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EXHIBIT 10.2
PHARMACYCLICS, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made
as of February 21, 1997, by and among Pharmacyclics, Inc., a Delaware
corporation (the "Company") with its principal office at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, and the persons listed on the Schedule of
Purchasers attached hereto as Schedule I (the "Purchasers").
1. Authorization and Sale of Units.
1.1 Authorization. The Company has authorized the issuance
and sale pursuant to this Agreement of Eight Hundred Sixty Two Thousand Four
Hundred Sixty Eight (862,468) shares of the Common Stock, par value $0.0001 per
share (the "Common Stock"), of the Company.
1.2 Sale of Common Stock. Subject to the terms and
conditions of this Agreement, the Company agrees to issue and sell to each
Purchaser, and each Purchaser severally agrees to purchase from the Company, the
number of shares of Common Stock set forth opposite each Purchaser's name on
Schedule I for a price per share equal to $19.05.
2. Closing Date; Delivery.
2.1 Closing Date. The closing of the purchase and sale of
the shares of Common Stock (the "Closing") shall be held at the offices of
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, Two Embarcadero Place, 0000 Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx at 10:00 a.m. Pacific Standard Time, on February 21, 1997 or at
such other time and place upon which the Company and the Purchasers purchasing
in the aggregate more than half of the shares of Common Stock sold hereunder
shall agree. The date of the Closing is hereinafter referred to as the "Closing
Date."
2.2 Delivery. At the Closing, the Company will deliver to
each Purchaser certificates, registered in the Purchaser's name as shown on
Schedule I, representing the number of shares of Common Stock to be purchased by
each such Purchaser. Such delivery shall be against payment by each Purchaser of
the aggregate purchase price therefor (the "Purchase Price") by wire transfer to
the Company's bank account. The Purchase Price payable by each Purchaser shall
be as set forth on Schedule I opposite each Purchaser's name.
3. Representations and Warranties of the Company. The Company
represents and warrants to the Purchasers as of the Closing Date as follows:
3.1 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 as a domestic corporation under the
laws of said state with all requisite corporate power and authority to own,
operate and lease its properties and conduct its business as presently
conducted.
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The Company is qualified to do business as a foreign corporation and
is in good standing in the State of California and in each other state of the
United States where its failure to do so would have a material adverse effect on
its business as presently conducted. The Company holds all licenses, franchises,
permits and authorizations necessary for the lawful conduct of its business.
3.2 Corporate Power; Authorization. The Company has all
requisite legal and corporate power and has taken all requisite corporate action
to execute and deliver this Agreement, to issue and sell the shares of the
Common Stock and to carry out and perform all of its obligations under this
Agreement. This Agreement constitutes the legal, valid and binding obligations
of the Company, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization or similar laws relating to
or affecting the enforcement of creditors' rights generally and (ii) as limited
by equitable principles generally. The execution and delivery of this Agreement
does not, and the performance of this Agreement and the compliance with the
provisions hereof, and the issuance, sale and delivery of the shares of Common
Stock by the Company will not conflict with, or result in a breach or violation
of the terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any lien pursuant to the terms of, the
Certificate of Incorporation or Bylaws of the Company or any statute, law, rule
or regulation or any state or federal order, judgment or decree or any
indenture, mortgage, lease or other material agreement or instrument which the
Company is required to file as an Exhibit to its Form 10-K.
3.3 Issuance and Delivery of the Shares of Common Stock.
The shares of Common Stock, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable. The
issuance and delivery of the shares of Common Stock is not subject to preemptive
or any other similar rights of the stockholders of the Company or any liens or
encumbrances.
3.4 SEC Documents; Financial Statements. The Company has
provided the Purchasers with the Company's Annual Report on Form 10-K for the
year ended June 30, 1996, the Quarterly Report on Form 10-Q for the Quarter
Ended September 30, 1996 and the Quarterly Report on Form 10-Q for the Quarter
Ended December 31, 1996 which are true and complete copies of such documents as
filed by the Company with the Securities and Exchange Commission (the "SEC").
