COMMON STOCK PURCHASE AGREEMENT MILESTONE PURCHASE
Exhibit
1
MILESTONE
PURCHASE
THIS
COMMON STOCK PURCHASE AGREEMENT (“Agreement”) is dated as of March 3, 2000
between SciClone Pharmaceuticals, Inc., a California corporation (the “Company”)
and Sigma-Tau Finance S.A., a Luxembourg corporation having offices at 00,
xx xx
Xxxxxx Xxxxx X-0000, Xxxxxxxxxx (xxx “Investor”).
W
I T N E
S S E T H:
WHEREAS,
the Company desires to sell and issue to the Investor, and the Investor wishes
to purchase from the Company, shares of the Company’s Common Stock, no par value
(the “Shares), with the number of Shares determined as provided in Section 1.2
on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises and the covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
PURCHASE
AND SALE OF COMMON STOCK
Section
1.1 Purchase
and Sale of Common Stock. Upon the following terms and
conditions, the Company shall issue and sell the Shares to the Investor, and
the
Investor shall purchase the Shares from Company.
Section
1.2 Purchase
Price. The purchase price for the Shares shall be five million
dollars ($5,000,000) (the “Aggregate Purchase Price”). The number of
Shares shall be equal to the Aggregate Purchase Price divided by the Per Share
Price. For purposes of this Agreement, the “Per Share Price” shall be
equal to a twenty percent (20%) premium over the average of the closing sale
prices of the Company’s Common Stock as quoted on the Nasdaq Stock Market for
the thirty (30) trading days prior to the Approval Date (as defined
below).
Section
1.3 The Closing. The
closing of the purchase and sale of the Shares shall take place on the date
the
Company or any of its affiliates, or Sigma-Tau Industrie Farmaceutiche Riunite
S.p.A. or any of its affiliates or sublicensees, receives marketing approval
from either (i) the European Agency for the Evaluation of Medicinal Products
(EMEA) or (ii) rapportear country in the Territory (as defined in Exhibit
A hereto) for the marketing and sale of the Company’s pharmaceutical
product, ZADAXIN® thymosin
alpha 1,
for the treatment of hepatitis C (the “Approval Date”). Ten (10) days
after closing (upon determination of the number of Shares), the Company shall
(i) deliver to Investor certificates, with the number of and denomination of
such certificates as reasonably requested by Investor, representing the Shares
purchased hereunder by Investor registered in the name of Investor or its
nominee or (ii) shall deposit such Shares into accounts designated by Investor;
at the closing, Investor shall deliver to the Company the Purchase Price for
the
Shares purchased by Investor hereunder by wire transfer in immediately available
funds to an account designated in writing by the Company.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.1 Representations
and Warranties of the Company. The Company hereby makes the
following representations and warranties to Investor as of the date
hereof:
(a) Organization
and Qualification; Material Adverse Effect. The Company is a
corporation duly incorporated and existing in good standing under the laws
of
the State of California.
(b) Authorization;
Enforcement. (i) The Company has the requisite corporate power
and authority to enter into and perform this Agreement and to issue the Shares
in accordance with the terms hereof, (ii) the execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby, including the issuance of the Shares, have
been
duly authorized by all necessary corporate action, and no further consent or
authorization of the Company or its board of directors (the “Board”) or
shareholders is required, and (iii) this Agreement constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws
relating to, or affecting generally the enforcement of creditors’ rights and
remedies or by other equitable principles of general application.
(c) Issuance
of the Shares. The Shares are duly authorized and reserved for
issuance and will, when issued, be validly issued, fully paid and
non-assessable, free and clear of any and all liens, claims and encumbrances,
other than securities law restrictive legends until the Shares can be sold
without being registered with the United States Securities and Exchange
Commission (the “SEC”).
(d) No
Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions contemplated
hereby and thereby do not and will not (i) result in a violation of the
Company’s organizational documents, or (ii) conflict with any agreement,
indenture or instrument to which the Company is a party, or (iii) result in
a
violation of any law, rule, regulation, or any order, judgment or decree of
any
court or governmental agency applicable to the Company. The Company
is not required to obtain any consent or authorization of any U.S. governmental
agency in order for it to perform its obligations under this
Agreement.
