Exhibit 10.38
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement"), dated as of
__________, 1999 is entered into by and between
_____________________________________ (the "Purchaser"), and Magainin
Pharmaceuticals Inc., 0000 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000 (the
"Company").
The Company is offering for sale, to the Purchaser and to certain other
parties (the "Other Purchasers"), and the Purchaser and the Other Purchasers
have agreed or will agree to purchase, on substantially the same terms as
contained herein, in the aggregate, nor more than four million (4,000,000)
shares of the Company's common stock, par value of $.002 per share (the "Common
Stock"). The Company has offered for sale, and the Purchaser has agreed to
purchase _______ shares (the "Shares") of fully registered Common Stock on the
terms and conditions herein provided. In connection herewith, the Company and
the Purchaser hereby agree as follows:
1. Purchase and Sale of Shares. Upon the basis of the representations and
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warranties and subject to the terms and conditions set forth herein, the Company
agrees to issue and sell the Shares to the Purchaser on the Closing Date (as
herein defined) at a per share purchase price of $_______ (the "Per Share
Purchase Price," and the aggregate purchase price for all of the Shares is
referred to as the "Purchase Price") and, upon the basis of the representations
and warranties and subject to the terms and conditions set forth herein, the
Purchaser agrees to purchase the Shares from the Company on the Closing Date at
the Purchase Price.
Notwithstanding the foregoing, in the event that the Company sells any
shares (or securities that may be converted into or exchanged for shares) of
Common Stock in an original issuance (not shares traded on the Nasdaq National
Market in the aftermarket) for less per share than the Per Share Purchase Price
at any time during the ninety (90) day period commencing on the Closing Date
(except for shares issued pursuant to (a) stock options, (b) purchases by the
Company of outstanding existing stock options, and (c) warrants outstanding as
of the date hereof) the Company shall have the obligation to promptly notify and
pay the Purchaser (x) the aggregate difference between (i) the per share price
of the Shares and (ii) the per share price of such additional shares of the
Company's Common Stock (or securities that may be converted into or exchanged
for shares of Common Stock) so sold, (y) multiplied by the number of Shares
purchased hereunder, at the Company's option, in either cash or additional
shares of the Company's Common Stock. If the Company elects to pay in Common
Stock, the Common Stock shall be valued at the price at which the Company sells
any such shares (or securities that may converted into or exchanged for shares)
of Common Stock and will be payable within five (5) days of such other sale.
2. Closing. The closing of the purchase and sale of the Shares (the
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"Offering") shall take place at the same time as closing on shares of Common
Stock purchased by the Other
Purchasers, on the first business day following the satisfaction of the
conditions set forth in Paragraph 6 below, as coordinated by the parties, or on
such other date or at such other time and place as the Company and the Purchaser
may agree upon (such time and date of the closing being referred to herein as
the "Closing Date"). Upon payment of the Purchase Price in full in immediately
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available funds by or on behalf of the Purchaser to the Company by wire transfer
to an account specified by the Company to the Purchaser prior to the Closing
Date, the Company will promptly cause its transfer agent to deliver to the
Purchaser certificates representing the shares of Common Stock in such
denominations and registered in such names as the Purchaser shall have requested
not less two business days prior to the Closing Date. The Company shall provide
facsimile copies of the certificates to the Purchaser on the Closing Date.
3. Registration
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(a) On or before the Closing Date, the Company's Registration Statement on
Form S-1 will be declared effective by the Securities and Exchange
Commission ("Commission") (including all exhibits thereto and all
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information and documents incorporated by reference therein, the
"Registration Statement") and include the registration of the original
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issuance of the Shares of Common Stock purchased by the Purchaser
pursuant to this Agreement.
(b) If not completed on or prior to the Closing Date, then promptly after
the Closing Date, the Company shall take all requisite action to list
the Shares for trading on the Nasdaq National Market.