The Company has filed all documents (the "SEC Documents") that the Company was
required to file with the SEC under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), during the twelve (12) months preceding the date
of this Agreement, and all of such documents conformed in all material respects
to the requirements of the Exchange Act and the rules and regulations thereunder
as of their respective filing dates. None of the SEC Documents as of their
respective dates contained any untrue statement of material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in the
SEC Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated financial position of
the Company and any subsidiaries at the dates thereof and the
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consolidated results of their operations and consolidated cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal,
recurring adjustments that are not in the aggregate material).
3.5 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement except for (a) compliance with the securities and
blue sky laws in the states in which shares of Common Stock are offered and/or
sold, which compliance will be effected in accordance with such laws and (b) the
filing of the Nasdaq National Market Notification Form with the Nasdaq National
Market.
3.6 No Material Adverse Change. Except as otherwise
disclosed herein, since December 31, 1996, there have not been:
(a) Any changes in the financial condition or
results of operations of the Company from that reflected in the Financial
Statements except changes in the ordinary course of business which have not
been, either individually or in the aggregate, materially adverse;
(b) Any material increase in indebtedness for
borrowed money, current liabilities or total liabilities (whether absolute,
accrued, contingent or otherwise) incurred by the Company, except for
liabilities, commitments and obligations incurred in the ordinary course of
business;
(c) Any sale, assignment, transfer or other
disposition of any material tangible or intangible asset of the Company, except
in the ordinary course of business;
(d) Any extraordinary transaction; and
(e) Any material agreement that the Company would
be required to file with the SEC.
4. Representations, Warranties and Covenants of the
Purchasers. Each Purchaser hereby severally represents and warrants to the
Company, effective as of the Closing Date, as follows:
4.1 Authorization. Purchaser represents and warrants to the
Company that: (i) Purchaser has all requisite legal and corporate or other power
and capacity and has taken all requisite corporate or other action to execute
and deliver this Agreement, to purchase the shares of Common Stock to be
purchased by it and to carry out and perform all of its obligations under this
Agreement; and (ii) this Agreement constitutes the legal, valid and binding
obligation of the Purchaser, enforceable in accordance with its terms, except
(a) as limited by applicable bankruptcy, insolvency, reorganization, or similar
laws relating to or affecting the enforcement of creditors' rights generally and
(b) as limited by equitable principles generally.
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4.2 Investor Qualifications; Investment Experience.
Purchaser is an "accredited investor" as defined in Rule 501(a) under the
Securities Act, and Purchaser is a "qualified institutional buyer" as defined in
Rule 144A(a)(1) under the Securities Act. Purchaser is aware of the Company's
business affairs and financial condition and has had access to and has acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the shares of Common Stock. Purchaser has such business and
financial experience as is required to give it the capacity to protect its own
interests in connection with the purchase of the shares of Common Stock.
4.3 Investment Intent. Purchaser is purchasing the shares
of Common Stock in the ordinary course of its business for its own account as
principal, for investment purposes only, and not with a present view to, or for,
resale, distribution or fractionalization thereof, in whole or in part, within
the meaning of the Securities Act. No arrangement or understanding exists
between the Purchaser and any other person regarding the resale, distribution or
fractionalization of the shares of Common Stock, in whole or in part, within the
meaning of the Securities Act. Purchaser understands that its acquisition of the
shares of Common Stock has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of Purchaser's investment intent as expressed herein. Purchaser
has completed or caused to be completed and delivered to the Company, the
Purchaser Questionnaire attached hereto as Exhibit A. Purchaser has, in
connection with its decision to purchase the number of shares of Common Stock
set forth in Schedule I hereto, relied solely upon the documents attached as
appendices thereto and the representations and warranties of the Company
contained herein. Purchaser 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 of Common Stock
except in compliance with the Securities Act, and the rules and regulations
promulgated thereunder.
