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EXHIBIT 4.3
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of the 11th day of August,
2000 by and between Xxxxxxx Pharmaceutical, Inc., a Delaware corporation with
its principal office at 000 Xxxxxxx Xxxx., Xxxxx Xxx Xxxxxxxxx, XX 00000 (the
"Company"), and the several purchasers named in the attached Exhibit A
(individually, a "Purchaser" and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers an
aggregate of up to 1,655,000 shares (the "Shares") of the authorized but
unissued shares of common stock, $.001 par value per share, of the Company (the
"Common Stock"); and
WHEREAS, the Purchasers, severally, wish to purchase the Shares on the
terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "AFFILIATE" of a party means any corporation or other business
entity controlled by, controlling or under common control with such party. For
this purpose "control" shall mean direct or indirect beneficial ownership of
fifty percent (50%) or more of the voting or income interest in such corporation
or other business entity.
(b) "CLOSING DATE" means the date of the Closing.
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
(d) "REGISTRATION RIGHTS AGREEMENT" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(e) "MAJORITY PURCHASERS" shall mean Purchasers which, at any given
time, hold greater than fifty percent (50%) of the voting power of the
outstanding Shares.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
2. PURCHASE AND SALE OF SHARES.
2.1 PURCHASE AND SALE. Subject to and upon the terms and conditions
set forth in this Agreement, the Company agrees to issue and sell to each
Purchaser, and each Purchaser, severally, hereby agrees to purchase from the
Company, at the Closing, the number of shares of Common Stock set forth opposite
the name of such Purchaser under the heading "Number of Shares to be Purchased"
on Exhibit A hereto, at a purchase price of $ 21.625 per
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share. The total purchase price payable by each Purchaser for the number of
shares of Common Stock that such Purchaser is hereby agreeing to purchase is set
forth opposite the name of such Purchaser under the heading "Purchase Price" on
Exhibit A hereto. The aggregate purchase price payable by the Purchasers to the
Company for all of the Shares shall be $35,789,375.
2.2 CLOSING. The closing of the transactions contemplated under
this Agreement (the "Closing") shall take place at the offices of Cooley Godward
LLP, Palo Alto, California, on August 28, 2000 or at such other location, date
and time as may be agreed upon between the Purchasers and the Company. At the
Closing, the Company shall deliver to each Purchaser a single stock certificate,
registered in the name of such Purchaser, representing the number of shares of
Common Stock purchased by such Purchaser, against payment of the purchase price
therefor by wire transfer of immediately available funds to such account or
accounts as the Company shall designate in writing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each of the Purchasers as follows:
3.1 INCORPORATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is qualified to do business in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification, except
where the failure to so qualify would not have a material adverse effect upon
the Company. The Company has all requisite corporate power and authority to
carry on its business as now conducted.
3.2 CAPITALIZATION. The authorized capital stock of the Company
consists of (i) 30,000,000 shares of Common Stock, of which 17,112,832 shares
are outstanding on the date hereof and (ii) 3,000,000 shares of preferred stock,
of which no shares are outstanding on the date hereof. Except as described in
the SEC Documents, there are no existing options, warrants, calls, preemptive
(or similar) rights, subscriptions or other rights, agreements, arrangements or
commitments of any character obligating the Company to issue, transfer or sell,
or cause to be issued, transferred or sold, any shares of the capital stock of
the Company or other equity interests in the Company or any securities
convertible into or exchangeable for such shares of capital stock or other
equity interests, and there are no outstanding contractual obligations of the
Company to repurchase, redeem or otherwise acquire any shares of its capital
stock or other equity interests.
3.3 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated herein
and therein has been taken. When executed and delivered by the Company, each of
this Agreement and the Registration Rights Agreement shall constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally
and by general equitable principles. The Company has all requisite corporate
power to enter into this Agreement and the
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Registration Rights Agreement and to carry out and perform its obligations under
the terms of this Agreement, and the Registration Rights Agreement.
3.4 VALID ISSUANCE OF THE SHARES. The Shares being purchased by the
Purchasers hereunder will, upon issuance pursuant to the terms hereof, be duly
authorized and validly issued, fully paid and nonassessable.
