EXHIBIT 10.6
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (the "Agreement"),dated as of
October __, 1999 is entered into by and between The State of Wisconsin
Investment Board, an independent state agency organized under the laws of
Wisconsin, with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Investment Director, Small Cap Stocks (the
"Purchaser") and Bone Care International, Inc., a Wisconsin corporation with an
address of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
The Company is offering for sale, to the Purchaser and to certain
other parties (the "Other Purchasers"), and the Purchaser and the Other
Purchasers have agreed to purchase, on substantially the same price terms as
contained herein, in the aggregate, not more than (1,600,000) shares of the
Company's common stock, no par value per share (the "Common Stock"). The Company
has offered for sale, and the Purchaser has agreed to purchase _________ shares
(the "Shares") of fully registered Common Stock on the terms and conditions
herein provided. In connection herewith, the Company and the Purchaser hereby
agree as follows:
1. Purchase and Sale of Shares. Upon the basis of the representations
and warranties and subject to the terms and conditions set forth herein, the
Company agrees to issue and sell the Shares to the Purchaser on the Closing Date
(as herein defined) at a per share purchase price equal to $____ (the "Per Share
Purchase Price," and the aggregate purchase price of all of the Shares being
referred to herein as the "Purchase Price") and, upon the basis of
representations and warranties and subject to the terms and conditions set forth
herein, the Purchaser agrees to purchase the Shares from the Company on the
Closing Date at the Purchase Price.
Notwithstanding the foregoing, in the event that the Company sells any
shares (or securities that may be converted into or exchanged for shares) of
Common Stock in an original issuance (not shares traded on the Nasdaq National
Market in the aftermarket) for less per share than the Per Share Purchase Price
at any time during the sixty day period commencing on the Closing Date (except
for shares issued pursuant to stock options), the Company shall have the
obligation to promptly notify and pay the Purchaser: (x) the aggregate
difference between (i) the Per Share Price of the Shares and (ii) the per share
price of such additional shares of the Company's Common Stock (or securities
that may be converted into or exchanged for shares of Common Stock) so sold,
multiplied by (y) the number of Shares purchased hereunder, payable, at the
Company's option, in either cash or additional shares of the Company's Common
Stock. If the Company elects to pay in Common Stock, the Common Stock shall be
valued at the price at which the Company sells any such shares (or securities
that may be converted into or exchanged for shares) of Common Stock and will be
payable within five (5) days of such other sale.
2. Closing. The closing of the purchase and sale of the Shares (the
"Offering") shall take place, on the first business day following the
satisfaction of the conditions set forth in Paragraph 6 below, as coordinated by
the parties, or on such other date or at such other time and place as the
Company and the Purchaser may agree upon (such time and date of the closing
being referred to herein as the "Closing Date"). Upon payment of the Purchase
Price in full in immediately available funds by or on behalf of the Purchaser to
the Company by wire transfer to
an account specified by the Company to the Purchaser prior to the Closing Date,
the Company will promptly cause its transfer agent to deliver to the Purchaser
certificates representing the shares of Common Stock in such denominations and
registered in such names as the Purchaser shall have requested prior to the
Closing Date. The Company shall provide facsimile copies of the certificates to
the Purchaser on the Closing Date.
The Company's Registration Statement on Form S-1 (No. 333-87789), as
amended, has been declared effective by the Securities and Exchange Commission
("Commission") (including all exhibits thereto and all information and documents
incorporated by reference therein, the "Registration Statement") and includes
the registration of the original issuance of the Shares purchased by the
Purchaser pursuant to this Agreement.
