CADENCE PHARMACEUTICALS, INC. COMMON STOCK PURCHASE AGREEMENT
Exhibit 10.1
CADENCE PHARMACEUTICALS, INC.
THIS COMMON STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of this 14th day
of February, 2008, by and between Cadence Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and the undersigned (the “Investor”).
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock. The Investor agrees to purchase at the Closing (defined
below), and the Company agrees to sell and issue to the Investor at the Closing, the number of
shares of the Company’s Common Stock, $0.0001 par value (the “Common Stock”), set forth on the
Investor’s signature page hereto next to the heading “Shares” (the “Stock”) at a price of $5.34 per
share, for a total subscription amount equal to the amount set forth on the Investor’s signature
page hereto next to the heading “Subscription Amount.”
1.2 Other Agreements. The Company proposes to enter into the identical form of agreement with
certain other investors (the “Other Investors”) and expects to complete sales of Stock to them.
The Investor and the Other Investors are hereinafter sometimes collectively referred to as the
“Investors.”
1.3 Closing. The purchase and sale of the Stock shall take place at the offices of Xxxxxx &
Xxxxxxx LLP located at 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx at 10:00 A.M., New
York City time, on February 20, 2008, or at such other time and place as the Company and the
Investor may mutually agree upon orally or in writing (which time and place are designated as the
“Closing”). At the Closing, the Company shall cause its transfer agent to deliver to the Investor,
via electronic book-entry or physical certificates, the Stock such Investor is purchasing hereunder
against payment of the purchase price therefor by check or wire transfer of immediately available
funds to the following account:
Account Name: Cadence Pharmaceuticals, Inc.
Account No.:
ABA/Routing No.:
Account No.:
ABA/Routing No.:
Bank Name: Silicon Valley Bank
Bank Address: 0000 Xxxxxx Xx.
Xxxxx Xxxxx, XX 00000
Bank Address: 0000 Xxxxxx Xx.
Xxxxx Xxxxx, XX 00000
2. Representations and Warranties of the Company. The Company hereby makes the following
representations, warranties and covenants to the Investor:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the “Securities Act”), and has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on such Form (Registration File No. 333-147721), which
became effective as of December 11, 2007, for the registration under the Securities Act of the
Stock. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act (“Rule 424(b)”), and the rules and regulations (the “Rules and
Regulations”) of the Commission promulgated thereunder, a supplement to the form of prospectus
included in such registration statement relating to the offer to sell and proposed sale of the
Stock and the
plan of distribution thereof. Such registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter called the “Registration Statement”; such
prospectus in the form in which it appears in the Registration Statement is hereinafter called the
“Base Prospectus”; and the supplemented form of prospectus, in the form in which it will be filed
with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the “Prospectus Supplement.” Any reference herein to the Registration Statement,
the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the
documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and other information which is
“contained,” “included,” “described,” “set forth” or “stated” in the Registration Statement, the
Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus
or the Prospectus Supplement, as the case may be. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of the Registration
Statement or the use of the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the Company’s knowledge, is
threatened by the Commission.
(b) The Registration Statement (and any further documents to be filed with the Commission)
contains all exhibits and schedules as required by the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective, complied in
all material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations and did not and, as amended or supplemented, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Base Prospectus and the Prospectus
Supplement, each as of its respective date, comply in all material respects with the Securities Act
and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus and the
Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date
thereof any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made, not
misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the applicable Rules and Regulations
and none of such Incorporated Documents, when they were filed with the Commission, contained any
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the Base Prospectus or Prospectus
Supplement, when such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as
applicable and will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they are
made, not misleading. Notwithstanding the foregoing, the Company makes no representations or
warranties as to information, if any, contained in or omitted from the Prospectus Supplement or any
amendment thereof or supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Investor specifically for use in the
Registration Statement or the Prospectus Supplement, which information the parties hereto agree is
limited to the Investor Information as defined in Section 4.1. No post-effective amendment to the
Registration Statement reflecting any facts
or events arising after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with the Commission in connection with the
transaction contemplated hereby that have not been filed as required pursuant to the Securities Act
or will not be filed within the requisite time period. There are no contracts or other documents
required to be described in the Base Prospectus or Prospectus Supplement, or to be filed as
exhibits or schedules to the Registration Statement, which have not been described or filed as
required.