3.5 FINANCIAL STATEMENTS. The Company has furnished to each
Purchaser its audited Statements of Income, Stockholders' Equity and Cash Flows
for the fiscal year ended December 31, 1999, its audited Balance Sheet as of
December 31, 1999, its unaudited Statements of Income, Stockholders' Equity and
Cash Flows for the six month period ending June 30, 2000, and its unaudited
Balance Sheet as of June 30, 2000. All such financial statements are hereinafter
referred to collectively as the "Financial Statements". The Financial Statements
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved, and fairly present,
in all material respects, the financial position of the Company and the results
of its operations as of the date and for the periods indicated thereon, except
that the unaudited financial statements may not be in accordance with generally
accepted accounting principles because of the absence of footnotes normally
contained therein and are subject to normal year-end audit adjustments which,
individually, and in the aggregate, will not be material. Since June 30, 2000,
to the Company's knowledge, there has been no material adverse change (actual or
threatened) in the assets, liabilities (contingent or other), affairs,
operations, prospects or condition (financial or other) of the Company.
3.6 SEC DOCUMENTS. The Company has furnished to each Purchaser, a
true and complete copy of the Company's Annual Report on Form 10-K for the year
ended December 31, 1999, the Company's Quarterly Report on Form 10-Q for the six
months ended June 30, 2000, and any other statement, report, registration
statement (other than registration statements on Form S-8) or definitive proxy
statement filed by the Company with the SEC during the period commencing June
30, 2000 and ending on the date hereof. The Company will, promptly upon the
filing thereof, also furnish to each Purchaser all statements, reports
(including, without limitation, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K), registration statements and definitive proxy statements
filed by the Company with the SEC during the period commencing on the date
hereof and ending on the Closing Date (all such materials required to be
furnished to each Purchaser pursuant to this sentence or pursuant to the next
preceding sentence of this Section 3.6 being called, collectively, the "SEC
Documents"). As of their respective filing dates, the SEC Documents complied or
will comply in all material respects with the requirements of the Exchange Act
or the Securities Act, as applicable, and none of the SEC Documents contained or
will contain any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which they
were made, not misleading, as of their respective filing dates, except to the
extent corrected by a subsequently filed SEC Document.
3.7 CONSENTS. All consents, approvals, orders and authorizations
required on the part of the Company in connection with the execution, delivery
or performance of this
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Agreement and the Registration Rights Agreement and the consummation of the
transactions contemplated herein and therein have been obtained and will be
effective as of the Closing Date.
3.8 NO CONFLICT. The execution and delivery of this Agreement and
the Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or By-laws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, role or regulations, applicable to the Company or its respective
properties or assets.
3.9 BROKERS OR FINDERS. Except for Pacific Growth Equities, Inc.
and Deutsche Banc Xxxx Xxxxx the Company has not dealt with any broker or finder
in connection with the transactions contemplated by this Agreement, and, except
for certain fees and expenses payable by the Company to Pacific Growth Equities,
Inc., the Company has not incurred, and shall not incur, directly or indirectly,
any liability for any brokerage or finders' fees or agents commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
3.10 NASDAQ NATIONAL MARKET. The Common Stock is listed on the
Nasdaq National Market System, and there are no proceedings to revoke or suspend
such listing.
3.11 ABSENCE OF LITIGATION. There is no action, suit or proceeding
or, to the Company's knowledge, any investigation, pending, or to the Company's
knowledge, threatened by or before any governmental body against the Company and
in which an unfavorable outcome, ruling or finding in any said matter, or for
all matters taken as a whole, might have a material adverse effect on the
Company. The foregoing includes, without limitation, any such action, suit,
proceeding or investigation that questions this Agreement or the Registration
Rights Agreement or the right of the Company to execute, deliver and perform
under same.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
severally for itself, and not jointly with the other Purchasers, represents and
warrants to the Company as follows:
4.1 AUTHORIZATION. All action on the part of such Purchaser and, if
applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered,
each of this Agreement and the Registration Rights Agreement will constitute the
legal, valid and binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. Such Purchaser has all requisite
corporate power to enter into each of this Agreement and the Registration Rights
Agreement and to carry out and perform its obligations under the terms of this
Agreement and the Registration Rights Agreement.
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4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. Such Purchaser is acquiring
the Shares being purchased by it hereunder for investment, for its own account,
and not for resale or with a view to distribution thereof in violation of the
Securities Act.