3. Representations and Warranties of the Company. The Company represents
and warrants, as of the date hereof and as of the Closing Date, as follows:
(a) no consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the
Company or any of the Company's affiliates is required for the execution of
this Agreement or the sale of the Shares to the Purchaser;
(b) neither the sale of the Shares nor the performance of the
Company's other obligations pursuant to this Agreement will violate,
conflict with, result in a breach of, or constitute a default (or an event
that, with the giving of notice or the lapse of time or both, would
constitute a default or trigger any right of a third party to acquire
equity interests in the Company or cause mandatory adjustment of the price
at which an outstanding security of the Company is convertible into Common
Stock) under (i) the Articles of Incorporation or the Bylaws of the
Company, (ii) any decree, judgment, order or determination of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Company or any of the Company's properties or assets, (iii) any law,
treaty, rule or regulation applicable to the Company (other than the
federal securities laws, representations and warranties with respect to
which are made by the Company, or the requirements of the NASDAQ stock
market), (iv) the terms of any bond, debenture, note or other evidence of
indebtedness, or any agreement, stock option or similar plan by which the
Company is bound or to which any property of the Company is subject, in any
event above, which violation, conflict or breach would have a material
adverse effect on the Company.
(c) the Company has taken all corporate action required to authorize
the execution and delivery of this Agreement and the performance of its
obligations hereunder and will use the proceeds of sale as described in the
Registration Statement;
(d) the Company has duly authorized the issuance of the Shares and,
when issued and delivered to and paid for by the Purchaser in accordance
with the terms hereof, the Common Stock will be duly and validly issued,
fully paid and non-assessable and will
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not constitute "restricted securities" within the meaning of Rule 144(a)(3)
promulgated under the Securities Act of 1933, as amended (the "Act");
(e) the Company's Prospectus dated October ___, 1999 included in the
Company's Registration Statement, the Company's Form 10 (File No. 0-
27854), as amended and the Company's Annual Report on Form 10-K for its
Fiscal Year ended June 30, 1999 (collectively, the "Disclosure Documents")
have been delivered to purchaser and, as of the date of each such
respective document included therein and when considered as of today
together and with this Agreement, such Disclosure Documents do not contain
any 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 in which they were made with
respect to the Company;
(f) the Company's financial statements for the year ended June 30,
1999, included in the Disclosure Documents comply in all material respects
with the applicable requirements of the Securities Exchange Act of 1934, as
amended, and have been prepared, and fairly present in all material
respects the consolidated financial condition, results of operations and
cash flows of the Company and its subsidiaries at the respective dates and
for the respective periods indicated, in accordance with generally accepted
accounting principles consistently applied throughout such periods (excepts
as noted therein);
(g) except as set forth in the Disclosure Documents or pursuant to
this Agreement, since June 30, 1999 (i) the Company has not incurred any
material liabilities, direct or contingent, except in the ordinary course
of business, and (ii) there has been no material adverse change in the
properties, business, results of operations of financial condition of the
Company; and
(h) as of August 31, 1999 (and without giving effect to the sale of
Shares of Common Stock hereunder), the Company had a total of 10,173,396
shares of Common Stock issued and outstanding, approximately 548,638 shares
of Common Stock were subject to outstanding options granted under the
Company's 1996 Stock Option Plan or Incentive Stock Option Plan;
approximately 459,850 shares of Common Stock were reserved for future grant
under the Company's 1996 Stock Option Plan; and there will be no changes in
these numbers prior to the Closing Date except as a result of shares issued
in connection with the conversion or exchange of any securities of the
Company or stock options granted under or shares issued under any existing
stock option plan or other existing employee bonus or existing incentive
plan of the Company.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants, as of the date hereof and as of the Closing Date, as
follows:
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(a) no consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the
Purchaser is required for the execution of this Agreement or the purchase
of the Shares by the Purchaser;
(b) neither the purchase of the Shares nor the performance of the
Purchaser's other obligations pursuant to this Agreement will violate,
conflict with, result in a breach of, or constitute a default under (i) the
charter documents of the Purchaser; (ii) any decree, judgment, order or
determination of any court, governmental agency or body, or arbitrator
having jurisdiction over the Purchaser or any of the Purchaser's properties
or assets; (iii) any law, treaty, rule or regulation applicable to the
Purchaser; or (iv) the terms of any bond, debenture, note or other evidence
of indebtedness, or any agreement, stock option or similar plan by which
the Purchaser is bound or to which any property of the Purchaser is
subject, in any event above, which violation, conflict or breach would have
a material adverse effect on the Purchaser;
(c) the Purchaser has taken all corporate action required to authorize
the execution and delivery of this Agreement and the performance of its
obligations hereunder; and
(d) as of the date hereof, the Purchaser beneficially owns 800,000
shares of Common Stock.