(c) The Company has delivered, or will as promptly as practicable deliver, to the Investor
complete conformed copies of the Registration Statement and of each consent and certificate of
experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Base Prospectus and the Prospectus Supplement, as amended or supplemented, in
such quantities and at such places as such Investor reasonably requests. Neither the Company nor
any of its directors and officers has distributed and none of them will distribute, prior to the
Closing, any offering material in connection with the offering and sale of the Stock other than the
Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents
incorporated by reference therein and any other materials permitted by the Securities Act.
(d) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Registration
Statement, the Base Prospectus and the Prospectus Supplement, and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such qualification is
required, except where the failure so to qualify or to be in good standing, individually or in the
aggregate, would not have a material adverse effect on the assets, properties, condition, financial
or otherwise, or in the results of operations of the Company, or materially impair the Company’s
ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(e) The Company has the requisite power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder.
The execution and delivery of this Agreement by the Company and the consummation by it of the
transactions contemplated hereunder have been duly authorized by all necessary corporate action on
the part of the Company, and no further consent or action is required by the Company, its Board of
Directors or its stockholders. This Agreement has been duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(f) The execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not and will not (i)
conflict with or violate any provision of the Company’s amended and restated certificate of
incorporation or amended and restated bylaws, (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse
of time or both) of, or give any rights to receipt of any portion of the proceeds from the sale of
the Stock pursuant to, any agreement, credit facility, debt or other instrument (evidencing a
Company debt or otherwise) to which the Company is a party or by which any property or asset of the
Company is bound or affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company is subject (including federal and state
securities laws and regulations) and the rules and regulations of any self-regulatory
organization to which the Company or its securities are subject, or by which any property or asset
of the Company is bound or affected except in the case of clauses (ii) and (iii), such as would
not, individually or in the aggregate, result in a Material Adverse Effect.
(g) No consent, approval, authorization, filing with or order of or registration with, any
court or governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been or will be obtained or made under the Securities Act or the
Exchange Act and such as may be required under the securities, or blue sky, laws of any
jurisdiction in connection with the offer and sale of the Stock by the Company in the manner
contemplated herein and in the Prospectus Supplement.
(h) The Stock to be issued and sold by the Company hereunder has been duly and validly
authorized and, when issued and delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and nonassessable and free and clear of all liens (other than any
liens created by or imposed by the Investor or through no action of the Company) and free of any
preemptive or similar rights. The Stock conforms in all material respects to the description
thereof contained in the Registration Statement, the Base Prospectus and the Prospectus Supplement.
(i) The Company has an authorized capitalization as set forth in the Registration Statement,
the Base Prospectus and the Prospectus Supplement, all of the issued and outstanding shares of
Common Stock of the Company have been duly and validly authorized and issued, are fully paid and
non-assessable, have been issued in compliance with federal and state securities laws, and conform
in all material respects to the description thereof contained in the Registration Statement, the
Base Prospectus and the Prospectus Supplement. There are no outstanding options, warrants, or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company that have been granted by the Company other than those
accurately described in the Registration Statement, the Base Prospectus and the Prospectus
Supplement or options issued in the ordinary course of business subsequent to the dates presented
in the Registration Statement, the Base Prospectus and the Prospectus Supplement. The description
of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, as described in the Registration Statement, the Base Prospectus
and the Prospectus Supplement, accurately and fairly present the information required to be shown
with respect to such plans, arrangements, options and rights.
(j) Except as may otherwise be approved by the Holders of a majority of the outstanding shares
of Stock issued pursuant to the offering contemplated by this Agreement and then held by such
Holders, the Company will use the proceeds from the sale of Stock (i) to fund clinical and
preclinical development of the Company’s product candidates, including, but not limited to, (A) the
funding in the entirety of one or more Phase III clinical trials to support the safety and efficacy
of Acetavance™ in acute pain, in addition to the CPI-APA-301 and CPI-APA-304 trials, but only if
the Company, in its reasonable judgment, decides to conduct such trial(s) following any
communications between the Company and the U.S. Food and Drug Administration, and (B) the review
of the CPI-APA-304 trial and funding of any modifications, revisions or other changes to such trial
as appropriate, and (ii) for general corporate purposes (only to the extent the items described in
(i)(A) and (B) above have been fully funded or amounts required for those items have been reserved
by the Company). For purposes of this Agreement, “Holders” shall mean all purchasers who acquire
Stock in the offering contemplated by this Agreement.
