CORVAS INTERNATIONAL, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is entered into
as of October 20, 1999, by and among CORVAS INTERNATIONAL, INC., a Delaware
corporation (the "Company") and the entities whose names are set forth on the
Schedule of Purchasers attached hereto as EXHIBIT A (which entity is hereinafter
referred to as the "Purchaser" or collectively as the "Purchasers").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of an
aggregate of seven hundred thousand (700,000) shares of its Common Stock, $0.001
par value (the "Shares");
WHEREAS, the Company has also authorized the sale of up to $10,000,000
Convertible Senior Subordinated Notes (the "Convertible Notes") to Artisan
Equity, Ltd. (the "Note Purchaser"), pursuant to that certain Note Purchase
Agreement (the "Note Purchase Agreement") dated August 18, 1999, by and between
the Company and such purchaser;
WHEREAS, the Company issued a $6,500,000 Convertible Note to the Note
Purchaser in August 1999 (the "First Note");
WHEREAS, concurrently with the sale of the Shares, the Company will
issue a $3,500,000 Convertible Note to the Note Purchaser (the "Second Note");
WHEREAS, the Purchasers desire to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to Purchasers
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined
in Section 2 below), the Company shall have authorized the sale and issuance to
the Purchasers of the Shares. The Shares shall have the rights, preferences,
privileges and restrictions set forth in the Certificate of Incorporation of the
Company, as amended, in the form attached hereto as EXHIBIT B.
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof,
at the Closing (as hereinafter defined) the Company hereby agrees to issue and
sell to each Purchaser, severally and not jointly, and each Purchaser agrees to
purchase from the Company, severally and not jointly, the number of Shares set
forth opposite such Purchaser's name on EXHIBIT A, at a purchase price of two
dollars and fifty cents ($2.50) per share.
1.
2. CLOSING, DELIVERY AND PAYMENT.
2.1 CLOSING. The closing of the sale and purchase of the Shares
under this Agreement (the "Closing") shall take place at 10:00 a.m. on the date
hereof, at the offices of Cooley Godward LLP, 4365 Executive Drive, Suite 1100,
San Diego, California 92121 or at such other time or place as the Company and
the Purchasers may mutually agree (such date is hereinafter referred to as the
"Closing Date").
2.2 DELIVERY. At the Closing or shortly thereafter, subject to the
terms and conditions hereof, the Company will deliver to the Purchasers
certificates representing the number of Shares to be purchased at the Closing by
each Purchaser, against payment of the purchase price therefor by check, wire
transfer made payable to the order of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on a Schedule of Exceptions delivered by the
Company to the Purchasers at the Closing, the Company hereby represents and
warrants to each Purchaser as of the date of this Agreement as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has all requisite
corporate power to own and operate its assets and to carry on its business as
presently conducted and as currently proposed to be conducted and as described
in the SEC Documents (as hereinafter defined). The Company is qualified to do
business as a foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on the Company's business,
operations or condition (financial or otherwise), results of operations or
prospects (a "MATERIAL ADVERSE EFFECT"). The Company has no subsidiaries.
3.2 AUTHORIZATION. All corporate action on the part of the Company,
its directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement and the Registration Rights Agreement
by the Company, the authorization, sale, issuance and delivery of the Shares and
the performance of the Company's obligations under this Agreement and the
Registration Rights Agreement has been taken or will be taken prior to the
Closing Date.
3.3 VALID AND BINDING OBLIGATION. This Agreement and the
Registration Rights Agreement, when executed and delivered by the Company, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms except as limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (b) general principles of equity
that restrict the availability of equitable remedies. The Shares, when issued in
compliance with the provisions of this Agreement, will be duly and validly
issued, fully paid and nonassessable and free of any liens or encumbrances
2.
created by the Company other than restrictions on transfer arising under
applicable securities laws. Assuming the accuracy of the representations and
warranties of the Purchasers, the Shares, when issued in compliance with the
provisions of this Agreement, will be issued in compliance with applicable
United States federal and state securities laws.
3.4 SEC FILINGS; FINANCIAL STATEMENTS.
(a) The Company has delivered to the Purchasers accurate and
complete copies (excluding copies of exhibits) of each report, registration
statement (on a form other than Form S-8) and definitive proxy statement filed
by the Company with the SEC between December 31, 1998, and the date of this
Agreement (the "SEC DOCUMENTS"). As of the time it was filed with the SEC (or,
if amended or superseded by a filing prior to the date of this Agreement, then
on the date of such filing): (i) each of the SEC Documents complied in all
material respects with the applicable requirements of the Securities Act or the
Securities Exchange Act (as the case may be); and (ii) none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(b) The financial statements contained in the SEC Documents: (i)
complied as to form in all material respects with the published rules and
regulations of the SEC applicable thereto; (ii) were prepared in accordance with
U.S. generally accepted accounting principles applied on a consistent basis
throughout the periods covered, except as may be indicated in the notes to such
financial statements and (in the case of unaudited statements) as permitted by
Form 10-Q of the SEC, and except that unaudited financial statements may not
contain footnotes and are subject to year-end audit adjustments; and (iii)
fairly present the financial position of the Company as of the respective dates
thereof and the results of operations and cash flows of the Company for the
periods covered thereby consistent with the books and records of the Company.
