COMMON STOCK PURCHASE
AGREEMENT
This COMMON
STOCK PURCHASE AGREEMENT (the “ Agreement
”), is made as of September 29, 2008 by and between
Repros Therapeutics Inc., a Delaware corporation, with its
principal executive offices located at 2408 Timberloch Place,
Suite B-7, The Woodlands, Texas 77380 (the “
Company ”), and WR Multi Strategy Master Fund, Ltd.
(the “ Investor ”).
A. The
Company and the Investor desire to enter into this transaction to
purchase and sell the securities set forth herein pursuant to a
currently effective shelf registration statement on Form S-3, which
has at least 2,000,000 unallocated shares of common stock, $0.001
par value per share, of the Company (the “ Common
Stock ”) registered thereunder (Registration Number
333-137109) (the “ Registration Statement ”),
which Registration Statement has been declared effective in
accordance with the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the “
Act ”), by the United States Securities and Exchange
Commission (the “ Commission ”).
B. The
Investor wishes to purchase from the Company, and the Company
wishes to sell to the Investor, upon the terms and conditions
stated in this Agreement, 42,308 shares of Common Stock at a
purchase price of $6.50 per share.
NOW,
THEREFORE , the Company and the Investor hereby agree as
follows:
1. As of the
Closing (as defined below) and subject to the terms and conditions
hereof, the Company and the Investor agree that the Investor will
purchase from the Company and the Company will issue and sell to
the Investor 42,308 shares of common stock, $0.001 par value per
share (the “ Shares ”), of the Company for a
purchase price of $6.50 per share, or an aggregate purchase price
of Two Hundred Seventy Five Thousand Two and No/100 Dollars
($275,002.00) (the “ Purchase Price
”).
2. The
completion of the purchase and sale of the Shares shall occur at a
closing (the “ Closing ”) which is expected to
occur at or about 7:00 a.m., Houston time, on October 3, 2008
(unless another time or date shall be agreed upon by the Company
and the Investor). At the Closing, (i) the Investor shall pay
its Purchase Price to the Company for the Shares to be issued and
sold to such Investor at the Closing, by wire transfer of
immediately available funds in accordance with the Company’s
written wire instructions, and (ii) unless otherwise requested
by the Investor and agreed to by the Company, the Shares purchased
by the Investor will be delivered by electronic book-entry at The
Depository Trust Company (“ DTC ”), registered
in the Investor’s name and address as set forth below, and
will be released by Computershare Trust Company, Inc., the
Company’s transfer agent (the “ Transfer Agent
”), to the Investor at the Closing. After the execution of
this Agreement by the Investor, the Investor shall 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. The Shares shall
be free of restrictive legends.
3. The
offering and sale of the Shares are being made pursuant to the
Registration Statement and the Prospectus (as such terms are
defined below). The Investor acknowledges that the Company intends
to enter into agreements in substantially the same form of this
Agreement (and at a price per share no less than the price per
share to be paid by the Investor pursuant to this Agreement) on or
about the date hereof with certain other investors and intends to
offer and sell (the “ Offering ”) up to a total
of 2,000,000 shares of its common stock pursuant to the
Registration Statement and the Prospectus in the Offering, plus an
additional number of shares that may be available under an
immediately effective registration statement (the “
Supplemental Registration Statement ”) registering an
additional number of shares equal to twenty percent (20%) of the
remaining shares under the Registration Statement at the time of
the final takedown pursuant to Rule 462(b)(3) of the
Act.
4. The
Company has delivered to the Investor and shall file with the
Commission a prospectus and prospectus supplement (collectively the
“ Prospectus ”), which form a part of the
Registration Statement, reflecting the offering of the Shares in
conformity with the Act, including Rule 424(b) thereunder. The
Investor agrees that such Prospectus may be delivered to it in
electronic form.
