Exhibit 4.1
______________________________________________________________________________
STOCK PURCHASE AGREEMENT
by and among
Pharmacyclics, Inc., as Issuer and
Company
and
the other parties named herein, as
Purchasers
February 18, 2009
______________________________________________________________________________
Table of Schedules
Schedule
1
Purchasers
2
STOCK PURCHASE AGREEMENT (the "
Agreement ") dated as of February 18, 2009, by and
among Pharmacyclics, Inc., a Delaware corporation (the "
Company "), and each of the other persons listed on
Schedule 1 hereto (each is individually referred to as a "
Purchaser " and collectively, the " Purchasers
").
RECITALS:
WHEREAS, subject to the terms and
conditions set forth in this Agreement and pursuant to Section 4(2)
of the Securities Act of 1933, as amended (the " Securities
Act ") or Regulation S promulgated thereunder (" Regulation
S "), the Company desires to issue and sell to the Purchasers,
and the Purchasers, severally and not jointly, desire to purchase
from the Company up to __________ shares (the "Shares") of the
Company's common stock, par value $0.0001, as more fully set forth
herein;
WHEREAS, certain of the
Purchasers are currently shareholders of Pacific Biopharma Group,
Ltd., a Cayman Islands company (" PBG ");
WHEREAS, PBG was in negotiations
with Brown University concerning the entering into of a licensing
agreement whereby Brown University would license Nifurtimox and
Nitrofuran Derivatives to PBG (the " License Agreement
");
WHEREAS, PBG was in negotiations
with China Medical City (" CMC ") concerning the entering
into of a joint-venture whereby (i) CMC would provide $8.0 million
in operating expenses over 2.5 years; charge minimal rent; and
provide interest free equipment and building improvement loans to
the joint-venture and (ii) PBG would need to invest $2.0 million
over three years in order to access these incentives (the "
Joint-Venture Terms ");
NOW THEREFORE, in consideration
of the mutual promises and representations, warranties, covenants
and agreements set forth herein, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I - PURCHASE AND SALE
1.1 Purchase and
Sale . On the terms
and subject to the conditions set forth in this Agreement, at the
Closing (as defined in Section 2.2(a)), the Company will sell and
each of the Purchasers will purchase the Shares in the amounts set
forth on the respective signature pages of each Purchaser attached
hereto.
ARTICLE II - PURCHASE PRICE AND
CLOSING
2.1 Purchase
Price . The purchase
price to be paid shall be $0.93 per Share, and the aggregate price
to be paid by each Purchaser to the Company to acquire the Shares
shall be the amount set forth on such Purchaser's signature page
attached hereto(the " Purchase Price ").
2.2 The Closing
.
- The closing of
the transactions contemplated under this Agreement (the "
Closing ") will take place as of the date hereof remotely
via exchange of documents and
3
signatures, or at such other place or day as may
be mutually acceptable to the Purchasers and the Company. The date
on which the Closing occurs is the " Closing Date
".
- At the
Closing, each Purchaser shall purchase from the Company, and the
Company shall issue and sell to each Purchaser, Shares in an amount
set forth on such Purchaser's signature page attached
hereto.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company's representations and
warranties below are qualified in their entirety by the SEC
Documents (as defined in Section 3.6). The Company represents and
warrants to the Purchasers as follows:
3.1 Corporate
Existence and Power . The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the state
of Delaware and has all corporate powers required to carry on its
business as now conducted. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where the character of the property owned or leased by
it or the nature of its activities makes such qualification
necessary, except for those jurisdictions where the failure to be
so qualified would not have or result in (i) a material adverse
effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the business or
financial condition of the Company, or (iii) a material adverse
effect on the Company's ability to perform in any material respect
on a timely basis its obligations under this Agreement (any of (i),
(ii) or (iii), a " Material Adverse Effect "). True and
complete copies of the Company's Certificate of Incorporation, as
amended (the " Certificate "), and Bylaws, as amended (the "
Bylaws "), as currently in effect and as will be in effect
on the Closing Date (collectively, the " Certificate and
Bylaws "), have been filed as exhibits to the Company's SEC
Documents (as defined below).
