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Exhibit 10.3
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 8th day of October, 1999, between
Cell Pathways, Inc. (the "Company"), a corporation organized under the laws of
the State of Delaware, with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and each purchaser whose name is set forth on the
signature page hereof (each a "Purchaser" and collectively, the "Purchasers").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and each Purchaser, intending to be legally bound, agree
as follows:
SECTION 1. Authorization of Sale of the Units. Subject to the terms
and conditions of this Agreement, the Company has authorized the sale of up to
230,000 units (the "Units"), each consisting of one share of common stock
("Common Stock"), par value $.01 per share (each a "Share," and together the
"Shares"), of the Company and one warrant (each a "Warrant," and together the
"Warrants") to purchase one share of Common Stock (the "Warrant Shares"). The
terms of the Warrants shall be as set forth in the form of Warrant attached
hereto as Exhibit A. The Shares, Warrant Shares and Warrants are referred to
herein as the "Securities."
SECTION 2. Agreement to Sell and Purchase the Units. At the Closing
(as defined in Section 3), the Company will sell to each Purchaser, and such
Purchaser will buy from the Company, upon the terms and conditions hereinafter
set forth, the number of Units shown, and at the purchase price shown, opposite
such Purchaser's name on Schedule A hereto. The Shares and Warrants constituting
the Units shall become immediately separable and transferable upon the Closing.
The Company may simultaneously enter into a similar form of this purchase
agreement with certain other investors (the "Other Purchasers") and complete
sales of the Units to them, although it is understood that there is no minimum
number of Units that are required to be sold by the Company. (The Purchaser and
the Other Purchasers, if any, are hereinafter sometimes collectively referred to
as the "Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements.")
SECTION 3. Delivery of the Units at the Closing. The completion of
the purchase and sale of the Units (the "Closing") shall occur on October 13,
1999 or such other time as may be agreed upon by the Company and each Purchaser
(the "Closing Date"). At the Closing, the Company shall deliver to each
Purchaser one or more stock certificates for the Shares and one or more Warrants
registered in the name of each Purchaser, or in such name(s) as designated by
each Purchaser, based on the number of Units set forth in Section 2 above. The
name(s) in which the stock certificates for the Shares and the Warrants are to
be registered are set forth in the Stock Certificate and Warrant Questionnaire
attached hereto as part of Appendix I. The Company's obligation to complete the
purchase and sale of the Units and deliver such stock
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certificate(s) and Warrants to each Purchaser at the Closing shall be subject to
the following conditions, any one or more of which may be waived by the Company
in its sole discretion: (i) receipt by the Company of immediately available
funds in the full amount of the purchase price for the Units being purchased
hereunder; (ii) completion of the purchases and sales under the Agreements with
any Other Purchasers; and (iii) the accuracy of the representations and
warranties made by the Purchasers and the fulfillment of those undertakings of
the Purchasers to be fulfilled prior to the Closing; provided, however, that in
the event that condition (ii) or, with respect to Other Purchasers, condition
(iii) is not met, each Purchaser shall have the right, but not the obligation,
to purchase the Units which such Other Purchaser (the "Defaulting Purchaser")
should have purchased on the same terms, and if Other Purchasers want to
exercise this right, on a pro rata basis (based on the number of Units purchased
hereunder and under the other purchase agreements) with any Other Purchasers
exercising the right, and if the Purchaser and/or Other Purchasers exercise this
right, the condition shall be deemed to have been met. Each Purchaser's
obligation to accept delivery of such stock certificate(s) and Warrants and to
pay for the Units evidenced thereby shall be subject to the accuracy in all
material respects of the representations and warranties made by the Company in
the Purchase Agreement and the fulfillment in all material respects of those
undertakings of the Company to be fulfilled prior to Closing.
SECTION 4. Representations, Warranties and Covenants of the
Company. The Company hereby represents and warrants to, and covenants with,
each Purchaser as follows:
4.1. Organization and Qualification. The Company is a corporation
duly organized and in good standing under the laws of the State of Delaware and
has all requisite corporate power and authority to conduct its business as
currently conducted. The Company is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the Company
conducts business, except where the failure to do so would not have a material
adverse effect on the business, condition (financial or otherwise) or results of
operations of the Company.