4.4 Registration or Exemption Requirements. Purchaser
further acknowledges and understands that the shares of Common Stock may not be
resold or otherwise transferred except in a transaction registered under the
Securities Act or unless an exemption from such registration is available.
Purchaser understands that the certificate(s) evidencing the shares of Common
Stock will be imprinted with a legend that prohibits the transfer of the shares
of Common Stock unless (i) they are registered or such registration is not
required, and (ii) if the transfer is pursuant to an exemption from registration
other than Rule 144 under the Securities Act and, if the Company shall so
request in writing, an opinion of counsel reasonably satisfactory to the Company
is obtained to the effect that the transaction is so exempt.
4.5 No Legal, Tax or Investment Advice. Purchaser
understands that nothing in this Agreement or any other materials presented to
Purchaser in connection with the purchase and sale of the shares of Common Stock
constitutes legal, tax or investment advice. Purchaser 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 the shares of Common Stock.
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5. Conditions to Purchasers' Obligations. Each Purchaser's
obligation to purchase the shares of Common Stock at the Closing shall be
subject to the fulfillment or waiver as of the Closing Date of each of the
following conditions:
5.1 Representations and Warranties. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct in
all material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of said date. Purchasers shall have received a certificate to
such effect, dated the Closing Date and executed by the Chief Executive Officer
of the Company.
5.2 Legal Opinion. The Purchasers shall have received a
legal opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel to the Company,
regarding the matters referred to in Sections 3.1, 3.2 and 3.3, and otherwise
reasonably acceptable to the Purchasers.
6. Conditions to Company's Obligations. The Company's
obligation to issue and sell the shares of Common Stock at the Closing shall
be subject to the fulfillment or waiver as of the Closing Date of each of the
following conditions:
6.1 Representations and Warranties. The representations
made by the Purchasers in Section 4 hereof shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of such date.
6.2 Payment of Purchase Price. Each Purchaser shall have
delivered to the Company payment of the aggregate Purchase Price of the shares
of Common Stock to be purchased by each such Purchaser, in the amounts as set
forth on Schedule I hereto.
6.3 Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Purchasers on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
6.4 Blue Sky. The Company shall have obtained all
necessary blue sky law permits and qualifications, or secured exemptions
therefrom, required by any state for the offer and sale of the shares of Common
Stock.
7. Affirmative Covenants of the Company. he Company hereby
covenants and agrees as follows:
7.1 Financial Information. The Company will mail the
following reports to each Purchaser until such Purchaser transfers, assigns or
sells the shares of Common Stock purchased by such Purchaser pursuant to this
Agreement:
(a) Within one hundred twenty (120) days after the
end of each fiscal year, a copy of its Annual Report on Form 10-K.
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(b) Within sixty (60) days after the end of the
first, second and third quarterly accounting periods of each fiscal year of the
Company, a copy of its Quarterly Report on Form 10-Q.
(c) Within ten (10) days after the Company files
any Current Report on Form 8-K with the SEC, such Current Report on Form 8-K.
7.2 Registration. The Company shall file with the SEC a
registration statement on Form S-3 covering all of the shares of Common Stock
issued and sold to the Purchasers pursuant hereto within thirty (30) days after
the closing hereunder and shall use its best efforts to cause such registration
statement to become effective as soon as practicable thereafter. The Company
agrees to keep such registration statement in effect until the earlier of (i)
such date as all of the shares of Common Stock covered by the registration
statement have been resold or (ii) such time as all of the shares of Common
Stock purchased hereunder by each Purchaser can be sold within a 90-day period
without compliance with the registration requirements of the Securities Act
pursuant to Rule 144 thereunder. Notwithstanding anything else in this Section
7.2, the Company shall have the right, for a period not to exceed thirty (30)
days in duration and upon written notice to each of the Purchasers, to prohibit
the sale of the shares of Common Stock issued and sold to the Purchasers
hereunder pursuant to a registration statement effected under this Section 7.2,
in the event that the Company's Board of Directors, pursuant to advice of
counsel, deems it necessary, in light of a pending or potential corporate event
which has resulted in material nonpublic information not yet having been
disseminated by the Company or otherwise included in such registration
statement, to prohibit such sales until such information can be made public or
included in such registration statement. The Company shall within such thirty
(30) days add any necessary disclosure to the registration statement and notify
the Purchasers that they are no longer prohibited from selling shares of Common
Stock under such registration statement.
