Exhibit 10.65
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement') is dated
and entered into as of May 5,1999 (the "Effective Date"), by and
between CV Therapeutics, Inc., a Delaware corporation
("Company"), and Quintiles Transnational Corp., a North Carolina
corporation ("Purchaser").
Whereas, Company and Innovex Inc., a wholly-owned subsidiary
of Purchaser ("Innovex"), are parties to a Sales and Marketing
Services Agreement (as amended, modified or supplemented from
time to time, the "Services Agreement") dated as of the same date
hereof; and
Whereas, in connection with the Services Agreement,
Purchaser desires to acquire and Company is willing to issue and
sell to Purchaser shares of common stock, $.001 par value, of
Company (the "Common Stock"), subject to the terms and conditions
specified herein;
Now, Therefore, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties, the parties agree as follows:
ARTICLE I
Definitions
1.01 Definitions. For purposes of this Agreement, in addition to
the terms defined elsewhere herein, the following terms shall
have the meanings set forth below:
"Affiliate" shall have the meaning given such term in Rule
12b-2 of the Exchange Act.
"Business Day" shall mean any day other than a Saturday,
Sunday or legal holiday on which banks in New York, New York are
open for the conduct of their banking business.
"Closing" shall have the meaning specified in Section 2.02
herein.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"IPO Documents" shall mean Company's (a) Registration
Statement No. 333-12675 declared effective by the SEC on
November 19, 1996, and (b) Prospectus dated November 19, 1996.
"knowledge" of Company shall mean the knowledge of one or
more of the executive officers of Company.
"Loan Agreement" shall mean the Loan Agreement dated as of
the date hereof between Company and Purchaser, as amended,
modified or supplemented from time to time.
"Loan Documents" shall have the meaning given such term in
the Loan Agreement.
"Per Share Fair Market Price" of the Common Stock on any
date shall mean (a) if the Common Stock is then traded on a
securities exchange or the Nasdaq National Market, the average of
the closing prices of the Common Stock on such exchange or market
over the ten (10) Trading Days ending on such date; (b) if the
Common Stock is then regularly traded over-the-counter, the
average of the sale prices or secondarily the closing bid of the
Common Stock over the ten (10) Trading Days ending on such date;
or (c) if there is no active public market for the Common Stock,
the fair market value thereof shall be determined as of such date
by a nationally recognized investment banking firm chosen in good
faith by Company's board of directors.
"Qualified Transferee" shall have the meaning specified in
Section 7.03(b) herein.
"Registrable Securities" shall mean (i) the Shares, (ii)
shares of Common Stock held by Purchaser and acquired pursuant to
the Loan Agreement, and (iii) any Common Stock issued as a
dividend or other distribution with respect to, or in exchange
for or in replacement of, such above-described securities;
provided however, that "Registrable Securities" shall not include
(a) any securities sold by a person either pursuant to a
registration statement or Rule 144 or (b) any securities referred
to in the preceding clauses (i), (ii) and (iii) which may be sold
under Rule 144 during any ninety (90) day period.
"Registration Expenses" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including,
without limitation, all registration, qualification, and filing
fees, printing expenses, escrow fees, fees and disbursements for
counsel for the Company, blue sky fees and expenses, and expenses
of any regular or special audits incident to or required by any
such registration, but shall not include Selling Expenses.
"Rule 144" shall mean Rule 144 as promulgated by the SEC
under the Securities Act, as such Rule may be amended from time
to time, or any similar successor rule that may be promulgated by
the SEC.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"SEC" shall mean the Securities and Exchange Commission.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the
sale of Registrable Securities and fees and disbursements of
counsel except as otherwise agreed by the parties.
"Shares" shall have the meaning specified in Section 2.01
herein.
"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business
or, if the Common Stock is not listed or admitted to trading on
any national securities exchange, a Business Day.
ARTICLE II
Purchase and Sale of the Shares
2.01 Issuance of the Shares. Subject to the terms and conditions
of this Agreement, at the Closing (as defined below) Company
agrees to issue and sell to Purchaser, and Purchaser agrees to
purchase from Company, at an aggregate purchase price of Five
Million Dollars ($5,000,000), such number of shares (rounded to
the nearest whole share) of Common Stock (the "Shares") equal to
5,000,000 divided by the Per Share Fair Market Price as of the
date which is one Business Day prior to the Effective Date.
