STOCK PURCHASE AGREEMENT
Exhibit 10.59
STOCK
PURCHASE AGREEMENT (this “Agreement”), dated as of January 18, 2006, by and among
Cytokinetics, Incorporated, a Delaware corporation, (the “Company”), and the investors listed on
the Schedule of Buyers attached hereto (each, a “Buyer” and collectively, the “Buyers”).
BACKGROUND:
A. The Company has registered on Form S-3 (SEC File No. 333-125786) (the “Registration
Statement”) the issuance and sale of up to $100,000,000 of certain types of securities, including
shares of its Common Stock, $0.001 par value (“Common Stock”);
B. The Company has authorized the issuance of up to 5,000,000 shares of Common Stock (the
“Shares”) pursuant to the terms of this Agreement and under the Registration Statement; and
C. The Buyers wish to purchase, upon the terms and subject to the conditions set forth in this
Agreement, the Shares in the respective amounts set forth opposite each Buyer’s name on the
Schedule of Buyers attached hereto.
1. PURCHASE AND SALE OF COMMON SHARES.
1.1 Purchase of Common Shares. Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6 below, at the closing (the “Closing”) the Company shall
issue and sell to each Buyer, and each Buyer severally agrees to purchase from the Company, the
respective number of Shares set forth opposite such Buyer’s name on the Schedule of Buyers, at a
price per Share of $6.60, and for the aggregate purchase price (the “Purchase Price”) set forth
opposite such Buyer’s name on the Schedule of Buyers.
1.2 Closing Date. Unless the Company and a Buyer agree otherwise and subject to the
conditions set forth in Sections 5 and 6, the date and time of the Closing (the “Closing Date”)
shall be at noon Pacific Time on the third business day following the date of this Agreement. The
Closing shall occur at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel to the Company, located at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx. The Closing need not
occur at the same time with respect to all Buyers, and references in this Agreement to the Closing
Date shall refer to the date of Closing for each particular Buyer, as determined pursuant to this
Section 1.2.
1.3 Form of Payment. On the Closing Date, (i) each Buyer shall pay an amount equal to
the Purchase Price to the Company for the Shares to be issued and sold to such Buyer at the
Closing, by wire transfer of immediately available funds in accordance with the Company’s written
wire instructions, and (ii) the Company shall instruct its transfer agent to issue and deliver to
each Buyer the number of the Shares that such Buyer is then purchasing (as indicated opposite such
Buyer’s name on the Schedule of Buyers). The Company shall deliver the Shares to each Buyer by
electronic transfer (e.g., DWAC), unless a Buyer requests delivery of physical certificates.
2. BUYERS’ REPRESENTATIONS AND WARRANTIES.
Each Buyer represents and warrants, severally and not jointly, that:
2.1 Information. Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company and materials relating
to the offer and sale of the Shares that have been requested by Buyer. Buyer and its advisors, if
any, have been afforded the opportunity to ask questions of the Company. Buyer understands that
its investment in the Shares involves a high degree of risk. Neither such inquiries nor any other
investigation conducted by or on behalf of Buyer or its advisors shall modify, amend or affect
Buyer’s right to rely on the truth, accuracy and completeness of the disclosure made to Buyer or
its advisors in respect of the Company or this transaction and the Company’s representations and
warranties contained in this Agreement.
2.2 No Governmental Review. Buyer understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any recommendation or
endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have
such authorities passed upon or endorsed the merits of the offering of the Shares.
2.3 Certain Trading Activities. Buyer has not executed a Short Sale (defined below)
involving the Company’s securities during the period beginning 30 days prior to the date of this
Agreement. For purposes of this Section and Section 4.3, “Short Sale” means any transaction
defined as such under Rule 200 of Regulation SHO (or any successor regulation) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, short sales, swaps and similar arrangements
(including on a total return basis), and sales and other transactions through non-U.S. broker
dealers or foreign regulated brokers, but only if executed at a time when the Buyer has no
equivalent offsetting long position in the Common Stock of the Company. For purposes of
determining whether the Buyer has an equivalent offsetting long position in the Common Stock of the
Company, any shares of Common Stock currently held by Buyer shall be deemed to be held as “long” by
Buyer.