4.3 INVESTOR STATUS; ETC. Such Purchaser certifies and represents
to the Company that at the time such Purchaser acquires any of the Shares, such
Purchaser will be an "Accredited Investor" as defined in Rule 501 of Regulation
D promulgated under the Securities Act and was not organized for the purpose of
acquiring the Shares. Such Purchaser's financial condition is such that it is
able to bear the risk of holding the Shares for an indefinite period of time and
the risk of loss of its entire investment. Such Purchaser has been afforded the
opportunity to ask questions of and receive answers from the management of the
Company concerning this investment and has sufficient knowledge and experience
in investing in companies similar to the Company in terms of the Company's stage
of development so as to be able to evaluate the risks and merits of its
investment in the Company.
4.4 SHARES NOT REGISTERED. Such Purchaser understands that the
Shares have not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue to be held
by such Purchaser unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration. The Purchaser
understands that the exemptions from registration afforded by Rule 144 (the
provisions of which are known to it) promulgated under the Securities Act depend
on the satisfaction of various conditions, and that, if applicable, Rule 144 may
afford the basis for sales only in limited amounts.
4.5 NO CONFLICT. The execution and delivery of this Agreement and
the Registration Rights Agreement by such Purchaser and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default by such Purchaser (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit under (i) any
provision of the organizational documents of such Purchaser or (ii) any
agreement or instrument, permit, franchise, license, judgment, order, statute,
law, ordinance, rule or regulations, applicable to such Purchaser or its
respective properties or assets.
4.6 BROKERS. Such Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 CONSENTS. All consents, approvals, orders and authorizations
required on the part of such Purchaser in connection with the execution,
delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
Closing Date.
5. CONDITIONS PRECEDENT.
5.1 CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CONSUMMATE
THE CLOSING. The obligation of each Purchaser to consummate the Closing and to
purchase and pay for the Shares being purchased by it pursuant to this Agreement
is subject to the satisfaction of the following conditions precedent:
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(a) The representations and warranties contained herein of
the Company shall be true and correct on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date (it being
understood and agreed by each Purchaser that, in the case of any representation
and warranty of the Company contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.1 (a)).
(b) The Registration Rights Agreement shall have been
executed and delivered by the Company.
(c) The Company shall have performed all obligations and
conditions herein required to be performed by the Company on or prior to the
Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by the
Purchasers shall not be prohibited by any law or governmental order or
regulation. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby shall have been duly obtained or made
and shall be in full force and effect.
(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to such Purchaser, and such
Purchaser shall have received copies (executed or certified, as may be
appropriate) of all documents which such Purchaser may have reasonably requested
in connection with such transactions.
5.2 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CONSUMMATE THE
CLOSING. The obligation of the Company to consummate the Closing and to issue
and sell to each of the Purchasers the Shares to be purchased by it at the
Closing is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of
such Purchaser shall be true and correct on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Company that, in the case of any representation and
warranty of each Purchaser contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.2(a)).
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(b) The Registration Rights Agreement shall have been
executed and delivered by each Purchaser.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or observed by the Purchasers on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of any other person with respect to any of the transactions
contemplated hereby shall have been duly obtained or made and shall be in full
force and effect.
(f) Each of the Purchasers shall have executed and delivered
to the Company a Purchaser's Questionnaire, in the form attached hereto as
Exhibit B, pursuant to which each such Purchaser shall provide information
necessary to confirm each such Purchaser's status as an "accredited investor"
(as such term is defined in Rule 501 promulgated under the Securities Act)".
(g) Each of the other Purchasers shall have purchased, in
accordance with this Agreement, the number of shares of Common Stock set forth
opposite its name under the heading "Number of Shares to be Purchased" on
Exhibit A.
(h) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company, and the
Company shall have received counterpart originals, or certified or other copies
of all documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. TRANSFER, LEGENDS.
6.1 SECURITIES LAW TRANSFER RESTRICTIONS. No Purchaser shall sell,
assign, pledge, transfer or otherwise dispose or encumber any of the Shares
being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws and, if requested by the Company, upon delivery by such
Purchaser of an opinion of counsel reasonably satisfactory to the Company to the
effect that the proposed transfer is exempt from registration under the
Securities Act and applicable state securities laws. Any transfer or purported
transfer of the Shares in violation of this Section 6.1 shall be voidable by the
Company. The Company shall not register any transfer of the Shares in violation
of this Section 6.1. The Company may, and may instruct any transfer agent for
the Company, to place
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such stop transfer orders as may be required on the transfer books of the
Company in order to ensure compliance with the provisions of this Section 6.1.