5. The
Company hereby makes the following representations, warranties and
covenants to the Investor:
(a) The
Company is an entity duly incorporated, validly existing and in
good standing under the laws of the state of Delaware, with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. The
Company is not in violation of any of the provisions of its
certificate of incorporation or bylaws. For purposes of this
Agreement, (i) “ Subsidiary ” means any Person
organized in the United States in which the Company directly or
indirectly owns 50% or more of the capital stock or holds 50% or
more of the equity or similar interest and (ii) “
Person ” means an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind. The Company has no Subsidiaries.
(b) The
Company has the requisite corporate 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 hereby have
been duly authorized by all necessary action on the part of the
Company and no further consent or action is required by the
Company, its board of directors or its shareholders. This Agreement
has been (or upon delivery will be) 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 any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, fraudulent
conveyance or other similar laws affecting the enforcement of
creditors’ rights generally or by general principles of
equity.
(c) No
shareholder approval is required for the Company to enter into this
Agreement or to consummate any of the transactions contemplated
hereby, including the sale and issuance of the Shares. Neither the
Company, nor any of its affiliates, nor any Person acting
on
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its or 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 cause this offering of the Shares to be
integrated with prior offerings by the Company for purposes of any
applicable shareholder approval provisions, including, without
limitation, under the rules and regulations of any exchange or
automated quotation system on which any of the securities of the
Company are listed or designated, nor will the Company take any
action or steps that would cause the Offering to be integrated with
other offerings.
(d) 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 certificate of
incorporation or bylaws, (ii) subject to obtaining the
Required Approvals (as defined below), 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, any agreement, credit
facility, debt or other instrument (evidencing a Company debt or
otherwise) or other understanding 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 each case of clause (ii) or (iii) such as would
not, individually or in the aggregate, have a material adverse
effect on the business, properties, financial condition or results
of operations of the Company as set forth in the Registration
Statement and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the Closing date) or materially
impair the Company’s ability to perform its obligations under
this Agreement (a “ Material Adverse Effect
”)
(e) The
Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of this
Agreement, other than (i) the required filing of the
Prospectus and the Registration Statement, (ii) applicable
state securities law filings, (iii) the required filings with
The Nasdaq Global Market (the “ Trading Market
”), and (iv) in all other cases, where the failure to
obtain such consent, waiver, authorization or order, or to give
such notice or make such filing or registration would not,
individually or in the aggregate, have a Material Adverse Effect
(clauses (i), (ii) and (iii) collectively, the “
Required Approvals ”). The Company has obtained all
the Required Approvals.
(f) The
Shares are duly authorized and, when issued and paid for in
accordance with the terms hereof, will be duly and validly issued,
fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal, and conform to the
description of Common Stock contained in the Prospectus, and there
are no restrictions on the subsequent transfers of the Shares. Upon
receipt of the Shares, the Investor will have good and marketable
title to such Shares. The Company has reserved a sufficient number
of duly authorized shares of common stock to issue all of the
Shares. At the Closing, the Shares shall have been approved for
quotation on the Trading Market.
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(g) The
Registration Statement (including any prospectus and prospectus
supplement and all information or documents incorporated by
reference therein) was declared effective by the Commission on
September 15, 2006. The Registration Statement is effective on
the date hereof and the Company has not received any notice that
the Commission has issued or intends to issue a stop-order with
respect to the Registration Statement or that the Commission
otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or has
threatened in writing to do so. The term “ Registration
Statement ” as used in this Agreement means the
Registration Statement at the time it became effective and as
supplemented or amended from time to time, including all financial
schedules and exhibits thereto and all documents incorporated by
reference or deemed to be incorporated by reference therein. The
Registration Statement, as of the time it was declared effective,
and any amendments or supplements thereto as of the effective date
thereof, and any prospectus included therein complied, and the
Prospectus complies, as of the applicable filing date thereof, in
all material respects with the requirements of the Act and the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “ Exchange
Act ”), as applicable, and none of such Registration
Statement nor any such Prospectus contains or, at the time of
filing with the Commission contained, any untrue statement of
material fact or omits or, at the time of filing with the
Commission, omitted to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The offering, sale and issuance of the Shares to the
Investor are registered under the Act by the Registration Statement
and the Supplemental Registration Statement, and no action taken or
omitted to be taken by the Company shall cause such Shares not to
be freely transferable and tradable by the Investor without
restriction. The Shares are being issued as described in the
Registration Statement.
