UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 28, 2015
ALEXZA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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000-51820 |
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77-0567768 |
(State or other jurisdiction |
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(Commission |
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(IRS Employer |
of incorporation) |
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File Number) |
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Identification No.) |
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Alexza Pharmaceuticals, Inc.
2091 Stierlin Court Mountain View, California |
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94043 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (650) 944-7000
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1 Registrants Business and Operations
Item 1.01. Entry into a Material Definitive Agreement.
On September 28, 2015, Alexza Pharmaceuticals, Inc., or Alexza, issued a promissory note to Grupo Ferrer Internacional, S.A., or Ferrer,
in the maximum principal amount of $5 million, or the Ferrer Note. The terms of the Ferrer Note provide that (i) Ferrer will loan to Alexza up to $5 million in two tranches of $3 million and $2 million, respectively, (ii) Ferrer will make
the initial tranche of $3 million available to Alexza on September 28, 2015 and Alexza will have the option to borrow the second tranche of $2 million at any time on or after January 1, 2016, (iii) interest will accrue on the
outstanding principal at the rate of 6% per annum, compounded monthly, through May 31, 2016, (iv) all outstanding principal and accrued interest under the Ferrer Note is due and payable upon Ferrers demand on May 31, 2016,
(v) Alexza may prepay the Ferrer Note at any time without premium or penalty, and (vi) Alexza will issue to Ferrer 125,000 shares of Alexzas common stock, or the Shares, as of the date that Ferrer makes the first tranche of $3
million available to Alexza as partial consideration for the loan.
Section 3 Securities and Trading Markets
Item 3.02. Unregistered Sales of Equity Securities.
The information provided above under Item 1.01 is incorporated into this Item 3.02 by reference.
The Shares will be issued to Ferrer in accordance with the terms of the Ferrer Note and the related Stock Issuance Agreement on
September 28, 2015 as partial consideration for Ferrer entering into the Ferrer Note.
The Stock Issuance Agreement will contain
representations and warranties that each party will make to, and solely for the benefit of, the other in the context of all of the terms and conditions of that agreement and in the context of the specific relationship between the parties. The
provisions of the Stock Issuance Agreement, including the representations and warranties contained therein, will not be for the benefit of any party other than the parties to such agreement, and will not be intended as a document for investors and
the public to obtain factual information about the current state of affairs of the parties to such agreement.
The Shares to be issued to
Ferrer pursuant to the Stock Issuance Agreement will not be registered at the time of issuance under the Securities Act of 1933, as amended, or the Securities Act, and may not be offered or sold in the United States absent registration or an
applicable exemption from registration requirements. Alexza will issue such shares in reliance on the exemption from registration provided for under Section 4(a)(2) of the Securities Act and Regulation D or Regulation S promulgated thereunder.
Alexza will rely on the exemption from registration based in part on the representations made by Ferrer, including the representations with respect to Ferrers status as an accredited investor, as such term is defined in Rule 501(a) of the
Securities Act, and Ferrers investment intent with respect to such shares, and appropriate legends will be affixed to the certificates representing such shares. This Current Report on Form 8-K shall not constitute an offer to sell or a
solicitation of an offer to buy, nor shall there be any sale of, the securities described herein in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the
securities laws of any such state or other jurisdiction.
Section 8 Other Events
Item 8.01. Other Events.
On
September 28, 2015, Alexza announced that it has retained Guggenheim Securities, LLC to assist in exploring strategic options to enhance stockholder value, including a possible sale or disposition of one or more corporate assets, a strategic
business combination, partnership or other transactions. This press release is furnished as Exhibit 99.1 hereto, the contents of which are incorporated herein by reference.
Forward-Looking Statements
Statements in this Current Report on Form 8-K that are not strictly historical in nature constitute forward-looking statements.
Such statements include, but are not limited to, Alexzas issuance of securities, the amount of proceeds from the loan, the availability of either tranche of the loan to Alexza, and the likelihood of completing a strategic transaction. Such
forward-looking statements involve known and unknown risks, uncertainties, and other factors, that may cause actual results to be materially different from any results expressed or implied by such forward-looking statements. For example, there are
risks associated with Ferrer fulfilling its obligation to make each tranche of the loan available to Alexza and risks and uncertainties inherent in the process of exploring strategic transactions. Alexza does not have a defined timeline for the
strategic process and is not confirming that the
process will result in any specific action or transaction. All forward-looking statements are qualified in their entirety by this cautionary statement. Alexza is providing this information as of
this date and does not undertake any obligation to update any forward-looking statements contained in this report as a result of new information, future events or otherwise.
Section 9 - Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
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Exhibit Number |
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Description |
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10.1 |
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Promissory Note issued by the Registrant to Grupo Ferrer Internacional, S.A. dated September 28, 2015. |
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10.2 |
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Stock Issuance Agreement between the Registrant and Grupo Ferrer Internacional, S.A. dated September 28, 2015. |
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99.1 |
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Press Release titled Alexza Retains Guggenheim Securities, LLC to Explore Strategic Options dated September 28, 2015. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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ALEXZA PHARMACEUTICALS, INC. |
Date: September 28, 2015 |
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By: |
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/s/ Thomas B. King |
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Thomas B. King President and Chief Executive
Officer |
INDEX TO EXHIBITS
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Exhibit Number |
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Description |
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10.1 |
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Promissory Note issued by the Registrant to Grupo Ferrer Internacional, S.A. dated September 28, 2015. |
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10.2 |
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Stock Issuance Agreement between the Registrant and Grupo Ferrer Internacional, S.A. dated September 28, 2015. |
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99.1 |
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Press Release titled Alexza Retains Guggenheim Securities, LLC to Explore Strategic Options dated September 28, 2015. |
Exhibit 10.1
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (OID) FOR U.S. FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE
DATE AND YIELD TO MATURITY WITH RESPECT TO THIS NOTE MAY BE OBTAINED BY WRITING TO BORROWER AT THE FOLLOWING ADDRESS: 2091 STIERLIN COURT, MOUNTAIN VIEW, CA 94043 ATTENTION: CHIEF EXECUTIVE OFFICER FAX NUMBER: (650) 944-7999
PROMISSORY NOTE
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$5,000,000 |
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September 28, 2015 |
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Mountain View, CA |
FOR VALUE RECEIVED,
ALEXZA PHARMACEUTICALS, INC., a Delaware corporation (Borrower), hereby promises to pay to the order of GRUPO FERRER
INTERNACIONAL, S.A., a company organized under the laws of Spain (Lender), in lawful money of the United States of America (Dollars), the principal sum of Five Million Dollars
($5,000,000) (the Loan), or such lesser amount as may be outstanding or advanced from time to time under this Note, together with accrued and unpaid interest thereon, each due and payable on the dates and in the manner set
forth below.
