Exhibit 10.42
COMMON STOCK PURCHASE AGREEMENT
Between
CV THERAPEUTICS, INC.
and
BIOTECH MANUFACTURING LTD.
Dated as of March 7, 1997
Confidential treatment has been requested for portions of this document.
Brackets indicate portions of text that have been omitted. A separate filing
of such omitted text has been made with the Commission as part of the
Company's application for confidential treatment.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of this
7th day of March, 1997 (the "Effective Date"), between CV Therapeutics, Inc.
(the "Company") and Biotech Manufacturing Ltd., a wholly-owned subsidiary of
Biogen, Inc.(the "Purchaser").
WHEREAS, the Purchaser desires to acquire and the Company is willing to
issue and sell to the Purchaser shares of Common Stock, $.001 par value (the
"Common Stock"), of the Company, subject to the terms and conditions specified
herein.
NOW, therefore, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Agreement, references to
either gender shall include the other gender, and the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Agreement" means this Common Stock Purchase Agreement, as amended,
modified or supplemented from time to time.
"Biogen Agreement" means the Research Collaboration and License
Agreement between the Company and Biogen, Inc. of even date herewith, as
amended, modified or supplemented from time to time.
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"Business Day" means any day on which commercial banks are not
authorized or required by law to close in New York, New York.
"BML Collaboration Agreement" means the Research Collaboration and
License Agreement between the Company and the Purchaser of even date
herewith, as amended, modified or supplemented from time to time.
"Commission" means the United States Securities and Exchange
Commission, or any other agency successor thereto.
"Common Stock" has the meaning specified in the recitals to this
Agreement.
"Company" means and shall include CV Therapeutics, Inc., a Delaware
corporation, and its successors and permitted assigns.
"Current Per Share Market Price" of the Common Stock on any date
shall mean the average of the daily closing prices per share of Common
Stock for the 20 consecutive Trading Days immediately prior to such date;
PROVIDED that in the event that the current per share market price of
Common Stock is determined during a period following the announcement by
the Company of (A) a dividend or distribution on the Common Stock payable
in shares of Common Stock or securities convertible into shares of Common
Stock or (B) any subdivision, combination or reclassification of the
Common Stock and prior to the expiration of 20 Trading Days after the
ex-dividend date for such dividend or distribution, or the record date
for such subdivision, combination or reclassification, then, and in each
such case, the Current Per Share Market Price shall be appropriately
adjusted to reflect ex-dividend trading or such subdivision, combination
or reclassification. The closing price for each day shall be the last
reported sales price of the Common Stock as reported by the Nasdaq
National Market, or the primary national securities exchange on which the
Common Stock is then quoted; provided, however, that if the Common Stock
is neither traded on the Nasdaq National Market nor on a national
securities exchange, the price
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referred to above shall be the price in the over-the-counter market as
reported by the National Association of Securities Dealers' Automated
Quotation System or, if not so reported, the price as reported by the
National Quotation Bureau, Inc., or any organization performing a
similar function.
[ * ] Closing" has the meaning specified in Section 3.01(a).
[ * ] Date" has the meaning specified in Section 3.01(a).
[ * ] Shares" has the meaning specified in Section 3.01(a).
"Initial Closing" has the meaning specified in Section 2.01(b).
"Initial Shares" has the meaning specified in Section 2.01(a).
"Investor Rights Agreement" means the Amended and Restated Investor
Rights Agreement dated May 29, 1996, as amended, modified or supplemented
from time to time, by and among the Company and certain investors of the
Company (including the Purchaser).
"Loan Agreement" means the Loan Agreement of even date herewith
between the Company and the Purchaser, as amended, modified or
supplemented from time to time.
"Milestone Closing" has the meaning specified in Section 3.03(a).
"Milestone Date" has the meaning specified in Section 3.03(a).
"Milestone Shares" has the meaning specified in Section 3.03(a).
"Person" means an individual, corporation, partnership, association,
joint venture, trust, or unincorporated
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organization, or a government or any agency or political subdivision
thereof.
"Purchaser" means and shall include Biotech Manufacturing Ltd., a
wholly-owned subsidiary of Biogen, Inc., and its successors and permitted
assigns.
"Recapitalization Event" means any stock dividend, stock split,
combination, reorganization, recapitalization, reclassification,
consolidation, merger or similar event involving a change in the
Company's corporate structure.
[ * ] Closing" has the meaning specified in Section 3.02(a).
[ * ] Date" has the meaning specified in Section 3.02(a).
[ * ] Shares" has the meaning specified in Section 3.02(a).
"Securities Act" means the Securities Act of 1933 or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Shares" means (i) the Initial Shares, (ii) the [ * ] Shares,
if issued pursuant to Section 3.01, (iii) the [ * ] Shares, if
issued pursuant to Section 3.02, (iv) the Milestone Shares, if issued
pursuant to Section 3.03 and (v) any other shares of Common Stock
issued to the Purchaser in respect of the foregoing Shares because of any
Recapitalization Event.
"Trading Day" means a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is
open for the transaction of business or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, a
Business Day.
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"Transaction Documents" shall mean this Agreement and any other
instruments or certificates to be executed and delivered in connection
with this Agreement upon the Initial Closing.
ARTICLE II
PURCHASE AND SALE OF THE INITIAL SHARES
SECTION 2.01 PURCHASE AND SALE OF THE INITIAL SHARES.
(a) ISSUANCE OF THE INITIAL SHARES. Subject to the terms and
conditions of this Agreement, at the Initial Closing (as defined below) the
Company agrees to issue and sell to the Purchaser and the Purchaser agrees to
purchase from the Company, at an aggregate purchase price of seven million
dollars ($7,000,000), such number of shares (rounded to the nearest whole share)
of Common Stock (the "Initial Shares") equal to 7,000,000 divided by the product
of 1.35 times the Current Per Share Market Price as of the date which is two
Business Days prior to the Initial Closing. Notwithstanding the foregoing, in
no event shall the above calculation result in the Purchaser receiving less than
583,333 Initial Shares nor more than 736,842 Initial Shares in exchange for
payment of the aggregate purchase price as specified above.
(b) INITIAL CLOSING; DELIVERY OF THE INITIAL SHARES. The purchase
and sale of the Initial Shares shall take place at a closing (the "Initial
Closing") to be held at the offices of Biogen, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at [___] A.M. (local time) on March 10, 1997, or at such
other location, time and date as may be mutually agreed upon by the parties.