3.2 Corporate
Authorization . The
execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated
hereby (including, but not limited to, the sale and delivery of the
Shares) have been duly authorized, and no additional corporate or
stockholder action is required for the approval thereof. This
Agreement has been duly executed and delivered and constitutes the
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as may be
limited by bankruptcy, reorganization, insolvency, moratorium and
similar laws of general application relating to or affecting the
enforcement of rights of creditors, and except as enforceability of
its obligations hereunder are subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3.3 Charter, Bylaws
and Corporate Records . The minute books of the Company contain, in all
material respects, complete and accurate records of all meetings
and other corporate actions of the board of directors, committees
of the board of directors, incorporators and stockholders of the
Company to the date hereof. All material corporate decisions and
actions have been validly made or taken. All corporate books,
including without limitation the share transfer register, comply
with applicable laws and regulations in all material respects and
have been regularly updated. Such books correctly reflect all the
decisions of the stockholders in all material respects.
4
3.4 Governmental
Authorization . Except as otherwise specifically contemplated in
this Agreement and except for: (i) the filings referenced in
Section 5.1; (ii) the filing of a Form D, if applicable, with
respect to the Shares under Regulation D under the Securities Act;
(iii) the application to Nasdaq each trading market for the listing
of the Shares for trading thereon; and (iv) any filings required
under state securities laws that are permitted to be made after the
date hereof, the execution, delivery and performance by the Company
of this Agreement and the consummation of the transactions
contemplated hereby (including, but not limited to, the sale and
delivery of the Shares) by the Company require no action
(including, without limitation, stockholder approval) by or in
respect of, or filing with, any governmental or regulatory body,
agency, official or authority (including, without limitation,
Nasdaq), except as would not cause a Material Adverse
Effect.
3.5
Non-Contravention . The execution, delivery and performance by the
Company of this Agreement and the consummation by the Company of
the transactions contemplated hereby (including the issuance of the
Shares) do not and will not (a) contravene or conflict with the
Certificate and Bylaws of the Company or any material agreement to
which the Company is a party or by which it is bound; (b)
contravene or conflict with or constitute a violation of any
material provision of any law, regulation, judgment, injunction,
order or decree binding upon or applicable to the Company; (c)
constitute a default (or would constitute a default with notice or
lapse of time or both) under or give rise to a right of
termination, cancellation or acceleration or loss of any benefit
under any material agreement, contract or other instrument binding
upon the Company or under any material license, franchise, permit
or other similar authorization held by the Company; or (d) result
in the creation or imposition of any Lien (as defined below) on any
asset of the Company. For purposes of this Agreement, the term "
Lien " means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, claim or encumbrance of any kind
in respect of such asset.
3.6 SEC
Documents . The
Company is obligated under the Securities Exchange Act of 1934, as
amended (the " Exchange Act ") to file reports pursuant to
Sections 13 or 15(d) thereof (all such reports filed or required to
be filed by the Company, including all exhibits thereto or
incorporated therein by reference, and all documents filed by the
Company under the Securities Act hereinafter called the " SEC
Documents "). The Company has filed all reports or other
documents required to be filed under the Exchange Act. All SEC
Documents filed by the Company (i) were prepared in all material
respects in accordance with the requirements of the Exchange Act
and (ii) did not at the time they were filed (or, if amended or
superseded by a filing prior to the date hereof, then on the date
of such filing) contain any untrue statement of a material fact or
omit to state a material fact 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
Company has previously made available to each Purchaser a correct
and complete copy of each report which the Company filed with the
Securities and Exchange Commission (the " SEC " or the "
Commission ") under the Exchange Act for any period ending
on or after December 31, 2007 (the " Recent Reports "). None
of the information about the Company which has been disclosed to
the Purchasers herein or in the course of discussions and
negotiations with respect hereto which is not disclosed in the
Recent Reports is or was required to be so disclosed, and no
material non-public information has been disclosed to the
Purchasers.