1. Principal Repayment. The outstanding principal amount of the Loan shall be due and payable on May 31, 2016
(the Maturity Date).
2. Interest Rate. Borrower further promises to pay interest on
the outstanding principal amount hereof from the date hereof until payment in full, which interest shall be payable at the rate of six percent (6%) per annum. Interest shall compound monthly and be due and payable on demand on the Maturity Date
and shall be calculated on the basis of a 365-day year for the actual number of days elapsed. Notwithstanding the foregoing, interest shall accrue from the date hereof only upon the First Tranche (as defined below) and no interest shall accrue on
the Second Tranche (as defined below) until such time that the Borrower makes a request to borrow the Second Tranche and such funds are made available to the Borrower.
3. Place of Payment. All amounts payable hereunder shall be payable at the office of Lender, Av. Diagonal 549, E-08029 Barcelona,
Spain, unless another place of payment shall be specified in writing by Lender.
4. Prepayment. Borrower may prepay this
Note at any time without premium or penalty.
5. Application of Payments. Payment on this Note shall be applied first to
accrued interest, and thereafter to the outstanding principal balance hereof.
1.
6. Loan Requests. Lender shall, as of the date hereof, make immediately available to
Borrower Three Million Dollars ($3,000,000) (the First Tranche) of the principal amount indicated on the face of this Note for borrowings by Borrower. Lender shall make the remaining balance of the principal
amount indicated on the face of this Note (the Second Tranche) available for borrowings upon request by the Borrower made on or after January 1, 2016, provided that whenever Borrower desires a loan on the
Second Tranche, Borrower shall notify Lender by facsimile transmission or telephone no later than 4:00 p.m. Pacific time, four (4) business days prior to the date on which the loan is requested to be made. At the time of any borrowing under
this Note (or at the time of receipt of any payment of principal), Lender shall make or cause to be made, an appropriate notation on the EXHIBIT A attached hereto reflecting the amount of such borrowing (or the amount of such
payment). The outstanding amount of this Note set forth on such EXHIBIT A shall be prima facie evidence of the principal amount thereof outstanding, but the failure to record, or any error in so recording, shall not limit or
otherwise affect the obligations of Borrower to make payments of principal of or interest on this Note when due. Borrower and Lender hereby acknowledge that the initial principal amount outstanding under this Note as of the date hereof shall be
Three Million Dollars ($3,000,000), as indicated on the attached EXHIBIT A, and the maximum principal amount of loans under this Note shall not exceed Five Million Dollars ($5,000,000).
7. Stock Issuance. As additional consideration for the Loan, on the date Borrower receives the First Tranche, Borrower shall issue to
Lender one-hundred and twenty-five thousand (125,000) shares of Borrowers common stock, par value $0.0001 per share.
8. Default. Each of the following events shall be an Event of Default hereunder:
(a) Borrower fails to pay timely any of the principal amount due under this Note or any accrued interest or other amounts due under
this Note on the date the same becomes due and payable or within ten (10) business days thereafter;
(b) Borrower files any
petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes
any corporate action in furtherance of any of the foregoing; or
(c) An involuntary petition is filed against Borrower (unless such
petition is dismissed or discharged within sixty (60) days) under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take
possession, custody or control of any property of Borrower.
Upon the occurrence of an Event of Default hereunder, all unpaid principal, accrued interest
and other amounts owing hereunder shall, at the option of Lender, and, in the case of an Event of Default pursuant to (b) or (c) above, automatically, be immediately due, payable and collectible by Lender pursuant to
applicable law.
9. Waiver. Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest
of this Note, and shall pay all costs of collection when incurred, including, without limitation, reasonable attorneys fees, costs and other expenses.
The right to plead any and all statutes of limitations as a defense to any demands hereunder is hereby waived to the full extent permitted by
law.
2.
10. Governing Law. This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.
11. Taxes. Borrower shall deduct and withhold from payments due pursuant to this Note any taxes required to be deducted and withheld
under applicable law. Any such withheld taxes shall be timely paid over to the appropriate governmental authority in accordance with applicable law. To the extent that taxes are deducted and withheld from payments otherwise payable pursuant to this
Note, and are paid to the appropriate governmental authority, such deducted and withheld amounts shall be treated for all purposes of this Note as having been paid to the person in respect of whom such deduction and withholding was made. Borrower
shall provide such person with proof reasonably satisfactory to such person of any taxes withheld and paid to any governmental authority on behalf of such person. On or prior to the date hereof, Lender shall deliver to Borrower (i) two executed
originals of the applicable IRS Form W-8, and (ii) to the extent Lender is eligible for an exemption from or reduction of any otherwise applicable withholding tax, any other applicable documentation required or reasonably requested by Borrower
to establish that Lender is entitled to such exemption or reduction. As soon as reasonably practicable following any transfer by Lender of the Note to an assignee (or any other successor to Lenders interest in the Note), such assignee or
successor, as applicable, shall deliver to Borrower (i) in the case such assignee or transferee is a United States person (as defined in Section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended, (the
Code)) (a U.S. Person), two executed originals of IRS Form W-9 certifying that such assignee or successor is not subject to U.S. federal backup withholding, or (ii) in the case such assignee
or transferee is not a U.S. Person, (a) two executed originals of the applicable IRS Form W-8, and (b) to the extent such assignee or transferee is eligible for an exemption from or reduction of any otherwise applicable withholding tax,
any other applicable documentation required or reasonably requested by Borrower to establish that such assignee or transferee is entitled to such exemption or reduction. Lender, its assignees, transferees and Borrower shall use commercially
reasonable efforts to establish any applicable exemption from or reduction of otherwise applicable withholding taxes with respect to payments made hereunder. If any payment hereunder to a non-U.S. Person is subject to Sections 1471-1474 of the Code
(FATCA), the applicable non-U.S. Person shall provide Borrower with all documentation prescribed by applicable law or reasonably requested by Borrower in order for Borrower to comply with its obligations under, and
determine the amount, if any, of withholding taxes imposed pursuant to FATCA.
