Exhibit
10.1
CORCEPT THERAPEUTICS
INCORPORATED
COMMON STOCK PURCHASE
AGREEMENT
This Common Stock Purchase Agreement (“
Agreement ”) is made as of March 30, 2007 (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. 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
SHARES.
The Company has authorized the sale and issuance
of 9,000,000 shares of its Common Stock, par value $0.001 per share
(the “ Common Stock ”), on the terms and subject
to the conditions set forth in this Agreement. The shares of Common
Stock sold hereunder shall be referred to herein as the “
Shares ”.
SECTION
2.
AGREEMENT TO SELL AND
PURCHASE THE SHARES.
2.1 Sale of
Shares . At the Closing (as defined in Section 3), the
Company will sell to each Purchaser, and each Purchaser will
purchase from the Company, at a purchase price of $1.00 per Share,
the number of Shares set forth next to such Purchaser’s name
on the Schedule of Purchasers.
2.2 Separate
Agreement . Each Purchaser shall severally, and not
jointly, be liable for only the purchase of the Shares that
appear on Exhibit A hereto and that relate to such
Purchaser. The Company’s agreement with each of the
Purchasers is a separate agreement, and the sale of Shares
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 Shares such
other Purchasers have agreed to purchase.
SECTION
3.
CLOSING AND
DELIVERY.
3.1
Closing . The Closing of the purchase and sale of
the Shares pursuant to this Agreement (the “ Closing
”) shall be held on March 30, 2007 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 Delivery
of the Shares at the Closing. At the Closing, the Company
shall deliver to each Purchaser 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 of
Common Stock to be purchased by such Purchaser at the Closing as
set forth in the Schedule of Purchasers against payment of the
purchase price for such shares. The name(s) in which the stock
certificates 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 ten (10) business days prior to the Closing.
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.
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, sell and issue the Shares and
carry out and perform all of its obligations under this Agreement.
This Agreement 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) as to those provisions of Section 8.3
relating to indemnity or contribution. The execution and delivery
of this Agreement does not, and the performance of this Agreement
and the compliance with the provisions hereof and the issuance,
sale and delivery of the 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 Stock 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 Shares. The Shares, when issued and
paid for in compliance with the provisions of this Agreement, will
be validly issued, fully paid and nonassessable. The issuance and
delivery of the Shares 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 Shares is exempt from
registration under the 1933 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 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, none of which are issued and outstanding as of the
Effective Date. As of the Effective Date, there are 25,731,766
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
1,809,686 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 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 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 1933 Act.
There are no securities or instruments containing anti-dilution
provisions that will be triggered by the issuance of the 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 is no pending or, to the
Company’s knowledge, threatened, action, suit or other
proceeding to which the Company is a party or to which its property
or assets are subject.
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 except for (a) 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, and (b) the filing of a
registration statement and all amendments thereto with the
Commission as contemplated by Section 8.1 of this
Agreement.
4.8 No
Material Adverse Change. Since September 30, 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
quarter ended September 30, 2006 except changes which have not had,
either individually or in the aggregate, a Company Material Adverse
Effect.
4.9 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 of 1933, as amended (the “ Securities
Act ”)) in connection with the offer or sale of the
Shares.
4.10 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 Shares
under the 1933 Act or cause this offering of the Shares to be
integrated with prior offerings by the Company for purposes of the
1933 Act or any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of
the Principal Market.
4.11
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 SEC
thereunder that are effective and applicable to the Company as of
the date hereof.
4.12 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.
4.13 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 maintenance requirements for continued listing of the
Common Stock. The issuance and sale of the Shares under this
Agreement does not contravene the rules and regulations of the
Principal Market and no approval of the shareholders of the Company
thereunder is required for the Company to issue and deliver to the
Purchasers the Shares.
4.14
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.
SECTION
5.
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE PURCHASERS.
5.1 Each Purchaser,
severally and not jointly, represents and warrants to and covenants
with the Company that:
(a) Purchaser, taking
into account the personnel and resources it can practically bring
to bear on the purchase of the Shares contemplated hereby, is
knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in shares
presenting an investment decision like that involved in the
purchase of the Shares, including investments in securities issued
by the Company, and has requested, received, reviewed and
considered all information Purchaser deems relevant (including the
SEC Documents) in making an informed decision to purchase the
Shares.
(b) Purchaser is
acquiring the Shares pursuant to this Agreement in the ordinary
course of its business and for its own account for investment only
and with no present intention of distributing any of such Shares or
any arrangement or understanding with any other persons regarding
the distribution of such Shares, except in compliance with Section
5.1(c).
(c) Purchaser will
not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the securities
purchased hereunder except in compliance with the Securities Act,
applicable blue sky laws, and the rules and regulations promulgated
thereunder.
(d) Purchaser has, in
connection with its decision to purchase the Shares, relied with
respect to the Company and its affairs solely upon the SEC
Documents and the representations and warranties of the Company
contained herein.
(e) Purchaser is an
“accredited investor” within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act or a Qualified
Institutional Buyer within the meaning of Rule 144A promulgated
under the Securities Act.
(f) Purchaser has full
right, power, authority and capacity to enter into this Agreement
and to consummate the transactions contemplated hereby and has
taken all necessary action to authorize the execution, delivery and
performance of this Agreement. Upon the execution and delivery of
this Agreement by Purchaser, this Agreement shall constitute a
valid and binding obligation of Purchaser, 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) as to those
provisions of Section 8.3 relating to indemnity or
contribution.
(g) Purchaser is not a
broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934 (a “registered
broker-dealer”) and is not affiliated with a registered
broker dealer. Purchaser is not party to an
