EXHIBIT 10.90
PEREGRINE PHARMACEUTICALS, INC.
COMMON STOCK
PURCHASE AGREEMENT
UP TO 2,000,000 SHARES OF
COMMON STOCK
JULY 24, 2003
COMMON STOCK PURCHASE AGREEMENT
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This Common Stock Purchase Agreement (this "Agreement") is made and
entered into as of July 24, 2003, by and between Peregrine Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), and Xxxxxx Management, Ltd. (the
"Investor").
RECITALS
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WHEREAS, the Company has filed with the Securities and Exchange
Commission ("SEC") a Shelf Registration Statement on Form S-3 No. 333-103965,
which was declared effective by the SEC on March 31, 2003 (the "Form S-3").
WHEREAS, pursuant to the Form S-3, the Company may offer to the public
from time to time up to 10,000,000 shares of common stock, par value $0.001 per
share (the "Common Stock").
WHEREAS, in accordance with the parties' term sheet dated July 16, 2003
(the "Term Sheet"), the Company desires to sell and issue to the Investor under
the Form S-3 up to an aggregate of Two Million (2,000,000) shares of Common
Stock at the per share price of $1.45, all in the manner described below.
NOW, THEREFORE, in consideration of the covenants, agreements and
considerations herein contained, the Company and Investor agree as follows:
1. PURCHASE AND SALE OF SHARES
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1.1 PUT OF SHARES. Subject to the terms and conditions hereof, for a
period of twenty five (25) trading days commencing on the date hereof, the
Company shall have the right to put (each a "Put") to the Investor, by way of
one or more Puts, up to an aggregate of Two Million (2,000,000) shares (the "Put
Limit") of Common Stock (the "Shares"), by delivering to the Investor a written
notice (the "Put Notice") specifying the number of Shares to be put and sold to
the Investor on such date. The form of Put Notice is attached hereto as Exhibit
A.
1.2 PURCHASE PRICE. As full consideration for the sale of the Shares to
Investor in connection with each Put, the Investor shall deliver to the Company
within three (3) business days after receipt of the Put Notice (the "Put Closing
Date"), the purchase price for such Shares by wire transfer of immediately
available funds to such account as the Company shall designate. The purchase
price for each Put shall be equal to the sum of the number of Shares for such
Put multiplied by the per share purchase price of $1.45 per share. Within three
(3) business days following the Put Closing Date, the Company shall deliver to
the Investor a stock certificate representing the Shares purchased in the Put.
1.3 TERMINATION OF PUT RIGHT. The Company's right to deliver a Put
Notice pursuant to this Agreement shall terminate on the first to occur of (i)
the date that is twenty five (25) trading days from the date hereof, and (ii)
the Investor having acquired pursuant to Puts a number of Shares equal to the
Put Limit. Notwithstanding the termination of the Put Right pursuant to clause
(i), the Investor shall be obligated to complete any Put delivered on or before
such date.
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2. RESERVED.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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Except as set forth below, the Company makes no representations or
warranties of any nature or kind.
3.1 ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has the corporate power to own its properties and to carry
on its business as now being conducted and is duly qualified to do business and
is in good standing in each jurisdiction in which the failure to be so qualified
would have a material adverse effect on the business, assets or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a whole.
3.2 CAPITALIZATION. The authorized capital stock of the Company
consists of 175,000,000 shares of common stock, par value $0.001 per share, and
5,000,000 shares of preferred stock, par value $0.001 per share, of which, as of
July 24, 2003, there were approximately 129,856,000 shares of common stock and
nil shares of preferred stock, issued and outstanding. The Company is not a
party to any voting trust agreements or understandings with respect to the
voting common stock of the Company.
3.3 AUTHORIZATION.
3.3.1 The Company has full legal right, power and capacity to
enter into, execute, deliver and perform this Agreement and all attendant
documents and instruments contemplated hereby.
3.3.2 This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Company and is
enforceable with respect to the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, priority or other laws or
court decisions relating to or affecting generally the enforcement of creditors'
rights or affecting generally the availability of equitable remedies.
3.3.3 The execution and delivery of this Agreement by the
Company, and the consummation of the transactions contemplated hereby by the
Company in accordance with the terms hereof shall not conflict with or result in
a breach of, violation of, or default under (or constitute an event that with
notice, lapse of time, or both, would constitute a breach or default under), or
result in the termination of, or accelerate the performance required by, or
result in the creation of any liens or other encumbrances upon any of the
properties or assets of the Company under any of the terms, conditions or
provisions of the Certificate of Incorporation or Bylaws, any provision of the
laws of the State of California or the State of Delaware, or any note, bond,
mortgage, indenture, deed of trust, license, lease, credit agreement or other
agreement, document, instrument or obligation to which the Company is a party or
by which any of its assets or properties are bound.