12. Original Issue Discount. The issue
price for the First Tranche issued pursuant to this Note shall equal (i) the face value of the Lenders interest in the portion of the Loan associated with the First Tranche, minus (ii) the Stock Value (as defined below). Lender
and Borrower agree (x) that the portion of the Loan associated with the First Tranche is part of an investment unit issued within the meaning of Section 1273(c)(2) of the Code, which also includes the stock issued pursuant to
Section 7 of this Note, (y) that the allocation provided in this Section 12 will be used for purposes of Section 1273(c)(2) of the Code and (z) to use the foregoing issue prices for all applicable Tax purposes with respect
to this transaction, except as otherwise required by applicable law. Borrower and Bank agree to make any determinations under Treasury Regulations §1.1273-2(h)(2) consistent with the foregoing and to file all required tax returns consistently
with the foregoing, as applicable, except as otherwise required by applicable law. Lender and Borrower hereby agree (i) that the Stock Value shall be $ , (ii) to
consistently apply the Stock Value for all tax and information reporting purposes, and (iii) to take no action inconsistent with the Stock Value for such purposes unless otherwise required by applicable law.
3.
13. Mutual Waiver of Jury Trial. BORROWER AND LENDER EACH WAIVE THEIR
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS NOTE OR ANY RELATED DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL
INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS NOTE. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
14. Successors and
Assigns. The provisions of this Note shall inure to the benefit of and be binding on any successor to Borrower and shall extend to any holder hereof, provided however that the right to receive principal and/or interest payments may be assigned
or transferred only by (i) surrender of this Note to Borrower and (a) reissuance by Borrower of this Note to the new holder or (b) issuance by Borrower of a new note to the new holder, or (ii) notification to Borrower of the
transfer and a change by Borrower in Borrowers books and records identifying the new owner of an interest in the principal or interest on this Note. Borrower shall at all times maintain a book-entry system, which shall reflect ownership of
this Note and interests therein.
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BORROWER: |
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ALEXZA PHARMACEUTICALS, INC. |
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By: |
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/s/ Thomas B. King |
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Printed Name: Thomas B. King |
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Title: President & CEO |
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LENDER: |
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GRUPO FERRER INTERNACIONAL, S.A. |
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By: |
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/s/ Jorge Ramentol Massana |
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Printed Name: Jorge Ramentol Massana |
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Title: CEO |
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By: |
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/s/ Juan Fanés Trillo |
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Name: Juan Fanés Trillo
Title: CFO |
4.
EXHIBIT A
PRINCIPAL BORROWINGS SCHEDULE
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DATE |
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BORROWING |
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REPAYMENT |
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PRINCIPAL BALANCE |
SEPTEMBER 28, 2015 |
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$3,000,000 |
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$3,000,000 |
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Exhibit 10.2
ALEXZA PHARMACEUTICALS, INC.
STOCK ISSUANCE AGREEMENT
THIS STOCK ISSUANCE AGREEMENT (this Agreement) is made as of September 28, 2015, by and among
ALEXZA PHARMACEUTICALS, INC., a Delaware corporation (the Company), with its principal office at 2091 Stierlin Court, Mountain View, California 94043, and
GRUPO FERRER INTERNACIONAL, S.A. (Ferrer).
RECITALS
WHEREAS, on September 28, 2015, the Company issued to Ferrer a Promissory Note in the maximum principal amount of
$5,000,000 (the Note);
WHEREAS, pursuant to the terms of the Note, the Company has agreed to issue to
Ferrer the Stock (as defined below) as partial consideration for the Loan (as defined in the Note);
WHEREAS, the Company and
Ferrer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the provisions of Section 4(a)(2) of the Securities Act (as defined herein), Rule 506 of Regulation D, as
promulgated by the SEC (as defined herein) under the Securities Act (Regulation D), and/or Regulation S, as promulgated by the SEC under the Securities Act (Regulation S); and
WHEREAS, at the Closing (as defined herein), the Company desires to issue the Stock upon the terms and conditions stated in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties and
covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
AUTHORIZATION
AND SALE OF COMMON SHARES AND WARRANTS
1.1. Authorization. The Company has authorized the issuance of up to 125,000 shares
(the Stock) of the Companys common stock, par value $0.0001 per share (Common Stock) pursuant to this Agreement and the terms of the Note.
1.2. Issuance of Stock. At the Closing, subject to the terms and conditions of this Agreement, including without limitation, the
conditions set forth in Article 5 and Article 6 of this Agreement, the Company shall issue the Stock to Ferrer as partial consideration for the Loan.
ARTICLE 2
CLOSING
DATES; DELIVERY
2.1 Closing Date. Subject to the satisfaction (or waiver) of the conditions thereto set forth in
Article 5 and Article 6 of this Agreement, the issuance of the Stock hereunder (the Closing) shall be held at the offices of Cooley LLP (Cooley), 380 Interlocken Crescent,
Suite 900, Broomfield, Colorado 80021, at 10:00 a.m. local time on the date hereof, or at such other time and place upon which the Company and Ferrer shall agree. The date of the Closing is hereinafter referred to as the
Closing Date.
