaser has also had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
(e) Purchaser acknowledges and agrees that the Shares must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Purchaser has been
advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things: the availability of certain current public information about the
Company, the resale occurring not less than two years after a party has
purchased and paid for the security to be sold, the sale being through an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Exchange Act) and the number of shares
13.
being sold during any three-month period not exceeding specified limitations.
Each certificate representing the Shares shall be stamped or otherwise imprinted
with a legend substantially similar to the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL THEY ARE REGISTERED UNDER THE ACT OR UNLESS (A) THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED OR (B) SUCH SALE IS MADE
PURSUANT TO RULE 144 UNDER THE ACT.
4.4 Standstill Covenant. Purchaser agrees that prior to the earlier of
(i) the expiration of initial Research Term (as defined in the Collaboration
Agreement) without giving effect to any extension thereof or (ii) the earlier
termination of the Research Term pursuant to Article X of the Collaboration
Agreement, neither Purchaser nor any of its affiliates will in any manner,
directly or indirectly (i) other than as permitted by this Agreement, effect,
seek, offer or propose to effect any acquisition of any securities or assets of
the Company, any tender or exchange offer, merger, business combination,
recapitalization or other extraordinary transaction involving the Company or any
solicitation of proxies or consents to vote any voting securities of the
Company, (ii) form, join or in any way participate in a "group" (as defined in
the Exchange Act) with respect to any voting securities of the Company, (iii)
solicit or participate in any solicitation of proxies relating to the election
of directors of the Company, or (iv) enter into any agreement with any other
person with respect to the foregoing, or assist any other person to do any of
the foregoing; provided that (A) Purchaser may purchase additional securities in
an amount sufficient to allow Purchaser to own up to 4.9% of the then
outstanding shares of Common Stock of the Company (excluding any shares issued
directly to Purchaser or its affiliates by the Company); (B) the transfer of
Shares in accordance with Section 4.5 and the voting thereof by the transferee
shall not be deemed a prohibited group formation or proxy solicitation; (C) the
restrictions contained in this Section shall terminate automatically upon the
acquisition by any person or group (as defined in the Exchange Act), other than
Purchaser and its affiliates, of more than 20% of the outstanding voting
securities of the Company or upon the commencement (as provided in Rule 14d-2
under the Exchange Act) of a tender offer other than by or on behalf of
Purchaser or its affiliates (with securities or cash) which has not been
approved by a majority of the Company's Board of Directors for the Company's
voting securities and (D) this sentence shall not prohibit the acquisition or
disposition of shares for investment purposes only in the open market in the
ordinary course by any pension fund or trust for the benefit of employees of
Purchaser or its affiliates.
4.5 Lockup Covenant. Purchaser agrees that prior to the earlier of (i)
the expiration of the initial Research Term (as defined in the Collaboration
Agreement) without giving effect to any extensions thereof or (ii) the earlier
termination of the Research Term pursuant to Article X of the Collaboration
Agreement, Purchaser will not, without the prior written approval of the
14.
Company, offer, sell or otherwise dispose of, directly or indirectly, any
capital stock of the Company which Purchaser may own directly, indirectly or
beneficially; provided that (i) Purchaser may transfer some or all of such
capital stock (A) pursuant to and in accordance with the terms of any merger,
consolidation, reclassification of shares or capital reorganization of
Purchaser, or pursuant to a sale of all or substantially all of the stock or
assets of Purchaser; and (B) to a corporation, partnership or other legal entity
of which Purchaser is in control of, under common control with or controlled by,
but only if such transferee agrees in writing to hold such capital stock subject
to all of the provisions of this Agreement and to transfer such capital stock to
Purchaser if such transferee ceases to be in control of, under common control
with or controlled by Purchaser (all such capital stock so transferred shall be
deemed to be shares held by Purchaser for all purposes hereunder), (ii) the
restrictions contained in this sentence shall terminate automatically upon the
acquisition by any person or group (as defined in the Exchange Act), other than
Purchaser and its affiliates, of more than 20% of the outstanding voting
securities of the Company, and (iii) this sentence shall not prohibit the
acquisition or disposition of shares for investment purposes only in the open
market in the ordinary course by any pension fund or trust for the benefit of
employees of Purchaser or its affiliates.
