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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered
into as of March 15, 2004 by and among
Neurocrine Biosciences, Inc., a Delaware
corporation (the "Company"), and Wyeth
Holdings Corporation (formerly known as
"American Cyanamid Company"), a Maine
corporation (the "Investor"). The Investor
and the Company are referred to herein as
the "Parties."
W I T N E S S E T H:
WHEREAS, the Investor and the Company have entered into that
certain
Assignment and License Agreement dated
February 26, 2004 (the "Assignment
Agreement"), which Assignment Agreement
provides, inter alia, for the Parties to
enter into this Agreement, pursuant to
which the Company will issue to the
Investor shares of its common stock, $.001
par value per share ("Common Stock"),
as partial consideration for the rights and
obligations assigned by the Investor
to the Company under Article 2 of the
Assignment Agreement and the licenses
granted by the Investor to the Company
under Article 3 of the Assignment
Agreement;
WHEREAS, the Company and Investor wish to set forth certain
terms
relating to the issuance of the shares of
Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration
of the representations, warranties
and covenants herein contained, the Parties
agree as follows:
1.
AGREEMENT TO ISSUE STOCK.
Subject to the terms and conditions of this Agreement, as
partial consideration for the rights and
obligations assigned by the Investor to
the Company under Article 2 of the
Assignment Agreement and the licenses granted
by the Investor to the Company under
Article 3 of the Assignment Agreement, the
Company shall issue and deliver to the
Investor at the Closing (as defined
below) Eight Hundred Two Thousand Nine
Hundred Ninety-Eight (802,998) shares of
its Common Stock; provided that if the sum
of the aggregate value of such shares
of Common Stock on the Closing Date (as
defined below) plus the aggregate value
of any other Common Stock as of the Closing
Date held by the Investor or its
Affiliate as of the Closing Date (including
without limitation the 4,186 shares
of Common Stock held by the Investor or its
Affiliate as of the Signature Date)
plus the aggregate value of any Common
Stock as of the Closing Date purchasable
by the Investor or its Affiliate pursuant
to any warrant (including without
limitation the 19,950 shares of Common
Stock purchasable by the Investor or its
Affiliate under its existing warrant) is
equal to or greater than $50,000,000,
the Company will (i) issue to the Investor
a number of shares of Common Stock
(rounded down to the next whole share)
that, when added to the number of other
shares of Common Stock held by the Investor
or its Affiliate as of the Closing
Date plus the number of shares of Common
Stock purchasable by the Investor or
its Affiliate pursuant to any warrant as of
the Closing Date, is equal to
$49,999,995 divided by the closing sale
price of the Company's Common Stock on
the Nasdaq National Market on the trading
day immediately prior to the Closing
Date and (ii) pay to the
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Investor an amount in cash equal to the
difference of the aggregate value of
Eight Hundred Two Thousand Nine Hundred
Ninety-Eight (802,998) shares of Common
Stock minus the aggregate value of the
number of shares of Common Stock issuable
pursuant to this proviso. For purposes of
this Section 1, the value of a number
of shares of the Company's Common Stock as
of the Closing Date shall be
calculated by multiplying the number of
shares by the closing sale price of the
Company's Common Stock on the Nasdaq
National Market on the trading day
immediately prior to the Closing Date. The
shares of the Company's Common Stock
to be issued pursuant to this Section 1 are
referred to herein as the "Shares."
2.
CLOSING.
The issuance and delivery of the Shares (the "Closing") will
take place at the offices of the Investor,
500 Arcola Road, Collegeville,
Pennsylvania 19426, on the date hereof (the
"Closing Date").
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Investor
that the statements in the following
paragraphs of this Section 3 are true and
correct:
3.1
Organization, Good Standing and Qualification. The
Company is a corporation duly organized,
validly existing and in good standing
under the laws of the State of Delaware.
