NPS PHARMACEUTICALS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
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This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
June 4, 2003, by and between NPS Pharmaceuticals, Inc., a Delaware corporation
(the "Company"), and Enzon Pharmaceuticals, Inc., a Delaware corporation (the
"Purchaser").
RECITALS
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A. The Company and the Purchaser are parties to that certain Mutual
Termination and Release Agreement, dated of even date herewith (the "Termination
Agreement").
B. The obligations of the Company and the Purchaser under the Termination
Agreement are conditioned in part upon the execution and delivery of this
Agreement.
C. Pursuant to the Termination Agreement, the Company agreed to issue
shares of its common stock pursuant to the terms provided in this Agreement.
D. Pursuant to the Termination Agreement, the Company has also agreed to
provide certain registration rights relating to such shares as contained in that
certain Registration Rights Agreement, to be executed and delivered herewith, by
and between the Company and the Purchaser (the "Registration Rights Agreement").
AGREEMENT
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NOW THEREFORE, in consideration of the Company and the Purchaser entering
into the Termination Agreement and the Registration Rights Agreement, the mutual
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Purchaser, intending to be legally bound,
agree as follows:
1. Common Stock Purchase.
1.1 Purchase. Subject to the terms and conditions of this Agreement,
the Company will sell to the Purchaser, and the Purchaser will purchase from the
Company One Million Five Hundred Thousand (1,500,000) shares (the "Shares") of
the Company's Common Stock, par value $0.001 per share ("Common Stock"), in
consideration of the Purchaser executing and delivering the Termination
Agreement and performing its obligations thereunder.
1.2 Closing Date. The purchase and sale of the Shares shall be
consummated at a closing (the "Closing") held at the offices of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional
Corporation, 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx,
00000 on June 4, 2003, at 3:30 p.m., local time, or at such other date, time and
place upon which the Company and the Purchaser shall agree (the "Closing Date").
1.3 Delivery. On the Closing Date, the Company shall deliver to the
Purchaser a certificate (or other electronic evidence) representing the Shares
(issued in the Purchaser's name) after receipt of the Termination Agreement
executed by the Purchaser.
2. Representations and Warranties of the Company. In connection with the
sale of the Shares, the Company represents and warrants to the Purchaser that as
of the date hereof:
2.1 Organization and Standing. The Company is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing, under such laws. The Company has requisite
corporate power and authority to own and operate its properties and assets and
to carry on its business as presently conducted. The Company is presently
qualified to do business as a foreign corporation, and is in good standing in
those jurisdictions in which the nature of its business and properties makes
such qualification necessary and in which the failure to be so qualified would
have a material adverse effect on the business or financial condition of the
Company.
2.2 Corporate Power. The Company has all requisite legal and corporate
power and authority to execute, deliver and perform its obligations under this
Agreement and the Registration Rights Agreement and to sell and issue the Shares
hereunder.
2.3 Authorization. All corporate action on the part of the Company,
its directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Registration Rights Agreement
by the Company and the authorization, sale, issuance and delivery of the Shares
has been taken or will be taken prior to the Closing Date. This Agreement and
the Registration Rights Agreement constitutes valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable, and the
Shares will be free of any liens or encumbrances other than any liens or
encumbrances created by or imposed upon the holders; provided, however, that the
Shares may be subject to restrictions on transfer under state or federal
securities laws and restrictions set forth in the Registration Rights Agreement.
2.4 Capitalization.
(a) Immediately prior to the Closing, the authorized capital
stock of the Company consists of (i) 45,000,000 shares of Common Stock and (ii)
5,000,000 shares of preferred stock, par value $0.001 ("Preferred Stock") none
of which are issued and outstanding. As of June 3, 2003, 35,196,259 shares of
Common Stock were issued and outstanding (which included 310,785
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shares of NPS Allelix Inc., a wholly owned Canadian subsidiary of the Company,
which are exchangeable into shares of Common Stock). All of the outstanding
shares of capital stock of NPS are duly authorized and validly issued, fully
paid and nonassessable and not subject to any preemptive rights.
2.5 Approvals. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or stock
exchange or market or third party is required to be obtained by the Company for
the issuance and sale of the Shares to the Purchaser as contemplated by this
Agreement, except for notices and filings with the Nasdaq National Market and
such other authorizations, approvals and consents that have been obtained.
2.6 Offering. Subject to the accuracy of the Purchaser's
representations in Section 3, the offer, sale and issuance of the Shares
constitutes a transaction exempt from the registration requirements of Section 5
of the Securities Act of 1933, as amended (the "Securities Act").
2.7 NASDAQ Listing Requirements. NPS is in compliance with its listing
agreement with The NASDAQ National Market, fully satisfies all continued listing
requirements of The NASDAQ National Market and is not aware of any facts or
circumstances that could reasonably be expected to result in a violation of its
listing agreement or such continued listing requirements and has received no
notice from The NASDAQ National Market of any such violation.