2.02 Closing: Delivery of the Shares.
(a) The purchase and sale of the Shares shall take place at a
closing (the "Closing") to be held at the offices of Smith,
Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., 0000
Xxxxx Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 at 10:00 A.M.
(Eastern Time) on the Effective Date, or at such other location,
time and date as may be mutually agreed upon by the parties. The
Closing shall take place contemporaneously with the execution and
delivery of this Agreement by Company and Purchaser.
(b) At the Closing, subject to the terms and conditions
contained in this Agreement, Purchaser shall provide a wire
transfer of immediately available funds to an account of Company
specified to Purchaser, in an amount equal to Five Million
Dollars ($5,000,000), in payment of the full purchase price for
the Shares.
(c) Within five (5) business days after Closing, Company shall
deliver one or more stock certificates evidencing the Shares,
registered in the name of Purchaser and dated as of the date of
the Closing.
ARTICLE III
Conditions to Closing
3.01 Conditions to Purchaser's Obligations. The obligation of
Purchaser to purchase and pay for the Shares at the Closing is
subject to each of the following additional conditions precedent:
(a) Opinion of Counsel. Purchaser shall have received at the
Closing an opinion from Xxxxxx Godward LLP, counsel to Company,
regarding this Agreement and the transactions contemplated
hereby;
(b) Board Resolutions. Purchaser shall have received at the
Closing copies of the resolutions of the Board of Directors of
Company authorizing the execution and delivery of this Agreement
and the performance by Company of all transactions contemplated
hereby, certified by an appropriate officer of Company;
(c) Officer's Certificate. Purchaser shall have received at the
Closing, a certificate, executed by the appropriate officer of
Company and dated as of the date of the Closing, together with
and certifying (A) the names of the officers of Company
authorized to sign this Agreement together with the true
signatures of such officers; (B) a copy of the certificate of
incorporation of Company, as amended and in effect as of the date
of the Closing; (C) a copy of the bylaws of Company, as amended
and in effect as of the date of the Closing; and (D) that the
representations and warranties contained in Article IV hereof are
true and correct as of the date of the Closing; and
(d) Services Agreement. Purchaser shall have received at the
Closing the Services Agreement, duly executed by an authorized
officer of Company and dated as of the date of the Closing.
3.02 Conditions to Company's Obligations. The obligation of
Company to issue and sell the Shares at the Closing is subject to
the following additional conditions precedent:
(a) Board Resolutions. Company shall have received at the
Closing copies of the resolutions of the Board of Directors of
Purchaser authorizing the execution and delivery of this
Agreement and the performance by Purchaser of all transactions
contemplated hereby, certified by an appropriate officer of
Purchaser;
(b) Services Agreement. Company shall have received at the
Closing the Services Agreement, duly executed by an authorized
officer of Purchaser and dated as of the date of the Closing; and
(c) Purchase Price. Purchaser shall have delivered Five Million
Dollars ($5,000,000) in immediately available funds to Company's
specified account in accordance with Section 2.02(b) herein.
ARTICLE IV
Representations and Warranties of Company
Company represents and warrants to Purchaser as follows:
4.01 Corporate Status. Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware, and has all requisite corporate
power and authority to own and use its properties and assets and
to transact the business in which it is currently engaged.
4.02 Corporate Power and Authority. The execution and delivery
by Company of this Agreement, the performance of the terms and
obligations herein, and the issuance, sale and delivery of the
Shares are each within Company's corporate powers, and each has
been duly authorized by all necessary corporate action on the
part of Company. This Agreement, when executed and delivered
hereunder, will constitute the valid and legally binding
obligation of Company enforceable against Company in accordance
with its terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, and (ii) the effect of general principles of
equity, regardless of whether considered in a proceeding in
equity or at law.
4.03 Government Approvals. No authorization, consent, approval
or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due
execution, delivery and performance by Company of this Agreement
or the issuance and sale of the Shares to Purchaser except for:
the filing by Company with the SEC or any state securities
authorities of any notices or filings required in connection with
the exemptions from the registration or qualification
requirements of the Securities Act and/or applicable state
securities law.
