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Exhibit (c)(2)
AGREEMENT
PURCHASE AGREEMENT (the "Agreement"), dated as of August 5,
1999, between RGC International Investors, LDC. ("Seller) and Purdue Acquisition
Corporation ("Purchaser").
WHEREAS, Seller is the owner of 1,159.2 shares (the "Shares")
of Series E Convertible Preferred Stock (the "Series E Preferred") of CoCensys,
Inc., a Delaware corporation ("CoCensys");
WHEREAS, Seller is the owner of certain stock purchase
warrants (the "Warrants") to purchase shares of common stock of CoCensys (the
"Common Stock"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, the Shares and the Warrants (collectively, the
"Purchased Interests"), subject to the terms and conditions set forth below.
NOW, THEREFORE, Seller and Purchaser hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions set
forth herein, and in reliance on the representations, warranties and
agreements set forth herein, Seller hereby agrees to sell to Purchaser
and Purchaser hereby agrees to purchase from Seller all of the right,
title and interest of Seller in and to the Purchased Interests, for an
aggregate sum of $2,200,000 in cash (the "Purchase Price"). In the
event the amount of cash paid by Purchaser for all of the equity
interest in CoCensys exceeds $8,451,000, the Purchase Price shall be
increased by a dollar amount in cash equal to the amount of such excess
multiplied by 0.26.
2. Closing. The consummation of the purchase and sale of the
Purchased Interests (the "Closing") shall take place immediately
following satisfaction of all conditions to close set forth below, or
such other date as Purchaser and Seller shall agree (the "Closing
Date"). At the Closing, Seller will deliver to Purchaser certificates
for the Purchased Interests, with the endorsements on the reverse
thereof, or an assignment separate from the certificates, duly
completed and executed, and Purchaser shall pay the Purchase Price by
wire transfer pursuant to Seller's instructions.
3. Representations and Warranties of Seller. Seller hereby
represents and warrants to Purchaser that (a) Seller has the requisite
legal power to enter into this Agreement and perform its obligations
under the terms of this Agreement; (b) Seller is the owner, free and
clear of any liens, pledges, encumbrances, options, restrictions,
charges, voting trusts, agreements or claims (collectively, "Liens"),
of the Purchased Interests (other than a general brokerage account
pledge, which automatically will be removed upon transfer of the
Purchased Interests from Seller's brokerage account) and has the power
to transfer its right title and interest
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in the Purchased Interests to Purchaser; and (c) upon Closing,
Purchaser will acquire good and valid title, free and clear of any
Liens of, against or relating to Seller, to the Purchased Interests.
All requisite legal action on the part of Seller necessary for the
authorization, execution and delivery of this Agreement, the
performance of all Seller's obligations hereunder and for the sale and
delivery of the Purchased Interests has been taken or will be taken
prior to the Closing. This Agreement, when executed and delivered,
shall constitute a valid and legally binding obligation of Seller in
accordance with its terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors.
4. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller that Purchaser has the
requisite legal power to enter into this Agreement and to purchase the
Purchased Interests and perform its obligations under the terms of this
Agreement. All requisite legal action on the part of Purchaser
necessary for the authorization, execution and delivery of this
Agreement, the performance of all Purchaser's obligations hereunder and
for the purchase of the Purchased Interests and payment of the Purchase
Price has been taken or will be taken prior to the Closing. This
Agreement, when executed and delivered, shall constitute a valid and
legally binding obligation of Purchaser in accordance with its terms,
subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors.
5. Conditions to Closing. The respective obligation of each
party to effect the purchase and sale of the Purchased Interests is
subject to the fulfillment, at or prior to the Closing, of all of the
following conditions, any of which may be waived by either party:
(a) Representations and Warranties True; Performance
of Obligations. The representations and warranties made by
each party shall be true and correct in all material respects
on the Closing Date with the same force and effect as if they
had been made on and as of said date; and each party shall
have performed all obligations and conditions herein required
to be performed by it on or prior to the Closing.
(b) Consents and Approvals; No Violations. All
authorizations, approvals or permits, if any, of any
governmental authority or regulatory body of the United States
or of any state that are required in connection with the
lawful sale and transfer of the Purchased Interests pursuant
to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing. No stop order or other
order enjoining the sale of the Purchased Interests shall have
been issued and no proceedings for such purpose shall be
pending or, to the knowledge of either party, threatened by
the SEC or any commissioner of corporations or similar officer
of any other state having jurisdiction over this transaction.
At the time of the Closing, the sale of the Purchased
Interests shall be legally permitted by all laws and
regulations to which Purchaser and Seller are subject.
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(c) Close on Tender. Purchaser shall have accepted
for payment and paid for shares of Common Stock pursuant to
the cash tender offer for all of the outstanding shares of
Common Stock of CoCensys contemplated by the Agreement and
Plan of Merger, dated as of August 5, 1999, among Purdue
Pharma L.P., Purchaser and CoCensys (the "Merger Agreement").
6. Termination. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate simultaneously with the
termination of the Merger Agreement, unless otherwise agreed by the
parties.
7. Further Assurances. Each party agrees to take all steps and
to execute all documents necessary to effectuate the transaction
contemplated hereby.
8. Consent to Jurisdiction. All legal actions or proceedings
brought against Purchaser or Seller with respect to this Agreement may
be brought in any state or federal court of competent jurisdiction in
the State of New York, and by execution and delivery of this Agreement,
each of Purchaser and Seller accepts for itself and in connection with
its properties, the jurisdiction of the aforesaid courts. Each of
Purchaser and Seller hereby expressly and irrevocably waives any claim
or defense in any such action or proceeding based on any alleged lack
of personal jurisdiction, improper venue or forum non conveniens or any
similar basis. Each of Purchaser and Seller further irrevocably
consents to the service of any complaint, summons, notice or other
process relating to any legal action or proceeding by delivery thereof
to it by hand or by mail to its respective address set forth below its
signature hereto. Nothing herein shall affect the right of Purchaser or
Seller to bring proceedings against the other party in the courts of
any other jurisdiction or to serve process in any manner permitted by
law.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of New York, without
regard to principles of conflicts of law.
10. Notices. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given upon personal
delivery or three (3) days following mailing by registered or certified
mail, postage and fees prepaid, addressed to the parties at the address
set forth in the signature block below.
11. Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by
either party without the prior written consent of the other party,
except that (i) Purchaser may assign, in its sole discretion, any or
all of its rights, interests and obligations hereunder to any
subsidiary of Parent that may be substituted for Purchaser as
contemplated by Section 10.08 of the Merger Agreement. Subject to the
preceding sentence, this Agreement shall bind and inure to the benefit
of the successors and assigns of Seller and Purchaser, and be
enforceable by the parties and their respective successors and assigns.
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12. Entire Agreement; Amendment. This Agreement constitutes
the entire agreement between the parties with respect to the sale to
Purchaser or any entity affiliated with Purchaser of the Purchased
Interests, and supersedes and merges all prior agreements or
understandings, whether written or oral. This Agreement may not be
amended, modified or revoked, in whole or in part, except by an
agreement in writing signed by each of the parties hereto.
13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
SELLER:
RGC International Investors, LDC
By: Xxxx Xxxx Capital Management, L.P.,
Investment Manager
By: RGC General Partner Corp.
/s/ Xxxxx Xxxxx
By: ___________________
Xxxxx Xxxxx, Managing Director
0 Xxxx Xxxxx- Xxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
PURCHASER:
Purdue Acquisition Corporation
/s/ Xxxxx X. Xxxxx
By: _________________________
Xxxxx X. Xxxxx
Vice President
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
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