Exhibit 10.45
CV THERAPEUTICS, INC.
COMMON STOCK PURCHASE AGREEMENT
OCTOBER 7, 1997
TABLE OF CONTENTS
PAGE
SECTION 1. PURCHASE AND SALE OF COMMON STOCK. . . . . . . . . . . . . . . . . 1
SECTION 2. CLOSING DATE; DELIVERY . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . . . . . . . . 1
3.1 Organization and Standing.. . . . . . . . . . . . . . . . . . 1
3.2 Corporate Power; Authorization. . . . . . . . . . . . . . . . 1
3.3 Issuance and Delivery of the Shares.. . . . . . . . . . . . . 2
3.4 Full Disclosure.. . . . . . . . . . . . . . . . . . . . . . . 2
3.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.6 Governmental Consents.. . . . . . . . . . . . . . . . . . . . 3
3.7 No Material Adverse Change. . . . . . . . . . . . . . . . . . 3
3.14 Intellectual Property . . . . . . . . . . . . . . . . . . . . 4
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER . . . . . . 4
4.1 Authorization.. . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Investment Experience.. . . . . . . . . . . . . . . . . . . . 5
4.3 Investment Intent.. . . . . . . . . . . . . . . . . . . . . . 5
4.4 Registration or Exemption Requirements. . . . . . . . . . . . 5
4.5 Restriction on Short Sales. . . . . . . . . . . . . . . . . . 5
4.6 No Legal, Tax or Investment Advice. . . . . . . . . . . . . . 6
SECTION 5. CONDITIONS TO CLOSING OF PURCHASER . . . . . . . . . . . . . . . . 6
5.1 Representations and Warranties. . . . . . . . . . . . . . . . 6
5.2 Legal Opinion.. . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Officers Certificate.. . . . . . . . . . . . . . . . . . . . 6
5.4 Covenants.. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 6. CONDITIONS TO CLOSING OF COMPANY . . . . . . . . . . . . . . . . . 6
6.1 Representations and Warranties. . . . . . . . . . . . . . . . 6
6.2 Covenants.. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 7. REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 Registration Requirements . . . . . . . . . . . . . . . . . . 7
7.2 Indemnification and Contribution. . . . . . . . . . . . . . . 9
SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF SHARES: COMPLIANCE WITH
SECURITIES ACT . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1 Restrictions on Transferability.. . . . . . . . . . . . . . . 11
8.2 Restrictive Legend. . . . . . . . . . . . . . . . . . . . . . 11
8.3 Transfer of Shares after Registration.. . . . . . . . . . . . 12
8.4 Purchaser Information.. . . . . . . . . . . . . . . . . . . . 12
SECTION 9. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.1 Waivers and Amendments. . . . . . . . . . . . . . . . . . . . 12
9.2 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . 12
9.3 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.4 Successors and Assigns. . . . . . . . . . . . . . . . . . . . 13
9.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . 13
9.6 Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . 13
9.7 Severability of this Agreement. . . . . . . . . . . . . . . . 14
9.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 14
9.9 Further Assurances. . . . . . . . . . . . . . . . . . . . . . 14
9.10 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
i.
Exhibit A Instruction Sheet for Purchaser
Exhibit A-1 Stock Certificate Questionnaire
Exhibit A-2 Registration Statement Questionnaire
Exhibit A-3 Certificate for Corporate, Partnership, Trust, Foundation and
Joint Purchasers
Exhibit B Purchaser's Certificate of Subsequent Sale
Exhibit C Form of Legal Opinion
ii.
CV THERAPEUTICS, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made as of
October 7, 1997 (the "Effective Date"), by and between CV THERAPEUTICS, INC., a
Delaware corporation (the "Company") and BIOTECH TARGET S.A., a corporation
organized under the laws of Panama (the "Purchaser").
SECTION 1. PURCHASE AND SALE OF COMMON STOCK
Subject to the terms and conditions of this Agreement, the Company agrees
to issue and sell to Purchaser and Purchaser agrees to purchase from the Company
1,397,147 shares of the Company's Common Stock, $0.001 par value (the "Shares"),
for a purchase price of $12,923,610.