4.04 Capitalization. As of March 31, 1999, the authorized
capital stock of Company consists of: (i) 30,000,000 shares of
Common Stock, $.001 par value, of which 11,246,047 shares are
issued and outstanding and of which 59,479 shares are treasury
shares, and (ii) 5,000,000 shares of Preferred Stock, $.001 par
value, of which 300,000 are designated Series A Junior
Participating Preferred, none of which are issued and
outstanding. As of March 31, 1999, an aggregate of 1,721,936
shares of Company's Common Stock were reserved for future
issuance pursuant to stock options granted by Company and
outstanding on March 31, 1999 and an additional 333,139 shares of
Company's Common Stock were reserved and available for the grant
of future stock options under all of Company's stock option or
equity incentive plans. As of the day prior to Closing, the
Shares represent 8.49% of the outstanding Common Stock of the
Company. The Shares, when issued against payment of the
aggregate purchase price set forth in Section 2.01, will be duly
authorized, validly issued, fully paid, non-assessable and free
and clear of all liens and encumbrances. As of the date hereof,
except for the options described in the preceding sentence or
except as described on the Schedule of Exceptions attached
hereto, there are no options, warrants, convertible securities or
other rights to purchase shares of capital stock or other
securities of Company which are authorized, issued or
outstanding, nor is Company obligated in any other manner to
issue shares of its capital stock or other securities, and
Company has no obligation to purchase, redeem or otherwise
acquire any shares of its capital stock or any interest therein
or to pay any dividend or make any other distribution in respect
thereof, except as contemplated by this Agreement, the Services
Agreement, Loan Agreement or Loan Documents. Except as described
in the IPO Documents, the SEC Documents or the Schedule of
Exceptions, and except as otherwise contemplated by this
Agreement the Services Agreement, Loan Agreement or Loan
Documents, (i) no person is entitled to any preemptive right,
catch-up right, right of first refusal or similar right with
respect to the issuance of any capital stock of Company, (ii)
there are no restrictions on the transfer of shares of capital
stock of Company other than those imposed by relevant federal and
state securities laws and (iii) there exists no agreement between
Company's stockholders and to which Company is a party with
respect to the voting or transfer of Company's capital stock or
with respect to any other aspect of Company's affairs.
4.05 Registration Rights. As of the Closing, no person has
demand or other rights to cause Company to file any registration
statement under the Securities Act relating to any securities of
Company or any right to participate in any such registration
statement, except as set forth on the Schedule of Exceptions
attached hereto.
4.06 No Violation. Neither the execution or delivery by Company
of this Agreement, nor the performance of the terms and
obligations herein, will (i) violate Company's charter or bylaws,
(ii) constitute a breach or default under any agreement or
instrument to which Company is a party or by which Company is
bound, which breach or default would have a material adverse
effect on Company, its assets or properties, or (iii) violate any
applicable law, rule or regulation, which violation would have a
material adverse effect on Company, or (iv) violate any order,
writ, injunction, decree or judgment of any court or governmental
authority applicable to or binding upon Company, which violation
would have a material adverse effect on Company.
4.07 Financial Statements: Budget and Projections.
(a) All financial statements contained in the SEC Documents (as
defined in Section 4.09) filed by Company with the SEC, have been
prepared in accordance with generally, accepted accounting
principles ("GAAP") consistently applied throughout the periods
indicated except as may be expressly stated in the notes thereto
and, as to the unaudited financial statements, subject to normal
recurring year-end audit adjustments and the absence of notes
thereto. Each balance sheet fairly presents the financial
condition of Company and its subsidiaries as at the date of such
balance sheet, and each statement of operations, of stockholders'
equity and of cash flows, fairly presents the results of
operations, the stockholders' equity and the cash flows of
Company and its subsidiaries for the periods then ended, all in
accordance with GAAP.
(b) Since the date of Company's most recent filing of financial
statements with the SEC, there has been no material adverse
change in the business, property, assets, operations or financial
condition of Company and its subsidiaries.
(c) Company has furnished Purchaser with a summary of Company's
financial budget and financial projections for its fiscal year ending
December 31, 1999. Such financial budget and financial projections, taken as
a whole, are reasonable.