4.6 Right of First Offer. Purchaser agrees that Purchaser will not
sell, assign, pledge, or in any manner transfer any of the Shares or any right
or interest therein, whether voluntarily or by operation of law, except by a
transfer which meets the requirements set forth elsewhere in this Agreement and
hereinafter set forth in this Section 4.6:
(a) If Purchaser receives from anyone a bona fide offer
acceptable to Purchaser to purchase any of the Shares, or intends to make a bona
fide offer to sell any Shares, then Purchaser shall first give written notice
thereof to the Company. The notice shall name the proposed transferee, if known,
and state the number of shares to be transferred, the price per share or method
for determining the price and all other terms and conditions of the offer.
(b) For five (5) business days following receipt of such
notice, the Company shall have the option to purchase all of the shares (but not
less than all) specified in the notice at the price and upon the terms set forth
in such bona fide offer. In the event the Company elects to purchase all the
shares, it shall give written notice to the Purchaser of its election and
settlement for said shares shall be made as provided below in paragraph (c).
(c) In the event the Company elects to acquire any of the
Shares as specified in Purchaser's notice, the Company shall so notify Purchaser
and settlement thereof shall be made in cash within ten (10) business days after
the Company receives Purchaser's notice; provided that if the terms of payment
set forth in Purchaser's notice were other than cash against delivery, the
Company shall pay for said shares on the same terms and conditions set forth in
Purchaser's notice.
(d) In the event the Company does not elect to acquire all of
the shares specified in Purchaser's notice, Purchaser may, within the sixty-day
period following the expiration of the option rights granted to the Company
herein, sell elsewhere the shares specified
15.
in Purchaser's notice which were not acquired by the Company, in accordance with
the provisions of this Agreement, provided that said sale shall not be on terms
and conditions more favorable to Purchaser than those contained in the bona fide
offer set forth in Purchaser's notice.
(e) Anything to the contrary contained herein notwithstanding,
the following transactions shall be exempt from the provisions of this Section
4.6:
(i) A transfer of any or all of the Shares pursuant
to and in accordance with the terms of any merger, consolidation,
reclassification of shares or capital reorganization of Purchaser, or pursuant
to a sale of all or substantially all of the stock or assets of Purchaser; and
(ii) A transfer of any or all of the Shares to a
corporation, partnership or other legal entity of which Purchaser is in control
of, under common control with or controlled by, but only if such transferee
agrees in writing to hold such Shares subject to all of the provisions of this
Agreement and to transfer such Shares to Purchaser if such transferee ceases to
be in control of, under common control with or controlled by Purchaser (all such
Shares so transferred shall be deemed to be shares held by Purchaser for all
purposes hereunder).
In any such case, the transferee, assignee, or other
recipient shall receive and hold such stock subject to the provisions of this
Agreement, and there shall be no further transfer of such stock except in
accordance with this Agreement.
(f) Any sale or transfer, or purported sale or transfer, of
Shares shall be null and void unless the terms, conditions and provisions of
this Agreement are strictly observed and followed.
(g) The foregoing right of first offer shall terminate on
either of the following dates, whichever shall first occur:
(i) The earlier of (i) the expiration of the Research
Term (as defined in the Collaboration Agreement) including any extensions
thereof or (ii) the earlier termination of the Research Term pursuant to Article
X of the Collaboration Agreement; or
(ii) Upon the registration of the Shares pursuant to
a registration statement filed with, and declared effective by, the SEC under
the Securities Act.
(h) The certificate representing the Shares shall bear on its
face the following legend so long as the foregoing right of first offer remains
in effect:
16.
"The shares represented by this certificate are subject to a
right of first offer option in favor of the Company, as provided in the
Common Stock Purchase Agreement dated as of September 30, 1996 by and
between the Company and Vision Pharmaceuticals L.P.
5. MISCELLANEOUS.
5.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents, made and to be performed entirely within the State of
California, without regard to principles of conflict of laws.
5.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.