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3.3.4 Neither the execution and delivery of this Agreement by
the Company, nor the consummation of the transactions, contemplated hereunder by
the Company will violate or conflict with any judgment, order, decree, statute,
rule or regulation applicable to the Company or its assets or properties.
3.4 VALID ISSUANCE OF COMMON STOCK.
3.4.1 The Shares being purchased by the Investor hereunder,
when issued, sold and delivered in accordance with the terms hereof or thereof,
for the consideration expressed herein or therein, will be duly and validly
issued, fully paid and nonassessable and will be issued in compliance with all
applicable federal and state securities laws.
3.4.2 The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were issued in
compliance with all applicable federal and state securities laws.
3.4.3 The Company has full power, right and authority to
transfer, convey and sell to the Investors on the Closing Date the Shares and
upon consummation of the transactions contemplated by this Agreement, each
Investor will have acquired good and marketable title to the Shares purchased by
such Investor, free and clear of claims, liens, restrictions on transfer or
voting or encumbrances.
3.4.5 The Company has taken the requisite action to cause the
Shares to be listed on the Nasdaq SmallCap Market.
3.5 LITIGATION. Except as referred to in the SEC Documents, as defined
below, the Form S-3, or as disclosed in Schedule 3.5, there are no claims,
suits, actions or proceedings pending or, to the knowledge of the Company,
threatened against, relating to or affecting the Company or any of its
subsidiaries, before any court, governmental department, commission, agency,
instrumentality or authority, or any arbitrator that would reasonably be
expected, either alone or in the aggregate with all such claims, actions or
proceedings, to have a material adverse effect on the Company's business or
financial condition or the transactions contemplated hereunder. Except as
referred to in the Company's SEC Documents, neither the Company nor any of its
subsidiaries is subject to any judgment, decree, injunction, rule or order of
any court, governmental department, commission, agency, instrumentality or
authority, or any arbitrator which prohibits or restricts the consummation of
the transactions contemplated hereby or would have a material adverse effect on
the Company's business or financial condition or the transactions contemplated
hereunder.
3.6 SEC DOCUMENTS; THE COMPANY'S FINANCIAL STATEMENTS. The Company is a
reporting company under the Securities Exchange Act of 1934 (the "Exchange
Act"), and files annual and periodic reports (the "SEC Documents") with the
Securities and Exchange Commission (the "SEC"). As of their respective filing
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended, applicable to the Company
and to the knowledge of the Company none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements made therein, in light
of the circumstances in which they were made, not misleading, except to the
extent corrected by a subsequently filed document with the SEC. The SEC
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Documents contain an audited consolidated balance sheet of the Company as of the
end of the last completed fiscal year (the "Balance Sheet") and the related
audited consolidated statements of income and cash flow for the year then ended
(collectively, the "Financials"). The Financials have been prepared in
accordance with GAAP applied on a basis consistent through the periods indicated
and consistent with each other. The Financials present fairly the consolidated
financial condition and operating results and cash flows of the Company and its
subsidiaries as of the dates and during the periods indicated therein. Since the
date of the Balance Sheet and until the date of this Agreement, there has not
occurred any material adverse change in the business, assets or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a whole,
which has not been reflected in the SEC Documents.
3.7 FORM S-3. The Company has delivered to each Investor a copy of the
Form S-3. The Company represents and warrants that the Form S-3 has been
declared effective by the SEC and is not subject to any stop order. The Company
is not aware of any event, fact or circumstance, which would cause the Form S-3
to contain a material misstatement. The Company at the time of the initial
filing of the Form S-3 met the SEC's eligibility requirements for use of a Form
S-3 in connection with a primary offering.
3.8 DISCLOSURE. Neither this Agreement, nor any of the schedules,
attachments, or certificates attached to this Agreement or delivered by the
Company on the Closing Date, contains any untrue statements of material fact or
omits a material fact necessary to make the statements contained herein or
therein not misleading. There is no fact which the Company has not disclosed to
the Investors, orally or in writing, and of which any of the Company's directors
or officers are aware, which could reasonably be anticipated to have a material
adverse effect, upon the financial condition, operating results or assets, of
the Company. Notwithstanding the foregoing, certain information provided by the
Company to the Investors contained statements that are forward-looking, which
are covered by the "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. Such forward-looking information involves important risks
and uncertainties that could significantly affect anticipated results in the
future, and accordingly, such results may differ materially from those expressed
in any forward-looking statements made by or on behalf of the Company.