2.4 Validity; Enforcement. Buyer has the requisite right, power, authority and
capacity to enter into this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by the Buyer and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary corporate,
partnership, limited liability company or other action, and no further consent or authorization of
the Buyer is required. This Agreement has been duly and validly executed and delivered on behalf of
Buyer and, assuming due execution and delivery hereof by the Company, is a valid and binding
agreement of Buyer enforceable against Buyer in accordance with its terms, subject as to
enforceability to general principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and remedies.
2.5 Residency. Buyer, if a natural person, is a resident of that state or country
specified in its address on the Schedule of Buyers.
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2.6 Legal, Tax or Investment Advice. Buyer understands that nothing in this Agreement
or any other materials presented to Buyer in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. Buyer has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its
purchase of Securities.
2.7 Broker – Dealer. Buyer is not a registered broker dealer.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that:
3.1 Good Standing; Qualification. The Company is duly organized and validly existing
in good standing under the laws of the State of Delaware. The Company has full power and authority
to own, operate and occupy its properties and to conduct its business as presently conducted and as
described in the documents filed by the Company under the Exchange Act, since December 31, 2004
through the date hereof, including, without limitation, its most recent Annual Report on Form 10-K
filed with the U.S. Securities and Exchange Commission (the “Exchange Act Documents”) and is
registered or qualified to do business and in good standing in each jurisdiction in which the
nature of the business conducted by it or the location of the properties owned or leased by it
requires such qualification and where the failure to be so qualified would have a material adverse
effect upon the condition (financial or otherwise), earnings, or business (such business being as
described in the Exchange Act Documents), properties or operations of the Company, or impair the
Company’s ability to perform on a timely basis its obligations under this Agreement (any of the
foregoing, a “Material Adverse Effect”), and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power
and authority or qualification.
3.2 Due Authorization and Valid Issuance. The Company has all requisite power and
authority to execute, deliver and perform its obligations hereunder, and this Agreement has been
duly authorized and validly executed and delivered by the Company and, assuming due execution and
delivery hereof by the Buyers, shall constitute a legal, valid and binding agreement of the Company
enforceable against the Company 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). The Shares being purchased by the Buyer hereunder will, upon
issuance and payment therefor pursuant to the terms hereof, be duly authorized, validly issued,
fully-paid and nonassessable.
3.3 Non-Contravention. The execution and delivery of this Agreement, the sale of the
Shares, the fulfillment of the terms of this Agreement and the consummation of the transactions
contemplated hereby will not (A) conflict with or constitute a violation of, or default (with the
passage of time or otherwise) under, (i) any contract, agreement or other instrument filed or
incorporated by reference as an exhibit to any of the Exchange Act Documents (any such contract,
agreement or instrument, an “Exchange Act Exhibit”), (ii) the charter, bylaws or other
organizational
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documents of the Company, or (iii) assuming the correctness of the representations and
warranties of the Buyers set forth herein, any law, administrative regulation, ordinance or order
of any court or governmental agency, arbitration panel or authority applicable to the Company or
their respective properties, except in the case of clauses (i) and (iii) for any such conflicts,
violations or defaults which do not have or would be reasonably likely to result in a Material
Adverse Effect or (B) result in the creation or imposition of any lien, encumbrance, claim,
security interest or restriction whatsoever upon any of the material properties or assets of the
Company or an acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any Exchange Act Exhibit. Assuming the correctness of the representations and
warranties of the Buyers set forth herein, no consent, approval, authorization or other order of,
or registration, qualification or filing with, any regulatory body, administrative agency, or other
governmental body in the United States or any other person is required for the execution and
delivery of this Agreement and the valid issuance and sale of the Shares to be sold hereunder,
other than such as have been made or obtained, and except for any post-closing securities filings
or notifications required to be made under federal or state securities laws.
