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EXHIBIT 10.37
CYPRESS BIOSCIENCE, INC.
STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
1. AUTHORIZATION OF SALE OF THE SHARES....................................1
2. AGREEMENT TO SELL AND PURCHASE THE SHARES..............................1
3. DELIVERY OF THE SHARES AT THE CLOSING..................................1
4. REPRESENTATIONS, WARRANTIES AND COVENANTS..............................2
4.1 Organization and Qualification...................................2
4.2 Due Execution, Delivery and Performance of the
Agreements.......................................................2
4.3 Issuance, Sale and Delivery of the Shares........................2
4.4 Additional Information...........................................3
4.5 No Material Change...............................................3
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.............3
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.................4
7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.........4
7.1 Resale S-3 Registration Rights...................................4
7.2 Transfer of Shares After Registration............................5
7.3 Expenses of Registration.........................................5
7.4 Indemnification..................................................6
7.5 Rule 144 Reporting...............................................8
8. BROKER'S FEE...........................................................8
9. NOTICES................................................................8
10. CHANGES................................................................9
11. HEADINGS...............................................................9
12. SEVERABILITY...........................................................9
13. GOVERNING LAW..........................................................9
14. COUNTERPARTS...........................................................9
15. REMEDIES...............................................................9
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made as of October __,
1997 between CYPRESS BIOSCIENCE, INC., a Delaware corporation with its principal
place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000 (the "Company"), and the purchaser whose name and address is set forth on
the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Company and the Purchaser agree as follows:
1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and conditions of
this Agreement, the Company has authorized the sale of up to three million five
hundred thousand (3,500,000) shares of Common Stock of the Company (the
"Shares") at a sales price of $1.50 per Share.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES. At the Closing (as defined in
Section 3), the Company will sell to the Purchaser, and the Purchaser will buy
from the Company, upon the terms and conditions hereinafter set forth, the
number of Shares for the aggregate purchase price set forth below:
AGGREGATE
NUMBER OF SHARES PURCHASE PRICE PURCHASE
PURCHASED PER SHARE PRICE
---------------- -------------- -----------
350,000 $1.50 $525,000.00
3. DELIVERY OF THE SHARES AT THE CLOSING. The completion of the purchase and
sale of the Shares to be issued pursuant to this Agreement (the "Closing") shall
occur upon (i) receipt by the Company of (A) a signed copy of this Agreement,
(B) a completed Stock Certificate and Funds Transfer Questionnaire, the form of
which is attached hereto as Exhibit A, (C) a signed and dated Investor
Qualification Questionnaire, a form of which is attached hereto as Exhibit B,
and (D) the aggregate purchase price for the Shares, or (ii) on such other date
as may be agreed to by the Company and the Purchaser. At the Closing, the
Company shall deliver to the Purchaser or the Purchaser's custodian bank, in
accordance with the Purchaser's delivery instructions, one or more stock
certificates registered in the name of the Purchaser, or in such nominee name(s)
as designated by the Purchaser, representing the number of Shares set forth in
Section 2 above. The name(s) in which the stock certificates are to be issued
are set forth in the Stock Certificate and Funds Transfer Questionnaire attached
hereto as part of Exhibit A. The Company's obligation to complete the purchase
and sale of the Shares and deliver such stock certificate(s) to the Purchaser at
the Closing shall be subject to the following conditions, any one or more of
which may be waived by the Company: (a) subject to delivery of the share
certificates to the Purchaser or Purchaser's custodian bank, receipt by the
Company of immediately available funds, by check or wire transfer, in the full
amount of the purchase price for the Shares being purchased hereunder;
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(b) receipt by the Company of a signed and dated Investor Qualification
Questionnaire attached as Exhibit B hereto; (c) the accuracy of the
representations and warranties made by the Purchaser herein as of the Closing;
and (d) the fulfillment of those undertakings of the Purchaser to be fulfilled
prior to the Closing. The Purchaser's obligation to accept delivery of such
stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the following conditions: (i) the accuracy of the representations and
warranties made by the Company herein as of the Closing; and (ii) the
fulfillment in all material respects of those undertakings of the Company to be
fulfilled prior to the Closing. Upon receipt by the Purchaser's custodian bank
of certificates evidencing the number of Shares being purchased hereunder, the
Purchaser shall cause its custodian bank to remit the full amount of the
aggregate purchase price to the Company in immediately available funds, by check
or wire transfer. The Purchaser's obligations hereunder are expressly not
conditioned on the purchase of any or all of the Shares by any other person or
entity.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Company hereby represents and
warrants to, and covenants with, the Purchaser as follows:
4.1 ORGANIZATION 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 conduct its
business as currently conducted.
