SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
This
Securities Purchase Agreement (this
“Agreement”)
is
made and entered into as of July 15, 2008 by and between Lev
Pharmaceuticals, Inc.,
a
Delaware corporation (the “Company”),
and
ViroPharma
Incorporated,
a
Delaware corporation (the “Purchaser”).
WHEREAS,
the Company, the Purchaser and HAE Acquisition Corp. have entered into that
certain Agreement and Plan of Merger, dated as of the date hereof (the
“Merger
Agreement”),
whereby on the terms and subject to the conditions set forth therein, HAE
Acquisition Corp. will merge with and into the Company and the Company will
become a wholly-owned subsidiary of the Purchaser (the “Merger”);
WHEREAS,
on the terms and subject to the conditions set forth in this Agreement, the
Company desires to issue and sell to the Purchaser, and the Purchaser desires
to
purchase from the Company, securities of the Company as more fully described
in
this Agreement; and
WHEREAS,
the Shares (as defined below) will be sold to the Purchaser pursuant to the
Company’s effective Registration Statement on Form S-3 (Reg. No. 333-143196)
(the “Registration
Statement”).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Merger Agreement. In addition to the terms defined
elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings indicated in this Section 1.1:
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Company, par value $0.01 per share.
“Exchange
Act”
means
the Securities and Exchange Act of 1934, as amended.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Shares”
means
the 9,661,836 shares of Common Stock issued to the Purchaser pursuant to this
Agreement.
“Termination
Date”
means
the date the Merger Agreement is terminated in accordance with its
terms.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
Concurrent with the execution and delivery of this Agreement, on the basis
of
the representations, warranties and agreements herein and subject to the
satisfaction of the conditions set forth in Section 2.2, the Company shall
sell,
and the Purchaser shall purchase, the Shares for an aggregate cash purchase
price of $20,000,000 (the “Purchase Price”). The closing of such issuance and
purchase (the “Closing”) shall take place at 9:00 A.M., New York City time, on
the date hereof (the
“Closing Date”), at
the
offices of Xxxxxx & Xxxxxxxxx, 00 Xxxxxxxx 00xx Xxxxx Xxx Xxxx, XX, or at
such other time and place as the Purchaser and the Company shall mutually
select.
2.2 Deliveries.
At the
Closing,
(a) the
Company shall deliver or cause to be delivered to the Purchaser a copy of
irrevocable instructions to the Company’s transfer agent instructing the
transfer agent to deliver, on an expedited basis, a certificate evidencing
the
Shares, registered in the name of the Purchaser; and
(b) the
Purchaser shall deliver or cause to be delivered to the Company the Purchase
Price by wire transfer in immediately available funds to the account as
specified in writing by the Company; and
(c) the
Company shall deliver to Purchaser (i) a certificate of good standing, dated
a
recent date, with respect to the Company, and (ii) a copy, certified by the
Secretary or an Assistant Secretary of the Company, of resolutions duly adopted
by the Company’s Board of Directors evidencing the taking of all corporate
action necessary to authorize the execution, delivery and performance of this
Agreement and the
consummation of the transactions
contemplated hereby.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
(a) The
representations and warranties of the Company set forth in Article 5 of the
Merger Agreement, including the definitions of all capitalized terms used
therein, are hereby incorporated by reference herein as if set forth in full
in
this Agreement. Any references in such Article 5 or any such definitions (other
than in Section 5.2 thereof) to “this Agreement” or “this Agreement and the
transactions contemplated hereby,” or words of similar import, shall mean this
Agreement and the purchase and sale of the Shares contemplated by this
Agreement.
(b) In
addition to the foregoing, the Company hereby makes the following
representations and warranties to the Purchaser:
(i) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Company. This Agreement has been duly executed by the Company and
constitutes the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms except (A) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally, and (B) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
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(ii) Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other Person
in
connection with the execution, delivery and performance by the Company of this
Agreement, including the sale and issuance of the Shares, other than (A) filings
required pursuant to this Agreement, (B) filings with the Commission (such
as
any prospectus, prospectus supplement and any Current Report on Form 8-K) and
such filings as are required to be made under applicable state securities laws,
and (C) those made or obtained prior to the date hereof.
