EXHIBIT 10.6
STOCK PURCHASE AGREEMENT
BETWEEN
AMYLIN PHARMACEUTICALS, INC.
AND
XXX XXXXX AND COMPANY
TABLE OF CONTENTS
PAGE
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1. PURCHASE AND SALE OF STOCK.............................................1
2. CLOSING DATE; DELIVERY.................................................1
2.1 Closing..........................................................1
2.2 Delivery.........................................................1
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................2
3.1 Organization, Good Standing and Qualification....................2
3.2 Authorization; Due Execution.....................................2
3.3 Capitalization...................................................2
3.4 Valid Issuance of Stock..........................................2
3.5 Governmental Consents............................................2
3.6 No Conflict......................................................2
3.7 SEC Filings......................................................3
3.8 No Material Change...............................................3
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.........................4
4.1 Authorization; Due Execution.....................................4
4.2 Purchase Entirely for Own Account................................4
4.3 Disclosure of Information........................................4
4.4 Investment Experience............................................4
4.5 Accredited Investor..............................................5
4.6 Restricted Securities............................................5
4.7 Current Holdings.................................................5
5. CONDITIONS OF THE INVESTOR'S OBLIGATIONS...............................5
5.1 Representations and Warranties...................................5
5.2 Performance......................................................6
5.3 Compliance Certificate...........................................6
5.4 Opinion of Counsel...............................................6
5.5 Proceedings and Documents........................................6
5.6 Listing..........................................................6
5.7 No Restraints....................................................6
5.8 No Legal Proceedings.............................................6
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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6. CONDITIONS OF THE COMPANY'S OBLIGATIONS................................6
6.1 Representations and Warranties...................................6
6.2 Performance......................................................7
6.3 Compliance Certificate...........................................7
6.4 Payment of Purchase Price........................................7
6.5 Proceedings and Documents........................................7
6.6 Listing..........................................................7
6.7 No Restraints....................................................7
6.8 No Legal Proceedings.............................................7
7. AGREEMENT NOT TO SELL..................................................7
7.1 Agreement Not to Sell............................................7
8. DEFINITIONS............................................................8
8.1 Affiliate and Associate..........................................8
8.2 Damages..........................................................8
8.3 Legal Proceeding.................................................8
8.4 Legal Requirement................................................8
8.5 Material Adverse Effect..........................................8
9. MISCELLANEOUS..........................................................8
9.1 Governing Law....................................................8
9.2 Counterparts.....................................................8
9.3 Successors and Assigns...........................................8
9.4 Entire Agreement.................................................9
9.5 Severability.....................................................9
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Purchase Agreement") is made as of
September 19, 2002 (the "Effective Date") by and between AMYLIN PHARMACEUTICALS,
INC., a Delaware corporation, having a principal place of business at 0000 Xxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Company"), and XXX XXXXX AND
COMPANY, an Indiana corporation, having a principal place of business at Lilly
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Investor").
RECITALS
WHEREAS, the Company and the Investor have entered into that certain
Collaboration Agreement of even date herewith (the "Collaboration Agreement");
WHEREAS, in connection with, and as a condition of the Company entering
into, the Collaboration Agreement, the Investor agrees to purchase from the
Company 1,604,982 shares of the Company's Common Stock on the terms and subject
to the conditions set forth in this Purchase Agreement; and
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
AGREEMENT
1. PURCHASE AND SALE OF STOCK.
Subject to the terms and conditions hereof, at the Closing (as defined
below), the Investor shall purchase from the Company, and the Company shall
issue and sell to the Investor, 1,604,982 shares of Common Stock of the Company
(the "Stock") for the aggregate purchase price of US$30,000,000.
2. CLOSING DATE; DELIVERY.
2.1 CLOSING. Subject to the terms of Sections 5 and 6 of this Purchase
Agreement, the closing of the sale and purchase of the Stock under this Purchase
Agreement (the "Closing") shall be held at 10:00 a.m. (Pacific Time) on the
fourth business day following the Effective Date at the offices of Xxxxxx
Godward LLP, 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, or at such other time
and place as the Company and the Investor may agree.
2.2 DELIVERY. At the Closing, subject to the terms and conditions
hereof, the Company shall deliver to the Investor a stock certificate
representing the Stock, registered in the name of the Investor and dated as of
the Closing against payment of the purchase price therefore by wire transfer of
immediately available funds to an account specified by the Company, unless other
means of payment shall have been agreed upon by the Company and the Investor.
1.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties to
the Investor as of the Effective Date:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business. The Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the failure so to qualify would
have a material adverse effect on its business or operations.