4. Representations and Warranties of the Company. The Company represents and
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warrants, as of the date hereof and as of the Closing Date, as follows:
(a) No consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the
Company or any of the Company's affiliates is required for the
execution of this Agreement or the sale of the Shares to the
Purchaser,
(b) Neither the sale of the Shares nor the performance of the Company's
other obligations pursuant to this Agreement will violate, conflict
with, result in a breach of, or constitute a default (or an event
that, with the giving of notice or the lapse of time or both, would
constitute a default or trigger any right of a third party to acquire
equity interests in the Company or cause mandatory adjustment of the
price at which an outstanding security of the Company is convertible
into Common Stock, except for approximately 1,031,000 warrants that
are currently outstanding from $5.99 to $8.31 per share and which, as
a result of this offering, will be adjusted to (a) reflect an exercise
price range of approximately $5.35 to $7.37 and (b) increase the
number of outstanding warrants by approximately 126,000 warrants)
under (i) the Restated Certificates of Incorporation or the
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Bylaws of the Company, (ii) any decree, judgment, order or
determination of any court, governmental agency or body, or arbitrator
having jurisdiction over the Company's properties or assets; (iii) any
law, treaty, rule or regulation applicable to the Company (other than
the federal securities laws, representations and warranties with
respect to which are made by the Company, or the requirements of the
Nasdaq National Market); or (iv) the terms of any bond, debenture,
note or other evidence of indebtedness, or any agreement, stock option
or similar plan by which the Company is bound or to which any property
of the Company is subject, in any event above, which violation,
conflict or breach would have a material adverse effect on the
Company.
(c) the Company has taken all corporate action required to authorize the
execution and delivery of this Agreement and the performance of its
obligations hereunder and will use the proceeds of sale for general
corporate purposes and as described in the Use of Proceeds section of
the prospectus;
(d) the Company has duly authorized the issuance of the Shares and, when
issued and delivered to and paid for by the Purchaser in accordance
with the terms hereof, the Common Stock will be duly and validly
issued, fully paid and non-assessable and will not constitute
"restricted securities" within the meaning of Rule 144(a)(3)
promulgated under the Securities Act of 1933, as amended (the "Act");
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(e) the Company's Prospectus dated ______________, 1999 included in the
Company's Registration Statement on Form S-1 (Registration 333-87933
attached hereto as Exhibit A); the Company's Form 8-A filed on
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November 7, 1991, as amended on January 15, 1993; the Company's Annual
Report on Form 10-K for its Fiscal Year Ended December 31, 1998; the
Company's proxy statement dated April 12, 1999 for its Annual Meeting
held on May 18, 1999; the Company's Quarterly Reports on Form 10-Q for
the fiscal quarters ended June 30, 1999 and March 31, 1999
(collectively, the "Disclosure Documents") have been made available to
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or delivered to Purchaser and, such Disclosure Documents did not, as
of the date of each such respective document included therein and when
considered as of today together and with this Agreement, do not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made with respect to the Company.
(f) the Company's Financial Statements for the year ended December 31,
1998, as amended, included in the Disclosure Documents comply in all
material respects with the applicable requirements of the Securities
Exchange Act of 1934, as amended, and present fairly in all material
respects the financial position and the results of operations and cash
flows of the Company at the respective dates and
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for the respective periods indicated, in conformity with generally
accepted accounting principles;
(g) except as set forth in the Disclosure Documents or pursuant to this
Agreement, since December 31, 1998 (i) the Company has not incurred
any material liabilities, direct or contingent, except in the ordinary
course of business; and (ii) there has been no material adverse change
in the properties, business, results of operations of financial
condition of the Company; and
(h) as of June 30, 1999 (and without giving effect to the sale of Shares
of Common Stock hereunder), the Company had a total of 22,912,000
shares of Common Stock issued and outstanding; approximately 5,113,000
shares of Common Stock were subject to outstanding options and
warrants, and there will be no changes in these numbers prior to the
Closing Date except as a result of shares issued in connection with
the conversion or exchange or any securities of the Company or stock
options granted under or shares issued under any existing stock option
plan or other existing employee bonus or existing incentive plan of
the Company and except as described in paragraph 4(b).