(c) Since June 30, 1999, there has not been: (i) any change in
the assets, liabilities, financial condition or operations of the Company except
changes in the ordinary course of business that have not been, in any case or in
the aggregate, materially adverse; (ii) any damage, destruction or loss, whether
or not covered by insurance, materially and adversely affecting the properties
or business of the Company; (iii) any waiver or compromise by the Company of a
material debt or obligation owed to it; or (iv) any other event or condition out
of character that has materially and adversely affected the Company's business
or prospects.
3.5 NON-CONTRAVENTION. The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this Agreement and
the Registration Rights Agreement (i) will not contravene any provision of
applicable law or the certificate of incorporation or bylaws of the Company or
any agreement or other instrument binding upon the Company, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company and (ii) will not result in the creation or imposition of any
Lien upon any property or assets of the Company pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be bound or to
which any of its property or assets is subject.
3.
3.6 CAPITALIZATION.
(a) Immediately prior to the Closing Date and the sale of the
Second Note and the Shares, the authorized capital stock of the Company shall
consist of (a) 10,000,000 shares of Preferred Stock, $.001 par value, of which
1,000,000 shares have been designated Series A Convertible Preferred Stock,
$.001 par value, all of which are issued and outstanding, of which 250,000
shares have been designated Series B Convertible Preferred Stock, $.001 par
value, all of which are issued and outstanding, and of which 500,000 shares have
been designated Series C Junior Participating Preferred Stock, $.001 par value,
none of which is issued and outstanding (b) 50,000,000 shares of Common Stock,
$.001 par value, 16,788,391 shares of which are issued and outstanding, (c)
1,694,052 options and other rights to acquire Common Stock under the Company's
stock option plan (whether currently outstanding or granted in the future), (d)
37,836 shares of the Company's Common Stock reserved for issuance under the
Employee Stock Purchase Plan, (e) 2,143,848 currently outstanding warrants to
acquire Common Stock of the Company, (f) 1,250,000 shares of Common Stock
reserved for issuance upon the conversion of the Series A Convertible Preferred
Stock and the Series B Convertible Preferred Stock and (g) 2,924,000 shares of
Common Stock reserved for issuance upon conversion of the First Note. As of the
date hereof, the Company is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
capital stock or any warrants, options or other rights to acquire its capital
stock, except as set forth on Schedule 3.5(a) and except as may be contemplated
by this Agreement. As of the date hereof, the Company is not party to any voting
or similar agreement or proxies relating to the voting of shares of its capital
stock and is not aware of any such agreements or proxies to which it is not a
party except as may be contemplated by this Agreement. As of the date hereof,
all of the outstanding shares of the Company's capital stock have been duly
authorized and validly issued, and are fully paid and nonassessable, except to
the extent that such 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 law at the time a transfer is proposed. Except as set forth
herein, there are no other options, warrants, calls, preemptive (or similar)
rights, subscriptions or other rights, agreements, arrangements or commitments
of any character that obligate the Company to issue, transfer or sell, or cause
to be issued, transferred or sold, any shares of the capital sock of the Company
or other equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests.
Immediately after closing the sale of the Shares pursuant to this Agreement and
the Second Note being sold concurrently with such Shares, the Company's
authorized capital shall not change and the number of authorized and outstanding
securities and the number of shares of Common Stock reserved for issuance under
outstanding options and reserved for issuance upon the conversion of the
Preferred Stock, shall not change except as follows: (a) 17,488,391 shares of
Common Stock will be issued and outstanding, (b) 1,559,707 shares of Common
Stock will be reserved for issuance upon the conversion of the Second Note and
(c) 2,143,848 shares will be reserved for issuance under currently outstanding
warrants to acquire Common Stock of the Company.
4.
(b) There are no statutory or contractual shareholders'
preemptive rights or rights of refusal with respect to the issuance of the
Shares hereunder. The Company has not violated any applicable federal or state
securities laws in connection with the offer, sale or issuance of any of its
capital stock, and, assuming the accuracy of the Purchaser's representations
under Section 4, the offer, sale and issuance of the Shares hereunder do not
require registration under the Securities Act.
3.7 GOVERNMENTAL CONSENT, ETC. The Company has obtained all permits,
consents, approvals or authorizations of, or declarations to or filings with,
any governmental authority required in connection with the execution, delivery
and performance by the Company of this Agreement, the Registration Rights
Agreement or the other agreements contemplated hereby, or the consummation by
the Company of any other transactions contemplated hereby, except any notices of
sale required to be filed with the SEC under Regulation D of the Securities Act,
or such post-closing filings as may be required under applicable state
securities laws, all of which will be timely filed within the applicable periods
3.8 NO GENERAL SOLICITATION. None of the Company, its affiliates or
any person acting on its own or the Company's or its affiliates behalf has
engaged or will engage, in connection with the offering of the Shares, in any
form of general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act.