3.2 AUTHORIZATION; DUE EXECUTION. The Company has the requisite
corporate power and authority to enter into this Purchase Agreement and to
perform its obligations under the terms of this Purchase Agreement and, at the
Closing, will have the requisite corporate power to sell the Stock. All
corporate action on the part of the Company, its officers, directors and
stockholders necessary for the authorization, execution and delivery of this
Purchase Agreement has been taken. This Purchase Agreement has been duly
authorized, executed and delivered by the Company and, upon due execution and
delivery by the Investor, this Purchase Agreement will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by equitable
principles.
3.3 CAPITALIZATION. The authorized capital stock of the Company consists
of 200,000,000 shares of Common Stock, par value $.001 per share, and 7,500,000
shares of Preferred Stock, par value $.001 per share, of which 2,000,000 shares
have been designated Series A Junior Participating Preferred Stock ("Series A
Preferred"). As of September 17, 2002, there were 80,105,282 shares of Common
Stock issued and outstanding and no shares of Series A Preferred issued and
outstanding.
3.4 VALID ISSUANCE OF STOCK. The Stock, upon the Closing, when issued,
sold and delivered in accordance with the terms hereof for the consideration set
forth herein, will be duly and validly authorized and issued, fully paid and
nonassessable and, based in part upon the representations of the Investor in
this Purchase Agreement, will be issued in compliance with all applicable
federal and state securities laws.
3.5 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the part of the
Company is required in connection with the consummation of the transactions
contemplated by this Purchase Agreement, except for notices required or
permitted to be filed with certain state and federal securities commissions
after the Closing, which notices will be filed on a timely basis.
3.6 NO CONFLICT. The execution, delivery and performance by the Company
of this Purchase Agreement do not violate any provision of the Company's
Certificate of Incorporation or Bylaws, each as amended as of the date hereof
(copies of which have been filed with the Company's SEC Filings), any provision
of any order, writ, judgment, injunction, decree, determination or award to
which the Company is a party or by which it is bound, or, to the
2.
Company's knowledge, any law, rule or regulation currently in effect having
applicability to the Company.
3.7 SEC FILINGS. The Company has timely filed with the Securities and
Exchange Commission (the "SEC") all reports, registration statements and other
documents required to be filed by it since January 1, 2002 (the "SEC Filings")
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"), and the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder (the
"Exchange Act"). The SEC Filings were prepared in accordance and, as of the date
on which each such SEC Filing was filed with the SEC, complied in all material
respects with the applicable requirements of the Securities Act or the Exchange
Act, as the case may be. None of such SEC Filings, including, without
limitation, any financial statements, exhibits or schedules included therein or
documents incorporated therein by reference, at the time filed, declared
effective or mailed, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Except to the extent
information contained in any of the SEC Filings has been revised, corrected,
superseded or updated by a later filing of any such form, report or document,
none of the SEC Filings currently contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
3.8 NO MATERIAL CHANGE. Since the date on which the Company last filed
an SEC Filing and except as described in or specifically contemplated by this
Purchase Agreement, the Related Agreements and the documents referenced therein,
(i) the Company has not incurred any material liabilities or obligations or
entered into any material verbal or written agreement or other transaction which
is not in the ordinary course of business other than as set forth in a letter
from the Company to the Investor of even date herewith; (ii) the Company has not
sustained any material loss or interference with its businesses or properties
from fire, flood, windstorm, accident or other calamity not covered by
insurance; (iii) the Company has not paid or declared any dividends or other
distributions with respect to its capital stock and the Company is not in
default in the payment of principal or interest on any material outstanding debt
obligations; (iv) there has not been any change in the capital stock of the
Company other than the sale of the Stock hereunder, the other securities
issuable pursuant to the Related Agreements and shares or options issued
pursuant to employee equity incentive plans or purchase plans approved by the
Company's Board of Directors, or indebtedness material to the Company (other
than in the ordinary course of business); and (v) any other event or change that
would have a Material Adverse Effect.
3.9 FINANCIAL STATEMENTS. The financial statements of the Company
included in its SEC Filings correctly and fairly present the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods shown and covered thereby, in accordance with GAAP
consistently applied, subject, in the case of interim financial statements, to
normal year-end audit adjustments, and there has been no material adverse change
in the Company's business, financial condition or operations since the date of
the most recent such financial statements.
3.
