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EXHIBIT 10.1
SHAMAN PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made as of
November 18, 1998, by and among Shaman Pharmaceuticals, Inc., a Delaware
corporation (the "Company") with its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the persons listed on the Schedule of
Purchasers attached hereto as Schedule I (the "Purchasers").
1. Authorization and Sale of Common Stock.
1.1 Authorization. The Company has authorized the issuance and sale
pursuant to this Agreement of up to 4,812,071 shares of the Common Stock, par
value $0.001 per share (the "Common Stock"), of the Company.
1.2 Sale of Common Stock. Subject to the terms and conditions of this
Agreement, the Company agrees to issue and sell to each Purchaser, and each
Purchaser severally agrees to purchase from the Company, the number of shares of
Common Stock set forth opposite each Purchaser's name on Schedule I for a price
per share equal to $1.50. Such number of shares and price per share shall be
adjusted, if necessary, in connection with any stock splits, dividends, or
similar adjustments in accordance with the Company's Amended and Restated
Certificate of Incorporation, as amended.
2. Closing Date; Delivery.
2.1 Closing Date. The closing of the purchase and sale of the shares of
Common Stock (the "Closing") shall be held at the offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, Two Embarcadero Place, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ at
10:00 a.m. Pacific Standard Time, within three business days following
declaration of effectiveness of the Registration Statement (defined below in
Section 7.2) or at such other time and place upon which the Company and the
Purchasers purchasing in the aggregate more than half of the shares of Common
Stock sold hereunder shall agree. The date of the Closing is hereinafter
referred to as the "Closing Date."
2.2 Delivery. At the Closing, the Company will deliver to each Purchaser
certificates, registered in the Purchaser's name as shown on Schedule I,
representing the number of shares of Common Stock to be purchased by each such
Purchaser. Such delivery shall be against payment by each Purchaser of the
aggregate purchase price therefor (the "Purchase Price"), which Purchase Price
shall have been transferred into the Escrow Account as defined below pending the
closing. The Purchase Price payable by each Purchaser shall be as set forth on
Schedule I opposite each Purchaser's name.
2.3 Escrow Account. Each Purchaser shall together with submitting
his/her signature pages to this Subscription Agreement, submit by check or wire
transfer the amount of such Purchaser's Purchase Price for the Shares to Account
No. 200017747 at Citibank for deposit into escrow pending the closing (the
"Escrow Account"). At the Closing, the proceeds of the Escrow Account will be
delivered to the Company in the amounts specified on Schedule I. Interest
accrued
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will be returned to each Purchaser. In the event this Agreement is terminated
for any reason and no Closing has occurred, then each Purchaser shall receive a
refund of his/her Purchase Price together with accrued interest thereon. The
interest rate shall be Citibank's money market interest rate compounded daily.
2.4 Contribution to Shaman HIV Investment Trust. In connection with the
Purchasers' agreeing to purchase the Shares, the Company agrees that it shall
promptly establish a Shaman HIV Investment Trust and shall contribute to such
Trust (the "Trust") an amount equal to 3.5% (assuming a total investment by the
Purchasers of at least $7 million) of U.S. Net Revenues from Provir product
sales in the United States for a period of five (5) years from the date of first
product sale in the United States. Net Revenues for purposes hereof shall mean
the aggregate revenues collected by Shaman from U.S. sales of Provir for
HIV/AIDS indications, net of credits or allowances given or made for rejection
or return of product, taxes or governmental charges levied on the sale,
transportation or delivery of product, amounts written off as "bad debt," and
royalties to third parties. The terms of the Trust shall be as follows: (i)
funds shall be disbursed from time to time to qualified organizations providing
services, education, and/or research within the HIV/AIDS Community; (ii) the
funds will be administered by an independent third party, i.e. an ad hoc
Governing Board for the Trust made up of AIDS Community members; (iii) the
Company reserves the right to set criteria for the membership of the Governing
Board, their period of service, and the direction or focus of where funds are to
be distributed, including criteria for recipient organizations (to the extent
that any such rights shall not prejudice the status of the Trust as a qualifying
charitable trust under applicable tax rules and regulations); (iv) nothing in
the terms hereof or of the Trust shall preclude the Company from making other
contributions within the AIDS Community as it deems appropriate; and (v) all
publicity regarding the Trust, the Governing Board thereof, the recipients of
funds, and contributing investors must be reasonably approved by the Company
prior to any disclosure thereof. Payments in accordance with this Section 2.4
shall rank junior to and be paid after payment of dividends and distribution of
assets upon liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, made to any shares of Series C Preferred Stock as
designated in the Company's Amended Certificate of Designation of Preferences of
Series C Convertible Preferred Stock.