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The
Company's execution, delivery and performance of this Agreement (a) has been
duly authorized by all requisite corporate action by the Company, and (b) will
not violate the Certificate of Incorporation or Bylaws of the Company or violate
or result in a breach of or constitute a default under, any provision of any
material indenture, mortgage, agreement, contract or other material instrument
to which the Company or any subsidiary is a party or by which the Company or any
subsidiary or any of their respective properties or assets is bound as of the
date hereof. Upon the execution and delivery, and assuming the valid execution
thereof by the Purchaser, this Agreement will constitute a valid and binding
obligation of the Company, enforceable 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 the indemnification agreements
of the Company in Section 7.5 hereof may be legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES. The authorized capital
stock of the Company consists of sixty million (60,000,000) shares of Common
Stock and fifteen million (15,000,000) shares of Preferred Stock, $0.02 par
value per share. As of September 25, 1997, there were issued and outstanding
34,636,067 shares of the Company's Common Stock, which shares are duly
authorized, validly issued, fully paid and nonassessable. When issued, delivered
to Purchaser or Purchaser's custodian bank and paid for by Purchaser in
accordance with the terms and conditions of this Agreement, the Shares to be
sold hereunder by the Company will be validly issued, fully paid and
nonassessable and will be delivered to Purchaser free and clear of all liens,
pledges, claims, encumbrances, security interests or other restrictions, except
for
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restrictions on transfer imposed to ensure compliance with the Securities Act of
1993, as amended (the "Securities Act").
4.4 ADDITIONAL INFORMATION. The Company represents and warrants that the
information contained in the following documents, which the Company has
furnished to the Purchaser, is true and correct in all material respects as of
their respective final dates:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (without exhibits);
(b) the Company's Quarterly Reports on Form 10-Q for the periods
ended March 31 and June 30, 1997 (the "Form 10-Qs");
(c) the Company's Current Report on Form 8-K dated as of January 17,
1997;
(d) the Company's Proxy Statement dated September 2, 1997 for the
Company's 1997 Annual Meeting of Stockholders;
(e) the Company's Press Releases dated June 30, 1997 and July 28,
1997 (collectively, the "Press Releases"); and
(f) the Company's Private Placement Memorandum dated September 8,
1997 prepared in connection with the issuance of the Shares, as amended by that
certain First Supplement to Private Placement Memorandum dated September 30,
1997 (the "Memorandum").
4.5 NO MATERIAL CHANGE. As of the date hereof, except as may be reflected
in the Form 10-Qs, the Memorandum or the Press Releases, there has been no
material adverse change in the financial condition or results of operations of
the Company since June 30, 1997.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
The Purchaser represents, warrants and covenants with the Company as
follows:
5.1 The Purchaser represents and warrants to, and covenants with, the
Company that: (i) the Purchaser, taking into account the personnel and resources
it can practically bring to bear on the purchase of the Shares contemplated
hereby, 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 has requested, received,
reviewed and considered all information it deems relevant in making an informed
decision to purchase the Shares; (ii) the Purchaser is acquiring the number of
Shares set forth in Section 2 above for its own account for investment only and
with no present intention of distributing any of such Shares or any arrangement
or understanding with any other persons regarding the distribution of such
Shares; (iii) the Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act and the rules and regulations
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promulgated thereunder; (iv) the Purchaser has completed or caused to be
completed the Stock Certificate and Funds Transfer Questionnaire, attached
hereto as Exhibit A and the answers thereto are true and correct to the best
knowledge of the Purchaser as of the date hereof; (v) the Purchaser has, in
connection with its decision to purchase the number of Shares set forth in
Section 2 above, relied solely upon the information delivered to the Purchaser
as described in Section 4.4 above and the representations and warranties of the
Company contained herein; and (vi) the Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act and has completed or caused to be completed the relevant Investor
Qualification Questionnaire attached hereto as Exhibit B.