(iii) Issuance
of the Shares.
The
Shares are duly authorized and, when issued and paid for in accordance with
this
Agreement, will be duly and validly issued, fully paid and nonassessable, free
and clear of all liens imposed by the Company other than restrictions on
transfer provided for in this Agreement.
(iv) Anti-Takeover
Laws.
The
Company has taken all necessary action to exempt the transactions contemplated
by this Agreement from, or if necessary to challenge the validity or
applicability of, any applicable “moratorium,” “fair price,” “business
combination,” “control share,” or other anti-takeover Laws, including Section
203 of the DGCL.
(v) Registration
Statement and Prospectus Supplement.
The
Registration Statement has been declared effective and includes sufficient
shares of Common Stock for the Company to issue and sell the Shares thereunder.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or, to the
Company’s knowledge, threatened by the SEC. The Company will file a prospectus
supplement covering the sale of the Shares to the Purchaser with the SEC within
two (2) business days after the date hereof (the “Prospectus
Supplement”).
At
the time of the filing of the Prospectus Supplement, the Registration Statement
(including the base prospectus, the Prospectus Supplement and the
documents
incorporated by reference therein), and any amendments and supplements thereto,
will comply in all material respects with the applicable provisions of the
Securities Act, will not contain an untrue statement of a material fact and
will
not omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
(vi) Over-the-Counter
(“OTC”) Bulletin Board Requirements.
The
Company’s Common Stock is registered pursuant to Section 12 of the Exchange Act,
and the Company has taken no action designed to, or which, to its knowledge,
is
likely to have the effect of, terminating the registration under the Exchange
Act nor has the Company received any notification that the SEC is contemplating
terminating such registration. The Company has not, in the two (2) years
preceding the date hereof, received notice from the OTC Bulletin Board to the
effect that the Company is not in compliance with the requirements to maintain
eligibility for quotation of the Common Stock thereon. The Company is, and
has
no reason to believe that it will not in the foreseeable future continue to
be,
in compliance with the requirements to maintain eligibility for quotation of
the
Company’s Common Stock thereon.
3.2 Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Company as follows:
(a) Organization;
Authority.
The
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution, delivery and performance by the Purchaser
of the transactions contemplated by this Agreement have been duly authorized
by
all necessary corporate or similar action on the part of the Purchaser. This
Agreement has been duly executed by the Purchaser and constitutes the valid
and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws
of general application affecting enforcement of creditors’ rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
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(b) Filings,
Consents and Approvals.
The
Purchaser is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other Person
in
connection with the execution, delivery and performance by the Purchaser of
this
Agreement, other than (A) filings required pursuant to this Agreement, and
(B)
the filing of a Form 8-K with the Commission and such filings as are required
to
be made under applicable state securities laws.
(c) Access
to Information.
The
Purchaser acknowledges that it has been afforded (i) the opportunity to ask
such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Shares and the merits and risks of investing in the Shares;
(ii)
access to information about the Company and its financial condition, results
of
operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment.
(d) Independent
Investment Decision.
The
Purchaser has independently evaluated the merits of its decision to purchase
the
Shares pursuant to this Agreement, such decision has been independently made
by
the Purchaser and the Purchaser confirms that it has only relied on the advice
of its own business and/or legal counsel in making such decision. Purchaser
has
not relied on the truth, accuracy or completeness of the statements contained
in
any research report concerning the Company that was prepared by an investment
banking firm.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Use
of
Proceeds.
The
Company shall use the net proceeds from the sale of the Shares solely for the
research, development and commercialization of Cinryze, including but not
limited to (i) building inventory for the potential launch of Cinryze for the
treatment of HAE in the United States; (ii) obtaining approval for Cinryze;
(iii) independently commercializing Cinryze for the treatment of HAE in the
United States; (iv) conducting research and development activities of Cinryze
for HAE, including clinical trials, (v) opening and operating plasma centers,
(vi) developing and implementing related marketing plans; and (vii) related
payroll, travel, entertainment, education and other related expenses and
corporate overhead. Notwithstanding anything in this Agreement to the contrary,
this Section 4.1 shall terminate upon the earlier of the termination of the
Merger Agreement or the consummation of the Merger.