At the Initial Closing, subject to the terms and conditions contained in this
Agreement, the Company will provide evidence satisfactory to the Purchaser
that the Company has taken all steps necessary to cause to be issued to the
Purchaser a stock certificate evidencing the Initial Shares, registered in
the name of the Purchaser and dated as of the date of the Initial Closing,
which stock certificate shall be delivered to the Purchaser within two
Business Days of the Initial Closing, against delivery
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of a certified or official bank check payable to the order of the Company in
New York Clearing House or similar same day funds or against receipt of a
wire transfer of immediately available funds to an account of the Company
specified to the Purchaser, in an amount equal to seven million dollars
($7,000,000), in payment of the full purchase price for the Initial Shares.
ARTICLE III
PURCHASE OF ADDITIONAL SHARES
SECTION 3.01 PURCHASE AND SALE OF [ * ] SHARES.
(a) [ * ] SHARES. On the date which is the [ * ] of the
Effective Date or, if such date is not a Business Day, on the next Business
Day (the "[ * ] Date"), unless either the Company or Biogen, Inc. has
delivered a notice of termination of the Research Program (as defined in the
Biogen Agreement) prior to the [ * ] Date, in accordance with the
provisions of Section 8.5 of the Biogen Agreement, the Company shall become
obligated to issue and sell to the Purchaser and the Purchaser shall become
obligated to purchase from the Company, in each case subject to and in
reliance upon the representations, warranties, terms and conditions of this
Agreement, at an aggregate purchase price of [ * ] such number of shares
(rounded to the nearest whole share) of Common Stock (the "[ * ] Shares")
equal to [ * ] divided by the Current Per Share Market Price on the date
which is two Business Days prior to the [ * ] Date at a closing (the
"[ * ] Closing").
(b) [ * ] CLOSING; DELIVERY OF [ * ] SHARES. The purchase and
sale of the [ * ] Shares shall take place at the [ * ] Closing, to be
held at the principal offices of the Company, at 10:00 a.m. (local time) on
the date determined pursuant to subsection (a) above, or at such other
location, time, or date as may be mutually agreed upon. At the [ * ]
Closing, subject to the terms and conditions contained in this Agreement, the
Company will issue a stock certificate evidencing the [ * ]
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Shares, registered in the name of the Purchaser, against delivery of a
certified or official bank check payable to the order of the Company in New
York Clearing House or similar same day funds or against receipt of a wire
transfer of immediately available funds to an account of the Company
specified to the Purchaser, in the amount equal to [ * ] in payment of the
full purchase price for the [ * ] Shares.
SECTION 3.02 PURCHASE AND SALE OF [ * ] SHARES.
(a) [ * ] SHARES. On the date which is the [ * ] of the
Effective Date or, if such date is not a Business Day, on the next Business
Day (the "[ * ] Date"), unless either the Company or Biogen, Inc. has
delivered a notice of termination of the Research Program (as defined in the
Biogen Agreement) prior to the [ * ] Date, in accordance with the
provisions of Section 8.5 of the Biogen Agreement, the Company shall become
obligated to issue and sell to the Purchaser and the Purchaser shall become
obligated to purchase from the Company, in each case subject to and in
reliance upon the representations, warranties, terms and conditions of this
Agreement, at an aggregate purchase price of [ * ] such number of shares
(rounded to the nearest whole share) of Common Stock (the "[ * ] Shares")
equal to [ * ] divided by the Current Per Share Market Price on the date
which is two Business Days prior to the [ * ] Date at a closing (the
"[ * ] Closing").
(b) [ * ] CLOSING; DELIVERY OF [ * ] SHARES. The purchase and
sale of the [ * ] Shares shall take place at the [ * ] Closing, to be
held at the principal offices of the Company, at 10:00 a.m. (local time) on
the date determined pursuant to subsection (a) above, or at such other
location, time, or date as may be mutually agreed upon. At the [ * ]
Closing, subject to the terms and conditions contained in this Agreement, the
Company will issue a stock certificate evidencing the [ * ] Shares,
registered in the name of the Purchaser, against delivery of a certified or
official bank check payable to
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the order of the Company in New York Clearing House or similar same day funds
or against receipt of a wire transfer of immediately available funds to an
account of the Company specified to the Purchaser, in the amount equal to
[ * ] in payment of the full purchase price for the [ * ] Shares.
SECTION 3.03 PURCHASE AND SALE OF MILESTONE SHARES
(a) MILESTONE SHARES. Fifteen days after the date on which the
Purchaser gives notice to the Company of its decision to commence a Phase III
clinical study of a PRODUCT [ * ], or otherwise becomes obligated to
purchase equity in the Company in connection with such milestone, as defined
and provided for in the BML Collaboration Agreement, or, if such date is not
a Business Day, on the next Business Day (the "Milestone Date"), the Company
shall become obligated to issue and sell to the Purchaser and the Purchaser
shall become obligated to purchase from the Company, in each case subject to
and in reliance upon the representations, warranties, terms and conditions of
this Agreement, at an aggregate purchase price of [ * ] such number of
shares (rounded to the nearest whole share) of Common Stock (the "Milestone
Shares") equal to [ * ] divided by the Current Per Share Market Price on
the date which is two Business Days prior to the Milestone Date at a closing
(the "Milestone Closing").
(b) MILESTONE CLOSING; DELIVERY OF MILESTONE SHARES. The purchase
and sale of the Milestone Shares shall take place at the Milestone Closing,
to be held at the principal offices of the Company, at 10:00 a.m. (local
time) on the date determined pursuant to subsection (a) above, or at such
other location, time, or date as may be mutually agreed upon. At the
Milestone Closing, subject to the terms and conditions contained in this
Agreement, the Company will issue a stock certificate evidencing the
Milestone Shares, registered in the name of the Purchaser, against delivery
of a certified or official bank check payable to the order of the Company in
New York Clearing House or similar same day funds or against receipt of a
wire transfer of immediately available funds to an account of the Company
specified to the Purchaser, in the amount equal to [ * ]
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in payment of the full purchase price for the Milestone Shares.
SECTION 3.04 LIMIT ON SHARE OWNERSHIP. Notwithstanding any provision of
this Agreement to the contrary, Purchaser shall in no event be required to
purchase shares of Common Stock if, after giving effect to such purchase, the
sum of (i) the number of shares of Common Stock purchased hereunder and (ii) the
number of shares of Common Stock of the Company tendered to the Purchaser in
connection with the Loan Agreement would exceed 19.9% of the amount of the then
outstanding shares of Common Stock. Notwithstanding the foregoing, in order to
insure for the Company the benefits of the transactions contemplated in this
Agreement and the Loan Agreement, and the covenants set forth in Section 7.01
hereof, to the extent that Purchaser has acquired Voting Securities in
transactions other than those described in Article III hereof and the Loan
Agreement ("Other Voting Securities") the Purchaser shall sell such Other Voting
Securities to the extent necessary to permit the transactions contemplated
herein or in the Loan Agreement to be consummated without violation of the
provisions of this Section 3.04 and Section 7.01 hereof.