3. Representations and Warranties of the Company. The Company represents
and warrants to the Purchasers as of the Closing Date as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing as a domestic corporation under the laws of
said state with all requisite corporate power and authority to own, operate and
lease its properties and conduct its business as presently conducted.
3.2 Corporate Power; Authorization. The Company has all requisite legal
and corporate power and has taken all requisite corporate action to execute and
deliver this Agreement, to issue and sell the shares of the Common Stock and to
carry out and perform all of its obligations under this Agreement. This
Agreement constitutes the legal, valid and binding obligations of the Company,
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally and (ii) as limited by equitable
principles generally. The execution and delivery of this Agreement does not, and
the performance of this Agreement and the compliance with the provisions
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hereof, and the issuance, sale and delivery of the shares of Common Stock by the
Company will not conflict with, or result in a breach or violation of the terms,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of any lien pursuant to the terms of, the Certificate of
Incorporation or Bylaws of the Company or any statute, law, rule or regulation
or any state or federal order, judgment or decree or any indenture, mortgage,
lease or other material agreement or instrument which the Company is required to
file as an Exhibit to its Form 10-K.
3.3 Issuance and Delivery of the Shares of Common Stock. The shares of
Common Stock, when issued in compliance with the provisions of this Agreement,
will be validly issued, fully paid and nonassessable. The issuance and delivery
of the shares of Common Stock is not subject to preemptive or any other similar
rights of the stockholders of the Company or any liens or encumbrances.
3.4 SEC Documents; Financial Statements. The Company has provided the
Purchasers with the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 the Quarterly Report on Form 10-Q for the Quarter Ended June
30, 1998 and the Quarterly Report on Form 10-Q for the Quarter Ended September
30, 1998 which are true and complete copies of such documents as filed by the
Company with the Securities and Exchange Commission (the "SEC"). The Company has
filed all documents (the "SEC Documents") that the Company was required to file
with the SEC under the Securities Exchange Act of 1934, as amended (the "1934
Act"), during the twelve (12) months preceding the date of this Agreement, and
all of such documents conformed in all material respects to the requirements of
the 1934 Act and the rules and regulations thereunder as of their respective
filing dates. None of the SEC Documents as of their respective dates contained
any untrue statement of 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 under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents (the
"Financial Statements") comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto. The Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
and fairly present the consolidated financial position of the Company and any
subsidiaries at the dates thereof and the consolidated results of their
operations and consolidated cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal, recurring adjustments that are not
in the aggregate material).
3.5 Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority, regulatory agency,
self-regulatory organization, or stock exchange or market on the part of the
Company is required in connection with the consummation of the transactions
contemplated by this Agreement except for (a) compliance with the securities and
blue sky laws in the states in which shares of Common Stock are offered and/or
sold, which compliance will be effected in accordance with such laws and (b) the
filing of the Nasdaq National Market Notification Form with the Nasdaq National
Market.
3.6 No Stockholder Approval. No stockholder approval is required in
connection with the consummation of the transactions contemplated by this
Agreement.
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3.7 No Material Adverse Change. Except as otherwise disclosed herein,
since September 30, 1998, there have not been any changes in the assets,
liabilities, financial condition or results of operations of the Company from
that reflected in the Financial Statements except changes in the ordinary course
of business which have not been, either individually or in the aggregate,
materially adverse;
3.8 Litigation. Other than disclosed in its filings under the Securities
Act or the 1934 Act, there is no action, suit, proceeding or investigation
pending or threatened, or any basis therefor known to the Company, that
questions the validity of this Agreement or the right of the Company to enter
into this Agreement, or that would result, either individually or in the
aggregate, in any material adverse event as described in Section 3.7. There is
no judgment, decree or order of any court in effect against the Company, and the
company is not in default with respect to any order of any governmental
authority to which the Company is a party or by which it is bound. There is no
action, suit, proceeding or investigation by the company currently pending or
which the Company presently intends to initiate;
4. Representations, Warranties and Covenants of the Purchasers. Each
Purchaser hereby severally represents and warrants to the Company, effective as
of the Closing Date, as follows:
4.1 Authorization. Purchaser represents and warrants to the Company
that: (i) Purchaser has all requisite legal and corporate or other power and
capacity and has taken all requisite corporate or other action to execute and
deliver this Agreement, to purchase the shares of Common Stock to be purchased
by it and to carry out and perform all of its obligations under this Agreement;
and (ii) this Agreement constitutes the legal, valid and binding obligation of
the Purchaser, enforceable in accordance with its terms, except (a) as limited
by applicable bankruptcy, insolvency, reorganization, or similar laws relating
to or affecting the enforcement of creditors' rights generally and (b) as
limited by equitable principles generally.