3.10 LITIGATION. Except and to the extent disclosed in the Company's SEC
Filings, there is no action, litigation or proceeding pending or threatened
against or involving the Company in any court or before or by any agency or
regulatory body which could result in a judgment or liability against the
Company or which could adversely affect any material asset of the Company, or
the income of the Company or right of the Company to carry on its businesses as
now conducted or as intended to be conducted.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor hereby makes the following representations and warranties to
the Company as of the Effective Date:
4.1 AUTHORIZATION; DUE EXECUTION. The Investor has the requisite
corporate power and authority to enter into this Purchase Agreement and to
perform its obligations under the terms of this Purchase Agreement and, at the
Closing, will have the requisite corporate power to purchase the Stock. All
corporate action on the part of the Investor, its officers, directors and
stockholders necessary for the authorization, execution and delivery of this
Purchase Agreement have been taken. This Purchase Agreement has been duly
authorized, executed and delivered by the Investor, and, upon due execution and
delivery by the Company, this Purchase Agreement will be a valid and binding
agreement of the Investor, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by equitable
principles.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Purchase Agreement is made
with the Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Purchase Agreement such
Investor confirms, that the Stock to be purchased by such Investor will be
acquired for investment for such Investor's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this Purchase
Agreement, the Investor further represents that such Investor does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Stock.
4.3 DISCLOSURE OF INFORMATION. The Investor has received all the
information that it has requested and that it considers necessary or appropriate
for deciding whether to enter into this Purchase Agreement and to purchase the
Stock. The Investor further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Stock.
4.4 INVESTMENT EXPERIENCE. The Investor is an investor in securities of
companies in the development stage and 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 or business matters that it is capable of evaluating the
merits and risks of the investment in the Stock. The Investor also represents it
has not been organized solely for the purpose of acquiring the Stock.
4.
4.5 ACCREDITED INVESTOR. The Investor is an "accredited investor" as
such term is defined in Rule 501 of the General Rules and Regulations
prescribed by the SEC pursuant to the Securities Act.
4.6 RESTRICTED SECURITIES. The Investor understands that (a) the Stock
has not been registered under the Securities Act by reason of a specific
exemption therefrom, that such securities must be held by it indefinitely and
that the Investor must, therefore, bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration; (b) the Stock is subject to
the provisions of the Registration Rights Agreement of even date herewith; and
(c) each certificate representing the Stock will be endorsed with the following
legends:
(i) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS
NOT REQUIRED;
(ii) Any legend required to be placed thereon pursuant to
the Registration Rights Agreement;
(iii) Any legend required to be placed thereon by the
Company's Bylaws or under applicable state securities laws; and
(d) the Company will instruct any transfer agent not to register the transfer of
the Stock (or any portion thereof) unless the conditions specified in the
foregoing legends are satisfied, until such time as a transfer is made, pursuant
to the terms of this Purchase Agreement, and in compliance with Rule 144 or
pursuant to a registration statement or, if the opinion of counsel referred to
above is to the further effect that such legend is not required in order to
establish compliance with any provisions of the Securities Act or this Purchase
Agreement.
5. CONDITIONS OF THE INVESTOR'S OBLIGATIONS.
The obligations of the Investor to purchase the Stock at the Closing are
subject to the fulfillment on or before the Closing of each of the following
conditions, any of which may be waived by the Investor:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Section 3 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of said date.
5.2 PERFORMANCE. The Company shall have performed and complied with all
agreements, obligations and conditions in this Purchase Agreement, if any, that
are required to be performed or complied with by it on or before the Closing.
5.
5.3 COMPLIANCE CERTIFICATE. The Chief Executive Officer or a Vice
President of the Company shall deliver to the Investor at the Closing a
certificate certifying that the conditions specified in Sections 5.1 and 5.2
have been fulfilled.
5.4 OPINION OF COUNSEL. The Investor shall have received an opinion of
Xxxxxx Godward LLP, outside counsel for the Company, in form and substance
satisfactory to Investor.
5.5 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor, and it shall have received all such counterpart original and certified
or other copies of such documents as it may reasonably request.
5.6 LISTING. The Company shall have properly filed a Notification Form
for Listing of Additional Shares with respect to the Stock and shall use
diligent efforts to have such shares of Common Stock approved for listing on the
Nasdaq National Market promptly following the Closing.
5.7 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the
transactions contemplated by this Purchase Agreement or under the Collaboration
Agreement shall have been issued by any court of competent jurisdiction and
remain in effect, and there shall not be any Legal Requirement (as defined
below) enacted or deemed applicable to the transactions contemplated by this
Purchase Agreement or under the Collaboration Agreement that makes consummation
of the transactions contemplated by this Purchase Agreement or under the
Collaboration Agreement illegal.
5.8 NO LEGAL PROCEEDINGS. No Person (as defined below) shall have
commenced or threatened to commence any Legal Proceeding (as defined below)
challenging or seeking the recovery of a material amount of Damages (as defined
below) in connection with the transactions contemplated by this Purchase
Agreement or under the Collaboration Agreement.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS.
The obligations of the Company to the Investor under this Purchase
Agreement are subject to the fulfillment on or before the Closing of each of the
following conditions by such Investor, any of which may be waived by the
Company:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Investor contained in Section 4 hereof shall be true and correct in all
material respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of said date.
