Common Stock Purchase Agreement - VaxGen Inc. and Vulcan Ventures Inc.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as
of this 15th day of October, 1999, by and among VAXGEN, INC., a Delaware
corporation (the "Company"), and VULCAN VENTURES, INC., a Washington corporation
(the "Purchaser"), in connection with the Company's offering (the "Offering") of
Common Stock.
1. PURCHASE AND SALE OF COMMON STOCK.
1.1 SALE AND ISSUANCE OF COMMON STOCK. Subject to the terms and conditions
hereof, Purchaser agrees to purchase, and the Company agrees to sell and issue
to Purchaser, two million one hundred seventy three thousand nine hundred
thirteen (2,173,913) shares of common stock of the Company (the "Common Stock")
at a price per share of eleven dollars and fifty cents ($11.50), for an
aggregate purchase price of twenty four million nine hundred ninety nine
thousand nine hundred ninety nine dollars and fifty cents ($24,999,999.50).
1.2 CLOSING. The closing of the purchase and sale of the Common Stock
hereunder will take place (the "Closing") within two business days after all
conditions to closing have been satisfied (the "Closing Date"). The place of the
Closing shall be at the offices of Graham & James LLP/Riddell Williams P.S.,
1001 Fourth Avenue Plaza, Suite 4500, Seattle, Washington 98154, or such other
place as Purchaser and the Company may mutually agree.
1.3 ESCROW. Subject to the terms and conditions of the Escrow Agreement by
and among Chase Manhattan Trust Co., National Association (the "Escrow Agent"),
the Company and Purchaser, dated as of October 15, 1999 (the "Escrow
Agreement"), Purchaser will deposit with Escrow Agent $24,999,999.50 in
immediately available funds to be released to the Company pursuant to the terms
of the Escrow Agreement after all conditions to closing have been satisfied. The
Company will deposit with Escrow Agent an irrevocable letter of instruction to
ChaseMellon Shareholder Services, Inc. (the "Transfer Agent") directing Transfer
Agent to issue stock certificate(s), registered in such names and in such
denominations as Purchaser shall request, representing 2,173,913 shares of
Common Stock of the Company to be released to Transfer Agent pursuant to the
terms of the Escrow Agreement after all conditions to closing have been
satisfied.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to Purchaser as follows:
2.1 ORGANIZATION AND CORPORATE POWER. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to execute, deliver
and perform this Agreement and to issue, sell and deliver the Common Stock.
2.2 CAPITALIZATION. As of October 11, 1999, the authorized capital of the
Company consists of:
(a) Preferred Stock. 20,000,000 shares of preferred stock having a par
value of $0.01 per share (the "Preferred Stock"), of which no shares are
outstanding.
(b) Common Stock. 20,000,000 shares of Common Stock having a par value
of $0.01 per share, 11,250,152 shares of which are issued and outstanding.
2.3 AUTHORIZATION. The execution, delivery and performance by the Company
of this Agreement and the issuance, execution and delivery of the Common Stock
have been duly authorized by all requisite corporate action.
2.4 VALIDITY. This Agreement and the Escrow Agreement (collectively, the
"Transaction Agreements") have been duly executed and delivered by the Company
and constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to the laws of bankruptcy
and the laws affecting creditors' rights generally and the availability of
equitable remedies. The Common Stock,
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when issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable and free of any liens or encumbrances.
2.5 DISCLOSURE DOCUMENTS. The Prospectus dated June 29, 1999 (the
"Prospectus"), filed by the Company pursuant to Rule 424(b)(2) under the
Securities Act of 1933, as amended (the "Securities Act"), in connection with
the Company's Initial Public Offering, and the Company's Quarterly Report on
Form 10-Q, filed with the Securities and Exchange Commission on August 12, 1999
(collectively with the Prospectus, the "Disclosure Documents"), contained all
statements required to be stated therein and in accordance with, and complied in
all material respects with the requirements of the Securities Act and the
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Securities and Exchange Commission thereunder and did not
include any untrue statement of a material fact or meant to state a material
fact necessary to make the statements therein not misleading as of the date of
such documents, provided however, that the foregoing provisions do not apply to
statements or omissions made in the Prospectus in reliance upon and in
conformity to information provided to the Company by the Purchaser or its
representatives for use therein. Since the respective date of the Disclosure
Documents, there has been no material adverse change or prospective material
adverse change in the assets, liquidity, liabilities, financial condition,
results of operations or properties of the Company.
