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Title: |
Common Stock Purchase Agreement |
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Entities: |
CollaGenex Pharmaceuticals Inc.; Silicon Valley Bank; Nasdaq Stock Market Inc.; Hale and Dorr LLP |
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Date: |
2001 |
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Size: |
Preview shows 16KB of 221KB total |
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Price: |
$75 |
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ID: |
#284130 |
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COLLAGENEX PHARMACEUTICALS, INC.
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COMMON STOCK PURCHASE AGREEMENT
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SHARES OF COMMON STOCK
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Dated as of March 12, 2001
================================================================================
{PAGE}
TABLE OF CONTENTS
1. AUTHORIZATION OF SECURITIES............................................1
2. SALE AND PURCHASE OF STOCK; ALLOCATION OF PURCHASE PRICE...............1
3. CLOSING................................................................1
4. REGISTER OF SECURITIES; RESTRICTIONS ON TRANSFER OF SECURITIES;
REMOVAL OF RESTRICTIONS ON TRANSFER OF SECURITIES; INVESTOR
REPRESENTATIONS AND WARRANTIES.........................................2
4.1 Register of Securities...........................................2
4.2 Restrictions on Transfer.........................................2
4.3 Removal of Transfer Restrictions.................................4
4.4 Representations and Warranties...................................4
5. REPRESENTATIONS AND WARRANTIES BY COMPANY..............................5
5.1 Confidential Private Placement Memorandum........................5
5.2 Organization, Standing, etc......................................5
5.3 Qualification....................................................5
5.4 Capitalization, Etc..............................................6
5.5 Securities.......................................................7
5.6 Corporate Acts and Proceedings...................................8
5.7 Compliance with Laws and Other Instruments.......................8
5.8 Binding Obligations..............................................8
5.9 Securities Laws..................................................8
5.10 No Brokers or Finders............................................9
5.11 Financial Statements.............................................9
5.12 Changes..........................................................9
5.13 Material Agreements.............................................10
5.14 Employees.......................................................11
5.15 Tax Returns and Audits..........................................11
5.16 Patents and Other Intangible Assets.............................13
5.17 Employment Benefit Plans--ERISA.................................15
5.18 Permits; Environmental Matters..................................17
5.19 Title to Property and Encumbrances; Leases......................18
5.20 Condition of Properties.........................................18
5.21 Insurance Coverage..............................................18
5.22 Litigation......................................................19
5.23 Registration Rights.............................................19
5.24 Licenses........................................................19
5.25 Interested Party Transactions...................................19
5.26 Accountants.....................................................19
5.27 Investment Company..............................................20
i
{PAGE}
5.28 No Manipulation of Stock........................................20
5.29 Reporting Status................................................20
5.30 No Material Adverse Change......................................20
5.31 Exemption from Registration; Restrictions on Offer and Sale
of Same or Similar Securities...................................20
6. CONDITIONS OF PARTIES' OBLIGATIONS....................................21
6.1 Conditions of Investor's Obligations at Closing.................21
6.2 Conditions of Company's Obligations.............................23
7. AFFIRMATIVE COVENANTS.................................................23
7.1 Maintain Corporate Rights and Facilities........................23
7.2 Maintain Insurance..............................................23
7.3 Pay Taxes and Other Liabilities.................................23
7.4 Replacement of Certificates.....................................23
7.5 Compliance with Article 6.......................................23
7.6 Securities Law Filings..........................................24
7.7 Use of Proceeds.................................................24
7.8 Subsequent Offerings............................................24
7.9 Register Shares; Rule 144 Reporting.............................24
7.10 USRPHC..........................................................24
7.11 Conduct Prior to Closing........................................24
7.12 Shareholder Protection Rights Agreement.........................25
7.13 Waivers and Consents............................................26
8. NEGATIVE COVENANTS....................................................26
8.1 Changes in Type of Business.....................................26
8.2 Loans and Guarantees............................................26
8.3 Restrictive Agreements..........................................26
8.4 Publicity.......................................................26
9. ENFORCEMENT...........................................................27
9.1 Remedies at Law or in Equity....................................27
9.2 Cumulative Remedies.............................................27
9.3 No Implied Waiver...............................................27
10. ADDITIONAL DEFINITIONS................................................27
11. MISCELLANEOUS.........................................................29
11.1 Waivers and Amendments..........................................29
11.2 Rights of Holders Inter Se......................................29
11.3 Exculpation.....................................................30
11.4 Notices.........................................................30
11.5 Survival of Representations and Warranties, etc.................30
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{PAGE}
11.6 Severability....................................................31
11.7 Parties in Interest.............................................31
11.8 Headings........................................................31
11.9 Choice of Law...................................................31
11.10 Expenses........................................................31
11.11 Investor Indemnities............................................32
11.12 Counterparts....................................................32
11.13 Termination.....................................................32
LIST OF ANNEXES
Annex A Wiring Instructions
Annex B Warrant
Annex C Registration Rights Agreement
Annex 1 Schedule of Investors
Annex 5.1 Confidential Private Placement Memorandum
Annex 5.3 Subsidiaries
Annex 5.4(b) 5% Beneficial Holders
Annex 5.4(c) Other Securities and Obligations
Annex 5.4(d) Anti-Dilution Adjustments
Annex 5.7 Compliance with Laws and Other Instruments
Annex 5.12 Changes
Annex 5.13 Material Agreements
Annex 5.16(a) Limitations on Patents and Other Intangible Assets
Annex 5.16(d) Intellectual Property, Licenses, etc.