4.2 Agreement
to Vote Shares.
(a) The
Purchaser understands and agrees that if it attempts to vote or provide any
other person with the authority to vote any of the Shares other than in
compliance with this Agreement, the Company shall not, and the Purchaser hereby
unconditionally and irrevocably instructs the Company not to, record such vote
unless and until the Purchaser shall have complied with the terms of this
Agreement.
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(b)
From and
after the date hereof, except as otherwise permitted by this Agreement or by
order of a court of competent jurisdiction, the Purchaser will not commit any
act that would restrict its legal power, authority and right to vote all of
the
Shares purchased hereunder or otherwise prevent or disable the Purchaser from
performing any of its obligations under this Agreement. Without limiting the
generality of the foregoing, except for this Agreement, the Purchaser will
not
enter into any voting agreement with any person or entity with respect to any
of
the Shares purchased hereunder, grant any person or entity any proxy (revocable
or irrevocable) or power of attorney with respect to any of such Shares, deposit
any of such Shares in a voting trust or otherwise enter into any agreement
or
arrangement with any person or entity limiting or affecting the Purchaser’s
legal power, authority or right to vote such Shares in favor of the approval
of
the Proposed Transaction (as defined below).
(c) Prior
to
the Termination Date, at every meeting of the stockholders of Company called,
and at every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of the Company, the Purchaser
shall appear at the meeting or otherwise cause the Shares to be present thereat
for purposes of establishing a quorum and, to the extent not voted by the
persons appointed as proxies pursuant to this Agreement, vote the Shares, in
proportion to the vote by the other stockholders of the Company, (i) in favor
of
approval of the Merger, the Merger Agreement and the other transactions
contemplated thereby (collectively, the “Proposed Transaction”), (ii) against
the approval or adoption of any proposal made in opposition to, or in
competition with, the Proposed Transaction, and (iii) against any of the
following (to the extent unrelated to the Proposed Transaction): (A) any merger,
consolidation or business combination involving the Company or any of its
subsidiaries other than the Proposed Transaction; (B) any sale, lease or
transfer of all or substantially all of the assets of the Company or any of
its
subsidiaries; (C) any reorganization, recapitalization, dissolution, liquidation
or winding up of the Company or any of its subsidiaries; or (D) any other action
that is intended, or would reasonably be expected to materially impede,
interfere with, delay, postpone, discourage or adversely affect the consummation
of the Proposed Transaction. The Purchaser shall ensure that any of its
Affiliates to whom it transfers Shares shall vote such Shares in accordance
with
this Section 4.2. Notwithstanding the foregoing, the parties acknowledge and
agree that the provisions of this Section 4.2 shall not be deemed to prohibit
the Purchaser from selling or transferring any interest in any of the Shares
at
any time and shall apply to Shares only if and for so long as such Shares shall
continue to be beneficially owned by the Purchaser or an Affiliate of the
Purchaser (determined in accordance with Rule 13d-3 under the Exchange Act).
4.3 Transfers
of Shares; Compliance with Applicable Securities Laws. The Purchaser
acknowledges that during the period commencing with the execution and delivery
of this Agreement and expiring on the Termination Date, the Purchaser may have
access to material non-public information concerning the Company, and agrees
that during such period any sale or transfer of any of the Shares shall be
in
compliance with all applicable securities laws.
ARTICLE
V.
MISCELLANEOUS
5.1 Survival
of Representations, Warranties, Agreements, Etc. Each of the representations
and
warranties set forth in this Agreement shall survive the Closing but only for
a
period of 12 months following the Closing Date and thereafter shall expire
and
have no further force and effect.
5.2 Fees
and
Expenses. Each party shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement. The Company shall pay all transfer agent fees,
stamp taxes and other taxes and duties levied in connection with the delivery
of
the Shares to the Purchaser.
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5.3 Amendments,
Modifications and Waivers. No amendment, modification or waiver in respect
of
this Agreement shall be effective against any party unless it shall be in
writing and signed by the Company and the Purchaser.