Schedule 3.1 attached hereto sets forth
the name and jurisdiction of organization
of each of the Company's subsidiaries
("Subsidiaries"). The Company and each of
its Subsidiaries are duly authorized
to conduct business and are in good
standing under the laws of each jurisdiction
where such qualification is required,
except where the failure to be so
qualified would not have a material adverse
effect on the business, properties,
financial condition, operations or results
of operations of the Company and its
Subsidiaries, taken as a whole (a "Material
Adverse Effect"). Neither the
Company nor any of its Subsidiaries is in
default under or in violation of any
provision of its charter or bylaws. The
Company has full power and authority to
execute and deliver this Agreement and to
perform its obligations hereunder. The
Company and each of the Subsidiaries have
full power and authority to carry on
their respective businesses as currently
conducted.
3.2
Authorization; Enforceability. All corporate action
on the part of the Company necessary for
the authorization, execution and
delivery of this Agreement, the performance
of the obligations of the Company at
the Closing, and the issuance and delivery
of the Shares has been taken, and
this Agreement has been duly executed and
delivered by the Company and
constitutes a legally valid and binding
obligation of the Company, enforceable
in accordance with its terms, except as may
be limited by (i) applicable
bankruptcy, insolvency, reorganization or
other laws of general application
relating to or affecting the enforcement of
creditors' rights generally, (ii)
the effect of rules of law governing the
availability of equitable remedies and
(iii) the unenforceability under certain
circumstances under law or court
decisions of provisions providing for the
indemnification of or contribution to
a party with respect to a liability where
such indemnification or contribution
is contrary to public policy or prohibited
by law.
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3.3 Valid
Issuance of Stock. The Shares have been duly
reserved for issuance and, when issued and
delivered in accordance with the
terms of this Agreement for the
consideration contemplated herein, (i) will be
duly and validly issued, fully paid and
nonassessable and will be free of any
taxes, liens or claims (other than those
that may be created by the Investor);
(ii) will be free of any restrictions on
transfer other than restrictions on
transfer under applicable federal and state
securities laws; (iii) will not be
subject to preemptive rights or similar
rights of any stockholders of the
Company; and (iv) will be issued in
compliance with all applicable federal and
state securities laws. The Shares will have
attached thereto rights (the
"Rights") to purchase Series A
Participating Preferred Stock. The Rights have
been and will be issued pursuant to an
Amended and Restated Preferred Shares
Rights Agreement dated as of January 11,
2002 between the Company and American
Stock Transfer & Trust Company.
3.4
Capitalization. The entire authorized capital stock
of the Company consists of 50,000,000
shares of Common Stock, of which
35,334,440 shares were issued and
outstanding as of February 27, 2004, and
5,000,000 shares of preferred stock, $.001
par value per share, none of which
are issued and outstanding as of the date
hereof. Except as set forth in SEC
Documents (as defined below) and except as
granted in the ordinary course of
business pursuant to the Company's 2003
Incentive Stock Plan since the dates of
the SEC Documents, there are no outstanding
or authorized warrants, options,
preemptive rights, purchase rights,
subscription rights, conversion rights,
exchange rights, or instruments convertible
into or exchangeable for, any
unissued shares of capital stock or other
equity interest in the Company, or
other contracts or commitments that could
require the Company to issue, sell or
otherwise cause to become outstanding any
of its capital stock. There are no
outstanding or authorized stock
appreciation, phantom stock, profit
participation or similar rights with
respect to the Company. Without limiting
the foregoing, no preemptive right, co-sale
right, right of first refusal or
other similar right exists with respect to
the issuance and sale of the Shares.
Except as set forth in the SEC Documents,
there are no stockholders agreements,
voting trusts, proxies or other agreements
or understandings with respect to the
voting of the capital stock of the
Company.
