Exhibit 99.2(f)
ALLIANCE PHARMACEUTICALS CORP.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as
of the 4th day of November, 1999 (the "EFFECTIVE DATE"), by and between
Alliance Pharmaceuticals Corp., a New York corporation (the "COMPANY"), and
Inhale Therapeutic Systems, Inc., a Delaware corporation ("INHALE").
RECITALS
WHEREAS, the Company and Inhale have entered into an Asset Purchase
Agreement dated as October 4, 1999 (as amended or restated from time-to-time)
(the "ASSET PURCHASE AGREEMENT") pursuant to which the Company assigned and
sold to Inhale certain assets relating to the PulmoSpheres-Registered
Trademark- Technology (the "PURCHASED ASSETs") as more particularly set forth
in the Asset Purchase Agreement. Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Asset Purchase Agreement.
WHEREAS, in connection with the execution of the Asset Purchase
Agreement, the Company and Inhale have also entered into a License Agreement
dated the Effective Date pursuant to which Inhale granted to the Company
certain rights under the PulmoSpheres-Registered Trademark- Technology for
all applications outside the Inhale Field (as defined in the License
Agreement) and for certain products within the Inhale Field (the "LICENSE").
WHEREAS, in consideration for the grant of the License to the
Company, the Company has agreed to issue to Inhale shares of the Company's
unregistered common stock as provided herein.
AGREEMENT
The Company and Inhale agree as follows:
1. ISSUANCE OF STOCK.
1.1 SALE AND ISSUANCE OF COMMON STOCK. Subject to the terms
and conditions of this Agreement, in consideration for the License, and in
reliance on the representations and warranties contained herein, the Company
agrees to issue to Inhale at the Closing (as hereinafter defined) 1,134,738
shares of the Company's Common Stock(1), $.01 par value per share (the
"COMMON STOCK").
1.2 CLOSING; DELIVERY.
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(1) The number of shares of common stock shall equal the quotient of $5
million divided by the average closing price for the Company's Common Stock
as quoted on the Nasdaq National Market for the fifteen (15) trading days
preceding the Closing Date (as defined in the Asset Purchase Agreement).
(a) The issuance of the Common Stock shall take
place at the offices of Cooley Godward LLP, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx, at 9:00 A.M. on the Closing Date (as defined in the Asset
Purchase Agreement), or at such other time and place as the Company and
Inhale shall mutually agree, either orally or in writing (which time and
place are designated as the "CLOSING").
(b) At the Closing, the Company shall deliver to
Inhale a certificate representing the shares of Common Stock to be issued to
Inhale in consideration of the License and upon the satisfaction or waiver of
all conditions to Closing set forth in the Asset Purchase Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Inhale that:
2.1 ORGANIZATION; GOOD STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the state of which it is incorporated.
2.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. The
Company (i) has the corporate power and authority and the legal right to
enter into this Agreement and to perform its obligations hereunder, and (ii)
has taken all necessary corporate action on its part to authorize the
execution and delivery of this Agreement, the performance of its obligations
hereunder and the authorization, issuance, and delivery of the Common Stock
issuable hereunder. This Agreement has been duly executed and delivered on
behalf of the Company, and upon due execution and delivery by Inhale, this
Agreement will be a valid and binding obligation of the Company except as
enforceability may be limited to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors rights generally or by
equitable principles..
3. REPRESENTATIONS AND WARRANTIES OF INHALE. INHALE HEREBY
REPRESENTS AND WARRANTS TO THE COMPANY THAT:
3.1 ORGANIZATION; GOOD STANDING. Inhale is a corporation
duly organized, validly existing and in good standing under the laws of the
state of which it is incorporated.
3.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Inhale
(i)has the corporate power and authority and the legal right to enter into
this Agreement and to perform its obligations hereunder, and (ii) has taken
all necessary corporate action on its part to authorize the execution and
delivery of this Agreement and the performance of its obligations hereunder.
This Agreement has been duly executed and delivered on behalf of Inhale, and
upon due execution and delivery by the Company, this Agreement will be a
valid and binding obligation of Inhale except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors rights generally or by equitable principles.
3.3 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is
made with Inhale in reliance upon Inhale's representation to the Company,
which by Inhale's execution of this Agreement Inhale hereby confirms, that
the Common Stock to be purchased by Inhale will be acquired for investment
for Inhale's own account, not as a nominee or agent, and not with a view
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to the resale or distribution of any part thereof, and that Inhale has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Inhale further represents
that Inhale does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or
to any third person with respect to any of the Common Stock.
