Exhibit 10.34
COMMON STOCK PURCHASE AND
REGISTRATION RIGHTS AGREEMENT
THIS COMMON STOCK PURCHASE AND
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated
as of January 9, 2004 is between Curis, Inc., a Delaware
corporation (the “Company”), and Wyeth, acting through
its Wyeth Pharmaceuticals division, a Delaware corporation (the
“Purchaser”).
BACKGROUND
WHEREAS, the Company and the
Purchaser are parties to that certain Collaboration, Research and
License Agreement, dated January 9, 2004 (the “Collaboration
Agreement”), pursuant to which the Company and the Purchaser
have agreed to conduct a research collaboration to screen, identify
and develop, and for Purchaser to develop and commercialize,
products having agonist activity on the Hedgehog pathway, as more
fully described in such Collaboration Agreement.
WHEREAS, pursuant to the terms of
the Collaboration Agreement, the Purchaser has agreed to purchase,
and the Company has agreed to sell, shares of the Company’s
Common Stock, $.01 par value per share (“Common
Stock”), on the terms and subject to the conditions set forth
herein.
NOW THEREFORE, in consideration of
the mutual promises hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as
follows:
1. Purchase and Sale of the
Shares .
(a) The Company agrees to issue and
sell to the Purchaser, and the Purchaser agrees to purchase from
the Company, 315,524 shares (the “Shares”) of Common
Stock at a purchase price of $4.754 per share for an aggregate
purchase price of $1,500,000.00 (the “Purchase
Price”).
(b) The closing of the transactions
contemplated hereby (the “Closing”) shall be held at
the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts, at 10:00 a.m., Boston Time, on the date which is
within five (5) business days after the Effective Date (as such
term is defined in the Collaboration Agreement) (the “Closing
Date”). At the Closing (i) the Purchaser shall pay the
Company the Purchase Price by wire transfer of immediately
available funds to an account designated in writing by the Company;
(ii) the Company shall deliver to the Purchaser an original stock
certificate representing the Shares, registered in the name of
“Wyeth” against payment of the Purchase Price
therefore; and (iii) the Company and the Purchaser shall have
satisfied the other conditions precedent to the Closing set forth
in Section 4 below.
2. Representations and Warranties
of the Company . The Company hereby represents and warrants to
the as follows:
(a) Organization and Good
Standing . The Company has been duly incorporated and
organized, and is validly existing in good standing, under the laws
of the State of Delaware. The Company is duly qualified to transact
business and is in good standing in the Commonwealth of
Massachusetts. The Company has the corporate power and authority to
enter into and perform this Agreement, to own and operate its
properties and assets and to carry on its business as currently
conducted.
(b) Authorization and Binding
Nature . The execution, delivery and performance by the Company
of the Agreement and the issuance and delivery of the Shares has
been duly authorized by all requisite corporate action on the part
of the Company. The Agreement constitutes the valid and legally
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforceability may be
limited by securities laws, bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and by equitable
principles, including those limiting the availability of specific
performance, injunctive relief and other equitable
remedies.
(c) Non-Contravention . The
execution, delivery and performance by the Company of the Agreement
will not, with or without the giving of notice or the passage of
time or both (i) violate or conflict with the provisions of the
Certificate of Incorporation or Bylaws of the Company; (ii) violate
or conflict with any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to the Company; or (iii)
violate, conflict with or cause a default under any mortgage,
indenture, lease, contract or other agreement or instrument,
permit, or license to which the Company is subject except, in the
case of this clause (iii), any violation, conflict or default that
would not have a Material Adverse Effect. For purposes of this
Agreement, “Material Adverse Effect” shall mean, with
respect to an entity, any state of facts, events, change or effect,
either individually or in the aggregate, that has had, or would
reasonably be expected to have, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of such entity.
(d) Governmental Consents .
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any
federal, state or local governmental authority is required on the
part of the Company in order to enable the Company to execute,
deliver and perform its obligations under this Agreement, except
for such qualifications or filings under applicable securities laws
or under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended as may be required in connection with the transactions
contemplated by this Agreement.
(e) Capitalization. The
authorized capital stock of the Company consists of (i) 125,000,000
shares of Common Stock, of which, as of January 8, 2004, 41,687,595
shares are issued, of which 40,639,888 are outstanding and
1,047,707 are held by the Company in treasury, and (ii) 5,000,000
shares of Preferred Stock, $.01 par value per share, of which, as
of January 8, 2004, no shares are issued or outstanding. All of the
issued and outstanding shares of Common Stock have been duly
authorized, validly issued and are fully paid and nonassessable.