6.2 LEGENDS. Each certificate requesting any of the Shares shall be
endorsed with the legends set forth below, and each Purchaser covenants that,
except to the extent such restrictions are waived by the Company, it shall not
transfer the shares represented by any such certificate without complying with
the restrictions on transfer described in this Agreement and the legends
endorsed on such certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED,
SOLD, ASSIGNED, PLEDGED TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT AND,
IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS
EXEMPT FROM SAID ACT."
7. TERMINATION; LIABILITIES CONSEQUENT THEREON. This Agreement may be
terminated and the transactions contemplated hereunder abandoned at any time
prior to the Closing only as follows:
(a) by the Purchasers, upon notice Company if the conditions set
forth in Section 5.1 shall not have been satisfied on or prior to August 31,
2000; or
(b) by the Company, upon notice to the Purchasers if the conditions
set forth in Section 5.2 shall not have been satisfied on or prior to August 31,
2000; or
(c) at any time by mutual agreement of the Company and the
Purchasers; or
(d) by the Purchasers, if there has been any breach of any
representation or warranty or any material breach of any covenant of the Company
contained herein and the same has not been cured within 15 days after notice
thereof, (it being understood and agreed by each Purchaser that, in the case of
any representation or warranty of the Company contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1 (d) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by the Company); or
(e) by the Company, if there has been any breach of any
representation, warranty or any material breach of any covenant of any Purchaser
contained herein and the same has not been cured within 15 days after notice
thereof (it being understood and agreed by the Company that, in the case of any
representation and warranty of the Purchaser contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1
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(e) only if such representation or warranty was not true and correct in all
material respects at the time such representation or warranty was made by such
Purchaser).
Any termination pursuant to this Section 7 shall be without liability on
the part of any party, unless such termination is the result of a material
breach of this Agreement by a party to this Agreement in which case such
breaching party shall remain liable for such breach notwithstanding any
termination of this Agreement.
8. MISCELLANEOUS PROVISIONS.
8.1 FURTHER ASSURANCES. Each party agrees to cooperate fully with
the other party and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by the other party to better evidence and reflect the transactions
described herein and contemplated hereby, and to carry into effect the intents
and purposes of this Agreement.
8.2 RIGHTS CUMULATIVE. Each and all of the various rights, powers
and remedies of the parties shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have at
law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
8.3 NOTICES.
(a) Any notices, reports or other correspondence
(hereinafter collectively referred to as "correspondence") required or permitted
to be given hereunder shall be sent by postage prepaid first class mail, courier
or telecopy or delivered by hand to the party to whom such correspondence is
required or permitted to be given hereunder. The date of giving any notice shall
be the date of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
Xxxxxxx Pharmaceutical, Inc.
000 Xxxxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx
Xxxxxx Godward LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telecopier: (000) 000-0000
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(c) All correspondence to any Purchaser shall be sent to
such Purchaser at the address set forth in Exhibit A.
(d) Any entity may change the address to which
correspondence to it is to be addressed by notification as provided for herein.
8.4 CAPTIONS. The captions and paragraph headings of this Agreement
are solely for the convenience of reference and shall not affect its
interpretation.
8.5 SEVERABILITY. Should any part or provision of this Agreement be
held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provisions shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties
hereto.
8.6 GOVERNING LAW; INJUNCTIVE RELIEF.
(a) This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of California and without
regard to any conflicts of laws concepts which would apply the substantive law
of some other jurisdiction.
(b) Each of the parties hereto acknowledges and agrees that
damages will not be an adequate remedy for any material breach or violation of
this Agreement if such material breach or violation would cause immediate and
irreparable harm (an "Irreparable Breach"). Accordingly, in the event of a
threatened or ongoing Irreparable Breach, each party hereto shall be entitled to
seek, in any state or federal court in the State of California, equitable relief
of a kind appropriate in light of the nature of the ongoing or threatened
Irreparable Breach, which relief may include, without limitation, specific
performance or injunctive relief; provided, however, that if the party bringing
such action is unsuccessful in obtaining the relief sought, the moving party
shall pay the non-moving party's reasonable costs, including attorney's fees,
incurred in connection with defending such action. Such remedies shall not be
the parties' exclusive remedies, but shall be in addition to all other remedies
provided in this Agreement.
8.7 WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or be construed as, a further or continuing waiver of any such
term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
8.8 EXPENSES. Each party will bear its own costs and expenses in
connection with this Agreement.