5. Stock Options. The Board of Directors has approved the Company
entering into this Agreement. The company agrees to take action not later than
November 17, 1999 including if necessary an amendment to its bylaws to provide
that the Company, without the approval of the owners of a majority of the Common
Stock, shall not grant to any officer of the Company any stock options at less
than the closing market price on the date of grant or reduce the price of any
options which either were granted as a non-qualified stock option grant to an
incoming employee or vendor or were granted under any of the Company's existing
or future stock option plans, provided, however, that the foregoing would not
preclude the Company from issuing new, lower priced options issued from a stock
option plan to persons holding higher priced options from such plan; provided,
that if such new lower priced options were granted in exchange for such higher
priced options, the shares covered by such higher priced options would be
canceled or surrendered and not available for re-grant under such stock option
plan.
6. Conditions of Closing. The obligations of each party hereunder shall
be subject to:
(a) The accuracy in all material respects of the representations and
warranties of the other party hereto as of the date hereof and as of the
Closing Date, as if such representations and warranties had been made again
on and as of the Closing Date;
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(b) The performance in all material respects by the other party of its
obligations hereunder which must be performed prior to the Closing Date;
(c) the Registration Statement shall have been declared effective and
no stop order suspending the effectiveness of the Registration Statement
shall have been issued;
(d) The Purchaser shall have received a legal opinion of counsel to
the Company reasonably acceptable to Purchaser.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Purchaser,
each person, if any, who controls the Purchaser within the meaning of
Section 15 of the Act and each officer, director, employee and agent of the
Purchaser and of any such controlling person against any and all
liabilities, claims, damages or expenses whatsoever, as incurred arising
out of or resulting from any breach or, in the case of a third person
claim, any alleged breach or other violation of any representation,
warranty, covenant, or undertaking by the Company contained in this
Agreement, and the Company will reimburse the Purchaser for its reasonable
legal and other expenses (including the reasonable cost of any
investigation and preparation, and including the reasonable fees and
expenses of counsel) incurred in connection therewith.
(b) The Purchaser agrees to indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of Section
15 of the Act and each officer, director, employee and agent of the Company
and of any such controlling person against any and all liabilities, claims,
damages or expenses whatsoever, as incurred arising out of or resulting
from any breach or, in the case of a third person claim, any alleged breach
or other violation of any representation, warranty, covenant, or
undertaking by the Purchaser contained in this Agreement, and the Purchaser
will reimburse the Company for its reasonable legal and other expenses
(including the reasonable cost of any investigation and preparation, and
including the reasonable fees and expenses of counsel) incurred in
connection therewith.
7. Survival of Representations and Warranties. The respective
agreements, representations, warranties, indemnities and other statements made
by or on behalf of each party hereto pursuant to this Agreement, as of the date
they were made, shall, unless otherwise specified, survive until the third
anniversary of the Closing Date and shall expire thereafter.
8. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts and
such counterparts shall constitute but one and the same agreement and
authorized signatures may be evidenced to the other party by facsimile
copies thereof, provided that the
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originally signed signature page of any party is provided to the other
party within two business days after the original execution.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other party hereto and no
other person shall have any right or obligation hereunder. Without
limiting the foregoing, the rights of Purchaser set forth in Paragraph 3
shall not be transferable to subsequent purchases of the Shares. Any
assignment contrary to the terms hereof shall be null and void and of no
force or effect.
(c) This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior
agreements or understandings, whether written or oral, between the parties
respecting such subject matter.
(d) If within 60 days of the Closing Date hereof the Company enters
into or is a party to any agreement to issue additional equity securities
(or securities convertible or exchangeable therefor), the Company shall
promptly provide notice of such agreement to the Purchaser, together with a
copy of such agreement.
10. Governing Law. This Agreement shall be governed by the internal laws
of the State of Wisconsin.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
BONE CARE INTERNATIONAL INC.
By:
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President and Chief Executive Officer
THE STATE OF WISCONSIN INVESTMENT BOARD
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇, Investment Director, State of
Wisconsin Investment Board
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