SECTION 3.05 CERTAIN TRADING RESTRICTIONS. Purchaser will not, nor will
it permit any of its Affiliates (as such term is used in Rule 12b-2 of the
Securities Exchange Act of 1934 (the "Exchange Act"), such term to have such
definition as used throughout this Agreement) to, during the 30 consecutive
Trading Days prior to the date of any determination of Current Per Share Market
Price hereunder, (a) acquire any Voting Securities (as defined in Section 7.01),
(b) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any Voting Securities or (c) enter into any swap or similar
agreement that transfers, in whole or in part, the economic risk of ownership of
Voting Securities, whether any such transaction described in clause (a), (b) or
(c) above is to be settled by delivery of Voting Securities or such other
securities, in cash or otherwise.
SECTION 3.06 COMPLIANCE WITH NASDAQ STOCK MARKET RULE
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4460(i)(1)(D). Notwithstanding any provision of this Agreement to the
contrary, except as otherwise permitted by the rules of the NASDAQ Stock
Market, the Company shall in no event be obligated to issue and sell, and the
Purchaser shall in no event be obligated to purchase, shares of Common Stock
pursuant to Article III hereof or the Loan Agreement, to the extent that such
issuance and sale would result in the number of shares of Common Stock
purchased hereunder and tendered in connection with the Loan Agreement
constituting (i) the sale or issuance of 20% or more of the Common Stock or
(ii) the sale or issuance of securities constituting 20% or more of voting
power, for less than the greater of book or market value.
ARTICLE IV
CONDITIONS TO CLOSINGS
SECTION 4.01 MUTUAL CONDITIONS TO CLOSINGS. The obligation of the
Purchaser to purchase and pay for, and the obligation of the Company to issue
and sell to the Purchaser, the Initial Shares at the Initial Closing, the
[ * ] Shares at the [ * ] Closing, the [ * ] Shares at the [ * ]
Closing, and the Milestone Shares at the Milestone Closing, in each case is
subject to the following conditions:
(i) NO INJUNCTION. No injunction or order of any court or other
governmental authority restraining the consummation of the transactions provided
for herein or contemplated by the other Transaction Documents shall be in
effect; and
(ii) NO TERMINATION. This Agreement shall not have been terminated
pursuant to Section 8.03, and neither the BML Collaboration Agreement nor the
Biogen Agreement shall have been terminated.
SECTION 4.02 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of
the Purchaser to purchase and pay for the Initial Shares at the Initial
Closing, the [ * ] Shares at the [ * ] Closing, the [ * ] Shares at
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the [ * ] Closing and the Milestone Shares at the Milestone Closing, in
each case is subject to the following additional conditions:
(i) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties of the Company set forth in Article V hereof shall be true
and correct in all material respects on the date of such closing;
(ii) EXECUTED COUNTERPARTS. The Purchaser shall have received prior
to or at the Initial Closing counterparts of each of the Transaction
Documents, the Biogen Agreement, the BML Collaboration Agreement and the
Loan Agreement, each in form and substance reasonably satisfactory to the
Purchaser, duly executed by the Company;
(iii) DELIVERY OF STOCK CERTIFICATES. The Company shall have
delivered to the Purchaser (i) at the Initial Closing, evidence
satisfactory to the Purchaser that the Company has taken all steps
necessary to cause to be issued to the Purchaser a stock certificate
evidencing the Initial Shares, as specified in Section 2.01(b), and (ii)
at the other closings contemplated hereunder, a stock certificate
evidencing the [ * ] Shares, the [ * ] Shares or the Milestone
Shares (as the case may be), registered in the name of the Purchaser;
(iv) OPINION OF COUNSEL. The Purchaser shall have received prior to
or at the Initial Closing an opinion from counsel to the Company in
substantially the form attached hereto as Exhibit A;
(v) DOCUMENTATION AT INITIAL CLOSING. The Purchaser shall have
received, prior to or at the Initial Closing, a certificate, executed by
the Secretary of the Company and dated as of the date of the Initial
Closing, together with and certifying as to (A) the resolutions of the
Board of Directors of the Company authorizing the execution and delivery
of this Agreement, the Biogen Agreement, the BML Collaboration Agreement,
the Loan Agreement and the other Transaction Documents and the
performance by the Company of all transactions contemplated
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hereby and thereby; (B) a copy of the Certificate of Incorporation of the
Company, as amended and in effect as of the date of the Initial Closing;
(C) a copy of the by-laws of the Company, as amended and in effect as of
the date of the Initial Closing; and (D) the names of the officers of the
Company authorized to sign the Transaction Documents together with the
true signatures of such officers;
(vi) DOCUMENTS AND PROCEEDINGS. All documents to be provided to the
Purchaser hereunder, and all corporate and other proceedings taken or
required to be taken in connection with the transactions contemplated
hereby and to be consummated at or prior to the Initial Closing, the
[ * ] Closing and the [ * ] Closing and the Milestone Closing (as
the case may be) and all documents incident thereto, shall be
satisfactory in form and substance to the Purchaser or its counsel; and
(vii) WAIVER. Any condition specified in this Section 4.02 may
be waived by the Purchaser.