8.9 ASSIGNMENT. The rights and obligations of the parties hereto
shall inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of each party. Neither party may assign its
rights or obligations under this Agreement or designate another person (i) to
perform all or part of its obligations under this Agreement or (ii) to have all
or part of its rights and benefits under this Agreement, in each case without
the prior written consent of the other party. In the event of any assignment in
accordance with the terms of this
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Agreement, the assignee shall specifically assume and be bound by the provisions
of the Agreement by executing and agreeing to an assumption agreement reasonably
acceptable to the other party.
8.10 SURVIVAL. The respective representations and warranties given
by the parties hereto, and the other covenants and agreements contained herein,
shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period of two years, without regard to any
investigation made by any party.
8.11 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, negotiations, understandings, representations
and statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the Company and the Majority Purchasers.
The foregoing agreement is hereby executed as of the date first above
written.
COMPANY:
Xxxxxxx Pharmaceutical, Inc.
By:
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IN INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE
HEREWITH SHALL CONSTITUTE THE INITIAL INVESTOR'S SIGNATURE TO THIS STOCK
PURCHASE AGREEMENT.
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EXHIBIT A
PURCHASERS
NUMBER OF SHARES TO BE
PURCHASERS PURCHASED
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Alta Embarcadero BioPharma, LLC ........................................... 10,824
Alta BioPharma Partners, LP. .............................................. 287,173
Xxxxxxx Pharmaceuticals Chase Partners (Alta Bio), LLC .................... 164,003
Marcuard Xxxx & Cie, SA ................................................... 20,000
Narragansett Offshore Ltd. ................................................ 57,000
Narragansett I LP. ........................................................ 43,000
Three Arch Partners III, L.P. ............................................. 219,219
Three Arch Partners III, L.P. ............................................. 11,781
The Timken Living Trust UAD 9/14/99 ....................................... 50,000
Xxxxx / Tisch Investments LLC ............................................. 92,400
Four Partners ............................................................. 231,000
FBB Associates ............................................................ 46,200
Xxxxx Bros. Investments ................................................... 92,400
Veritas SG Investment Trust GmbH .......................................... 80,000
Xxxx Xxxxxxxx XXX ......................................................... 2,200
Xxxxxxx X. Xxxxxxx, Xx. XXX ............................................... 2,100
Presbyterian Homes * Family Services, Inc. ................................ 2,800
International Truck & Engine Corp. - Hourly ............................... 10,500
International Truck & Engine Corp. - Salaried ............................. 15,600
International Truck & Engine Corp.- VEBA .................................. 8,100
The University of Mississippi ............................................. 1,100
The University of Mississippi Medical Center ............................. 1,700
The University of Mississippi Foundation .................................. 8,200
Michigan Botanic Garden Foundation ........................................ 2,300
Meijer Foundation ......................................................... 3,200
Frederik Meijer Charitable Trust .......................................... 3,300
ATP Tour Inc. Player Pension Plan ......................................... 2,000
MJH Foundation ............................................................ 6,800
Commonfund Group .......................................................... 49,000
City of Springfield ....................................................... 3,600
1.
00
Xxxxxxxxxxxxxxx, XX Retirement System ..................................... 2,100
Meijer, Inc. Pension Plan ................................................. 10,300
Bridgeport Hospital Pension ............................................... 1,700
Bridgeport Hospital Foundation ............................................ 000
Xxxxxxxxxxx Xxxxxxx ....................................................... 1,700
Trustees of Boston College ................................................ 4,500
University of Virginia .................................................... 3,800
Xxxxxxx X. Xxxxx XXX ...................................................... 1,400
Xxxx X. Xxxxx XXX ......................................................... 100
Xxxxx X. & Xxxxx X. Xxxxxx ................................................ 4,000
Ned's Island Investment Corp. ............................................. 2,700
Xxxxxx X. & Xxxxxxx X. Xxxxxxxx ........................................... 1,000
Frederik G.H. Meijer Trust ................................................ 900
Xxxx E. S. Meijer Trust ................................................... 400
Xxxxx X. Xxxxxxx .......................................................... 100
Wheaton College ........................................................... 8,200
Tremont Temple Baptist Church General Trust Fund .......................... 10,000
Tremont Temple Xxxxxx Xxxxxx Sunday School Fund ........................... 3,000
The Berkeley Retirement Home .............................................. 3,000
Baillie Lumber Co. Inc. Profit Share Plan ................................. 3,800
Dows - First Calvary Baptist Church ....................................... 2,000
Buzz Xxxxxxx, XXX ......................................................... 1,600
Society for the Preservation of New England Antiquities ................... 3,700
The Evangelical Covenant Church Pension Fund .............................. 4,900
1101 Foundation ........................................................... 3,300
General Board of Church of Nazarene ....................................... 21,000
St. Xxxxxx Health System .................................................. 15,500
Xxxxx X. Xxxxxxxx #2 ...................................................... 6,000
Xxxxxxx X. Xxxxx .......................................................... 700
Xxxxxxx X. Xxxxxxx ........................................................ 1,500
Xxxx Xxxx ................................................................. 1,200
Dr. G. Xxxxxxx Xxxxxxx M.D., P.C., MPPP ................................... 1,000
Republic National Bank INSIGHT Funds ...................................... 1,500
2.
