Exhibit 10.39
STOCK AND WARRANT PURCHASE AGREEMENT
THIS STOCK AND WARRANT PURCHASE
AGREEMENT is dated March 26, 2008 (this “
Agreement ”), by and between the undersigned
(the “ Purchaser ”) and Alexza
Pharmaceuticals, Inc., a Delaware corporation (the “
Company ”), whereby the parties hereby agree as
follows:
SECTION 1. PURCHASE AND SALE OF
INITIAL SHARES AND WARRANT
1.1 Issuance of Initial Shares and Warrant . Subject
to the terms and conditions set forth in this Agreement, and in
reliance upon the Company’s and the Purchaser’s
representations set forth below, on the Closing Date, the Purchaser
shall buy and the Company shall sell 1,250,000 shares of the
Company’s Common Stock (“ Initial Shares
”) at a purchase price of $8.00 per share for a total
subscription amount equal to $10,000,000. At the Closing, the
Purchaser shall also (i) pay to the Company an amount equal to
$0.0001 multiplied by the number of Additional Shares (as defined
below) that may be issued by the Company to the Purchaser pursuant
to Section 5.1 of this Agreement (the “ Additional
Share Consideration ”) and (ii) receive a
warrant, in substantially the form of Exhibit A
attached hereto (the “ Warrant ” )
, to purchase up to a number of shares of the Company’s
Common Stock (the “ Warrant Shares ”)
equal to the number obtained by dividing $3,000,000 by the Warrant
Exercise Price (as defined in the Warrant). The Initial Shares, the
Warrant, the Warrant Shares and the Additional Shares
(collectively, the “ Securities ”) have
been registered on a registration statement on Form S-3, File
No. 333-141739 (the “ Registration
Statement ”), which has been declared effective by
the Securities and Exchange Commission (“ SEC
”), and remains effective as of the date hereof. A final
Prospectus Supplement will be delivered as required by law.
1.2 Closing and Closing Date . The closing of the
transactions contemplated by Section 1.1 (the “
Closing ”) shall take place at 10:00 a.m.,
Pacific Daylight Time, on the first business day following the date
on which the last to be fulfilled or waived of the conditions set
forth in Section 6 and Section 7 hereof pertaining to the
Closing shall have been fulfilled or waived in accordance with this
Agreement, or on such earlier date as may be mutually agreed by the
Company and the Purchaser (the “ Closing Date
”), at the offices of Cooley Godward Kronish llp , 380 Interlocken Crescent,
Suite 900, Broomfield, Colorado 80021, or such other location
as the Purchaser and the Company shall mutually select.
SECTION 2. PURCHASER
REPRESENTATIONS AND WARRANTIES
The Purchaser hereby represents and
warrants as of the date hereof to the Company as follows:
2.1 The Purchaser is a corporation or other legal entity
duly organized, validly existing and in good standing under the
jurisdiction of its incorporation.
2.2 The Purchaser has the requisite corporate (or other
entity) power and authority to enter into and perform this
Agreement and to purchase the Securities in accordance with the
terms hereof. The purchase by the Purchaser of the Securities
hereunder has been duly authorized by all necessary action on the
part of the Purchaser. Each of the Transaction Documents has been
(or upon delivery will be) duly executed by the Purchaser and is,
or when delivered in accordance with the terms hereof, will
constitute, the valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms,
except as enforceability may be limited by applicable
(i) bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally, or
(ii) laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
2.3 The Purchaser is purchasing the Securities for its own
account as principal, and not with a view towards distribution of
such securities.
2.4 The Purchaser is not a registered broker-dealer.
2.5 There are no claims for brokerage commissions or
finder’s fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any
arrangement made by or on behalf of the Purchaser and the Purchaser
agrees to indemnify and hold the Company harmless against any costs
or damages incurred as a result of any such claim.
SECTION 3. WIRE
INSTRUCTIONS
On the Closing Date, the Purchaser
shall wire the amount set forth in Section 1.1 to the Company
to the account set forth below.
Company Wire Transfer Instructions:
Bank Address
State Street Bank
1200 Crown Colony
Quincy, MA 02169
Via
FED WIRE SYSTEM
State Street
Bank
ABA # XXXXX
Account # XXXXX
For Final Credit to Alexza Corp. DE1805
Attn: Jim Hall
Via
SWIFT SYSTEM: (CASH EQUIVALENTS)
BIC
SBOSUS3N
CHIPS Identifier: CH334291
State Street Bank FX Custody Account # XXXXX Fiduciary Investor
Services Account XXXXX
Corp. DE1805
2
Upon receipt of such amount the Company shall
promptly cause its transfer agent to transmit the Initial Shares
electronically to the Purchaser by crediting the account set forth
below through the Deposit Withdrawal Agent Commission system and
shall deliver the Warrant to the Purchaser within 5 business days
of the Closing Date. The Purchaser’s DWAC Instructions are as
set forth on the Purchaser’s signature pages attached hereto
under the heading “DWAC Instructions.”