3.9 LITIGATION, ETC. There are no actions, suits, proceedings
(except applications for regulatory approval from the Food and Drug
Administration and foreign drug agencies), orders, investigations or claims
pending or, to the Company's knowledge, threatened against or affecting the
Company (or to the Company's knowledge, pending or threatened against or
affecting any of the officers, directors or employees of the Company with
respect to its business) at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality (including,
without limitation, any actions, suit, proceedings or investigations with
respect to the transactions contemplated by this Agreement); the Company is not
subject to any arbitration proceedings under collective bargaining agreements or
otherwise or, to the Company's knowledge, any governmental investigations or
inquiries; and, to the Company's knowledge, there is no basis for any of the
foregoing. The Company is not subject to any judgment, order or decree of any
court or other governmental agency, and the Company has not received any opinion
or memorandum or legal advice from legal counsel to the effect that it is
exposed, from a legal standpoint, to any liability or disadvantage which may
result in a Material Adverse Effect. The Company has conducted and continues to
conduct its business in compliance with all applicable laws, except where the
failure to comply has not had and is not reasonably likely to have a Material
Adverse Effect.
3.10 EMPLOYEES. The Company is not aware that any executive or key
employee of the Company or any group of employees of the Company has any plans
to terminate employment with the Company. The Company has complied with all laws
relating to the employment of labor (including, without limitation, provisions
thereof relating to wages, hours, equal opportunity, collective bargaining and
the payment of social security and other taxes), except where the failure to
comply has not had and is not reasonably expected to have a Material Adverse
Effect, and the Company is not aware that it has any material labor relations
5.
problems (including, without limitation, any union organization activities,
threatened or actual strikes or work stoppages or material grievances). The
Company is not, and to the Company's knowledge, none of its employees is,
subject to any non-compete, nondisclosure, confidentiality, employment,
consulting or similar agreements relating to, affecting or in conflict with the
present business activities of the Company, except for agreements between the
Company and its present and former employees that do not conflict with such
activities. The Company has no collective bargaining agreements with any of its
employees.
3.11 INTELLECTUAL PROPERTY RIGHTS. To its knowledge, the Company
owns or possesses, or can acquire on reasonable terms, Intellectual Property
Rights reasonably necessary to carry on the business now operated by it. The
Company has not received any notice of and, to its knowledge there is no
infringement of or conflict with rights of others with respect to any
Intellectual Property Rights owned or used by the Company. The Company is not
aware of any facts or circumstances that would render any Intellectual Property
Rights owned or used by the Company invalid or inadequate to protect the
interest of the Company therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or which invalidity or
inadequacy, singularly or in the aggregate, would result in a Material Adverse
Effect. To the Company's knowledge, no person or entity is infringing or
threatening to infringe any Intellectual Property Rights owned or used by the
Company. All employees and officers other than those employees who are not privy
to any of the Company's proprietary information are bound by the confidentiality
and invention assignment agreements and such agreements do not grant to such
employees and officers rights to any Intellectual Property Rights owned or used
by the Company. All non-employee directors are bound by confidentiality
agreements and such agreements do not grant to such directors rights to any
Intellectual Property Rights owned or used by the Company.
3.12 ENVIRONMENTAL AND SAFETY LAWS. The Company is in compliance
with all applicable statutes, laws, and regulations relating to the environment
and occupational health and safety, except where the failure to comply has not
had and will not have a Material Adverse Effect, and no material expenditures
are or will be required in order to comply with any such existing statutes, laws
or regulations. The Company has not received any written notice, demand, letter,
claim, request for information or other written communication alleging that the
Company may be in violation of, or liable under, any statute, law, regulation or
permit.
3.13 RELATED-PARTY TRANSACTIONS. No employee, officer, stockholder
or director of the Company or member of his or her immediate family is indebted
to the Company, nor is the Company indebted (or committed to make loans or
extend or guarantee credit) to any of them, other than (i) for payment of salary
for services rendered, (ii) reimbursement for reasonable expenses incurred on
behalf of the Company, and (iii) for other standard employee benefits made
generally available to all employees (including stock option agreements
outstanding under any stock option plan approved by the Board of Directors of
the Company). To the Company's knowledge, none of such persons has any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation that competes with the Company, except that employees, stockholders,
officers, or directors of the Company and members of their immediate families
may own stock in publicly traded companies that may compete with the Company. To
the Company's knowledge, no officer, director, or stockholder or any member of
their immediate families is, directly or indirectly, interested in any material
contract with the Company (other than such contracts that relate to such
person's ownership of capital stock or other securities of the Company).
6.