14
EXHIBIT B
INVESTOR QUESTIONNAIRE
INSTRUCTIONS
The purpose of this Questionnaire is to determine whether you meet the
investor suitability standards imposed by Regulation D promulgated under the
Securities Act of 1933, as amended (the "Act"), and generally to assist Xxxxxxx
Pharmaceutical, Inc. (the "Company") in complying with the requirements of the
Act and any applicable state securities laws. The securities being offered have
not been, and will not be, registered under the Act and are being sold in
reliance upon an exemption from the registration requirements of the Act and
exemptions from applicable state securities laws. The information furnished
herein will be relied upon in connection with the offering and sale of
securities in compliance with the aforesaid exemption. Please direct any
questions regarding this Questionnaire to (Quoc Xx Xxxxxx or Xxxx Xxxx) at (650)
843-5000.
All information supplied will be treated in confidence, except that this
Investor Questionnaire may be provided to such parties as deemed appropriate or
necessary to establish the availability of an exemption from registration under
the Act and under state securities laws.
PLEASE COMPLETE, SIGN, AND DATE THIS QUESTIONNAIRE
AND RETURN IT TO THE ATTENTION OF:
XXXX XXXX, ESQ.
COOLEY GODWARD LLP
0 XXXX XXXX XXXXXX
XXXX XXXX, XX 00000
A PREPAID FEDERAL EXPRESS ENVELOPE HAS BEEN ENCLOSED FOR YOUR CONVENIENCE.
PLEASE ANSWER EACH QUESTION. (Please print or type.) If the answer to any
question is "None" or "Not Applicable," please so state.
Name of Investor:
---------------------------------------------------------------
Citizenship:
--------------------------------------------------------------------
Residence Address:
--------------------------------------------------------------
Social Security Number or
-------------------------------------------------------
Tax Identification Number:
-------------------------------------------------------
Occupation or Business:
---------------------------------------------------------
Business Address:
---------------------------------------------------------------
1. Individuals please respond to the following questions by placing an "X"
next to the appropriate answer.
1.
15
(a) Did your individual income without regard to that of your spouse
exceed $200,000 in the last two full calendar years, and do you
reasonably expect such individual income to exceed $200,000 in the
current year? For the purpose of this question, income includes earned
income, as well as other items of ordinary income, such as dividends,
interest, and royalties, but excludes capital gains.
Yes ____ No ____
(b) Did your joint income with your spouse exceed $300,000 in the last two
full calendar years, and do you reasonably expect such joint income to
exceed $300,000 in the current year? For the purpose of this question,
income includes earned income, as well as other items of ordinary
income, such as dividends, interest, and royalties, but excludes
capital gains.
Yes ____ No ____
(c) Does your net worth or joint net worth with that of your spouse exceed
$1,000,000?
Yes ____ No ____
(d) Are you a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934?
Yes ____ No ____
(e) Set forth in the space provided below the state(s), if any, in the
United States in which you maintained your residence during the past
two years and the dates during which you resided in each state:
------------------------------------------------
------------------------------------------------
(f) Are you a director or executive officer of the Company?
Yes ____ No ____
2. Corporations, partnerships, and investors other than individuals, please
answer the following questions:
(a) Under the laws of what jurisdiction were you formed? _________________
(b) Were you formed for the purpose of investing in the securities being
offered?
Yes ____ No ____
(c) Are you a national bank or a banking institution organized under the
laws of any state or any territory of the United States or the
District of Columbia?
Yes ____ No ____
2.
16
(d) Are you a savings and loan association, building and loan association,
cooperative bank, homestead association, or similar institution, which
is supervised and examined by any state or federal authority having
supervision over such institution?