4.2. Authorized and Issued Capital Stock. (a) As of September 30,
1999, the authorized capital stock of the Company consists of (i) 70,000,000
shares of Common Stock, of which 24,550,894 shares were issued and outstanding,
and (ii) 5,000,000 shares of preferred stock, $.01 par value per share, of which
no shares are issued and outstanding. The shares of Common Stock have certain
rights pursuant to the terms of a Rights Agreement, dated as of December 3,
1998, between the Company and Registrar and Transfer Company, as rights agent.
All of the outstanding shares of Common Stock were validly issued and are fully
paid and non-assessable shares.
(b) The Company has registered its Common Stock pursuant to Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (together with
the rules and regulations promulgated thereunder, the "Exchange Act"), and is in
full compliance with all
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reporting requirements of the Exchange Act, and such Common Stock is currently
listed or quoted on the Nasdaq National Market.
4.3. Due Execution, Delivery and Performance of the Agreements. The
execution, delivery and performance of the Agreements by the Company (i) have
been duly authorized by all requisite corporate action by the Company, and (ii)
will not violate any law or the Certificate of Incorporation (the "Certificate
of Incorporation") or the Bylaws (the "Bylaws") of the Company, or any provision
of any material indenture, mortgage, agreement, contract or other material
instrument to which the Company is a party or by which the Company or any of its
properties or assets is bound as of the date hereof, or result in a breach of or
constitute (upon notice or lapse of time or both) a default under any such
material indenture, mortgage, agreement, contract or other material instrument
or result in the creation or imposition of any lien, security interest,
mortgage, pledge, charge or other encumbrance, of any material nature
whatsoever, upon any properties or assets of the Company. The Company has no
material subsidiaries, except Cell Pathways Pharmaceuticals, Inc. Upon their
execution and delivery, and assuming the valid execution thereof by the
respective Purchasers, the Agreements will constitute valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification and
contribution agreements of the Company in Section 7.4 hereof may be legally
unenforceable.
4.4. Issuance, Sale and Delivery of the Shares and Warrant Shares.
When issued and paid for, the Shares to be sold hereunder by the Company and the
Warrant Shares to be acquired upon exercise of the Warrants will be validly
issued and outstanding, fully paid and non-assessable shares of Common Stock.
Neither the sale of the Shares and Warrants pursuant to this Agreement, nor the
Company's performance of its obligations under, this Agreement and the Warrants
shall (i) result in the creation or imposition of any liens, charges, claims or
other encumbrances upon the Shares, the Warrant Shares or any of the assets of
the Company, or (ii) entitle the holders of the outstanding Common Stock to
preemptive or other rights to subscribe to or acquire Common Stock or other
securities of the Company.
4.5. Exemption from Registration. Assuming the accuracy of each
Purchaser's representations and warranties set forth in Section 5 hereof, the
offer, issuance and sale of the Units pursuant to this Agreement are and will be
exempt from the registration and prospectus delivery requirements of the
Securities Act of 1933, as amended (together with the rules and regulations
promulgated thereunder, the "Securities Act").
4.6. Additional Information. The Company represents and warrants
that the information contained in the following documents, copies of which have
been furnished to each
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Purchaser, was true and correct in all material respects and did not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements contained therein in light of the circumstances under
which they were made not misleading, in each case as of their respective dates
(the "SEC Documents"):
(i) the Company's 1998 annual report to stockholders;
(ii) the Company's annual report on Form 10-K for the fiscal year
ended December 31, 1998 (without exhibits);
(iii) the Company's quarterly reports on Form 10-Q for the
three-month periods ended March 31, 1999 and June 30, 1999;
(iv) the notice of annual meeting of stockholders and proxy
statement for the Company's 1999 annual meeting of
stockholders held June 22, 1999; and
(v) all other documents, if any, filed by the Company with the
Securities and Exchange Commission (the "Commission") since
June 30, 1999 pursuant to the reporting requirements of the
Exchange Act.
4.7. No Material Change. As of the date hereof, there has been no
material adverse change in the business, condition (financial or otherwise) or
results of operations of the Company since June 30, 1999, it being understood
that the Company has not achieved revenues and that the continued expenditure of
resources in the Company's continuing operations does not constitute a material
adverse change within the meaning of this paragraph. Without limitation of the
foregoing, each Purchaser also acknowledges being advised by the Company that
(i) the treatment portion of the Phase II/III trial of exisulind in the
prevention of prostate cancer recurrence (the primary endpoint of which relates
to PSA levels) has been completed and data analysis at the Company will begin
shortly, (ii) until such analysis is completed it is impossible for the Company
to understand fully the outcome of the trial, and (iii) the results of such
clinical trial, when released, along with other clinical results and scientific
developments, could materially impact the market price of the Company's shares.