SECTION 4. COMPANY
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants as of
the date hereof to the Purchaser as follows:
4.1 Organization and Good Standing . The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
4.2 Authorization; Enforcement; No Conflicts . The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by each of the
Transaction Documents (as defined below) and otherwise to carry out
its obligations hereunder and thereunder. The execution and
delivery of each of the Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the
part of the Company and no further consent or action is required by
the Company, its Board of Directors or its stockholders. Each of
the Transaction Documents has been (or upon delivery will be) duly
executed by the Company and is, or when delivered in accordance
with the terms hereof, will constitute, the valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally, or (ii) laws relating to the availability of
specific performance, injunctive relief or other equitable
remedies. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby do not
and will not: (i) conflict with or violate any provision of
the Company’s certificate of incorporation, bylaws or other
organizational or charter documents as of the date of execution of
this Agreement, or (ii) subject to obtaining the Required
Approvals (as defined below), conflict with, or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company debt or
otherwise) or other understanding to which the Company is a party
or by which any property or asset of the Company is bound or
affected, or (iii) result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company is
bound or affected;
3
except
in the case of each of clauses (ii) and (iii), such as could
not, individually or in the aggregate: (i) adversely affect
the legality, validity or enforceability of this Agreement, the
Warrant, and any other documents or agreements executed in
connection with the transactions contemplated hereunder (the
“ Transaction Documents ”),
(ii) have or result in a material adverse effect on the
results of operations, assets, business operations or financial
condition of the Company, taken as a whole, or (iii) adversely
impair the Company’s ability to perform fully on a timely
basis its obligations under any of the Transaction Documents (any
of (i), (ii) or (iii), a “ Material Adverse
Effect ”).
4.3 Filings, Consents and Approvals; Issuance of
Securities . The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state,
local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filing of a Form 8-K
disclosing the transaction contemplated hereby, (ii) the
filing with the SEC of the prospectus supplement required by the
Registration Statement pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the “ 1933 Act
”) (the “ Prospectus Supplement ”)
supplementing the base prospectus forming part of the Registration
Statement (the “ Prospectus ”),
(iii) the application(s) to The Nasdaq Global Market (the
“ Principal Market ”) for the listing of
the Securities for trading thereon in the time and manner required
thereby, and (iv) applicable Blue Sky filings (collectively,
the “ Required Approvals ”). “
Person ” means an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind. The Securities that are being purchased hereunder are
duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be duly and validly
issued, fully paid and nonassessable, free and clear of all liens.
The Company has reserved from its duly authorized capital stock a
sufficient number of shares of Common Stock to enable it
(i) to comply with its obligations to issue the Additional
Shares under Section 5.1 of this Agreement, and (ii) to
comply with its exercise obligations under the Warrant. The
issuance of the Securities have been registered by the Company
under the 1933 Act under the Registration Statement, subject to the
filing of the Prospectus Supplement. The Registration Statement is
effective and available for the issuance of the Securities
thereunder and the Company has not received any notice that the SEC
has issued or intends to issue a stop-order with respect to the
Registration Statement or that the SEC otherwise has suspended or
withdrawn the effectiveness of the Registration Statement, either
temporarily or permanently, or has threatened in writing to do so.
The “Plan of Distribution” section under the
Registration Statement permits the issuance and sale of the
Securities hereunder. Upon receipt of the Securities, the Purchaser
will have good and marketable title to such Securities. Neither the
Company, nor any of its Affiliates, nor any Person acting on its or
their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under
circumstances that would cause this offering of the Securities to
be integrated with prior offerings by the Company for purposes of
any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of any exchange or
automated quotation system on which any of the securities of the
Company are listed or designated, nor will the Company take any
action
4
or steps
that would cause the offering of the Securities to be integrated
with other offerings. Except as disclosed in the SEC Reports (as
defined below), the Company has not, in the 12 months
preceding the date hereof, received notice from the Principal
Market on which the Common Stock is or has been listed or quoted to
the effect that the Company is not in compliance with the listing
or maintenance requirements of the Principal Market. The Company
is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such
listing and maintenance requirements. The issuance and sale of the
Securities hereunder does not contravene the rules and regulations
of the Principal Market and no stockholder approval is required for
the Company to fulfill its obligations under the Transaction
Documents. The Common Stock is currently listed on the Principal
Market.