3.14 TITLE TO PROPERTY AND ASSETS; LEASES. The Company has good
marketable title to, or a valid leasehold interest in, the properties and assets
used by it, located on its premises or shown on the unaudited Balance Sheet of
the Company as of June 30, 1999 (THE "LATEST BALANCE SHEET") or acquired
thereafter, free and clear of all Liens (other than Permitted Liens), except for
properties and assets disposed of in the ordinary course of business since the
date of the Latest Balance Sheet and except for Liens disclosed on the Latest
Balance Sheet (including any notes thereto) and minor liens and encumbrances
which do not materially detract from the value of the property subject thereto
or materially impair the operations of the Company. The Company's buildings,
equipment and other tangible assets are in good operating condition in all
material respects and are fit for their intended use in the ordinary course of
business. The Company owns, or has a valid leasehold interest in, all assets
necessary for the conduct of its businesses as presently conducted.
3.15 INSURANCE. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, standard comprehensive
general liability insurance and product liabilities insurance (subject to
reasonable deductibles), in amounts customary for companies similarly situation
to the Company.
3.16 SYSTEM OF INTERNAL ACCOUNTING CONTROLS. The Company maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
3.17 FILING OF TAX RETURNS. The Company has filed all tax returns
that are required to be filed by it pursuant to foreign or domestic laws and has
paid all taxes due pursuant to such returns or pursuant to any assessment
received by it (except where the requirement for payment of such taxes is being
contested in good faith in appropriate proceedings), except where the failure to
file or make payment would not result in a Material Adverse Effect. The charges,
accruals, and reserves on the books of the Company in respect of taxes or other
governmental charges are, to the knowledge of the Company, adequate.
3.18 INVESTMENT COMPANY. The Company is not, and upon the issuance
and sale of the Shares as herein contemplated and the application of the net
proceeds therefrom will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
7.
3.19 REAL PROPERTY HOLDING COMPANY. The Company is not a United
States Real Property Holding Corporation within the meaning of ss.897(c)(2) of
the Internal Revenue Code of 1986, as amended.
3.20 NO DEFAULTS. The Company has, in all material respects,
performed all obligations to be performed by it to date and is not in default
under any of the contracts, loans, notes, mortgages, indentures, licenses,
security agreements, agreements or leases to which it is a party or by which it
is otherwise bound, except for such defaults which in the aggregate have not had
a Material Adverse Effect. To the Company's knowledge, no other party to such
contracts, loans, notes, mortgages, debentures, licenses, security agreements,
agreements or leases is in default thereunder except those which would not have
a Material Adverse Effect. The contracts listed as exhibits to the SEC Documents
are all of the material contracts (as defined in Regulation S-K adopted under
the Securities Act of 1933) to which the Company is a party.
3.21 STOCKHOLDER RIGHTS AGREEMENT. The execution and delivery by the
Company of, and the performance by the Company of its obligations under, this
Agreement and the Registration Rights Agreement, will not contravene the
Stockholder Rights Agreement or result in the exercise of any rights under the
Stockholder Rights Agreement.
3.22 BROKERS OR FINDERS. The Company has not entered into any
agreement or arrangement giving rise to any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with this
Agreement or the transactions contemplated hereby.
3.23 YEAR 2000 COMPLIANCE. To the Company's knowledge, the hardware,
software and software products (the "SYSTEMS") used by the Company are, and will
be, able to accurately (i) process any date rollover, (ii) process calculations
or computations regardless of the dates used in such calculations whether
before, on or after January 1, 2000, (iii) accept and respond to two digit year
date input in a manner which resolves any ambiguities as to the century in an
appropriate manner, (iv) store and display date data in a manner which is
unambiguous as to the century, and (v) recognize the year 2000 as a leap year
provided in all such cases, hardware and software used by third parties in
conjunction with the Systems (a) can accurately perform in accordance with
clauses (i) through (v) above and (b) do not affect the performance of the
Systems.
3.24 NASDAQ LISTING. The Common Stock of the Company is designated
for trading on the Nasdaq National Stock Market and the Company has not been
informed of any proceedings to revoke or suspend such designation. The sale of
Shares as contemplated hereby will not result in a violation of the Nasdaq rules
and regulations.
3.25 FORM S-3 ELIGIBILITY. The Company is eligible to file a resale
Registration Statement on Form S-3. Without limiting the generality of the
foregoing the Company has filed in a timely manner all reports required to be
filed by the Company with the Securities and Exchange Commission during the 12
calendar months and during the portion of the month immediately preceding the
date of this Agreement. The Company is not aware of any facts or circumstances
that exist as of the date of this Agreement that would cause it to lose its
eligibility.
8.
3.26 KNOWLEDGE. As used in this Section 3, the terms "knowledge" or
"aware" when used with respect to the Company shall mean and include the actual
knowledge or awareness of any of the officers of the Company as that term is
defined in Securities Exchange Act after due inquiry of management employees.
