SECURITIES PURCHASE AGREEMENT
Exhibit
1.1
THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”)
is
made and entered into as of the 24th
day of
March, 2006, by and among Keryx Biopharmaceuticals, Inc., a Delaware corporation
(the “Company”)
and
the purchaser executing the purchase signature page attached hereto (the
“Purchaser”);
and
WHEREAS,
the Company has prepared and filed with the Securities and Exchange Commission
(the “SEC”),
in
accordance with the provisions of the Securities Act of 1933, as amended (the
“Securities
Act”),
and
the applicable rules and regulations thereunder, a registration statement on
Form S-3 (Commission File No. 333-130809), including a prospectus, relating
to the shares to be issued and sold pursuant to this Agreement. The term
“Registration
Statement”
as
used
herein refers to such registration statement (including all financial schedules
and exhibits), as amended or as supplemented and includes information contained
in the form of final prospectus and supplements thereto (the “Prospectus”)
filed
with the SEC pursuant to Rule 424(b) of the rules under the Securities Act
and
deemed to be part thereof at the time of effectiveness (the “Effective
Date”)
pursuant to Rule 430A of the rules under the Securities Act.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and Purchaser agree as
follows:
ARTICLE
I
PURCHASE
AND SALE
1.1 Closing.
Purchaser shall purchase from the Company, and the Company shall issue and
sell
to Purchaser, a number of shares (the “Shares”)
of
common stock of the Company, par value $0.001 (the “Common
Stock”),
equal
to Purchaser’s subscription amount as set forth on the signature page hereto
(the “Subscription
Amount”)
divided by the Purchase Price (as defined below). Upon satisfaction of the
conditions set forth in Section 1.3, the closing shall occur at the offices
of the Company on March 28,
2006,
or at such other place or on such other date as the parties shall mutually
agree
(the “Closing”).
1.2 Per
Share Purchase Price.
The per
share purchase price shall be equal to $18.40 (the “Purchase
Price”).
1.3 Closing
Conditions.
(a) As
a condition to the Purchaser’s obligation to close, at the Closing, the Company
shall have satisfied each of the conditions set forth below or shall deliver
or
cause to be delivered to Purchaser the items set forth below, as appropriate:
(i) this
Agreement duly executed by the Company;
(ii) within
five (5) business days of the Closing, a certificate evidencing the Shares,
registered in the name of Purchaser (unless such shares have been previously
issued to Purchaser through the book-entry facilities of The Depository Trust
Company);
(iii) the
representations and warranties made by the Company herein shall be true and
correct in all material respects on the date made and on the date of the
Closing;
(iv) all
covenants, agreements and conditions contained in this Agreement to be performed
by the Company on or prior to the date of the Closing shall have been performed
or complied with in all material respects;
(v) no
statue, regulation, executive order, decree, ruling or injunction shall have
been enacted, promulgated, endorsed or threatened or is pending by or before
any
governmental authority of competent jurisdiction which prohibits or threatens
to
prohibit the consummation of the transaction contemplated by this Agreement;
and
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(vi) the
Company shall have filed an application with The Nasdaq Stock Market for the
listing of the Shares.
(b) As
a condition to the Company’s obligation to close, at the Closing, Purchaser
shall have satisfied each of the conditions set forth below or shall deliver
or
cause to be delivered to the Company the items set forth below, as appropriate:
(i) this
Agreement duly executed by Purchaser;
(ii) the
Subscription Amount by wire transfer to the account of the Company as set forth
on the signature pages hereto;
(iii) the
representations and warranties made by Purchaser herein shall be true and
correct in all material respects on the date made and on the date of the
Closing;
(iv) Purchaser
shall have performed, satisfied and complied in all material respects with
all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by Purchaser at or before the Closing;
and
(v) no
statue, regulation, executive order, decree, ruling or injunction shall have
been enacted, promulgated, endorsed or threatened or is pending by or before
any
governmental authority of competent jurisdiction which prohibits or threatens
to
prohibit the consummation of the transaction contemplated by this
Agreement.
(c) As
of the
date of the Closing, there shall have been no Material Adverse Effect (as
defined below) with respect to the Company since the date hereof.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.1 Representations
and Warranties of the Company.