2.2 Delivery. At the Closing, the Company will deliver or cause to be delivered to Ferrer
a certificate representing, or evidence of the uncertificated shares of, the Stock issued to Ferrer. Such delivery shall be against performance of Ferrers obligations to make the First Tranche (as defined in the Note) available to the Company
by wire transfer of immediately available funds to the Company in accordance with the Companys written wiring instructions.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Ferrer on and as of the date hereof:
3.1 Organization and Standing. The Company is a corporation duly organized and validly existing under, and by virtue of, the laws of
the State of Delaware and is in good standing as a domestic corporation under the laws of said state. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such
qualification is required, except where the failure to so qualify or be in good standing would not, either individually or in the aggregate, reasonably be expected to have a material adverse effect on the Companys properties or assets or the
business of the Company as currently conducted (a Material Adverse Effect).
3.2 Subsidiaries. Except as
disclosed in the SEC Documents (as defined herein), the Company does not own or control any equity security or other interest of any corporation, limited partnership or other business entity. All of the direct and indirect subsidiaries of the
Company are set forth in the SEC Documents (the Subsidiaries). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any liens, and all the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights. Each Subsidiary is an entity duly incorporated or otherwise organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
3.3 Corporate Power; Authorization. The Company has all requisite legal and corporate power and has taken all requisite corporate
action to execute and deliver this Agreement, to issue the Stock and to carry out and perform all of its obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of creditors rights generally and (b) as limited by equitable
principles generally. The execution and delivery of this Agreement does not, the performance of this Agreement and the compliance with the provisions hereof will not, and the issuance and delivery of the Stock by the Company will not, materially
conflict with, or result in a material breach or violation of the terms, conditions or provisions of, or constitute a material default under, or result in the creation or imposition of any material lien pursuant to the terms of, the Companys
Restated Certificate of Incorporation, as amended (the Restated Certificate), or the Companys Amended and Restated Bylaws, as amended (the Bylaws), or any statute, law, rule or regulation or
any state or federal order, judgment or decree to which the Company or any of its properties is subject. Except as disclosed in the SEC Documents, there are no stockholder agreements, voting agreements, or other similar arrangements with respect to
the Companys capital stock to which the Company is a party or, to the Companys knowledge, between or among any of the Companys stockholders.
3.4 Issuance and Delivery of the Stock. The Stock has been duly authorized, and when issued in compliance with the provisions of this
Agreement and the Restated Certificate, the Stock will be validly issued, fully paid and nonassessable. The issuance and delivery of the Stock is not subject to preemptive or any other similar rights of the stockholders of the Company or to any
liens or encumbrances. Assuming the accuracy of the representations and warranties of Ferrer in this Agreement, the Stock will be issued in compliance with all applicable federal and state securities laws.
3.5 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 SEC) under Sections 13, 14(a) and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), during the 12 months
preceding the date of this Agreement. As of their respective filing dates, all documents filed by the Company with the SEC (the SEC Documents) complied in all material respects with the requirements of the Exchange Act or
the Securities Act of 1933, as amended (the Securities Act), as applicable. 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 SEC with respect thereto. The Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently applied and fairly present the consolidated financial position of the Company and any subsidiaries at the dates thereof and the consolidated results of their operations and consolidated
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cash flows for the periods then ended (subject, in the case of unaudited statements, to normal, recurring adjustments or to the extent that such unaudited statements do not include footnotes).
Except as disclosed in the SEC Documents, since December 31, 2013, the Company has not altered materially its method of accounting or the manner in which it keeps its accounting books and records. Except as disclosed in the SEC Documents, 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 (other than in connection with
repurchases of unvested stock issued to employees of the Company). The Company has not issued any equity securities to any officer, director or affiliate, except (a) Common Stock issued pursuant to existing Company stock option, restricted
stock unit or stock purchase plans or executive and director corporate arrangements disclosed in the SEC Documents, (b) Common Stock issued pursuant to other existing agreements disclosed in the SEC Documents or (c) otherwise as disclosed
in the SEC Documents. The Company has no liabilities or obligations required to be disclosed in the SEC Documents that are not so disclosed in the SEC Documents, which, individually or in the aggregate, would have or reasonably be expected to have a
Material Adverse Effect.
3.6 Authorized Capital Stock. The authorized capital stock of the Company consists of
(a) 200,000,000 shares of Common Stock, $0.0001 par value, of which, as of September 25, 2015, 19,444,729 shares were outstanding, and (b) 5,000,000 shares of Preferred Stock, $0.0001 par value, none of which shares are currently
outstanding. Except as disclosed in the SEC Documents and as contemplated by this Agreement, there are no outstanding warrants, debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing
indebtedness of the Company or by which the Company is bound, options (other than options issued pursuant to the Companys equity incentive plans subsequent to December 31, 2014), convertible securities or other rights, agreements or
arrangements of any character under which the Company is or may be obligated to issue any equity securities of any kind. No shares of the Companys outstanding capital stock are subject to preemptive rights or any other similar rights. Except
as disclosed in the SEC Documents, there are no agreements or arrangements under which the Company is obligated to register the sale of any of its securities under the Securities Act. There are no outstanding securities or instruments of the
Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company. There are no securities or
instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Stock. Except as disclosed in the SEC Documents, the Company does not have any stock appreciation rights or phantom stock plans or
agreements or any similar plan or agreement.
3.7 Disclosure. The information contained in the Exchange Act Documents as of the
date hereof does not contain an 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, in light of the circumstances under which they were made, not misleading.