2.6 CONFLICTS, NOTIFICATION.
(a) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the company will not, (i) conflict with
or violate the Certificate of Incorporation or Bylaws of the Company, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Company or by which any of its properties are bound or
affected, or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
impair the Company's rights or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material contract, or result in the
creation of a lien or encumbrance on any of the properties or assets of the
Company pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the
Company is a party or by which the Company or any of its properties are bound or
affected, except with regard to (ii) and (iii) above, for any such conflicts,
violations, breaches, defaults or other occurrences that would not, individually
or in the aggregate, have a material adverse effect.
(b) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Securities Act, the Exchange Act,
the rules of the Nasdaq National Market, state securities laws ("Blue Sky Laws")
and the pre-merger notification requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act") and the rules and
regulations thereunder, (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay the Company from performing its obligations under
this Agreement, or would not otherwise have a material adverse effect.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
3.1 AUTHORIZATION. Purchaser represents and warrants to the Company that
Purchaser has full power and authority to enter into the Transaction Agreements
and that the Transaction Agreements constitute the valid and legally binding
obligation of Purchaser.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. Purchaser represents and warrants
to the Company that Purchaser is acquiring the Common Stock for investment for
Purchaser's own account and not with a view to the resale or distribution
thereof, and that the Purchaser has no present intention of selling or otherwise
effecting a distribution of the same.
3.3 RELIANCE UPON PURCHASERS' REPRESENTATIONS. Purchaser understands that
the Common Stock has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), by reason of their
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issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof and Regulation D promulgated
under the Securities Act, and that the Company's reliance on such exemption is
predicated on Purchaser's representations contained in this Agreement.
3.4 INVESTMENT EXPERIENCE. Purchaser represents that Purchaser is
experienced in evaluating development-stage bio-technology companies such as the
Company, is able to fend for itself in transactions such as the one contemplated
by this Agreement, has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of its prospective
investment in the Company, and has the ability to bear the economic risks of the
investment.
3.5 RECEIPT OF INFORMATION. Purchaser represents that Purchaser has
reviewed the Disclosure Documents and has had an opportunity to ask questions of
and to receive answers from the Company regarding the business, properties,
prospects and financial condition of the Company and to obtain additional
information (to the extent the Company possesses such information or could
acquire it without unreasonable effort or expense) necessary to verify the
accuracy of the information furnished to the Purchaser or to which the Purchaser
had access.
3.6 LEGENDS. Each certificate representing shares of Common Stock issued
pursuant to this Agreement shall be endorsed with a legend in substantially the
following form, and Purchaser covenants that, except to the extent such
restrictions are waived by the Company, such Purchaser shall not transfer the
Common Stock without complying with the restrictions on transfer described in
the legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACT
(COLLECTIVELY, THE "SECURITIES LAWS"). THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS THEY (I) ARE REGISTERED UNDER THE
SECURITIES LAWS OR (II) ARE EXEMPT FROM REGISTRATION UNDER THE
SECURITIES LAWS AND THE CORPORATION IS PROVIDED AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.
3.7 ACCREDITED INVESTOR. Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D as promulgated by the Securities and
Exchange Commission and as presently in effect.
3.8 DOMICILE. Purchaser represents that it has its principal place of
business in the state set forth on the signature page.
4. RIGHT OF FIRST REFUSAL.
Subject to the terms and conditions specified in this Section 4, the
Company hereby grants to Purchaser for the period of one year following the
Closing Date, a right of first refusal to purchase its pro rata share of New
Securities (as defined in this Section 4) which the Company may, from time to
time, propose to sell and issue. Purchaser's pro rata share, for purposes of
this right of first refusal, is the ratio of the number of outstanding shares of
Common Stock and Common Stock issuable upon conversion of any convertible
security held of record by Purchaser immediately prior to the issuance of New
Securities to the total number of shares of Common Stock outstanding and Common
Stock issuable upon conversion of any convertible security outstanding
immediately prior to the issuance of New Securities. This right of first refusal
shall be subject to the following provisions:
4.1 "New Securities" shall mean any Common Stock of the Company whether
now authorized or not, issued in exchange for cash in a private placement
transaction. New Securities shall not include (i) securities issuable upon
exercise of existing rights to acquire Common Stock issued to consultants or
vendors of the Company, or (ii) any other issuances of capital stock of the
Company, or rights to acquire capital stock of the Company, which do not exceed
an aggregate of 268,481 shares of Common Stock, or the issuance of rights to
acquire such number of shares of Common Stock, or securities convertible into
such number of shares of Common Stock.
