Exhibit 4.1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of this 25th day of
February, 1997 between Cadus Pharmaceutical Corporation, a Delaware corporation
(the "Company") and SmithKline Xxxxxxx Corporation, a Pennsylvania corporation
(the "Investor").
Background. Concurrently with the execution of this Agreement, the
Company, the Investor and SmithKline Xxxxxxx plc ("SBplc"), the corporate parent
of the Investor, have entered into a research collaboration and license
agreement (the "Research Agreement") pursuant to which the parties will define
the function of, and develop screening assays for, 7 transmembrane (7TM)
receptors of currently unknown function. In connection with that collaboration,
the Investor has agreed to purchase shares of common stock of the Company (the
"Common Stock") on the terms set forth in this Agreement.
In consideration of the mutual promises, covenants and conditions set
forth below, the parties intending to be legally bound agree as follows:
1. First Option Purchase. (a) Subject to the terms and conditions of
this Agreement, during a 90 day period commencing on the first anniversary of
the date of this Agreement (the "First Option Period"), at election of the
Company, the Company shall issue and sell and the Investor shall purchase such
number of shares of Common Stock (the "First Option Shares") as is determined by
dividing $5 million by the First Option Share Price (as defined in Section 1(b)
below). The consideration paid for issuance of the First Option Shares is $5
million to be paid at the First Option Closing (as defined in Section 1(c)
below). The Company's election shall be made by written notice delivered to the
Investor during the First Option Period. Such notice shall be given by fax
followed by next business day delivery of an original copy. Unless the Company
gives notice of its election during the First Option Period, the Investor shall
have no obligation to purchase any shares of Common Stock under thisSection 1.
(b) The "First Option Share Price" shall be equal to the
average of the closing prices for Common Stock on the NASDAQ National Market
system as reported in the Wall Street Journal for the 45 trading days prior to
the date of the Company's notice pursuant to Section 1(a).
(c) The closing for the purchase and sale of the First Option
Shares shall take place at the offices of the Investor, Xxx Xxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, by the close of business on the fifth business day
following the date of the notice pursuant to Section 1(a) or at such other time
or place as may be agreed to by the Company and the Investor (the "First Option
Closing").
(d) At the First Option Closing the Company will deliver to
the Investor the First Option Shares, duly registered in the name of the
Investor against payment in full of the purchase price for the First Option
Shares by delivery of a check drawn or wire transfer of funds made payable to
the order of the Company in the amount of $5 million.
(e) The Investor understands and agrees that the First Option
Shares will not be issued pursuant to registration under the Securities Act of
1933, as amended (the "Securities Act"), and that the certificate representing
the First Option Shares shall bear an appropriate Securities Act legend.
2. Second Option Purchase. (a) Subject to the terms and conditions of
this Agreement, during a 90 day period commencing on the date that the Company
and the Investor agree that the Key Check Point (as defined in the Research
Agreement) has been achieved (the "Second Option Period") at election of the
Company, the Company shall issue and sell and the Investor shall purchase such
number of shares of Common Stock (the "Second Option Shares") as is determined
by dividing $5 million by the Second Option Share Price (as defined in Section
2(b) below). The consideration paid for issuance of the Second Option Shares is
$5 million to be paid at the Second Option Closing (as defined in Section 2(c)
below). The Company's election shall be made by written notice delivered to the
Investor during Second Option Period. Such notice shall be given by fax followed
by next business day delivery of an original copy. Unless the Company gives
notice of its election during the Second Option Period, the Investor shall have
no obligation to purchase any shares of Common Stock under this Section 2.
(b) The "Second Option Share Price" shall be equal to the
average of (i) the average of the closing prices for Common Stock on the NASDAQ
National Market system as reported in the Wall Street Journal for the 20 trading
days prior to the beginning of the Second Option Period and (ii) the average of
the closing prices for Common Stock on the NASDAQ National Market
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system as reported in the Wall Street Journal for the 20 trading days prior to
the date of the Company's notice of election pursuant to Section 2(a) above.