Yes ____ No ____
(e) Are you a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934?
Yes ____ No ____
(f) Are you a company (i) whose primary and predominant business is
underwriting insurance and subject to the supervision by a regulatory
agency under the laws of any state or territory, or (ii)registered as
an investment company under the Investment Company Act of 1940, or
(iii) a Small Business Investment Company licensed by the U.S. Small
Business Administration ("SBIC")?
Yes ____ No ____
(g) Are you a "business development company" within the meaning of the
Investment Company Act of 1940 or the Investment Advisers Act of 1940?
Yes ____ No ____
(h) Are you an employee benefit plan under the Employee Retirement Income
Security Act of 1974 (a "Plan") with assets in excess of $5,000,000?
Yes ____ No ____
If you are such a Plan, but if the Plan's total assets do not exceed
$5,000,000, are investment decisions for the Plan made by a bank,
savings and loan association, insurance company or registered
investment adviser acting as fiduciary? (If yes, please specify the
name of the fiduciary.)
Yes ____ No ____
Name of Fiduciary: ___________________
If you are a self-directed Plan, but if the Plan's total assets do not
exceed $5,000,000, are investment decisions made solely by persons or
entities that can answer yes to one or more of the questions under
paragraphs (b) - (e) of Item 1, or (c) - (k) under this Item 2? (If
yes, please specify the applicable Item and Paragraph.)
Yes ____ No ____
Item and Paragraph: ______________
3.
17
(i) Are you (A)(i) a tax exempt organization which is qualified under
Section 501(c)(3) of the Internal Revenue Code of 1986 as amended, or
(ii) a corporation, or (iii) a Massachusetts or similar business
trust, or (iv) partnership, not formed for the specific purpose of
acquiring the securities offered, and(B) which has assets in excess of
$5,000,000?
Yes ____ No ____
(j) Are you a trust, with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring the securities offered, whose
purchase is directed by a person who has such knowledge and experience
in financial and business matters that he is capable of evaluating the
merits and risks of the prospective investment?
Yes ____ No ____
If yes, please attach a memorandum describing such person's
educational background, professional memberships or licenses, current
employment, principal business and professional activities during the
last five years, and experience as an investor in securities. Include
any additional information evidencing that such person has sufficient
knowledge and experience in financial matters that such person would
be capable of evaluating the merits and risks of investing in the
securities being offered.
(k) Are you an entity in which all of the equity owners are persons who
are either (i) entities described in paragraphs (c) through (j) above;
(ii) individuals whose net worth, or joint net worth with their
spouses, exceeds $1,000,000; (iii)individuals whose income without
regard to that of their spouses exceeded $200,000, or whose joint
income with their spouses exceeded $300,000, in each of the last two
years and who reasonably expect such individual income to exceed
$200,000 or such joint income to exceed $300,000 this year; or (iv)
individuals who are brokers or dealers registered pursuant to Section
15 of the Securities Exchange Act of 19347
Yes ____ No ____
If an equity owner is an entity described in paragraphs (h) or (j)
under this Item 2, please provide the information required by such
paragraph.
(l) Set forth in the space provided below the (i) state(s), if any, in the
United States in which you maintained your principal office during the
past two years and the dates during which you maintained your office
in each state, (ii) the state(s), if any, in which you are
incorporated or otherwise organized, -and (iii) the state(s), if any,
in which you still pay income taxes:
------------------------------------
------------------------------------
------------------------------------
4.
18
The undersigned hereby represents that all the information supplied herein
is true, correct and complete as of the date hereof. The undersigned agrees to
notify Xxxxxx Godward LLP immediately of any material change in the forgoing
answers. In connection with his, her or its purchase of securities, the
undersigned hereby further represents, warrants and certifies as follows:
(a) That the undersigned has adequate means of providing for his, her or
its current needs and personal contingencies, that the undersigned has no need
now, and anticipates no need in the foreseeable future, to sell the securities,
and the undersigned currently has sufficient financial liquidity to afford a
complete loss of my investment in the Company.
(b) That the undersigned's overall commitment to investments which are not
readily marketable is not disproportionate to the undersigned's net worth and my
investment in the securities will not cause such overall commitment to become
excessive.
(c) That all information which the undersigned has provided (or will
provide) concerning the undersigned and its financial position, is correct and
complete as of the date set forth below (or will be correct and complete as of
the date when provided) and, if there should be any material change in such
information prior to the undersigned having made its investment in the Company,
the undersigned will immediately provide such information to the Company.