4.8. Legal Opinion. Prior to and as a condition to the Closing,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., General Counsel to the Company, will deliver a legal
opinion to the Purchasers as to the valid issuance of the Shares and the Warrant
Shares, a draft of which has been provided to the Purchasers prior to the date
hereof.
4.9. Listing of Common Stock. The Company shall cause the Shares and
the Warrant Shares to be listed on the Nasdaq National Market and maintain the
listing of the Shares and the Warrant Shares on each national securities
exchange or automated quotation system, if any, upon which shares of Common
Stock are then listed.
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SECTION 5. Representations, Warranties and Covenants of the
Purchasers.
(a) Each Purchaser acknowledges that the Shares and Warrants have
not been, and that the Warrant Shares will not be, registered under the
Securities Act or any state securities law and may not be offered, sold, pledged
or otherwise transferred (i) in the absence of such registration, (ii) unless
the Company receives an opinion of counsel reasonably acceptable to it that such
offer, sale, pledge or transfer is exempt from any registration and prospectus
delivery requirements of the Securities Act and any applicable state securities
laws or (iii) unless the Shares or Warrant Shares are sold pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended (the "Securities Act")
("Rule 144") in accordance with the terms of such rule. Except as otherwise
permitted by Section 7.3, each certificate for the Shares issued at the Closing
and the Warrant Shares, or upon direct or indirect transfer of or in
substitution thereof, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
The Shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or under any
applicable state securities laws and may not be offered, sold,
pledged or transferred in the absence of such registration unless
the Company receives an opinion of counsel, in form, substance and
scope reasonably acceptable to the Company, that such offer, sale,
pledge or transfer is exempt from any registration and prospectus
delivery requirements of the Securities Act and such applicable
state securities laws.
Each Purchaser acknowledges and agrees that the Warrants will contain a similar
legend, as set forth on the top of the form of Warrant attached as Exhibit A
hereto.
(b) Each Purchaser represents and warrants, as of the date hereof
and as of the Closing Date, to, and covenants with, the Company that: (i) the
Purchaser, taking into account the personnel and resources it can practically
bring to bear on the purchase of the Units contemplated hereby, is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in equity securities presenting an
investment decision like that involved in the purchase of the Units, including
investments in equity securities issued by development-state biotechnology
companies; (ii) the Purchaser or its counsel, accountants or other investment
advisers have requested, received, reviewed and considered all information
deemed relevant by them in making an informed decision to purchase the Units,
(iii) the Purchaser is acquiring the Units in the ordinary course of its
business and for its own account for investment only and with no present
intention of distributing any of the Securities, nor is there any arrangement or
understanding with any other persons regarding the distribution of the
Securities; provided however, that such representation and warranty will not
limit the Purchaser's right to sell Shares and the Warrant Shares pursuant to
the Registration Statement or pursuant to an exemption from the Securities Act;
(iv) the Purchaser will not, directly or indirectly, offer, sell (including sell
short), pledge, transfer or otherwise dispose of (or
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solicit any offers to buy, purchase or otherwise acquire or take a pledge of)
any of the Shares and Warrant Shares except in compliance with the Securities
Act, and the rules and regulations promulgated thereunder; (v) the Purchaser has
completed or caused to be completed the Registration Statement Questionnaire and
the Stock Certificate and Warrant Questionnaire, both attached hereto as
Appendix I, for use in preparation of the Registration Statement and the answers
thereto are true, correct and complete in all material respects as of the date
hereof and will be true, correct and complete in all material respects as of the
effective date of the Registration Statement; (vi) the Purchaser has, in
connection with its decision to purchase the Units, relied solely upon the SEC
Documents and the representations and warranties contained herein, as well as
any investigation completed by the Purchaser or its counsel, accountants or
other investment advisers; and (vii) the Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
(c) Each Purchaser agrees not to make any sale of the Shares or the
Warrant Shares under the Registration Statement without effectively causing the
prospectus delivery requirement under the Securities Act to be satisfied, and
each Purchaser acknowledges and agrees that such Shares and the Warrant Shares
are not transferable on the books of the Company unless the certificate
submitted to the transfer agent evidencing the Shares or the Warrant Shares is
accompanied by a separate officer's certificate: (i) in the form of Appendix II
hereto, (ii) executed by an officer of, or other authorized person designated
by, the Purchaser, and (iii) to the effect that (A) such Shares or Warrant
Shares have been sold pursuant to and in accordance with the Registration
Statement and (B) the requirement of delivering a current prospectus has been
satisfied, unless exempt from registration and prospectus delivery requirements.