3.5
Noncontravention. Neither the execution nor the
delivery of this Agreement, nor the
consummation of the transactions
contemplated hereby, will (i) violate any
constitution, statute, regulation,
rule, injunction, judgment, order, decree,
ruling, charge or other restriction
of any government, governmental agency or
court to which the Company is subject,
(ii) violate any provision of the charter
or bylaws of the Company (the
"Governing Documents") or (iii) conflict
with, result in a breach of, constitute
a default under, result in the acceleration
of, create in any party the right to
accelerate, terminate, modify or cancel, or
require any notice under any
agreement, contract, lease, license,
instrument, or other arrangement to which
the Company is a party or by which the
Company is bound or to which any of the
Company's assets is subject (or result in
the imposition of any mortgage,
pledge, lien, encumbrance, charge or other
security interest upon any of such
assets), except in the case of clause (i)
or (iii) above, where such violation,
conflict or default would not have a
Material Adverse Effect. Except for (i) the
filing of a Form D with the Securities and
Exchange Commission (the "SEC") and
(ii) filings which may be required under
state securities laws, the Company does
not need to give any notice to, make any
filing with, or obtain any
authorization, consent or approval of any
government or governmental agency in
order for the Company and the Investor to
consummate the transactions
contemplated by this Agreement.
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3.6 Reports
Filed under the Securities Exchange Act of
1934; Financial Statements. The Company has
timely filed or furnished, as
applicable, all reports required to be
filed by the Company under the Securities
Exchange Act of 1934, as amended (the "1934
Act"), and the related
certifications required under Sections 302
and 906 of the Sarbanes-Oxley Act of
2002. All such reports filed by the Company
in the preceding twelve (12) months
(the "SEC Documents") contain all
statements required to be stated therein in
accordance with the 1934 Act and the rules
and regulations promulgated
thereunder applicable to the SEC Documents,
and the SEC Documents do 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. Any statements made in any such
SEC Documents that are or were
required to be updated or amended have been
so updated or amended. As of their
respective dates (except as they have been
correctly amended), the financial
statements of the Company included in the
SEC Documents complied as to form in
all material respects with applicable
accounting requirements and the published
rules and regulations of the SEC with
respect thereto. Such financial statements
have been prepared in accordance with
generally accepted accounting principles,
consistently applied, during the periods
involved (except (a) as may be
otherwise indicated in such financial
statements or the notes thereto or (b) in
the case of unaudited interim statements,
to the extent they may exclude
footnotes or may be condensed or summary
statements) and fairly present the
financial position of the Company as of 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 year-end
audit adjustments). Except as set forth
in the SEC Documents, the Company has no
liabilities, contingent or otherwise,
other than (i) liabilities incurred in the
ordinary course of business
subsequent to the date of such SEC
Documents, (ii) obligations under contracts
and commitments incurred in the ordinary
course of business and not required
under generally accepted accounting
principles to be reflected in such SEC
Documents, which liabilities and
obligations referred to in clauses (i) and
(ii), individually or in the aggregate,
would not have a Material Adverse
Effect, and (iii) contingent liabilities
which, individually or in the
aggregate, could not reasonably be expected
to have a Material Adverse Effect.
3.7 Absence of
Litigation. Except as disclosed in the SEC
Documents, there is no action, suit,
proceeding, inquiry or investigation before
or by any court, public board, government
agency, self-regulatory organization
or body pending or, to the knowledge of the
Company, threatened against or
affecting the Company, or any of its
Subsidiaries, or any of their directors or
officers in their capacities as such which
could reasonably be expected to have
a Material Adverse Effect.
3.8 Taxes. The
Company has filed all tax returns,
reports, forms, schedules and any other
documents ("Tax Returns") required to be
filed by or on behalf of the Company, and
all such Tax Returns are accurate and
complete in all material respects. The
Company has paid all material taxes
(including interest, penalties, additions
to tax or other additional amounts
imposed by any taxing authority) shown to
be due on such Tax Returns or
otherwise due, except for such taxes that
are being contested in good faith and
for which adequate reserves have been
provided.
3.9 No
Violations. The Company is not in violation of its
charter, bylaws or other organizational
documents, or in violation of any law,
administrative regulation, ordinance
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or order of any court or governmental
agency, arbitration panel or authority
applicable to the Company, which violation,
individually or in the aggregate,
would be reasonably likely to have a
Material Adverse Effect, and is not in
default (and there exists no condition
which, with or without the passage of
time or giving of notice or otherwise,
would constitute a default) in the
performance of any bond, debenture, note or
any other evidence of indebtedness
in any indenture, mortgage, deed of trust
or any other agreement or instrument
to which the Company is a party or by which
the Company is bound or by which the
property of the Company is bound, which
would be reasonably likely to have a
Material Adverse Effect.
