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Exhibit
10.24
CORCEPT THERAPEUTICS
INCORPORATED
SECURITIES PURCHASE
AGREEMENT
This Securities Purchase
Agreement (“ Agreement ”) is made as of
March 14, 2008 (the “ Effective Date ”), by
and among Corcept Therapeutics Incorporated, a Delaware corporation
(the “ Company ”), and each of those persons and
entities, severally and not jointly, listed as a Purchaser on the
Schedule of Purchasers attached as Exhibit A hereto (the
“ Schedule of Purchasers ”). Such persons and
entities are hereinafter collectively referred to herein as “
Purchasers ” and each individually as a “
Purchaser ”.
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 each Purchaser (severally and not
jointly) hereby agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF
SECURITIES.
The Company has authorized
the sale and issuance of 8,923,210 shares of its Common Stock, par
value $0.001 per share (the “ Common Stock ”)
and warrants in the form of Exhibit B hereto (the “
Warrants ”) to purchase an aggregate of 4,461,599
shares of Common Stock (each a “ Warrant ” and
collectively the “ Warrants ”), on the terms and
subject to the conditions set forth in this Agreement. The shares
of Common Stock sold hereunder at the Closing (as defined below)
shall be referred to as the “ Shares .” The
Shares and the Warrants are referred to collectively as the “
Securities ”.
SECTION 2. AGREEMENT TO SELL AND
PURCHASE THE SECURITIES.
2.1 Sale of Securities
. At the Closing (as defined in Section 3), the Company will
sell to each Purchaser, and each Purchaser will purchase from the
Company, (a) the number of Shares set forth opposite such
Purchaser’s name on the Schedule of Purchasers at a purchase
price of $2.77 per Share and (b) a Warrant to purchase the
number of shares of Common Stock set forth opposite such
Purchaser’s name on the Schedule of Purchasers (such shares
of Common Stock, the “ Underlying Shares ”),
which Warrant shall have an exercise price equal to $2.77 per
Underlying Share, and which Warrant shall have a purchase price
equal to $0.125 per Underlying Share.
2.2 Separate Agreement
. Each Purchaser shall severally, and not jointly, be liable for
only the purchase of the Securities that appear on the Schedule of
Purchasers that relate to such Purchaser. The Company’s
agreement with each of the Purchasers is a separate agreement, and
the sale of Securities to each of the Purchasers is a separate
sale. The obligations of each Purchaser hereunder are expressly not
conditioned on the purchase by any or all of the other Purchasers
of the Securities such other Purchasers have agreed to
purchase.
SECTION 3. CLOSING AND
DELIVERY.
3.1 Closing . The
closing of the purchase and sale of the Securities (which
Securities are set forth in the Schedule of Purchasers) pursuant to
this Agreement (the “ Closing ”) shall be held
on March 28, 2008 at the offices of Latham & Watkins
LLP, 140 Scott Drive, Menlo Park, California 94025, or on such
other date and place as may be agreed to by the Company and the
Purchasers. At or prior to the Closing, each 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 Issuance of the
Securities at the Closing. At the Closing, the Company shall
issue to each Purchaser (a) stock certificates registered in
the name of such Purchaser, or in such nominee name(s) as
designated by such Purchaser, representing the number of Shares to
be purchased by such Purchaser at such Closing as set forth in the
Schedule of Purchasers against payment of the purchase price for
such Shares and (b) a Warrant registered in the name of such
Purchaser, or in such nominee name(s) as designated by such
Purchaser, representing the number of Underlying Shares as set
forth in the Schedule of Purchasers. The name(s) in which the stock
certificates and Warrant are to be issued to each Purchaser are set
forth in the Investor Questionnaire and the Selling Stockholder
Notice and Questionnaire in the form attached hereto as Appendix I
and II (the “ Investor Questionnaire ” and the
“ Selling Stockholder Questionnaire ”,
respectively), as completed by each Purchaser, which shall be
provided to the Company no later than the Closing Date. The stock
certificates and Warrants shall be delivered to each Purchaser
promptly following the Closing Date, but in any event within 10
business days following the Closing Date.
