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EXHIBIT 4.3
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement"), dated as of
March 30, 1998, is entered into by and between United Therapeutics
Corporation, a Delaware corporation (the "Company"), and the investor(s)
signing below, ("Investor").
WITNESSETH:
WHEREAS, the Company wishes to issue and sell to Investor, and Investor wishes
to purchase from the Company, the number of shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), set forth opposite the
name of Investor below in accordance with the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained in the Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK
1.1 Purchase of Common Stock. For and in consideration of a purchase
price of US $1.00 per share of common stock delivered to the Company upon the
execution of this Agreement or heretofore deposited with the Company, the
Company hereby issues and sells to Investor, and Investor hereby purchases from
the Company, the number of shares of Common Stock set forth opposite the name
of Investor below.
1.2 Delivery of Certificates. Upon the execution of this Agreement, the
Company shall forthwith deliver to Investor a certificate registered in the
name of such Investor representing the number of shares of Common Stock
purchased by Investor.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representation and Warranties of the Company. The Company represents
and warrants to each Investor that:
(a) Organization, Good Standing and Qualification. 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 and is in good standing under the laws of each
jurisdiction where the ownership of its property or the conduct of
its business so requires.
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(b) Authorization. The execution, delivery and performance of
this Agreement is within the Company's corporate powers and has been
duly authorized by all necessary corporate action of the Company.
(c) Valid Issuance of Common Stock. The shares of Common Stock
issued pursuant to this Agreement have been duly authorized and are
validly issued, fully paid and nonassessable.
(d) Capitalization. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock and 10,000,000 shares
of Preferred Stock. As of the date hereof 17,675,108 shares of
Common Stock are issued and outstanding. As of the date hereof, no
shares of Preferred Stock are issued and outstanding. All of the
outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable. Except as may
be described in the Company's offering memorandum for the offer and
sale of up to 6,000,000 shares of Common Stock, which offering is
expected to close on March 31, 1998 (the "Offering Memorandum"), (i)
no subscription, warrant, option, convertible security or other
right (contingent or otherwise) to purchase or acquire any shares of
capital stock of the Company is authorized or outstanding, (ii) the
Company has no obligation (contingent or otherwise) to issue any
subscription, warrant, option, convertible security or other such
right to distribute to holders of any shares of its capital stock
any evidence of indebtedness or assets of the Company and (iii) the
Company has no obligation (contingent or otherwise) 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 may be provided in this
Agreement, no person or entity is entitled to (i) any preemptive or
similar right with respect to the issuance of any capital stock of
the Company, or (ii) any rights with respect to the registration of
any capital stock of the Company under the Securities Act of 1933,
as amended (the 'Securities Act"). All of the issued and
outstanding shares of Common Stock have been offered, issued and
sold by the Company in compliance with applicable federal and state
securities laws.
(e) Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any governmental authority is required
on the part of the Company in connection with the execution and
delivery of this Agreement, the offer, issuances, sale and delivery
of the Common Stock purchased hereunder or the other transactions
contemplated hereby, except such filings as shall have been made
prior to and shall be effective on and as of the closing of the
transactions contemplated hereby. Based on the representations and
warranties of the Investor contained in Section 2.2 of this
Agreement and based on the representations and warranties of any
other investor purchasing shares of
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Common Stock in the second round financing of the Company contemplated
by the Offering Memorandum contained in Section 2.2 or corresponding
provision of any Common Stock Purchase Agreement executed in connection
therewith, the offer, sale and issuance of the Common Stock to each of
the investors in the second round financing of the Company will be in
compliance with applicable federal and state securities laws.
(f) Litigation. There is no action, suit, proceeding or investigation
pending or, to the best knowledge of the Company, threatened, against
the Company which questions the validity of the second round financing
offering, this Agreement or the right of the Company to enter into it,
or which might result, either individually or in the aggregate, in any
material adverse change in the assets, conditions (financial or
otherwise), or business of the Company.