Except as described in the SEC Reports, there are no outstanding
securities of the Company convertible into or evidencing the right
to purchase or subscribe for any shares of capital stock of the
Company, there are no outstanding or authorized options, warrants,
calls, subscriptions, rights,
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commitments or any other instruments or
agreements or any character obligating the Company to issue any
shares of its capital stock or any securities convertible into or
evidencing the right to purchase or subscribe for any shares of
such stock, and there are no agreements or understandings with
respect to the voting, sale or transfer of any shares of capital
stock of the Company to which the Company is a party. When issued,
sold and delivered against payment therefore in accordance with the
provisions of this Agreement, the Shares will be duly authorized,
validly issued, fully paid and nonassessable, and will be free of
restrictions on transfer other than restrictions under this
Agreement and applicable state and federal securities laws. Upon
payment of the Purchase Price at Closing, Purchaser shall have good
and marketable title to the Shares.
(f) SEC Reports. The Company
has timely filed all reports, schedules and other documents
required to be filed by the Company with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) including but not limited
to any certifications required to be made under the Sarbanes-Oxley
Act of 2002 or any rules promulgated thereunder. The
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2002 (the “2002 Form 10-K”) and all
reports filed by the Company under Section 13 of the Exchange Act
with the Securities and Exchange Commission (“SEC”),
since December 31, 2002 (together with the 2002 Form 10-K, the
“Reports”) have complied in all material respects with
the applicable requirements of the Exchange Act, and the respective
rules and regulations thereunder when filed. As of their respective
dates, the Reports did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(g) Governmental Permits .
The Company owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to
operate its properties and to carry on its business as conducted as
of the date hereof, except where the failure so to own, possess,
obtain or make would not have a Material Adverse Effect. The
Company has not received any actual notice of any proceeding
relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization. To
its knowledge, the Company is in compliance with all laws and
regulations relating to the conduct of its business as conducted as
of the date hereof, except where noncompliance would not have a
Material Adverse Effect.
(h) Taxes . The Company has
filed all tax returns required to be filed by or on behalf of the
Company, except to the extent that a failure to file would not have
a Material Adverse Effect. All such filings are true and correct in
all material respects, and the Company is not in default in the
payment of any taxes, including penalties and interest,
assessments, fees and other charges shown thereon due or otherwise
assessed other than those being contested in good faith and for
which adequate reserves have been provided, those currently payable
without which were payable pursuant to said returns or any
assessments with respect thereto and those defaults which would not
have a Material Adverse Effect.
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(i) Intellectual Property .
The Company, to its knowledge, owns or is licensed to use all
patents, patent applications, inventions, trademarks, trade names,
applications for registration of trademarks, service marks, service
mark applications, copyrights, know-how, manufacturing processes,
formulae, trade secrets, licenses and rights in any thereof and any
other intangible property and assets that are material to the
business of the Company as now conducted and as, on the date
hereof, proposed to be conducted (the “Proprietary
Rights”), or is seeking, or will seek, to obtain rights to
use such Proprietary Rights that are material to the business of
the Company, on the date hereof, as proposed to be conducted. The
Company does not have any knowledge of, and the Company has not
given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any
Proprietary Rights, or with respect to any license of Proprietary
Rights, that are material to the business of the Company. No
action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the Company’s
knowledge, threatened, which involves any Proprietary Rights, nor,
to the Company’s knowledge, is there any reasonable basis
therefore.
(j) No Material Adverse
Change . Except as described or referred to in the Reports,
since September 30, 2003 there has not been any event, change or
development which would have a Material Adverse Effect, other than
a state of facts, events, change or effect attributable to changes
in general economic or market conditions affecting the life science
and pharmaceutical industries.
(k) Litigation . There is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting the
Company which could have a Material Adverse Effect.
(l) NASDAQ National Market
Designation . The Company’s Common Stock is currently
included in the NASDAQ National Market of the NASDAQ Stock Market
and, as of the date hereof, the Company knows of no reason or set
of facts which is likely to result in the termination or inability
of the Common Stock to continue to be included in the NASDAQ
National Market.
3. Representations and Warranties
of the Purchaser . The Purchaser represents and warrants to the
Company that the statements contained in this Section 3 are true
and correct as of the date of this Agreement.