3.9 NO CONSENTS. Other than the compliance with the first right to
participate held by certain existing shareholder referred to in the Term Sheet,
the execution, delivery and performance by the Company of this Agreement and the
offer, issuance and sale of the Shares require no consent of, action by or in
respect of, or filing with, any individual or entity, governmental body, agency,
or official other than filings that have been made pursuant to applicable state
securities laws and post-sale filings pursuant to applicable state and federal
securities laws which the Company undertakes to file within the applicable time
periods.
3.10 REGULATORY COMPLIANCE. The Company is not in violation of any
applicable law, regulation, judgment, order or consent decree (of any
governmental or non-governmental regulatory or self-regulatory agency or any
organized exchange, including without limitation, the SEC, any state or local
securities or insurance regulatory body, or the Internal Revenue Service), which
violation is likely to have a material adverse effect on the Company's business,
financial condition, or this transaction.
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3.11 REGULATORY PROCEEDINGS, INVESTIGATIONS AND INQUIRIES. The Company
has not been the subject of any material regulatory proceeding, examination,
investigation or inquiry (known to the Company), including any pending or
threatened regulatory proceeding, investigation or inquiry (known to the
Company) (including without limitation any by governmental or non-governmental
regulatory or self-regulatory agency or any organized exchange) relating to the
Company.
3.12 REGISTRATION STATEMENT. The Company's Registration Statement on
Form S-3 (the "Registration Statement") was declared effective by the SEC on
March 31, 2003. The Registration Statement is effective on the date hereof and
the Company has not received notice that the SEC has issued or intends to issue
a stop order with respect to such Registration Statement or that the SEC
otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in
writing to do so. The Registration Statement (including the information or
documents incorporated by reference therein), as of the time it was declared
effective, and any amendments or supplements thereto, each as of the time of
filing, did not contain any untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. With respect to each completed Put, the
Company hereby agrees to file with the SEC a prospectus supplement in accordance
with the required timelines as prescribed under Rule 424(b)(2) of the Securities
Act. The issuance of the Shares to the Investor is registered by the
Registration Statement and, when issued to the Investor, the Shares shall be
freely tradeable by the Investors.
3.14 COMPLIANCE WITH NASDAQ CONTINUED LISTING REQUIREMENTS. The Company
is in compliance with applicable Nasdaq SmallCap Market continued listing
requirements. There are no proceedings pending or, to the Company's knowledge,
threatened against the Company relating to the continued listing of the Common
Stock on the Nasdaq SmallCap Market and the Company has not received any
currently effective notice of, nor to the Company's knowledge is there any basis
for, the delisting of the Common Stock from the Nasdaq SmallCap Market.
4. REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR
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Each Investor hereby represents and warrants to the Company the following:
4.1 AUTHORITY. Investor has full legal right, power and capacity to
enter into, execute, deliver and perform this Agreement and all attendant
documents and instruments contemplated hereby. This Agreement has been duly
executed and delivered and constitutes the legal, valid and binding obligation
of Investor and is enforceable with respect to Investor in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency, priority
or other laws or court decisions relating to or affecting generally the
enforcement of creditors' rights or affecting generally the availability of
equitable remedies.
4.2 NO VIOLATION OF AGREEMENTS. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereunder
by Investor will violate or conflict with any judgment, order, decree, statute,
rule or regulation applicable to Investor or its assets or properties.
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4.3 DISCLOSURE OF INFORMATION. Subject in part to the truth and
accuracy of the representations and warranties of the Company, the Investor
believes that it has received all the information that it considers necessary or
appropriate for deciding whether to purchase the Shares. The Investor further
represents that it has had an opportunity to review the SEC Documents and the
Form S-3, and had sufficient opportunity to ask questions and receive answers
from the Company and its directors and officers regarding the terms and
conditions of the offering of the Shares and the business and operations of the
Company. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 3 of this Agreement or the right of the
Investor to rely thereon.
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
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The obligations of the Company to consummate each Put contemplated by
this Agreement shall be subject to the satisfaction of each of the conditions
set forth below, any or all of which may be waived by the Company in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by the Company of any other condition or of any of the
Company's rights or remedies, at law or in equity, if the Investor shall be in
default or breach of any of its representations, warranties or agreements under
this Agreement:
5.1 PURCHASE PRICE. Investor shall deliver the applicable Put purchase
price on the date specified in Section 1.2.
5.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor contained in this Agreement shall be accurate and
complete on and as of each Put Closing Date with the same effect as though such
representations and warranties had been made on or as of such date.
5.3 PERFORMANCE OF AGREEMENTS. Each and all of the conditions precedent
and agreements of the Investor subject to satisfaction on or before the Put
Closing Date pursuant to the terms of this Agreement shall have been performed
or satisfied.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF INVESTOR
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The obligations of the Investor to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction of each of
the conditions set forth below, any or all of which may be waived by each
Investor in whole or in part without prior notice; provided, however, that no
such waiver of a condition shall constitute a waiver by such Investor of any
other condition or of any of the Investor's rights or remedies, at law or in
equity, if the Company shall be in default or breach of any of its
representations, warranties or agreements under this Agreement:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in this Agreement shall be accurate and
complete on and as of the Put Closing Date with the same effect as though such
representations and warranties had been made on or as of such date.