(c) The closing for the purchase and sale of the Second Option
Shares shall take place at the offices of the Investor, Xxx Xxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, by the close of business on the fifth business day
following the date of the notice pursuant to Section 2(a) or at such other time
or place as may be agreed to by the Company and the Investor (the "Second Option
Closing").
(d) At the Second Option Closing the Company will deliver to
the Investor the Second Option Shares, duly registered in the name of the
Investor against payment in full of the purchase price for the Second Option
Shares by delivery of a check drawn or wire transfer of funds made payable to
the order of the Company in the amount of $5 million.
(e) The Investor understands and agrees that the Second Option
Shares will not be issued pursuant to registration under the Securities Act and
that the certificate representing the Second Option Shares shall bear an
appropriate Securities Act legend.
(f) The Investor shall have no obligation to purchase the
Second Option Shares unless as of the date of the notice under Section 2(a) the
Company has at least $30 million in unrestricted cash, cash equivalents and
marketable securities net of the current portion of outstanding indebtedness. If
requested to do so by the Investor, the Company shall provide a certificate from
the Company's chief financial officer at the Second Closing confirming that this
condition has been satisfied.
3. Milestone Purchases. Section 3.3 of the Research Agreement
contemplates a series of research milestone payments upon, inter alia,
identification of surrogate ligands, obtaining constitutively active mutant
receptors and discovery of natural ligands. After the Investor and SB plc have
paid $5 million in milestone payments pursuant to Section 3.3 of the Research
Agreement, at the option of the Investor and SB plc with respect to the next $5
million that would otherwise be due as milestone payments, the Company shall
issue and sell and the Investor shall purchase such number of shares of Common
Stock (the "Milestone Shares") as is determined by dividing the amount of the
milestone payment in lieu of which the Investor has elected to purchase
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Common Stock by the Milestone Share Price (as defined in Section 3(b) below).
The consideration paid for issuance of the Milestone Shares shall be paid at the
time that the particular milestone payment would otherwise have been payable
under the Research Agreement. The Investor's election shall be made by written
notice delivered to the Company at such time as the Investor and SB plc confirm
their agreement that the milestone has been accomplished. Such notice shall be
given by fax followed by next business day delivery of an original copy. Unless
the Investor gives notice of its election prior to the date payment would
otherwise be due under the Research Agreement, the Investor and SB plc shall
remain obligated to make such milestone payment and the Company shall have no
obligation to issue any shares of Common Stock with respect to that particular
milestone payment under this Section 3. An election not to purchase Milestone
Shares in lieu of any particular milestone payment shall not preclude the
Investor from electing to receive Milestone Shares with respect to any
subsequent milestone payment; provided, however, that such election may only be
made with respect to a maximum of $5 million of milestone payments.
(b) The "Milestone Share Price" shall be equal to 150% of the
average of the closing prices for Common Stock on the NASDAQ National Market
system as reported in the Wall Street Journal for the 20 trading days prior to
the date of the Investor's notice pursuant to Section 3(a).
(c) The closing for the purchase and sale of any Milestone
Shares shall take place at the offices of the Investor, Xxx Xxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, by the close of business on the fifth business day
following the date of the notice pursuant to Section 3(a) or at such other time
or place as may be agreed to by the Company and the Investor (a "Milestone
Closing").
(d) At each Milestone Closing the Company will deliver to the
Investor the appropriate Milestone Shares, duly registered in the name of the
Investor.
(e) The Investor understands and agrees that the Milestone
Shares will not be issued pursuant to registration under the Securities Act and
that the certificate representing the Milestone Shares shall bear an appropriate
Securities Act legend.
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(f) In the event that any purchase of Milestone Shares is
contingent upon expiration or termination of the waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1974, as amended (the "HSR
Act"), the Milestone Closing shall be delayed until the third business day
following such expiration or termination.