3.3 Delivery of the
Registration Rights Agreement. At the Closing, the Company and
each Purchaser shall execute and deliver the Registration Rights
Agreement in the form attached hereto as Appendix III (the “
Registration Rights Agreement ”), with respect to the
registration of the Shares and the Underlying Shares under the
Securities Act of 1933, as amended (the “ Securities
Act ”).
SECTION 4. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on the
Schedule of Exceptions delivered to the Purchasers concurrently
with the execution of this Agreement (the “ Schedule of
Exceptions ”), the Company hereby represents and warrants
as of the date hereof to, and covenants with, the Purchasers 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.
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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, the Warrant, the Registration Rights
Agreement and the Management Rights Agreement (as defined below and
collectively, the “ Transaction Documents ”),
sell and issue the Securities and carry out and perform all of its
obligations under the Transaction Documents. Each Transaction
Document 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
performance and (iii) with respect to the Registration Rights
Agreement, as rights to indemnity or contribution may be limited by
state or federal laws or public policy underlying such laws. The
execution and delivery of the Transaction Documents do not, and the
performance of the Transaction Documents and the compliance with
the provisions of the Transaction Documents and the issuance, sale
and delivery of the Securities and the Underlying 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 Capital
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.
4.3 Issuance and Delivery
of the Securities. The Securities have been duly authorized
and, when issued and paid for in compliance with the provisions of
this Agreement, will be validly issued, fully paid and
nonassessable. The Underlying Shares have been duly authorized and,
upon exercise of the Warrants in accordance with their terms,
including payment of the exercise price therefore, will be validly
issued, fully paid and nonassessable. The issuance and delivery of
the Securities 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 each Purchaser in Section 5, the
offer and issuance by the Company of the Securities 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
Securities and Exchange Commission (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
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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 and are fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of or
subject to any preemptive right or other rights to subscribe for or
purchase securities. The authorized capital stock of the Company
consists of 140,000,000 shares of common stock and 10,000,000
shares of undesignated Preferred Stock. As of the Effective Date,
there are no shares of Preferred Stock issued and outstanding and
there are 39,549,954 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 capital stock reserved
for issuance, except that, as of the Effective Date, there are
3,975,936 shares of Common Stock reserved for issuance pursuant to
options outstanding on such date pursuant to the Company’s
2000 Stock Option Plan and 2004 Equity Incentive Plan. There are
1,591,636 shares of Common Stock available for future issuance
under the Company’s 2004 Equity Incentive Plan and no shares
of Common Stock available for future issuance under the
Company’s 2000 Stock Option 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 or the Warrant 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. Except as disclosed in the SEC Documents, there are
no agreements or arrangements under which the Company or any of its
Subsidiaries is obligated to register the sale of any of their
securities under the Securities Act. There are no securities or
instruments containing anti-dilution provisions that will be
triggered by the issuance of the Securities or the Underlying
Shares. The Company has made available upon request of the
Purchasers, a true, correct and complete copy of the
Company’s Certificate of Incorporation, as amended and as in
effect on the date hereof (the “ Certificate of
Incorporation ”), and the Company’s Bylaws, as
amended and as in effect on the date hereof (the “
Bylaws ”).
4.6 Litigation . There
are no legal or governmental actions, suits or other proceedings
pending or, to the Company’s knowledge, threatened against
the Company before or by any court, regulatory body or
administrative agency or any other governmental agency or body,
domestic, or foreign, which actions, suits or proceedings,
individually or in the aggregate, could
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reasonably be expected to have a Company
Material Adverse Effect. The Company is not a party to or subject
to the provisions of any injunction, judgment, decree or order of
any court, regulatory body, administrative agency or other
governmental agency or body that might have a Company Material
Adverse Effect.