SECTION 2. CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the offices of ▇▇▇▇▇▇ Godward LLP,
Five Palo Alto Square, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ at
10:00 a.m., on October 7, 1997 or at such other time and place upon which the
Company and Purchaser 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 Purchaser a
certificate, registered in Purchaser's name, representing the number of shares
of Common Stock to be purchased by Purchaser. Such delivery shall be against
payment of the purchase price therefor by wire transfer to the Company's bank
account.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser as of the Closing Date as
follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full power and authority to own and operate its properties and
assets and to carry on its business as presently conducted and as proposed to be
conducted. The Company is qualified as a foreign corporation to do business in
each jurisdiction in the United States in which the ownership of its property or
the conduct of its business requires such qualification, except where any
statutory fines or penalties or any corporate disability imposed for the failure
to qualify would not materially or adversely affect the Company, its assets,
financial condition or operations.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power to, and has taken all requisite corporate action to, execute
and deliver this Agreement, to sell and issue the Shares and to carry out and
perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Company,
1.
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii) as
limited by equitable principles generally and (iii) as to those provisions of
Section 7.2 relating to indemnity or contribution, as may be limited by
applicable laws. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby by the Company will
(i) conflict with or violate any provision of the Amended and Restated
Certificate of Incorporation or Restated By-Laws of the Company; (ii)
conflict with or violate any law, rule, regulation, ordinance, order, writ,
injunction, judgment or decree applicable to the Company or its business,
which violation would have a material adverse effect on the Company; or (iii)
conflict with or result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination or cancellation of, or accelerate
the performance required by or maturity of, or result in the creation of any
security interest, lien, charge or encumbrance on any of the Company's assets
pursuant to any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, permit, license, franchise, lease contract, or other
instrument or obligation to which the Company is a party, which breach,
default, termination, cancellation, acceleration, security interest, lien,
charge or encumbrance would have a material adverse effect on the Company.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued and paid
for in compliance with the provisions of this Agreement, will be validly issued,
fully paid and nonassessable. The issuance and delivery of the Shares is not
subject to preemptive, co-sale, right of first refusal or any other similar
rights of the stockholders of the Company or any liens or encumbrances,
PROVIDED, HOWEVER, that the Shares may be subject to restrictions on transfer
under state and/or federal securities laws as set forth herein or as otherwise
required by such laws at the time a transfer is proposed.
3.4 FULL DISCLOSURE. The Company has furnished to Purchaser the following
documents filed with or to be filed with the Securities and Exchange Commission
(collectively, the "SEC Documents") and the Company warrants that the
information contained in such documents, as of their respective dates, did not
contain any untrue statement of a material fact, and did not omit to state any
material fact necessary to make any statement, in light of the circumstances
under which such statement was made, not misleading:
(a) The prospectus for the Company's initial public offering of
Common Stock, dated November 19, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, and June 30, 1997.
(c) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
3.5 LITIGATION. Except as set forth in the SEC Documents, there is no
pending or, to the Company s knowledge, threatened action, suit or other
proceeding before any court,
2.
governmental body or authority, or arbitrator to which the Company is a party
or to which its property or assets are subject and to the Company's
knowledge, no basis exists for any (i) material legal proceeding by or
against the Company or (ii) governmental proceeding or investigation of the
Company.
3.6 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
Federal, state, or local governmental authority 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 and other jurisdictions 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 a registration statement and all amendments thereto
with the SEC as contemplated by Section 7.1 of this Agreement.
3.7 NO MATERIAL ADVERSE CHANGE. Since June 30, 1997, there have not been
any changes in the assets, liabilities, financial condition or operations of the
Company from that reflected in the SEC Documents except changes in the ordinary
course of business or which have not been, either individually or in the
aggregate, materially adverse.
3.8 CAPITALIZATION. At October 3, 1997, the Company had 7,020,444 shares
of Common Stock outstanding, held 28,527 shares of Common Stock in treasury, and
had options and warrants to purchase 916,579 and 549,504 shares of Common Stock,
respectively, outstanding.
3.9 NO VIOLATIONS. The Company is not in violation of its charter, bylaws
or other organizational document, or of any law, administrative regulation,
ordinance, order, judgment or decree of any court or governmental agency,
arbitration panel or authority applicable to the Company, except for violations
which, individually or in the aggregate, would not have a material adverse
effect on the Company. The Company is not in default in any material respect in
the performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust, or any other agreement or instrument to which the
Company is a party or by which the Company is bound or by which the properties
of the Company are bound or affected, except for violations which, individually
or in the aggregate, would not have a material adverse effect on the Company,
and there exists no condition which, with the passage of time or otherwise,
would constitute a material default under any such document or instrument or
result in the imposition of any material penalty or the acceleration of any
material indebtedness.