(g) Compliance. The Company has, in all material respects, complied with
all laws, regulations and orders applicable to its business and has all
material permits and licenses required thereby. The Company is not in
violation of any term or provision of its Certificate of Incorporation
or By-Laws. The Company is not in violation of any material term or
provision of any material indenture, lease, agreement or other
instrument to which the Company is a party or by which it or any of its
properties is bound or any decree, judgment or order applicable to the
Company.
(h) Full Disclosure. The representation and warranties of the Company
contained in this Agreement and those statements made by the Company in
the Offering Memorandum do not contain any untrue statement of a
material fact or any omission of a material fact necessary to make the
respective statements contained here or therein, in light of the
circumstances under which the statements were made, not misleading.
2.2 Representations and Warranties of the Investor. Investor represents
and warrant to the Company that:
(a) Purchase Entirely for Own Account; Investment Experience: Disclosure of
Information. Investor is purchasing the shares of Common Stock for its
own account without a view to any distribution thereof in violation of
the Securities Act of 1933, as amended (the "Securities Act") or any
applicable state securities law, and the Investor is experienced in
evaluation and making investments of this type, and has had access to,
and has received, all information that she or he reasonably has
required to evaluate this investment.
(b) Accredited Investor. Investor is financially able to bear the risks
of the investment and is an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act. Such Investor
understands and
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acknowledges that investment in the Common Stock is speculative and
involves a high degree of risk.
(c) Restricted Securities. Investor acknowledges that the
Company is issuing and selling the shares of Common Stock in
reliance upon the exemption from registration provided in Section
4(2) of the Securities Act and is relying upon Investor's
representation, and agrees that said shares of Common Stock may only
be pledged, offered, sold or transferred if registered under the
Securities Act or pursuant to an exemption from the registration
requirements thereunder. Investor understands that absent
registration of the shares of Common Stock under the Securities Act,
compliance with an applicable exemption under the Securities Act is
required for a sale or other disposition of such shares of Common
Stock. Investor further understands and acknowledges that there is
not now available, and may not be available when he or she wishes to
sell such shares of Common Stock, adequate current public
information with respect to the Company which would permit offers or
sales of the shares of Common Stock pursuant to Rule 144 promulgated
under the Securities Act.
(d) Legends. Investor agrees that the following legend shall be
placed on any certificates evidencing the shares of Common Stock:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. Such shares have
been acquired for investment and may not be pledged, offered,
sold or transferred except in compliance with the registration
requirements of the Securities Act of 1933 or an exemption
therefrom, or upon delivery to the Company if requested, of an
opinion of counsel, in form and substance reasonably
satisfactory unto said corporation, that registration under
such Act is not required."
Investor understands that, so long as such legends may remain on the
certificates representing the shares of Common Stock, the Company may
maintain appropriate "stop transfer" orders with respect to such
shares on its books and records and with its registrar and transfer
agent.
2.3 Registration Rights of Investor
(a) Registration Rights. Whenever the Company proposes to file a
registration statement for a public offering and sale of the Common
Stock of the Company with the Securities and Exchange Commission (a
"Registration Statement"), at any time from and after the date
hereof and from time to time, the Company shall, prior to such
filing, give written notice to the Investor to do so and, upon the
written request of the Investor given within 20 days after the
Company provides such notice, the Company shall use its best efforts
to cause all shares
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of Common Stock which the Company has been requested by the Investor
to register to be registered under the Securities Act. In connection
with any underwritten public offering of Common Stock, if in the
opinion of the managing underwriter the registration of all, or part
of, the shares of Common Stock which the Investor has requested to be
included would materially and adversely affect such public offering,
then the Company shall be required to include in the underwriting
only the number shares of Common Stock which the managing underwriter
believes may be sold without causing such adverse effect. If the
number of shares of Common Stock to be included in the underwriting
in accordance with the foregoing is less than the total number of
shares which the Investor, together with any other investors having
similar registration rights, have requested to be included, then all
such investors (including the Investor) who have requested
registration in such registration shall participate in the
underwriting pro rata based upon their total ownership of shares of
Common Stock of the Company. If any investor would be entitled to
include more shares of Common Stock than such investor requested to
be registered, the excess shall be allocated among other requesting
investors pro rata based upon their total ownership of shares of
Common Stock.