4.2 Investor Qualifications; Investment Experience. Purchaser is an
"accredited investor" as defined in Rule 501(a) under the Securities Act of
1933, as amended (the "Securities Act"), or Purchaser is a "qualified
institutional buyer" as defined in Rule 144A(a)(1) under the Securities Act.
Purchaser is aware of the Company's business affairs and financial condition and
has had access to and believes it has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the shares of
Common Stock. Purchaser has such business and financial experience as is
required to give it the capacity to protect its own interests in connection with
the purchase of the shares of Common Stock.
4.3 Investment Intent. Purchaser is purchasing the shares of Common
Stock in the ordinary course of its business for its own account as principal,
for investment purposes only, and not with a present view to, or for, resale,
distribution or fractionalization thereof, in whole or in part, within the
meaning of the Securities Act. No arrangement or understanding exists between
the Purchaser and any other person regarding the resale, distribution or
fractionalization of the shares of Common Stock, in whole or in part, within the
meaning of the Securities Act. Purchaser understands that its acquisition of the
shares of Common Stock has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide
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nature of Purchaser's investment intent as expressed herein. Purchaser has
completed or caused to be completed and delivered to the Company, the Purchaser
Questionnaire attached hereto as Exhibit A. Purchaser has, in connection with
its decision to purchase the number of shares of Common Stock set forth in
Schedule I hereto, relied solely upon the representations and warranties of the
Company contained herein. Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the shares of Common
Stock except in compliance with the Securities Act, and the rules and
regulations promulgated thereunder.
4.4 Registration or Exemption Requirements. Purchaser further
acknowledges and understands that the shares of Common Stock may not be resold
or otherwise transferred except in a transaction registered under the Securities
Act or unless an exemption from such registration is available. Purchaser
understands that the certificate(s) evidencing the shares of Common Stock will
be imprinted with a legend that prohibits the transfer of the shares of Common
Stock unless (i) they are registered or such registration is not required, and
(ii) if the transfer is pursuant to an exemption from registration other than
Rule 144 under the Securities Act and, if the Company shall so request in
writing, an opinion of counsel reasonably satisfactory to the Company is
obtained to the effect that the transaction is so exempt.
4.5 No Legal, Tax or Investment Advice. Purchaser understands that
nothing in this Agreement or any other materials presented to Purchaser in
connection with the purchase and sale of the shares of Common Stock constitutes
legal, tax or investment advice. Purchaser has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the shares of Common Stock.
5. Conditions to Purchasers' Obligations. Each Purchaser's obligation to
purchase the shares of Common Stock at the Closing shall be subject to the
fulfillment or waiver as of the Closing Date of each of the following
conditions:
5.1 Representations and Warranties. The representations and warranties
made by the Company in Section 3 hereof shall have been true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of said date.
5.2 Legal Opinion. The Purchasers shall have received a legal opinion of
▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, in substantially the
form attached hereto as Exhibit B.
5.3 Registration Statement. The Registration Statement (as defined
below) registering the resale of the Shares by the Purchasers shall been filed
with and declared effective by the SEC.
5.4 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all respects.
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6. Conditions to Company's Obligations. The Company's obligation to
issue and sell the shares of Common Stock at the Closing shall be subject to the
fulfillment or waiver as of the Closing Date of each of the following
conditions:
6.1 Representations and Warranties. The representations made by the
Purchasers in Section 4 hereof shall be true and correct in all material
respects when made, and shall be true and correct in all material respects on
the Closing Date with the same force and effect as if they had been made on and
as of such date.
6.2 Payment of Purchase Price. Each Purchaser shall have delivered to
the Company payment of the aggregate Purchase Price of the shares of Common
Stock to be purchased by each such Purchaser, in the amounts as set forth on
Schedule I hereto.