5. Representative and Warranties of the Purchaser. The Purchaser represents
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and warrants, as of the date hereof and as of the Closing Date, as follows:
(a) no consent, approval, authorization or order of any court,
governmental agency or body of arbitrator having jurisdiction over the
Purchaser is required for the execution of this Agreement or the
purchase of the Shares by the Purchaser;
(b) neither the purchase of the Shares nor the performance of the
Purchaser's other obligations pursuant to this Agreement will violate,
conflict with, result in a breach of, or constitute a default under
(i) the charter documents of the Purchaser; (ii) any decree, judgment,
order or determination of any court, governmental agency or body, or
arbitrator having jurisdiction over the Purchaser or any of the
Purchaser's properties or assets; (iii) any law, treaty, rule or
regulation applicable to the Purchaser; or (iv) the terms of any bond,
debenture, note or other evidence of indebtedness, or any agreement,
stock option or similar plan by which the Purchaser is bound or to
which any property of the Purchaser is subject, in any event above,
which violation, conflict or breach would have a material adverse
effect on the Purchaser;
(c) the Purchaser has taken all corporate action required to authorize the
execution and delivery of this Agreement and the performance of its
obligations hereunder; and
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(d) the Purchaser has not purchased or sold, directly or indirectly,
shares of Common Stock except pursuant to this Agreement during the
twenty day period referred to in Paragraph 1 above.
6. Conditions of Closing. The obligations of each party hereunder shall be
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subject to:
(a) The accuracy in all material respects of the representations and
warranties of the other party hereto as of the date hereof and as of
the Closing Date, as if such representations and warranties had been
made again on and as of the Closing Date;
(b) The performance in all material respects by the other party of its
obligations hereunder which must be performed prior to the Closing
Date;
(c) the Registration Statement has been declared effective and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued; and
(d) The Purchaser shall have received the legal opinion of Xxxxxx, Xxxxx &
Bockius LLP, counsel to the Company, in the form set forth in Exhibit
A hereto, with such changes thereto as may be agreed upon by the
Purchaser and such counsel.
7. Covenants of the Company
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(a) The Company shall, within __ days of the closing date, amended its
bylaws to provide that effective on the Closing Date, the Company,
without the approval of the owners of a majority of the Common Stock,
shall not grant any stock options at less than the closing market
price on the date of grant or reduce the price of any options which
either were granted as a non-qualified stock option grant to an
incoming employee or vendor or were granted under any of the Company's
existing or future stock option plans, provided, however, that the
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foregoing shall not preclude the Company from (i) issuing new, lower
priced options issued from a stock option plan to persons holding
higher priced options from such plan, provided, however, that if such
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new lower priced options are granted in exchange for such higher
priced options, the shares covered by such higher priced options shall
be canceled or surrendered and not available for re-grant under such
stock option plan.
8. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the Purchaser, each
person, if any, who controls the Purchaser within the meaning of
Section 15 of the Act and each officer, director, employee and agent
of the Purchaser and of any such controlling person against any and
all liabilities, claims, damages or expenses whatsoever, as incurred
arising out of or resulting from any breach or alleged
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breach or other violation of any representation, warranty, covenant or
undertaking by Company contained in this Agreement, and the Company
will reimburse the Purchaser for its reasonable legal and other
expenses (including the reasonable cost of any investigation and
preparation, and including the reasonable fees and expenses of
counsel) incurred in connection therewith.
(b) The Purchaser agrees to indemnify and hold harmless the Company, each
person, if any, who controls the Company with the meaning of Section
15 of the Act and each officer, director, employee and agent of the
Company and of any such controlling person against any and all losses,
liabilities, claims, damages or expenses whatsoever, as incurred
arising out of or resulting from any breach or alleged breach or other
violation or alleged violation of any representation, warranty,
covenant or undertaking by the Purchaser contained in this Agreement,
and the Purchaser will reimburse the Company for its reasonable cost
of any investigation and preparation, and including the reasonable
fees and expenses of counsel) incurred in connection therewith.
9. Survival of Representations and Warranties. The respective agreements,
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representations, warranties, indemnities and other statements made by or on
behalf of each party hereto pursuant to this Agreement, as of the date they were
made, shall, unless otherwise specified, survive until the third anniversary of
the Closing Date and shall expire thereafter.