(k) Except as otherwise disclosed in all of the reports required to be filed by the Company
under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the twelve months preceding the date hereof (the foregoing materials (together with
any
materials filed by the Company under the Exchange Act, whether or not required) being
collectively referred to herein as the “SEC Documents”), since December 31, 2006, there have not
been (i) any changes in the assets, liabilities, financial condition, business prospects or
operations of the Company from that reflected in the financial statements in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006 except changes in the ordinary
course of business that have not been, either individually or in the aggregate, materially adverse
and (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A)
trade payables, accrued expenses and other liabilities incurred in the ordinary course of business
consistent with past practice, (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings made with the
Commission, and (C) other liabilities that would not, individually or in the aggregate, have a
material adverse effect, (iii) the Company has not altered its critical accounting policies, (iv)
the Company has not declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its
capital stock, and (v) the Company has not issued any equity securities to any officer, director or
affiliate of the Company, except pursuant to existing Company stock incentive or purchase plans.
The Company does not have pending before the Commission any request for confidential treatment of
information or documents.
(l) Except as disclosed in the SEC Documents, there is no proceeding, or, to the Company’s
knowledge, inquiry or investigation, before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries that (a) could have a material adverse
effect on the Company’s properties or assets or the business of the Company as currently conducted
or (b) could impair the ability of the Company to perform in any material respect its obligations
under this Agreement. Neither the Company or its subsidiaries, nor any director or officer thereof
is, or within the last ten years has been, the subject of any action involving a claim of violation
of or liability under federal or state securities laws relating to the Company or a claim of breach
of fiduciary duty relating to the Company.
(m) The Company has not, in the twelve months preceding the date hereof, received notice
(written or oral) from the Financial Industry Regulatory Authority to the effect that the Company
is not in compliance with the listing or maintenance requirements of the Nasdaq Global Market. The
Company is in compliance with all such listing and maintenance requirements. The issuance and sale
of the Stock under this Agreement does not contravene the rules and regulations of the Nasdaq
Global Market, and no approval of the stockholders of the Company thereunder is required for the
Company to issue and deliver to the Investors the Stock.
(n) The Company is in compliance in all material respects with applicable requirements of the
Xxxxxxxx-Xxxxx Act of 2002 and applicable rules and regulations promulgated by the Commission
thereunder.
(o) The Company has established and maintains disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to
ensure that material information relating to the Company, including its subsidiaries, is made known
to its chief executive officer and chief financial officer by others within those entities. The
Company’s certifying officers have evaluated the effectiveness of the Company’s controls and
procedures as December 31, 2006. The Company presented in its Annual Report on Form 10-K for the
fiscal year ended December 31, 2006 the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of December
31, 2006. Since December 31, 2006, there have been no significant changes in the Company’s
internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Exchange Act)
or, to the Company’s knowledge, in other factors that could significantly affect the Company’s
internal controls.
(p) Neither the Company, nor any person acting on its behalf, has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would cause the offering of Stock contemplated by this Agreement to be
integrated with prior offerings by the Company for purposes of the Securities Act or the rules and
regulations of the Nasdaq Stock Market, Inc.
(q) The Company has not taken, nor will it take, directly or indirectly any action designed to
stabilize or manipulate of the price of the Common Stock or any security of the Company to
facilitate the sale or resale of any of the Common Stock.
3. Representations and Warranties of the Investor. The Investor hereby makes the following
representations, warranties and covenants to the Company:
(a) (i) Such Investor has full right, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid
and binding obligation of such Investor enforceable against such Investor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights
generally and except as enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Investor represents that it has received (or otherwise had made available to it by
the filing by the Company of an electronic version thereof with the Commission) the Base
Prospectus, the Prospectus Supplement and the Incorporated Documents prior to or in connection with
its receipt of this Agreement. Such Investor acknowledges that, prior to the delivery of this
Agreement to the Company, the Investor will receive certain additional information regarding the
offering of the Stock, including pricing information (the “Offering Information”). The Offering
Information may be provided to such Investor by any means permitted under the Securities Act,
including in the Prospectus Supplement (delivered to such Investor or made available to it by the
filing of an electronic version thereof with the Commission), a free writing prospectus or oral
communications.