With respect to any registration effected pursuant to this
Section 7.2, the parties further agree as follows:
(a) The Company shall prepare and file with the
SEC such amendments and supplements to any such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(b) The Company shall furnish to the Purchasers such
numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as they
may reasonably request in order to facilitate the disposition of Registrable
Securities owned by the Purchasers.
(c) The Company shall bear all expenses other than
underwriting discounts and commissions incurred in connection with such
registration, filing or qualification, including (without limitation) all
registration, filing and qualification fees, printer's and accounting fees, fees
and
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disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the Purchasers.
(d) The parties agree to the following indemnification
rights and obligations:
(i) To the extent permitted by law, the Company
shall indemnify and hold harmless each Purchaser and each person, if any, who
controls such Purchaser within the meaning of the Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under the
Act, or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto; (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or (iii) any violation or alleged violation by the
Company of the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, or any state securities law. The Company
will pay to each Purchaser or controlling person any legal or other expenses
reasonably incurred by them (such payment to be made as incurred by such
persons) in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this paragraph (d)(i) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability, or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by the Purchaser or controlling person.
(ii) To the extent permitted by law, each
Purchaser will indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement, and each person,
if any, who controls the Company within the meaning of the Act, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Purchaser expressly
for use in connection with such registration; and such Purchaser will pay any
legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this paragraph (d)(ii) (such payment to be made as
incurred by such persons), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this paragraph (d)(ii) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Purchaser, which
consent shall not be unreasonably withheld; provided that in no event shall any
indemnity
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under this paragraph exceed the gross proceeds from the offering received by the
Purchaser, unless such Violation by the Purchaser is wilful.
(iii) Promptly after receipt by an indemnified
party under this paragraph (d) of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
paragraph (d), deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this paragraph (d), but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this paragraph (d).
8. Restrictions on Transferability of Common Stock;
Compliance with Securities Act. The shares of Common Stock purchased hereunder
shall not be transferable in the absence of a registration under the Securities
Act or an exemption therefrom or in the absence of compliance with any term of
this Agreement. The Company shall be entitled to give stop transfer instructions
to its transfer agent with respect to the Common Stock in order to enforce the
foregoing restrictions.
9. Miscellaneous.
9.1 Waivers and Amendments. The terms of this Agreement
may be waived or amended with the written consent of the Company and each
Purchaser.
9.2 Governing Law. This Agreement shall be governed in all
respects by and construed in accordance with the laws of the State of California
without any regard to conflicts of laws principles.
9.3 Survival. The representations, warranties, covenants
and agreements made in this Agreement shall survive any investigation made by
the Company or the Purchasers and the Closing.
9.4 Successors and Assigns. The provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties to this Agreement. Notwithstanding
the foregoing, no Purchaser shall assign this Agreement without the prior
written consent of the Company.
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9.5 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects thereof.
9.6 Notices, etc. All notices and other communications
required or permitted under this Agreement shall be effective upon receipt and
shall be in writing and may be delivered in person, by telecopy, overnight
delivery service or registered or certified United States mail, addressed to the
Company or the Purchasers, as the case may be, at their respective addresses set
forth at the beginning of this Agreement or on Schedule I, or at such other
address as the Company or the Purchasers shall have furnished to the other party
in writing. All notices and other communications shall be effective upon the
earlier of actual receipt thereof by the person to whom notice is directed or
(i) in the case of notices and communications sent by personal delivery or
telecopy, one business day after such notice or communication arrives at the
applicable address or was successfully sent to the applicable telecopy number,
(ii) in the case of notices and communications sent by overnight delivery
service, at noon (local time) on the second business day following the day such
notice or communication was sent, and (iii) in the case of notices and
communications sent by United States mail, seven days after such notice or
communication shall have been deposited in the United States mail.