4. Conditions to the Investor's Obligations. The obligation of the
Investor to purchase and pay for the First Option Shares at the First Option
Closing, the Second Option Shares at the Second Option Closing and any Milestone
Shares at the respective Milestone Closings (the First Option Shares, the Second
Option Shares and the Milestone Shares are collectively referred to as the
"Shares" and the First Option Closing, the Second Option Closing and the
Milestone Closings as "Closings") shall be subject to the satisfaction of each
of the following conditions precedent, any one or more of which may be waived by
the Investor:
(a) Representations and Warranties. Each of the
representations and warranties of the Company set forth in Section 5 (other than
the representations in Sections 5(e) and 5(g)) shall be true and correct as if
made on the date of the applicable Closing and the Company shall have delivered
to the Investor a certificate of the chief executive officer and the chief
financial officer of the Company dated as of the applicable date to such effect.
(b) Opinion of Counsel to the Company. The Company shall have
delivered to the Investor a favorable opinion of counsel to the Company, dated
as of the date of the first of the Closings, substantially in the form set forth
in Exhibit A attached to this Agreement.
(c) Corporate Documents. The Company shall have furnished the
Investor with a copy of all charter documents of the Company certified by the
Secretary of State of Delaware; a certified copy of the resolutions of the Board
of Directors and, if required, the shareholders of the Company evidencing
approval of this Agreement, the issuance of the Shares and all other matters
contemplated hereby; a certified copy of the Bylaws of the Company and certified
copies of all documents evidencing other necessary corporate or other action and
governmental approvals, if any, with respect to this Agreement and the issuance
of the Shares.
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(d) Incumbency. The Company shall have furnished the Investor
a certificate of the Secretary or an Assistant Secretary of the Company, dated
as of the date of the applicable Closing which shall certify the names of the
officers of the Company authorized to sign this Agreement (only with respect to
the first of the Closings) and the other documents or certificates to be
delivered pursuant to this Agreement by the Company or any of its officers,
together with the true signatures of such officers.
(e) Consents and Approvals. The Company shall have obtained
all consents or waivers, if any, necessary to execute and deliver this
Agreement, authorize and reserve the appropriate shares of Common Stock for
issuance at the applicable Closing and to carry out the transactions
contemplated hereby, and all such consents and waivers shall be in full force
and effect. All corporate and governmental filings necessary to effectuate the
terms of this Agreement and the issuance of the Shares shall have been made or
taken.
(f) Registration Rights Agreement. The Registration Rights
Agreement, described in Section 7 below, shall be in full force and effect.
(g) Xxxx-Xxxxx-Xxxxxx Clearance. The waiting period, if
any, applicable to the consummation of the purchase and sale of the Option
Shares under the HSR Act shall have expired or been terminated.
(h) Research Agreement. The Research Program constituted
pursuant to Section 3 of the Research Agreement shall be continuing and the
Company shall not have received any notice of default under Section 12.2 or
3.12(b) of the Research Agreement which has not yet been cured. In the event
that any such default is cured during the period permitted for such cure under
the Research Agreement, the First Option Closing or the Second Option Closing,
as applicable, shall be held on the date five (5) business days after the date
of cure, unless the Company has rescinded its notice of election to sell shares
of Common Stock to the Investor.
5. Representations and Warranties of the Company. Except as set forth
on the Schedule of Exceptions attached hereto as Exhibit B, the Company hereby
represents and warrants to the Investor as follows:
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(a) Organization and Standing of the Company. The Company is a
duly organized and validly existing corporation in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority for
the ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted. The Company is
duly qualified and in good standing as a foreign corporation authorized to do
business in all jurisdictions wherein the character of the property owned or
leased, or the nature of the activities conducted, by it makes such
qualification necessary, except where the failure to be so qualified does not
have a material adverse effect on the Company's financial condition, business
operations or property.
(b) Corporate Action. This Agreement and any other agreements
and instruments executed in connection herewith and therewith are the valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency or similar laws of general
application affecting the enforcement of rights of creditors, and subject to
equitable principles limiting rights to specific performance or other equitable
remedies, and subject to the effect of federal and state securities laws on the
enforceability of indemnification provisions relating to liabilities arising
under such laws. The execution, delivery and performance of this Agreement and
the issuance of the Shares have been duly authorized by all necessary corporate
action of the Company. The issuance of the Shares will not require any further
corporate action and will not be subject to preemptive or other preferential
rights or similar statutory of contractual rights either arising pursuant to any
agreement or instrument to which the Company is a party or which are otherwise
binding on the Company. The Shares when issued under this Agreement shall be
duly authorized, validly issued, fully paid and nonassessable.