(c) Such Investor, together with its affiliates (as that term is defined under Rule 405 of
the Securities Act), has not, prior to the date of this Agreement, sold, offered to sell, solicited
offers to buy, disposed of, loaned, pledged or granted any right with respect to (collectively, a
“Disposition”), the offering and sale of the Stock. Such prohibited sales or other transactions
would include, without limitation, effecting any short sale or having in effect any short position
(whether or not such sale or position is against the box and regardless of when such position was
entered into) or any purchase, sale or grant of any right (including, without limitation, any put
or call option) with respect to the offering and sale of the Stock.
(d) Such Investor shall not issue any press release or make any other public announcement
relating to this Agreement unless (i) the content thereof is mutually agreed to by the Company and
such Investor, or (ii) such Investor is advised by its counsel that such press release or public
announcement is required by law.
(e) If such Investor is outside the United States, such Investor will comply with all
applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells
or delivers the Stock or has in its possession or distributes any offering material, in all cases
at its own expense.
(f) Such Investor understands that nothing in this Agreement or any other materials presented
to such Investor in connection with the purchase and sale of the Stock constitutes legal, tax or
investment advice. Such Investor has consulted such legal, tax and investment advisors as such
Investor, in its sole discretion, has deemed necessary or appropriate in connection with such
Investor’s purchase of the Stock.
(g) Such Investor hereby acknowledges that it is not acting as a member of a “group” (as such
term is defined in Rule 13d of the Exchange Act) with any other investor, other than funds
affiliated with the Investor, in connection with the offering and sale of the Stock.
(h) Such Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the Company or any of its
affiliates, (b) it is not a FINRA member or an Associated Person (as such terms are defined under
the FINRA Membership and Registration Rules Section 1011) as of the Closing, and (c) neither such
Investor nor any group of Investors (as identified in a public filing made with the Commission) of
which the Investor is a part in connection with the offering of the Stock, acquired, or obtained
the right to acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a post-transaction basis.
Exceptions:
(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)
4. Miscellaneous.
4.1 Investor Information. The parties hereto acknowledge and agree that, for all purposes of
this Agreement, “Investor Information” means solely the statements concerning the Investor
contained under the heading “Plan of Distribution” in the Prospectus Supplement.
4.2 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
4.3 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of California, without giving effect to the principles of conflicts of
law.
4.4 Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile signatures shall be as effective as original signatures.
4.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
4.6 Notices. Any notice required or permitted hereunder shall be given in writing and shall
be conclusively deemed effectively given upon personal delivery, or five (5) days after deposit in
the United States mail, by registered or certified mail (or airmail, if notice shall be sent
outside the United States), postage prepaid, or two (2) days after delivery to a nationally known
air courier company, addressed (a) if to the Company, to the Company’s address as set forth below
the Company’s name on the signature page of this Agreement, and (b) if to the Investor, to such
Investor’s address as set forth on the signature page of this Agreement, or at such other address
as the Company or such Investor may designate by ten (10) days, advance written notice to the other
parties hereto.
4.7 Finder’s Fee. Each party represents that it neither is nor will be obligated for any
finders’ fee or commission in connection with this transaction. The Investor, severally and not
jointly, agrees to indemnify and to hold harmless the Company from any liability for any commission
or compensation in the nature of a finders’ fee (and the costs and expenses of defending against
such liability or asserted liability) for which such Investor or any of its officers, partners,
employees, or representatives is responsible. The Company agrees to indemnify and hold harmless the
Investor from any liability for any commission or compensation in the nature of a finders’ fee (and
the costs and expenses of defending against such liability or asserted liability) for which the
Company or any of its officers, employees or representatives is responsible.
4.8 Indemnification. Subject to the provisions of this Section 4.8, the Company will
indemnify and hold the Investor and its directors, officers, stockholders, partners, managers,
members, employees and agents (each, an “Investor Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and attorneys’ fees and costs of investigation,
that any such Investor Party may suffer or incur (the “Indemnified Liabilities”) as a result of or
relating to any breach of any of the representations, warranties, covenants or agreements made by
the Company in this Agreement (which shall survive the Closing). The Company shall not be liable
to any Investor Party under this provision in respect of any Indemnified Liability if (and then
only to the extent) such liability arises out of any misrepresentation by the Investor in Section 3
of this Agreement or actions taken by such Investor Party in violation or contravention of this
Agreement. To the extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. If any action shall be
brought against any Investor Party in respect of which indemnity may be sought pursuant to this
Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing. Any Investor Party
shall have the right to employ separate counsel in any such action and participate in the defense
thereof (it being understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel (other than local counsel)), but the fees and expenses of such
counsel shall be at the expense of such Investor Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel or (iii) in such
action there is, in the reasonable opinion of such separate counsel, a material conflict on any
material issue between the position of the Company and the position of such Investor Party.
