Exhibit 4
NPS PHARMACEUTICALS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is made as
of June 4, 2003, by and between NPS Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and Enzon Pharmaceuticals, Inc., a Delaware
corporation (the "Purchaser").
RECITALS
A. The Company and the Purchaser are parties to that certain
Mutual Termination and Release Agreement, dated of even date herewith (the
"Termination Agreement").
B. The obligations of the Company and the Purchaser under the
Termination Agreement are conditioned in part upon the execution and delivery of
this Agreement.
C. Pursuant to the Termination Agreement, the Company agreed to
issue shares of its common stock pursuant to the terms provided in this
Agreement.
D. Pursuant to the Termination Agreement, the Company has also
agreed to provide certain registration rights relating to such shares as
contained in that certain Registration Rights Agreement, to be executed and
delivered herewith, by and between the Company and the Purchaser (the
"Registration Rights Agreement").
AGREEMENT
NOW THEREFORE, in consideration of the Company and the Purchaser
entering into the Termination Agreement and the Registration Rights Agreement,
the mutual covenants and agreements set forth in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Purchaser, intending to be legally bound,
agree as follows:
1. Common Stock Purchase.
1.1 Purchase. Subject to the terms and conditions of this
Agreement, the Company will sell to the Purchaser, and the Purchaser will
purchase from the Company One Million Five Hundred Thousand (1,500,000) shares
(the "Shares") of the Company's Common Stock, par value $0.001 per share
("Common Stock"), in consideration of the Purchaser executing and delivering the
Termination Agreement and performing its obligations thereunder.
1.2 Closing Date. The purchase and sale of the Shares
shall be consummated at a closing (the "Closing") held at the offices of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 0000 Xxxx Xxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx, 00000 on June 4, 2003, at 3:30 p.m.,
local time, or at such other date, time and place upon which the Company and the
Purchaser shall agree (the "Closing Date").
1.3 Delivery. On the Closing Date, the Company shall
deliver to the Purchaser a certificate (or other electronic evidence)
representing the Shares (issued in the Purchaser's name) after receipt of the
Termination Agreement executed by the Purchaser.
2. Representations and Warranties of the Company. In connection
with the sale of the Shares, the Company represents and warrants to the
Purchaser that as of the date hereof:
2.1 Organization and Standing. The Company is a
corporation duly organized and validly existing under, and by virtue of, the
laws of the State of Delaware and is in good standing, under such laws. The
Company has requisite corporate power and authority to own and operate its
properties and assets and to carry on its business as presently conducted. The
Company is presently qualified to do business as a foreign corporation, and is
in good standing in those jurisdictions in which the nature of its business and
properties makes such qualification necessary and in which the failure to be so
qualified would have a material adverse effect on the business or financial
condition of the Company.
2.2 Corporate Power. The Company has all requisite legal
and corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Registration Rights Agreement and to
sell and issue the Shares hereunder.
2.3 Authorization. All corporate action on the part of
the Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the Registration
Rights Agreement by the Company and the authorization, sale, issuance and
delivery of the Shares has been taken or will be taken prior to the Closing
Date. This Agreement and the Registration Rights Agreement constitutes valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable, and the Shares will be free of any liens or encumbrances
other than any liens or encumbrances created by or imposed upon the holders;
provided, however, that the Shares may be subject to restrictions on transfer
under state or federal securities laws and restrictions set forth in the
Registration Rights Agreement.
2.4 Capitalization.
(a) Immediately prior to the Closing, the
authorized capital stock of the Company consists of (i) 45,000,000 shares of
Common Stock and (ii) 5,000,000 shares of preferred stock, par value $0.001
("Preferred Stock") none of which are issued and outstanding. As of June 3,
2003, 35,196,259 shares of Common Stock were issued and outstanding (which
included 310,785 shares of NPS Allelix Inc., a wholly owned Canadian subsidiary
of the Company, which are exchangeable into shares of Common Stock). All of the
outstanding shares of capital stock of NPS are duly authorized and validly
issued, fully paid and nonassessable and not subject to any preemptive rights.
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2.5 Approvals. No authorization, approval or consent of
any court, governmental body, regulatory agency, self-regulatory organization,
or stock exchange or market or third party is required to be obtained by the
Company for the issuance and sale of the Shares to the Purchaser as contemplated
by this Agreement, except for notices and filings with the Nasdaq National
Market and such other authorizations, approvals and consents that have been
obtained.
2.6 Offering. Subject to the accuracy of the Purchaser's
representations in Section 3, the offer, sale and issuance of the Shares
constitutes a transaction exempt from the registration requirements of Section 5
of the Securities Act of 1933, as amended (the "Securities Act").
2.7 NASDAQ Listing Requirements. NPS is in compliance
with its listing agreement with The NASDAQ National Market, fully satisfies all
continued listing requirements of The NASDAQ National Market and is not aware of
any facts or circumstances that could reasonably be expected to result in a
violation of its listing agreement or such continued listing requirements and
has received no notice from The NASDAQ National Market of any such violation.