SECTION 4.03 CONDITIONS TO COMPANY'S OBLIGATIONS. The obligation of
the Company to issue and sell the Initial Shares at the Initial Closing, the
[ * ] Shares at the [ * ] Closing, the [ * ] Shares at the [ * ]
Closing and the Milestone Shares at the Milestone Closing, in each case is
subject to the following additional conditions:
(i) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties of the Purchaser set forth in Article V hereof shall be
true and correct in all material respects on the date of such closing;
(ii) EXECUTED COUNTERPARTS. The Company shall have received prior
to or at the Initial Closing counterparts of each of the Transaction
Documents, the Biogen Agreement, the BML Collaboration Agreement and the
Loan Agreement, each in form and substance reasonably satisfactory to the
Company, duly executed by the Purchaser (or Biogen, Inc., as the case may
be);
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(iii) PAYMENT. The Company shall have received payment in full
for the Initial Shares, the [ * ] Shares, the [ * ] Shares or the
Milestone Shares (as the case may be), in accordance with Section
2.01, 3.01, 3.02 or 3.03, as applicable;
(iv) DOCUMENTATION AT INITIAL CLOSING. The Company shall have
received, prior to or at the Initial Closing, a certificate, executed by
the Secretary or an Assistant Secretary of Biogen, Inc. and dated as of
the date of the Initial Closing, together with and certifying as to (A)
the resolutions of the Board of Directors of Biogen, Inc. authorizing the
execution and delivery of this Agreement, the Biogen Agreement, the BML
Collaboration Agreement, the Loan Agreement and the other Transaction
Documents and the performance by Biogen, Inc. or the Purchaser of all
transactions contemplated hereby and thereby; and (B) the names of the
officers of each of Biogen, Inc. and the Purchaser authorized to sign the
Transaction Documents together with the true signatures of such officers;
(v) DOCUMENTS AND PROCEEDINGS. All documents to be provided to the
Company hereunder, and all corporate and other proceedings taken or
required to be taken in connection with the transactions contemplated
hereby and to be consummated at or prior to the Initial Closing, the
[ * ] Closing, the [ * ] Closing and the Milestone Closing (as
the case may be) and all documents incident thereto, shall be
satisfactory in form and substance to the Company or its counsel; and
(vi) WAIVER. Any condition specified in this Section 4.03 may be
waived by the Company.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Purchaser as follows:
(a) ORGANIZATION AND STANDING OF THE COMPANY. The Company is a duly
organized and validly existing corporation in good standing under the laws of
the State of Delaware and has all requisite corporate power and authority to own
and operate its assets and properties and to conduct its business as presently
conducted, except where the failure to do so would not have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(b) CORPORATE ACTION. The Company has all necessary corporate
power and has taken all corporate action required to authorize its execution
and delivery of, and its performance under, the Transaction Documents and the
Company has all necessary corporate power and has taken all corporate action
required to authorize the issuance and sale of the Initial Shares, the [ * ]
Shares, the [ * ] Shares and the Milestone Shares and to consummate the
other transactions contemplated by the Transaction Documents.
(c) GOVERNMENTAL APPROVALS. No authorization, consent, approval,
license, exemption of or filing or registration with any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is necessary for, or in connection
with, the issuance and sale of (w) the Initial Shares on the date of the
Initial Closing, (x) the [ * ] Shares on the date of the [ * ] Closing,
(y) the [ * ] Shares on the date of the [ * ] Closing, or (z) the
Milestone Shares on the date of the Milestone Closing, or the execution and
delivery by the Company of, or for the performance by it of its obligations
under, the Transaction Documents.
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(d) CAPITALIZATION. As of the date hereof, the authorized capital
stock of the Company is 30,000,000 shares of Common Stock, $.001 par value,
of which 6,211,817 shares are issued and outstanding as of the date hereof
and of which 23,039 shares are treasury shares as of the date hereof. The
Initial Shares, when issued against payment of the aggregate purchase price
set forth in Section 2.01, the [ * ] Shares, if and when issued against
payment of the aggregate purchase price set forth in Section 3.01, the [ * ]
Shares, if and when issued against payment of the aggregate purchase price
set forth in Section 3.02, and the Milestone Shares, if and when issued
against payment of the aggregate purchase price set forth in Section 3.03,
will be duly authorized, validly issued and fully paid and non-assessable and
not subject to any lien, claims or encumbrances by reason of the Company's
charter or bylaws or by reason of any other consensual action taken by the
Company. As of the date hereof, except as described or contemplated in the
IPO Registration Statement (as defined in Section 5.01(j)) and the SEC
Reports (as defined in Section 5.01(k)), there are no options, warrants,
convertible securities or other rights to purchase shares of capital stock or
other securities of the Company which are authorized, issued or outstanding,
nor is the Company obligated in any other manner to issue shares of its
capital stock or other securities, and the Company has no obligation to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect thereof, except as contemplated by the Transaction Documents. Except
as described in the IPO Registration Statement and the SEC Reports, and
except as otherwise contemplated by the Transaction Documents, (i) no person
is entitled to any preemptive right, catch-up right, right of first refusal
or similar right with respect to the issuance of any capital stock of the
Company, (ii) there are no restrictions on the transfer of shares of capital
stock of the Company other than those imposed by relevant federal and state
securities laws and (iii) there exists no agreement between the Company's
stockholders and to which the Company is party with respect to the voting or
transfer of the Company's capital stock or with respect to any other aspect
of the Company's affairs.
(e) REGISTRATION RIGHTS. As of the Initial Closing Date, no person
has demand or other rights to cause the Company
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to file any registration statement under the Securities Act relating to any
securities of the Company or any right to participate in any such
registration statement except as set forth in the Investor Rights Agreement.
(f) ENFORCEABILITY. The Company has duly authorized, executed and
delivered the Transaction Documents, and the Transaction Documents constitute
the legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and to general principles
of equity and limitations on availability of equitable relief, including
specific performance, and except as rights to indemnification therein may be
limited by applicable laws.
(g) ABSENCE OF CONFLICTS. The Company's execution, delivery and
performance of its obligations under this Agreement do not and will not (i)
contravene its Amended and restated Certificate of Incorporation or Restated
By-laws (ii) violate any law, rule, regulation, order, judgment or decree
applicable to or binding upon the Company or its properties, which violation
would have a material adverse effect on the Company and its subsidiaries
taken as a whole, (iii) constitute a breach or default or require any consent
under any agreement or instrument to which the Company is a party or by which
the Company or its properties is bound or affected, which breach or default,
or the absence of such consent, would have a material adverse effect on the
Company and its subsidiaries taken as a whole, or (iv) require any consent,
permit, approval, action, filing or recording.
(h) FINANCIAL STATEMENTS. The Company has previously furnished to
the Purchaser a copy of the unaudited balance sheet of the Company at
December 31, 1996 and any subsequent complete fiscal year and the related
income statement for the year then ended (collectively, the "Financial
Statements"). The Financial Statements are correct in all material respects,
present fairly the financial condition and results of operations of the
Company, as of the dates and for the periods indicated, and have been
prepared in accordance with generally accepted accounting
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principles consistently applied, subject to the absence of notes and normal
year end adjustments.
(i) ABSENCE OF MATERIAL ADVERSE CHANGE. Since the date of the
Financial Statements, there has been no change in the assets, liabilities or
financial condition of the Company which, when taken together with all other
changes in the assets, liabilities or financial condition of the Company, has
had a material adverse effect on the business, prospects, financial
condition, operations, property or affairs of the Company.
(j) FULL DISCLOSURE. The Company has furnished or made available
to Purchaser the following documents, and the Company warrants that the
information contained in such documents, as of their respective dates (or if
amended, as of the date of such amendment), did not contain any untrue
statement of a material fact, and did not omit to state any material fact
necessary to make any statement, in light of the circumstances under which
such statement was made, not misleading:
(i) The Company's Registration Statement No. 333-12675 declared
effective by the Securities Exchange Commission on November 19, 1996 and
Prospectus dated November 19, 1996 (the "IPO Registration Statement"); and
(ii) All other documents subsequently filed by the Company with the
SEC pursuant to the reporting requirements of the 1934 Act.