3.27 DISCLOSURE. Neither this Agreement nor any of the exhibits or
schedules contains any untrue statement of a material fact or omits to state a
material fact necessary to make each statement contained herein or therein not
misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser severally for itself and not jointly with the other
Purchaser, hereby represents and warrants to the Company as follows (such
representations and warranties do not lessen or obviate the representations and
warranties of the Company set forth in this Agreement):
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary power
and authority under all applicable provisions of law to execute and deliver this
Agreement and to perform its obligations hereunder. All action on Purchaser's
part required for the lawful execution and delivery of this Agreement have been
or will be effectively taken prior to the Closing. Upon execution and delivery,
this Agreement will be a valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors' rights, and (b) general
principles of equity that restrict the availability of equitable remedies.
4.2 INVESTMENT REPRESENTATIONS. Purchaser understands that the
Shares have not been registered under the Securities Act. Purchaser also
understands that the Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon Purchaser's
representations contained in this Agreement. Each Purchaser, severally for
itself and not jointly with the other Purchaser, hereby represents and warrants
as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company. Purchaser must
bear the economic risk of this investment indefinitely unless the Shares are
registered pursuant to the Securities Act, or an exemption from registration is
available in connection with a resale. Purchaser also understands that there is
no assurance that any exemption from registration under the Securities Act will
be available and that, even if available, such exemption may not allow Purchaser
to transfer all or any portion of the Shares under the circumstances, in the
amounts or at the times Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Shares for Purchaser's own account for investment only, and not with a view
towards their distribution in violation of the Securities Act, has no present
intention of selling (in connection with a distribution or otherwise), granting
any participation in or otherwise distributing the same in violation of the
Securities Act, and does not presently have reason to anticipate a change in
such intention.
9.
(c) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement and in the Shares. Purchaser is
aware of no publication of any advertisement in connection with the transactions
contemplated in Agreement.
(d) ACCREDITED INVESTOR. Purchaser represents that it is an
"accredited investor" within the meaning of Rule 501(a) of Regulation D under
the Securities Act.
(e) COMPANY INFORMATION. Purchaser has received and read the
Company's Annual Report on Form 10-K for the year ended December 31, 1998, the
Form 10-Q for the period ended March 31, 1999 (including all financial
statements), the Form 10-Q for the period ended June 30, 1999 (including all
financial statements), and has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations. Purchaser has also had the opportunity to ask questions of, and
receive answers from, the Company and its management regarding the terms and
conditions of this investment.
(f) RULE 144. Purchaser acknowledges and agrees that the Shares
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser
has been advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act as in effect from time to time, which permits limited resale of
restricted securities subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current public
information about the Company, the resale occurring following the required
holding period under Rule 144 and the number of shares being sold during any
three-month period not exceeding specified limitations.
(g) RESIDENCE. The office or offices of Purchaser in which its
investment decision was made is located at the address or addresses of Purchaser
set forth on Exhibit A of this Agreement.
4.3 FURTHER ASSURANCES. Purchaser and the Company each agrees and
covenants that at any time and from time to time, it will promptly execute and
deliver to the other party such further instruments and documents and to take
such further action as the other party may reasonably require in order to carry
out the transactions contemplated by this Agreement.
4.4 TRANSFER RESTRICTIONS. The Purchaser acknowledges and agrees
that the Shares are subject to restrictions on transfer as set forth herein.
5. CONDITIONS TO EACH PURCHASER'S OBLIGATIONS AT THE CLOSING.
Each Purchaser's obligation to purchase the Shares at the Closing is
subject to the satisfaction, at or prior to the Closing Date, of the following
conditions:
10.
5.1 REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations
and warranties made by the Company in Section 3 hereof shall be true and correct
at and as of the Closing Date as though then made, except to the extent of
changes caused by the transactions expressly contemplated herein, and the
Company shall have performed or complied with all of the covenants required to
be performed by it hereunder prior to the Closing Date.
5.2 REGISTRATION RIGHTS AGREEMENT. The Company and the Purchasers
shall have entered into a Registration Rights Agreement substantially in the
form set forth in EXHIBIT C attached hereto (the "REGISTRATION RIGHTS
AGREEMENT"), and the Registration Rights Agreement shall be in full force and
effect.
5.3 SALE OF CONVERTIBLE NOTES. The Company shall have completed the
sale of the Second Note of the Company to the Note Purchaser for the aggregate
amount of $3,500,000 to be purchased pursuant to the Note Purchase Agreement and
the conversion price for the Convertible Notes shall be $3.25 per share of
Common Stock.
5.4 GOVERNMENTAL CONSENTS. The Company shall have made all filings
under all applicable federal and state securities laws necessary to consummate
the sale and issuance of the Shares at the Closing in compliance with such laws,
except any notices of sale required to be filed with the SEC under Regulation D
of the Securities Act, or such post-closing filings as may be required under
applicable state securities laws, all of which will be timely filed within the
applicable periods therefor.