Each Purchaser acknowledges that there may occasionally be times when the
Company must suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the
Commission, or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act. Each Purchaser agrees that it
will not sell any Securities during the period commencing at the time at which
the Company gives the Purchaser notice of the suspension of the use of said
prospectus and ending at the time the Company gives the Purchaser notice that
the Purchaser may thereafter effect sales pursuant to said prospectus. The
Company shall only be able to suspend the use of said prospectus for periods
aggregating no more than sixty business days in any twelve month period. Each
Purchaser further agrees to notify promptly the Company of the sale of all of
such Purchaser's Securities, and to notify promptly the Company in writing of
any material changes in the information set forth in the Registration Statement
relating to such Purchaser or its plan of distribution, or of any supplemental
information required to be included in the Registration Statement relating to
its plan of distribution.
(d) Each Purchaser further represents and warrants, as of the date
hereof and as of the Closing Date, to, and covenants with, the Company that: (i)
the Purchaser has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions
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contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification and
contribution agreements of the Purchaser in Section 7.4 hereof may be legally
unenforceable.
(e) In consideration for the Company agreeing to its obligations set
forth in Section 7 below in respect of Registrable Securities, each Purchaser
agrees, in connection with any firm commitment underwritten offering of the
Company's Common Stock that, upon the request of the managing underwriters of
such offering, not to sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any shares of Common Stock beneficially
owned by it without the prior written consent of such managing underwriters
during the period of time beginning ten days prior to the date when such
managing underwriters advise the Company that they expect to initiate such
public offering and ending at a date not to exceed ninety days from the
commencement of such public offering. Notwithstanding the foregoing, (i) this
obligation shall not apply to the Purchaser unless each of the Company's
directors and officers enter into a similar agreement, and the Purchaser at such
time beneficially owns in excess of 2% of the Company's then outstanding shares
of Common Stock.
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive the execution of this Agreement, the delivery
to the Purchaser of the Units being purchased and the payment therefor.
SECTION 7. Registration of Shares and Warrant Shares for Resale
7.1. Registration Procedures and Expenses.
(a) The Company shall as soon as practicable after November 3, 1999,
but in no event later than December 31, 1999, prepare and file with the
Commission a registration statement on Form S-3 (or if such form is unavailable
to the Company, on such other form deemed appropriate for the registration of
the Common Stock by the Commission) (the "Registration Statement") to register
the Shares and Warrant Shares ("Registrable Securities") for resale by the
Purchasers in non-underwritten, market transactions, and shall use its best
efforts to cause the Registration Statement to become effective as soon as
practicable thereafter. The Company shall, within three business days before
filing such Registration Statement, provide a draft to each Purchaser and its
counsel and its agent for review and comment;
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(b) The Company shall promptly prepare and file with the Commission
such amendments and supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such the Registration
Statement effective until the first to occur of (i) such date when either all of
the Registrable Securities have been sold pursuant thereto or, by reason of Rule
144(k) of the Commission under the Securities Act or any other rule of similar
effect, the Registrable Securities are no longer required to be registered for
the resale thereof by the Purchasers in ordinary market transactions without
imposition of any volume limitations, or (ii) the second anniversary of the
expiration of the Warrants (the "Registration Period");
(c) The Company shall promptly furnish to each Purchaser and its
agent such number of copies of prospectuses and preliminary prospectuses in
conformity with the requirements of the Securities Act as such Purchaser or its
agent may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Registrable Securities by such Purchaser;
(d) The Company shall promptly file documents required of the
Company for any required blue sky clearance for the Registrable Securities in
such states specified in writing by each Purchaser or its agent; provided,
however, that the Company shall not be required to (i) qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented, (ii) subject itself to general taxation in
any such jurisdiction, (iii) provide any undertakings that cause the Company
undue burden or expense or (iv) make any change in its charter or bylaws;
(e) The Company shall promptly inform each Purchaser and its agent
when any stop order has been issued with respect to the Registration Statement
and use its best efforts to promptly cause such stop order to be withdrawn;
(f) The Company shall notify each Purchaser whose shares are
registered on a Registration Statement and its agent at any time when a
prospectus relating to any Registrable Securities covered by such Registration
Statement or a Company Registration Statement is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing and promptly file such