10. Miscellaneous.
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(a) This Agreement may be executed in one or more counterparts and such
counterparts shall constitute but one and the same agreement and
authorized signatures may be evidenced to the other party by facsimile
copies thereof; provided that the originally signed signature page of
any party is provided to the other party within two business days
after the original execution.
(b) This Agreement shall inure to the benefit of and the binding upon the
parties hereto. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other party hereto and
no other person shall have any right or obligation hereunder. Without
limiting the foregoing, the rights of Purchaser set forth in Paragraph
3 shall not be transferable to subsequent purchasers of the Shares.
Any assignment contrary to the terms hereof shall be null and void and
of no force or effect.
(c) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior
agreements or understandings, whether written or oral, between the
parties respecting such subject matter.
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(d) If within twenty (20) days of the Closing Date hereof the Company
enters into or is a party to any agreement to issue additional equity
securities (or securities convertible or exchangeable therefor), the
Company shall promptly provide notice of such agreement to the
Purchaser, together with a copy of such agreement.
11. Governing Law. This Agreement shall be governed by the internal laws of
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the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
MAGAININ PHARMACEUTICALS INC.
By:
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
PURCHASER:
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By:
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[Date]
[Purchaser]
Ladies and Gentlemen:
Ladies and Gentlemen:
We have acted as counsel to Magainin Pharmaceuticals Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company to you
of _______ shares of the Company's Common Stock, par value $.002 (the "Shares"),
pursuant to the Securities Purchase Agreement, dated as of __________, 1999 (the
"Agreement"), between the Company and ___________________ (the "Purchaser").
This opinion is being delivered to you pursuant to paragraph 6(d) of the
Agreement. All terms used herein have the meanings defined for them in the
Agreement unless otherwise defined herein.
We have acted as counsel for the Company in connection with the negotiation of
the Agreement, the preparation and filing of the Company's Registration
Statement on Form S-1 and all amendments thereto (said Registration Statement in
the form in which it was declared effective by the Securities Exchange
Commission on ___________ being hereinafter referred to as the "Registration
Statement") and the related Prospectus dated ___________ (hereinafter referred
to as the "Final Prospectus") in the form in which it was filed pursuant to
Rules 424(b) and 430A under the Securities Act of 1933, as amended (the
"Securities Act"), and the issuance of the Shares.
In connection with the opinions expressed below, we have examined and relied
upon copies of the Agreement, the Restated Certificate of Incorporation and
bylaws of the Company, records of corporate proceedings of the Company and the
Final Prospectus. As to certain questions of fact material to the opinions
expressed herein, we have, with your consent, and without independent
investigation, relied to the extent we deemed appropriate upon the
representations of the parties thereto set forth in the Agreement. We have also
examined and relied upon such certificates of public officials, corporate
records, documents and other certificates and have made such other
investigations of fact and law as we have deemed necessary in connection with
the opinions set forth below.
In rendering the following opinions, we have assumed (i) the genuineness of all
signatures on original documents, the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all copies
submitted to us as copies thereof, (ii) the legal capacity of natural persons,
(iii) that the Agreement constitutes the legal, valid and binding
obligation of the Purchaser and (iv) that all conditions precedent to the
consummation of the sale of the Shares have been satisfied, including payment
therefor as provided for in the Agreement.
Based upon and subject to the foregoing, and subject to the additional
qualifications set forth below, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of the State
of Delaware and is in good standing under such laws. The Company has requisite
corporate power to own and operate its properties and assets, and to carry on
its business as presently conducted. The Company is qualified to do business as
a foreign corporation in the Commonwealth of Pennsylvania.
2. The Company has all requisite legal and corporate power to execute and
deliver the Agreement, to sell and issue the Shares pursuant to the Agreement
and to carry out and perform its obligations under the terms of the Agreement.
The Shares issued under the Agreement are validly issued, fully paid and
nonassessable and free of any liens or encumbrances created by the Company and
free of any preemptive or similar rights contained in the Restated Certificate
of Incorporation or Bylaws of the Company.
3. All corporate action on the part of the Company, its directors and
stockholders necessary for the authorization, execution and delivery of the
Agreement by the Company, the authorization, sale, issuance and delivery of the
Shares and the performance of the Company's obligations under the Agreement has
been taken. The Agreement has been duly and validly executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights of creditors generally (including applicable fraudulent transfer laws) or
by equitable principles of general applicability (regardless of whether
enforceability is considered in a proceeding at law or in equity) and the
discretion of the court before which any proceeding may be brought.