5
3.7 Compliance with
Law . The Company is
in compliance and has conducted its business so as to comply with
all laws, rules and regulations, judgments, decrees or orders of
any court, administrative agency, commission, regulatory authority
or other governmental authority or instrumentality, domestic or
foreign, applicable to their operations, the violation of which
would cause a Material Adverse Effect. There are no judgments or
orders, injunctions, decrees, stipulations or awards (whether
rendered by a court or administrative agency or by arbitration),
including any such actions relating to affirmative action claims or
claims of discrimination, against the Company or against any of
their properties or businesses that would be reasonably likely to
have a Material Adverse Effect.
3.8 Litigation
. Except as disclosed in
the Recent Reports, there is no action, suit, proceeding, judgment,
claim or investigation pending or, to the best knowledge of the
Company, threatened against the Company which could, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Company or which in any manner challenges or
seeks to prevent, enjoin, materially alter or materially delay any
of the transactions contemplated hereby, and, to the knowledge of
the Company, there is no basis for the assertion of any of the
foregoing.
3.9
Capitalization .
- The authorized
capital stock of the Company consists of One Hundred Million
(100,000,000) shares of common stock, $0.0001 par value per share,
of which 26,049,846 shares are issued and outstanding as of the
date hereof, and one million (1,000,000) shares of preferred stock,
issuable in one or more classes or series, with such relative
rights and preferences as the Board of Directors may determine,
none of which are issued and outstanding.
- All shares of
the Company's issued and outstanding capital stock have been duly
authorized, are validly issued and outstanding, and are fully paid
and nonassessable. No securities issued by the Company from the
date of its incorporation to the date hereof were issued in
violation of any statutory or common law preemptive rights. There
are no dividends which have accrued or been declared but are unpaid
on the capital stock of the Company. All material taxes required to
be paid by Company in connection with the issuance and any
transfers by the Company of the Company's capital stock have been
paid. All material permits or authorizations required to be
obtained from or registrations required to be effected with any
Person in connection with any and all issuances of securities of
the Company from the date of the Company's incorporation to the
date hereof have been obtained or effected, and all securities of
the Company have been issued in accordance with the provisions of
all applicable securities or other laws except as could not cause a
Material Adverse Effect.
- The Shares
have been duly authorized, and upon consummation of the
transactions contemplated by this Agreement, will be validly
issued, fully paid and non-assessable.
3.10 Brokers
. No broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions contemplated
by this Agreement, based upon any arrangement made by or on behalf
of the Company, which would make any Purchaser liable for any fees
or commissions.
6
3.11 Securities
Laws . Neither the
Company nor any agent acting on behalf of the Company has taken or
will take any action which might cause this Agreement or the Shares
to violate the Securities Act or the Exchange Act or any rules or
regulations promulgated thereunder, as in effect on the Closing
Date. Assuming that all of the representations and warranties of
the Purchasers set forth in Article IV are true, the offer and sale
of the Shares is being conducted and completed in compliance with
the Securities Act. All shares of capital stock and other
securities issued by the Company prior to the date hereof have been
issued in transactions that were either registered offerings or
were exempt from the registration requirements under the Securities
Act and all applicable state securities or " blue sky " laws
and in compliance in all material respects with all applicable
corporate laws, except as could not cause a Material Adverse
Effect.
3.12 Disclosure
. No representation or
warranty made by the Company in this Agreement, contains any untrue
statement of a material fact, or omits to state a material fact
necessary to make the statements or facts contained herein or
therein not misleading in light of the circumstances under which
they were furnished.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF
THE PURCHASERS
Each Purchaser, for itself only,
hereby severally and not jointly, represents and warrants to the
Company as follows:
4.1 Existence and
Power . The
Purchaser, if not a natural person, is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
such Purchaser's organization. Such Purchaser has all powers
required to bind it to the representations, warranties and
covenants set forth herein.