Annex 5.17(a) Employee Benefits Plans
Annex 5.17(d) Employee Benefits Plan Litigation
Annex 5.22 Litigation
Annex 6.1(e) Form of Opinion of Company's Counsel
Annex 7.8 Subsequent Offerings
iii
{PAGE}
COLLAGENEX PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made and
entered into as of March 12, 2001, by and between CollaGenex Pharmaceuticals,
Inc., a Delaware corporation with principal offices located at 41 University
Drive, Newtown, PA 18940 (the "Company") and the undersigned investor (the
"Investor").
1. AUTHORIZATION OF SECURITIES. The Company has authorized the issuance
and sale of shares (the "Shares") of its common stock, $.01 par value
per share (the "Common Stock"), at a price per share equal to $5.00, which shall
be issued and sold pursuant to this Agreement and up to shares of
Common Stock which will be issued and sold pursuant to the other Common Stock
Purchase Agreements (the "Other Agreements") between the Company and the other
investors signatories (the "Other Investors") thereto which are listed on Annex
I and attached hereto. The Other Agreements will be identical to this Agreement
(except that the respective amounts of shares of Common Stock to be purchased
and the number of warrants to be issued will vary as specified on the signature
page of each such agreement) including, without limitation with respect to price
per share, which shall be $5.00 per share. The Company has authorized the
issuance of warrants (the "Warrants") to purchase shares of Common
Stock to the Investor and up to shares of Common Stock to the Other
Investors and has duly authorized and reserved a sufficient number of shares of
Common Stock with respect to the issuance thereof, in each case, at an exercise
price and upon the terms and conditions set forth in the Warrant in the form
attached hereto as Annex B. In addition, the Company has authorized and reserved
for issuance such number of shares of Common Stock as are issuable from time to
time upon exercise of the Warrants (the "Warrant Shares").
2. SALE AND PURCHASE OF STOCK; ALLOCATION OF PURCHASE PRICE. Upon the
terms and subject to the conditions herein contained, the Company will issue and
sell to the Investor, and the Investor will purchase from the Company, at the
Closing (as defined in Section 3) on the Closing Date (as defined in Section 3),
the Shares and the Warrants and will pay the Company the aggregate amount (the
"Purchase Price") specified on the signature page hereto. The Investor and the
Company agree that after the date hereof they shall allocate, in good faith, the
Purchase Price between the Shares and the Warrants so purchased.
3. CLOSING. The closing of the sale and purchase of the Shares and the
Warrants (a "Closing") will occur at the offices of Tucker Anthony Sutro Capital
Markets (the "Placement Agent" or "TASCM"), 1601 Cloverfield Boulevard, Suite
300, Santa Monica, California 90404, at 10:00 A.M., California time, or at such
other time or day as the Placement Agent and the Company agree with the written
consent of the Investor ("Closing Date"); provided that the Closing Date shall
be no earlier than the date on which the Company consummates the transactions
contemplated by the Other Agreements. At the Closing, the Company shall deliver
to the Investor a certificate evidencing the Shares being purchased by it and a
Warrant, each of which will be registered in the Investor's name as stated on
the signature page hereto, or in nominee name if the Investor so designates,
against delivery to the Placement Agent on behalf of the Company of payment by
wire transfer or transfers in accordance with the instructions in Annex A in an
amount equal to the Purchase Price of such Shares. The Investor shall make
{PAGE}
payment by wire transfer within one business day after delivery by the Company
by fax, or other means, of an executed copy of this Agreement to the Placement
Agent and to the Investor; provided that such deliver shall be no sooner than
one business day prior to the Closing Date. The Investor acknowledges and agrees
that except as provided by this Agreement, the subscription for Shares may not
be revoked by the Investor once this Agreement is signed by the Investor and
delivered by fax, or any other means to the Placement Agent. The Investor
further acknowledges and agrees that a legally binding agreement between the
Investor and the Company shall occur only after this Agreement is executed by
the Company and the Investor and delivered to the Placement Agent, the Company
and the Investors.
4. REGISTER OF SECURITIES; RESTRICTIONS ON TRANSFER OF SECURITIES; REMOVAL
OF RESTRICTIONS ON TRANSFER OF SECURITIES; INVESTOR REPRESENTATIONS AND
WARRANTIES.
4.1 Register of Securities. The Company or its duly appointed transfer
agent will maintain a register for the Shares, the Warrants and the Warrant
Shares, in which it will register the issue and sale of all such Shares, the
Warrants and the Warrant Shares. All transfers of Shares will be recorded in the
register maintained by the Company or its transfer agent, and the Company will
be entitled to regard the registered holder of Shares, the Warrants, and the
Warrant Shares as the actual holder of such Shares, Warrants and Warrant Shares
until the Company or its transfer agent is required to record a transfer of such
Shares, Warrants and Warrant Shares on the appropriate register. Subject to
Section 4.2(b) hereof, the Company or its transfer agent will be required to
record any such transfer when it receives the Shares, Warrants and Warrant
Shares to be transferred duly and properly endorsed by the registered holder
thereof or by its attorney duly authorized in writing.
4.2 Restrictions on Transfer.
(a) The Investor understands and agrees that the Shares, the
Warrants and the Warrant Shares to be acquired by it have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and that
accordingly they will not be transferable except in accordance with this
Agreement and as permitted under various exemptions contained in the Securities
Act or upon satisfaction of the registration and prospectus delivery
requirements of the Securities Act. The Investor acknowledges that it must bear
the economic risk of its investment in the Shares, the Warrants and the Warrant
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