For purposes herein, Exchange Act Documents are the documents filed by the Company under the Exchange Act, since the end of the Companys 2014 fiscal year through the date hereof, including, without limitation, its
most recent annual report on Form 10-K. The Company confirms that neither it nor any of its officers or directors nor any other person acting on its or their behalf has provided, and it has not authorized any other party to provide, Ferrer or its
respective agents or counsel with any information that it believes constitutes or could reasonably be expected to constitute material, non-public information except insofar as the existence, provisions and terms of this Agreement, the Note and the
proposed transactions hereunder and thereunder may constitute such information, all of which will be disclosed by the Company in, prior to, or contemporaneously with, the filing contemplated by Section 7.7 hereof. The Company understands and
confirms that Ferrer will rely on the foregoing representations in effecting transactions in securities of the Company. No event or circumstance has occurred or information exists with respect to the Company or its business, properties, operations
or financial conditions, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed, except for the announcement of this Agreement, the Note
(if disclosed concurrently with this Agreement) and related transactions and as may be disclosed in the Current Report on Form 8-K filed by the Company.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF FERRER
Ferrer hereby represents and warrants to and agrees with the Company on and as of the date hereof:
4.1 Authorization. Ferrer represents and warrants to the Company that: (a) Ferrer has all requisite legal and corporate or other
power and capacity and has taken all requisite corporate or other action to execute and deliver this Agreement, to acquire the Stock, issue the Loan and to carry out and perform all of its obligations under this Agreement and the Note; and
(b) this Agreement constitutes the legal, valid and binding obligation of Ferrer,
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enforceable against Ferrer in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement
of creditors rights generally and (ii) as limited by equitable principles generally.
4.2 Investment Experience. Ferrer
is an accredited investor as defined in Rule 501(a) under the Securities Act. Ferrer is aware of the Companys business affairs and financial condition and has had access to and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Stock. Ferrer has such business and financial experience as is required to give it the capacity to protect its own interests in connection with the purchase of the Stock.
4.3 Investment Intent. Ferrer is acquiring the Stock for its own account as principal and not with a present view to, or for, resale,
distribution or fractionalization thereof, in whole or in part, within the meaning of the Securities Act. Ferrer understands that its acquisition of the Stock has not been registered under the Securities Act or registered or qualified under any
state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of Ferrers investment intent as expressed herein. Ferrer, in connection with its decision to acquire
the Stock, has relied solely upon the SEC Documents and the representations and warranties of the Company contained herein. Ferrer 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) the Stock except in compliance with the Securities Act and the rules and regulations promulgated thereunder.
4.4 Registration or Exemption Requirements. Ferrer further acknowledges and understands that the Stock may not be resold or otherwise
transferred except pursuant to an effective registration statement filed under the Securities Act, in accordance with the provisions of Regulation S or pursuant to an available exemption from registration.
4.5 Dispositions.
(a) Ferrer will not, if then prohibited by law or regulation: (i) sell, offer to sell, solicit offers to buy, dispose of, loan,
pledge or grant any right with respect to (collectively, a Disposition) the Stock; or (ii) engage in any hedging or other transaction (including, without limitation, any Short Sales (as defined herein) involving the
Companys securities) which is designed or could reasonably be expected to lead to or result in a Disposition of all or any portion of the Stock by Ferrer or an affiliate. In addition, Ferrer agrees that for so long as it owns any portion of
the Stock, it will not enter into any Short Sale of the Common Stock executed at a time when Ferrer has no equivalent offsetting long position in the Common Stock. For purposes of determining whether Ferrer has an equivalent offsetting long position
in the Common Stock, shares of Common Stock that Ferrer is entitled to receive within 60 days (whether pursuant to contract or upon conversion or exercise of convertible securities) will be included as if held long by Ferrer.
(b) Ferrer has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with Ferrer, engaged
in any transactions in the Companys securities (including, without limitation, any Short Sales involving the Companys securities) since the time that Ferrer was first contacted by the Company or any other Person regarding the
transactions contemplated hereby. Ferrer covenants that neither it nor any Person acting on its behalf or pursuant to any understanding with it will engage in any transactions in the Companys securities (including, without limitation, any
Short Sales involving the Companys securities) prior to the time that the transactions contemplated by this Agreement are publicly disclosed.
For
purposes of this Section 4.5, (i) Person shall include, without limitation, any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company
or joint stock company and (ii) Short Sales shall include, without limitation, all short sales as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act and all types of
direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker-dealers or foreign regulated
brokers.
4.6 No Legal, Tax or Investment Advice. Ferrer understands that nothing in this Agreement or any other materials
presented to Ferrer in connection with its acquisition of the Stock or the Note constitutes legal, tax or investment advice. Ferrer has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its acquisition of the Stock and the Note.
4.7 Confidentiality. Ferrer will hold in confidence all
information concerning this Agreement, the Note and
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the placement of the Stock hereunder until the earlier of such time as (a) the Company has made a public announcement concerning the Agreement, the Note and the placement of the Stock
hereunder or (b) this Agreement and the Note are terminated, except that the obligation of confidentiality shall not extend to information that (i) is or was already in Ferrers possession prior to its being furnished to Ferrer by or
on behalf of the Company; (ii) has become generally available to the public other than as a result of a disclosure by Ferrer; (iii) has become available to Ferrer on a non-confidential basis from a source other than the Company or its
representatives, and (iv) is requested or required by Ferrers advisory clients in connection with the consummation of this Agreement, which clients are subject to confidentiality agreements as least as restrictive as those contained in
this Agreement.
4.8 Residency. Ferrers executive offices in which its investment decision was made are in the jurisdiction
indicated below Ferrers name Section 9.6 hereof.
4.9 Bad Actor Matters. Ferrer hereby represents that none of the
Bad Actor disqualifying events described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a Disqualification Event) is applicable to such Investor or any of its Rule 506(d) Related Parties (as
defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Ferrer hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event
becomes applicable to such Investor or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 4.9,
Rule 506(d) Related Party shall mean a person or entity that is a beneficial owner of such Ferrers securities for purposes of Rule 506(d) of the Act
4.10 Governmental Review. Ferrer understands that no United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the Stock.
4.11 Legend.
(a) Ferrer understands that, until such time as the Stock may be sold pursuant to Rule 144 under the Securities Act
(Rule 144) without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Stock may bear a restrictive legend in substantially the following form (and a stop
transfer order may be placed against transfer of the certificates for the Stock):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN
ACQUIRED PURSUANT TO REGULATION S OF THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT) AND HAVE NOT BEEN REGISTERED UNDER THE ACT, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR IN ANY OTHER JURISDICTION. THE SECURITIES
REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS UNLESS OFFERED, SOLD OR TRANSFERRED
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. IN ADDITION, NO HEDGING TRANSACTION MAY BE CONDUCTED WITH RESPECT TO THESE SECURITIES UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE ACT.