3.10 GOVERNMENTAL PERMITS, ETC. The Company has all necessary franchises,
licenses, permits, certificates and other authorizations from any foreign,
federal, state or local government or governmental agency, department, or body
that are currently necessary for the operation of the business of the Company as
currently conducted and as described in reports required to be filed by the
Company under the Securities and Exchange Act of 1934, as amended (the "1934 Act
Filings") and the absence of which would have a material adverse effect on the
Company.
3.
3.11 FINANCIAL STATEMENTS. The financial statements of the Company and the
related notes contained in the 1934 Act Filings present fairly, subject to
normal year end adjustments in the case of the quarterly statements, the
financial position of the Company as of the dates indicated, and the results of
its operations and cash flows for the periods therein specified and the assets
and liabilities of the Company have not changed materially since the date of the
most recent 1934 Act Filing except for changes in the ordinary course of
business. Such financial statements (including the related notes) have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods therein specified, except as disclosed
in the 1934 Act Filings.
3.12 OPERATION OF THE BUSINESS. Except as described in the 1934 Act
Filings, the Company owns and retains all such assets and contractual rights
necessary for it to operate its business as described in the 1934 Act Filings,
except where the failure to own or retain such assets or contractual rights
would not have a material adverse effect upon the operations of the Company.
3.13 ENVIRONMENTAL MATTERS. The Company is in compliance with all
applicable local, state and federal safety and environmental laws and
regulations, except where the failure to comply with such environmental laws and
regulations would not have a material adverse effect upon the operations of the
Company.
3.14 INTELLECTUAL PROPERTY. Except as described in the SEC Documents, the
Company owns or possesses sufficient rights to use all material patents, patent
rights, trademarks, copyrights, licenses, inventions, trade secrets and know-how
described or referred to in the SEC Documents, as owned or used by it or that
are necessary for the conduct of its business as now conducted or as described
in the SEC Documents. Except as described in the SEC Documents, the Company has
not entered into or become party to any material development, license or other
agreement pursuant to which it has secured the right or obligation to use, or
granted others the right or obligation to use, any trademarks, servicemarks,
trade names, copyrights, patents or any other intellectual property right. All
technical information developed by or belonging to the Company which has not
been patented has been kept confidential.
3.15 RELIANCE. The Company acknowledges that the Purchaser has reviewed
and relied upon the 1934 Act Filings in making its decision to purchase the
Shares.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Purchaser hereby 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 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
4.
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 INVESTMENT EXPERIENCE. Purchaser is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser is aware of the Company's business affairs and
financial condition and has had access to and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision to
acquire the Shares. 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.
4.3 INVESTMENT INTENT. Purchaser is purchasing the Shares for its own
account as principal, for investment purposes only, and not with a view to, or
for, resale, distribution or fractionalization thereof, in whole or in part,
within the meaning of the Securities Act. Purchaser understands that its
acquisition of the Shares 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 nature of Purchaser's investment intent as expressed herein.
Purchaser will complete or cause to be completed the Purchaser
Certificates/Questionnaire attached hereto as Exhibits A-1 through A-3 for use
in connection with the sale of Shares and in preparation of the Registration
Statement (as defined below), will deliver the such Certificates/Questionnaires
to the Company on or prior to the October 13, 1997, and the responses provided
therein shall be true and correct as of the Closing Date.
4.4 REGISTRATION OR EXEMPTION REQUIREMENTS. Purchaser further
acknowledges and understands that the Shares must be held for investment
purposes, and they may not be resold or otherwise transferred except in a
transaction registered under the Securities Act or pursuant to an exemption from
such registration. Purchaser understands that the certificate(s) evidencing the
Shares will be imprinted with a legend that prohibits the transfer of the Shares
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 ("Rule 144") and, if the Company shall so request in
writing, an opinion of counsel will be required satisfactory to the Company to
the effect that the transaction is so exempt and in compliance with applicable
state law.
4.5 RESTRICTION ON SHORT SALES. Purchaser represents and warrants to and
covenants with the Company that Purchaser has not engaged and will not engage in
any short sales of the Company's Common Stock prior to the effectiveness of the
Registration Statement, except to the extent that any such short sale is fully
covered by shares of Common Stock of the Company other than the Shares.
4.6 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 constitutes legal, tax or
investment advice and that independent legal counsel
5.
has reviewed these documents and materials on Purchaser's behalf. 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.
SECTION 5. CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligation to purchase the Shares at the Closing is, at the
option of Purchaser, subject to the fulfillment or waiver as of the Closing Date
of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Company in Section 3 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 said date.
5.2 LEGAL OPINION. The Company shall have delivered a legal opinion from
Cooley Godward LLP, counsel to the Company, addressed to Purchaser in the form
attached hereto as Exhibit C with respect to the sale of the Shares by the
Company hereunder.