(c) Governmental Approvals. No authorization, consent,
approval, license, exemption of or filing or registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, under any applicable laws, rules or regulations presently
in effect, is or will be necessary for, or in connection with, the offer,
issuance, sale, execution or delivery by the Company of the Shares or for the
performance by the Company of its obligations under this Agreement except for
(i) any filing that may be required under the HSR Act and (ii)
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filings under applicable securities laws which will be made within the
prescribed periods.
(d) Litigation. There is no litigation or governmental
proceeding or investigation pending or, to the best knowledge of the Company,
threatened against the Company materially and adversely affecting execution and
delivery of this Agreement or the performance by the Company of its obligations
under this Agreement.
(e) Registration Rights. No person has demand or other rights
to cause the Company to file any registration statement under the Securities Act
of 1933, as amended (the "Securities Act") relating to any securities of the
Company or any rights to participate in any such registration statement.
(f) Public Information; Absence of Material Adverse Change.
The information contained in the Company's Prospectus dated July 17, 1996
offering 2,750,000 shares of Common Stock and the reports (the "Reports") filed
by the Company pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as of the date thereof, did not misrepresent a material fact or
omit to state any material fact required to be stated therein, Since the date of
the most recent Report or press release issued by the Company, there has been no
material adverse change to the Company's business, assets or financial condition
or prospects.
(g) Subsidiaries; Charter Documents. The Company has no
subsidiaries and does not otherwise directly or indirectly control any other
business entity. The Company has furnished the Investor with certified copies of
its Certificate of Incorporation and Bylaws, together with any amendments
thereto as of the date hereof.
6. Representations and Warranties of the Investor. The Investor
hereby represents and warrants to the Investor as follows:
(a) Organization and Standing of the Investor. The Investor is
a duly organized and validly existing corporation in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority for the ownership and operation of its properties and for
the carrying on of its business as now conducted and as now proposed to be
conducted.
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(b) Corporate Action. This Agreement and any other agreements
and instruments executed in connection herewith and therewith are the valid and
binding obligations of the Investor, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency or similar laws of general
application affecting the enforcement of rights of creditors, and subject to
equitable principles limiting rights to specific performance or other equitable
remedies, and subject to the effect of federal and state securities laws on the
enforceability of indemnification provisions relating to liabilities arising
under such laws. The execution, delivery and performance of this Agreement and
execution and delivery of any other agreements an instruments executed in
connection herewith and therewith have been duly authorized by all necessary
corporate action of the Investor.
(c) Governmental Approvals. No authorization, consent,
approval, license, exemption of or filing or registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, under any applicable laws, rules or regulations presently
in effect, is or will be necessary for, or in connection with, the performance
by the Investor of its obligations under this Agreement except for any filing
that may be required under the HSR Act.
(d) Litigation. There is no litigation or governmental
proceeding or investigation pending or, to the best knowledge of the Investor,
threatened against the Investor affecting execution and delivery of this
Agreement or the performance by the Investor of its obligations under this
Agreement.
(e) Purchase for Investment. The Shares will be acquired for
investment for the Investor's own account and not with a view to resale or
distribution of any part thereof and that Investor does not have any present
intention of selling, granting any participation in, or otherwise distributing
the Shares in violation of the Securities Act or any state securities laws. The
Investor is able to fend for itself, can bear the economic risk of its
investment and has such knowledge and experience in financial or business
matters that the Investor is capable of evaluating the merits and risks of the
investment in the Shares. The Investor has not been organized for the purpose of
acquiring the Shares.
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7. Covenants.
(a) Registration Rights Agreement. The Company and the
Investor shall execute concurrently with this Agreement, a registration rights
agreement, substantially in the form of Exhibit C to this Agreement.