4.08 Litigation. There is no pending, or to Company's knowledge
overtly threatened, action, suit, proceeding, arbitration, or
investigation before any court, governmental agency,
instrumentality or arbitrator, which, if determined adversely to
Company, could reasonably be expected to materially adversely
affect the business, property, assets, operations or financial
condition of Company and its subsidiaries or which purports to
affect the legality, validity or enforceability of this
Agreement.
4.09 SEC Filings. Company has filed with the SEC on a timely
basis, or received a valid extension of such time of filing, all
forms, reports and documents required to be filed by it under the
Exchange Act since November 19, 1996 (such documents collectively
referred to as the "SEC Documents"). As of their respective
dates, the SEC Documents complied in all material respects with
the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the SEC promulgated thereunder, and
none of the SEC Documents, when filed, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
4.10 Compliance with Statutes, etc. Each of Company and its
subsidiaries is in compliance with all applicable laws, rules,
regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, in respect of the conduct of
its business and the ownership of its property except, where such
failure to be in compliance would not have a material adverse
effect on Company.
4.11 Securities Laws. Assuming the accuracy of the
representations and warranties of Purchaser contained in Article
V hereof, the issuance of the Shares is exempt from the
provisions of the Securities Act. All notices, filings,
registrations, or qualifications under state securities or "blue-
sky" laws which are required in connection with the offer, issue
and delivery of the Shares pursuant to this Agreement, if any,
have been or will be completed by Company on a timely basis.
4.12 Tax Returns and Payments. Each of Company and its
subsidiaries has filed all federal, state, local, foreign and
other tax returns required to be filed by it and has paid all
taxes and other assessments which have become due pursuant to
such tax returns and all other taxes and assessments which have
become due, except for those contested in good faith and for
which adequate reserves have been established. Each of Company
and its subsidiaries has made adequate provisions on its books of
account for all taxes, assessments and governmental charges with
respect to its business, properties and operations for all prior
fiscal years and for the current fiscal year to the date hereof.
No governmental authority has asserted a lien or other claim
against Company or any of its subsidiaries with respect to unpaid
taxes which has not been discharged or resolved, which would have
a material adverse effect on Company.
4.13 Insurance. Company and each of its subsidiaries maintains
insurance on all of its properties with financially sound and
reputable insurance companies against such risks and in such
amounts as are customarily maintained by companies of comparable
size engaged in a similar business.
4.14 No Infringement. To its knowledge, Company owns or
possesses rights to use all patents, patent applications,
trademarks, service marks, trade names, copyrights, trade
secrets, licenses and rights with respect to the foregoing which
are required to conduct its business without any known
infringement of the rights of others. No event has occurred
which, to the knowledge of Company, permits, or after notice or
lapse of time or both would permit, the revocation or termination
of any such rights, and, to the knowledge of Company, neither
Company nor any of its subsidiaries is liable to any person or
entity for infringement under applicable law with respect to such
rights. As of the Effective Date, Company is not pursuing any
action against any third party for the infringement of Company's
patents, patent applications, trademarks, service marks, trade
names, copyrights, trade secrets, or licenses relating to its
business.
ARTICLE V
Representations and Warranties of Purchaser
Purchaser represents and warrants to Company as follows:
5.01 Corporate Status. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of North Carolina, and has all requisite
corporate power and authority to own and use its properties and
assets and to transact the business in which it is currently
engaged.
5.02 Corporate Power and Authorization. The execution and
delivery by Purchaser of this Agreement, the performance of the
terms and obligations therein, and the purchase of the Shares are
each within Purchaser's corporate powers, and each has been duly
authorized by all necessary corporate action on the part of
Purchaser. This Agreement, when executed and delivered
hereunder, will constitute valid and legally binding obligations
of Purchaser enforceable against Purchaser in accordance with
their terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, and (ii) the effect of general principles of
equity, regardless of whether considered in a proceeding in
equity or at law.
5.03 Investment. Purchaser is acquiring the Shares for
Purchaser's own account, not as a nominee or agent for
investment, and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the
meaning of the Securities Act.
5.04 Shares Not Registered. Purchaser understands that the
Shares are not registered under the Securities Act on the ground
that the sale provided for in this Agreement and the issuance of
Shares hereunder is exempt from registration under the Securities
Act pursuant to Section 4(2) thereof, and that Company's reliance
on such exemption is predicated on Purchaser's representations
set forth herein.