(b) The Company agrees that at such time as such legend is no longer required under this Section 4.11, it will, no later than
three business days following the delivery by Ferrer to the Company or the Companys transfer agent of a certificate representing the Stock issued with a restrictive legend, deliver or cause to be delivered to Ferrer a certificate representing
such shares that is free from any legend referring to the Securities Act. The Company shall not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this
Section. Certificates for Stock subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to Ferrer by crediting the account of Ferrers prime broker with the Depository Trust Company.
(c) Ferrer agrees that the removal of the restrictive legend from certificates representing Stock as set
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forth in this Section 4.11 is predicated upon the Companys reliance that Ferrer will sell any Stock pursuant to either (i) the registration requirements of the Securities Act and
Ferrer shall have delivered a current prospectus in connection with such sale (if required under the Securities Act) or Ferrer shall have confirmed that a current prospectus is deemed to be delivered in connection with such sale in accordance with
Rule 172 under the Securities Act (Rule 172), (ii) in accordance with the provisions of Regulation S or (iii) pursuant to an available exemption from registration.
(d) The restrictive legend set forth in Section 4.11(a) above shall be removed and the Company shall issue a certificate without
such restrictive legend or any other restrictive legend to the holder of the applicable shares upon which it is stamped or issue to such holder by electronic delivery with the applicable balance account at the Depository Trust Company or in physical
certificated shares, if appropriate, if (i) the Stock is registered for resale under the Securities Act (provided that, if Ferrer is selling pursuant to the effective registration statement registering the Stock for resale, Ferrer agrees to
only sell the Stock during such time that such registration statement is effective and Ferrer is not aware or has not been notified by the Company that such registration statement has been withdrawn or suspended, and only as permitted by such
registration statement); or (ii) the Stock is sold or transferred pursuant to Rule 144 (if the transferor is not an Affiliate of the Company); or (iii) the Stock is eligible for sale without the requirement for the Company to be in
compliance with the current public information required under Rule 144 as to such securities and without volume or manner-of-sale restrictions.
4.12 Foreign Investors. If Ferrer is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended), Ferrer hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Stock or any use of this Agreement, including (a) the
legal requirements within its jurisdiction for the purchase of the Stock, (b) any foreign exchange restrictions applicable to such purchase or acquisition, (c) any government or other consents that may need to be obtained, and (d) the
income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Stock. Ferrers acquisition and continued beneficial ownership of the Stock will not violate any applicable
securities or other laws of Ferrers jurisdiction.
4.13 Non-U.S. Purchaser. The Stock is being acquired for investment for
Ferrers own account, not as a nominee or agent, and not for the account or benefit of, a U.S. Person (as defined in Section 9.11), and not with a view to the resale or distribution of any part thereof in the United States (as defined in
Section 9.12) or to a U.S. Person, and that Ferrer has no present intention of selling, granting any participation in, or otherwise distributing such Stock.
4.14 No Arrangements. Ferrer 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 in the United States or to a U.S. Person, or any hedging transaction with any third person in the United States or to a United States resident, with respect to any of the Stock.
4.15 Regulation S Reliance. Ferrer understands that the Stock is not registered under the Securities Act on the ground that the sale
provided for in this Agreement and the issuance of securities hereunder is exempt from registration under the Securities Act pursuant to Regulation S thereof, and that the Companys reliance on such exemption is predicated on Ferrers
representations set forth herein.
ARTICLE 5
CONDITIONS TO CLOSING OBLIGATIONS OF FERRER
Ferrers obligation to acquire the Stock at the Closing is, at the option of Ferrer, subject to the fulfillment or waiver as of the
Closing Date of the following conditions:
5.1 Representations and Warranties. The representations and warranties made by the
Company in Article 3 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct as of such earlier date, and the representations and warranties made by the Company in Article 3 hereof not qualified as to materiality shall be true and correct in all material respects at
all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such
earlier date.
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5.2 Covenants. All covenants, agreements and conditions contained in this Agreement to be
performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects.
5.3
Judgments. No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no
action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.
ARTICLE 6
CONDITIONS TO
CLOSING OBLIGATIONS OF COMPANY
The Companys obligation to issue the Stock at the Closing is, at the option of the Company,
subject to the fulfillment or waiver as of the Closing Date of the following conditions:
6.1 Receipt of First Tranche. Ferrer
shall have made the First Tranche available to the Company.
6.2 Representations and Warranties. The representations and warranties
made by Ferrer in Article 4 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which
case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by Ferrer in Article 4 hereof not qualified as to materiality shall be true and correct in all material
respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects
as of such earlier date.
6.3 Covenants. All covenants, agreements and conditions contained in this Agreement and the Note to be
performed by Ferrer on or prior to the Closing Date shall have been performed or complied with in all material respects.
ARTICLE 7
COVENANTS
7.1
Compliance with Securities Laws. Ferrer 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 Stock purchased
hereunder except in compliance with the Securities Act, applicable blue sky laws, and the rules and regulations promulgated thereunder.
7.2 Resale Compliance Ferrer hereby agrees to resell the Stock only in accordance with the provisions of Regulation S, pursuant to
an effective registration statement filed under the Securities Act, or pursuant to an available exemption from registration. Ferrer further agrees not to engage in hedging transactions with regard to the Stock unless in compliance with the
Securities Act.
7.3 Stop Transfer Restrictions. The Company hereby agrees, for the benefit of Ferrer, that it will not register
any transfer of the Stock not made in accordance with the provisions of Regulation S, pursuant to an effective registration statement filed under the Securities Act, or pursuant to an available exemption from registration.
7.4 Delivery of Certificate. Within a reasonable time following the Closing Date, the Company shall have delivered to Ferrer a duly
executed certificate for, or evidence of uncertificated shares of, the Stock.