5.2 The Purchaser further represents and warrants to, and covenants with,
the Company that (i) the Purchaser 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 (ii) upon the execution and delivery of
this Agreement, this Agreement shall constitute a valid and binding obligation
of the Purchaser enforceable 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 the indemnification agreements
of the Purchaser in Section 7.5 hereof may be legally unenforceable.
5.3 Purchaser acknowledges and agrees that the Shares acquired by
Purchaser must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
Purchaser has been advised or is aware of the provisions of Rule 144 promulgated
under the Securities Act, which permits limited resale of securities in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information about
the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being made through an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) and the number of shares being sold during any
three-month period not exceeding specified limitations.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the Purchaser herein and
in the certificates for the Shares delivered pursuant hereto shall survive the
execution of this Agreement, the delivery to the Purchaser of the Shares being
purchased and the payment therefor.
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7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
7.1 RESALE REGISTRATION RIGHTS.
(A) The Company shall within thirty (30) days following receipt by
the Company of a written request by the Purchaser, prepare and file with the
Securities and Exchange Commission (the "Commission") a registration statement
(the "Registration Statement") in order to register the Shares with the
Commission for resale by Purchaser from time to time through underwriters,
agents or otherwise, in negotiated or market transactions or through the
automated quotation system of the Nasdaq or the facilities of any national
securities exchange on which the Company's Common Stock is then traded or in
privately negotiated transactions;
(B) use its best efforts, subject to the receipt of necessary
information from the Purchaser, to cause the Registration Statement to become
effective within sixty (60) days after the Registration Statement is filed by
the Company;
(C) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective for a
period of sixty (60) days after it is declared effective by the Commission or,
if earlier, until Purchaser has sold all of the Shares covered by such
Registration Statement (provided that the Company shall not be deemed to have
used its best efforts to keep the Registration Statement effective if it
voluntarily takes any action that would result in Purchaser not being able to
sell any of its Shares pursuant to the Registration Statement unless (i) such
action is required under applicable law or taken by the Company in good faith
and for valid business reasons, including without limitation the acquisition or
divestiture of assets and (ii) the Company promptly complies with the
requirements of this Section 7.1, if applicable);
(D) furnish to Purchaser with respect to the Shares registered under
the Registration Statement such number of copies of prospectuses and preliminary
prospectuses in conformity with the requirements of the Securities Act, in order
to facilitate the public sale or other disposition of all or any of the Shares
by Purchaser; provided, however, that the obligation of the Company to deliver
copies of prospectuses or preliminary prospectuses to Purchaser shall be subject
to the receipt by the Company of reasonable assurances from Purchaser that
Purchaser will comply with the applicable provisions of the Securities Act and
of such other securities or blue sky laws as may be applicable in connection
with any use of such prospectuses or preliminary prospectuses; and
(E) file documents required of the Company for normal blue sky
clearance in states specified in writing by Purchaser; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented.
7.2 TRANSFER OF SHARES AFTER REGISTRATION. Purchaser agrees that it will
not effect any disposition of the Shares that would constitute a sale within the
meaning of the Securities Act except as contemplated in Section 7.1 and that it
will promptly notify the Company of any
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changes in the information set forth in the Registration Statement regarding
Purchaser or its plan of distribution.
7.3 EXPENSES OF REGISTRATION. All expenses incurred by the Company in
complying with Section 7.1, including without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company and blue sky fees and expenses
(but excluding underwriting and/or selling commissions incurred with respect to
the resale of the Shares) shall be borne by the Company.