(b) HSR Act Filings. Subject to the terms and conditions
hereof, each of the parties hereto agrees to use its best efforts to make
promptly all necessary filings under the HSR Act at such time as such filings
may be required. The Investor shall pay the HSR Act filing fee.
(c) Current Information. During any period that a sale of the
Shares by the Investor may only be accomplished by compliance with Rule 144
under the Securities Act, the Company shall assure that all material information
concerning the Company is publicly available on a current basis.
(d) Sale of Shares. As long as the Investor has at least 10%
of the Shares purchased under this Agreement, the Investor will notify the
Company at least ten trading days in advance of any proposed sale of Shares
(including a tender of the Shares in the context of a tender offer for shares of
Common Stock). The Investor and the Company agree and acknowledge that it is in
their mutual interest that disposition of the Shares be accomplished in a manner
that does not disrupt or undermine the trading market for the Company's Common
Stock and the parties will work together to explore methods of disposition in
order to acheive such goal.
(e) Transfer to Competitor. The Investor shall not transfer
the Shares purchased under this Agreement to any person who (i) poses a
significant competitive threat to a substantial portion of the Company's
business or to a significant product of the Company or (ii) is involved in
ongoing litigation with the Company (as reflected in the Company's filings under
the Securities Exchange Act of 1934, as amended). This limitation on transfer
shall not apply to unsolicited sales by the Investor in open market transactions
through a broker (provided that the Investor has no knowledge that any such sale
is to or for the benefit of a person described above in this Section 7(e)),
sales by the Investor pursuant to an underwritten public offering or tender of
the Shares by the Investor in the context of a tender offer for shares of Common
Stock.
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(f) Lock Up Agreement. The Investor, if so requested by the
Company and an underwriter of Common Stock or other securities of the Company
convertible into Common Stock, shall not sell, grant any option or right to buy
or sell, or otherwise transfer or dispose of in any manner, whether in privately
negotiated or open market transactions, any Shares held by it or which it has
the right to acquire during the 180 day period following the effective date of a
registration statement of the Company filed with the Securities and Exchange
Commission in connection with such offering or such shorter period as such
underwriter shall have advised the Company in writing is adequate to permit the
successful and orderly distribution of such Common Stock or other securities;
provided, however, that such lock up agreement shall be in writing and
satisfactory to the Company and such underwriter and a copy shall have been
provided to the Investor. The Company may impose stop-transfer instructions with
respect to the Shares subject to the foregoing restrictions until the end of
said 180-day (or shorter) period. The Investor shall have no obligations under
this Section 7(f) unless (i) the Investor holds at least 1% of the outstanding
shares of Common Stock immediately prior to the effective date of the subject
registration statement and (ii) all directors, officers, holders of at least 5%
of the outstanding shares of Common Stock and research collaborators which hold
at least 1% of the outstanding Common Stock are parties to a similar lock up
agreement.
8. Miscellaneous.
(a) No Waiver; Cumulative Remedies. No failure or delay on the
part of the Investor or the Company in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(b) Amendments, Waivers and Consents. Except as otherwise
expressly provided in this Agreement, changes in or additions to this Agreement
may be made, and compliance with any covenant or provision herein or therein set
forth may be omitted or waived, so long as the parties so agree in writing. Any
waiver or consent may be given subject to satisfaction of conditions stated
therein and any waiver or consent shall be effective only to the extent
expressly set forth therein.
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(c) Addresses for Notices. All notices, requests, demands and
other communications provided for hereunder shall be in writing (including
electronic facsimile communication) and mailed or telecopied or personally
delivered to the applicable party at the addresses indicated below:
If to the Company:
Cadus Pharmaceutical Corporation
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000)000-0000
If to the Investor:
SmithKline Xxxxxxx Corporation
000 Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Dr. Xxxx Xxxxxx
Fax No.: (000) 000-0000
with a copy to:
SmithKline Xxxxxxx Corporation
One Franklin Plaza (FP2225)
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Either party may change its address by written notice to the other party
complying as to delivery with the terms of this Section. All such notices,
requests, demands and other communications shall, when telecopied or personally
delivered, respectively, be effective when received or when delivery is refused
and shall be effective on the third business day after the date mailed.
