SUBSCRIPTION AGREEMENT
Exhibit 99.1
Execution Copy
Anadys Pharmaceuticals, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Ladies and Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with Anadys Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), as follows:
1. This Subscription Agreement, including the Terms and Conditions for Purchase of Shares
attached hereto as Annex I which are incorporated herein by this reference as if fully set
forth herein (the “Terms and Conditions” and, together with this Subscription Agreement, this
“Agreement”) is made as of the date set forth below between the Company and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of 5,813,954 shares (the “Shares”) of its common stock, $0.001 par value per share (the “Common
Stock”) of the Company, subject to adjustment by the Company’s Board of Directors or a committee
thereof, for a purchase price of $2.15 per share (the “Purchase Price”).
3. The offering and sale of the Shares (the “Offering”) are being made pursuant to (a) an
effective Registration Statement on Form S-3, No. 333-158342 (the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission (the “Commission”), including the
Prospectus contained therein (the “Base Prospectus”), (b) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the Securities Act of 1933, as amended
(the “Act”)), that have been or will be filed, if required, with the Commission and delivered to
the Investor on or prior to the date hereof (the “Issuer Free Writing Prospectus”), containing only
certain supplemental information regarding the Shares, the terms of the Offering and/or the
Company, and (c) a Prospectus Supplement (the “Prospectus Supplement” and, together with the Base
Prospectus, the “Prospectus”) containing certain supplemental information regarding the Shares and
terms of the Offering and the Company that has been or will be filed with the Commission and has
been delivered to the Investor prior to the Closing.
4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the number of Shares set forth below (the “Investor
Shares”) for the aggregate purchase price set forth below (the “Investor Purchase Price”). The
Investor Shares shall be purchased pursuant to the Terms and Conditions. The Investor acknowledges
that the Offering is not being underwritten by the placement agents named in the Prospectus
Supplement and that there is no minimum offering amount.
5. The manner of settlement of the Investor Shares purchased by the Investor shall be as
follows
Delivery versus payment (“DVP”) through the Depositary Trust Company (“DTC”)
(i.e., on the Closing Date (as defined in the Terms and Conditions), the Company
shall deliver the Investor Shares registered in the Investor’s name and address as set
forth below and
released by Computershare Shareholder Services, Inc., the Company’s “Transfer Agent”, to
the Investor through DTC at the Closing (as defined in the Terms and Conditions) directly
to the account(s) at Lazard Capital Markets LLC (“LCM”) identified by the Investor; upon
receipt of such Investor Shares, LCM shall immediately electronically deliver such
Investor Shares to the Investor, and prior to or simultaneously therewith payment shall
be made by LCM by wire transfer to the Company). NO LATER THAN ONE (1) BUSINESS DAY
AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR
SHALL:
| (I) | NOTIFY LCM OF THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND | ||
| (II) | CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR. |
IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE
PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DVP IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT
MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) it has had no position, office
or other material relationship within the past three years with the Company or persons known to it
to be affiliates of the Company, (b) it is not a member of the Financial Industry Regulatory
Authority, Inc. or an Associated Person (as such term is defined under the NASD Membership and
Registration Rules Section 1011) as of the Closing, and (c) neither the Investor nor any group of
Investors (as identified in a public filing made with the Commission) of which the Investor is a
part in connection with the Offering of the Shares, acquired, or obtained the right to acquire, 20%
or more of the Common Stock (or securities convertible into or exercisable for Common Stock) or the
voting power of the Company on a post-transaction basis. Exceptions:
(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)
7. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the Base Prospectus,
declared effective by the Commission on April 23, 2009, which is a part of the Company’s
Registration Statement and the documents incorporated by reference therein, any Issuer Free Writing
Prospectus and the Prospectus Supplement (collectively, the “Disclosure Package”), prior to or in
connection with the receipt of this Agreement. The Investor acknowledges that, prior to the
delivery of this Agreement to the Company, the Investor will receive certain additional information
regarding the Offering and the Company, including the pricing information (the “Offering
Information”). Such information may be provided to the Investor by any means permitted under the
Act, including the
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Prospectus Supplement, a free writing prospectus and oral communications. The Investor
acknowledges that the Disclosure Package contains information that may be material to the Company
and its securities that will not be disclosed to the public until the Company files a Current
Report on Form 8-K in accordance with Section 13 of Annex I hereto, and the Investor agrees
not to transact or agree to transact in the Company’s securities or otherwise use such information
unless and until (a) the Company files a Current Report on Form 8-K with the Commission in
accordance with Section 13 of Annex I hereto and (b) The NASDAQ Global Market has opened
for regular trading on May 26, 2010.
8. No offer by the Investor to buy Investor Shares will be accepted and no part of the
Investor Purchase Price will be delivered to the Company until the Investor has received or has
public access to the Disclosure Package and the Offering Information and the Company has accepted
such offer by countersigning a copy of this Agreement, and any such offer may be withdrawn or
revoked, without obligation or commitment of any kind, at any time prior to the Company (or the
Placement Agents (as defined in the Terms and Conditions) on behalf of the Company) sending
(orally, in writing or by electronic mail) notice of its acceptance of such offer. An indication
of interest will involve no obligation or commitment of any kind until the Investor has been
delivered the Disclosure Package and Offering Information and this Agreement is accepted and
countersigned by or on behalf of the Company.