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4.2 In the event the Company proposes to undertake an issuance of New
Securities, it shall give Purchaser written notice of its intention, describing
the type of New Securities, and their price and the general terms upon which the
Company proposes to issue the same. Purchaser shall have 20 days after any such
notice is effective to agree to purchase Purchaser's pro rata share of such New
Securities for the price and upon the terms specified in the notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased.
4.3 In the event Purchaser fails to exercise fully the right of first
refusal within said 20-day period, the Company shall have 120 days thereafter to
sell or enter into an agreement (pursuant to which the sale of New Securities
covered thereby shall be closed, if at all, within 120 days from the date of
said agreement) to sell the New Securities respecting which Purchaser's right of
first refusal option set forth in this Section 4 was not exercised, at a price
and upon terms no more favorable to the purchasers thereof than specified in the
Company's notice to Purchaser pursuant to Section 4. In the event the Company
has not entered into an agreement to sell the New Securities within said 120-day
period (or sold and issued New Securities in accordance with the foregoing
within 120 days from the date of said agreement), the Company shall not
thereafter issue or sell any New Securities, without first again offering such
securities to Purchaser in the manner provided in Section 4 above.
5. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.
Purchaser's obligations to purchase the Common Stock at the Closing are, at
the option of Purchaser, subject to the fulfillment on or prior to the Closing
Date of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 2 hereof shall be true and correct in
all material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of said date, except for representations and warranties made as
of a specific date, which shall be true and correct in all material respects as
of such date.
5.2 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to such Closing Date shall
have been performed or complied with in all material respects, and all consents,
permits and waivers required to be obtained by the Company shall have been
obtained.
5.3 REGISTRATION RIGHTS AGREEMENT. The Company shall have executed and
delivered to Purchaser a Registration Rights Agreement, in substantially the
form attached hereto as Exhibit A.
5.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in form and substance to Purchaser and its counsel, and Purchaser
and its counsel shall have received all such counterpart originals or certified
or other copies of such documents as it may reasonably request.
6. CONDITIONS TO COMPANY'S OBLIGATION TO CLOSE.
The Company's obligation to sell and issue the Common Stock at the Closing
is, at the option of the Company, subject to the fulfillment of the following
conditions either before or on the Closing Date:
6.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations made by
Purchaser in Section 3 hereof shall be true and correct in all material respects
when made, and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as of said
date, except for representations and warranties made as of a specific date,
which shall be true and correct in all material respects as of such date.
6.2 BLUE SKY. The Company shall have obtained all necessary Blue Sky law
permits and qualifications, or secured an exemption therefrom pursuant to each
such state's counterpart to Regulation D as promulgated
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under the Securities Act, required by any state for the offer and sale of the
Common Stock, or shall do so within the applicable time periods.
6.3 WAIVER OF PREEMPTIVE RIGHTS. All holders of preemptive rights to
acquire common stock of the Company, if any, shall have waived such rights in
writing in connection with the transactions contemplated herein.
6.4 REGISTRATION RIGHTS AGREEMENT. Purchaser shall have executed and
delivered to the Company a Registration Rights Agreement, in substantially the
form attached hereto as Exhibit A.
6.5 NASDAQ NATIONAL MARKET APPROVAL. The Common Stock to be issued
pursuant to this Agreement shall have been approved for trading on the Nasdaq
National Market subject to notice of issuance.
6.6 HSR ACT. The waiting period (and any extension thereof) applicable to
the consummation of the transactions contemplated herein under the HSR Act shall
have expired or shall have been terminated.