(h) The
Company has not, and to its knowledge no one acting on its behalf
has, taken, directly or indirectly, any action designed to cause or
to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of
the Shares.
(i) The
Company has not, in the twelve (12) months preceding the date
hereof, received notice from the Trading Market to the effect that
the Company is not in compliance with the listing or maintenance
requirements thereof. The issuance and sale of the Shares hereunder
complies in all material respects with the rules or regulations of
the Trading Market.
(j) Since
the date of the Company’s latest audited financial statements
included in the SEC Reports (as defined below) and except as
disclosed in the SEC Reports or the Registration Statement,
(i) there has been no event, occurrence or development that,
individually or in the aggregate, has had or that could reasonably
be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in
the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or required
to be disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting or the identity of
its auditors, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its
shareholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock, and
(v) the Company has not issued any equity securities to any
officer or director, except pursuant to existing Company stock
option and employee plans.
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(k) The
Company acknowledges and agrees that the Investor is acting solely
in the capacity of an arm’s length purchaser with respect to
this Agreement and the transactions contemplated hereby. The
Company further acknowledges that the Investor is not acting as a
financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions
contemplated hereby and that any statement made by the Investor or
any of its representatives or agents in connection with this
Agreement and the transactions contemplated hereby is not advice or
a recommendation and is merely incidental to the Investor’s
purchase of the Shares and has not been relied upon by the Company,
its officers or directors in any way.
(l) Other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or
of which property of the Company is the subject which, if
determined adversely to the Company would, individually or in the
aggregate, have a Material Adverse Effect on the financial
position, shareholders’ equity or results of operations of
the Company and, to the best of Company’s knowledge, no such
proceedings are threatened. Neither the Company, nor any director
or officer thereof, is or has been the subject of any action
involving a claim of violation of or liability under federal or
state securities laws or a claim of breach of fiduciary duty, or
any criminal statute during the term of such director or
officer’s tenure with the Company, nor, to the knowledge of
the Company, prior to such tenure that is of a nature that would be
required to be disclosed in the Company’s SEC Reports
pursuant to Item 103 of Regulation S-K with regard to the
Company or Item 401 of Regulation S-K with regard to the
Company’s officer’s or directors. There has not been,
and to the knowledge of the Company, there is not pending or
contemplated, any investigation by the Commission involving the
Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement
filed by the Company under the Exchange Act or the Act.
(m) The
Company possesses all certificates, authorizations and permits
issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct its businesses as
described in the SEC Reports, except where the failure to possess
such certificates, authorizations or permits would not,
individually or in the aggregate, have a Material Adverse Effect
(“ Material Permits ”), and the Company has not
received any written notice of proceedings relating to the
revocation or modification of any Material Permit.
(n) The
Company has filed all reports required to be filed by it under the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two (2) years preceding the date hereof (or such
shorter period as the Company was required by law to file such
material) (the foregoing materials, including the Company’s
proxy statements on Schedule 14A, being collectively referred
to herein as the “ SEC Reports ”) on a timely
basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or
omitted to state a material fact
5
required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in
the SEC Reports, as subsequently amended, comply in all material
respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at
the time of filing. Such financial statements have been prepared in
all material respects in accordance with United States generally
accepted accounting principles applied on a consistent basis during
the periods involved (“ GAAP ”), except as may
be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company as of and
for the dates thereof and the results of operations and cash flows
for the periods then ended, subject, in the case of unaudited
statements, to normal, year-end audit adjustments.
(o) The
Company has, or has rights to use, all patents, patent
applications, trademarks, trademark applications, service marks,
trade names, copyrights, licenses and other similar rights
(collectively, the “ Intellectual Property Rights
”) that are necessary or material for use in connection with
its business as described in the SEC Reports and the Registration
Statement and which the failure to so have would, individually or
in the aggregate, have a Material Adverse Effect. Except as
disclosed in the SEC Reports, the Company has not received a
written notice that the Intellectu
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