9.7 Severability of this Agreement. If any provision of
this Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
9.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
9.9 Further Assurances. Each party to this Agreement 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 hereto 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.
9.10 Termination. In the event that the Closing shall not
have occurred on or before thirty (30) days from the date hereof, this Agreement
shall terminate at the close of business on such date.
9.11 Expenses. The Company and each such Purchaser shall
bear its own expenses incurred on its behalf with respect to this Agreement and
the transactions contemplated hereby, including fees and expenses of legal
counsel.
9.12 Effectiveness of Agreement. The Company's agreement to
sell the shares of Common Stock to the Purchasers pursuant to the terms of this
Agreement will only be effective upon acceptance of this Agreement by the
Company as evidenced by the Company's execution of this Agreement.
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IN WITNESS WHEREOF, the Company and Purchasers have executed
this Common Stock Purchase Agreement as of the date first above written.
COMPANY:
PHARMACYCLICS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Pres & CEO
PURCHASERS:
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Xxxxxxx X. Xxxx
Title: Attorney-in-Fact
Address: c/o Curacao International Trust Company N.V.
Xxxx Xxxxxxxxx 0
Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxxx Antilles
BOARD OF PENSION COMMISSIONERS OF
THE CITY OF LOS ANGELES
By: /s/ Xxxx Xxxxxxxxx
Title: General Manager
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
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XXXXX REVOCABLE TRUST, TEE
XXXXXX X. XXXXX, TEE XXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx, Trustee
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Trustee
Address: 000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxx
Address: c/o Kleiner Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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Schedule I
SCHEDULE OF PURCHASERS
Number of Purchase
Purchaser Shares Price
Quantum Industrial Partners LDC 600,000 $11,430,000.00
c/o Curacao International Trust Company N.V.
Xxxx Xxxxxxxxx 0
Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxxx Antilles
Board of Pension Commissioners of 209,974 4,000,004.70
the City of Los Angeles
000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Xxxxx Revocable Trust 10,499 200,005.95
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxx 41,995 800,004.75
c/o Kleiner Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Total 862,468 $16,430,015.40
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EXHIBIT A
INSTRUCTION SHEET FOR PURCHASER, PURCHASER QUESTIONNAIRE AND CERTIFICATES
FOR PURCHASER
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INSTRUCTION SHEET FOR PURCHASER Exhibit A-1
(to be read in conjunction with the entire
Common Stock Purchase Agreement)
A. Complete the following items in the Common Stock Purchase Agreement:
1. Provide the information regarding the Purchaser requested on
the signature page. The Agreement must be executed by an
individual authorized to bind the Purchaser.
2. Exhibit A-2 - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire;
3. Exhibits A-3 and A-4 - Certificate for Purchaser:
Provide the information requested by the Certificate for
Individual Purchasers or the Certificate for Corporate,
Partnership, Trust, Foundation and Joint Purchasers, as
applicable.
4. Return the signed Purchase Agreement including the properly
completed Exhibit to:
J. Xxxxxxx Xxxxxxxxx, Esq.
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
B. Instructions regarding the transfer of funds for the purchase of shares
of Common Stock will be telecopied to the Purchaser at a later date.
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Exhibit A-2
PHARMACYCLICS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4.3 of the Agreement, please provide us with the
following information:
1. The exact name that the shares of Common
Stock are to be registered in (this is the name
that will appear on the stock certificate(s)). You
may use a nominee name if appropriate:
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2. The relationship between the Purchaser of the
shares of Common Stock and the Registered
Holder listed in response to item 1 above:
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3. The mailing address of the Registered Holder
listed in response to item 1 above:
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4. The Tax Identification Number of the Registered Holder listed in
response to item 1 above:
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Exhibit A-3
PHARMACYCLICS, INC.