Except
as set forth in the Company’s public filings under the Securities Exchange Act
of 1934, as amended, the Company, including its consolidated subsidiaries for
the purposes of this Article 2, hereby makes the following representations
and
warranties as of the date hereof and as of the date of the Closing to Purchaser:
(a) Organization
and Qualification. The
Company is an entity duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, with the requisite corporate power
and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company is duly qualified to conduct business and
is
in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by the Company
makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, would not have or reasonably be
expected to result in (i) a material adverse effect on the legality,
validity or enforceability of this Agreement, (ii) a material adverse
effect on the results of operations, assets, business or financial condition
of
the Company, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations under this
Agreement (any of (i), (ii) or (iii), a “Material
Adverse Effect”).
(b) Authorization;
Enforcement. The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Company and no further action is required by the Company
in
connection therewith. This Agreement has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies.
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(c) No
Conflicts.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not
and
will not (i) conflict with or violate any provision of the Company’s
Amended and Restated Certificate of Incorporation or Amended and Restated
Bylaws, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give
to
others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company debt or otherwise) or other
understanding to which the Company is a party or by which any property or asset
of the Company is bound or affected, or (iii) result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company is subject
(including federal and state securities laws and regulations), or by which
any
property or asset of the Company is bound or affected; except in the case of
each of clauses (ii) and (iii), such as would not have or reasonably be
expected to result in a Material Adverse Effect.
(d) Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other person
in
connection with the execution, delivery and performance by the Company of this
Agreement, other than (i) the filing with the SEC of a Form 8-K and
prospectus supplement relating to the Registration Statement, and applicable
Blue Sky filings, if any, and (ii) such as have already been
obtained.
(e) Capitalization.
All of
the outstanding shares of the Company’s Common Stock are, and all of the Shares,
when issued, will be, duly authorized, validly issued, fully paid and
nonassessable, and free and clear of all liens created by the Company, and
all
such shares were, and the Shares, will be issued in material compliance with
all
applicable federal and state securities laws, including available exemptions
therefrom, and none of such issuances were, and the issuance of the Shares
will
not be, made in violation of any pre-emptive or other rights. The Company has
reserved from its duly authorized capital stock the number of shares of Common
Stock issuable pursuant to this Agreement. The issuance of the Shares will
not
trigger any anti-dilution rights of any existing securities of the
Company.
(f) Registration
Statement. The
Registration Statement has become effective under the Securities Act, and no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened
by
the SEC; and any request on the part of the SEC for additional information
has
been complied with.
(g) the
Registration Statement did not, as of the Effective Date, contain an untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, that no representation or warranty is made as to information contained
in or omitted from the Registration Statement in reliance upon and in
conformance with written information furnished to the Company by Purchaser
or
its representatives;
(h) the
Prospectus will not, as of the Closing Date, contain an untrue statement of
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; provided, that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformance with written information
furnished to the Company by Purchaser or its representatives;
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2.2 Representations
and Warranties of Purchaser.
Purchaser hereby represents and warrants as of the date hereof and as of the
date of the Closing to the Company as follows:
(a) Organization;
Authority.
If
Purchaser is not a natural person, such Purchaser is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
organization with full right, corporate, limited liability or partnership power
and authority to enter into and to consummate the transactions contemplated
by
this Agreement and otherwise to carry out its obligations hereunder. The
execution, delivery and performance by Purchaser of the transactions
contemplated by this Agreement has been duly authorized by all necessary
corporate or similar action on the part of Purchaser. This Agreement to which
it
is a party has been duly executed by Purchaser, and when delivered by Purchaser
in accordance with the terms hereof, will constitute the valid and legally
binding obligation of Purchaser, enforceable against it in accordance with
its
terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies.
(b) Information;
Confidentiality.
Purchaser and its advisors, if any, have been furnished with all publicly
available materials relating to the business, finances and operations of the
Company and such other publicly available materials relating to the offer and
sale of the Shares as have been requested by Purchaser. Purchaser and its
advisors, if any, have been afforded the opportunity to ask questions of the
Company. Neither such inquiries nor any other due diligence investigations
conducted by Purchaser or its advisors, if any, or its representatives shall
modify, amend or affect such Purchaser’s right to rely on the Company’s
representations and warranties contained herein. Purchaser understands that
its
investment in the Shares involves a high degree of risk. Purchaser has sought
such accounting, legal and tax advice as it has considered necessary to make
an
informed investment decision with respect to its acquisition of the
Shares.