7. CONDITIONS OF CLOSING.
7.1 PRE-CLOSING COVENANTS. The parties agree that Purchaser and the
Company shall promptly and in good faith (i) prepare and file any and all
notifications, shall cooperate with the Company in effecting any and all filings
and shall otherwise comply with the applicable requirements of the HSR Act in
connection with such notifications and filings; and (ii) prepare and file any
and all required applications for approval for trading on the Nasdaq National
Market subject to notice of issuance of the Common Stock to be issued pursuant
to this Agreement.
7.2 DELIVERIES AT CLOSING. Upon satisfaction of the parties' respective
obligations to close, the parties agree to execute the Joint Escrow
Instructions, in substantially the for attached as Exhibit A to the Escrow
Agreement directing Escrow Agent to release and deliver the Escrow Fund (as
defined in the Escrow Agreement), and that the Instructions and the
Consideration (as each term is defined in the Escrow Agreement) shall be
distributed pursuant to the terms of the Escrow Agreement.
8. MISCELLANEOUS.
8.1 SURVIVAL OF AGREEMENTS. All covenants, agreements, representations and
warranties made in this Agreement shall survive the execution and delivery of
this Agreement and the Closing.
8.2 PARTIES IN INTEREST; ASSIGNABILITY. The rights and obligations of the
parties hereto may not be assigned. All covenants and agreements contained in
this Agreement by or on behalf of any of the parties to this Agreement shall
bind and inure to the benefit of the respective successors and permitted assigns
of the parties to this Agreement whether or not so expressed.
8.3 PROFESSIONAL FEES AND EXPENSES. Private placement fees and commissions
shall be paid by the Company out of the gross proceeds of this offering. Each
party will bear its own expenses in connection with this offering.
8.4 GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington without regard
to principles of conflict of laws. It is agreed and understood that if any
action or other proceeding be brought on or in connection with this Agreement,
venue shall be in King County, Washington.
8.5 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified or amended except in writing signed by the Company and by the
holders of a majority of the outstanding Common Stock purchased hereby.
8.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.7 SEVERABILITY. Should any provisions or portion of this Agreement be
held unenforceable or invalid for any reason, the remaining provisions and
portions shall be unaffected by such holding.
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8.8 ATTORNEYS' FEES. In the event that it is necessary for any party to
engage an attorney to enforce the terms of this Agreement, the prevailing party
shall, in addition to any other relief, be entitled to recover from the party in
default reasonable attorneys' fees and costs, including any on appeal.
8.9 NOTICE. To be effective, any notice under this Agreement shall be in
writing, delivered in person, via facsimile (with confirmation copy mailed by
certified or registered mail, postage prepaid), or mailed by certified or
registered mail, postage prepaid, to the following addresses: (a) if to
Purchaser, at 110 -- 110th Avenue NE, Suite 550, Bellevue, Washington, 98004,
attn: Mr. William D. Savoy, or at such other address as Purchaser shall
designate by ten (10) days advance written notice to the other parties to this
Agreement, or (b) if to the Company, at 1000 Marina Boulevard, Suite 200,
Brisbane, California, 94005, attn: Robert C. Nowinski, or at such other address
as the Company shall designate by ten (10) days advance written notice to the
other parties to this Agreement. Unless otherwise specified in this Agreement,
all such notices and other written communications shall be effective (x) if
delivered, upon delivery, (y) if by facsimile, upon transmission with
confirmation of receipt by the receiving party's facsimile terminal, or (z) if
mailed, three (3) days after mailing.
8.10 SPECIFIC PERFORMANCE. Each of the Company and Purchaser acknowledges
and agrees that the other party would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Company and
Purchaser agrees that the other party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
jurisdiction over the Company, Purchaser and the matter, in addition to any
other remedy to which they may be entitled, at law or in equity.
IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase
Agreement as of the date and year first above written.
"COMPANY" VAXGEN, INC.
By: /s/ ROBERT C. NOWINSKI
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Robert C. Nowinski, Chairman of the
Board and Chief Executive Officer
"PURCHASER" VULCAN VENTURES, INC.
No. of Shares Purchased: 2,173,913
Total Price ($11.50 per share):
$24,999,999.50
/s/ WILLIAM D. SAVOY
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Vulcan Ventures, Inc.
By: William D. Savoy
Its: President
91-1374788
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Tax Identification Number
State of Formation: Washington
Address: 110 -- 110th Avenue NE, Suite
550
Bellevue, WA 98004
(425) 453-1940
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Telephone Number
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