CERTIFICATE FOR INDIVIDUAL PURCHASERS
If the investor is an individual Purchaser (or married couple)
the Purchaser must complete, date and sign this Certificate.
CERTIFICATE
I certify that the representations and responses below are
true and accurate:
In order for the Company to offer and sell the shares of Common Stock
in conformance with state and federal securities laws, the following information
must be obtained regarding your investor status. Please initial each category
applicable to you as an investor in the Company.
___ (1) A natural person whose net worth, either
individually or jointly with such person's spouse exceeds $1,000,000;
___ (2) A natural person who had an individual income
in excess of $200,000, or joint income with that person's spouse in excess of
$300,000, in 1994 and 1995, and reasonably expects to have income reaching the
same level in 1996;
___ (3) An executive officer or director of the
Company.
Dated:
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Name(s) of Purchaser
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Signature
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Signature
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Exhibit A-4
PHARMACYCLICS, INC.
CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, FOUNDATION AND JOINT PURCHASERS
If the investor is a corporation, partnership, trust, pension
plan, foundation, joint purchaser (other than a married couple) or other entity,
an authorized officer, partner, or trustee must complete, date and sign this
Certificate.
CERTIFICATE
The undersigned certifies that the representations and
responses below are true and accurate:
(a) The investor has been duly formed and is validly existing
and has full power and authority to invest in the Company. The person signing on
behalf of the undersigned has the authority to execute and deliver the Common
Stock Purchase Agreement on behalf of the Purchaser and to take other actions
with respect thereto.
(b) Indicate the form of entity of the undersigned:
___ Limited Partnership
___ General Partnership
___ Corporation
___ Revocable Trust (identify each grantor and
indicate under what circumstances the trust
is revocable by the grantor):_______________
____________________________________________
____________________________________________
____________________________________________
___________________________________________.
(Continue on a separate piece of paper, if necessary.)
___ Other Type of Trust (indicate type of trust
and, for trusts other than pension trusts,
name the grantors and beneficiaries):_______
____________________________________________
____________________________________________
____________________________________________
___________________________________________.
(Continue on a separate piece of paper, if necessary.)
___ Other form of organization (indicate form of
organization (_______________________________________
______________________________________________ ).
(c) Indicate the approximate date the undersigned entity
was formed:_________________________________________.
(d) In order for the Company to offer and sell the shares
of Common Stock in conformance with state and federal securities laws, the
following information must be obtained regarding your investor status. Please
initial each category applicable to you as an investor in the Company.
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___ 1. A bank as defined in Section 3(a)(2) of
the Securities Act, or any savings and loan association or
other institution as defined in Section 3(a)(5)(A) of the
Securities Act whether acting in its individual or fiduciary
capacity;
___ 2. A broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934;
___ 3. An insurance company as defined in
Section 2(13) of the securities Act;
___ 4. An investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of that Act;
___ 5. A Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958;
___ 6. A plan established and maintained by a
state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in
excess of $5,000,000;
___ 7. An employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, which is either a bank, savings and
loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are
accredited investors;
___ 8. A private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act
of 1940;
___ 9. An organization described in
Section 501(c)(3) of the Internal Revenue Code, a corporation,
Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the Shares, with
total assets in excess of $5,000,000;
___ 10. A trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a sophisticated
person who has such knowledge and experience in financial and
business matters that such person is capable of evaluating the
merits and risks of investing in the Company;
2.
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___ 11. An entity in which all of the equity owners
qualify under any of the above subparagraphs. If the
undersigned belongs to this investor category only, list the
equity owners of the undersigned, and the investor category
which each such equity owner satisfies:_______________________
______________________________________________________________
______________________________________________________________
___________________________________________________________ .
(Continue on a separate piece of paper, if necessary.)
Dated: _______________________, 19___
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Name of investor
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Signature and title of authorized
officer, partner or trustee
3.
