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Exhibit
10.1
SUBSCRIPTION
AGREEMENT
Medivation, Inc.
201 Spear Street, 3
rd
Floor
San Francisco, CA 94105
Ladies and Gentlemen:
The undersigned (the “
Investor ”) hereby confirms its agreement with you as
follows:
1. This Subscription
Agreement (this “ Agreement ”) is made as of the
date set forth below between Medivation, Inc., a Delaware
corporation (the “ Company ”), and the
Investor.
2. The Company has
authorized the sale and issuance to certain investors of up to an
aggregate of 1,129,518 shares (the “ Shares ”)
of its Common Stock, par value $0.01 per share (the “
Common Stock ”), subject to adjustment by the
Company’s Board of Directors, or a committee thereof, for a
purchase price of $13.28 per share (the “ Purchase
Price ”).
3. The offering and
sale of the Shares (the “ Offering ”) are being
made pursuant to (a) an effective Registration Statement on
Form S-3 (including the Prospectus contained therein (the “
Base Prospectus ”), the “ Registration
Statement ”) filed by the Company with the Securities and
Exchange Commission (the “ Commission ”),
(b) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the
Securities Act of 1933, as amended (the “ Act
”)), that have or will be filed with the Commission and
delivered to the Investor on or prior to entry into this Agreement
by the Investor and the Company, and (c) a Prospectus
Supplement (the “ Prospectus Supplement ” and
together with the Base Prospectus, the “ Prospectus
”) containing certain supplemental information regarding the
Shares and terms of the Offering that will be delivered to the
Investor (or made available to the Investor by the filing by the
Company of an electronic version thereof with the Commission) on or
prior to entry into this Agreement by the Investor and the
Company.
4. The Company and the
Investor agree that the Investor will purchase from the Company and
the Company will issue and sell to the Investor the Shares of
Common Stock set forth below for the aggregate purchase price set
forth below. The Shares shall be purchased pursuant to the Terms
and Conditions for Purchase of Shares attached hereto as Annex
I and incorporated herein by this reference as if fully set
forth herein. The Investor acknowledges that there is no minimum
offering amount.
5. The manner of
settlement of the Shares purchased by the Investor shall be
delivery by electronic book-entry at The Depository Trust Company
(“ DTC ”), registered in the Investor’s
name and address as set forth below, and released by American Stock
Transfer & Trust Company, the Company’s transfer
agent (the “ Transfer Agent ”), to the Investor
at the Closing (as defined in Annex I). NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE
INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
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(I) |
DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO
BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN (“ DWAC
”) INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT
OR ACCOUNTS WITH THE SHARES, AND |
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(II) |
REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE
INVESTOR TO THE ACCOUNT OF THE COMPANY, PURSUANT O WIRE TRANSFER
INSTRUCTIONS DELIVERED SEPARATELY BY THE COMPANY TO THE
INVESTOR. |
IT IS THE INVESTOR’S
RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND
(B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY MANNER.
IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR
THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A
TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE
INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
6. The Investor
represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past
three years with the Company or persons known to it to be
affiliates of the Company, (b) it is not a FINRA member or an
Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the
Closing, and (c) neither the Investor nor any group of
Investors (as identified in a public filing made with the
Commission) of which the Investor is a part in connection with the
Offering of the Shares, acquired, or obtained the right to acquire,
20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on
a post-transaction basis.
Exceptions:
(If no exceptions, write
“none.” If left blank, response will be deemed to be
“none.”)
7. The Investor
represents that it has received (or otherwise had made available to
it by the filing by the Company of an electronic version thereof
with the Commission) the Base Prospectus, dated August 20,
2007, which is a part of the Company’s Registration
Statement, the documents incorporated by reference therein and any
free writing prospectus (collectively, the “ Disclosure
Package ”), prior to or in connection with the receipt
execution of this Agreement. The Investor acknowledges that, prior
to the delivery of this Agreement to the Company, the Investor will
receive certain additional information regarding the Offering,
including pricing information (the “ Offering
Information ”). Such information may be provided to the
Investor by any means permitted under the Act, including the
Prospectus Supplement, a free writing prospectus and oral
communications.
8. No offer by the
Investor to buy Shares will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has
received the Offering Information and the Company has accepted such
offer by countersigning a copy of this Agreement, and any such
offer may be withdrawn or revoked, without obligation or commitment
of any kind, at any time prior to the Company sending (orally, in
writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or
commitment of any kind until the Investor has been delivered the
Offering Information and this Agreement is accepted and
countersigned by or on behalf of the Company.
[R EMAINDER
OF PAGE INTENTIONALLY
LEFT BLANK .]
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Number of Shares:
Purchase Price Per Share:
$13.28
Aggregate Purchase Price: $
Please confirm that the
foregoing correctly sets forth the agreement between us by signing
in the space provided below for that purpose.
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| Dated as of: June ,
2008 |
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| INVESTOR |
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| By: |
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Agreed and Accepted
this day
of June, 2008
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| MEDIVATION, INC. |
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| By: |
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C. Patrick Machado |
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Senior Vice President and Chief Financial Officer |
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ANNEX
I
TERMS AND CONDITIONS FOR
PURCHASE OF SHARES
1. Authorization and Sale
of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the
Shares.
2. Agreement to Sell and
Purchase the Shares.
2.1 At the Closing (as
defined in Section 3.1 ), the Company will sell to the
Investor, and the Investor will purchase from the Company, upon the
terms and conditions set forth herein, the number of Shares set
forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I
(the “ Signature Page ”) for the aggregate
purchase price therefor set forth on the Signature Page.
2.2 The Company
proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “ Other
Investors ”) and expects to complete sales of Shares to
them. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the “ Investors
,” and this Agreement and the Subscription Agreements
executed by th
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