7.4 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 7 shall terminate and be of no further force and effect one
(1) year after the date of the Closing.
7.5 INDEMNIFICATION.
(a) For the purposes of this Section 7.5, the following terms shall
have the following meanings:
(i) "Registration Statement" shall include any final
prospectus, exhibit supplement or amendment included in or relating to any
registration statement referred to in this Section 7; and
(ii) "untrue statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) The Company agrees to indemnify and hold harmless each Holder
from and against any losses, claims, damages or liabilities to which such
Purchaser may become subject (under the Securities Act or otherwise), insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement of a
material fact contained in the Registration Statement on the effective date of
such Registration Statement, or arise out of any failure by the Company to
fulfill any undertaking included in the Registration Statement, and the Company
will reimburse such Purchaser for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim; provided, however, that the Company shall not be
liable in any such case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Purchaser specifically for use in
preparation of the Registration Statement, or the failure of such Purchaser to
comply with the covenants and agreements contained in Sections 5.1 and 7.2
hereof respecting the sale of the Shares or any statement or omission in any
prospectus that is corrected in any subsequent prospectus that was delivered to
Purchaser prior to the pertinent sale or sales by Purchaser.
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(c) Purchaser agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Sections 5.1 and 7.2
hereof respecting the sale of the Shares, or any untrue statement of a material
fact contained in the Registration Statement on the effective date of such
Registration Statement if such untrue statement was made in reliance upon and in
conformity with written information furnished by or on behalf of Purchaser
specifically for use in preparation of the Registration Statement, and Purchaser
will reimburse the Company (or such officer, director or controlling person, as
the case may be) for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim. In no event shall the liability of Purchaser hereunder be greater in
amount than the dollar amount of the proceeds received by Purchaser upon the
sale of Shares giving rise to such indemnification obligation.
(d) Promptly after receipt by an indemnified party under this
Section 7.5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 7.5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 7.5, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 7.5.
(e) If the indemnification provided for in this Section 7.5 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged
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untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, that in
no event shall any contribution by a Purchaser hereunder exceed the proceeds
from the offering received by such Purchaser.
(f) The obligations of the Company and Purchasers under this Section
7.5 shall survive completion of any offering of Shares in a Registration
Statement and the termination of this Agreement. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
7.6 RULE 144 REPORTING. With a view to making available to Purchasers the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Shares to the public without registration, the Company agrees to use its
best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Commission Rule 144 or any similar or analogous rule
promulgated under the Securities Act; and
(b) File with the Commission, in a timely manner, all reports and
other documents required of the Company under the Exchange Act.
8. BROKER'S FEE.
(a) Each of the parties hereto hereby represents that, except as
provided in Section 8(b), on the basis of any actions and agreements by it,
there are no brokers or finders entitled to compensation in connection with the
sale of Shares to the Purchaser.
(b) The Company has agreed to pay to certain persons or entities who
have been retained by the Company to assist it with the sale of Shares being
offered hereby a fee in an amount equal to six percent (6%) of the total sales
price of any Shares sold by any such person or entity.
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9. NOTICES. All notices, requests, consents and other communications hereunder
shall be in writing, shall be sent by facsimile or mailed by first class
registered or certified airmail, or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so sent by facsimile or
mailed and shall be delivered as follows:
(a) if to the Company, to:
Cypress Bioscience, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Director of Finance
with a copy so mailed to:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Esq.
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
10. CHANGES. This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
11. HEADINGS. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
12. 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 shall not in any way
be affected or impaired thereby.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware as applied to contracts
entered into and performed entirely in Delaware by Delaware residents.
14. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
15. REMEDIES. In addition to being entitled to exercise all rights and remedies
provided herein or granted by law for any breach by the Company hereunder, the
Purchaser will be entitled
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to specific performance of its rights under this Agreement. In that regard, the
Company acknowledges and agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
10.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
CYPRESS BIOSCIENCE, INC. PURCHASER
SPEAR, LEEDS & XXXXXXX
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx. X. Xxxxxx
Title: Director of Finance Title: Managing Director
Address: 000 Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
11.