Section
2.2 Representations
and Warranties of the Investor. Investor hereby makes the
following representations and warranties to the Company as of the date hereof
and on and as of the Approval Date:
(a) Authorization;
Enforcement. (i) Investor has the requisite power and authority
to enter into and perform this Agreement and to purchase the Shares being sold
hereunder, (ii) the execution and delivery of this Agreement by Investor and
the
consummation by it of the transactions contemplated hereby and thereby have
been
duly authorized by all necessary action, and (iii) this Agreement constitutes
a
valid and binding obligation of Investor, enforceable against Investor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or
similar laws relating to, or affecting generally the enforcement of creditors’
rights and remedies or by other equitable principles of general
application.
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(b) No
Conflicts. The execution, delivery and performance of this
Agreement and the consummation by Investor of the transactions contemplated
hereby and thereby do not and will not (i) result in a violation of Investor’s
organizational documents, or (ii) conflict with any agreement, indenture or
instrument to which Investor is a party, or (iii) result in a violation of
any
law, rule, regulation, or any order, judgment or decree of any court or
governmental agency applicable to Investor. Investor is not required
to obtain any consent or authorization of any governmental agency in order
for
it to perform its obligations under this Agreement.
(c) Investment
Representation. Investor is purchasing the Shares for its own
account and not with a view to distribution in violation of any applicable
securities laws. Investor has no present intention to sell the Shares
and Investor has no present arrangement (whether or not legally binding) to
sell
the Shares to or through any person or entity.
ARTICLE
III
SHARE
RESALE RESTRICTIONS
Section
3.1 Share
Resale Restrictions.
(a) Restricted
Securities. Investor will not make any sale, transfer or other
disposition of the Shares during the year following the date of this Agreement,
and thereafter only if (i) such sale, transfer or other disposition is within
the limitations of and in compliance with Rule 144 promulgated by the SEC under
the Securities Act, (ii) some other exemption from registration under the
Securities Act is available with respect to any such proposed sale, transfer
or
other disposition of the Shares, or (iii) such distribution of Shares has been
registered under the Securities Act.
(b) Legend. Each
certificate representing the Shares shall be stamped or otherwise imprinted
with
a legend substantially in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE
SECURITIES ACT OF 1933, AS AMENDED AND THE OTHER CONDITIONS SPECIFIED IN THE
COMMON STOCK PURCHASE AGREEMENT DATED AS OF MARCH 3, 2000 BETWEEN THE HOLDER
OF
THIS CERTIFICATE AND SCICLONE PHARMACEUTICALS, INC.
The
Company agrees to reissue certificates representing the Shares without the
legend set forth above at such time as (i) the Shares have been held for a
period of two (2) years and (ii) the holder thereof is permitted to dispose
of
such Shares pursuant to Rule 144(k) under the Securities Act, or such Shares
are
sold to a purchaser or purchasers who (in the opinion of counsel to the seller
or such purchaser(s), in form and substance reasonably satisfactory to the
Company and its counsel) are able to dispose of such shares publicly without
registration under the Securities Act.
(c) Current
Public Information. With a view to making available the benefits
of certain rules and regulations of the SEC which may at any time permit the
sale of the Shares to the public without registration, Company agrees to use
its
reasonable best efforts:
(i) Make
and
keep current public information available, as those terms are undertook and
defined in Rule 144 under the Securities Act, for at least the next two (2)
years after the date of this Agreement;
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(ii) File
with
the SEC in a timely manner all reports and other documents required of Company
under the Securities Act and the Securities Exchange Act of 1934, as amended
(the “Exchange Act”); and
(iii) Furnish
to Investor forthwith upon request a written statement by Company as to its
compliance with the conditions set forth in Rule 144(c), and the reporting
requirements of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of Company, and such other reports and
documents of Company and other information in the possession of or reasonably
obtainable by Company as Investor may reasonably request in availing itself
of
any rule or regulation of the SEC allowing Investor to sell any of the Shares
without registration.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 Specific
Enforcement; Consent to Jurisdiction.
(a) The
Company and Investor acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed
in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement
and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or
equity.