5.05 Accredited Investor. Purchaser represents that it is an
"accredited investor" within the meaning of Rule 501 of
Regulation D adopted pursuant to the Securities Act.
5.06 Restricted Shares. Purchaser understands that the Shares
may not be sold, transferred, or otherwise disposed of without
registration under the Securities Act or an exemption therefrom,
and that in the absence of an effective registration statement
covering the Shares or an available exemption from registration
under the Securities Act, the Shares must be
held indefinitely. Purchaser is aware that the Shares may not be sold
pursuant to Rule 144 promulgated under the Securities Act unless all of
the conditions of that Rule are met.
5.07 Legend. To the extent applicable, each certificate or other
document evidencing the Shares, whether upon initial issuance or
transfer thereof, shall be endorsed with the legends
substantially in the form set forth below:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER SUCH ACT, OR UNLESS
COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE, SATISFACTORY TO COMPANY AND ITS COUNSEL, THAT
SUCH REGISTRATION IS NOT REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF
DATED _______________, 1999, A COPY OF WHICH IS ON FILE
AT THE COMPANY'S PRINCIPAL OFFICES AND IS AVAILABLE
UPON REQUEST."
5.08 Investment Information.
(a) Purchaser has been furnished with all the information
necessary to make an informed investment decision. Purchaser has
been given access to such information relating to Company as
Purchaser has requested.
(b) By reason of Purchaser's business or financial experience,
Purchaser has the capacity to make the decision referred to in
subsection (a) above.
ARTICLE VI
Covenants of Company
6.01 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the SEC that may
permit the sale of the Shares to the public without registration,
Company agrees to use its best efforts to:
(a) make and keep public information regarding Company available
(as those terms are understood and defined in Rule 144 under the
Securities Act) at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of Company under the Securities Act and the
Exchange Act at any time; and
(c) so long as Purchaser owns any Shares or securities
convertible into, exchangeable for or exercisable for Common
Stock, furnish to Purchaser forthwith upon written request as to
Company's compliance with the reporting requirements of Rule 144
and of the Securities Act and the Exchange Act, a copy of the
most recent annual or quarterly report of Company.
ARTICLE VII
Covenants of Purchaser
7.01 Restriction on Short Sales. Until the first anniversary of
the expiration or termination of the Services Agreement,
Purchaser shall not engage, and shall ensure that none of its
Affiliates engage, (a) in any Short Sales (as defined in Rule 0x-
0 xx xxx Xxxxxxxx Xxx) of Common Stock or (b) any hedging
transaction in which the other party to such transaction is
reasonably likely to engage in a Short Sale as a direct result of
such transaction.
7.02 Restrictions on Purchase of Common Stock. Until the first
anniversary of the expiration or termination of the Services
Agreement, Purchaser shall not purchase, and shall ensure that
none of its Affiliates purchases, any Common Stock other than the
purchase or acquisition of Shares contemplated by this Agreement
or the Loan Agreement.
7.03 Restriction on Sales of Shares. (a) Until the third
anniversary of the Closing, during any period of ninety (90)
consecutive days, Purchaser shall not sell in excess of 300,000
Shares in the aggregate (as adjusted for stock splits, stock
combinations, stock dividends and similar events).
(b) The restrictions under Section 7.03(a) shall not be
applicable to any transfer of Shares by Purchaser to an Affiliate
or to an investment fund or similar transferee of which Purchaser
or an Affiliate owns or controls at least five percent (5%)
thereof (a "Qualified Transferee"), provided that such Qualified
Transferee shall have agreed in writing to be bound by the terms
of this Agreement.
7.04 Termination of Restrictions. Upon the occurrence of an
Event of Default under Section 7.01(a) or (d) of the Loan
Agreement, all of the provisions of this Article VII shall
terminate and have no further force or effect.