5.3 OFFICERS CERTIFICATE. The Company shall deliver to Purchaser a
certificate, dated as of the Closing Date, signed by the Chief Executive Officer
of the Company, stating that the representations and warranties set forth in
Section 3 are true as of and all of the closing conditions set forth in Section
5 have been satisfied on the Closing Date.
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 material respects.
SECTION 6. CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares is, at the option of
the Company, subject to the fulfillment or waiver of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations made by Purchaser
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 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by Purchaser on or prior to the Closing Date shall
have been performed or complied with in all material respects.
SECTION 7. REGISTRATION RIGHTS
7.1 REGISTRATION REQUIREMENTS
6.
(a) Except as provided in paragraph (d) below, 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 Purchaser on November 19,
1997 and use its best efforts to cause the registration statement to be declared
effective as soon as practicable. In the event that at any time the filing of
such registration statement is undertaken or is required to be undertaken the
Company fails to qualify for use of Form S-3 for purposes of registering for
resale the Shares, the Company shall cause a registration statement on Form S-1
to be filed as soon as practicable thereunder. The Purchaser agrees to furnish
promptly to the Company in writing all information reasonably required by the
Company to file such a registration statement on Form S-3 or a registration
statement on Form S-1, as the case may be (either such registration statement
referred to hereinafter as the "Registration Statement").
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and Purchaser shall pay all Selling Expenses (as defined below) and
other expenses that are not Registration Expenses relating to the Shares resold
by Purchaser. "Registration Expenses" shall mean all expenses, 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 and independent public accountants for the Company,
blue sky fees, transfer agent fees and expenses and the expense of any special
audits incident to or required by any such registration. "Selling Expenses"
shall mean selling commissions, underwriting fees and stock transfer taxes
applicable to the Shares and, subject to Section 9.10, all fees and
disbursements of counsel for 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: (i)
keep such registration effective until the earlier of (A) the third anniversary
of the Closing Date, (B) such date as all of the Shares have been resold or (C)
such time as all of the Shares held by Purchaser can be sold within a given
three-month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144; (ii) prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus used
in connection with the 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 the Registration Statement; (iii) furnish such number of
prospectuses and other documents incident thereto, including any amendment of or
supplement to the prospectus, as Purchaser from time to time may reasonably
request in order to facilitate the public sale or other disposition of all or
any of the Shares held by Purchaser; (iv) cause all Shares registered as
described herein to be listed on each securities exchange and quoted on each
quotation service on which similar securities issued by the Company are then
listed or quoted; (v) provide a transfer agent and registrar for all Shares
registered pursuant to the Registration Statement and a CUSIP number for all
such Shares; (vi) promptly comply with all applicable rules and regulations of
the SEC; and (vii) file the documents required of the Company and otherwise
promptly obtain, if applicable, and maintain requisite blue sky clearance in (A)
all jurisdictions in which any of the Shares are originally sold and (B) all
other states specified in writing by Purchaser, provided as to clause (B),
however, that the Company shall not be required to qualify to do business or
consent to service of process
7.
in any state in which it is not now so qualified or has not so consented.
The Company shall use its best efforts to qualify for use of Form S-3 under
the Securities Act to register the resale of the Shares and to maintain such
qualification during the periods described in paragraph (i).
(d) The Company may delay the filing of the Registration Statement
for up to eighty (80) days by giving written notice to Purchaser if the Company
shall have determined that the Company may be required to disclose any material
corporate development which disclosure may have a negative material effect on
the Company. The duration of any such delay shall be added to the period of
time that the Company agrees to keep the Registration Statement open.
(e) Following the effectiveness of the Registration Statement, the
Company may, at any time, but not more than once in any six-month period,
suspend the effectiveness of such registration statement for up to 45 days, as
appropriate (a "Suspension Period"), by giving notice to Purchaser, if the
Company shall have determined that the Company may be required to disclose any
material corporate development which disclosure may have a negative material
effect on the Company. The Company agrees to use commercially reasonable
efforts to minimize the length of any suspension. The duration of any
Suspension Period shall be added to the period of time that the Company agrees
to keep the Registration Statement effective. Purchaser agrees that, upon
receipt of any notice from the Company of a Suspension Period, Purchaser shall
forthwith discontinue disposition of shares covered by such Registration
Statement or prospectus until Purchaser (i) is advised in writing by the Company
that the use of the applicable prospectus may be resumed, (ii) has received
copies of a supplemental or amended prospectus, if applicable, and (iii) has
received copies of any additional or supplemental filings which are incorporated
or deemed to be incorporated by reference in such prospectus.