(a) Investment. The Purchaser
is acquiring the Shares for its own account for investment, not for
resale to any other person and not with a view to or in connection
with any resale or distribution. The Purchaser understands that the
Shares have not been registered under the securities laws of the
United States or any other jurisdiction and cannot be transferred
or resold except as permitted pursuant to a valid registration
statement or an applicable exemption from registration. The
Purchaser understands that an investment in the Company involves
significant risks. The Purchaser acknowledges that, except for the
registration and other rights contemplated herein, there can be no
assurance that there will be any market for the Common Stock in the
foreseeable future and that, as a result, the Purchaser must be
prepared to bear the economic risk of its investment for an
indefinite period of time. The Purchaser understands that the
certificate representing the Shares shall bear a legend
substantially in the following form (it being agreed that the
opinion of counsel referred to below shall be deemed to mean the
inside or outside counsel of Purchaser, as designated by
Purchaser):
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“The securities represented by
this certificate have not been
registered under the Securities Act
of 1933, as amended, and may
not be sold, exchanged, transferred,
pledged, hypothecated or
otherwise disposed of unless and
until such securities are
registered under such Act or an
opinion of counsel reasonably
satisfactory to the issuer is
obtained to the effect that such
registration is not
required.”
The foregoing legend shall be
removed and the Company shall issue a certificate without such
legend to the holder of any Shares upon which it is stamped, if,
unless otherwise required by state securities laws, (i) the sale of
such Shares is registered under the Securities Act of 1933, as
amended (the “Securities Act”), or (ii) the Shares
become eligible for resale pursuant to Rule 144 of the Securities
Act.
(b) Authorization and Binding
Nature. The execution, delivery and performance by the
Purchaser of the Agreement has been duly authorized by all
requisite corporate action on the part of the Purchaser. The
Agreement constitutes the valid and legally binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as enforceability may be limited by securities
laws, bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the
rights of creditors generally and by equitable principles,
including those limiting the availability of specific performance,
injunctive relief and other equitable remedies.
(c) Non-Contravention . The
execution, delivery and performance by the Purchaser of the
Agreement will not, with or without the giving of notice or the
passage of time or both, (i) violate or conflict with the
provisions of the Certificate of Incorporation or Bylaws of the
Purchaser, (ii) violate or conflict with any judgment, decree,
order or award of any court, governmental body or arbitrator
applicable to the Purchaser or (iii) violate, conflict with or
cause a default under any mortgage, indenture, lease, contract or
other agreement or instrument, permit, or license to which the
Purchaser is subject other than any violation, conflict or default
which would not have a Material Adverse Effect.
(d) Access to Information.
The Purchaser has substantial knowledge and experience in making
investment decisions of this type and is capable of evaluating the
merits and risks of its investment in the Company. The Company has
made available to the Purchaser all documents and other information
necessary for the Purchaser to evaluate the merits and risks of its
investment in the Company.
(e) Accredited Investor. The
Purchaser is an “accredited investor,” as defined in
Rule 501 under the Securities Act.
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4. Conditions to
Closing
(a) Conditions of the
Purchaser’s Obligation . The obligation of the Purchaser
to purchase and pay for the Shares at the Closing is subject to the
satisfaction of the following conditions, any one or more of which
may be waived by the Purchaser:
(i) Documentation at Closing
. The Purchaser shall have received prior to or at the Closing all
of the following documents or instruments, or evidence of
completion thereof, each in form and substance satisfactory to the
Purchaser:
(a) A copy of the Certificate of
Incorporation of the Company, certified by the Secretary of State
of the State of Delaware, a copy of the resolutions of the Board of
Directors of the Company evidencing the approval of this Agreement,
the issuance of the Shares and the other matters contemplated
hereby, and a copy of the Bylaws of the Company, all of which shall
have been certified by the Secretary of the Company to be true,
complete and correct.
(b) A certificate of the Secretary
of the Company which shall certify the names and valid signatures
of the officers of the Company authorized to sign this Agreement,
the certificate for the Shares and the other documents, instruments
or certificates to be delivered pursuant to this Agreement by the
Company or any of its officers.
(c) A certificate of the Chief
Executive Officer of the Company stating that all covenants and
conditions required to be performed prior to or at the Closing have
been performed in all material respects as of the
Closing.
(d) A certificates of good standing
for the Company from the Secretary of State of the State of
Delaware and a certificate of foreign qualification from the
Commonwealth of Massachusetts, each dated as of the most recent
practicable date.
(ii) Performance of
Obligations . The Company shall have performed in all material
respects all obligations and conditions herein required to be
performed or observed by it on or prior to the Closing.
(iii) Consents, Waivers, Etc
. The Company shall have obtained all consents or waivers, if any,
necessary to execute and deliver this Agreement, issue the Shares
and to carry out the transactions contemplated hereby and thereby
except for any which, if not obtained or effected would not have a
Material Adverse Effect or a material adverse effect on the
parties’ ability to close the transaction contemplated by the
Agreement. All corporate