amendments and supplements as may be necessary so that, as thereafter delivered
to such Purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing and use its best efforts
to cause each such amendment and supplement to become effective;
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(g) The Company shall bear all expenses in connection with the
procedures in paragraph (a) through (f) in this Section 7.1 and the registration
of the Shares pursuant to the Registration Statement, other than fees and
expenses, if any, of counsel or other advisers to the Purchaser or the Other
Purchasers and any expenses relating to the sale of the Registrable Securities
by the Purchasers (including without limitation, broker's commissions, discounts
or fees of any nature and transfer taxes or charges of any nature); and
(h) The Company understands that each Purchaser disclaims being an
underwriter, but a Purchaser being deemed an underwriter shall not relieve the
Company of any obligations it has hereunder. A questionnaire related to the
Registration Statement to be completed by each Purchaser is attached as Appendix
I to this Agreement.
7.2. Transfer of Registrable Securities. Each Purchaser agrees that
it will not effect any disposition of Registrable Securities except as
contemplated in the Registration Statement or as otherwise in compliance with
applicable securities laws, and that it will promptly notify the Company of any
material changes in the information set forth in the Registration Statement
regarding the Purchaser or its plan of distribution. Without limitation, each
Purchaser understands that (i) it may not use Registrable Securities to cover a
short position in shares of the Company's Common Stock created prior to the
effective date of the Registration Statement, and (ii) it must deliver a
prospectus in connection with any short sale of the Registrable Securities
unless it is exempt from such requirement.
7.3. Indemnification. For the purpose of this Section 7.3:
(a) the term "Selling Stockholder" shall include the Purchaser, its
officers, directors, agent and/or trustees and any affiliate or controlling
person of such Purchaser or any permitted assign hereunder;
(b) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(c) the term "untrue statement" shall include any untrue statement
or alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any losses, claims, damages or liabilities to which
such Selling Stockholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based
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upon, any breach of the representations set forth in Section 4 hereof by the
Company, or any untrue statement of a material fact contained in the
Registration Statement, or arise out of any failure by the Company to fulfill
any agreement, covenant or undertaking contained in this Agreement or included
in the Registration Statement, and the Company will reimburse such Selling
Stockholder for any reasonable legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that such loss, claim, damage or liability arises out of, or is
based upon, (i) an untrue statement made in the Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in the
Registration Statement (which shall be deemed to include the information set
forth in the Registration Statement Questionnaire and in the plan of
distribution section of the prospectus), (ii) the failure of such Selling
Stockholder to comply with the covenants and agreements contained herein
respecting transfer or sale of Registrable Securities, or (iii) any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus that
was delivered to the Purchaser sufficiently prior to the pertinent sale or sales
by the Purchaser. The Company shall also not be liable for amounts paid in
settlement of any loss, claim, damage or liability if such settlement if
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld.
Each Purchaser agrees, severally and not jointly, to indemnify and
hold harmless the Company (and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, each officer of the
Company who signs the Registration Statement and each director of the Company)
from and against any losses, claims, damages or liabilities to which the Company
(or any such officer, director or controlling person) may become subject (under
the Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any breach of the representations set forth in Section 5 hereof by
such Purchaser, or any failure by such Purchaser to comply with the covenants
and agreements contained herein regarding the transfer or sale of Registrable
Securities, or any untrue statement of a material fact contained in the
Registration Statement if such untrue statement was made in reliance upon and in
conformity with written information furnished by or on behalf of the Purchaser
specifically for use in the Registration Statement. Each Purchaser will
reimburse, severally and not jointly, the Company (or such officer, director or
controlling person), as the case may be, for any legal or other documented
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim. Each Purchaser agrees that the information
regarding the Purchaser or its officers, directors and affiliates and their
intended plan of distribution of the Shares set forth in the Registration
Statement questionnaire, the form of which is attached as Appendix 1, or
included from time to time in the Registration Statement (including without
limitation the plan of distribution section of the Registration Statement) shall
be deemed to be written information furnished to the Company by or on behalf of
the Purchaser specifically for use in the Registration
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Statement. The foregoing indemnification shall be limited in amount as to each
Purchaser to the Purchase Price paid by such Purchaser hereunder.
Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action; provided, however, that any failure by an
indemnified person to notify an indemnifying person shall not relieve the
indemnifying person from its obligations hereunder except to the extent that the
indemnifying person is materially prejudiced thereby. Subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein, and,
to the extent it shall wish, to assume and control the defense thereof, with
counsel reasonably satisfactory to such indemnified person. After notice from
the indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists a conflict of interest that would make it inappropriate, in
the opinion of counsel to the indemnifying person, for the same counsel to
represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided
further, however, that no indemnifying person shall be responsible for the fees
and expenses of more than one separate counsel for all indemnified parties
hereunder and under the other Agreements.
If the indemnification provided for in this Section 7.3 from the
indemnifying person would be applicable by its terms but is otherwise
unavailable, as determined by a court of applicable jurisdiction, to an
indemnified person hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then the indemnifying person, in
lieu of indemnifying such indemnified person, shall contribute to the amount
paid or payable by such indemnified person as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying person and indemnified persons in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying person and indemnified persons shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact, has been
made by, or relates to information supplied by, such indemnifying person or
indemnified persons, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in this Section 7.3, any reasonable legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
11
12
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.3 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7.3, no Purchaser shall be
required to contribute any amount in excess of the dollar amount of the proceeds
received by such Purchaser upon the sale of the Registrable Securities, giving
rise to such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.4. Termination of Conditions and Obligations. The conditions
imposed by Section 5 or this Section 7 upon the transferability of Registrable
Securities shall cease and terminate as to any particular number of Registrable
Securities when such Registrable Securities shall have been effectively
registered under the Securities Act and sold or otherwise disposed of in
accordance with the intended method of disposition set forth in the Registration
Statement, or at such time as an opinion of counsel satisfactory to the Company
shall have been rendered to the effect that such conditions are not necessary in
order to comply with the Securities Act.
7.5. Continued Availability of Information. So long as the
Registration Statement is effective covering the resale of Registrable
Securities owned by the Purchaser, the Company will furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 120 days after the end of each
fiscal year of the Company), one copy of (i) its Annual Report to Stockholders
(which Annual Report shall contain financial statements audited in accordance
with generally accepted accounting principles by a firm of certified public
accountants), (ii) if not included in substance in the Annual Report to
Stockholders, its Annual Report on Form 10-K, (iii) any quarterly reports to
stockholders, and if not included in substance in its quarterly reports to
stockholders, its quarterly reports on Form 10-Q, and (iv) a full copy of the
Registration Statement (the foregoing, in each case, excluding exhibits);
(b) upon the reasonable request of a Purchaser or its agent, all
exhibits excluded by the parenthetical to subparagraph (a)(iv) of this Section
7.5 and all other information that is made available to shareholders; and
(c) upon the reasonable request of a Purchaser or its agent, an
adequate number of copies of the prospectuses to supply to any other party
requiring such prospectuses;
and the Company, upon the reasonable request of a Purchaser or its agent, will
meet with the Purchaser or a representative thereof at the Company's
headquarters to discuss all information
12
13
relevant for disclosure in the Registration Statement and will otherwise
cooperate with any Purchaser conducting an investigation for the purpose of
reducing or eliminating such Purchaser's exposure to liability under the
Securities Act, including the reasonable production at the Company's
headquarters of non-confidential information (and, upon execution of a
confidentiality agreement satisfactory to the Company, confidential
information).
7.6. Reports under Exchange Act. With a view to making available to
the Purchasers the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit a
Purchaser to sell Registrable Securities to the public without registration, and
with a view to making it possible to register the Registrable Securities
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep available public information, as understood and
defined in Rule 144, at all times;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange act; and
(c) furnish to a Purchaser owning any Registrable Securities or its
agent upon reasonable request (i) a written statement by the Company that is has
complied with the reporting requirements of Rule 144, the Securities Act and the
Exchange act, or that it qualifies as a registrant whose Registrable Securities
may be resold pursuant to Form S-3 (at any time after it so qualified, (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably required in availing any Purchaser of Registrable
Securities of any rule or regulation of the Commission which permits the selling
of any such Registrable Securities without registration or pursuant to such
form.