(b) Fee and Expenses. The Company will pay all expenses of all
registrations under this Agreement, including, without limitation, all
registration and filing fees, exchange listing fees, printing
expenses, fees and disbursements of counsel for the Company and fees
and expenses of counsel for the Investor, state blue Sky fees and
expenses, and the expenses of any special audits incident to or
required by any such registration, but excluding underwriting
discounts and selling commissions in connection with the offer and
sale of the shares of Common Stock by the Investor.
(c) Indemnification of Investor. In the event of any registration of any
of the shares of Common Stock under the Securities Act pursuant to
this Agreement, the Company will indemnify and hold harmless the
Investor, and each other person, if any, who controls the Investor
within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act") against any losses,
claims, damages or liabilities, joint or several, to which such
Investor or controlling person may become subject under the Securities
Act, the Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement under which the shares of
Common Stock were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement
under which the shares of Common Stock were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are
based upon the omission or alleged omission to state a material fact
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required to be stated therein or necessary to make statements therein
not misleading; and the Company will reimburse such Investor and each
such controlling person for any legal or other expense reasonably
incurred by such Investor or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company should not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
omission made in such Registration Statement, preliminary prospectus
or final prospectus, or any such amendment or supplement, in reliance
upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such Investor or controlling person
specifically in use in the preparation thereof.
2.4 Rule 144 Requirements. After the earliest of (i) the closing of a
sale of securities by the Company pursuant to a Registration Statement, (ii)
the registration by the Company of a class securities under Section 12 of the
Exchange Act of (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Security Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) furnish to the trustee upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144,
and of the Securities Act and Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents of the Company as such holder may reasonably request to
avail itself of any similar rule or regulation of the SEC allowing it
to sell any shares of Common Stock without registration.
ARTICLE III
MISCELLANEOUS
3.1 Expenses. All legal and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the person incurring such expenses.
3.2 Amendments; Waivers. Any provisions of the Agreement may be amended
or waived between the Company and the Investor if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Investor affected
thereby. No failure
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or delay by any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and
exclusive of any rights or remedies provided by law.
3.3 No Third Party Beneficiaries. This Agreement is made solely for the
benefit of the parties hereto and shall not confer any rights on any other
person.
3.4 Notices. Any notice, request, consent, approval or other
communication which is required or permitted to be given or made by a party to
the other pursuant to any provision of this Agreement shall be given or made in
writing and shall be served personally or sent by prepaid registered mail
addressed to the party as follows:
If to the Company:
United Therapeutics Corporation
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
If to an Investor, at the address provided below for such Investor;
or to such other address as a party may from time to time advise the other
party hereto by notice in writing. Every such notice so given shall be deemed
to be received only upon delivery to the party to be charged with notice.
Notwithstanding the foregoing, notices may be given by fax and shall, if
receipt is confirmed electronically to the sender's equipment, be deemed to
have been received the business day after sending.
3.5 Severability. Should any provision of this Agreement for any reason
be declared invalid or unenforceable, such decision shall not affect the
validity or enforceability of any of the other provisions of this Agreement.
3.6 Headings. The descriptive heading of the several Articles and
Sections of this Agreement are inserted for convenience only, do not constitute
a part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
3.7 Applicable Law. The validity and interpretation of this Agreement and
the performance by the parties of their respective obligations hereunder shall
be governed by the laws of the State of Delaware.
3.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof
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of this Agreement to produce or account for more than one counterpart signed by
the party to be charged thereby.
3.9 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matters hereof, and supersedes all
previous agreements and understandings among the parties with respect to such
matters.
3.10 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns and transferees. This Agreement may not be assigned by any
Investor without the prior written consent of the Company.
