Exhibit 10.1
CADENCE PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS
COMMON STOCK PURCHASE AGREEMENT (the “ Agreement
”) is made as of this 14 th day of
February, 2008, by and between Cadence Pharmaceuticals, Inc., a
Delaware corporation (the “ Company ”), and the
undersigned (the “ Investor ”).
THE
PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of
Stock.
1.1
Sale and Issuance of Common Stock. The Investor agrees to
purchase at the Closing (defined below), and the Company agrees to
sell and issue to the Investor at the Closing, the number of shares
of the Company’s Common Stock, $0.0001 par value (the “
Common Stock ”), set forth on the Investor’s
signature page hereto next to the heading “Shares” (the
“ Stock ”) at a price of $5.34 per share, for a
total subscription amount equal to the amount set forth on the
Investor’s signature page hereto next to the heading
“Subscription Amount.”
1.2
Other Agreements . The Company proposes to enter into the
identical form of agreement with certain other investors (the
“ Other Investors ”) and expects to complete
sales of Stock to them. The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the “
Investors. ”
1.3
Closing. The purchase and sale of the Stock shall take place at
the offices of Latham & Watkins LLP located at 12636 High Bluff
Drive, Suite 400, San Diego, California at 10:00 A.M.,
New York City time, on February 20, 2008, or at such other
time and place as the Company and the Investor may mutually agree
upon orally or in writing (which time and place are designated as
the “ Closing ”). At the Closing, the Company
shall cause its transfer agent to deliver to the Investor, via
electronic book-entry or physical certificates, the Stock such
Investor is purchasing hereunder against payment of the purchase
price therefor by check or wire transfer of immediately available
funds to the following account:
Account Name:
Cadence Pharmaceuticals, Inc.
Account No.:
ABA/Routing No.:
Bank Name:
Silicon Valley Bank
Bank Address: 3003 Tasman Dr.
Santa Clara, CA 95054
2. Representations and
Warranties of the Company. The Company hereby makes the
following representations, warranties and covenants to the
Investor:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the “
Securities Act ”), and has filed with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement on such Form (Registration File
No. 333-147721), which became effective as of
December 11, 2007, for the registration under the Securities
Act of the Stock. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies with said Rule. The Company will file
with the Commission pursuant to Rule 424(b) under the Securities
Act (“ Rule 424(b) ”), and the rules and
regulations (the “ Rules and Regulations ”) of
the Commission promulgated thereunder, a supplement to the form of
prospectus included in such registration statement relating to the
offer to sell and proposed sale of the Stock and the
plan of
distribution thereof. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the “ Registration Statement
”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “ Base
Prospectus ”; and the supplemented form of prospectus, in
the form in which it will be filed with the Commission pursuant to
Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the “ Prospectus Supplement
.” Any reference herein to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to
refer to and include the documents incorporated by reference
therein (the “ Incorporated Documents ”)
pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), on or before the date of this
Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the
case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included,” “described,” “set
forth” or “stated” in the Registration Statement,
the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus or the Prospectus Supplement, as the
case may be. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or the use of the Base
Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated
or, to the Company’s knowledge, is threatened by the
Commission.
(b) The Registration Statement (and any further
documents to be filed with the Commission) contains all exhibits
and schedules as required by the Securities Act. Each of the
Registration Statement and any post-effective amendment thereto, at
the time it became effective, complied in all material respects
with the Securities Act and the Exchange Act and the applicable
Rules and Regulations and did not and, as amended or supplemented,
if applicable, will 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 not misleading. The
Base Prospectus and the Prospectus Supplement, each as of its
respective date, comply in all material respects with the
Securities Act and the Exchange Act and the applicable Rules and
Regulations. Each of the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The Incorporated Documents, when
they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable
Rules and Regulations and none of such Incorporated Documents, when
they were filed with the Commission, contained any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Base Prospectus or
Prospectus Supplement, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and
Regulations, as applicable and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
Notwithstanding the foregoing, the Company makes no representations
or warranties as to information, if any, contained in or omitted
from the Prospectus Supplement or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Investor specifically for use in the Registration Statement or
the Prospectus Supplement, which information the parties hereto
agree is limited to the Investor Information as defined in
Section 4.1. No post-effective amendment to the Registration
Statement reflecting any facts
or
events arising after the date thereof which represent, individually
or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There
are no documents required to be filed with the Commission in
connection with the transaction contemplated hereby that have not
been filed as required pursuant to the Securities Act or will not
be filed within the requisite time period. There are no contracts
or other documents required to be described in the Base Prospectus
or Prospectus Supplement, or to be filed as exhibits or schedules
to the Registration Statement, which have not been described or
filed as required.
(c) The Company has delivered, or will as promptly as
practicable deliver, to the Investor complete conformed copies of
the Registration Statement and of each consent and certificate of
experts filed as a part thereof, and conformed copies of the
Registration Statement (without exhibits) and the Base Prospectus
and the Prospectus Supplement, as amended or supplemented, in such
quantities and at such places as such Investor reasonably requests.
Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing,
any offering material in connection with the offering and sale of
the Stock other than the Base Prospectus, the Prospectus
Supplement, the Registration Statement, copies of the documents
incorporated by reference therein and any other materials permitted
by the Securities Act.
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement, the Base Prospectus and
the Prospectus Supplement, and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, except where the failure so to qualify or to be in good
standing, individually or in the aggregate, would not have a
material adverse effect on the assets, properties, condition,
financial or otherwise, or in the results of operations of the
Company, or materially impair the Company’s ability to
perform its obligations under this Agreement (a “ Material
Adverse Effect ”).
(e) The Company has the requisite power and authority
to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated
hereunder have been duly authorized by all necessary corporate
action on the part of the Company, and no further consent or action
is required by the Company, its Board of Directors or its
stockholders. This Agreement has been duly executed by the Company
and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(f) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) conflict
with or violate any provision of the Company’s amended and
restated certificate of incorporation or amended and restated
bylaws, (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, or give any rights to receipt of any
portion of the proceeds from the sale of the Stock pursuant to, any
agreement, credit facility, debt or other instrument (evidencing a
Company debt or otherwise) to which the Company is a party or by
which any property or asset of the Company is bound or affected, or
(iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company is subject
(including federal and state
securities laws and regulations) and the rules and regulations of
any self-regulatory organization to which the Company or its
securities are subject, or by which any property or asset of the
Company is bound or affected except in the case of clauses
(ii) and (iii), such as would not, individually or in the
aggregate, result in a Material Adverse Effect.
(g) No consent, approval, authorization, filing with
or order of or registration with, any court or governmental agency
or body is required in connection with the transactions
contemplated herein, except such as have been or will be obtained
or made under the Securities Act or the Exchange Act and such as
may be required under the securities, or blue sky, laws of any
jurisdiction in connection with the offer and sale of the Stock by
the Company in the manner contemplated herein and in the Prospectus
Supplement.
(h) The Stock to be issued and sold by the Company
hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and nonassessable and free and clear
of all liens (other than any liens created by or imposed by the
Investor or through no action of the Company) and free of any
preemptive or similar rights. The Stock conforms in all material
respects to the description thereof contained in the Registration
Statement, the Base Prospectus and the Prospectus Supplement.
(i) The Company has an authorized capitalization as
set forth in the Registration Statement, the Base Prospectus and
the Prospectus Supplement, all of the issued and outstanding shares
of Common Stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, have been
issued in compliance with federal and state securities laws, and
conform in all material respects to the description thereof
contained in the Registration Statement, the Base Prospectus and
the Prospectus Supplement. There are no outstanding options,
warrants, or other
|