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SUMMARY INSTRUCTION SHEET FOR PURCHASER
(TO BE READ IN CONJUNCTION WITH THE ENTIRE
STOCK PURCHASE AGREEMENT WHICH FOLLOWS)
A. Complete the following items on the Purchase Agreement:
1. Page 11 - Signature:
(I) Name of Purchaser (Individual or Institution)
(II) Name of Individual representing Purchaser (if an Institution)
(III) Title of Individual representing Purchaser (if an Institution)
(IV) Signature of Individual Purchaser or Individual representing
Purchaser
2. Exhibit A - Stock Certificate and Funds Transfer Questionnaire:
Provide the information requested by the Stock Certificate and
Funds Transfer Questionnaire.
3. Exhibit B - Investor Qualification Questionnaire:
Two forms of Investor Qualification Questionnaires have been
included as Exhibit B, one to be completed by individual
purchasers and one to be completed by entity purchasers (e.g.,
corporation, trust, partnership). Please complete, sign and
return the appropriate Investor Qualification Questionnaire.
4. Return the properly completed and signed Stock Purchase Agreement
including properly completed Exhibit A and Exhibit B and, if paying
by check, a check for the full purchase price, to:
Cypress Bioscience, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
T: (000) 000-0000
F: (000) 000-0000
PLEASE RETURN THE FOREGOING DOCUMENTS BY FEDEX.
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EXHIBIT A
CYPRESS BIOSCIENCE, INC.
STOCK CERTIFICATE AND FUNDS TRANSFER QUESTIONNAIRE
Pursuant to Section 3 of the Stock Purchase Agreement, please provide us
with the following information:
1. The exact name that your Shares
are to be registered in (this is ------------------------------
the name that will appear on your
stock certificate(s)). You may
use a nominee name if
appropriate:
2. The relationship between the
Purchaser of the Shares and the ------------------------------
Registered Holder listed in
response to item 1 above:
3. The mailing address of the
Registered Holder listed in ------------------------------
response to item 1 above:
4. The Social Security Number or Tax
Identification Number of the ------------------------------
Registered Holder listed in the
response to item 1 above:
5. Whether you will be making Check [ ]
payment for the Shares with a
check or wire transfer (check Wire Transfer [ ]
appropriate box). If you will be
sending a wire transfer, please Name of your bank
provide the name of your bank and -------------
the proposed initiation date of
the wire: ------------------------------
------------------------------
Date of initiation
------------
------------------------------
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EXHIBIT B
CYPRESS BIOSCIENCE, INC.
INVESTOR QUALIFICATION QUESTIONNAIRE
[INDIVIDUALS]
In connection with a proposed offer to the undersigned of securities of
Cypress Bioscience, Inc., a Delaware corporation (the "Company"), the
undersigned makes the following representations on which the Company shall be
entitled to rely:
1. The undersigned makes on the following representations regarding his or
her net worth and/or income, and has checked the applicable representation:
( ) a. The undersigned has a net worth, either individually or upon a
joint basis with the undersigned's spouse, of at least
$1,000,000.
( ) b. The undersigned has had an individual income in excess of
$200,000 for each of the two most recent years, or joint
income with the undersigned's spouse in excess of $300,000 in
each of those years, and has a reasonable expectation of
reaching the same income level in the current year.
( ) c. The undersigned is a director or executive officer of the
Company.
( ) d. The undersigned cannot make any of the representations set
forth above.
In addition, the undersigned represents as follows:
2. My full name and primary business address and phone number are
3. I am a resident of the state of
4. I am acquiring the securities solely for my own account and not
directly or indirectly for the account of any other person whatsoever, for
investment and not with a view to, or for sale in connection with, any
distribution of the securities. I do not have any contract, undertaking or
arrangement with any person to sell, transfer or grant a participation to any
person with respect to the securities.