3.11 Survival of Representation and Warranties. All agreements,
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the closing of the transactions contemplated
hereby.
3.12 Covenants of the Company
(a) Inspection. The Company shall permit the Investor, or any authorized
representative thereof, to visit and inspect the properties of the
Company, including its corporate and financial records, and to discuss
its business and finances with officers of the Company, during normal
business hours following reasonable notice and as often as may be
reasonably requested.
(b) Financial Statements and Other Information. The Company will deliver
to the Investor (i) within 120 days after the end of each fiscal year
of the Company, an audited balance sheet of the Company as at the end
of such year and audited statements of income and of cash flow of the
Company for such year, certified by certified public accountants of
established national reputation selected by the Company, and prepared
in accordance with generally accepted accounting principles, applied
on a consistent basis and (ii) within 60 days after the end of each
fiscal quarter of the Company, an unaudited balance sheet of the
Company as of the end of such fiscal quarter, and unaudited statements
of income and cash flow of the company for such fiscal quarter and for
the current fiscal year to the end of such fiscal quarter.
(c) Termination of Covenants. The obligations of the Company under this
Section 3.12 shall terminate upon occurrence of an initial public
offering of the Company's Common Stock in which minimum of $10,000,000
in proceeds are raised by the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
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Investor
/s/ Xxxxxx X. Xxxxxxxxx 100,000
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Signature Number of Share Purchased
Community Investment Partners III, L.P., LLLP
---------------------------------------------
Name on Stock Certificate
00000 Xxxxxxxxxx Xxxx
---------------------------------------------
Address of Record
Xx. Xxxxx XX 00000
---------------------------------------------
City, State, Zip Code
000-000-0000
---------------------------------------------
Fax Number
000-000-0000
---------------------------------------------
Phone Number
Accepted By:
United Therapeutics Corporation
/s/ Xxxxxxx Xxxxxxxxx
------------------------------
By
Xxxxxxx X. Xxxxxxxxx
------------------------------
Name
Chairman and Chief
------------------------------
Title
Executive Officer
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SCHEDULE A TO EXHIBIT 4.3
The following Common Stock Purchase Agreements are identical in their terms to
the Common Stock Purchase Agreement in this Exhibit 4.3, with the exception of
the following terms:
Common Stock Purchase Agreement between the Registrant and Oakwood Investors I,
LLC -
Investor's Signature: X. Xxxxx
Name on Certificate: Oakwood Investors I, LLC
No. of Shares: 400,000
Address of Record: 000 Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Fax No: 000-000-0000
Phone Number: 000-000-0000
Common Stock Purchase Agreement between the Registrant and Xxxxx X. Xxxxx -
Investor's Signature: Xxxxx X. Xxxxx
Name on Certificate: Xxxxx X. Xxxxx
No. of Shares: 25,000
Address of Record: Xxxxx 0000, Xxx Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Fax No: 000-000-0000
Phone Number: 000-000-0000
Common Stock Purchase Agreement between the Registrant and Xxxxxx X. Xxxxxxxxx-
Investor's Signature: Xxxxxx X. Xxxxxxxxx
Name on Certificate: Xxxxxx X. Xxxxxxxxx
No. of Shares: 100,000
Address of Record: 00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Fax No: 000-000-0000
Phone Number: 314-515-2000
Common Stock Purchase Agreement between the Registrant and Xxxx Xxxxx Xxxxx and
Xxxx Xxxxxx Xxxxx, Trustees of the Xxxx Xxxxx Xxxxx revocable trust dated
October 28, 1993 -
Investor's Signature: X. Xxxxx and Xxxx Xxxxx Xxxxx
Name on Certificate: Xxxx Xxxxx Xxxxx and Xxxx Xxxxxx Xxxxx, Trustees
of the Xxxx Xxxxx Xxxxx revocable trust dated
October 28, 1993
No. of Shares: 100,000
Address of Record: 000 Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Fax No: 000-000-0000
Phone Number: 000-000-0000