SECTION 8. Broker's Fees. Each of the parties hereto hereby
represents that, on the basis of any actions and agreements by it, there are no
brokers or finders entitled to compensation in connection with the sale of the
Shares to the Purchaser, except for the Company's obligations to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. which has acted as adviser to the Company.
SECTION 9. Expenses. At the Closing, each party hereto shall
bear its own expenses.
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14
SECTION 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by a nationally
recognized overnight express courier postage prepaid, and shall be deemed given
one day after being so sent and shall be delivered as addressed as follows:
(a) if to the Company, to:
Cell Pathways, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
with copies so mailed to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Senior Vice President, General Counsel and Secretary
Cell Pathways, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and to
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
or to such other person at such other place as the Company
shall designate to the Purchaser in writing; and
(b) if to the Purchaser, at the address set forth on Schedule A
hereto, or at such other address or addresses as may have been furnished to the
Company in writing,
SECTION 11. Entire Agreement; Changes. This Agreement sets
forth the entire agreement of the parties and may not be modified or amended
except pursuant to an instrument in writing signed by the Company and the
Purchaser.
SECTION 12. Headings. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
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15
SECTION 13. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT
GIVING EFFECT TO CONFLICTS OF LAWS.
SECTION 15. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
SECTION 16. Assignment. The Purchaser (or any permitted assignee)
may assign its rights under Section 7 of this Agreement to any subsequent holder
of any or all of the Units who has purchased at least 50,000 Shares or Warrants
to purchase at least 50,000 Shares from such Purchaser (or permitted assignee),
provided that the Company shall have the right to require any such holder of any
or all of the Shares to execute a counterpart of this Agreement and agree to be
bound by the provisions of this Agreement as a condition to such holder's claim
to any rights hereunder.
15
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
CELL PATHWAYS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
VULCAN VENTURES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
16
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SCHEDULE A
AGGREGATE
NAME AND ADDRESS OF NUMBER OF UNITS PRICE PURCHASE
PURCHASER TO BE PURCHASED PER UNIT PRICE
--------------------------------------------------------------------------------
Vulcan Ventures Inc. 230,000 Units, $9.00 $2,070,000.00
▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇. consisting of 230,000
Suite 550 shares and Warrants to
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ purchase 230,000 Warrant
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Shares
Fax: ▇▇▇-▇▇▇-▇▇▇▇
18
Appendix I
(one of two)
CELL PATHWAYS, INC.
STOCK CERTIFICATE AND WARRANT QUESTIONNAIRE
Please provide us with the following information:
1. The exact name that your Shares and
Warrants (both must be in the same
name) are to be registered. This is
the name that will appear on your
stock certificate(s) and Warrants. You
may use a nominee name if appropriate: ______________________
2. The relationship between the Purchaser
of the Units 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 social security number or tax
identification number of the registered
holder listed in response to item 1 above: ______________________
19
Appendix I
(two of two)
CELL PATHWAYS, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the number of shares of Common Stock that you or
your organization will own beneficially or of record immediately after Closing,
including those Shares purchased by you or your organization pursuant to this
Purchase Agreement and those shares purchased by you or your organization
through other transactions (indicating whether you have sole or shared voting or
dispositive power over such securities as determined under applicable rules of
the Securities and Exchange Commission):
VOTING POWER DISPOSITIVE POWER
Sole Shared Sole Shared
__________ __________ __________ __________ Common Stock beneficially owned
prior to the date hereof
__________ __________ __________ __________ Shares being purchased from the
Company
__________ __________ __________ __________ Warrant Shares, issuable upon
exercise of the Warrants being
purchased from the Company
__________ __________ __________ __________ Common Stock issuable upon
exercise of other options or
warrants that you may own, to
the extent such shares of
Common Stock are deemed to be
beneficially owned
TOTAL: ________________ shares of Common Stock beneficially owned
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates other than as disclosed in the Company's proxy statement for its 1999
annual meeting of stockholders, or with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.?