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(d) Costs, Expenses and Taxes. Each party shall bear its own
costs and expenses in connection with the preparation, execution and delivery of
this Agreement, the Shares and other instruments and documents to be delivered
hereunder. The Company shall pay any and all stamp and other similar taxes
payable or determined to be payable in connection with the execution and
delivery of this Agreement the Shares and the other instruments and documents to
be delivered hereunder or thereunder and agrees to save the Investor harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and filing fees.
(e) Agents or Brokers. Each party represents and warrants to
the other that it has incurred no liabilities for any brokerage commission,
finders' fees or the like in connection with the purchase and sale transactions
described in this Agreement. The Company hereby agrees to indemnify and hold the
Investor harmless against and in respect of any claim for brokerage commissions,
finders' fees or the like relating to this Agreement or the transactions
contemplated hereby which may arise as a result of any actions taken by or on
behalf of the Company. The Investor hereby agrees to indemnify and hold the
Company harmless against and in respect of any claim for brokerage commissions,
finders' fees or the like relating to this Agreement or the transactions
contemplated hereby which may arise as a result of any actions taken by or on
behalf of the Investor.
(f) Binding Effect; Assignment. Except as otherwise
specifically provided for herein, this Agreement shall be binding upon and inure
to the benefit of the Company, the Investor and their respective successors and
assigns. The Investor may assign its rights hereunder to SB plc or any
subsidiary of SB plc in which SB plc owns, directly or indirectly, a majority of
the outstanding voting interest; provided, however, that such assignment shall
not relieve the Investor of any of its obligations hereunder.
(g) Survival of Representations and Warranties. All
representations and warranties made in this Agreement shall survive the
execution and delivery hereof.
(h) Prior Agreements. This Agreement and the Research
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede any prior understandings or agreements
concerning the specific subject matter hereof. In the event of any conflict
between this Agreement and
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the Research Agreement with respect to the Investor's investment in Common
Stock, the terms of this Agreement shall control.
(i) Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision.
(j) Public Disclosure. Neither party shall make any public
disclosure concerning the transactions contemplated hereby without prior
consultation with the other party; provided, however, that nothing herein shall
preclude either party from making such disclosure as is required by applicable
federal or state securities laws as long as the disclosing party has exercised
good faith efforts under the circumstances to consult with the other party as
provided in this Section 8(j).
(k) Governing Law. This Agreement shall be governed by
and construed in accordance with, the laws of the State of New York without
giving effect to principles of conflict of laws.
(l) Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(m) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
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IN WITNESS WHEREOF, the Company and the Investor have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
Cadus Pharmaceutical Corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
SmithKline Xxxxxxx Corporation
By: /s/ Xxxx-Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: Chief Operating Officer
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Exhibit A
[letterhead of counsel to Company]
[date of first Closing]
SmithKline Xxxxxxx Corporation
One Franklin Plaza (FP2225)
Xxxxxxxxxxxx, XX 00000
Gentlemen:
We have acted as counsel for Cadus Pharmaceutical Corporation, a Delaware
corporation (the "Company"), in connection with (i) the preparation, execution
and delivery of a Stock Purchase Agreement (the "Agreement") dated as of
February __, 1997, by and between the Company and SmithKline Xxxxxxx Corporation
("SBC"), (ii) the issuance and sale of shares of the Company's Common Stock to
SBC pursuant to the Agreement, and (iii) the preparation, execution and delivery
of the documents and instruments related to or contemplated by the Agreement.
This opinion is being delivered to you pursuant to Section 4(b) of the
Agreement. Unless otherwise defined herein, capitalized terms used in this
opinion shall have the same meanings given to such terms in the Agreement.