7.5 Reporting Requirements.
(a) With a view to making available the benefits of certain rules and regulations of the SEC that may at any time permit the sale of
the Stock to the public without registration, the Company agrees to use its commercially reasonable efforts to:
(i) make and
keep public information available, as those terms are understood and defined in Rule 144;
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(ii) file with the SEC in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act; and
(iii) so long as Ferrer owns Stock, to furnish to Ferrer
upon request (A) a written statement by the Company as to whether it is in compliance with the reporting requirements of Rule 144, the Securities Act and the Exchange Act and (B) a copy of the most recent annual or quarterly report of
the Company and such other reports and documents so filed by the Company.
7.6 Blue Sky. The Company agrees to timely file a
Form D with respect to the Stock if required under Regulation D. The Company shall obtain and maintain all necessary blue sky law permits and qualifications, or secured exemptions therefrom, required by any state for the offer and sale of
Stock.
7.7 Current Report on Form 8-K. The Company shall timely file a Current Report on Form 8-K regarding this Agreement, the
Note and the issuance of the Stock.
7.8 Delivery of Purchaser Questionnaire. Upon the request of the Company, Ferrer shall deliver
to the Company within a reasonably prompt time, a customary questionnaire with respect to Ferrers ownership of the Companys securities and certain other customary matters.
ARTICLE 8
RESTRICTIONS
ON TRANSFERABILITY OF STOCK;
COMPLIANCE WITH SECURITIES ACT
8.1 Restrictions on Transferability. The Stock shall not be transferable in the absence of an effective registration statement filed
under the Securities Act, in accordance with the provisions of Regulation S, or pursuant to an available exemption from registration. The Company shall be entitled to give stop transfer instructions to its transfer agent with respect to the Stock in
order to enforce the foregoing restrictions.
8.2 Transfer of Stock.
(a) Ferrer agrees that it will not effect any disposition of the Stock that would constitute a sale within the meaning of the
Securities Act, except:
(i) in accordance with the provisions of Regulation S;
(ii) in accordance with an effective registration statement filed under the Securities Act, in which case Ferrer shall have delivered
a current prospectus in connection with such sale (if required under the Securities Act) or Ferrer shall have confirmed that a current prospectus is deemed to be delivered in connection with such sale in accordance with Rule 172; or
(iii) in a transaction exempt from registration under the Securities Act, in which case such Ferrer shall, prior to effecting such
disposition, submit to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company to the effect that the proposed transaction is in compliance with the Securities Act.
(b) Notwithstanding the provisions of subsection (a) above, no such restriction shall apply to a transfer by Ferrer transferring
to a wholly-owned subsidiary or a parent corporation that owns all of the capital stock of Ferrer; provided that in each case the transferee will agree in writing to be subject to the terms of this Agreement to the same extent as if such
transferee were the original Ferrer hereunder.
ARTICLE 9
MISCELLANEOUS
9.1
Waivers and Amendments. The terms of this Agreement may be waived or amended with the written consent of the Company and Ferrer.
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9.2 Governing Law. This Agreement shall be governed in all respects by and construed in
accordance with the laws of the State of New York without any regard to conflicts of laws principles.
9.3 Survival. The
representations, warranties, covenants and agreements made in this Agreement shall survive any investigation made by the Company or Ferrer and the Closing.
9.4 Successors and Assigns. The provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties to this Agreement. Upon a permitted transfer of Ferrers Stock on the books of the Company in accordance with the terms of Sections 8.2(a)(iii) or 8.2(b), Ferrer may assign this Agreement to the
permitted transferee upon prior written notice to the Company. Except as set forth in the previous sentence, Ferrer shall not assign this Agreement without the prior written consent of the Company.
9.5 Entire Agreement; No Inconsistent Agreements. This Agreement (including all schedules and exhibits hereto) and the Note constitute
the full and entire understanding and agreement between the parties with regard to the subjects thereof. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or
after the date hereof, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to Ferrer in this Agreement or otherwise conflicts with the provisions hereof.
9.6 Notices. Any notice or communication required or permitted under this Agreement shall be in writing in the English language,
delivered personally, sent by facsimile (and promptly confirmed by personal delivery, registered or certified mail or overnight courier), sent by internationally-recognized courier or sent by registered or certified mail, postage prepaid to the
following addresses of the parties hereto (or such other address as a party hereto may at any time thereafter specify by like notice):
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To the Company:
Alexza Pharmaceuticals, Inc.
2091 Stierlin Court
Mountain View, CA 94043, USA
Telephone: + 1-650-944-7000
Facsimile: + 1-650-944-7988
Attention: Chief Executive Officer |
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To Ferrer:
Ferrer Internacional, S.A.
Avenida Diagonal 549, 5th Floor
E-08029 Barcelona
Spain Telephone: + 34 93
600 3716 Facsimile: + 34 93 600 3884
Attention: Legal Counsel |
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with a copy to:
Cooley LLP 380
Interlocken Crescent, Suite 900 Broomfield, CO 80021, USA
Telephone: +1-720-566-4000
Facsimile: +1-720-566-4099
Attention: Brent D. Fassett |
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with a copy to:
Ferrer Internacional, S.A.
Avenida Diagonal 549, 5th Floor
E-08029 Barcelona
Spain Telephone: +34 93
600 38 67 Facsimile: + 34 93 491 47 20
Attention: Business Development & Licensing Department |
Any such notice shall be deemed to have been given (a) when delivered if personally delivered; (b) on the next
business day after dispatch if sent by confirmed facsimile or by internationally-recognized overnight courier; and/or (c) on the fifth business day following the date of mailing if sent by mail or other internationally-recognized courier.
9.7 Severability of this Agreement. If any provision of this Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.8 Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all
of which together shall constitute one instrument. Facsimile signatures shall be treated the same as original signatures.
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9.9 Further Assurances. Each party to this Agreement shall do and perform or cause to be
done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and documents as the other party hereto may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated hereby.
9.10 Currency. All references to
dollars or $ in this Agreement shall be deemed to refer to United States dollars.
9.11 Definition of
U.S. Person.