3.4 Capitalization. As of January 11, 2006 (the “Reference Date”), a total of
30,544,730 shares of Common Stock are issued and outstanding, increased as set forth in the next
sentence. Other than in the ordinary course of business, the Company has not issued any capital
stock since the Reference Date other than pursuant to (i) employee benefit plans disclosed in the
Exchange Act Documents, and (ii) outstanding warrants, options or other securities disclosed in the
Exchange Act Documents and in the Company’s Registration Statement on Form S-3 filed on November
17, 2005, as amended (the “CEFF RS”). The outstanding shares of capital stock of the Company have
been duly and validly issued and are fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and were not issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. Except as set forth in the
Exchange Act Documents and the CEFF RS, there are no outstanding rights (including, without
limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any unissued shares of capital stock or other equity interest in the Company, or
any contract, commitment, agreement, understanding or arrangement of any kind to which the Company
is a party and relating to the issuance or sale of any capital stock of the Company, any such
convertible or exchangeable securities or any such rights, warrants or options. Without limiting
the foregoing, no preemptive right, co-sale right, right of first refusal, registration right, or
other similar right exists with respect to the Shares or the issuance and sale thereof. No further
approval or authorization of any shareholder, the Board of Directors of the Company or others is
required for the issuance and sale of the Shares. Except as disclosed in the Exchange Act
Documents, there are no shareholder agreements, voting agreements or other similar agreements with
respect to the voting of the Shares to which the Company is a party or, to the knowledge of the
Company, between or among any of the Company’s shareholders.
3.5 Financial Statements. The financial statements of the Company and the related
notes contained in the Exchange Act Documents present fairly, in accordance with generally accepted
accounting principles, the financial position of the Company as of the dates indicated, and the
results of its operations and cash flows for the periods therein specified consistent with the
books and records of the Company, except that the unaudited interim financial statements were or
are subject to normal and recurring year-end adjustments. Such financial statements (including the
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related notes) have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified, except as may be disclosed
in the notes to such financial statements, or in the case of unaudited statements, as may be
permitted by the Securities and Exchange Commission (the “SEC”) on Form 10-Q under the Exchange Act
and except as disclosed in the Exchange Act Documents.
3.6 Securities Exchange Compliance. The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and is listed on the Nasdaq National Market (the “NNM”), and the
Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Shares under the Exchange Act or de-listing the Shares from the NNM, nor has
the Company received any notification that the SEC or the National Association of Securities
Dealers, Inc. (the “NASD”) is contemplating terminating such registration or listing, provided
that, notwithstanding the foregoing, the Company has filed a Notification Form: Listing of
Additional Shares with the NASD on or prior to the date hereof without compliance with the 15
calendar day pre-issuance filing requirement (the “Additional Listing Notice”).
3.7 Reporting Status. The Company has filed in a timely manner all documents that the
Company was required to file under the Exchange Act during the 12 months preceding the date of this
Agreement. All such filings complied in all material respects with the SEC’s requirements as of
their respective filing dates. No event or circumstance has occurred or exists with respect to the
Company properties, prospects, operations or financial condition, which under applicable law, rule
or regulation, requires public disclosure or announcement by the Company but which has not been so
publicly announced or disclosed, except for events or circumstances which, individually or in the
aggregate, do not or would not have a Material Adverse Effect.
3.8 Listing. Except as set forth in Section 3.6 above with respect to the Additional
Listing Notice, the Company is in compliance with the listing and maintenance requirements for
continued listing of the Common Stock on the NNM. Except as set forth in Section 3.6 above with
respect to the Additional Listing Notice, the issuance and sale of the Shares hereunder does not
contravene the rules and regulations of the NASD and no approval of the shareholders of the Company
is required for the Company to issue and deliver to the Buyers the maximum number of Shares
contemplated by this Agreement.