5.4 Entire
Agreement. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among or between any
of
the parties with respect to the subject matter hereof and thereof.
5.5 Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law thereof.
5.6 Consent
to Jurisdiction; Venue. Regardless of any conflict of law or choice of law
principles that might otherwise apply, the parties agree that this Agreement
shall be governed by an construed in all respects in accordance with the laws
of
the State of Delaware. The parties all expressly agree and acknowledge that
the
State of Delaware has a reasonable relationship to the parties and/or this
Agreement. As to any dispute, claim or litigation arising out of or relating
in
any way to this Agreement or the transaction contemplated hereby, the parties
hereto hereby agree and consent to be subject to the exclusive jurisdiction
of
any Delaware state court, or federal court of the United States of America
sitting in Delaware, and any appellate court from any thereof. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by law, (a) any
objection that it may now or hereafter have to laying venue of any suit, action
or proceeding brought in such court, (b) any claim that any suit, action or
proceeding brought in such court has been brought in an inconvenient forum,
and
(c) any defense that it may now or hereafter have based on lack of personal
jurisdiction in such forum.
5.7 WAIVER
OF
JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
5.8 Assignment
and Successors. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided
that
except as otherwise specifically provided herein, neither this Agreement nor
any
of the rights, interests or obligations of the parties hereto may be assigned
by
any of the parties hereto without the prior written consent of the other parties
hereto. Any assignment in violation of the foregoing shall be void and of no
effect.
5.9 No
Third
Party Rights. Nothing in this Agreement, express or implied, is intended to
or
shall confer upon any Person (other than the parties hereto) any right, benefit
or remedy of any nature whatsoever under or by reason of this
Agreement.
5.10 Cooperation.
Each of the Purchaser and the Company agrees to reasonably cooperate with the
other party and to execute and deliver such further documents, certificates,
agreements and instruments and to take such other actions as may be reasonably
requested by such party to evidence or reflect the transactions contemplated
by
this Agreement and to carry out the intent and purpose of this Agreement.
5.11 Severability.
If any term or other provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions
of
this Agreement will remain in full force and effect so long as the economic
or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner
in
order that the terms of this Agreement remain as originally contemplated to
the
fullest extent possible.
6
5.12 Specific
Performance; Injunctive Relief. The parties hereto acknowledge that the parties
shall be irreparably harmed and that there shall be no adequate remedy at law
for a violation of any of the covenants or agreements of the other parties
set
forth in this Agreement. Therefore, each party hereby agrees that, in addition
to any other remedies that may be available to the Purchaser or the Company,
as
applicable upon any such violation, such party shall have the right to enforce
such covenants and agreements by specific performance, injunctive relief or
by
any other means to which they are entitled at law or in equity.
5.13 Notices.
All notices, consents, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be deemed given if (a) delivered
to
the appropriate address by hand or overnight courier (providing proof of
delivery), or (b) sent by facsimile with confirmation of transmission by the
transmitting equipment confirmed with a copy delivered as provided in clause
(a), in each case to the parties at the address or facsimile address (or at
such
other address or facsimile address for a party as shall be specified by like
notice) provided in the Merger Agreement, including to the persons designated
therein to receive copies.
5.14 Counterparts.
This Agreement may be executed in several counterparts, including by facsimile,
each of which shall be deemed an original and all of which shall constitute
one
and the same instrument, and shall become effective when counterparts have
been
signed by each of the parties and delivered to the other parties; it being
understood that all parties need not sign the same counterpart.
5.15 Headings.
The headings contained in this Agreement are for the convenience of reference
only, shall not be deemed to be a part of this Agreement and shall not be
referred to in connection with the construction or interpretation of this
Agreement.
5.16 Legal
Representation. This Agreement was negotiated by the parties with the benefit
of
legal representation and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any party shall
not apply to any construction or interpretation thereof.
(Signature
Pages Follow)
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IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
|
LEV
PHARMACEUTICALS, INC.
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: Chairman | ||
| VIROPHARMA INCORPORATED | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxx X. Xxxxxx |
||
| Title: President and Chief Executive Officer | ||
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