6.3 Blue Sky. The Company shall have obtained all necessary blue sky law
permits and qualifications, or secured exemptions therefrom, required by any
state for the offer and sale of the shares of Common Stock.
6.4 Covenants. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing Date
shall have been performed or complied with in all respects.
7. Affirmative Covenants of the Company. The Company hereby covenants
and agrees as follows:
7.1 Financial Information. The Company will mail the following reports
to each Purchaser until such Purchaser transfers, assigns or sells the shares of
Common Stock purchased by such Purchaser pursuant to this Agreement:
(a) Within one hundred twenty (120) days after the end of each
fiscal year, a copy of its Annual Report on Form 10-K.
(b) Within sixty (60) days after the end of the first, second
and third quarterly accounting periods of each fiscal year of the Company, a
copy of its Quarterly Report on Form 10-Q.
(c) Within ten (10) days after the Company files any Current
Report on Form 8-K with the SEC, such Current Report on Form 8-K.
7.2 Registration.
(a) No later than ten (10) days after the date hereof, the
Company shall prepare and file a registration statement on Form S-3 with the SEC
under the Securities Act to register the resale of the Shares by the Purchasers
(the "Registration Statement").
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and each Purchaser shall pay all Selling Expenses (as defined below)
and other expenses that are not Registration Expenses relating to the Shares
resold by such Purchaser. "Registration Expenses" shall mean all expenses,
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except for Selling Expenses, incurred by the Company in complying with the
registration provisions herein described, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration. "Selling Expenses" means all selling commissions, underwriting
fees and stock transfer taxes applicable to the Shares and all fees and
disbursements of counsel for any Purchaser.
(c) In the case of the registration effected by the Company
pursuant to these registration provisions, the Company will use its best efforts
to keep such registration statement in effect until the earlier of (i) such date
as all of the shares of Common Stock covered by the registration statement have
been resold or (ii) such time as all of the shares of Common Stock purchased
hereunder by each Purchaser can be sold within a 90-day period without
compliance with the registration requirements of the Securities Act pursuant to
Rule 144 thereunder. Notwithstanding anything else in this Section 7.2, the
Company shall have the right, for a period not to exceed twenty (20) days in
duration which blackout periods may not occur more than twice in any 12 month
period (provided, however, that if the Company elects to limit itself to one
such blackout period per 12 month period, such period may be for thirty (30)
days in duration) and upon written notice to each of the Purchasers, to prohibit
the sale of the shares of Common Stock issued and sold to the Purchasers
hereunder pursuant to a registration statement effected under this Section 7.2,
in the event that the Company's Board of Directors, pursuant to advice of
counsel, deems it necessary, in light of a pending or potential corporate event
which has resulted in material nonpublic information not yet having been
disseminated by the Company or otherwise included in such registration
statement, to prohibit such sales until such information can be made public or
included in such registration statement. The Company shall within such twenty
(20) days (or, thirty (30) days, if applicable) add any necessary disclosure to
the registration statement and notify the Purchasers that they are no longer
prohibited from selling shares of Common Stock under such registration
statement.
With respect to any registration effected pursuant to this Section 7.2,
the parties further agree as follows:
(d) The Company shall prepare and file with the SEC such
amendments and supplements to any such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(e) The Company shall furnish to the Purchasers such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Common Stock
owned by the Purchasers.
(f) The Company shall bear all expenses other than underwriting
discounts and commissions incurred in connection with such registration, filing
or qualification, including (without limitation) all registration, filing and
qualification fees, printer's and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for the Purchasers.
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(g) The parties agree to the following indemnification rights
and obligations:
(i) To the extent permitted by law, the Company shall
indemnify and hold harmless each Purchaser and each person, if any, who controls
such Purchaser within the meaning of the Securities Act or the 1934 Act against
any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, or other federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto; (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
or any state securities law. The Company will pay to each Purchaser or
controlling person any legal or other expenses reasonably incurred by them (such
payment to be made as incurred by such persons) in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this paragraph (g)(i) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by the Purchaser or
controlling person thereof.
(ii) To the extent permitted by law, each Purchaser will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, and each person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, or other federal
or state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Purchaser expressly for use in connection with such registration; and such
Purchaser will pay any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this paragraph (g)(ii) (such payment to
be made as incurred by such persons), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this paragraph (g)(ii) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Purchaser,
which consent shall not be unreasonably withheld; provided that in no event
shall any indemnity under this paragraph exceed the gross proceeds from the
offering received by the Purchaser, unless such Violation by the Purchaser is
willful.