2.8 Non-Contravention. The execution and delivery of this Agreement by
NPS does not, and performance of this Agreement by NPS will not: (i) conflict
with or violate NPS' certificate of incorporation or bylaws or the certificate
of incorporation or bylaws of any subsidiary of NPS or (ii) conflict with or
violate any material order or decree of any court or governmental authority.
2.9 Form S-3 Eligibility. NPS is currently eligible to use Form S-3 to
register the resale of the Shares. The Form S-3 Registration Statement and the
Prospectus (as such terms are defined in the Registration Rights Agreement) will
comply with the requirements of applicable law and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they are made.
2.10 Brokers' and Finders' Fees. With respect to or in connection with
the transactions contemplated in this Agreement, the Purchaser will have no
liability to any broker, finder or other third party acting on the behalf of
NPS.
3. Representations and Warranties of the Purchaser. In connection with the
acquisition of the Shares, the Purchaser represents and warrants to the Company
as of the date hereof:
3.1 Accredited Investor. It is an "accredited investor," as such term
is defined in Section (2)(a)(15) of the Securities Act.
3.2 Preexisting Relationship with Company; Business and Financial
Experience. By reason of its business or financial experience or the business or
financial experience of its
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professional advisors who are unaffiliated with the Company and who are not
compensated by the Company, it has the capacity to protect its own interests in
connection with the purchase of the Shares.
3.3 Investment Intent; Blue Sky. It is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with a view
to, or for resale in connection with, any distribution thereof. It understands
that the issuance of the Shares has not been, and will not be, registered under
the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the Purchaser's investment intent and the
accuracy of the Purchaser's representations as expressed herein. The Purchaser's
address set forth on the signature page attached hereto represents the
Purchaser's true and correct state of domicile, upon which the Company may rely
for the purpose of complying with applicable "blue sky" laws.
3.4 Rule 144. It acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. It is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited resale of
shares purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
the shares, the availability of certain current public information about the
Company, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being effected through a
"broker's transaction" or in a transaction directly with a "market maker," and
the number of shares being sold during any three-month period not exceeding
specified limitations.
3.5 Restrictions on Transfer; Restrictive Legends. It understands that
the transfer of the Shares is restricted by applicable state and federal
securities laws and by the provisions of the Registration Rights Agreement, and
that all certificates representing the Shares will be imprinted with legends
restricting transfer except in compliance therewith.
3.6 Authorization. All action on the part of the Purchaser's board of
directors and stockholders, as applicable, necessary for the authorization,
execution, delivery and performance of this Agreement and the Registration
Rights Agreement by the Purchaser, the purchase of and payment for the Shares
and the performance of all of the Purchaser's obligations under this Agreement
and the Registration Rights Agreement has been taken or will be taken prior to
the Closing Date. This Agreement and the Registration Rights Agreement, when
executed and delivered by the Purchaser, shall constitute valid and binding
obligations of the Purchaser, enforceable in accordance with their terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
3.7 Risks. Purchaser understands that the purchase of the Shares
involves risk. Purchaser acknowledges that that it is able to fend for itself in
the transactions contemplated by this Agreement and has the ability to bear the
economic risks of its investment pursuant to this Agreement and has such
knowledge and experience in financial or business matters that it is capable
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of evaluating the merits and risks of this investment in the Shares and
protecting its own interests in connection with this investment. Purchaser
acknowledges that in making its investment decision Purchaser has relied solely
on its review of the information contained in publicly available information,
including but not limited to the Company's filings with the Securities and
Exchange Commission and has not relied on any prior discussions or
correspondence between the Parties resulting from their pre-existing business
relationship. Purchaser further acknowledges that in making its investment
decision Purchaser is not using or relying upon any non-public or confidential
information of the Company.
4. Conditions to Closing.
4.1 Purchaser's Conditions to Closing. The Purchaser's obligation to
purchase the Shares is, unless waived in writing by the Purchaser, subject to
the fulfillment of the following conditions:
(a) Representations Correct. The representations and warranties
made by the Company in Section 2 hereof shall be true and correct in all
material respects.
(b) Blue Sky. The Company shall have obtained all necessary "blue
sky" law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Shares.
(c) Consents. No consent, approval order or authorization of or
registration, qualification, designation, declaration or filing with any
governmental authority shall be required in connection with the sale or issuance
of the Shares.
(d) Registration Rights Agreement. The Company shall have
executed and delivered to the Purchaser the Registration Rights Agreement
substantially in the form attached hereto as Exhibit A.
(e) Mutual Termination and Release Agreement. The Company shall
have executed and delivered to the Purchaser the Termination Agreement.