(f) The Company will, as expeditiously as possible, notify Purchaser
(i) of the effective date of the Registration Statement and the date when any
post-effective amendment to the Registration Statement becomes effective; (ii)
of any stop order or notification from the SEC or any other jurisdiction as to
the suspension of the effectiveness of the Registration Statement; and (iii) of
the end of any suspension hereunder.
(g) With a view to making available to Purchaser the benefits of Rule
144 and any other rule or regulation of the SEC that may at any time permit
Purchaser to sell Shares to the public without registration or pursuant to
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) the third anniversary of the Closing Date or (B) such
date as all of the Shares shall have been resold; (ii) file with the SEC in a
timely manner all reports and other documents required of the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and maintain
registration of its Common Stock under Section 12 of the Exchange Act; and (iii)
furnish to Purchaser upon request, as long as Purchaser owns any Shares, (A) a
written statement by the Company that it has complied with the reporting
requirements of the Exchange Act, (B) a copy of the most recent annual or
quarterly report of the Company, and (C) such other information as may be
reasonably requested in order to avail Purchaser of any rule or regulation of
the SEC that permits the selling of any such Shares without registration.
8.
7.2 INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify Purchaser and hold Purchaser
harmless from and against any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) to which Purchaser may become subject (under
the Securities Act, Exchange Act, state securities laws or otherwise) insofar as
such losses, claims, damages or liabilities (or actions, proceedings or
settlements in respect thereof) arise out of, or are based upon, (i) any untrue
statement (or alleged untrue statement) of a material fact contained in the
Registration Statement, on the effective date thereof or any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, (ii) the omission or the alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(iii) any failure by the Company (or its agents) to fulfill any undertaking
included in the Registration Statement, or (iv) breach by the Company of its
representations, warranties, covenants or obligations in this Agreement, and the
Company will, as incurred, reimburse Purchaser for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, loss, damage, 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 (or
omission) made in such Registration Statement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of Purchaser
specifically for use in preparation of the Registration Statement unless
Purchaser provided the Company with additional written information a reasonable
time prior to the effectiveness of the Registration Statement as is required to
make the previously supplied information true and correct, (ii) the failure of
Purchaser to comply with the covenants and agreements contained in Section 7.1
or 8.3 hereof, or (iii) any untrue statement (or omission) in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to Purchaser
by the Company a reasonable time prior to the pertinent sale or sales by
Purchaser. The Company will reimburse Purchaser for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations under
this section and the possibility that such payments might later be held to be
improper, provided, that (i) to the extent any such payment is ultimately held
to be improper, the persons receiving such payments shall promptly refund them
and (ii) such persons shall provide to the Company, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
(b) Purchaser agrees to indemnify and hold harmless the Company from
and against any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) to which the Company 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 (i) an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Purchaser specifically for use in preparation of the
Registration Statement, PROVIDED, HOWEVER, that Purchaser shall not be liable in
any such case for any untrue statement included in any Prospectus which
statement has been corrected, in writing, by Purchaser and delivered to the
Company a reasonable time before the sale from which such loss occurred, (ii) a
breach by the
9.
Purchaser of its representations, warranties, covenants or obligations in
this Agreement, or (iii) any untrue statement in any Prospectus that is
corrected in any subsequent Prospectus that was delivered to the Purchaser
prior to the pertinent sale or sales by Purchaser, PROVIDED, FURTHER,
HOWEVER, that the liability of Purchaser hereunder shall be limited to the
proceeds received by Purchaser from the sale of the Shares covered by such
Registration Statement; and PROVIDED, FURTHER, HOWEVER, that the obligations
of Purchaser hereunder shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if settlement is effected
without the consent of Purchaser. Purchaser will reimburse the Company for
any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of the obligations under this section and the possibility that
such payments might later be held to be improper, provided, that (i) to the
extent any such payment is ultimately held to be improper, the persons
receiving such payments shall promptly refund them and (ii) such persons
shall provide to Purchaser, upon request, reasonable assurances of their
ability to effect any refund, when and if due.
(c) Promptly after receipt by any indemnified person of a notice of a
claim or the commencement of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.2, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and the indemnifying person shall have been notified thereof,
the indemnifying person shall be entitled to participate therein, and, to the
extent that it shall wish, to assume and undertake the defense thereof, with
counsel reasonably satisfactory to the indemnified person. After notice from
the indemnifying person to such indemnified person of the indemnifying person's
election to assume and undertake the defense thereof, the 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 or shall exist a conflict of
interest that would make it inappropriate in the reasonable judgment of the
indemnified 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.