ARTICLE VIII
Registration Rights
8.01 Shelf Registration. At any time after the occurrence of an
Event of Default under the Loan Agreement, or at any time after
the later to occur of three (3) years after the date of this
Agreement and four hundred fifty (450) days after the NDA Filing,
the holders of Registrable Securities who hold and propose to
sell Registrable Securities with an aggregate value of at least
$500,000 shall have the right to require Company to file
registration statements under the
Securities Act, on Form S-3 or another appropriate form, covering
such shares (each a "Shelf Registration") by delivering written notice
thereof to Company;provided, however, Company shall not be obligated to
effect such a registration more than once in any rolling twelve-month
period or (b) after the occurrence of an Event of Default under the Loan
Agreement, more than twice in any rolling twelve-month period.
After delivery of such notice, Company shall prepare and file
with the SEC as promptly as practicable after delivery thereof,
and in any event within thirty (30) days thereafter, a
registration statement covering such shares and Company shall use
its best efforts to cause such Shelf Registration to be declared
effective under the Securities Act within ninety (90) days of the
delivery of such notice, and to keep such Shelf Registration
continuously effective under the Securities Act until such time
as the earlier to occur of (i) the covered securities cease to be
Registrable Securities, (ii) ninety (90) days, or (iii) until the
holders have completed the distribution described in such Shelf
Registration. All Shelf Registrations shall be non-underwritten.
Company shall use its best efforts to be and remain eligible to
use Form S-3 under the Securities Act or any successor or
comparable form.
8.02 Piggy-Back Registration
(a) Company shall notify Purchaser in writing prior to the
initial filing of any registration statement under the Securities
Act for purposes of an underwritten public offering of securities
of Company (including, but not limited to, registration
statements relating to secondary offerings of securities of
Company, but excluding registration statements relating to
employee benefit plans or with respect to corporate
reorganizations or other transactions under Rule 145 of the
Securities Act) and, subject to the conditions of this Section
8.02, Company will afford the holders of Registrable Securities
an opportunity to include in such registration statement all or
part of the Registrable Securities. If such a holder desires to
include in any such registration statement all or any part of
the Registrable Securities, it shall, within 20 days after the
above-described notice from Company, so notify Company in writing
and such notice shall state the intended disposition of the
Registrable Securities by such holder and Company shall, subject
to Section 8.02(b), cause to be registered under the Securities
Act all of the Registrable Securities that such holder has
requested to be registered. If such holder decides not to
include all of the Registrable Securities in any registration
statement thereafter filed by Company, such holder shall
nevertheless continue to have the right to include any remaining
Registrable Securities in any subsequent registration statement
or registration statements as may be filed by Company with
respect to underwritten offerings of its securities, all upon the
terms and conditions set forth herein.
(b) The right of a holder to be included in a registration
pursuant to this Section 8.02 shall be conditioned upon such
holder's participation in such underwriting and the inclusion of
the Registrable Securities in the underwriting to the extent
provided herein. If such holder proposes to distribute the
Registrable Securities through such underwriting, it shall enter
into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by
Company. Notwithstanding any other provision of the Agreement,
if the underwriter determines in good faith that marketing
factors require a limitation of the number of shares to be
underwritten, then Company shall so advise the Purchaser and the
number of shares that may be included in the underwriting shall
be allocated, first, to Company; second, to
the selling stockholders on a pro rata basis based on the total number of
Registrable Securities held by such stockholders. Company shall
not limit the number of Registrable Securities to be included in
a registration statement pursuant to this Section 8.02 in order
to include stockholders with no pre-existing registration rights.
(c) Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 8.02 prior to the
effectiveness of such registration whether or not holders of
Registrable Securities have elected to include securities in such
registration. The Registration Expenses of such withdrawn
registration shall be borne by Company in accordance with Section
8.03 hereof.
8.03 Expenses of Registration. Except as specifically provided
herein, all Registration Expenses incurred in connection with any
registration under this Article VIII and the reasonable fees and
expenses of one counsel representing all selling holders of
Registrable Securities (not to exceed $25,000 in the aggregate)
shall be borne by Company. All Selling Expenses incurred in
connection with any registrations hereunder shall be borne by the
holders of the securities so registered, pro rata on the basis of
the number of shares so registered.
8.04 Obligations of Company. Whenever required to effect the
registration of the Registrable Securities, Company shall at its
expense, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement.
(b) Furnish to each seller of Registrable Securities such number
of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such
other documents as it may reasonably request in order to
facilitate the disposition of securities covered by such
prospectus.