5.5 NO MATERIAL ADVERSE CHANGE. Since June 30, 1999, there shall
have been no change in the Company's business, operations or financial condition
that has had a Material Adverse Effect.
5.6 CONSENTS AND APPROVALS. The Company shall have received all
authorizations, consents, orders and approvals of all governmental authorities
and officials necessary for the consummation of the transactions contemplated by
this Agreement.
5.7 OPINION OF THE COMPANY'S COUNSEL. The Purchasers shall have
received from Cooley Godward LLP, counsel for the Company, an opinion in
substantially the form attached hereto as EXHIBIT D, which shall be addressed to
the Purchasers, dated as of the Closing Date.
5.8 CLOSING DOCUMENTS. The Company shall have delivered to the
Purchasers all of the following documents:
(a) an officer's certificate, dated as of the Closing Date,
stating that the conditions specified in sections 5.1 through 5.7 have been
fully satisfied;
(b) certified copies of the resolutions duly adopted by the
Company's Board of Directors authorizing (i) the execution, delivery and
performance of this Agreement, the Registration Rights Agreement and each of the
other agreements contemplated hereby, (ii) the issuance and sale of the Shares,
(iii) the consummation of all other transactions contemplated by this Agreement
and the Registration Rights Agreement; and (iv) the amendment to the bylaws
expanding the Board of Directors if required.
11.
(c) certified copies of the Company's Certificate of
Incorporation and Bylaws, each as in effect as of the Closing Date;
(d) a copy of the duly executed Registration Rights Agreement
referenced in Section 5.2 as in effect at the Closing; and
(e) copies of all third party and governmental consents,
approvals and filings required in connection with the consummation of the
transactions hereunder (including, without limitation, all blue sky law filings
and waivers of all preemptive rights and rights of first refusal), except such
as may be properly obtained subsequent to the Closing.
6. CONDITIONS TO OBLIGATIONS OF THE COMPANY.
The Company's obligation to issue and sell the Shares at the Closing is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties made by the Purchasers in Section 4 hereof shall be true and correct
in all material respects at the date of the Closing with the same force and
effect as if they had been made on and as of said date.
6.2 CONSENTS, PERMITS, AND WAIVERS. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement (except for such as may be properly obtained
subsequent to the Closing Date).
6.3 SALE OF CONVERTIBLE NOTES. The Company shall have completed the
sale of the Second Note of the Company to the Note Purchaser for the aggregate
amount of $3,500,000 to be purchased pursuant to the Note Purchase Agreement and
the conversion price for the Convertible Notes shall be $3.25 per share of
Common Stock.
7. MISCELLANEOUS.
7.1 LEGENDS. Each certificate or instrument representing Restricted
Securities shall be imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
12.
7.2 INDEMNIFICATION. The Company hereby agrees to indemnify and hold
harmless each Purchaser, any affiliate of the Purchaser, any Person controlling
the Purchaser or such affiliate and their respective directors, officers, agents
and employees (each, an "INDEMNIFIED PERSON") from and against any losses,
claims, damages, liabilities, costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel and accountants and other costs and
expenses incident to any actual or threatened claim, suit, action or proceeding,
whether incurred in connection with a claim against the Company or a third party
claim) (collectively, "LOSSES") arising out of or resulting from any breach of
representation, warranty or covenant made or to be performed on the part of the
Company under this Agreement or the agreements contemplated hereby or otherwise
resulting from any action, claim or proceeding arising out of the matters or
transactions which are the subject of or contemplated by this Agreement or any
instrument or agreement referred to herein, other than Losses resulting directly
from the gross negligence or willful misconduct of such Indemnified Person. If
for any reason (other than the gross negligence or willful misconduct of the
Indemnified Person) the foregoing indemnity is unavailable or insufficient to
hold an Indemnified Person harmless, then the Company shall contribute to
amounts paid or payable by such Indemnified Person in respect of such Losses in
such proportion as appropriately reflects the relative benefits received by, and
fault of, the Company and such Indemnified Person in connection with the matters
as to which such Losses relate and other equitable considerations.
7.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall remain operative and in full force and effect for eighteen months
from the Closing Date.
7.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the Purchasers' benefit or impose
obligations upon the Purchasers as a purchaser or holder of the Shares are also
for the benefit of, and impose such obligations upon and enforceable by and
against, any subsequent holder of such Shares.
7.5 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
7.7 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
13.
7.8 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California as such laws are applied
to contracts entered into and performed entirely within the State of California
by California residents.
7.9 NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the Purchasers and to the Company at the address
indicated below:
To the Company: CORVAS INTERNATIONAL, INC.
3030 Science Park Road
San Diego, California 92121
Attn: President
With a copy to: COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, California 92121
Attn: Barbara L. Borden, Esq.
To the Purchasers: To the addresses set forth on Exhibit A
With a copy to: LAPOINTE ROSENSTEIN
1250 Rene-Levesque Boulevard, West Suite 1400
Montreal, Quebec H3B 5E9
Attn: Perry Kliot, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by ten (10) days advance written notice to the
other party.