(d) If the indemnification provided for in this Section 7.2 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions proceedings or settlements in respect thereof) referred
to therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Purchaser
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to
10.
information supplied by the Company on the one hand or Purchaser on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
Purchaser agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), Purchaser shall not be required to
contribute any amount in excess of the amount by which the amount received by
Purchaser (net of Selling Expenses) from the sale of the Shares to which such
loss relates exceeds the amount of any damages which Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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.
(e) The obligations of the Company and Purchaser under this Section
7.2 shall be in addition to any liability which the Company and Purchaser may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company or Purchaser within the meaning of the
Securities Act.
SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF SHARES: COMPLIANCE WITH
SECURITIES ACT
8.1 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be transferable
in the absence of a registration under the Securities Act or an exemption
therefrom or in the absence of compliance with any term of this Agreement. The
Company shall be entitled to give stop transfer instructions to its transfer
agent with respect to the Shares in order to enforce the foregoing restrictions.
8.2 RESTRICTIVE LEGEND. Each certificate representing Shares shall bear
substantially the following legends (in addition to any legends required under
applicable securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
ADDITIONALLY, THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SPECIFIED IN THE COMMON STOCK PURCHASE
AGREEMENT DATED OCTOBER 7, 1997 BETWEEN THE COMPANY AND THE ORIGINAL
PURCHASER, AND NO TRANSFER OF SHARES SHALL BE VALID OR EFFECTIVE ABSENT
11.
COMPLIANCE WITH SUCH RESTRICTIONS. ALL SUBSEQUENT HOLDERS OF THIS
CERTIFICATE WILL HAVE AGREED TO BE BOUND BY CERTAIN OF THE TERMS OF THE
AGREEMENT, INCLUDING SECTIONS 7.1 AND 8.3 OF THE AGREEMENT. COPIES OF THE
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
REGISTERED HOLDER OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.
Upon the request of Purchaser, the Company shall remove the foregoing
legend from the certificates evidencing the Shares and issue to Purchaser new
certificates free of any transfer legend if with such request, and at the
request of the Company, the Company shall have received an opinion of counsel
satisfactory to the Company, to the effect that any transfers by Purchaser of
such Shares may be made to the public without compliance with either Section 5
of the Securities Act or Rule 144 thereunder and applicable state securities
laws.
8.3 TRANSFER OF SHARES AFTER REGISTRATION. 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 of delivering a current prospectus, (ii) in
accordance with Rule 144, in which case Purchaser covenants to comply with Rule
144, or (iii) otherwise in accordance with and pursuant to applicable federal
and state securities laws. Purchaser further acknowledges and agrees that such
Shares are not transferable on the books of the Company unless the certificate
submitted to the Company's transfer agent evidencing such Shares is accompanied
by a separate certificate executed by an officer of, or other person duly
authorized by, the Purchaser in the form attached hereto as Exhibit B.
8.4 PURCHASER INFORMATION. Purchaser covenants that it will promptly
notify the Company in writing of any changes in the information set forth in the
Registration Statement regarding Purchaser.
SECTION 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 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 Delaware 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
Purchaser and the Closing. With respect to any registration made pursuant to
this Agreement, the covenants and agreements set forth in section 7.1 shall
continue in effect until all obligations hereunder with respect thereto are
fulfilled, and provided that the indemnification and contribution obligations as
set forth in Section 7.2 shall survive for the period of the statute of
limitations with respect thereto.
12.
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 Agreement. Notwithstanding the foregoing,
Purchaser shall not assign this Agreement without the prior written consent of
the Company, which consent shall not be unreasonably withheld, except that
Purchaser is entitled to assign this Agreement to its Affiliates (as such term
is defined in Rule 12b-2 of the Exchange Act).
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
Purchaser, as the case may be, at their respective addresses set forth below:
If to the Company:
CV Therapeutics, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., Ph.D.
Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (650) 857-0663
If to Purchaser:
Biotech Target S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
13.
With copies to:
Bellevue Asset Management ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
and:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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. Any notice delivered to a party
hereunder shall be sent simultaneously, by the same means, to such party's
counsel as set forth above.
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 original, 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.
14.
9.10 EXPENSES. The Company agrees to bear the cost of reasonable fees and
expenses of one counsel for the Purchaser, in an amount not to exceed $10,000,
and reasonable fees and expenses of one counsel for the Purchaser in connection
with its review of the Registration Statement.