(k) SEC REPORTS.
(i) The Company has filed with the Commission all reports
("SEC Reports") required to be filed by it under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). All of the SEC Reports
filed by the Company comply in all material respects with the
requirements of the Exchange Act. All financial statements contained in
the SEC Reports have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the period
indicated ("GAAP"). Each balance sheet presents fairly in accordance
with GAAP the financial position of the Company as of the date of such
balance
18
sheet, and each statement of operations, of stockholders' equity and of
cash flows presents fairly in accordance with GAAP the results of
operations, the stockholders' equity and the cash flows of the Company
for the periods then ended.
(ii) The SEC Reports, as of their respective dates (or if
amended, as of the date of such amendment), and this Agreement taken
together as a whole will not, on the date of the Initial Closing or the
date of any subsequent closing pursuant to Article III, as the case may
be, contain any untrue statement of a material fact or omit to state any
material fact required to be state therein, or necessary to make the
statements contained therein, in light of the circumstances under which
they were made, not misleading.
(l) SECURITIES LAWS. Assuming the accuracy of the representations
and warranties of the Purchaser contained in Section 5.02 hereof, the issuance
of the Shares is exempt from the provisions of the Securities Act. All notices,
filings, registrations, or qualifications under state securities or "blue-sky"
laws which are required in connection with the offer, issue and delivery of the
Shares pursuant to this Agreement, if any, have been or will be completed by the
Company.
(m) CLOSING DATE. The representations and warranties of the Company
contained in this Section 5.01 and elsewhere in this Agreement will be true and
correct in all material respects on the date of the Initial Closing or the date
of any subsequent closing pursuant to Article III, as the case may be, as though
then made, except as affected by the transactions expressly contemplated by this
Agreement.
SECTION 5.02 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to the Company as follows:
(a) ORGANIZATION AND STANDING. The Purchaser is a duly organized and
validly existing corporation in good standing and has all requisite corporate
power and authority to own and operate its assets and properties and to conduct
its business as presently conducted, except where the failure to do so would not
19
have a material adverse effect on the Purchaser and its subsidiaries taken as
a whole.
(b) CORPORATE ACTION. The Purchaser has all necessary corporate
power and has taken all corporate action required to authorize its execution
and delivery of, and its performance under, the Transaction Documents to
which it is a party and has all necessary corporate power and has taken all
corporate action required to authorize its purchase of the Initial Shares,
the [ * ] Shares, the [ * ] Shares and the Milestone Shares and to
consummate the other transactions contemplated by the Transaction Documents.
(c) INVESTMENT INTENT. The Purchaser is acquiring (w) the Initial
Shares on the date of the Initial Closing, (x) the [ * ] Shares on the date
of the [ * ] Closing, (y) the [ * ] Shares on the date of the [ * ]
Closing and (z) the Milestone Shares on the date of the Milestone Closing for
its own account for the purpose of investment and not with a view to, or for
sale in connection with, the distribution thereof, and that it has no present
intention of distributing or selling such Shares. The Purchaser understands
that such Shares have not been registered under the Securities Act, or the
securities laws of any state or other jurisdiction, and hereby agrees not to
make any sale, transfer or other disposition of such Shares unless either (i)
such Shares have been registered under the Securities Act and all applicable
state and other securities laws and any such registration remains in effect
or (ii) the Company shall have received an opinion of counsel in form and
substance satisfactory to the Company that registration is not required under
the Securities Act or under applicable securities laws.
(d) OPPORTUNITY TO INVESTIGATE. The Purchaser (i) has had the
opportunity to ask questions concerning the Company and all such questions posed
have been answered to its satisfaction; (ii) has been given the opportunity to
obtain any additional information it deems necessary to verify the accuracy of
any information obtained concerning the Company; and (iii) has such knowledge
and experience in financial and business matters that it is able to evaluate the
merits and risks of purchasing the
--------------------------
* Confidential treatment requested.
20
Shares and to make an informed investment decision relating thereto.
(e) ACCREDITED INVESTOR. The Purchaser is an "accredited investor"
as such term is defined in Regulation D under the Securities Act.
(f) ENFORCEABILITY. The Purchaser has duly authorized, executed and
delivered the Transaction Documents to which it is a party, and such Transaction
Documents constitute the legal, valid and binding obligations of the Purchaser,
enforceable in accordance with their respective terms, except as enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity and limitations on availability of equitable relief,
including specific performance, and except as rights to indemnification therein
may be limited by applicable laws.
(g) CLOSING DATE. The representations and warranties of the
Purchaser contained in this Section 5.02 and elsewhere in this Agreement, and
all information contained in any writing delivered by, or on behalf of, the
Purchaser to the Company, will be true and correct in all material respects on
the date of the Initial Closing or the date of any subsequent closing pursuant
to Article III, as the case may be, as though then made, except as affected by
the transactions expressly contemplated by this Agreement.
ARTICLE VI
COVENANTS
SECTION 6.01. PERFORMANCE. Each party shall perform all of its
obligations hereunder and shall, at or prior to the Initial Closing, execute
and deliver the other Transaction Documents, the Biogen Agreement and the BML
Collaboration Agreement to which it is contemplated to be a signatory.
SECTION 6.02. COOPERATION. Each party shall endeavor in good faith to
perform and fulfill all conditions and obligations
21
on their respective parts to be fulfilled or performed hereunder or under the
other Transaction Documents, to the end that the transactions contemplated
hereby and thereby will be fully and timely consummated.
SECTION 6.03. REGISTRATION RIGHTS. The Company shall, as promptly as
practicable, and in any event not later than ten (10)business days after the
Initial Closing Date, cause an amendment to the Investor Rights Agreement to be
executed, pursuant to which, in each case effective as of the date of the
Initial Closing (the "Amendment"):
(a) the Purchaser shall be made a party to the Investor Rights
Agreement and included in the definition of "Investors" for all purposes of
the Investor Rights Agreement;
(b) all shares of Common Stock issued or issuable to the Purchaser
hereunder are included in the definition of "Registrable Securities" in
Section 2.6 of the Investor Rights Agreement for all purposes of the
Investor Rights Agreement; and
(c) the address for the Purchaser to be used for notices and
communications under the Investor Rights Agreement will be: BIOGEN, INC.,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President,
with a copy to BIOGEN, INC., ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Vice President and General Counsel.