(iii) Promptly after receipt by an indemnified party
under this paragraph (g) of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this paragraph (g),
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying
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party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
paragraph (g), but the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any indemnified
party otherwise than under this paragraph (g).
8. Restrictions on Transferability of Common Stock; Compliance with
Securities Act.
8.1 Restrictions On Transferability. The shares of Common Stock
purchased hereunder shall not be transferable in the absence of a registration
under the Securities Act or an exemption therefrom. The Company shall be
entitled to give stop transfer instructions to its transfer agent with respect
to the Common Stock in order to enforce the foregoing restrictions.
8.2 Transfer of Shares After Registration. Each Purchaser hereby
covenants with the Company not to make any sale of the Shares except either (i)
in accordance with the Registration Statement, in which case Purchaser covenants
to comply with the requirement under the Securities Act of delivering a current
prospectus, or (ii) in accordance with Rule 144, in which case Purchaser
covenants to comply with Rule 144.
8.3 Purchaser Information. Each Purchaser covenants that it will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding such Purchaser or such Purchaser's "Plan of
Distribution."
9. Miscellaneous.
9.1 Waivers and Amendments. The terms of this Agreement may be waived or
amended with the written consent of the Company and each Purchaser.
9.2 Governing Law. This Agreement shall be governed in all respects by
and construed in accordance with the laws of the State of California without any
regard to conflicts of laws principles.
9.3 Survival. The representations, warranties, covenants and agreements
made in this Agreement shall survive any investigation made by the Company or
the Purchasers and the Closing.
9.4 Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this
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Agreement. Notwithstanding the foregoing, no Purchaser shall assign this
Agreement without the prior written consent of the Company.
9.5 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
thereof.
9.6 Notices, etc. All notices and other communications required or
permitted under this Agreement shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, overnight delivery service
or registered or certified United States mail, addressed to the Company or the
Purchasers, as the case may be, at their respective addresses set forth at the
beginning of this Agreement or on Schedule I, or at such other address as the
Company or the Purchasers shall have furnished to the other party in writing.
All notices and other communications shall be effective upon the earlier of
actual receipt thereof by the person to whom notice is directed or (i) in the
case of notices and communications sent by personal delivery or telecopy, one
business day after such notice or communication arrives at the applicable
address or was successfully sent to the applicable telecopy number, (ii) in the
case of notices and communications sent by overnight delivery service, at noon
(local time) on the second business day following the day such notice or
communication was sent, and (iii) in the case of notices and communications sent
by United States mail, seven days after such notice or communication shall have
been deposited in the United States mail.
9.7 Severability of this Agreement. If any provision of this
Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
9.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an either an original or facsimile, but
all of which together shall constitute one instrument.
9.9 Further Assurances. Each party to this Agreement shall do
and perform or cause to be done and performed all such further acts and things
and shall execute and deliver all such other agreements, certificates,
instruments and documents as the other party hereto may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and
the consummation of the transactions contemplated hereby.
9.10 Termination. In the event that the Closing shall not have
occurred on or before sixty (60) days from the date hereof, this Agreement shall
terminate at the close of business on such date.
9.11 Expenses. The Company and each such Purchaser shall bear
its own expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
9.12 Effectiveness of Agreement. The Company's agreement to sell
the shares of Common Stock to the Purchasers pursuant to the terms of this
Agreement will only be effective upon acceptance of this Agreement by the
Company as evidenced by the Company's execution of this Agreement.
10.
11
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
SHAMAN PHARMACEUTICALS, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
11.
12
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
VULCAN VENTURES, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
12.
13
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
GENESEE FUND LIMITED - PORTFOLIO B
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ADVANTAGE FUND II LTD.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
13.
14
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇▇ STRATEGIC GROWTH FUND,
LTD.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ STRATEGIC GROWTH FUND,
L.P.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
14.
15
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
THE TRAVELERS INSURANCE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
15.
16
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
ODYSSEY FUND
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
16.
17
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
JMJ TRUSTS PARTNERSHIP
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
17.
18
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CO-TRUSTEE,
THE ▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
CHASE MANHATTAN BANK DELAWARE,
TRUSTEE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997
CHARITABLE LEAD TRUST
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
CHASE MANHATTAN BANK DELAWARE,
TRUSTEE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 TRUST
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
18.