(c) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall
be reasonably requested by sellers of Registrable Securities,
provided that Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such
states or jurisdictions.
(d) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter(s) of
such offering. If a holder of Registrable Securities
participates in such underwriting, such holder shall also enter
into and perform its obligations under such an agreement.
(e) Notify each seller of Registrable Securities covered by such
registration statement, at any time when a prospectus relating
thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing and, at the request of any such
seller, prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as
may be necessary so that such prospectus shall not contain such
an untrue statement or omission.
(f) Furnish, on the date that the Registrable Securities are
delivered to the underwriters for sale, if such securities are
being sold through underwriters, (i) an opinion, dated as of such
date, of the counsel representing Company for the purposes of
such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, addressed to
the underwriters, and (ii) a letter dated as of such date, from
the independent certified public accountants of Company, in form
and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public
offering, addressed to the underwriters.
8.05 Termination of Registration Rights. All registration rights
granted under this Article VIII shall terminate and be of no
further force and effect as to any holder of Registrable
Securities upon the earlier to occur of (a) as to any Registrable
Security, the sixth anniversary of the date of the initial
issuance to Purchaser of such Registrable Security or (b) such
time as all Registrable Securities of a holder may be sold under
Rule 144 during any ninety (90) day period, unless such holder
later becomes an affiliate of Company (as defined under Rule 144)
in which case such holder's registration rights under this
Article VIII shall be revived and reinstated until such holder's
rights otherwise terminate pursuant to this Section 8.05.
8.06 Furnishing Information. It shall be a condition precedent
to the obligations of Company to take any action pursuant to
Sections 8.02 or 8.04 that a seller of Registrable Securities
shall furnish to Company such information regarding itself, the
Registrable Securities held by it and the intended method of
disposition of such securities as shall be required to effect the
registration of its Registrable Securities.
8.07 Indemnification. In the event any Registrable Securities
are included in a registration statement pursuant to this Article
VIII:
(a) To the extent permitted by applicable law, Company will
indemnify and hold harmless each holder of Registrable
Securities, the officers, directors, employees, agents, partners,
and representatives thereof, any participating underwriter (as
defined in the Securities Act) and each person, if any, who
controls such holder or underwriter within the meaning of the
Securities Act or the Exchange Act, from and against any losses,
claims, damages, or liabilities (joint or several) to which they
may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions
or violations (collectively, a "violation") by Company: (i) any
untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by
Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration
statement; and Company will reimburse each such holder, officer,
director, employee, agent, partner, representative, underwriter
or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Section
8.07(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is
effected without the consent of Company, which consent shall not
be unreasonably withheld, nor shall Company be liable in any such
case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a violation which
occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by such holder, officer, director, employee, agent,
partner, representative, underwriter or controlling person.
(b) To the extent permitted by applicable law, each holder of
Registrable Securities will, if Registrable Securities held by
such holder are included in such registration statement,
indemnify and hold harmless Company, each of its directors,
officers, employees, agents, and representatives, and each
person, if any, who controls Company within the meaning of the
Securities Act, any participating underwriter and any other
stockholder selling securities under such registration statement
or any of such other selling stockholder's directors, officers,
employees, agents, partners or representatives, or any person who
controls such selling stockholder, against any losses, claims,
damages or liabilities (joint or several) to which Company or any
such director, officer, employee, agent, partner, representative,
controlling person, underwriter or selling stockholder may
become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out
of or are based upon any violation, in each case to the extent
(and only to the extent) that such violation occurs in reliance
upon and in conformity with written information furnished by such
holder under an instrument duly executed by such holder and
stated to be specifically for use in connection with such
registration; and such holder will reimburse any legal or other
expenses reasonably incurred by Company or any such director,
officer, employee, agent, partner, representative, controlling
person, underwriter or selling stockholder in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity
agreement contained in this Section 8.07(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of such holder, which consent shall not be unreasonably
withheld; provided further, that in no event shall any indemnity
under this Section 8.07 exceed the proceeds from the offering
received by such holder.
(c) Promptly after receipt by an indemnified party under this
Section 8.07 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 8.07, 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 8.07, 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 8.07.