In the event that the Amendment is not executed within such period, the
Company will enter into a Registration Rights Agreement with the Purchaser, in
form and substance satisfactory to the Purchaser, granting the Purchaser
registration rights with respect to all shares of Common Stock issued or
issuable to the Purchaser hereunder equivalent to the registration rights the
Purchaser would have had as an Investor under the Investor Rights Agreement.
SECTION 6.04. BROKER'S FEE. Each of the Company and the Purchaser hereby
represents and covenants that except for amounts
22
to be paid to Medical Portfolio Management by Purchaser, there are no brokers
or finders entitled to compensation in connection with the sale of the Stock,
and shall indemnify each other for any such fees for which they are
responsible.
ARTICLE VII
LIMITATIONS AND RESTRICTIONS
SECTION 7.01. RESTRICTIONS ON CERTAIN ACTIONS BY PURCHASER.
(a) The Purchaser agrees that, during the period commencing on the date
hereof and ending on the date which is the third anniversary of the date on
which the BML Collaboration Agreement ceases to be in full force and effect, the
Purchaser will not, nor will it permit any of its Affiliates to, acquire or
offer or propose to acquire any shares of Common Stock or any securities
convertible into, exchangeable for or exercisable for Common Stock (all such
securities, collectively, "Voting Securities") which, when taken together with
any Voting Securities then owned by the Purchaser and its Affiliates, would, in
the aggregate, exceed an amount equal to fifteen percent (15%) of the Company's
then outstanding Voting Securities, unless in any such case specifically invited
to do so by the Board of Directors of the Company; PROVIDED that this provision
shall not prevent the Purchaser or its Affiliates (i) from acquiring Voting
Securities as a result of the provisions of Article III of this Agreement or
(ii) from acquiring any Voting Securities as a result of the repayment, in whole
or in part, of the Loan Agreement with any Voting Securities. Notwithstanding
any provision of this Agreement to the contrary, Purchaser shall in no event be
required to purchase shares of Common Stock if, after giving effect to such
purchase, the sum of (i) the number of shares of Common Stock purchased
hereunder and (ii) the number of shares of Common Stock of the Company tendered
to the Purchaser in connection with the Loan Agreement would exceed 19.9% of the
amount of the then outstanding shares of Common Stock. Notwithstanding the
foregoing, in order to insure for the Company the benefits of the transactions
contemplated in this Agreement and the Loan Agreement, and the covenants set
forth in this Section 7.01, to the extent that Purchaser has acquired Voting
23
Securities in transactions other than those described in Article III hereof and
the Loan Agreement ("Other Voting Securities") the Purchaser shall sell such
Other Voting Securities to the extent necessary to permit the transactions
contemplated herein or in the Loan Agreement to be consummated without violation
of the provisions of Section 3.04 and this Section 7.01.
(b) The Purchaser acknowledges and agrees that irreparable damage would
occur in the event that any of the provisions of this Section 7.01 were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Section 7.01 and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, in addition to any other remedy
to which they may be entitled at law or equity.
SECTION 7.02. RESTRICTIONS ON SALES BY PURCHASER. Purchaser agrees that
until the second anniversary of any Closing hereunder, it will not, nor will it
permit any of its Affiliates to sell, solicit an offer to sell or propose to
sell (collectively "Sell"), any Shares purchased at such Closing except as
follows:
(a) Purchaser may transfer Shares to any of its Affiliates;
(b) Purchaser shall be permitted to sell or otherwise dispose of such
minimum number of as is required to reduce Purchaser's ownership to (1) 19.99%
of the Company's outstanding Common Stock or (2) in the event that Purchaser is
required to consolidate or include the Company's profits and losses in its
profit and loss statements (and the aggregate amount of losses to be
consolidated may reasonably exceed $50,000), such lesser amount of the Company's
outstanding Common Stock as may be required in the written opinion of
Purchaser's independent public accountants in order to avoid such consolidation
or inclusion;
(c) Purchaser may sell its Shares pursuant to a tender offer or exchange
offer for all outstanding shares of the Company's Common Stock approved by the
Company's Board of Directors; and
24
(d) Without duplication of any of the Shares permitted to be sold
pursuant to any of the other provisions of this Section 7.02, Purchaser may
sell all or any part of the Shares owned by Purchaser or its Affiliates
pursuant to the registration rights provisions contained in the Loan
Agreement (or any document relating thereto) or in the Investor Rights
Agreement, as amended (or such other registration rights agreement as may be
entered into between the parties pursuant to the provisions of Section 6.03
hereof); provided, however, that, with respect to any registration statement
or statements relating to a non-underwritten offering filed pursuant to such
agreements, Purchaser shall not (i) seek to register on such registration
statement or statements, in any period of 12 consecutive months, shares of
Common Stock in an amount in excess of 10% of the amount of then outstanding
Common Stock at the commencement of such 12 month period or (ii) sell in any
period of three consecutive months shares of Common Stock in an amount in
excess of 2.5% of the amount of then outstanding Common Stock at the
commencement of such three month period.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telecopy or facsimile transmission (receipt confirmed), (iii) sent
by international overnight or express courier, or (iv) sent by registered mail,
return receipt requested, postage prepaid.
If to the Company: CV Therapeutics, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
FAX:
with a copy to: ▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
25
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
FAX: ▇▇▇-▇▇▇-▇▇▇▇
If to the Purchaser: Biogen Manufacturing, Ltd.
▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Channel Islands
Attn: Director
FAX: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Biogen, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President and General Counsel
FAX: ▇▇▇-▇▇▇-▇▇▇▇
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telecopy or facsimile transmission, at the time that receipt
thereof has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight or express courier, on the Business Day following the day such
notice is delivered to the courier service, or (iv) if sent by registered mail,
on the 5th Business Day following the day such mailing is made.
SECTION 8.02. LEGENDS. The Purchaser acknowledges that, until registered
under the Securities Act and any applicable state securities laws or transferred
pursuant to the provisions of Rule 144 promulgated under the Securities Act
("Rule 144"), each certificate representing a Share, whether upon initial
issuance or upon any transfer thereof, shall bear a legend (and the Company and
its transfer agent shall make a notation on its books of transfer to such
effect), prominently stamped or printed thereon, in substantially the following
form:
26
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY APPLICABLE STATE OR OTHER JURISDICTION,
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION
OR RESALE AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT COVERING SUCH SECURITIES UNDER THE ACT AND ANY SECURITIES
LAWS OF ANY APPLICABLE STATE OR OTHER JURISDICTION OR A WRITTEN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO
THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNDER
OTHER APPLICABLE SECURITIES LAWS."