19
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE, THE ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ REVOCABLE TRUST
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
CHASE MANHATTAN BANK DELAWARE, TRUSTEE
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 CHARITABLE LEAD
TRUST
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
CHASE MANHATTAN BANK DELAWARE, TRUSTEE
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 TRUST
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
19.
20
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
20.
21
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
AJ TRUSTS PARTNERSHIP
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
21.
22
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ AND R. ▇▇▇▇ ▇▇▇▇,
CO-TRUSTEES ▇▇▇▇▇ ▇▇▇▇▇▇▇ SUBTRUST NO. 2
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ AND R. ▇▇▇▇ ▇▇▇▇,
CO-TRUSTEES ▇▇▇▇▇ ▇▇▇▇▇▇▇ SUBTRUST NO. 3
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
22.
23
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, TRUSTEE OF
THE ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ REVOCABLE
TRUST UTA DTD 7/1/88
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
23.
24
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
AWD LLC
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
24.
25
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
25.
26
IN WITNESS WHEREOF, the Company and Purchasers have executed this
Common Stock Purchase Agreement as of the date first above written.
LYSANDER, L.L.C.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
PHALAROPE FOUNDATION
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
26.
27
Schedule I
SCHEDULE OF PURCHASERS
----------------------
Purchaser Number of Shares Purchase Price
--------- ---------------- --------------
Vulcan Ventures, Inc. 2,000,000 $3,000,000
Genesee Fund Limited - Portfolio B 666,666 999,999
Advantage Fund II Ltd. 333,333 499,999.50
The Travelers Insurance Company 333,333 499,999.50
▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management L.P. 142,453 213,679.50
▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management, Ltd. 264,556 396,834
Odyssey Fund 166,666 249,999
JMJ Trusts Partnership 113,800 170,700
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-Trustee, 86,733 130,099.50
The ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee, The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 86,733 130,099.50
Revocable Trust
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 40,000 60,000
Lysander, L.L.C 66,700 100,050
Phalarope Foundation 66,700 100,050
AJ Trusts Partnership 54,200 81,300
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and R. ▇▇▇▇ ▇▇▇▇, 54,200 81,300
Co-Trustees ▇▇▇▇▇ ▇▇▇▇▇▇▇ Subtrust No. 3
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and R. ▇▇▇▇ ▇▇▇▇, 54,200 81,300
Co-Trustees ▇▇▇▇▇ ▇▇▇▇▇▇▇ Subtrust No. 3
Chase Manhattan Bank Delaware, 54,200 81,300
Trustee ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 Charitable
Lead Trust
Chase Manhattan Bank Delaware, 54,200 81,300
Trustee ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 Charitable
Lead Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 40,000 60,000
▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, 33,333 49,999.50
Trustee of the ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Revocable Trust UTA DTD 7/1/88
AWD LLC 32,533 48,799.50
Chase Manhattan Bank Delaware, 27,100 40,650
Trustee ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 Trust
Chase Manhattan Bank Delaware, 27,100 40,650
Trustee ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 6,666 9,999
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 6,666 9,999
---------- ----------
TOTAL 4,812,071 $7,218,106.50
28
EXHIBIT A
INSTRUCTION SHEET FOR PURCHASER, PURCHASER QUESTIONNAIRE AND
CERTIFICATES FOR PURCHASER
29
EXHIBIT A-1
INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Common Stock Purchase Agreement)
A. Complete the following items in the Common Stock Purchase Agreement:
1. Provide the information regarding the Purchaser requested on the
signature page. The Agreement must be executed by an individual
authorized to bind the Purchaser.
2. Exhibit A-2 - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire;
3. Exhibits A-3 and A-4 - Certificate for Purchaser:
Provide the information requested by the Certificate for Individual
Purchasers or the Certificate for Corporate, Partnership, Trust,
Foundation and Joint Purchasers, as applicable.
4. Return the signed Purchase Agreement including the properly completed
Exhibit to:
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Two Embarcadero Place
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Instructions regarding the transfer of funds for the purchase of shares
of Common Stock will be telecopied to the Purchaser at a later date.