3.9 No Manipulation of Stock. The Company has not taken, in violation of applicable
law, any action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Shares to facilitate the sale or resale of the
Shares.
3.10 Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other
than income taxes) which are required to be paid in connection with the sale and transfer of the
Shares to be sold to the Buyers hereunder will be, or will have been, fully paid or provided for by
the Company and all laws imposing such taxes will be or will have been fully complied with.
3.11 No Additional Agreements. The Company does not have any agreement or
understanding with any Buyer with respect to the transactions contemplated by this Agreement other
than as specified in this Agreement.
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3.12 Finder’s and Advisor’s Fees. The Company will not be required to pay any
finder’s or advisor’s fees or commissions in connection with the offering and sale of the Shares,
except an advisor’s fee of $0.20 per Share, up to a maximum aggregate of $1,000,000, payable by the
Company to Pacific Growth Equities, LLC.
3.13 Investment Company. The Company is not, and is not an Affiliate of, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
4. COVENANTS.
4.1 Commercially Reasonable Efforts. Each party shall use commercially reasonable
efforts to timely satisfy each of the conditions to be satisfied by it as provided in Sections 5
and 6 of this Agreement.
4.2 Listing. Other than the 15 calendar day pre-issuance filing requirement for the
Additional Listing Notice, the Company shall, on or before the Closing Date, take such actions
(including the filing of the Additional Listing Notice) to secure the listing of the Shares on the
NNM and shall use all commercially reasonable efforts to maintain the listing of the Company’s
Common Stock on the NNM or other national securities exchange or quotation service.
4.3 Restriction on Sales, Short Sales and Hedging Transactions. The Buyers will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares, or conduct any
Short Sale or enter into any hedging transaction with respect to the Shares, except in compliance
with the Securities Act of 1933, as amended,, the Exchange Act, applicable state securities laws
and the respective rules and regulations promulgated thereunder.
5. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Shares to each Buyer at the
Closing is subject to the satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for the Company’s sole benefit and may be waived by
the Company at any time in its sole discretion by providing each Buyer with prior written notice
thereof:
5.1 Each Buyer shall have delivered to the Company the Purchase Price for the Shares being
purchased by each Buyer at the Closing by wire transfer of immediately available funds pursuant to
the wire instructions provided by the Company.
5.2 The representations and warranties of each Buyer shall be true and correct in all material
respects (except to the extent that any of such representations and warranties is already qualified
as to materiality in Section 2 above, in which case, such representations and warranties shall be
true and correct without further qualification) as of the date when made and as of the Closing
Date, as though made at that time (except for representations and warranties that speak as of a
specific date), and each Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by such Buyer at or prior to the Closing Date.
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6. CONDITIONS TO EACH BUYER’S OBLIGATION TO PURCHASE.
The obligation of each Buyer hereunder to purchase the Shares at the Closing is subject to the
satisfaction, at or before the Closing Date of each of the following conditions, provided that
these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in
its sole discretion by providing the Company with prior written notice thereof:
6.1 The Company shall have executed this Agreement and delivered same to such Buyer.
6.2 The NASD shall not have suspended trading in the Company’s Common Stock on the NNM.
6.3 The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 3 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date when made and as of the
Closing Date as though made at that time (except for representations and warranties that speak as
of a specific date) and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to the Closing Date.
6.4 The Company shall have made all filings under all applicable federal and state securities
laws necessary, if any, to consummate the issuance of the Shares pursuant to this Agreement in
compliance with such laws and no stop-order shall have been issued by the SEC with respect to the
Registration Statement.