4.2
Authorization . The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser
of the transactions contemplated hereby have been duly authorized,
and no additional action is required for the approval of this
Agreement. This Agreement has been or, to the extent contemplated
hereby, will be duly executed and delivered and constitute a valid
and binding agreement of the Purchaser, enforceable against such
Purchaser in accordance its their terms, except as may be limited
by bankruptcy, reorganization, insolvency, moratorium and similar
laws of general application relating to or affecting the
enforcement of rights of creditors and except that enforceability
of their obligations thereunder are subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
4.3 Investment
. The Purchaser is
acquiring the securities described herein for its own account and
not with a view to, or for sale in connection with, any
distribution thereof, nor with the intention of distributing or
reselling the same, provided, however, that by making the
representation herein, the Purchaser does not agree to hold any of
the securities for any minimum or other specific term and reserves
the right to dispose of the securities at any time in accordance
with or pursuant to a registration statement or an exemption under
the Securities Act. The Purchaser is aware that none of the
securities has been registered under the Securities Act or under
applicable state securities or blue sky laws.
7
4.4 Reliance on
Exemptions . The
Purchaser understands that the Shares are being offered and sold to
such Purchaser in reliance upon specific exemptions from the
registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and
accuracy of, and such Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of such Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility
of such Purchaser to acquire the Shares.
4.5 Experience of
the Purchaser . The
Purchaser, either alone or together with its representatives, has
such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Shares, and has so
evaluated the merits and risks of such investment. The Purchaser is
able to bear the economic risk of an investment in the securities
and, at the present time, is able to afford a complete loss of such
investment.
Each Purchaser that is a U.S.
Person (as defined below) acknowledges that such Purchaser has
received a copy and has had a chance to review such copy of the
Company's Annual Report of Form 10-K for the year ended June 30,
2008 and the Company's Quarterly Reports on Form 10-Q for the
periods ended December 31, 2008 and September 30, 2008.
4.6 General
Solicitation . The
Purchaser is not purchasing the securities as a result of any
advertisement, article, notice or other communication regarding the
securities published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or
any other general solicitation or general advertisement.
4.7 Investment
Representations, Warranties and Covenants by Non-United States
Persons. Each
Purchaser who is a Non-U.S. person (as that term is defined in
Section 4.7(c)) hereby represents and warrants to the Company as
follows:
- This Agreement
is made by the Company with the Purchaser, who is a Non-U.S.
person, in reliance upon such Non-U.S. person's representations,
warranties and covenants made in this Section 4.7.
- Such Non-U.S.
person has been advised and acknowledges that:
-
- the Shares
have not been, and when issued, will not be registered under the
Securities Act, the securities laws of any state of the United
States or the securities laws of any other country;
- in issuing and
selling the Shares to such Non-U.S. person pursuant hereto, the
Company is relying upon the "safe harbor" provided by Regulation S
and/or on Section 4(2) under the Securities Act;
- it is a
condition to the availability of the Regulation S "safe harbor"
that the Shares not be offered or sold in the United States or to a
U.S. person until the expiration of a one-year "distribution
compliance period" (or a six-month "distribution compliance
period," if the issuer is a "reporting issuer," as defined in
Regulation S) following the Closing Date; and
8
-
-
notwithstanding the foregoing, prior to the expiration of the
one-year "distribution compliance period" (or six-month
"distribution compliance period," if the issuer is a "reporting
issuer," as defined in Regulation S) after the Closing (the
"Restricted Period"), the Shares may be offered and sold by the
holder thereof only if such offer and sale is made in compliance
with the terms of this Agreement and either: (A) if the offer or
sale is within the United States or to or for the account of a U.S.
person (as such terms are defined in Regulation S), the securities
are offered and sold pursuant to an effective registration
statement or pursuant to Rule 144 under the Securities Act or
pursuant to an exemption from the registration requirements of the
Securities Act; or (B) the offer and sale is outside the United
States and to other than a U.S. person.
- As used
herein, the term "United States" means the United States of
America, its territories and possessions, any State of the United
States, and the District of Columbia, and the term "U.S. person"
(as defined in Regulation S) means:
-
- a natural
person resident in the United States;
- any