3.10
Nasdaq Compliance. The Common Stock is registered
pursuant to Section 12(g) of the 1934 Act,
and is listed on the Nasdaq National
Market, and the Company has taken no action
designed to, or likely to have the
effect of, terminating the registration of
the Common Stock under the 1934 Act
or delisting the Common Stock from the
Nasdaq National Market.
3.11
No Manipulation of Stock. The Company has not taken
any action outside the ordinary course of
business designed to or that might
reasonably be expected to cause or result
in stabilization or manipulation of
the price of the Common Stock to facilitate
the sale or resale of the Shares.
3.12
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 under the Securities Act of
1933, as amended (the "1933 Act")) in
connection with the offer or sale of the
Shares.
3.13
Form S-3 Eligibility. The Company is currently, and
at the Closing Date will be, eligible to
register the resale of the Shares on a
registration statement on Form S-3 under
the 1933 Act. There exist no facts or
circumstances (including without limitation
any required approvals or waivers of
any circumstances that may delay or prevent
the obtaining of accountant's
consents) that would prohibit or delay the
preparation and filing of a
registration statement on Form S-3 with
respect to the Shares.
3.14
Rule 144 Availability. The Company has filed the
reports required to be filed by it under
the 1934 Act and the rules and
regulations adopted by the SEC thereunder
in order to enable the holders of
unregistered Common Stock to sell such
Common Stock without registration under
the 1933 Act within the limitation of the
exemptions provided by Rule 144 under
the 1933 Act, as such Rule is currently in
effect.
4.
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor represents and warrants to the Company that the
statements in the following paragraphs of
this Section 4 are true and correct:
4.1
Organization and Qualification. The Investor is a
corporation duly organized, validly
existing and in good standing under the laws
of the State of Maine. The Investor has all
requisite corporate power and
authority to enter into and perform this
Agreement and to carry out the
transactions contemplated by this
Agreement.
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4.2
Authorization. All action on the part of the Investor
necessary for the authorization, execution
and delivery of this Agreement and
the performance of all obligations of the
Investor hereunder has been taken, and
this Agreement has been duly executed and
delivered by the Investor and
constitutes a legally valid and binding
obligation of the Investor, enforceable
in accordance with its terms, except as may
be limited by (i) applicable
bankruptcy, insolvency, reorganization or
other laws of general application
relating to or affecting the enforcement of
creditors' rights generally, (ii)
the effect of rules of law governing the
availability of equitable remedies and
(iii) the unenforceability under certain
circumstances under law or court
decisions of provisions providing for the
indemnification of or contribution to
a party with respect to a liability where
such indemnification or contribution
is contrary to public policy or prohibited
by law.
4.3 Purchase
for Own Account. The Shares to be purchased
by the Investor hereunder will be acquired
for investment for the Investor's own
account, not as a nominee or agent, and not
with a view to the public
distribution thereof within the meaning of
the 1933 Act, and the Investor has no
present intention of selling or otherwise
distributing the same, except in
compliance with the requirements of, or
pursuant to a valid exemption from, such
Act. The Investor does not have any
contract, undertaking, agreement or
arrangement with any person to sell,
transfer or grant participations to such
person or to any third person, with respect
to the Shares. The Investor also
represents that it has not been formed for
the specific purpose of acquiring the
Shares.
4.4 Accredited
Investor Status. The Investor is an
"accredited investor" within the meaning of
Regulation D promulgated under the
1933 Act. By reason of its business and
financial experience, sophistication and
knowledge, the Investor is capable of
evaluating the risks and merits of the
investment made pursuant to this Agreement.
The Investor confirms that it is
able (i) to bear the economic risk of this
investment, (ii) to hold the Shares
for an indefinite period of time, and (iii)
to bear a complete loss of the
Investor's investment; and the Investor
represents that it has sufficient liquid
assets so that the illiquidity associated
with this investment will not cause
any undue financial difficulties or affect
the Investor's ability to provide for
its current needs and possible financial
contingencies.