(b) The
Company and Investor (i) hereby irrevocably submit to the exclusive jurisdiction
of the United States District Court, the California State courts and other
courts of the United States sitting in San Mateo County, California for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement and (ii) hereby waive, and agree not to assert in any such suit action
or proceeding, any claim that it is not personally subject to the jurisdiction
of such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is
improper. The Company and Investor consent to process being served in
any such suit, action or proceeding by mailing a copy thereof 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 in this paragraph shall affect or limit any right to
serve process in any other manner permitted by law.
Section
4.2 Entire
Agreement; Amendment. This Agreement, contains the entire
understanding of the parties with respect to the matters covered hereby and,
except as specifically set forth herein, neither the Company nor Investor make
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended
other than by a written instrument signed by the party against whom enforcement
of any such amendment or waiver is sought.
Section
4.3 Notices. Any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be effective upon actual receipt of such
notice. The addresses for such communications shall be:
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to
the Company:
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SciClone
Pharmaceuticals, Inc.
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000
Xxxxxxxx Xxxxxx Xxxxxxxxx
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Xxx
Xxxxx, Xxxxxxxxxx 00000
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Fax: (000)
000-0000
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Attn: Xxxxx
X. Xxxxx
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to
Investor, then to the address set forth under Investor’s name on the signature
page of this Agreement.
Any
party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other parties
hereto.
Section
4.4 Indemnity. Each
party shall indemnify each other party against any loss, cost or damages
(including reasonable attorney’s fees but excluding consequential damages)
incurred as a result of such parties’ breach of any representation, warranty,
covenant or agreement in this Agreement.
Section
4.5 Waivers. No
waiver by any party of any default with respect any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in
the
future or a waiver of any other provision, condition or requirement hereof,
nor
shall any delay or omission of any party to exercise any right hereunder in
any
manner impair the exercise of any such right accruing to it
thereafter.
Section
4.6 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
Section
4.7 Successors
and Assigns. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The parties hereto may amend this Agreement
without notice to or the consent of any third party. The Company and
Investor may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other party (which consent shall not
be
unreasonably withheld), except that the Company may assign this Agreement in
connection with a merger, acquisition or the sale of all or substantially all
of
its assets provided that the Company is not released from any of its obligations
hereunder, such assignee assumes all obligations of the Company hereunder,
and
appropriate adjustment of the provisions contained in this Agreement is made,
in
form and substance satisfactory to Investor, to place Investor in the same
position as it would have been but for such assignment; and except further
that
upon 30 days prior written notice to the Company, the Investor may assign at
any
time this Agreement or any rights or obligations hereunder to any of Investor’s
Affiliate’s without the prior written consent of the
Company. Affiliate means any person, firm or corporation which,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, a party. “Control”
means the legal or beneficial ownership of 50% or more of the voting or equity
interests or the power or right to direct the management and affairs of the
business (including acting as the general partner of a limited
partnership).
Section
4.8 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.
Section
4.9 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of California without
regard to such state’s principles of conflict of laws.
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Section
4.10 Survival. The
representations and warranties and the agreements and covenants of the Company
and the Investor contained herein shall survive the Closing.
Section
4.11 Execution. This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement, it being understood that all parties
need
not sign the same counterpart.
Section
4.12 Attorney’s
Fees. Investor shall be entitled to recover from the Company the
reasonable attorney’s fees and expenses incurred by Investor in connection with
enforcement by Investor of any obligation of the Company under this
Agreement.
Section
4.13 Counterparts. This
Agreement may be signed in multiple counterparts. Signatures may be
transmitted by facsimile telecopier.
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IN
WITNESS WHEREOF, the parties hereto have caused this Common Stock Purchase
Agreement to be duly executed as of the date first above written.
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COMPANY:
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SCICLONE
PHARMACEUTICALS, INC.
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By:
______________________________________
Printed Name: Xxxxx X. Xxxxx
Title: Chief Business Officer
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INVESTOR:
SIGMA-TAU
FINANCE S.A.
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By:
______________________________________
Printed
Name: ______________________________
Title:
_____________________________________
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EXHIBIT
A
TERRITORY
Austria,
Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy,
Luxembourg, The Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and
the United Kingdom.
Exhibit
A