SECTION 8.03. TERMINATION. If the Initial Closing has not occurred on or
prior to June 30, 1997, or if prior to the Initial Closing the Company or the
Purchaser has been notified that the United States Department of Justice or the
Federal Trade Commission, or any other Federal, state or other governmental
agency or instrumentality the consent of approval of which is contemplated by
the terms of this Agreement, any other Transaction Document, the Biogen
Agreement, the BML Collaboration Agreement or the Loan Agreement, is prepared to
(a) seek a preliminary injunction to enjoin the consummation of the transactions
contemplated hereunder or thereunder or (b) grant such consent or approval upon
the condition that any material action or forbearance of action not otherwise
specifically required of the party choosing to terminate pursuant to this
Section 8.03 be taken, then (i) the Company may terminate this Agreement by
written notice to the Purchaser and (ii) the Purchaser may terminate this
Agreement by written notice to the Company.
SECTION 8.04. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
provisions hereof and supersedes all prior oral or written agreements and
understandings relating to the provisions hereof. No statement, representation,
warranty, covenant or agreement of any kind not expressly set forth in this
Agreement shall affect, or be used to interpret, change or restrict, the express
terms and provisions of this Agreement.
27
SECTION 8.05. MODIFICATIONS AND AMENDMENTS. The terms and provisions of
this Agreement may be modified or amended only by written agreement executed by
all parties hereto.
SECTION 8.06. WAIVERS AND CONSENTS. Except as other expressly provided
herein, the terms and provisions of this Agreement may be waived, or consent for
the departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent
shall be deemed to be or shall constitute a waiver or consent with respect to
any other terms or provisions of this Agreement, whether or not similar. Each
such waiver or consent shall be effective only in the specific instance and for
the purpose for which it was given, and shall not constitute a continuing waiver
or consent.
SECTION 8.07. ASSIGNMENT. The rights and obligations under this Agreement
may not be assigned by either party hereto without the prior written consent of
the other party (which consent shall not be unreasonably withheld), except that
the Purchaser without the consent of the Company may assign this Agreement or
any of its rights or obligations to an Affiliate of the Purchaser or to an
entity with which the Purchaser shall merge or consolidate or to which the
Purchaser shall sell or assign all or substantially all of its assets, and
except that the Company without the consent of the Purchaser may assign this
Agreement to an entity with which the Company shall merge or consolidate or to
which the Company shall sell or assign all or substantially all of its assets.
SECTION 8.08. BENEFIT. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement shall be construed to
create any rights or obligations except among the parties hereto, and no person
or entity shall be regarded as a third-party beneficiary of this Agreement.
SECTION 8.09. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder shall be construed in
28
accordance with and governed by the law of the State of Delaware, without
giving effect to the conflict of law principles thereof.
SECTION 8.10. SEVERABILITY. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement shall be unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court deems it
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Agreement shall nevertheless
remain in full force and effect.
SECTION 8.11. INTERPRETATION. The parties hereto acknowledge and agree
that: (i) each party and its counsel reviewed and negotiated the terms and
provisions of this Agreement and have contributed to its revision; (ii) the rule
of construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all parties hereto and not in favor of or against any party, regardless of
which party was generally responsible for the preparation of this Agreement.
SECTION 8.12. HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect the meaning or construction of any of the
terms or provisions hereof.
SECTION 8.13. ENFORCEMENT. Each of the parties hereto acknowledges and
agrees that the rights acquired by each party hereunder are unique and that
irreparable damage would occur in the event that any of the provisions of this
Agreement to be performed by the other party were not performed in accordance
with their specific terms or were otherwise breached. Accordingly, in addition
to any other remedy to which the parties hereto are entitled at law or in
equity, each party hereto shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement by the other party.
29
SECTION 8.14. NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or
delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, shall operate as
a waiver of any such right, power or remedy of the party. No single or partial
exercise of any right, power or remedy under this Agreement by a party hereto,
nor any abandonment or discontinuance of steps to enforce any such right, power
or remedy, shall preclude such party from any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The election of
any remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
SECTION 8.15. EXPENSES. Each of the parties hereto shall pay its own fees
and expenses in connection with this Agreement and the transactions contemplated
hereby whether or not the transactions contemplated hereby are consummated.
SECTION 8.16 CONFIDENTIALITY. Each of the Purchaser, on the one hand, and
the Company, on the other hand, acknowledges and agrees that any information or
data it has acquired from the other, not otherwise properly in the public
domain, was received in confidence. Each party agrees not to divulge,
communicate or disclose, or use to the detriment of the disclosing party or for
the benefit of any other person or persons, or misuse in any way, any
confidential information of the disclosing party concerning the subject matter
hereof; PROVIDED that (i) the foregoing obligation with respect to the
disclosure and use of such information shall not apply to any information which
such party can demonstrate (A) was at the time of disclosure to such party or
thereafter, but prior to its disclosure by such party to any third party,
through no fault of such party, publicly available (other than as a result of
disclosure by such party), (B) has been disclosed to such party on a
nonconfidential basis from a source other than any other party which, to such
party's knowledge, was not prohibited from disclosing such information to
30
such party by a legal, contractual, fiduciary or other obligation, (C) has
been independently developed by the such party without the violation of any
of my obligations under this Agreement, the Biogen Agreement, the BML
Collaboration Agreement or the Loan Agreement or (D) is required to be
disclosed by applicable law (including, without limitation, the federal
securities laws) and (ii) such party may, if required by subpoena or valid
legal process, disclose any such information, but only to the extent so
required and only after using its best efforts to give the other party or
parties (as the case may be) prior notice of such required disclosure in
order to afford such party or parties an opportunity to obtain an injunction,
a protective order or other relief.
SECTION 8.17 PUBLICITY. No party shall issue any press release or
otherwise make any public statement with respect to the execution of, or the
transactions contemplated by, this Agreement without the prior written consent
of the other party, except as may be required by applicable law, rule or
regulation; PROVIDED that once such other party has consented to a party's
issuance or making of a press release or public statement, any subsequent
issuance or making of such press release or public statement by such party shall
not require the separate written consent of the other party. However, the
parties recognize that the Purchaser and the Company are each a publicly held
company obligated under the federal securities laws to make disclosures of
material events affecting it. Consequently, if advised by counsel that such
party is required to make such announcement under Federal or state securities
laws, the Purchaser or the Company (as the case may be) may make such
announcement. Such party agrees promptly to inform the other party of such
advice by counsel, provide a copy of such announcement prior to disclosure and,
if practicable, to give the other party an opportunity to comment upon the form
of any required announcement.
SECTION 8.18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
31
IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Agreement to be executed in their names by their duly authorized officers or
representatives effective as of the date first above written.