20
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
4. Attached is a draft of the proposed "plan of distribution"
section of the Registration Statement. Please confirm that the draft is a
correct and complete statement of your intended plan of distribution.
_____ Yes _____ No
21
PLAN OF DISTRIBUTION
The Shares being offered by the Selling Shareholder or its
respective pledgees, donees, transferees or other successors in interest, will
be sold in one or more transactions (which may involve block transactions) on
the Nasdaq National Market or on such other market on which the Common Stock may
from time to time be trading, in privately negotiated transactions, through the
writing of options on the Shares, short sales or any combination thereof. The
sale price to the public may be the market price prevailing at the time of sale,
a price related to such prevailing market price or such other price as the
Selling Shareholder determines from time to time. The Shares may also be sold
pursuant to Rule 144. The Selling Shareholder shall have the sole and absolute
discretion not to accept any purchase offer or make any sale of Shares if they
deem the purchase price to be unsatisfactory at any particular time.
The Selling Shareholder or its respective pledgees, donees,
transferee or other successors in interest, may also sell the Shares directly to
market makers acting as principals and/or broker-dealers acting as agents for
themselves or their customers. Brokers acting as agents for the Selling
Shareholder will receive usual and customary commissions for brokerage
transactions, and market makers and block purchasers purchasing the Shares will
do so for their own account and at their own risk. It is possible that the
Selling Shareholder will attempt to sell shares of Common Stock in block
transactions to market makers or other purchasers at a price per share which may
be below the then market price. There can be no assurance with all or any of the
Shares offered hereby will be issued to, or sold by , the Selling Shareholder.
The Selling Shareholder and any brokers, dealers or agents, upon effecting the
sale of any of the Shares offered hereby, may be deemed "underwriters" as that
term is defined under the Securities Act or the Exchange Act, or the rules and
regulations thereunder.
The Selling Shareholder, alternatively, may sell all or any part of
the Shares offered hereby through an underwriter. The Selling Shareholder has
not entered into any agreement with a prospective underwriter and there is no
assurance that any such agreement will be entered into. If the Selling
Shareholder enters into such an agreement or agreements, the relevant details
will be set forth in a supplement or revisions to this Prospectus.
Upon the Company being notified by the Selling Shareholder that any
material arrangement has been entered into with a broker or dealer for the sale
of Shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplemented
Prospectus will be filed, if required, pursuant to Rule 424(c) under the
Securities Act, disclosing (a) the name of each such broker-dealer, (b) the
number of Shares involved, (c) the price at which such Shares were sold, (d) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (e) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this Prospectus, as supplemented, and (f) other facts material to the
transaction.
22
The Selling Shareholder and any other persons participating in the
sale or distribution of the Shares will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, which provisions may
limit the timing of purchases and sales of any of the Shares by the Selling
Shareholder or any other such person. The foregoing may affect the marketability
of the Shares.
The Company has agreed to indemnify the Selling Shareholder, or its
transferees or assignees, against certain liabilities, including liabilities
under the Securities Act, or to contribute to payments the Selling Shareholder
or its respective pledgees, donees, transferees or other successors in interest,
may be required to make in respect thereof.
The Company is bearing all costs relating to the registration of the
Shares (other than fees and expenses, if any, of counsel or other advisers to
the Selling Shareholder). Any commissions, discounts or other fees payable to
broker-dealers in connection with any sale of the Shares will be borne by the
Selling Shareholder.
23
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [AN OFFICER OF, OR OTHER PERSON DULY AUTHORIZED BY]
___________________________________________________ [FILL IN OFFICIAL NAME OF
INDIVIDUAL OR INSTITUTION] hereby certifies that he/she [said institution] is
the Purchaser of the shares evidenced by the attached certificate, and as such,
sold such shares on __________________________________ [DATE] pursuant to and in
accordance with registration statement number ____________________ [FILL IN THE
NUMBER OF OR OTHERWISE IDENTIFY REGISTRATION STATEMENT] and the requirement of
delivering a current prospectus by the Company has been complied with in
connection with such sale.
Print or Type:
Name of Purchaser
(individual or
institution): ______________________
Name of individual
representing
Purchaser (if an
institution) ______________________
Title of individual
representing
Purchaser (if an
institution): ______________________
Signature by:
Individual purchaser
or individual repre-
senting purchaser: ______________________