4.7 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 or the
Registration Rights Agreement except for (a) the filing of a
Form D with the Commission under the Securities Act and 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 approval by the Principal Market of the listing
of the Shares and the Underlying Shares and (c) the filing of
one or more registration statements and all amendments thereto with
the Commission as contemplated by the Registration Rights
Agreement.
4.8 No Default or
Consents . Neither the execution, delivery or performance of
the Transaction Documents by the Company nor the consummation of
any of the transactions contemplated thereby (including, without
limitation, the issuance and sale by the Company of the Securities
and the Underlying Shares) will give rise to a right to terminate
or accelerate the due date of any payment due under, or conflict
with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any
consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of
the Company pursuant to the terms of, any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a
party or by which the Company or any of its properties or
businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the
Company or violate any provision of the Certificate of
Incorporation or the Bylaws, except in each case as would not
cause, either individually or in the aggregate, a Company Material
Adverse Effect, and except for such consents or waivers which have
already been obtained and are in full force and effect.
4.9 No Material Adverse
Change. Since December 31, 2006, except as disclosed in
the SEC Documents, there have not been any changes in the assets,
liabilities, financial condition or operations of the Company from
that reflected in the Financial Statements for the year ended
December 31, 2006, except changes which have not had, either
individually or in the aggregate, a Company Material Adverse
Effect.
4.10 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 Securities.
4.11 No Integrated
Offering. None of the Company, its Subsidiaries, any of their
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 Securities under the Securities
Act or cause this offering of the
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Securities 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.
4.12 Board of
Directors . The Company shall take all necessary acts to have
one designee (the “Longitude Capital Board Member”) of
Longitude Venture Partners, L.P. (“Longitude Capital”)
nominated for election to the Company’s Board of Directors,
in all cases subject to compliance with relevant Nasdaq rules and
regulations and subject to the approval of such nominees by the
Nominating and Corporate Governance Committee of the Board of
Directors. If the Nominating and Corporate Governance Committee of
the Board of Directors does not approve any proposed Longitude
Capital Board Member, Longitude Capital shall be entitled to
propose another candidate who shall be reasonably acceptable to the
Company and the Nominating and Corporate Governance Committee of
the Board of Directors. The Company hereby agrees that Patrick G.
Enright will be elected to the Board as the Longitude Capital Board
Member coincident with the Closing. The Company shall use its best
efforts, including preparation of proxy materials and solicitation
of the Company’s stockholders, to have the Longitude Capital
Board Member elected whenever its board seat comes up for election
or for reelection. The Company’s obligations under this
Section 4.12 with respect to the Longitude Capital Board
Member shall terminate in their entirety if at any time Longitude
Capital beneficially owns less than 5% of the Company’s
issued and outstanding Common Stock (including shares of Common
Stock issuable upon exercise of Warrants), and in such case, the
Longitude Capital Board Member shall resign from the Board
effective immediately.
4.13 Sarbanes-Oxley
Act . To the knowledge of the executive officers of the
Company, the Company is in material compliance with the
requirements of the Sarbanes-Oxley Act of 2002 that are effective
and applicable to the Company as of the date hereof, and the rules
and regulations promulgated by the Commission thereunder that are
effective and applicable to the Company as of the date
hereof.
4.14 Patents and
Trademarks. To the knowledge of the executive officers of the
Company, the Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and
other similar rights that are necessary or material for use in
connection with their respective businesses as described in the SEC
Documents and which the failure to so have could, individually or
in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect (collectively, the “ Intellectual
Property Rights ”). Except as set forth in the SEC
Documents, neither the Company nor any Subsidiary has received a
written notice that the Intellectual Property Rights used by the
Company or any Subsidiary violates or infringes upon the rights of
any Person. Except as set forth in the SEC Documents, to the
knowledge of the executive officers of the Company, all such
Intellectual Property Rights are enforceable and there is no
existing infringement by another Person of any of the Intellectual
Property Rights.