CV THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
BIOTECH MANUFACTURING LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Director
32
EXHIBIT A
[▇▇▇▇▇▇ GODWARD LLP LETTERHEAD]
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
March 10, 1997
Biotech Manufacturing Ltd.
▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Channel Islands
Ladies and Gentlemen:
We have acted as counsel for CV Therapeutics, Inc., a Delaware corporation
(the "Company"), in connection with the negotiation and execution of that
certain Common Stock Purchase Agreement between the Company and you dated as
of the date hereof (the "Purchase Agreement"). We are rendering this opinion
pursuant to Section 4.02(iv) of the Purchase Agreement. Except as otherwise
defined herein, capitalized terms used but not defined herein have the
respective meanings given to them in the Purchase Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Purchase Agreement by the various parties and originals or
copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment
are necessary or appropriate to enable us to render the opinion expressed
below.
As to certain factual matters, we have relied upon a certificate of an
officer of the Company or a certificate of the Transfer Agent of the Company
and have not sought to independently verify such matters. Where we render an
opinion "to the best of our knowledge" or concerning an item "known to us" or
our opinion otherwise refers to our knowledge, it is based solely upon (i) an
inquiry of attorneys within this firm who perform legal services for the
Company, (ii) receipt of a certificate executed by an officer of the Company
covering such matters, and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity
of all signatures on original documents (except the signature on behalf of
the Company on the Purchase Agreement); the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents (except the due authorization, execution and
delivery by the Company of the Purchase Agreement and the due authorization
by the Company of the Amendment to the Amended and Restated Investor Rights
Agreement adding you to the existing Amended and Restated Investor Rights
Agreement dated May 29, 1996 between the Company and certain investors (the
"Investor
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Rights Agreement, as amended" and collectively, with the Purchase Agreement,
the "Agreements")), where authorization, execution and delivery are
prerequisites to the effectiveness of such documents. We have also assumed:
that all individuals executing and delivering documents had the legal
capacity to so execute and deliver; that you have received all documents you
were to receive under the Purchase Agreement; that the Purchase Agreement is
and the Investor Rights Agreement, as amended, will be obligations binding
upon the parties thereto other than the Company; that you have filed any
required California franchise or income tax returns and have paid any
required California franchise or income taxes; and that there are no
extrinsic agreements or understandings among the parties to the Purchase
Agreement and there will be no extrinsic agreements or understandings among
the parties to the Investor Rights Agreement, as amended, that would modify
or interpret the terms of the Agreements or the respective rights or
obligations of the parties thereunder.
We express no opinion herein concerning any laws other than the federal laws
of the United States, the laws of the State of California and the Delaware
General Corporation Law. We express no opinion as to whether the laws of any
particular jurisdiction apply, and no opinion to the extent that the laws of
any jurisdiction other than those identified above are applicable to the
subject matter hereof. We are not rendering any opinion as to compliance
with any antifraud law, rule or regulation relating to securities, or to the
sale or issuance thereof.
Our opinion in paragraph 2 below with respect to the Company's qualification
as a foreign corporation is based solely upon obtaining a certificate from an
officer of the Company to the effect that the Company does not own or lease
property or have employees or conduct business outside of the State of
California and that the Company has not been requested by the authorities of
any state to qualify as a foreign corporation for the transaction of business
in that state.
With regard to our opinion in paragraph 5 below, with respect to the number
of shares of Common Stock and Preferred Stock issued and outstanding, we have
examined and relied solely upon a certificate executed by the Transfer Agent
for the Company dated as of the close of business on March 7, 1997. With
respect to full payment of the outstanding capital stock, we have examined
and relied upon a certificate executed by an officer of the Company, to the
effect that the consideration for all outstanding shares of capital stock of
the Company was received by the Company in accordance with the provisions of
the applicable Board of Directors resolutions and any plan or agreement
relating to the issuance of such shares, and we have undertaken no
independent verification with respect thereto.
With regard to our opinion in paragraph 6 below with respect to material
defaults under any Specified Documents, we have relied solely upon (i)
inquiries of officers of the Company and
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(ii) an examination of the agreements and documents set forth as exhibits to
the Company's Registration Statement on Form S-1, filed with the Securities
and Exchange Commission on November 19, 1996 (the "Specified Documents"). We
have made no further investigation.
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware.
2. The Company has the requisite corporate power to own or lease its
property and assets and to conduct its business as it is currently being
conducted, is qualified as a foreign corporation to do business in California
and, to the best of our knowledge, is not required to qualify as a foreign
corporation to do business in any other jurisdiction in the United States.
3. The Purchase Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance with
its terms, except as rights to indemnification under the Purchase Agreement
may be limited by applicable laws and except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting creditors' rights, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.
4. The Investor Rights Agreement, as amended, has been duly and
validly authorized and when executed and delivered by the Company and the
other parties thereto, will constitute a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except
as rights to indemnification under Section 3.5 of the Investor Rights
Agreement, as amended, may be limited by applicable laws and except as
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting
creditors' rights, and subject to general equity principles and to
limitations on availability of equitable relief, including specific
performance.
5. The Company's authorized capital stock consists of 30,000,000
shares of Common Stock, .001 par value, and 5,000,000 shares of undesignated
Preferred Stock, .001 par value. As of the date hereof, and excluding the
Initial Shares, 6,211,817 shares of Common Stock are issued and outstanding
and no shares of Preferred Stock are issued and outstanding. The outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable. The Shares have been duly authorized, and upon issuance and
delivery pursuant
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to the Purchase Agreement and against payment therefor in accordance with the
terms of the Purchase Agreement, will be validly issued, outstanding, fully
paid and nonassessable.
6. The execution, delivery and performance by the Company of the
Purchase Agreement and the issuance and sale of the Initial Shares as
contemplated by the Purchase Agreement do not violate any provision of the
Company's Amended and Restated Certificate of Incorporation or Restated
Bylaws, do not constitute a material default under the provisions of any
Specified Documents, and do not violate or contravene (a) any governmental
statute, rule or regulation applicable to the Company or (b) any order, writ,
judgment, injunction, decree, determination or award which has been entered
against the Company and of which we are aware, the violation or contravention
of which would materially and adversely affect the Company, its assets,
financial condition or operations.
7. No consents or approvals of any federal or state governmental body
or regulatory authority is required for the issuance and sale of the Initial
Shares, except for the filing of a Form D pursuant to Securities and Exchange
Commission Regulation D.
This opinion is intended solely for your benefit and is not to be made
available to or be relied upon by any other person, firm, or entity without
our prior written consent.
Very truly yours,
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