(d) That the undersigned has received and carefully reviewed descriptive
materials relating to the Company and any other materials relating thereto that
the undersigned has requested.
(e) That the undersigned has had an opportunity to ask questions of and
receive answers from the authorized representatives of the Company, and to
review any relevant documents and records concerning the business of the Company
and the terms and conditions of this investment, and that any such questions
have been answered to the undersigned's full satisfaction.
(f) That no person or entity, other than the Company or its authorized
representatives, has offered the securities to the undersigned.
(g) That the undersigned has such knowledge and experience in financial
and business matters so that the undersigned is capable of evaluating the merits
and risks of an investment in the Company, or the undersigned or the
undersigned's financial and investment advisors together have such knowledge and
experience in financial and business matters that the undersigned is capable of
evaluating the merits and risks of an investment in the Company.
(h) That the securities for which the undersigned is completing this
Investor Certificate will be acquired for the undersigned's own account for
investment and not with a view toward subdivision, resale, or redistribution
thereof in a manner prohibited under the Securities Act of 1933, as amended (the
"Act"), and the undersigned does not presently have any reason to anticipate any
change in my circumstances or other particular occasion or event which
5.
19
would cause the undersigned has to sell such securities. The undersigned has no
contract, undertaking, agreement, understanding, or arrangement with any person
to sell, transfer, or pledge to any person any part or all of the securities
which the undersigned is acquiring, or any interest therein, and have no present
plans to enter into the same.
(i) That it has been called to the undersigned's attention in connection
with an investment in the Company that such investment is speculative in nature
and involves a high degree of risk.
(j) That the undersigned understand that no federal or state agency has
passed upon or made any recommendation or endorsement of an investment in the
securities.
THE UNDERSIGNED UNDERSTANDS AND ACKNOWLEDGES THAT THE UNDERSIGNED'S SIGNATURE TO
THIS INVESTOR QUESTIONNAIRE SHALL CONSTITUTE THE UNDERSIGNED'S SIGNATURE PAGE TO
THE STOCK PURCHASE AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENTS, AND IF
ACCEPTED BY THE COMPANY, WILL CONSTITUTE A LEGALLY BINDING OBLIGATION OF THE
UNDERSIGNED; PROVIDED, HOWEVER, IF THE COMPANY DOES NOT ACCEPT THE FOLLOWING
SIGNATURE PAGE, THE FOLLOWING SIGNATURE PAGE SHALL BE VOID.
6.
20
SIGNATURE PAGE FOR THE INVESTOR
QUESTIONNAIRE, STOCK PURCHASE AGREEMENT
AND REGISTRATION RIGHTS AGREEMENT
The undersigned Purchaser hereby executes the Investor Questionnaire, Stock
Purchase Agreement and the Registration Rights Agreement with Xxxxxxx
Pharmaceutical, Inc. (the "Company" ) and hereby authorizes this signature page
to be attached to a counterpart of such documents executed by a duly authorized
officer of the Company.
NUMBER OF SHARES
TO BE PURCHASED:
---------------------- ----------------------------------------
NAME OF PURCHASER
(PLEASE TYPE OR PRINT)
U.S. TAXPAYER ID NO., IF ANY:
By
-------------------------------------- --------------------------------------
Title:
--------------------------------
Address:
------------------------------
------------------------------
------------------------------
Please set out below your registration requirements. IF SHARES ARE TO BE
REGISTERED IN THE NAME OF MORE THAN ONE ENTITY, PROVIDE THE INFORMATION
REQUESTED BELOW FOR EACH ENTITY. (PLEASE USE MULTIPLE PAGES, ONE FOR EACH
ENTITY.)
NAME IN WHICH SHARES
ARE TO BE REGISTERED:
-----------------------------------------------------------
NUMBER OF SHARES TO
BE PURCHASED:
-------------------------------------------------------------------
ADDRESS OF REGISTERED HOLDER
(IF DIFFERENT FROM ABOVE):
------------------------------------------------------
------------------------------------------------------
NUMBER OF SHARES OF THE COMPANY'S
COMMON STOCK CURRENTLY HELD BY THE ABOVE NAMED ENTITY:
--------------------------
CONTACT NAME AND TELEPHONE
NUMBER REGARDING SETTLEMENT
AND REGISTRATION:
Name
-----------------------------------------------------------------------
Telephone Number
-----------------------------------------------------------
7.