9.11 CHOICE OF FORUM; VENUE; SERVICE OF PROCESS. Any claim, suit, action
or proceeding between the parties hereto relating to this Agreement, to any
document, instrument, or agreement delivered pursuant hereto, referred to
herein, or contemplated hereby, or in any other manner arising out of or
relating to the transactions contemplated by or referenced in this Agreement,
shall be commenced and maintained exclusively in the United States District of
Delaware or, if such Court lacks jurisdiction over the subject matter, in a
state court of competent subject matter jurisdiction sitting in the State of
Delaware. The parties hereby submit themselves unconditionally and irrevocably
to the personal jurisdiction of such courts. The parties further agree that
venue shall be exclusively in Delaware. The parties irrevocably waive any
objection to such personal jurisdiction or venue including, but not limited to,
the objection that any suit, action, or proceeding brought in the State of
Delaware has been brought in an inconvenient forum. The parties irrevocably
agree that process issuing from such courts may be served on them, either
personally or by certified mail, return receipt requested, at the addresses
given in Section 9.6 hereof or such addresses as are subsequently confirmed in
writing; and further irrevocably waive any objection to service of process made
in such manner and at such addresses, including without limitation, any
objection that service in such manner and at such addresses is not authorized by
the local or procedural laws of the State of Delaware.
15.
The foregoing agreement is hereby executed as of the date first above
written.
CV THERAPEUTICS, INC. BIOTECH TARGET S.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., Ph.D. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer Authorized Signatory
By: /s/ H. ▇▇▇▇ ▇▇▇▇
--------------------------------
H. ▇▇▇▇ ▇▇▇▇
Authorized Signatory
EXHIBIT A
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-1 - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire.
3. Exhibit A-2 - Registration Statement Questionnaire:
Provide the information requested by the Registration Statement
Questionnaire.
4. Exhibit A-3 - Purchaser Certificate:
Provide the information requested by the Certificate.
5. Return the signed Common Stock Purchase Agreement including the
properly completed Exhibit A to:
▇▇▇▇▇▇ Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
B. Instructions regarding the transfer of funds for the purchase of Shares
will be telecopied to Purchaser by the Company at a later date.
C. Upon the resale of the Shares by Purchaser after the Registration Statement
covering the Shares is effective, as described in the Common Stock Purchase
Agreement, Purchaser:
(i) must deliver a current prospectus, and annual and quarterly
reports of the Company to the buyer (prospectuses, and annual and
quarterly reports may be obtained from the Company at the
Purchaser's request); and
1.
(ii) must send a letter in the form of Exhibit B to the Company so
that the Shares may be properly transferred.
2.
EXHIBIT A-1
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4.3 of the Common Stock Purchase Agreement, please
provide us with the following information:
1. The exact name that the Shares
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 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:
____________________________
EXHIBIT A-2
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information regarding the Purchaser.
1. Please state your organization's name exactly as it should appear in
the Registration Statement:
2. Have you or your organization had any position, office or other
material relationship within the past three years with the Company?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
EXHIBIT A-3
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):
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Continue on a separate piece of paper, if necessary.)
1.
_____ Other form of organization (indicate form of organization):
____________________________________________________________.
(c) Indicate the date the undersigned entity was formed:__________________.
(d) In order for the Company to offer and sell the Shares 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 Exchange 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;
______ 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
2.
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.)
(e) The state of incorporation or formation of the investor is __________
and the investor's principal office is located in the state of _______________.
Dated:_____________________, 19__
__________________________________________
Name of investor
__________________________________________
Signature and title of authorized
officer, partner or trustee
3.
EXHIBIT B
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
To: CV Therapeutics, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned, the Purchaser or an officer of, or other person duly
authorized by the Purchaser, hereby certifies that __________________ was the
Purchaser of the shares evidenced by the attached certificate, and as such,
proposes to transfer such shares on or about_________ either (check the
applicable box) / / (i) in accordance with the registration statement, file
number ________ in which case the Purchaser certifies that the requirement of
delivering a current prospectus has been complied with or will be complied with
in connection with such sale; / / (ii) in accordance with Rule 144 under the
Securities Act of 1933 ("Rule 144"), in which case the Purchaser certifies that
it has complied with or will comply with the requirements of Rule 144; or / /
(iii) otherwise in accordance with and pursuant to applicable federal and state
securities laws.
Print or type:
Name of Purchaser: _________________________________________________
Name of Individual
representing Purchaser: _________________________________________________
Title of Individual
representing Purchaser: _________________________________________________
Signature by:
Individual representing
Purchaser: _________________________________________________
EXHIBIT C
FORM OF OPINION
October 7, 1997
Biotech Target S.A.