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Number of Investor Shares:
Purchase Price Per Share: $
Aggregate Investor Purchase Price: $
Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.
| Dated as of: May __, 2010 | ||||||||
| INVESTOR (print exact legal name) | ||||||||
| By: | ||||||||
| Print Authorized
Signatory Name:
|
||||||||
| Title:
|
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| Address:
|
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[Signature Page to Anadys Subscription Agreement]
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Agreed and Accepted
this ___day of May, 2010:
this ___day of May, 2010:
ANADYS PHARMACEUTICALS, INC.
By: |
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Name:
|
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Title: |
[Signature Page to Anadys Subscription Agreement]
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.
2.
Agreement to Sell and Purchase the Shares; Placement Agents.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I (the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company anticipates that other investors (the “Other Investors”) will participate in
the Offering, and expects to complete sales of Shares to them. The Company agrees that such Other
Investors will execute substantially the same form of Subscription Agreement as this Agreement.
The Investor and the Other Investors are hereinafter sometimes collectively referred to as the
“Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the “Agreements.”
2.3 Investor acknowledges that the Company has agreed to pay Lazard Capital Markets LLC
(“LCM”) and Xxxxx Xxxxxxx & Co. (“Piper”, together with LCM, the “Placement Agents”) a fee of 6.38%
(the “Placement Fee”) in respect of the sale of Shares to the Investor.
2.4 The Company has entered into a Placement Agent Agreement, dated the date hereof (the
“Placement Agreement”), with the Placement Agents that contains representations and warranties of
the Company that may be relied upon by the Investor, which shall be a third party beneficiary
thereof.
3. Closing and Delivery of the Shares and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and LCM, and of
which the Investors will be notified in advance by LCM, in accordance with Rule 15c6-1 promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the Closing, (a)
the Company shall cause the Transfer Agent to deliver to the Investor the number of Shares set
forth on the Signature Page registered in the name of the Investor or, if so indicated on the
Investor Questionnaire attached hereto as Exhibit A, in the name of a nominee designated by
the Investor and (b) the aggregate purchase price for the Shares being purchased by the Investor
will be delivered by or on behalf of the Investor to the Company.
3.2 Conditions to the Obligations of the Parties.
(a) Conditions to the Company’s Obligations. The Company’s obligation to issue and
sell the Shares to the Investor shall be subject to: (i) the receipt by the Company of the purchase
price for the Shares being purchased hereunder as set forth on the Signature Page and (ii) the
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accuracy of the representations and warranties made by the Investor and the fulfillment of
those undertakings of the Investor to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares will be subject to (x) the representations and warranties made by the Company in the
Agreements and the Placement Agreement shall be true and correct as of the date hereof and as of
the Closing Date and the Company shall have fulfilled those undertakings of the Company required to
be fulfilled prior to the Closing Date, as set forth in the Placement Agreement, and (y) that the
Placement Agents shall not have: (i) terminated the Placement Agreement pursuant to the terms
thereof or (ii) determined that the conditions to the closing in the Placement Agreement have not
been satisfied. The Investor’s obligations are expressly not conditioned on the purchase by any or
all of the Other Investors of the Shares that they have agreed to purchase from the Company. The
Investor understands and agrees that, in the event that LCM, on behalf of the Placement Agents, in
its sole discretion determines that the conditions to closing in the Placement Agreement have not
been satisfied or if the Placement Agreement may be terminated for any other reason permitted by
the Placement Agreement, then LCM may, but shall not be obligated to, terminate the Placement
Agreement, which shall have the effect of terminating this Subscription Agreement pursuant to
Section 14 below. The Placement Agents shall not have the authority to amend or modify
the Company’s representations and warranties set forth in Section 3 of the Placement Agreement or
the closing conditions contained in Section 7 of the Placement Agreement in a manner adverse to the
Investor or waive any provisions or conditions contained therein without the consent of the
Investor.
3.3 Delivery of Funds.
Delivery Versus Payment through The Depository Trust Company. No later than one
(1) business day after the execution of this Agreement by the Investor and the Company, the
Investor shall confirm that the account or accounts at LCM to be credited with the Shares being
purchased by the Investor have a minimum balance equal to the aggregate purchase price for the
Shares being purchased by the Investor.