6.5 The Buyer shall have received a customary opinion from the Company’s legal counsel to the
effect that the Company is duly incorporated and in good standing, that the Shares have been duly
authorized and validly issued, that the Shares will be, when issued and paid for in accordance with
the terms of this Agreement, fully paid and non-assessable, that this Agreement is a valid and
binding obligation of the Company, that the Shares will not be issued in violation of any
preemptive rights under Delaware law, the Company’s Certificate of Incorporation or bylaws (the
“Charter Documents”), that the Shares will not be subject to any restriction upon the voting or
transfer under the Charter Documents, that the execution and delivery of this Agreement and the
issuance of the Shares does not violate, or constitute a default under, any agreement or instrument
filed as an exhibit to the Registration Statement pursuant to Item 601(b)(10) or Regulation S-K
under the Securities Act of 1933, as amended, to which the Company is a party or by which the
Company is bound and that the Registration Statement has been declared effective, that no stop
order has been declared and, to such counsels’ knowledge, no such proceeding is pending or
threatened by the SEC.
7. GOVERNING LAW; MISCELLANEOUS.
7.1 Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by and
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construed and enforced in accordance with the internal laws of the State of California,
without regard to the principles of conflicts of law thereof. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any suit, action or
proceeding arising under or relating to this Agreement (a “Proceeding”) by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of delivery) to such party at
the address in effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law.
Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any Proceeding. If either party shall commence a Proceeding to
enforce any provisions of this Agreement, then the prevailing party in such Proceeding shall be
reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such Proceeding. Each party agrees
that all Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or its respective
affiliates, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of San Francisco, County of San Francisco, (the “Courts”). Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any Proceeding, any
claim that it is not personally subject to the jurisdiction of any such Court, or that such
Proceeding has been commenced in an improper or inconvenient forum.
7.2 Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other parties;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile signature.
7.3 Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
7.4 Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction.
7.5 Entire Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Buyers, the Company, their affiliates and persons acting on their
behalf with respect to the matters discussed herein, and this Agreement and the agreements and
instruments referenced herein, contain the entire understanding of the parties with respect to the
matters covered herein. No provision of this Agreement may be amended other than by an instrument
in writing signed by the Company and the Buyers holding or, prior to Closing, having the right to
purchase, at least a majority of the Shares, and no provision hereof may be waived other than by an
instrument in writing signed by the party against whom enforcement is sought.
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7.6 Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party); or (iii) one business day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company:
Cytokinetics, Incorporated
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X’Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X’Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a Buyer:
at the address and facsimile number set forth on the Schedule of Buyers
attached hereto, with copies to such Buyer’s representatives, if any,
specified on the Schedule of Buyers,
attached hereto, with copies to such Buyer’s representatives, if any,
specified on the Schedule of Buyers,
or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party in accordance with
the above provisions five (5) days prior to the effectiveness of such change.
7.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including any purchasers of the
Shares. A Buyer may not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Company, except for assignments to affiliates of Buyer or to other
Buyers.
7.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
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7.9 Publicity. The Company and each Buyer shall have the right to approve before
issuance any press releases or any other public statements with respect to the transactions
contemplated hereby; provided, however, that the Company shall be entitled, without the prior
approval of any Buyer, to make any press release or other public disclosure with respect to such
transactions as is required by applicable law and regulations. Notwithstanding the foregoing, the
Company shall, without having to obtain the consent of the Buyers, (i) file a prospectus supplement
under the Registration Statement with the SEC, disclosing the transactions contemplated hereby,
(ii) on or before the Closing, the Company shall file a Current Report on Form 8-K with the SEC
describing the terms of the transactions contemplated by this Agreement and including this
Agreement as an exhibit to such Current Report on Form 8-K, in the form required by the Exchange
Act, and (iii) issue a press release in the form provided to counsel for the Buyers.
7.10 Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
7.11 Termination. In the event that the Closing shall not have occurred with respect
to a Buyer within ten business days from the date of this Agreement due to the Company’s or such
Buyer’s failure to satisfy the conditions set forth in Sections 5 and 6 above (and the
non-breaching party’s failure to waive such unsatisfied condition(s)), the non-breaching party
shall have the option to terminate this Agreement with respect to such breaching party at the close
of business on such date without liability of any party to any other party.
7.12 Remedies. Each Buyer and each holder of the Shares shall have all rights and
remedies set forth in this Agreement and all of the rights that such holders have under any law.