4.9 Conditions.
(a) The Company’s obligation to issue and sell the Stock to the Investor shall be subject to:
(i) the receipt by the Company of the purchase price for the Stock being purchased hereunder and
(ii) the accuracy of the representations and warranties made by the Investor and the fulfillment of
those undertakings of the Investor to be fulfilled prior to the Closing.
(b) The Investor’s obligation to purchase the Stock will be subject to:
| (i) | (A) | the receipt by the Company of an aggregate of at least $49,300,000.00 in gross proceeds from sale of the Stock to the Investors in the offering contemplated by this Agreement, or |
| (B) | in the event that, on or prior to the Closing, (1) The Nasdaq Stock Market Inc. has raised any objection pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) in connection with the Company’s Notification Form: Listing of Additional Shares, or (2) the |
| Company otherwise determines that the issuance of shares of Stock to Domain Associates, L.L.C. (and/or its affiliates) pursuant to the offering contemplated by this Agreement, together with any shares of Common Stock held by Domain Associates, L.L.C. (and/or its affiliates), may be inconsistent with Nasdaq Marketplace Rule 4350(i)(1)(B), the receipt by the Company of an aggregate of at least $43,000,000.00 in gross proceeds from the sale of the Stock to the Investors in the offering contemplated by this Agreement; |
(ii) the accuracy of the representations and warranties made by the
Company and the fulfillment of those undertakings of the Company to be
fulfilled prior to the Closing;
(iii) the receipt, on the Closing, by the Investors of a certificate of
the Chief Executive Officer and the Chief Financial Officer of the
Company, dated as of the Closing, certifying as to the matters in
Section 4.9(b)(ii) above; and
(iv) no stop order or suspension of trading shall have been imposed by the
Nasdaq Global Market, the Commission or any other governmental regulatory
body with respect to public trading in the Common Stock.
4.10 Fees and Expenses. The Company agrees to pay all fees, expenses and disbursements of
counsels for the Investors (including, but not limited to, Ropes & Xxxx LLP and Xxxxxx Godward
Kronish LLP) reasonably incurred in connection with the consummation of the transactions
contemplated by this Agreement.
4.11 Survival. The respective representations, warranties, indemnities, covenants and
agreements of the Company and the Investor set forth in or made pursuant to this Agreement (a) will
remain operative and in full force and effect, regardless of any (i) investigation, or statement as
to the results thereof, made by or on behalf of the Investor, the Company or any of their
respective representatives, officers or directors or any controlling person, as the case may be, or
(ii) acceptance of the Stock and payment for it hereunder and (b) will survive delivery of and
payment for the Stock sold hereunder and any termination of this Agreement.
4.12 Amendments and Waivers. 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 and either
retroactively or prospectively), only with the written consent of the Company and the Investor.
4.13 Severability. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.14 Entire Agreement. This Agreement and the other documents referred to herein constitute
the entire agreement among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as specifically set forth herein
or therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| CADENCE PHARMACEUTICALS, INC. | ||||||
| By: | ||||||
| Name: Xxxxxxxx X. Xxxxxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| Address: | 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000 | |||||
| Xxx Xxxxx, Xxxxxxxxxx 00000 | ||||||
| Fax No.: (000) 000-0000 | ||||||
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SIGNATURE PAGE FOR INVESTOR FOLLOWS]
SIGNATURE PAGE FOR INVESTOR FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
Name of Investor: |
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Signature of Authorized Signatory of Investor: |
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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Email Address of Investor: |
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Address for Notice of Investor: |
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Tax ID No.: |
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Contact Name: |
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Telephone No.: |
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Name of DTC Participant (broker-dealer at which the account or accounts to be
credited with the shares are maintained), if applicable: |
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DTC Participant Number, if applicable: |
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Name of Account at DTC Participant being credited with the shares, if
applicable: |
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Account Number at DTC Participant being credited with the shares, if applicable: |
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Contact Name at Broker: |
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Broker’s Telephone Number: |
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Subscription Amount: |
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Shares: |
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