3.4 Delivery of Shares.
Delivery Versus Payment through The Depository Trust Company. No later than one
(1) business day after the execution of this Agreement by the Investor and the Company, the
Investor shall notify LCM of the account or accounts at LCM to be credited with the Shares being
purchased by such Investor. On the Closing Date, the Company shall deliver the Shares to the
Investor through DTC directly to the account(s) at LCM identified by Investor and simultaneously
therewith payment shall be made by LCM by wire transfer to the Company.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agents (each, as to itself), that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on
the Signature
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Page and the Investor Questionnaire and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (c) in connection with its
decision to purchase the number of Shares set forth on the Signature Page, has received and is
relying only upon the Disclosure Package and the documents incorporated by reference therein and
the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agents that would permit an offering of the Shares, or
possession or distribution of offering materials in connection with the issue of the Shares in any
jurisdiction outside the United States where action for that purpose is required, (b) if the
Investor is outside the United States, it will comply with all applicable laws and regulations in
each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its
possession or distributes any offering material, in all cases at its own expense and (c) the
Placement Agents are not authorized to make and have not made any representation, disclosure or use
of any information in connection with the issue, placement, purchase and sale of the
Shares, except as set forth or incorporated by reference in the Base Prospectus, the
Prospectus Supplement or any Issuer Free Writing Prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and except as to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure
Package, the Offering Information or any other materials presented to the Investor in connection
with the purchase and sale of the Shares constitutes legal, tax or investment advice.
The Investor has consulted such legal, tax and investment advisors and made such investigation as
it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of
Shares.
4.5 Since the date on which the Placement Agents first contacted the Investor about the
Offering, the Investor has not disclosed any information regarding the Offering to any third
parties (other than its legal, accounting and other advisors) and has not engaged in any purchases
or sales involving the securities of the Company (including, without limitation, any Short Sales
involving the Company’s securities), and has not violated its obligations of confidentiality. The
Investor covenants that it will not engage in any purchases or sales in the securities of the
Company (including Short Sales) or disclose any information about the Offering (other than to its
advisors that are under a legal obligation of confidentiality) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it
will not use any of the Shares acquired pursuant to this Agreement to cover any short position in
the Common Stock if doing so would be in violation of applicable securities laws. For purposes
hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all
types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
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transactions through non-US broker dealers or foreign regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agents,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Shares
being purchased and the payment therefor. The Placement Agents and Lazard Fréres & Co. shall be
third party beneficiaries with respect to the representations, warranties and agreements of the
Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and (c) will be deemed given (i) if delivered by first-class registered or certified
mail domestic, three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed and (iv) if delivered by facsimile, upon electronic
confirmation of receipt and will be delivered and addressed as follows:
| (a) | if to the Company, to: |
Anadys Pharmaceuticals, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx, Senior Vice President, Legal
Affairs and General Counsel
Facsimile: (000) 000-0000
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx, Senior Vice President, Legal
Affairs and General Counsel
Facsimile: (000) 000-0000
with copies to:
Xxxxxx LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or impaired thereby.
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10. Governing Law. This Agreement will be governed by, and construed in accordance with,
the internal laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other jurisdiction.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. The Company and the Investor acknowledge
and agree that the Company shall deliver its counterpart to the Investor along with the
Prospectus Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s signed counterpart to this Agreement, together with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with the
Commission), shall constitute written confirmation of the Company’s sale of Shares to such
Investor.
13. Press Release and 8-Ks. The Company and the Investor agree that the Company shall,
prior to the opening of the financial markets in New York City on the business day
immediately after the date hereof, (a) issue a press release announcing the Offering and
disclosing all material information regarding the Offering, (b) file a Current Report on
Form 8-K with the Securities and Exchange Commission including a form of this Agreement and
the Placement Agreement as exhibits thereto, which such Current Report on Form 8-K shall
include all material information regarding the Offering, and (c) if applicable, file another
Current Report on Form 8-K with the Securities and Exchange Commission disclosing any other
material information regarding the Company that is contained in the Disclosure Package.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of the
Investor or any affiliate or investment adviser of the Investor, or include the name of the
Investor or any affiliate or investment adviser of any Investor in any press release or
filing with the Securities and Exchange Commission or any regulatory agency or trading
market, without the prior written consent of such Investor, except (i) as required by
federal securities law and (ii) to the extent such disclosure is required by law or trading
market regulations, in which case the Company shall provide the Investor with prior written
notice of such disclosure permitted under this sub-clause (ii). As of the filing of the
Form 8-Ks referred to in clauses (b) and (c) described above, the Investor shall not be in
possession of any material, non public information received from the Company, any subsidiary
of the Company or any of their respective officers, directors or employees in connection
with the Offering.
14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agents pursuant to the terms thereof, this Agreement shall terminate without any further
action on the part of the parties hereto. The Investor shall have the right to terminate
this agreement if the Closing has not occurred on or before June 10, 2010.
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Exhibit A
ANADYS PHARMACEUTICALS, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1.
|
The exact name that your Shares are to be registered in. You may use a nominee name if appropriate: | |||
2.
|
The relationship between the Investor and the registered holder listed in response to item 1 above: | |||
3.
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The mailing address of the registered holder listed in response to item 1 above: | |||
4.
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The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||
5.
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Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |||
6.
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DTC Participant Number: | |||
7.
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Name of Account at DTC Participant being credited with the Shares: | |||
8.
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Account Number at DTC Participant being credited with the Shares: | |||