Any person having any rights under any provision of this Agreement shall be entitled to enforce
such rights specifically (without posting a bond or other security), to recover damages by reason
of any breach of any provision of this Agreement and to exercise all other rights granted by law.
7.13 Obligations of Buyers Several and Not Joint. The obligations of each Buyer
hereunder are several and not joint with the obligations of any other Buyer, and no Buyer shall be
responsible in any way for the performance of the obligations of any other Buyer under any
Agreement. Nothing contained herein, and no action taken by any Buyer hereto, shall be deemed to
constitute the Buyers as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Buyers are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated hereby, provided that such obligations
or the transactions contemplated hereby may be modified, amended or waived in accordance with
Section 7.5 of this Agreement. Each Buyer shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out of this Agreement (provided, that
such rights may be modified, amended or waived in accordance with Section 7.5), and it shall not be
necessary for any other Buyer to be joined as an additional party in any proceeding for such
purpose.
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IN WITNESS WHEREOF, the Buyers and the Company have caused this Stock Purchase Agreement to be
duly executed on the date first written above.
| COMPANY: | ||||
| CYTOKINETICS, INCORPORATED | ||||
By: |
/s/ Xxxxxx Surrey-Xxxxxxx | |||
| Xxxxxx Surrey-Barbari | ||||
| Chief Financial Officer | ||||
| BUYER: | ||||
| Federated Xxxxxxxx Fund, a portfolio of Federated Equity Funds | ||||
By: |
/s/ Xxxx X. Xxxxx | |||
| Name: Xxxx X. Xxxxx | ||||
Title:
|
Vice President, Federated Global Investment Management Corp., as attorney-in-fact for Federated Xxxxxxxx Fund, a portfolio of Federated Equity Funds. | |||
| BUYER: | ||||
| Red Abbey Venture Partners (QP), LP By: Red Abbey Ventures Partners, LLC, its General Partner |
||||
/s/ Xxxx Xxxx |
||||
| By: Xxxx Xxxx, its Managing Member | ||||
| BUYER: | ||||
| Red Abbey Venture Partners, LP By: Red Abbey Ventures Partners, LLC, its General Partner |
||||
/s/
Xxxx Xxxx |
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| By: Xxxx Xxxx, its Managing Member | ||||
-11-
| BUYER: | ||||
| Red Abbey CEO’s Fund, LP By: Red Abbey Ventures Partners, LLC, its General Partner |
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/s/
Xxxx Xxxx |
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| By: Xxxx Xxxx, its Managing Member | ||||
-12-
SCHEDULE OF BUYERS
| Investor | No. of Shares | Purchase Price | ||||||
Federated Xxxxxxxx Fund 140 East 00 xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxx Xxxxx Fax: (000) 000-0000 |
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With a copy to: |
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Xxxx Xxxxx LLP 000 Xxxxxxxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxx XxXxxxx Fax: (000) 000-0000 |
4,810,000 | $ | 31,746,000.00 | |||||
Red Abbey Venture Partners (QP), LP 0000 Xxxx Xxxxx Xxxx Xxxxx 000 Xxxxxxxxx, XX 00000 Attn: Xxxx Xxxx Fax: (000) 000-0000 |
142,595 | $ | 941,127.00 | |||||
Red Abbey Venture Partners, LP 0000 Xxxx Xxxxx Xxxx Xxxxx 000 Xxxxxxxxx, XX 00000 Attn: Xxxx Xxxx Fax: (000) 000-0000 |
39,672 | $ | 261,835.20 | |||||
Red Abbey CEO’s Fund, LP 0000 Xxxx Xxxxx Xxxx Xxxxx 000 Xxxxxxxxx, XX 00000 Attn: Xxxx Xxxx Fax: (000) 000-0000 |
7,733 | $ | 51,037.80 | |||||
Total: |
5,000,000 | $ | 33,000,000 | |||||
-13-