5.3 Entire Agreement. This Agreement and the Exhibits hereto, and the
other documents delivered pursuant hereto, constitute the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and no party shall be liable or bound to any other party in any manner by any
representations, warranties, covenants, or agreements except as specifically set
forth herein or therein. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5.4 Separability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
5.5 Amendment and Waiver. Except as otherwise provided herein, any term
of this Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Company and Purchaser. Any
amendment or waiver effected in accordance with this section shall be binding
upon any holder of any security purchased under this Agreement (including
securities into which such securities have been converted), each future holder
of all such securities, and the Company.
5.6 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery, on the first business day following mailing by overnight
courier, or on the fifth day following mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company and
Purchaser at the addresses included herein.
17.
5.7 Fees and Expenses. The Company and Purchaser shall bear their own
expenses and legal fees with respect to this Agreement and the transactions
contemplated hereby.
5.8 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
5.10 Consent to Jurisdiction and Venue. Any claim or controversy
arising out of or related to this Agreement or any breach hereof shall be
submitted to a court of applicable jurisdiction in the State of California and
each party hereby consents to the jurisdiction and venue of such court.
5.11 Guarantee. Allergan guarantees the performance of each obligation
of Purchaser under this Agreement, whether or not Allergan has received any
notice which is to be provided to Purchaser pursuant to this Agreement.
18.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date set forth in the first paragraph hereof.
SUGEN, INC.
By: /s/ Xxxxxxx Xxxxx-Freke
-------------------------------------------
Name: Xxxxxxx Xxxxx-Freke
Title: Chief Executive Officer
and Chairman of the Board
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000-0000
VISION PHARMACEUTICALS L.P., A TEXAS LIMITED
PARTNERSHIP DBA ALLERGAN
By: Allergan General, Inc.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx
Secretary
Address: c/o Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Guarantee of performance given by:
ALLERGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Corporate Vice President
and General Counsel
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
19.
EXHIBIT A
FORM OF OPINION FROM
XXXXXX GODWARD XXXXXX XXXXXXXXX & XXXXX
Organization. The Company is a corporation, duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation.
The Company has all requisite power and authority to own or lease its properties
and to conduct its business as now conducted. The Company is qualified as a
foreign corporation and is in good standing in all states where the conduct of
its business or its ownership or leasing of property requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the business, financial condition or results of operations of
the Company taken as a whole.
Authority. The Company has all requisite power and authority to enter into this
Agreement, and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the Collaboration Agreement and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the Company, and
upon execution and delivery by the Company, this Agreement and the Collaboration
Agreement will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws relating to or affecting creditor's rights from time to time in
effect and subject to general equity principles.
Shares validly issued. The Shares have been duly authorized, and upon issuance
and delivery against payment therefor in accordance with the terms of the
Agreement, will be validly issued, outstanding, fully paid and nonassessable.
EXHIBIT B
SCHEDULE OF EXCEPTIONS PURSUANT TO SECTION 3
This Schedule of Exceptions is made and given pursuant to Section 3 of
the Agreement. The paragraph numbers in this Schedule of Exceptions correspond
to the paragraph numbers in the Agreement; however, any information disclosed
herein under any paragraph number shall be deemed to be disclosed and
incorporated into any other paragraph number under the Agreement where such
disclosure would be appropriate. Any terms defined in the Agreement shall have
the same meaning when used in this Schedule of Exceptions as when used in the
Agreement unless the context otherwise requires.
3.2 Capitalization. The following warrants were exercised for the
number of shares indicated in cashless transactions on the dates indicated:
Shares Shares Warrant
Date Warrantholder Issued Netted Out Total
---- ------------- ------ --------- -----
3/22/96 Silicon Valley Bank 1,811 855 2,666
1/5/96 Western Technology 3,623 1,710 5,333
Investment
On September 30, 1996, 20,410 shares of Common Stock were issued under
the Company's Employee Stock Purchase Plan.
3.13 Registration Rights. The Company has granted registration rights
to the following security holders with respect to the number of shares
indicated:
Security Holder Number of Shares
--------------- ----------------
Asta Medica Aktiengesellschaft 431,137
Zeneca Limited 1,071,016
AMGEN, Inc. 200,000
Sanwa Business Credit Corp. 2,666
Dr. Xxxxxxxx Xxxx 15,000
Financing for Science International, Inc. 20,798
Genentech, Inc. 133,333
Comdisco 76,847