30
EXHIBIT A-2
SHAMAN PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4.3 of the Agreement, please provide us with the
following information:
1. The exact name that the shares of
Common Stock are to be registered in
(this is the name that will appear on
the stock certificate(s)). You may
use a nominee name if appropriate:
--------------------------------------
2. The relationship between the Purchaser
of the shares of Common Stock and
the Registered Holder listed in response
to item 1 above:
--------------------------------------
3. The mailing address of the Registered
Holder listed in response to item
1 above:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
4. The Tax Identification Number of the Registered Holder listed in
response to item 1 above:
------------------------------------------------------------------------
31
EXHIBIT A-3
SHAMAN PHARMACEUTICALS, INC.
CERTIFICATE FOR INDIVIDUAL PURCHASERS
If the investor is an individual Purchaser (or married couple)
the Purchaser must complete, date and sign this Certificate.
CERTIFICATE
I certify that the representations and responses below are true
and accurate:
In order for the Company to offer and sell the shares of Common
Stock in conformance with state and federal securities laws, the following
information must be obtained regarding your investor status. Please initial each
category applicable to you as an investor in the Company.
___ (1) A natural person whose net worth, either individually or
jointly with such person's spouse exceeds $1,000,000;
___ (2) A natural person who had an individual income in excess
of $200,000, or joint income with that person's spouse in excess of $300,000, in
1994 and 1995, and reasonably expects to have income reaching the same level in
1996;
___ (3) An executive officer or director of the Company.
Dated: ---------------------------------------------
--------------- Name(s) of Purchaser
---------------------------------------------
Signature
---------------------------------------------
Signature
32
EXHIBIT A-4
SHAMAN PHARMACEUTICALS, INC.
CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, FOUNDATION AND JOINT PURCHASERS
If the investor is a corporation, partnership, trust, pension
plan, foundation, joint purchaser (other than a married couple) or other entity,
an authorized officer, partner, or trustee must complete, date and sign this
Certificate.
CERTIFICATE
The undersigned certifies that the representations and responses
below are true and accurate:
(a) The investor has been duly formed and is validly existing and
has full power and authority to invest in the Company. The person signing on
behalf of the undersigned has the authority to execute and deliver the Common
Stock Purchase Agreement on behalf of the Purchaser and to take other actions
with respect thereto.
(b) Indicate the form of entity of the undersigned:
___ Limited Partnership
___ General Partnership
___ Corporation
___ Revocable Trust (identify each grantor and indicate
under what circumstances the trust is revocable by
the grantor): -----------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
(Continue on a separate piece of paper, if
necessary.)
___ Other Type of Trust (indicate type of trust and,
for trusts other than pension trusts, name the
grantors and beneficiaries): ---------------------
---------------------------------------------------
---------------------------------------------------
1.
33
---------------------------------------------------
---------------------------------------------------
(Continue on a separate piece of paper, if
necessary.)
___ Other form of organization (indicate form of
organization (___________________________).
(c) Indicate the approximate date the undersigned entity was
formed: .
(d) In order for the Company to offer and sell the shares of
Common Stock in conformance with state and federal securities laws, the
following information must be obtained regarding your investor status. Please
initial each category applicable to you as an investor in the Company.
___ 1. A bank as defined in Section 3(a)(2) of the Securities
Act, or any savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act whether
acting in its individual or fiduciary capacity;
___ 2. A broker or dealer registered pursuant to Section 15 of
the Securities 1934 Act of 1934;
___ 3. An insurance company as defined in Section 2(13) of the
securities Act;
___ 4. An investment company registered under the Investment
Company Act of 1940 or a business development company as defined
in Section 2(a)(48) of that Act;
___ 5. A Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958;
___ 6. A plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a
state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of
$5,000,000;
___ 7. An employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, which is either a bank, savings and
loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited
investors;
34
___ 8. A private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
___ 9. An organization described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific
purpose of acquiring the Shares, with total assets in excess of
$5,000,000;
___ 10. A trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Shares, whose
purchase is directed by a sophisticated person who has such
knowledge and experience in financial and business matters that
such person is capable of evaluating the merits and risks of
investing in the Company;
___ 11. An entity in which all of the equity owners qualify under
any of the above subparagraphs. If the undersigned belongs to
this investor category only, list the equity owners of the
undersigned, and the investor category which each such equity
owner satisfies:
___
___
___
(Continue on a separate piece of paper, if necessary.)
Dated: _______________________, 19___
-----------------------------------------------
Name of investor
-----------------------------------------------
Signature and title of authorized
officer, partner or trustee