4. To our knowledge, the Company is not in violation of any term of its
Restated Certificate of Incorporation or Bylaws. The execution, delivery and
performance of and compliance with the terms of the Agreement, and the issuance
of the Shares do not violate any provision of the Restated Certificate of
Incorporation or Bylaws.
5. No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Company is required in
connection with the valid execution and delivery of the Agreement, or the
Company's offer, sale or issuance of the Shares or the consummation of any other
transaction by the Company contemplated thereby, except as has been obtained.
Our opinion herein is subject to the timely and proper completion of any
required
filing of any supplement to the Final Prospectus pursuant to Rule 424(b) under
the Securities Act in the manner and within the time period required by Rule
424(b). To our knowledge, as of the date hereof no supplement to the Final
Prospectus is required to be filed pursuant to Rule 424(b).
6. The Registration Statement has become effective under the Securities Act
and, to our knowledge, no stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Securities Act, and nothing
has come to our attention to lead us to believe that such proceedings are
contemplated.
The opinions set forth above are subject to the following qualifications:
(A) Wherever we have stated we have assumed any matter or relied upon any
representation, it is intended to indicate that we have assumed such matter or
relied upon any representation without making any factual, legal or other
inquiry or investigation, and without expressing any opinion or conclusion of
any kind concerning such matter; no inference as to our knowledge of any matters
bearing on the accuracy of any such statement or opinion should be drawn from
the fact of our representation of the Company.
(B) Whenever a statement or opinion set forth herein is qualified by "to our
knowledge," "of which we have knowledge" or any similar phrase, it is intended
to indicate that, during the course of our representation of the Company in the
subject transaction no information that would give us current actual knowledge
of the inaccuracy of such statement has come to the attention of those attorneys
in this Firm who have rendered legal services in connection with the
representation described in the introductory paragraph of this opinion letter.
However, we have not undertaken any independent investigation to determine the
accuracy of such statement or opinion; no inference as to our knowledge of any
matters bearing on the accuracy of any such statement or opinion should be drawn
from the fact of our representation of the Company.
(C) We express no opinion with respect to the laws of any jurisdiction other
than the federal laws of the United States of America, the laws of the
Commonwealth of Pennsylvania and the Delaware General Corporation Law (the
"DGCL"). Further, we express no opinion with respect to, or as to the effect on
the subject transaction of, any federal or state laws relating to (i) tax
matters, (ii) antitrust matters, including compliance with the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, or (iii) compliance with
"antifraud" or other applicable disclosure requirements. Our opinion regarding
state securities laws is based solely upon our examination of the latest
unofficial compilations available to us of the applicable statutes, if any, and,
in certain instances, the published rules and regulations issued thereunder. Our
opinion regarding state securities laws is further subject to broad
discretionary powers of the authorities administering the state securities laws
to, among other things, withdraw exemptions accorded by statute, to impose
additional requirements or to revoke or suspend at any time the registration or
qualification of securities for offering in their
respective jurisdictions. With respect to state securities laws, we have relied
exclusively on information provided in the Agreement by the Purchaser concerning
the residency or principal place of business of the Purchaser.
(D) Our opinions expressed in paragraph 1 above as to the existence, good
standing and qualification to do business of the Company are based solely on
certificates issued by the Secretary of State of the State of Delaware and the
Secretary of the Commonwealth of Pennsylvania, and has the meaning set forth in
and is as of the dates of such certificates. Copies of such certificates have
been provided to you or your counsel.
This opinion speaks only as of the date hereof (except as set forth in (D)
above) and we do not have, nor do we assume, any obligation to advise you of any
changes in facts or in the applicable laws of the Commonwealth of Pennsylvania,
or the United States of America or the DGCL which may affect our opinion.
This opinion is solely for the benefit of the addressee hereof for use in
connection with the transactions contemplated by the Agreement and may not be
relied upon by any other person or for any other purpose without our express
written consent.
Very truly yours,