7.10 NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
7.11 EXPENSES. The Company agrees to reimburse Sofinov for all of
its costs and reasonable expenses, including reasonable attorneys' fees,
incurred in satisfaction, of its legal, scientific and patent due diligence
review and its legal review of the closing documents.
14.
7.12 LISTING OF SHARES ON NASDAQ. Promptly following the Closing,
the Company agrees to file an Application for Listing of Additional Shares to
request the designation for trading of the Shares on the Nasdaq National Stock
Market and use reasonable best efforts to have the application approved.
7.13 USE OF PROCEEDS. The proceeds from the sale of the Shares
hereunder will be used by the Company for working capital and for general
corporate purposes.
7.14 INFORMATION RIGHTS. For so long as any Purchaser holds any of
the Shares, the Company shall deliver to such Purchaser by electronic mail or by
other electronic means copies of all press releases issued by the Company and
shall deliver by mail copies of its quarterly and annual reports filed with the
SEC (including financial statements).
7.15 PUBLIC STATEMENTS OR RELEASES. None of the parties to this
Agreement shall make, issue, or release any announcement, whether to the public
generally, or to any of its employees, suppliers, or customers, with respect to
this Agreement or the transactions provided for herein, or make any statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without the prior consent of the other
parties, which shall not be unreasonably withheld or delayed; provided, that
nothing in this Section 7.16 shall prevent any of the Parties hereto from making
such public announcements as it may consider necessary in order to satisfy its
legal obligations, but to the extent not inconsistent with such obligations, it
shall provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made.
8. DEFINITIONS.
For the purposes of this Agreement, the following terms have the
meanings set forth below:
"INTELLECTUAL PROPERTY RIGHTS" means all (i) patents, patent
applications, patent disclosures and inventions, (ii) trademarks, service marks,
trade dress, trade names, logos and corporate names and registrations and
applications for registration thereof together with all of the goodwill
associated therewith, (iii) copyrights (registered or unregistered) and
copyrightable works and registrations and applications for registration thereof,
(iv) mask works and registrations and applications for registration thereof, (v)
computer software, data, data bases and documentation thereof, (vi) trade
secrets and other confidential information (including, without limitation,
ideas, formulas, compositions, inventions (whether patentable or unpatentable
and whether or not reduced to practice), know-how, manufacturing and production
processes and techniques, research and development information, drawings,
specifications, designs, plans, proposals, technical data, copyrightable works,
financial and marketing plans and customer and supplier lists and information),
and (vii) copies and tangible embodiments thereof (in whatever form or medium).
15.
"LIENS" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against the Company or any affiliate, any filing or
agreement to file a financing statement as debtor under the Uniform Commercial
Code or any similar statute other than to reflect ownership by a third party of
property leased to the Company under a lease which is not in the nature of a
conditional sale or title retention agreement, or any subordination arrangement
in favor of another Person (other than any subordination arising in the ordinary
course of business).
"PERMITTED LIENS" means:
(a) tax liens with respect to taxes not yet due and payable or
which are being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established in accordance with generally accepted
accounting principles, consistently applied;
(b) deposits or pledges made in connection with, or to secure
payment of, utilities or similar services, workers' compensation, unemployment
insurance, old age pensions or other social security obligations;
(c) purchase money security interests in any property acquired
by the Company to the extent permitted by this Agreement;
(d) interests or title of a lessor under any lease permitted by
this Agreement;
(e) mechanics', materialmen's or contractors' liens or
encumbrances or any similar lien or restriction created by statute;
(f) easements, rights-of-way, restrictions and other similar
charges and encumbrances not interfering with the ordinary conduct of the
business of the Company or detracting from the value of the assets of the
Company; and
(g) liens outstanding on the date hereof which secure
indebtedness of the Company and which are described in the schedules to this
Agreement.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"RESTRICTED SECURITIES" means (i) the Shares issued hereunder and
(ii) any securities issued with respect to the Shares by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Restricted
Securities, such securities shall cease to be Restricted Securities when they
have (a) been effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (b) been
distributed to the public through a broker, dealer or market maker pursuant to
Rule 144 (or any similar provision then in force) under the Securities Act or
become eligible for sale pursuant to Rule 144(k) (or any similar provision then
in force) under the Securities Act. Whenever any particular securities cease to
be Restricted Securities, the holder thereof shall be entitled to receive from
the Company, without expense, new securities of like tenor not bearing a
Securities Act legend of the character set forth in Section 7.2.
16.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"SEC" means the United States Securities and Exchange Commission and
includes any governmental body or agency succeeding to the functions thereof.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"STOCKHOLDER RIGHTS AGREEMENT" means the Stockholder Rights
Agreement, dated September 18, 1997, between the Company and American Stock
Transfer and Trust Company as rights agent.