6.2 PERFORMANCE. The Investor shall have performed and complied with all
agreements, obligations and conditions in this Purchase Agreement, if any, that
are required to be performed or complied with by it on or before the Closing.
6.3 COMPLIANCE CERTIFICATE. The President or other duly authorized
officer of the Investor shall deliver to the Company at the Closing a
certificate certifying that the conditions specified in Sections 6.1 and 6.2
have been fulfilled.
6.
6.4 PAYMENT OF PURCHASE PRICE. The Investor shall have tendered
delivery of the purchase price for the Stock specified in Section 1 at the
Closing.
6.5 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Company, and it shall have received all such counterpart original and certified
or other copies of such documents as it may reasonably request.
6.6 LISTING. The Company shall have properly filed a Notification Form
for Listing of Additional Shares with respect to the Stock and shall use
diligent efforts to have such shares of Common Stock approved for listing on the
Nasdaq National Market promptly following the Closing.
6.7 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the
transactions contemplated by this Purchase Agreement or under the Collaboration
Agreement shall have been issued by any court of competent jurisdiction and
remain in effect, and there shall not be any Legal Requirement (as defined
below) enacted or deemed applicable to the transactions contemplated by this
Purchase Agreement or under the Collaboration Agreement that makes consummation
of the transactions contemplated by this Purchase Agreement or under the
Collaboration Agreement illegal.
6.8 NO LEGAL PROCEEDINGS. No Person (as defined below) shall have
commenced or threatened to commence any Legal Proceeding (as defined below)
challenging or seeking the recovery of a material amount of Damages (as defined
below) in connection with the transactions contemplated by this Purchase
Agreement or under the Collaboration Agreement.
7. AGREEMENT NOT TO SELL.
7.1 AGREEMENT NOT TO SELL. The Investor hereby agrees that, from the
Effective Date until the earlier of (i) such time as the parties have received
the final report of the results of all Amigo Trials (as defined in the
Collaboration Agreement), or (ii) March 31, 2004, the Investor shall not,
without the prior written consent of the Company, directly or indirectly, sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of any securities of the
Company held by it at any time during such period. In order to enforce the
provisions of this Section 7.1, the Company may impose stop-transfer
instructions with respect to the securities held by the Investor that are
subject to the foregoing restriction until the end of such period.
8. DEFINITIONS.
Capitalized terms not defined in this Purchase Agreement shall have the
meanings given to them in the Collaboration Agreement. For purposes of this
Purchase Agreement, the following terms shall have the meanings given to them
below:
8.1 AFFILIATE AND ASSOCIATE. "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act, as in effect on the Effective Date;
provided, however, that the limited partners of
7.
a limited partnership shall not be deemed to be Associates of such limited
partnership solely by virtue of their limited partnership interests.
8.2 DAMAGES. "Damages" shall include any loss, damage, injury, decline
in value, lost opportunity, liability, claim, demand, settlement, judgment,
award, fine, penalty, tax, fee (including reasonable attorneys' fees), charge,
cost (including costs of investigation) or expense of any nature.
8.3 LEGAL PROCEEDING. "Legal Proceeding" shall mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental Authority or any
arbitrator or arbitration panel.
8.4 LEGAL REQUIREMENT. "Legal Requirement" shall mean any federal,
state, local, municipal, foreign or other law, statute, constitution, principle
of common law, resolution, ordinance, code, edict, decree, rule, regulation,
ruling or requirement issued, enacted, adopted, promulgated, implemented or
otherwise put into effect by or under the authority of any Governmental
Authority.
8.5 MATERIAL ADVERSE EFFECT. "Material Adverse Effect" shall mean a
material adverse effect upon (i) the business, operations, condition (financial
or otherwise), performance or properties of the Company or any of its
Subsidiaries, (ii) the Company's ability to perform its obligations under any of
the Related Agreements, or (iii) the validity or enforceability of, or the
Investor's rights and remedies under, this Purchase Agreement or any of the
other Related Agreements.
9. MISCELLANEOUS.
9.1 GOVERNING LAW. This Stock Purchase Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
9.2 COUNTERPARTS. The Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
9.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
9.4 ENTIRE AGREEMENT. This Purchase Agreement, the exhibits and
schedules hereto, and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
8.
9.5 SEVERABILITY. In case any provision of the Purchase Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
[THE SIGNATURE PAGE FOLLOWS.]
9.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
AMYLIN PHARMACEUTICALS, INC.
/s/ XXXXXX X. XXXX, XX.
By:___________________________________
Xxxxxx X. Xxxx, Xx.
Name:_________________________________
Chairman and Chief Executive
Officer
Title:________________________________
XXX XXXXX AND COMPANY
/s/ AUGUST X. XXXXXXXX
By:___________________________________
August X. Xxxxxxxx
Name:_________________________________
Executive Vice President
Science/Technology
Title:________________________________