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6.2 PERFORMANCE OF AGREEMENTS. Each and all of the conditions precedent
and agreements of the Company subject to satisfaction on or before the Put
Closing Date pursuant to the terms of this Agreement shall have been performed
or satisfied.
6.3 NO ADVERSE EVENTS. Between the date hereof and the Put Closing
Date, neither the business, assets or condition, financial or otherwise, of the
Company taken as a whole shall have been materially adversely affected in any
manner.
7. MISCELLANEOUS
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7.1 EXPENSES, COMMISSIONS AND TAXES. Each party shall bear and pay its
own expenses, including legal, accounting and other professional fees, and taxes
incurred in connection with the transactions referred to in this Agreement. The
party responsible under applicable law shall bear and pay in their entirety all
other taxes and registration and transfer fees, if any, payable by reason of the
sale and conveyance of the Shares.
7.2 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER. This Agreement, together
with the related agreements or certificates referenced herein, constitutes the
final, exclusive and complete understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior understandings and
discussions with respect thereto. No variation or modification of this Agreement
and no waiver of any provision or condition hereof, or granting of any consent
contemplated hereby, shall be valid unless in writing and signed by the party
against whom enforcement of any such variation, modification, waiver or consent
is sought.
7.3 FURTHER ASSURANCES. The parties hereto shall use their best
efforts, and shall cooperate with one another, to secure all necessary consents,
approvals, authorizations, exemptions and waivers from third parties as shall be
required in order to consummate the transactions contemplated hereby, and shall
otherwise use their best efforts to cause such transactions to be consummated in
accordance with the terms and conditions hereof. At any time or from time to
time after the Closing Date, each party hereto, shall execute and deliver any
further instruments or documents and take all such further action as such
requesting party may reasonably request in order to consummate and document the
transactions contemplated hereby.
7.4 CAPTIONS. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the constructing or
interpretation of any provision of this Agreement.
7.5 SECTION REFERENCES. Unless otherwise noted, all section references
herein are to sections of this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including electronically transmitted counterparts, each of which
when so executed shall constitute an original copy hereof, but all of which
together shall constitute one agreement.
7.7 SUCCESSORS AND ASSIGNS. Neither party shall have the right to
assign this Agreement.
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7.8 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
7.9 NOTICES. All notices, requests, demands and other communications
hereunder ("Notices") shall be in writing and shall be deemed to have been duly
given if delivered by hand or by registered or certified mail or upon fax notice
with confirmation of receipt, as follows:
If to Investor: Xxxxxx Management, Ltd.
Jerusalem, Israel
Attention: Mr. Breitkope
Fax: 000-000-0-000-0000
with copy to: Wall & Broad Equities
Xx. Xxxxxx Xxxx
Fax: 000-000-0000
If to the Company: Peregrine Pharmaceutical, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn.: President
Fax: 000-000-0000
with copy to: Xxxx, Xxxxx & Xxxxxxx
Xx. Xxxx Xxxxxxx
Fax: 000-000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All Notices shall be deemed received on the date
of delivery or, if mailed, on the date appearing on the return receipt therefor.
7.10 LAW GOVERNING. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of California, without
regard to its choice-of-laws or conflicts-of-law rules.
7.11 SURVIVAL. The representations and warranties contained in this
Agreement shall survive the Closing Date indefinitely.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of date first above written.
"The Company"
Peregrine Pharmaceuticals, Inc.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
--------------------------------
Name: XXXX XXXXX
Title: CHIEF FINANCIAL OFFICER
"Investor"
Xxxxxx Management, Ltd
By: /s/ Xxxxxx Breitkope
--------------------------------
Name: XXXXXX BREITKOPE
Title: DIRECTOR
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EXHIBIT I
PUT NOTICE
PEREGRINE PHARMACEUTICALS, INC. (the "Company") pursuant to the terms
of the Common Stock Purchase Agreement dated July 24, 2003 (the "Purchase
Agreement") hereby intends, subject to the Put Limit (as defined in the Purchase
Agreement), to elect to exercise a Put to sell the number of shares of Common
Stock of the Company specified below at a price of $1.45 per share, to Xxxxxx
Management, Ltd., the Investor, as of the Put Closing Date written below.
Date of Put Notice: ___________________
Intended Put Date: ___________________
Intended Put Share Amount: ___________________
Aggregate Purchase Price: ___________________
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