[THIS SPACE INTENTIONALLY LEFT BLANK]
17.
IN WITNESS WHEREOF, the parties hereto have executed the COMMON STOCK
PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY: PURCHASERS:
CORVAS INTERNATIONAL, INC. SOFINOV SOCIETE FINANCIERE
D'INNOVATION INC.
By: /s/ RANDALL E. WOODS By: /s/ JEAN CHRISTOPHE RENONDIN
-------------------------------------- ------------------------------
Randall E. Woods Name: Jean Christophe Renondin
President and Chief Executive Officer Its: Vice President
By: /s/ DENIS DIONNE
-----------------------------
Name: Denis Dionne
Its: President
FINSBURY TECHNOLOGY TRUST
By:/s/DAVID FALLON;
------------------------------
/s/NATHAN BROWN
------------------------------
Name: David Fallon; Nathan Brown
Its: Rea Brothers Limited
Secretaries
WESTCOAST AND COMPANY
By: /s/ KENNETH A. KALINA
-----------------------------
Name: Kenneth A. Kalina
Its: Fund Controller
[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
CORVAS INTERNATIONAL, INC.
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
- ---------------------------------------------------------------------------------------------------------------
AGGREGATE
NAME AND ADDRESS SHARES PURCHASE PRICE
- ---------------------------------------------------------- ----------------- ----------------------------------
Sofinov Societe Financiere D'Innovation Inc. 400,000 $1,000,000
1981, avenue McGill College 13th Floor
Montreal (Quebec) H3A 3C7
Finsbury Technology Trust 200,000 $500,000
Alderman's House
Alderman's Walk
London, EC2M 3XR United Kingdom
Westcoast and Company 100,000 $250,000
c/o State Street Bank and Trust
225 Franklin Street
Boston, MA 02110
Attn: Anna Barnes - MCO
1. AGREEMENT TO SELL AND PURCHASE......................................1
1.1 Authorization of Shares....................................1
1.2 Sale and Purchase..........................................1
2. CLOSING, DELIVERY AND PAYMENT.......................................2
2.1 Closing....................................................2
2.2 Delivery...................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................2
3.1 Organization and Standing..................................2
3.2 Authorization..............................................2
3.3 Valid and Binding Obligation...............................2
3.4 SEC Filings; Financial Statements..........................3
3.5 Non-Contravention..........................................3
3.6 Capitalization.............................................4
3.7 Governmental Consent, etc..................................5
3.8 No General Solicitation....................................5
3.9 Litigation, etc............................................5
3.10 Employees..................................................5
3.11 Intellectual Property Rights...............................6
3.12 Environmental and Safety Laws..............................6
3.13 Related-Party Transactions.................................6
3.14 Title to Property and Assets; Leases.......................7
3.15 Insurance..................................................7
3.16 System of Internal Accounting Controls.....................7
3.17 Filing of Tax Returns......................................7
3.18 Investment Company.........................................7
3.19 Real Property Holding Company..............................8
3.20 No Defaults................................................8
3.21 Stockholder Rights Agreement...............................8
3.22 Brokers or Finders.........................................8
3.23 Year 2000 Compliance.......................................8
3.24 Nasdaq Listing.............................................8
3.25 Form S-3 Eligibility.......................................8
3.26 Knowledge...................................................9
3.27 Disclosure..................................................9
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.....................9
4.1 Requisite Power and Authority...............................9
4.2 Investment Representations..................................9
4.3 Further Assurances.........................................10
4.4 Transfer Restrictions......................................10
5. CONDITIONS TO EACH PURCHASER'S OBLIGATIONS AT THE CLOSING...........10
5.1 Representations and Warranties; Covenants..................11
5.2 Registration Rights Agreement..............................11
5.3 Sale of Convertible Notes..................................11
5.4 Governmental Consents......................................11
5.5 No Material Adverse Change.................................11
5.6 Consents and Approvals.....................................11
5.7 Opinion of the Company's Counsel...........................11
5.8 Closing Documents..........................................11
6. CONDITIONS TO OBLIGATIONS OF THE COMPANY............................12
6.1 Representations and Warranties True........................12
6.2 Consents, Permits, and Waivers.............................12
6.3 Sale of Convertible Notes..................................12
7. MISCELLANEOUS.......................................................12
7.1 Legends....................................................12
7.2 Indemnification............................................13
7.3 Survival of Representations and Warranties.................13
7.4 Successors and Assigns.....................................13
7.5 Severability...............................................13
7.6 Counterparts...............................................13
7.7 Descriptive Headings; Interpretation.......................13
7.8 Governing Law..............................................14
7.9 Notices....................................................14
7.10 No Strict Construction.....................................14
7.11 Expenses...................................................14
7.12 Listing of Shares on Nasdaq................................15
7.13 Use of Proceeds............................................15
7.14 Information Rights.........................................15
7.15 Public Statements or Releases..............................15
8. DEFINITIONS.........................................................15