In connection with this opinion, we have examined an executed copy of the
Agreement. We have also examined and relied upon the originals, or copies
certified to our satisfaction as being true copies, of the following:
(i) The Certificate of Incorporation of the Company,
as amended to date, certified by the Secretary of
State of the State of Delaware;
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(ii) The Bylaws of the Company, as amended to date,
certified to be true and correct by the Secretary
of the Company, as of the date hereof;
(iii) Certificate from the Secretary of State of the
State of Delaware, dated _________, indicating that
the Company was in existence and in good standing
as of the date thereof;
(iv) Certified copies of resolutions adopted by the
Board of Directors of the Company authorizing the
execution, delivery, and performance of the
Agreement; and
(v) Such other instruments, agreements, certificates and
documents which we have considered relevant hereto.
In making our examination of the foregoing, we have assumed
without expression of opinion: (i) that all signatures on documents are genuine;
(ii) the authority of all persons signing agreements and documents on behalf of
the parties thereto other than the Company; (iii) the authenticity of all
documents submitted to us as originals; (iv) the conformity to authentic
original documents of all documents submitted to us as photostatic, certified or
conformed copies; (v) the accuracy, completeness and authenticity of the
certificates of public officials; (vi) the truthfulness of all recitals,
representations, warranties and factual matters set forth in all documents,
instruments, certificates and reports identified in this opinion; and (vii) the
legal right and power of all parties other than the Company under all applicable
laws and regulations to enter into, execute and deliver such agreements and
documents. As to matters of fact not directly in our knowledge, we have relied
solely upon certificates of the Company and its officers, and certificates of
public officials, and we have not made an independent investigation of any such
factual matters.
Based upon the foregoing, and subject to the qualifications and
exceptions hereinafter set forth, we are of the opinion that:
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1. The Company has been duly organized, is validly existing and is in good
standing under the laws of the State of Delaware.
2. The Agreement has been duly authorized by all necessary corporate action
on the part of the Company and has been duly executed and delivered by the
Company. The Company has full corporate power and authority to issue and sell
the Shares pursuant to the Agreement and to perform and observe the terms and
provisions of the Agreement.
3. The Agreement is the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
4. The Shares to be issued and delivered as pursuant to the Agreement are
duly authorized and, if issued and upon payment to the Company of the
consideration called for in the Agreement, shall be validly issued, fully paid
and non-assessable.
The foregoing opinion is subject in all respects to the following
limitations:
1. This opinion is limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware, and applicable federal law.
2. This opinion is subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and
similar laws affecting creditors' rights and remedies generally, and to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
3. We express no opinion concerning the availability of the remedy of
specific performance with regard to any covenant, agreement or provision
contained in the Agreement.
4. This opinion is as of the date of this letter and is based on the General
Corporation Law of the State of Delaware and New York and federal laws now in
effect and on documents executed on or before the date of this letter. We do
not assume any responsibility to update this opinion due to any subsequent
events including, but not limited to: (i) subsequent changes in the
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General Corporation Law of the State of Delaware or New York or federal law;
(ii) the execution of any new or additional document; and (iii) subsequent acts
or omissions of the Company.
This letter is furnished to you for your benefit and is not to be used,
circulated, quoted in whole or in part or referred to or otherwise relied upon,
nor is it to be filed with any governmental agency or other person, without our
written consent.
Very truly yours,
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Exhibit B
SCHEDULE OF EXCEPTIONS
Exception to Section 5(e):
The holders of shares of Common Stock issued upon
conversion of the Series A Preferred Stock, Xxxxxxx-Xxxxx Squibb Company
and Physica B.V. each has certain demand and piggyback registration rights
The Company has agreed that if it grants registration rights to its
scientific founders or to any of its officers, it will grant the same
registration rights to Drs. Xxxx X. Xxxxxxx and Xxxx X. Xxxxxxx. The Company has
also agreed to include in any registration statement on Form S-8 that it files,
on a pro rata basis with securities owned by or securities subject to options
owned by employees of the Company, shares owned by Drs. Cambier and Xxxxxxx if
they are then registrable on Form S-8. The Company has registered the options
owned by Drs. Cambier and Xxxxxxx pursuant to a registration statement on Form
S-8 filed on February 14, 1997.
Exhibit C
REGISTRATION RIGHTS AGREEMENT
Filed as Exhibit 4.2 to this Current Report on Form 8-K.
