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Exhibit
10.2
EXECUTION
VERSION
NOVACEA,
INC.
COMMON STOCK PURCHASE
AGREEMENT
This Common Stock Purchase
Agreement (“ Agreement ”) is made as of
May 29, 2007, by and among Novacea, Inc., a Delaware
corporation (the “ Company ”), and Schering
Corporation, a New Jersey corporation (the “ Purchaser
”).
RECITALS
A. In connection with that
certain License, Development and Commercialization Agreement, dated
of even date herewith (the “ LDC Agreement ”),
by and between the Company and the Purchaser, the Purchaser wishes
to purchase from the Company, and the Company wishes to sell and
issue to the Purchaser, certain shares of the Company’s
Common Stock, par value $0.001 per share (the “ Common
Stock ”), upon the terms and subject to the conditions
set forth in this Agreement.
B. The Company and the
Purchaser are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by the
provisions of Regulation D, as promulgated by the U.S. Securities
and Exchange Commission (the “ Commission ”)
under the Securities Act of 1933, as amended (the “
Securities Act ”).
AGREEMENT
In consideration of the
mutual covenants contained in this Agreement, and for other good
and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Purchaser hereby agree as
follows:
SECTION 1. AUTHORIZATION OF SALE OF
SHARES.
The Company has authorized
the sale and issuance of certain shares of its Common Stock, par
value $0.001 per share (the “ Common Stock ”),
on the terms and subject to the conditions set forth in this
Agreement. The shares of Common Stock sold hereunder shall be
referred to herein as the “ Shares ”.
SECTION 2. AGREEMENT TO SELL AND
PURCHASE THE SHARES.
2.1 Sale of Shares .
At the Closing (as defined in Section 3), the Company will
sell to the Purchaser, and the Purchaser will purchase from the
Company that number of Shares of Common Stock equal to
(x) $12,000,000, divided by (y) the Per Share Purchase
Price (as defined below), as set forth on Exhibit A hereto.
The “ Per Share Purchase Price ” shall be equal
to the average closing sale price of the Common Stock as quoted on
The Nasdaq Stock Market for the twenty consecutive Trading Days
ending on the Trading Day immediately prior to the date of this
Agreement. A “ Trading Day ” shall be any day on
which The Nasdaq Stock Market is open and available for at least
five hours for the trading of securities.
SECTION 3. CLOSING AND
DELIVERY.
3.1 Closing . The
Closing of the purchase and sale of the Shares pursuant to this
Agreement (the “ Closing ”) shall be held at the
offices of Latham & Watkins LLP, 140 Scott Drive, Menlo
Park, California 94025, within ten business days of the Effective
Date (as such term is defined in the LDC Agreement), or on such
other date and place as may be agreed to by the Company and the
Purchaser. At or prior to the Closing, the Purchaser shall execute
any related agreements or other documents required to be executed
hereunder, dated as of the date of the Closing (the “
Closing Date ”).
3.2 Delivery of the Shares
at the Closing. At the Closing, the Company shall deliver to
the Purchaser stock certificates registered in the name of the
Purchaser, or in such nominee name(s) as designated by the
Purchaser, representing the number of shares of Common Stock to be
purchased by the Purchaser at the Closing pursuant to
Section 2.1 hereof against payment of the aggregate purchase
price for such shares. The name(s) in which the stock certificates
are to be issued to the Purchaser are set forth in the Investor
Questionnaire in the form attached hereto as Appendix I (the
“ Investor Questionnaire ”), as completed by the
Purchaser, which shall be provided to the Company no later than
five business days prior to the Closing.
SECTION 4. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents
and warrants as of the date hereof to, and covenants with, the
Purchaser as follows:
4.1 Organization and
Standing. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, has full corporate power and authority to own or lease
its properties and conduct its business as presently conducted, and
is duly qualified as a foreign corporation and in good standing in
all jurisdictions in which the character of the property owned or
leased or the nature of the business transacted by it makes
qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the business,
properties, financial condition or results or operations of the
Company (a “ Company Material Adverse Effect ”).
The Company has no subsidiaries or equity interest in any other
entity except for Novacea Europe Limited, a wholly-owned subsidiary
of the Company.
4.2 Corporate Power;
Authorization. The Company has all requisite corporate power,
and has taken all requisite corporate action, to execute and
deliver this Agreement, sell and issue the Shares and carry out and
perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Company,
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, including any specific
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performance, and (iii) as to those
provisions of Section 8.3 relating to indemnity or
contribution. The execution and delivery of this Agreement does
not, and the performance of this Agreement and the compliance with
the provisions hereof and the issuance, sale and delivery of the
Shares by the Company will not conflict with, or result in a breach
or violation of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien pursuant to the terms of, the Certificate of
Incorporation or Bylaws of the Company or any statute, law, rule
(including federal and state securities laws and the rules and
regulations of The NASDAQ Stock Market (the “ Principal
Market ”)) applicable to the Company or regulation or any
state or federal order, judgment or decree applicable to the
Company or any indenture, mortgage, lease or other material
agreement or instrument to which the Company is a party or any of
its properties is subject. No approval of the shareholders of the
Company is required for the Company to issue and deliver to the
Purchaser the Shares.
4.3 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. Assuming the accuracy of the
representations made by the Purchaser in Section 5, the offer
and issuance by the Company of the Shares is exempt from
registration under the Securities Act.