Swiss ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
RE: SALE AND PURCHASE OF CV THERAPEUTICS, INC. COMMON STOCK
Gentlemen:
We have acted as counsel for CV Therapeutics, Inc., a Delaware corporation (the
"Company"), in connection with the issuance and sale of 1,397,147 shares of the
Company's Common Stock to Biotech Target S.A., a corporation organized under the
laws of Panama ("Purchaser"), pursuant to the terms of that certain Common Stock
Purchase Agreement, dated October 7, 1997, by and between the Company and
Purchaser (the "Agreement"). The shares of Common Stock issued to Purchaser at
the closing (the "Closing") are referred to herein as the "Shares". We are
rendering this opinion pursuant to Section 5.2 of the Agreement. Except as
otherwise defined herein, capitalized terms used but not defined herein have the
respective meanings given to them in the Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the parties thereto and originals or copies
certified to our satisfaction, of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. Where we render
an opinion "to the best of our knowledge" or concerning an item "known to us" or
our opinion otherwise refers to our knowledge, it is based solely upon (i) an
inquiry of attorneys within this firm who perform legal services for the
Company, (ii) receipt of a certificate executed by an officer of the Company
covering such matters, and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents where authorization, execution and delivery are
prerequisites to the effectiveness of such documents (except the due
authorization, execution and delivery of the
Agreement by the Company). We have also assumed: that all individuals
executing and delivering documents had the legal capacity to so execute and
deliver; that you have received all documents you were to receive under the
Agreement; that the Agreement is an obligation binding upon you; that you
have filed any required California franchise or income tax returns and have
paid any required California franchise or income taxes; and that there are no
extrinsic agreements or understandings among the parties to the Agreement
that would modify or interpret the terms of the Agreement or the respective
rights or obligations of the parties thereunder.
Our opinion is expressed only with respect to the federal laws of the United
States of America and the laws of the State of California and the General
Corporation Law of the State of Delaware. We express no opinion as to whether
the laws of any particular jurisdiction apply, and no opinion to the extent that
the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof. We are not rendering any opinion as to compliance
with any antifraud law, rule or regulation relating to securities, or to the
sale or issuance thereof.
With regard to our opinion in paragraph 4 below, we have examined and relied
upon a certificate executed by an officer of the Company, to the effect that the
consideration for all outstanding shares of capital stock of the Company was
received by the Company in accordance with the provisions of the applicable
Board of Directors resolutions and any plan or agreement relating to the
issuance of such shares, and we have undertaken no independent verification with
respect thereto.
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware.
2. The Company has the requisite corporate power to own or lease its
property and assets and to conduct its business as it is currently being
conducted and, to the best of our knowledge, is qualified as a foreign
corporation to do business in each jurisdiction in the United States in which
the ownership of its property or the conduct of its business requires such
qualification and where any statutory fines or penalties or any corporate
disability imposed for the failure to qualify would materially or adversely
affect the Company, its assets, financial condition or operations.
3. The Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid, legal and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as rights to indemnity under Section 7.2 of the Agreement may be limited by
applicable laws and except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other
2.
similar laws affecting creditors' rights, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.
4. The Shares have been duly authorized and, upon issuance and delivery
in accordance with the terms of the Agreement, will be validly issued, fully
paid and nonassessable.
5. The offer and sale of the Shares as contemplated by the Agreement do
not violate any provision of the Company's Amended and Restated Certificate of
Incorporation or Restated Bylaws and do not violate or contravene (a) any
governmental statute, rule or regulation applicable to the Company or (b) any
order, writ, judgment, injunction, decree, determination or award which has been
entered against the Company and of which we are aware, the violation or
contravention of which would materially and adversely affect the Company, its
assets, financial condition or operations.
6. All consents, approvals, authorizations, or orders of, and filings,
registrations, and qualifications with any regulatory authority or governmental
body in the United States required for the issuance and sale of the Shares as
contemplated by the Agreement, have been made or obtained, except for the filing
of a Form D pursuant to the Securities and Exchange Commission Regulation D.
7. The offer and sale of the Shares as contemplated by the Agreement is
exempt from the registration requirements of the Securities Act of 1933, as
amended.
3.
This opinion is intended solely for your benefit and is not to be made available
to or be relied upon by any other person, firm, or entity without our prior
written consent.
Very truly yours,
▇▇▇▇▇▇ GODWARD LLP
By __________________________
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4.