4.5 Restricted
Securities. The Investor understands that
the Shares are characterized as "restricted
securities" under the 1933 Act
inasmuch as they are being acquired from
the Company in a transaction not
involving a public offering and that under
the 1933 Act and applicable
regulations thereunder such securities may
be resold without registration under
the 1933 Act only in certain limited
circumstances. In this connection, the
Investor represents that it is familiar
with SEC Rule 144, as presently in
effect, and understands the resale
limitations imposed thereby and by the 1933
Act. The Investor understands that the
Company is under no obligation to
register any of the securities sold
hereunder, except as provided in Section 7
below.
4.6 Due
Diligence and No Solicitation. The Investor has
had a reasonable opportunity to conduct due
diligence and to ask questions of
and receive answers from the Company and
its officers. At no time was the
Investor presented with or solicited by any
leaflet, public promotional meeting,
circular, newspaper or magazine article,
radio or television advertisement or
any other form of general advertising.
Neither such inquiries nor any other due
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diligence investigation conducted by
Investor or its counsel or any of its
representatives shall modify or affect
Investor's right to rely on the Company's
representations and warranties in this
Agreement.
4.7 Further
Limitations on Disposition. The Investor
further agrees not to make any disposition
of all or any portion of the Shares
unless and until:
(a) there is
then in effect a registration
statement under the 1933 Act covering such
proposed disposition and such
disposition is made in accordance with such
registration statement; or
(b) (i) the
Investor shall have notified the
Company of the proposed disposition and
shall have furnished the Company with a
statement of the circumstances surrounding
the proposed disposition, which in
the case of a sale to be made pursuant to
Rule 144 shall be limited to customary
representations regarding compliance with
the requirements of Rule 144 regarding
volume, manner of sale and other matters,
and (ii) the Investor shall have
furnished the Company at the Investor's
expense an opinion of in house or
outside counsel (as determined by the
Investor), reasonably satisfactory to the
Company that such disposition will not
require registration of such securities
under the 1933 Act; provided that the
Company shall not require an opinion of
counsel for routine sales of shares
pursuant to Rule 144 or any sale of shares
pursuant to Rule 144(k).
Notwithstanding the foregoing provisions of this Section 4.7
or any other provision of this Article 4 or
this Agreement, the Parties
acknowledge and agree that the Investor may
contribute or otherwise transfer the
Shares without consideration to a
corporation that is the direct or indirect
parent of the Investor or to any subsidiary
of the Investor or such corporate
parent.
4.8 Legends.
It is understood that the certificates
evidencing the Shares will bear the legends
set forth below:
(a) THE
SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
(b) Any legend
required by the laws of the State
of California, including any legend
required by the California Department of
Corporations.
The legend set forth above shall be removed
and the Company shall issue a
certificate without such legend to the
holder of Shares upon which it is
stamped, if (a) the Shares represented by
such certificate have been sold
pursuant to an effective registration
statement under the 1933 Act or (b) in
connection with the resale of such Shares,
such holder provides the Company with
an opinion of in house or outside counsel
(as determined by the Investor), in
form, substance and
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scope customary for opinions of counsel in
comparable transactions, to the
effect that a public sale or transfer of
such Security may be made without
registration under the 1933 Act or (c) such
holder provides the Company with
reasonable assurances that such Shares have
been sold under Rule 144 or can be
sold under Rule 144(k).
5.
COVENANTS.
The Company and the Investor agree as follows:
5.1 Form D.
The Company agrees to file a notice of sale
on Form D with respect to the Shares as
required under Regulation D promulgated
under the 1933 Act and to provide a copy
thereof to Investor promptly after such
filing.
5.2 No
Integrated Offerings. The Company shall not make
any offers or sales of any security (other
than the Shares) under circumstances
that would require registration of the
Shares being offered or sold hereunder
under the 1933 Act or cause this offering
of Shares to be integrated with any
other offering of securities by the
Company.
5.3 Transfer
Taxes. On the Closing Date, all stock
transfer or other