2.8 Non-Contravention. The execution and delivery of this
Agreement by NPS does not, and performance of this Agreement by NPS will not:
(i) conflict with or violate NPS' certificate of incorporation or bylaws or the
certificate of incorporation or bylaws of any subsidiary of NPS or (ii) conflict
with or violate any material order or decree of any court or governmental
authority.
2.9 Form S-3 Eligibility. NPS is currently eligible to
use Form S-3 to register the resale of the Shares. The Form S-3 Registration
Statement and the Prospectus (as such terms are defined in the Registration
Rights Agreement) will comply with the requirements of applicable law and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they are made.
2.10 Brokers' and Finders' Fees. With respect to or in
connection with the transactions contemplated in this Agreement, the Purchaser
will have no liability to any broker, finder or other third party acting on the
behalf of NPS.
3. Representations and Warranties of the Purchaser. In connection
with the acquisition of the Shares, the Purchaser represents and warrants to the
Company as of the date hereof:
3.1 Accredited Investor. It is an "accredited investor,"
as such term is defined in Section (2)(a)(15) of the Securities Act.
3.2 Preexisting Relationship with Company; Business and
Financial Experience. By reason of its business or financial experience or the
business or financial experience of its professional advisors who are
unaffiliated with the Company and who are not compensated by the Company, it has
the capacity to protect its own interests in connection with the purchase of the
Shares.
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3.3 Investment Intent; Blue Sky. It is acquiring the
Shares for investment for its own account, not as a nominee or agent, and not
with a view to, or for resale in connection with, any distribution thereof. It
understands that the issuance of the Shares has not been, and will not be,
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of which depends
upon, among other things, the bona fide nature of the Purchaser's investment
intent and the accuracy of the Purchaser's representations as expressed herein.
The Purchaser's address set forth on the signature page attached hereto
represents the Purchaser's true and correct state of domicile, upon which the
Company may rely for the purpose of complying with applicable "blue sky" laws.
3.4 Rule 144. It acknowledges that the Shares must be
held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from such registration is available. It is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being effected through
a "broker's transaction" or in a transaction directly with a "market maker," and
the number of shares being sold during any three-month period not exceeding
specified limitations.
3.5 Restrictions on Transfer; Restrictive Legends. It
understands that the transfer of the Shares is restricted by applicable state
and federal securities laws and by the provisions of the Registration Rights
Agreement, and that all certificates representing the Shares will be imprinted
with legends restricting transfer except in compliance therewith.
3.6 Authorization. All action on the part of the
Purchaser's board of directors and stockholders, as applicable, necessary for
the authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement by the Purchaser, the purchase of and payment for
the Shares and the performance of all of the Purchaser's obligations under this
Agreement and the Registration Rights Agreement has been taken or will be taken
prior to the Closing Date. This Agreement and the Registration Rights Agreement,
when executed and delivered by the Purchaser, shall constitute valid and binding
obligations of the Purchaser, enforceable in accordance with their terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
3.7 Risks. Purchaser understands that the purchase of the
Shares involves risk. Purchaser acknowledges that that it is able to fend for
itself in the transactions contemplated by this Agreement and has the ability to
bear the economic risks of its investment pursuant to this Agreement and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of this investment in the Shares and
protecting its own interests in connection with this investment. Purchaser
acknowledges that in making its investment decision Purchaser has relied solely
on its review of the information contained in publicly available information,
including but not limited to the Company's filings with the Securities and
Exchange Commission and has not relied on any prior discussions or
correspondence between the Parties resulting from their pre-existing business
relationship. Purchaser further acknowledges that in making its investment
decision Purchaser is not using or relying upon any non-public or confidential
information of the Company.
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4. Conditions to Closing.
4.1 Purchaser's Conditions to Closing. The Purchaser's
obligation to purchase the Shares is, unless waived in writing by the Purchaser,
subject to the fulfillment of the following conditions:
(a) Representations Correct. The representations
and warranties made by the Company in Section 2 hereof shall be true and correct
in all material respects.
(b) Blue Sky. The Company shall have obtained
all necessary "blue sky" law permits and qualifications, or have the
availability of exemptions therefrom, required by any state for the offer and
sale of the Shares.
(c) Consents. No consent, approval order or
authorization of or registration, qualification, designation, declaration or
filing with any governmental authority shall be required in connection with the
sale or issuance of the Shares.
(d) Registration Rights Agreement. The Company
shall have executed and delivered to the Purchaser the Registration Rights
Agreement substantially in the form attached hereto as Exhibit A.
(e) Mutual Termination and Release Agreement.
The Company shall have executed and delivered to the Purchaser the Termination
Agreement.