------------------------------
(Signature)
------------------------------
(Date)
17
EXHIBIT B
CYPRESS BIOSCIENCE, INC.
INVESTOR QUALIFICATION QUESTIONNAIRE
[PARTNERSHIP, TRUST OR OTHER ENTITY]
In connection with a proposed offer to the undersigned of securities of
Cypress Bioscience, Inc., a Delaware corporation (the "Company"), the
undersigned makes the following representations on which the Company shall be
entitled to rely:
1. The undersigned makes one of the following representations regarding
its net worth and certain related matters, and has checked the applicable
representation:
( ) a. The undersigned is a trust with total assets in excess of
$5,000,000, whose purchase is directed by a person with such
knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the
prospective investment.
( ) b. The undersigned represents that it is a bank, insurance
company, investment company registered under the Investment
Company Act of 1940, a business development company, Small
Business Investment Company licensed by the U.S. Small
Business Administration, or a private business development
company.
( ) c. If the undersigned is an employee benefit plan, the
undersigned represents either that all investment decisions
are made by a bank, insurance company, or registered
investment advisor, or that the undersigned has total assets
in excess of $5,000,000.
( ) d. If the undersigned is a corporation, partnership or business
trust, the undersigned represents that it has total assets in
excess of $5,000,000.
( ) e. If the undersigned is not an entity described in paragraphs
"a" through "d", the undersigned represents that each of its
equity owners is either (i) an entity described in paragraphs
"b" through "d"; or (ii) an individual who (A) has an
individual net worth, or a joint net worth with such
individual's spouse, in excess of $1,000,000, or (B) has had
an individual income in excess of $200,000 in each of the two
most recent years and reasonably expects an income in excess
of $200,000 in the current year, or (C) is a director or
executive officer of the Company.
( ) f. The undersigned cannot make any of the representations set
forth in paragraphs "a" through "e" above.
In addition, the undersigned represents as follows:
18
2. Its full name and primary business address and phone number are:
3. Its form, state and date of organization are (i.e., partnership,
corporation or trust, state where organized, date of organization):
4. The entity has sufficient profits and net assets that it does not
contemplate disposing of any investment in the Company to satisfy other
undertakings or indebtedness. It has made other investments in early stage
privately-held companies and the person(s) making the investment decision on its
behalf understand the risks attendant with such investments. The knowledge and
experience in financial and business matters of the person(s) making the
investment decision on its behalf are such that he/she/they are capable of
evaluating the merits and risks of an investment in the Company. It is able to
bear the economic risk of an investment in the Company as well as the
restriction on its ability to sell or transfer the investment for an indefinite
period of time. It has had access to such information concerning the Company and
the securities as it considered necessary to make an informed decision
concerning the proposed investment.
5. It was not formed for the specific purpose of making an investment in
the Company.
6. It is acquiring the securities solely for its own account and not
directly or indirectly for the account of any other person whatsoever, for
investment and not with a view to, or for sale in connection with, any
distribution of the securities. It does not have any contract, undertaking or
arrangement with any person to sell, transfer or grant a participation to any
person with respect to the securities.
Name of Entity:
By:
--------------------------------
(Signature)
-----------------------------------
(Name)
-----------------------------------
(Title)
-----------------------------------
(Date)
19
EXHIBIT C
Attention:
CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
-----------------------------------------------------------------
[fill in official name of individual or institution]
hereby certifies that he/she sold the shares evidenced by the attached
certificate on ________ in accordance with registration statement
number [date]
____________________________________________ and the requirement of
[fill in the number of or otherwise identify registration statement]
delivering a current prospectus has been complied with in connection
with such sale.
Print or Type:
Name (Individual or Institution):
-----------------------------------
Name of Individual representing
Institution
(if applicable)
-----------------------------------
Title of Individual representing
Institution
(if applicable):
-----------------------------------
Signature by:
Individual Purchaser or Individual
representing Institution:
-----------------------------------