(a) For purposes of Sections 4.12, 4.13 and 4.14 hereof, the term U.S. Person shall
mean:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated under the laws of the United States;
(iii) Any estate of which any executor or administrator is a U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the United States;
(vi) Any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
(vii) Any discretionary account or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; and
(viii) Any
partnership or corporation if:
(A) Organized or incorporated under the laws of any foreign jurisdiction; and
(B) Formed by a U.S. person principally for the purpose of investing in securities not registered under the Act, unless it is
organized or incorporated, and owned, by accredited investors (as defined in §230.501(a)) who are not natural persons, estates or trusts.
(b) The following are not U.S. persons:
(i) Any discretionary account or similar account (other than an estate or trust) held for the benefit or account of a non-U.S. person
by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States;
(ii)
Any estate of which any professional fiduciary acting as executor or administrator is a U.S. person if:
(A) An executor or
administrator of the estate who is not a U.S. person has sole or shared investment discretion with respect to the assets of the estate; and
(B) The estate is governed by foreign law;
(iii) Any trust of which any professional fiduciary acting as trustee is a U.S. person, if a trustee who is not a U.S. person has sole
or shared investment discretion with respect to the trust assets, and no beneficiary of the trust (and no settler if the trust is revocable) is a U.S. person;
(iv) An employee benefit plan established and administered in accordance with the law of a country other than the United States and
customary practices and documentation of such country;
(v) Any agency or branch of a U.S. person located outside the United
States if:
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(A) The agency or branch operates for valid business reasons; and
(B) The agency or branch is engaged in the business of insurance or banking and is subject to substantive insurance or banking
regulation, respectively, in the jurisdiction where located; and
(vi) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, and their agencies, affiliates and pension plans, and any other similar international organizations,
their agencies, affiliates and pension plans.
9.12 Definition of United States. For purposes of Sections 4.12, 4.13 and 4.14
hereof and this Article 9, the term United States shall mean the United States of America, its territories and possessions, any State of the United States, and the District of Columbia.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned has caused its duly authorized officer to execute this
Agreement as of the date first above written.
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ALEXZA PHARMACEUTICALS, INC. |
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By: |
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/s/ Thomas B. King |
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Thomas B. King |
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Chief Executive Officer |
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GRUPO FERRER INTERNACIONAL S.A. |
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By: |
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/s/ Jorge Ramentol Massana |
Name: Jorge Ramentol Massana |
Title: CEO |
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By: |
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/s/ Juan Fanés Trillo |
Name: Juan Fanés Trillo |
Title: CFO |
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
Exhibit 99.1
NEWS RELEASE - for immediate release
Alexza Retains Guggenheim Securities, LLC to Explore Strategic Options
Mountain View, California - September 28, 2015 - Alexza Pharmaceuticals, Inc. (Nasdaq: ALXA) announced today that it has retained Guggenheim
Securities, LLC to assist in exploring strategic options to enhance stockholder value, including a possible sale or disposition of one or more corporate assets, a strategic business combination, partnership or other transactions.
We continue to see long-term opportunities for our Staccato inhaled drug technology, especially in light of the positive responses from
physicians and patients who have used our lead product, ADASUVE, said Thomas B. King, President and CEO of Alexza. Our Board is focused on evaluating additional options that may enhance or accelerate the value that we believe is inherent
in an approved technology-platform product, which has been successfully screened for numerous drugs as a novel delivery method that enables pharmacokinetics similar to intravenous administration. Given this strength of our Staccato
technology, we believe now is the appropriate time to explore strategic alternatives.
About Alexza Pharmaceuticals, Inc.
Alexza Pharmaceuticals is focused on the research, development, and commercialization of novel, proprietary products for the acute treatment of central nervous
system conditions. Alexzas products and development pipeline are based on the Staccato® system, a hand-held inhaler designed to deliver a pure drug aerosol to the deep lung, providing
rapid systemic delivery and therapeutic onset, in a simple, non-invasive manner. Active pipeline product candidates include AZ-002 (Staccato alprazolam) for the management of epilepsy in patients with acute repetitive seizures and AZ-007
(Staccato zaleplon) for the treatment of patients with middle of the night insomnia.
ADASUVE® is Alexzas first commercial product and has been approved for sale by the U.S. Food
and Drug Administration, the European Commission and in several Latin American countries. Teva Pharmaceuticals USA, Inc., a subsidiary of Teva Pharmaceutical Industries Ltd., is Alexzas commercial partner for ADASUVE in the United States.
Grupo Ferrer Internacional SA is Alexzas commercial partner for ADASUVE in Europe, Latin America, the Commonwealth of Independent States countries, the Middle East and North Africa countries, Korea, Philippines and Thailand.
Page 1 of 2
ADASUVE® and Staccato® are registered trademarks of Alexza Pharmaceuticals, Inc. For more information about Alexza, the Staccato system technology or the Companys development programs, please visit
www.alexza.com.
This news release contains forward-looking statements that involve significant risks and uncertainties. Any statement
describing the Companys expectations or beliefs is a forward-looking statement, as defined in the Private Securities Litigation Reform Act of 1995, and should be considered an at-risk statement. Such statements are subject to certain risks and
uncertainties, particularly those inherent in the process of exploring strategic transactions and commercializing drugs, including the ability of Alexza and its partners, Teva and Ferrer, to effectively and profitably commercialize ADASUVE,
estimated product revenues and royalties associated with the sale of ADASUVE, the adequacy of the Companys capital to support the Companys operations, the Companys ability to raise additional funds and the potential terms of such
potential financings, and the likelihood of completing a strategic transaction. The Company does not have a defined timeline for the strategic process and is not confirming that the process will result in any specific action or transaction. The
Companys forward-looking statements also involve assumptions that, if they prove incorrect, would cause its results to differ materially from those expressed or implied by such forward-looking statements. These and other risks concerning
Alexzas business are described in additional detail in the Companys Annual Report on Form 10-K for the year ended December 31, 2014 and the Companys other Periodic and Current Reports filed with the Securities and Exchange
Commission. Forward-looking statements contained in this announcement are made as of this date, and the Company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or
otherwise.
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CONTACT: |
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Ana Kapor |
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Investor Relations and Corporate Communications
650.944.7906 akapor@alexza.com |
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