4.4 SEC Reports; Financial Statements . The Company
has filed all reports required to be filed by it under the 1933 Act
and the Securities Exchange Act of 1934, as amended (the “
1934 Act ”), including pursuant to Section
13(a) or 15(d) thereof, for the two (2) years preceding the
date hereof (the foregoing materials being collectively referred to
herein as the “ SEC Reports ”) on a
timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of
the 1933 Act and the 1934 Act and the rules and regulations of the
SEC promulgated thereunder, and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Registration Statement and any prospectus included therein,
including the Prospectus and the Prospectus Supplement, complied in
all material respects with the requirements of the 1933 Act and the
1934 Act and the rules and regulations of the SEC promulgated
thereunder, and none of such Registration Statement or any such
prospectus, including the Prospectus and the Prospectus Supplement,
contain or contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the case of
any prospectus in the light of the circumstances under which they
were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of
the SEC with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis during the periods involved (“ GAAP
”), except as may be otherwise specified in such financial
statements or the notes thereto, and fairly present in all material
respects the financial position of the Company as of and for the
dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments.
4.5 Capitalization . The capitalization of the
Company as of December 31, 2007 is as set forth in the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2007, as filed with the SEC on
March 17, 2008. Except as disclosed on
Schedule 4.5 , the Company has not issued any capital
stock since its most recently filed periodic report under the 1934
Act, other than pursuant to the exercise of employee
5
stock
options under the Company’s stock option plans, the issuance
of shares of Common Stock to employees pursuant to the
Company’s stock incentive plan and pursuant to the conversion
or exercise of outstanding common stock equivalents. No Person has
any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents, which right
has not been waived prior to the date hereof. Except as set forth
in the SEC Reports or the Prospectus Supplement, there are no
outstanding options, warrants, script rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable
for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any
subsidiary is or may become bound to issue additional shares of
Common Stock or common stock equivalents. Except as set forth in
the SEC Reports or the Prospectus Supplement, the issue and sale of
the Securities will not obligate the Company to issue shares of
Common Stock or other securities to any Person (other than the
Purchaser) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset
price under such securities. All of the outstanding shares of
capital stock of the Company are validly issued, fully paid and
nonassessable, have been issued in material compliance with all
federal and state securities laws and requirements of the Trading
Market, and none of such outstanding shares was issued in violation
of any preemptive rights or similar rights to subscribe for or
purchase securities. Except as set forth in the SEC Reports or the
Prospectus Supplement, there are no stockholders agreements, voting
agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the
Company’s stockholders.
4.6 Material Changes . Since the date of the latest
audited financial statements included within the SEC Reports,
except as specifically disclosed in the SEC Reports: (i) there
has been no event, occurrence or development that, individually or
in the aggregate, has had or that could result in a Material
Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial
statements pursuant to GAAP or required to be disclosed in filings
made with the SEC, (iii) the Company has not altered its
method of accounting or the identity of its auditors, (iv) the
Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its
capital stock, and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant
to existing Company stock option and purchase plans. “
Affiliate ” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144. “
Rule 144 ” means Rule 144 promulgated
by the SEC pursuant to the 1933 Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such
Rule.
6
4.7 Litigation . Except as disclosed in the SEC
Reports, there are no legal actions, suits, arbitrations or other
legal, administrative or governmental proceedings or investigations
pending or, to the Company’s knowledge, threatened against
the Company or its properties, assets or business, that, if
adversely determined, would, individually or in the aggregate,
affect the execution and delivery of this Agreement or the
performance by the Company of its obligations under the Transaction
Documents, or have a Material Adverse Effect. The Company is not
subject to or in default with respect to any judgment, order or
decree of any court or any governmental agency or instrumentality,
which default would have a Material Adverse Effect.
4.8 Compliance . Neither the Company nor any
subsidiary (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company
under), nor has the Company or any subsidiary received notice of a
claim that it is in default under or that it is in violation of,
any indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its
properties is bound (whether or not such default or violation has
been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is in violation of any
statute, rule or regulation of any governmental authority or the
Trading Market, including without limitation all foreign, federal,
state and local laws applicable to its business, except in each
case as would not have a Material Adverse Effect.
4.9 Sarbanes-Oxley; Internal Accounting Controls . To
its knowledge, the Company is in material compliance with all
provisions of the Sarbanes-Oxley Act of 2002 which are applicable
to it as of the Closing Date. The Company maintains a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of f
|