(c) No
Governmental Review.
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Shares or the fairness or suitability of the investment
in
the Shares, nor have such authorities passed upon or endorsed the merits of
the
offering of the Shares.
(d)
Sales;
Short Selling. From
and after the date Purchaser received any information about the existence of
this offering, Purchaser has not offered, pledged, sold, contracted to sell,
sold any option or contract to purchase, purchased any option or contract to
sell, granted any option, right or warrant to purchase, loaned, or otherwise
transferred or disposed of, directly or indirectly, any shares of Common Stock
or any securities convertible into or exercisable or exchangeable for Common
Stock, entered into any swap or other arrangement that transfers to another,
in
whole or in part, any of the economic consequences of ownership of the Common
Stock, or directly or indirectly, through related parties, affiliates or
otherwise sold “short” or “short against the box” (as those terms are generally
understood) any equity security of the Company. Purchaser covenants that it
will
not, nor will it authorize or permit any person acting on its behalf to, engage
in any such transactions until following the Closing.
(e)
Information
Regarding Purchaser.
Purchaser has provided the Company with true, complete, and correct information
regarding all applicable items set forth on Purchaser’s signature page to this
Agreement.
ARTICLE
III
MISCELLANEOUS
3.1 Fees
and Expenses.
Each
party shall pay the fees and expenses of its advisers, counsel, accountants
and
other experts, if any, and all other expenses incurred by such party incident
to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties levied
in
connection with the sale of the Shares.
3.2 Entire
Agreement.
This
Agreement, together with the exhibits and schedules thereto, contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.
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3.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified
on
the signature pages attached hereto prior to 6:30 p.m. (New York City time)
on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number on the signature pages attached hereto on a day that is not a Trading
Day
or later than 6:30 p.m. (New York City time) on any Trading Day,
(c) the Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such
notices and communications is set forth on the signature pages attached hereto.
For purposes of this Agreement, “Trading Day” shall mean a day on which the
Company’s Common Stock is traded on the Nasdaq National Market, or, if the
Company’s Common Stock is not eligible for trading on the Nasdaq National
Market, any day except Saturday, Sunday and any day on which banking
institutions in the State of New York are authorized or required by law or
other
governmental action to close.
3.4 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchaser
or,
in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
3.5 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
3.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Neither Company nor Purchaser may assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the other party.
3.7 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
3.8 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York.
3.9 Survival.
The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and delivery of the Shares.
3.10 Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original thereof.
3.11 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
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3.12 Replacement
of Securities.
If any
certificate or instrument evidencing any of the Shares is mutilated, lost,
stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation thereof, or in lieu of and
substitution therefor, a new certificate or instrument, but only upon receipt
of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested. The applicants
for a new certificate or instrument under such circumstances shall also pay
any
reasonable third-party costs associated with the issuance of such replacement
certificate.
(Signature
Pages Follow)
6
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
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KERYX
BIOPHARMACEUTICALS, INC.
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By:
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Name: Xxxxxx
X. Xxxxxx, Xx.
Title: Senior
Vice President and Chief Financial Officer
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Address
for Notice:
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxx, Xx.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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With
a copy to (which shall not constitute notice):
Xxxxxx
& Bird LLP
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx X. XxXxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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[Company
Signature Page to Securities Purchase Agreement]
PURCHASER
SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT
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By:
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Name:
Title:
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Date:
March ____, 2006
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$18.40 | |||
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NUMBER
OF SHARES
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PRICE
PER SHARE
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TOTAL
PURCHASE
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OF
COMMON STOCK
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PRICE
(the Subscription Amount)
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SUBSCRIBED
FOR
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The
above-signed Purchaser hereby provides the following information to the
Company:
1. Please
provide the following information regarding the Purchaser:
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Purchaser
Name and Address:
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______________________________________
______________________________________
______________________________________
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Telephone:
( ) _____-________
Facsimile:
( ) ______-_________
Email:
_______________________
Tax
ID #:_____________________
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Wire
Instructions
Bank
Name: Commerce Bank, N.A.
Bank
Address: 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
ABA
# 000000000
Account
Number: ________________
Account
Name: Keryx Biopharmaceuticals, Inc.