(d) If the indemnification provided for in this Section 8.07 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
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 holder of Registrable
Securities hereunder exceed the proceeds from the offering
received by such holder.
The obligations of Company and Purchaser under this Section
8.07 shall survive completion of any offering of Registrable
Securities 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.
ARTICLE IX
Miscellaneous
9.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by Company
therefrom, shall in any event be effective
unless the same shall be in writing and signed by Purchaser, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
9.02 Notices. All notices and other communications provided for
hereunder shall be in writing, shall specifically refer to this
Agreement, shall be addressed to the receiving party's address
set forth below or to such other address as a party may designate
by notice hereunder, and shall be deemed to have been
sufficiently given for all purposes if (i) mailed by first class
certified or registered-mail, postage prepaid, (ii) sent by
express delivery service, (iii) personally delivered, or (iv)
made by telecopy or facsimile transmission.
If to Company: CV Therapeutics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, General Counsel
Facsimile: 000-000-0000
with a copy to: Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx
Facsimile: 000-000-0000
If to Purchaser: Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000 Xxxxxxxxxx Xxxx.
Xxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxxxx
Facsimile: 000-000-0000
with a copy to: Smith, Anderson, Xxxxxx, Xxxxxxx
Xxxxxxxx & Xxxxxxxx, L.L.P.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: 000-000-0000
9.03 No Waiver: Remedies. No failure on the part of Purchaser to
exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
9.04 Attorneys' Fees. In the event that any dispute among the
parties to this Agreement should result in litigation, the
prevailing party in such dispute shall be entitled to
recover from the losing party all fees, costs and expenses enforcing
any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expense of appeals.
9.05 Binding Effect: Assignment. This Agreement shall be binding
upon and inure to the benefit of Company and Purchaser and their
respective successors and assigns, provided that neither Company
nor Purchaser may assign or transfer any or all of its rights or
obligations under this Agreement without the prior written
consent of the other party; provided, however, that Purchaser may
at any time assign or transfer any or all of its rights or
obligations under this Agreement to a Qualified Transferee.
Notwithstanding any assignment by Purchaser, the provisions of
Sections 7.01 and 7.02 shall continue to be binding upon
Purchaser in accordance with the terms of this Agreement.
9.06 Governing Law; Consent to Jurisdiction . This Agreement
shall be governed by, and construed in accordance with, the laws
of the State of Delaware, without reference to the conflicts or
choice of law principles thereof. Company and Purchaser hereby
irrevocably consent to the exclusive personal jurisdiction of any
state or federal courts located in Delaware, in any action, claim
or other proceeding arising out of any dispute in connection with
this Agreement, any rights or obligations hereunder, or the
performance of such rights and obligations. Purchaser and
Company agree to waive their respective rights to a jury trial
with respect to any action, claim, or other proceeding arising
out of any dispute in connection with this Agreement, any rights
or obligations hereunder, or the performance of such rights and
obligations.
9.07 Severability. To the extent any provision of this Agreement
is prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
9.08 Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with
respect to the provisions hereof and supersedes all prior oral or
written agreements and understandings relating to the provisions
hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
9.09 Further Action. Each party shall, without further
consideration, take such further action and execute and deliver
such further documents as may be reasonably requested by the
other party in order to carry out the provisions and purposes of
this Agreement.
9.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original,
but all of which, when taken together, shall constitute one and
the same instrument.
9.11 Survival. The representations, warranties, covenants and
agreements made herein by Company and Purchaser shall survive the
Closing.
[THE REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES ARE ON FOLLOWING PAGE]
[Signature Page to Stock Purchase Agreement]
In Witness Whereof, Company and Purchaser have caused this
Stock Purchase Agreement to be executed in their names by their
duly authorized officers or representatives effective as of the
date first above written.
CV Therapeutics, Inc.
By: /s/ X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman & CEO
Quintiles Transnational Corp.
By:
Name:
Title:
[Signature Page to Stock Purchase Agreement]
In Witness Whereof, Company and Purchaser have caused this
Stock Purchase Agreement to be executed in their names by their
duly authorized officers or representatives effective as of the
date first above written.
CV Therapeutics, Inc.
By:
Name:
Title:
Quintiles Transnational Corp.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President,
Corporate Development