4.2 Company's Conditions to Closing. The Company's
obligation to sell and issue the Shares is, unless waived in writing by the
Company, subject to the fulfillment of the following conditions:
(a) Representations Correct. The representations
and warranties made by the Purchaser in Section 3 hereof shall be true and
correct in all material respects.
(b) Blue Sky. The Company shall have obtained
all necessary "blue sky" law permits and qualifications, or have the
availability of exemptions therefrom, required by any state for the offer and
sale of the Shares.
(c) Consents. No consent, approval order or
authorization of or registration, qualification, designation, declaration or
filing with any governmental authority shall be required in connection with the
sale or issuance of the Shares to the Purchaser.
(d) Registration Rights Agreement. The Purchaser
shall have executed and delivered to the Company the Registration Rights
Agreement.
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(e) Mutual Termination and Release Agreement.
The Purchaser shall have executed and delivered to the Company the Termination
Agreement.
5. Miscellaneous.
5.1 Amendment. Except as otherwise provided above, any
provision of this Agreement may be amended or the observance thereof may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Purchaser.
5.2 Governing Law. This Agreement shall be governed in
all respects by the laws of the State of Delaware, without regard to conflict of
laws provisions. Each of the parties hereto irrevocably agrees that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by any other party hereto
or its successors or assigns may be brought and determined in the Chancery or
other Courts of the State of Delaware, and each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the non-exclusive
jurisdiction of the aforesaid courts.
5.3 Entire Agreement. This Agreement, the Registration
Rights Agreement, the letter agreement dated December 18, 2002 between the
Company and the Purchaser (the "Confidentiality Agreement") and the Termination
Agreement and the Annexes, Exhibits and Schedules attached hereto and thereto
and delivered in connection herewith and therewith, as the case may be,
constitute the full and entire understanding and agreement among the parties
regarding the matters set forth herein. The provisions hereof shall inure to the
benefit of, and be binding upon the successors, permitted assigns, heirs,
executors and administrators of the parties hereto.
5.4 Notices. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
registered or certified mail, postage prepaid, by hand, by messenger or by
overnight courier, addressed:
(a) if to the Purchaser, to:
Enzon Pharmaceuticals, Inc.
000 Xxxxx 000/000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
or at such other address as the Purchaser
shall have furnished to the Company, with a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
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(b) if to the Company, to:
NPS Pharmaceuticals, Inc.
000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
Attention: General Counsel
or at such other address as the Company
shall have furnished to the Purchaser, with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxxx, Esq.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when actually delivered
as provided above, if delivered personally or by messenger, or, on the day shown
on the return receipt, if sent by mail or other delivery service.
5.5 Successors and Assigns. Each party's rights and
benefits of this Agreement shall inure to the benefit of, and be enforceable by,
such party's permitted successors and assigns. The rights and obligations of the
Purchaser under this Agreement may only be assigned with the prior written
consent of the Company. The rights and obligations of the Company under this
Agreement may only be assigned with the prior written consent of the Purchaser.
5.6 Further Actions. Both parties agree to execute any
additional documents and take such further action as may be reasonably necessary
to carry out the purposes of this Agreement.
5.7 Injunctive Relief. Each party hereto agrees that the
other party shall be entitled to a decree of specific performance of the terms
hereof or an injunction restraining violations of this Agreement, such right to
be in addition to any of the remedies of the Company. No remedy provided herein
is intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity.
5.8 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The Parties further agree
to replace such void and unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
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5.9 Expenses. Each party hereto shall pay its own
expenses incurred (including, without limitation, the fees of counsel) on its
behalf in connection with this Agreement or any transactions contemplated by
this Agreement.
5.10 Waivers. No waiver of any provision of this Agreement
or any rights or obligations of any party hereunder shall be effective, except
pursuant to a written instrument signed by the party or parties waiving
compliance, and any such waiver shall be effective only in the specific instance
and for the specific purpose stated in such writing.
5.11 Counterparts. This Agreement may be executed in any
number of counterparts, including a facsimile counterpart, each of which shall
be an original, but all of which together shall constitute one instrument.
5.12 "Standstill" Provisions in Confidentiality Agreement.
Notwithstanding the "standstill" provisions of Section 7 of the Confidentiality
Agreement, the Company and the Purchaser acknowledge and agree that the
negotiation and execution of the Termination Agreement, this Agreement and the
Registration Rights Agreement and the Company's issuance of the Shares to the
Purchaser pursuant to this Agreement and the completion of any other
transactions contemplated herein and in the Registration Rights Agreement and
any transactions in which the Purchaser may engage to hedge its position in the
Shares it receives pursuant to this Agreement do not and will not cause a breach
or violation of such standstill provisions by the Purchaser.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted
Stock Purchase Agreement as of the date first written above.
COMPANY: PURCHASER:
NPS PHARMACEUTICALS, INC. ENZON PHARMACEUTICALS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxx
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Its: President and CEO Its: Chairman, President and CEO
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Exhibit A
Registration Rights Agreement