4.2 Company's Conditions to Closing. The Company's obligation to sell
and issue the Shares is, unless waived in writing by the Company, subject to the
fulfillment of the following conditions:
(a) Representations Correct. The representations and warranties
made by the Purchaser in Section 3 hereof shall be true and correct in all
material respects.
(b) Blue Sky. The Company shall have obtained all necessary "blue
sky" law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Shares.
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(c) Consents. No consent, approval order or authorization of or
registration, qualification, designation, declaration or filing with any
governmental authority shall be required in connection with the sale or issuance
of the Shares to the Purchaser.
(d) Registration Rights Agreement. The Purchaser shall have
executed and delivered to the Company the Registration Rights Agreement.
(e) Mutual Termination and Release Agreement. The Purchaser shall
have executed and delivered to the Company the Termination Agreement.
5. Miscellaneous.
5.1 Amendment. Except as otherwise provided above, any provision of
this Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Purchaser.
5.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware, without regard to conflict of laws
provisions. Each of the parties hereto irrevocably agrees that any legal action
or proceeding with respect to this Agreement or for recognition and enforcement
of any judgment in respect hereof brought by any other party hereto or its
successors or assigns may be brought and determined in the Chancery or other
Courts of the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the non-exclusive
jurisdiction of the aforesaid courts.
5.3 Entire Agreement. This Agreement, the Registration Rights
Agreement, the letter agreement dated December 18, 2002 between the Company and
the Purchaser (the "Confidentiality Agreement") and the Termination Agreement
and the Annexes, Exhibits and Schedules attached hereto and thereto and
delivered in connection herewith and therewith, as the case may be, constitute
the full and entire understanding and agreement among the parties regarding the
matters set forth herein. The provisions hereof shall inure to the benefit of,
and be binding upon the successors, permitted assigns, heirs, executors and
administrators of the parties hereto.
5.4 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, by hand, by messenger or by overnight courier,
addressed:
(a) if to the Purchaser, to:
Enzon Pharmaceuticals, Inc.
000 Xxxxx 000/000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
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or at such other address as the Purchaser shall have
furnished to the Company, with a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
(b) if to the Company, to:
NPS Pharmaceuticals, Inc.
000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
Attention: General Counsel
or at such other address as the Company shall have
furnished to the Purchaser, with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxxx, Esq.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when actually delivered
as provided above, if delivered personally or by messenger, or, on the day shown
on the return receipt, if sent by mail or other delivery service.
5.5 Successors and Assigns. Each party's rights and benefits of this
Agreement shall inure to the benefit of, and be enforceable by, such party's
permitted successors and assigns. The rights and obligations of the Purchaser
under this Agreement may only be assigned with the prior written consent of the
Company. The rights and obligations of the Company under this Agreement may only
be assigned with the prior written consent of the Purchaser.
5.6 Further Actions. Both parties agree to execute any additional
documents and take such further action as may be reasonably necessary to carry
out the purposes of this Agreement.
5.7 Injunctive Relief. Each party hereto agrees that the other party
shall be entitled to a decree of specific performance of the terms hereof or an
injunction restraining violations of this Agreement, such right to be in
addition to any of the remedies of the Company. No remedy provided herein is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity.
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5.8 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The Parties further agree to replace
such void and unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of such void or unenforceable provision.
5.9 Expenses. Each party hereto shall pay its own expenses incurred
(including, without limitation, the fees of counsel) on its behalf in connection
with this Agreement or any transactions contemplated by this Agreement.
5.10 Waivers. No waiver of any provision of this Agreement or any
rights or obligations of any party hereunder shall be effective, except pursuant
to a written instrument signed by the party or parties waiving compliance, and
any such waiver shall be effective only in the specific instance and for the
specific purpose stated in such writing.
5.11 Counterparts. This Agreement may be executed in any number of
counterparts, including a facsimile counterpart, each of which shall be an
original, but all of which together shall constitute one instrument.
5.12 "Standstill" Provisions in Confidentiality Agreement.
Notwithstanding the "standstill" provisions of Section 7 of the Confidentiality
Agreement, the Company and the Purchaser acknowledge and agree that the
negotiation and execution of the Termination Agreement, this Agreement and the
Registration Rights Agreement and the Company's issuance of the Shares to the
Purchaser pursuant to this Agreement and the completion of any other
transactions contemplated herein and in the Registration Rights Agreement and
any transactions in which the Purchaser may engage to hedge its position in the
Shares it receives pursuant to this Agreement do not and will not cause a breach
or violation of such standstill provisions by the Purchaser.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock
Purchase Agreement as of the date first written above.
COMPANY: PURCHASER:
NPS PHARMACEUTICALS, INC. ENZON PHARMACEUTICALS, INC.
By: /s/ By: /s/
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Name: Name:
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Title: Title:
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Exhibit A
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Registration Rights Agreement
[OMITTED]