4.4 SEC Documents;
Financial Statements. The Company has filed in a timely manner
all documents that the Company was required to file with the
Commission under Sections 13, 14(a) and 15(d) the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), since becoming subject to the requirements of the
Exchange Act. As of their respective filing dates (or, if amended
prior to the date of this Agreement, when amended), all documents
filed by the Company with the Commission (the “ SEC
Documents ”) complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission promulgated thereunder. None of the SEC Documents as
of their respective dates contained any untrue statement of
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the
SEC Documents (the “ Financial Statements ”)
comply as to form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect thereto. The Financial
Statements have been prepared in accordance with United States
generally accepted accounting principles consistently applied and
fairly present the financial position of the Company at the dates
thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements,
to normal, recurring adjustments).
4.5 Capitalization.
All of the Company’s outstanding shares of capital stock have
been duly authorized and validly issued, are fully paid and
nonassessable, and have been issued in compliance with all federal
and state securities laws. As of the date of this Agreement, the
authorized capital stock of the Company consists of 123,104,000
shares of common stock. As of the date of this Agreement, there are
23,276,738 shares of Common Stock issued and outstanding, of which
no shares are owned by the Company. There are no other shares of
any other class or series of capital stock of the Company issued or
outstanding. The Company has no
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capital stock reserved for issuance,
except that, as of the date of this Agreement, there are 3,209,924
shares of Common Stock reserved for issuance pursuant to options
and restricted stock units outstanding on such date pursuant to the
Company’s 2001 Stock Option Plan and 2006 Incentive Award
Plan. There are no bonds, debentures, notes or other indebtedness
having general voting rights (or convertible into securities having
such rights) (“ Voting Debt ”) of the Company
issued and outstanding. Except as stated above, there are no
existing options, warrants, calls, subscriptions or other rights,
agreements, arrangements or commitments of any character, relating
to the issued or unissued capital stock of the Company, obligating
the Company to issue, transfer, sell, redeem, purchase, repurchase
or otherwise acquire or cause to be issued, transferred, sold,
redeemed, purchased, repurchased or otherwise acquired any capital
stock or Voting Debt of, or other equity interest in, the Company
or securities or rights convertible into or exchangeable for such
shares or equity interests or obligations of the Company to grant,
extend or enter into any such option, warrant, call, subscription
or other right, agreement, arrangement or commitment. The
issuance of Common Stock or other securities pursuant to any
provision of this Agreement will not give rise to any preemptive
rights or rights of first refusal on behalf of any Person or result
in the triggering of any anti-dilution or other similar
rights.
4.6 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, (b) the filing of a registration
statement and all amendments thereto with the Commission as
contemplated by Section 8.1 of this Agreement and
(c) applicable requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended in connection with the
transactions contemplated by the LDC Agreement and this
Agreement.
4.7 No General
Solicitation . Neither the Company, nor any of its affiliates,
nor any Person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the
meaning of Regulation D promulgated under the Securities Act) in
connection with the offer or sale of the Shares.
4.8 No Integrated
Offering. None of the Company, any of its affiliates, or any
Person acting on their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any
security, under circumstances that would require registration of
any of the Shares under the Securities Act or cause this offering
of the Shares to be integrated with prior offerings by the Company
for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, under the rules
and regulations of the Principal Market.
SECTION 5. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PURCHASER.
5.1 The Purchaser hereby
represents and warrants to and covenants with the Company
that:
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(a) The Purchaser is
knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in shares
presenting an investment decision like that involved in the
purchase of the Shares, including investments in securities issued
by the Company, and has requested, received, reviewed and
considered all information the Purchaser deems relevant, including
the SEC Documents, in making an informed decision to purchase the
Shares.
(b) The Purchaser is
acquiring the Shares pursuant to this Agreement in the ordinary
course of its business and for its own account for investment only
and with no present intention of distributing any of such Shares or
any arrangement or understanding with any other persons regarding
the distribution of such Shares, except in compliance with
Section 5.1(c).
(c) The Purchaser will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the securities purchased
hereunder except in compliance with the Securities Act, applicable
blue sky laws, and the rules and regulations promulgated
thereunder.
(d) The Purchaser has, in
connection with its decision to purchase the Shares, relied with
respect to the Company and its affairs solely upon the SEC
Documents and the representations and warranties of the Company
contained herein.
(e) The Purchaser is an
“accredited investor” within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act or a Qualified
Institutional Buyer within the meaning of Rule 144A promulgated
under the Securities Act.
(f) The Purchaser has full
right, power, authority and capacity to enter into this Agreement
and to consummate the transactions contemplated hereby and has
taken all necessary action to authorize the execution, delivery and
performance of this Agreement. Upon the execution and delivery of
this Agreement by the Purchaser, this Agreement shall constitute a
valid and binding obligation of the Purchaser, 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,
including any specific performance, and (iii) as to those
provisions of Section 8.3 relating to indemnity or
contribution.
(g) The Purchaser is not a
broker or dealer registered pursuant to Section 15 of the
Exchange Act (a “ registered broker-dealer ”)
and is not affiliated with a registered broker dealer. Purchaser is
not party to any agreement for distribution of the
Shares.
(h) The Purchaser shall have
completed or caused to be completed and delivered to the Company,
no later than five business days prior to the Closing Date, the
Investor Questionnaire for use in preparation of the Registration
Statement, and the answers to the Investment Questionnaire will be
true and correct as of the Closing Date and the effective date of
the Registration Statement; provided that the Purchaser shall be
entitled to update such information by providing notice thereof to
the Company before the effective date of such Registration
Statement.
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5.2 The Purchaser represents,
warrants and covenants to the Company that the Purchaser has not,
either directly or indirectly through an affiliate, agent or
representative of the Company, engaged in any transaction in the
Securities of the Company subsequent to December 15, 2006. The
Purchaser represents and warrants to and covenants with the Company
that the Purchaser has not engaged and
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