4.15 Listing and
Maintenance Requirements . Except as specified in the SEC
Documents and the Schedule of Exceptions, the Company has not, in
the two years preceding the date hereof, received notice from the
Principal Market to the effect that the Company is not in
compliance with the listing or maintenance requirements
thereof. Except as disclosed in the SEC Documents and the
Schedule of Exceptions, the Company is in compliance with the
listing and
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maintenance requirements for continued
listing of the Common Stock. The issuance and sale of the
Securities under this Agreement does not contravene the rules and
regulations of the Principal Market and no approval of the
stockholders of the Company thereunder is required for the Company
to issue and deliver to the Purchasers the Securities.
4.16 Disclosure. The
Company understands and confirms that the Purchasers will rely on
the foregoing representations and covenants in effecting
transactions in securities of the Company. To the knowledge of
the executive officers of the Company, all due diligence materials
regarding the Company, its business and the transactions
contemplated hereby, furnished by or on behalf of the Company to
the Purchasers upon their request are, when taken together with the
SEC Documents, true and correct in all material respects and do not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made,
not misleading.
4.17 Contracts .
(a) Each indenture, contract, lease, mortgage, deed of trust,
note agreement, loan or other agreement or instrument of a
character that is required to be described or summarized in the SEC
Reports or to be filed as an exhibit to the SEC Reports under the
Securities Act and the rules and regulations promulgated thereunder
(collectively, the “Material Contracts”) is so
described, summarized or filed.
(b) The Material Contracts to
which the Company is a party have been duly and validly authorized,
executed and delivered by the Company and constitute the legal,
valid and binding agreements of the Company, enforceable by and
against the Company in accordance with their respective terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
relating to enforcement of creditors’ rights generally, and
general equitable principles relating to the availability of
remedies, except as rights to indemnity or contribution may be
limited by federal or state securities laws.
4.18 Properties and
Assets . The Company has good and marketable title to all the
properties and assets described as owned by it in the
Company’s consolidated financial statements, free and clear
of all liens, mortgages, pledges or encumbrances of any kind except
(i) those, if any, reflected in such consolidated financial
statements or (ii) those that are not material in amount and
do not adversely affect the use made and proposed to be made of
such property by the Company. The Company holds its leased
properties under valid and binding leases. The Company owns or
leases all such properties as are necessary to its operations as
now conducted.
4.19 Compliance . The
Company has not been advised, nor does it have any reason to
believe, that it is not conducting its business in compliance with
all applicable laws, rules and regulations of the jurisdictions in
which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and
regulations, except where failure to be so in compliance would not
have a Company Material Adverse Effect.
4.20 Taxes . The
Company has filed on a timely basis (giving effect to extensions)
all required federal, state and foreign income and franchise tax
returns and has paid or accrued all taxes shown as due thereon, and
the Company does not have any knowledge of a tax
deficiency
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that has been or might be asserted or
threatened against it that could have a Company Material Adverse
Effect. All tax liabilities accrued through the date hereof have
been adequately provided for on the books of the
Company.
4.21 Transfer Taxes .
On the Closing Date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the
sale and transfer of the Securities to be sold to the Purchaser
hereunder will have been fully paid or provided for by the Company
and all laws imposing such taxes will have been fully complied
with.
4.22 Investment
Company . The Company is not an “investment
company” or an “affiliated person” of, or
“promoter” or “principal underwriter” for
an investment company, within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations of the
Commission promulgated thereunder.
4.23 Insurance . The
Company maintains insurance underwritten by insurers of recognized
financial responsibility, of the types and in the amounts that the
Company reasonably believes is adequate for businesses, including,
but not limited to, Directors’ and Officers’ liability
insurance and insurance covering all real and personal property
owned or leased by the Company against theft, damage, destruction,
acts of vandalism and all other risks customarily insured against,
with such deductibles as are customary for companies in the same or
similar business, all of which insurance is in full force and
effect.
4.24 Price of Common
Stock . The Company has not taken, and will no
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