3.4 INVESTMENT EXPERIENCE. Inhale, taking into account the
personnel and resources it can practically bring to bear on the purchase of
the Common Stock contemplated hereby, is knowledge, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investment in shares representing an investment decision like that involved
in the purchase of the Common Stock, including the evaluation and investment
in securities of companies such as the Company. Inhale acknowledges that it
is able to fend for itself, can bear the economic risk of its investment, and
has such knowledge and experience in financial and business matters that it
is capable of evaluating the merits and risks the investment in the Common
Stock. Inhale also represents that it has not been organized for the purpose
of acquiring the Common Stock. In addition, Inhale has been given access to
such information of the Company which Inhale has desired to review and
analyze in connection with Inhale's purchase of the Common Stock
3.5 ACCREDITED INVESTOR. Inhale is an "accredited investor"
within the meaning of SEC Rule 501 of Regulation D promulgated under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), as presently in
effect.
3.6 RESTRICTED SECURITIES. Inhale understands that the
Common Stock may not be sold, transferred or otherwise disposed of without
registration under the Securities Act or an exemption therefrom, and that in
the absence of an effective registration statement covering the Common Stock
or an available exemption from registration under the Securities Act, the
Common Stock must be held indefinitely. In particular, Inhale is aware that
the Common Stock may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that Rule are met.
3.7 LEGENDS. It is understood that the certificates
evidencing the Common Stock may bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT."
(b) Any legend required by the laws of the State
of California or any other jurisdiction.
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4. REGISTRATION RIGHTS.
(a) On or after January 7, 2000, if the Company
shall determine to register any of its Common Stock either for its own
account or the account of a security holder or holders, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any
registration form that does not permit secondary sales, the Company will (i)
promptly give to Inhale written notice thereof; and (ii) use its best efforts
to include in such registration (and any related qualification under blue sky
laws or other compliance), except as set forth in subsection (c) below, and
in any underwriting involved therein, all of such Inhale's Common Stock
specified in a written request or requests within fifteen (15) days after the
written notice from the Company described in clause (i) above is given. Such
written request may specify all or a part of Inhale's Common Stock.
(b) If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise Inhale as a part of the written notice given pursuant
to subsection (a)(i). In such event, the right of Inhale to registration
pursuant to this Section 4 shall be conditioned upon Inhale's participation
in such underwriting and the inclusion of Inhale's Common Stock in the
underwriting to the extent provided herein. In the event Inhale proposes to
distribute its Common Stock through such underwriting, it shall (together
with the Company and the other holders of securities of the Company with
registration rights to participate therein distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by
the Company.
(c) If the total amount of securities, including
Inhale's Common Stock, requested by shareholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters reasonably believe compatible with the success of the
offering, then the Company shall be required to include in the offering only
that number of such securities, including such Common Stock, which the
underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among Inhale and other
selling shareholders according to the total amount of securities entitled to
be included therein owned by Inhale and such selling shareholders or in such
other proportions as shall mutually be agreed to by Inhale and such selling
shareholders).
(d) Inhale's registration rights as set forth in
this Section 4 shall terminate and be of no further force or effect at such
time as all the Inhale Common Stock held by Inhale may be sold under Rule 144
promulgated under the Securities Act during any 90 day period.
5. CALIFORNIA COMMISSIONER OF CORPORATIONS. THE SALE OF THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE
SALE OF SECURITIES IS EXEMPT FROM QUALIFICATIONS BY SECTIONS 25100, 25102 OR
25105 OF THE CALIFORNIA CORPORATIONS CODE. THE
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RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH
QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
6. MISCELLANEOUS.
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
warranties, representations and covenants of the Company and Inhale made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties.
6.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California (without giving effect to
principles of conflict of laws).
6.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.5 NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery
service or by fax) to the address or fax number set forth beneath the name of
such party below (or to such other address or fax number as such party shall
have specified in a written notice given to the other parties hereto):
if to the Company:
Alliance Pharmaceutical Corp.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
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WITH A COPY TO:
Pillsbury, Madison & Sutro LLP
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
if to Inhale:
Inhale Therapeutic Systems, Inc.
000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
WITH A COPY TO:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
6.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with a written instrument duly executed by the Company
and Inhale.
6.7 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
6.8 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ALLIANCE PHARMACEUTICAL CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Vice President and General Counsel
INHALE THERAPEUTIC SYSTEMS, INC.
By: /s/ Xxxxxx X. Makes
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Xxxxxx X. Makes
Vice President and Chief Financial Officer
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