<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
CV THERAPEUTICS, INC.
---------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001 PER SHARE
---------------------------------------
(Title of Class of Securities)
126667-10-4
-----------
(CUSIP Number)
DR. ANDREAS BREMER
GRAFENAUWEG 4, 6301 ZUG CH/SWITZERLAND
011-41-41-724-5959
------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Daniel L. Goelzer, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
OCTOBER 7, 1997
---------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Page 1 of 14
<PAGE> 2
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
Page 2 of 14
<PAGE> 3
CUSIP No. 126667-10-4
- ---------------------
- --------------------------------------------------------------------------------
(1) Name of Reporting Person
Biotech Target S.A.
S.S. or I.R.S. Identification No. of Above Person
Not applicable: Foreign Corporation
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) [ ]
of a Group* (b) [x]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds*
AF
- --------------------------------------------------------------------------------
(5) Check box if disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Panama
- --------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 0 by Biotech Target S.A.
by Each Reporting
Person With ----------------------------------------------
(8) Shared Voting Power
1,397,147 by Biotech Target,
S.A.(See Item 5)
----------------------------------------------
(9) Sole Dispositive Power
0 by Biotech Target S.A.
----------------------------------------------
(10) Shared Dispositive Power
1,397,147 by Biotech Target,
S.A.(See Item 5)
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,397,147 shares of common stock, par value of $.001 per share
(See Item 5)
- --------------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
- --------------------------------------------------------------------------------
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(13) Percent of Class Represented by Amount in Row (11)
16.6%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
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<PAGE> 5
CUSIP No.126667-10-4
- --------------------
- --------------------------------------------------------------------------------
(1) Name of Reporting Person
BB Biotech AG
S.S. or I.R.S. Identification No. of Above Person
Not applicable: Foreign Corporation
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) [ ]
of a Group* (b) [x]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds
WC
- --------------------------------------------------------------------------------
(5) Check Box is Disclosure of Legal Proceedings is required
Pursuant to Items 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Switzerland
- --------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 0 by BB Biotech AG
by Each Reporting
Person With ----------------------------------------------
(8) Shared Voting Power
1,397,147 by BB Biotech AG
(See Item 5)
----------------------------------------------
(9) Sole Dispositive Power
0 by BB Biotech AG
----------------------------------------------
(10) Shared Dispositive Power
1,397,147 by BB Biotech AG
(See Item 5)
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,397,147 shares of common stock, par value of $.001 per share
(See Item 5)
- --------------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
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<PAGE> 6
16.6%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC, CO
- --------------------------------------------------------------------------------
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<PAGE> 7
ITEM 1. SECURITY AND ISSUER
This statement relates to the Common Stock of CV Therapeutics, Inc. CV
Therapeutics, Inc.'s principal executive offices are located at 3712 Porter
Drive, Palo Alto, California, 94304.
ITEM 2. IDENTITY AND BACKGROUND
This statement is filed jointly by BB Biotech AG ("BB Biotech") and
Biotech Target S.A. ("Biotech Target"). Biotech Target is a wholly-owned
subsidiary of BB Biotech.
BB Biotech is a holding company incorporated in Switzerland. BB
Biotech's business address is Vordergasse 3, 8200 Schaffhausen, CH/Switzerland.
BB Biotech invests in companies involved in the development, production, and
distribution of pharmaceuticals and other products based on biotechnology. BB
Biotech is publicly traded on the Zurich Stock Exchange.
Biotech Target is a wholly-owned subsidiary of BB Biotech
incorporated in the Republic of Panama. Biotech Target's business address is
Swiss Bank Tower, Panama 1, Republic of Panama. The principal business of
Biotech Target is to invest in companies in the biotechnology sector.
The name, business address, present principal occupation, and
citizenship of each executive officer and director of BB Biotech and Biotech
Target are set forth on Appendix A hereto, which is incorporated herein by
reference.
During the last five (5) years, neither BB Biotech nor Biotech Target,
nor to the best of their knowledge, any of their executive officers or
directors, has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which he was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Biotech Target purchased 1,397,147 shares of common stock, $.001 par
value per share, ("Common Stock") in a privately negotiated transaction
pursuant to that certain Common Stock Purchase Agreement dated October 7, 1997
by and between CV Therapeutics, Inc. ("CV Therapeutics") and Biotech Target
(the "Agreement") for an aggregate consideration of $12,923,610. Biotech
Target used capital to purchase the shares of CV Therapeutics
Page 7 of 14
<PAGE> 8
Common Stock, which, in turn, was working capital supplied by BB Biotech. BB
Biotech is publicly traded on the Zurich Stock Exchange, and its shareholders
are both private and institutional investors.
ITEM 4. PURPOSE OF TRANSACTION
The shares of Common Stock are being held for investment purposes
only. However, Biotech Target may, from time to time, either increase or
decrease its holdings of the Common Stock, subject to applicable laws and
limitations contained in the Agreement. Any such decision will depend,
however, on numerous factors, including, without limitation, the market price
of shares of the Common Stock, the terms and conditions related to their
purchase and sale, the prospects and profitability of CV Therapeutics, other
business and investment alternatives of Biotech Target and general economic and
market conditions.
It is Biotech Target's general policy not to interfere with the
management of companies in which it holds portfolio investments. Neither
Biotech Target nor BB Biotech have an intention to influence or direct CV
Therapeutics's affairs, modify its corporate structure or interfere with the
business decisions of its management. Except as set forth above, neither
Biotech Target nor BB Biotech, nor to the best knowledge of such persons, any
executive officer or director of either BB Biotech or Biotech Target, has any
plans or proposals which relate to or would result in: (a) the acquisition by
any person of additional securities of CV Therapeutics or the disposition of
securities of CV Therapeutics; (b) an extraordinary corporate transaction, such
as a merger, reorganization or liquidation, involving CV Therapeutics; (c) a
sale or transfer or a material amount of assets of CV Therapeutics; (d) any
change in the present board of directors or management of CV Therapeutics,
including any plans or proposals to change the number or term of directors or
to fill any existing vacancies on the board; (e) any material change in the
present capitalization or dividend policy of CV Therapeutics; (f) any other
material change in CV Therapeutics's business or corporate structure; (g)
changes in CV Therapeutics's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of CV
Therapeutics by any person; (h) causing a class of securities of CV
Therapeutics to be delisted from a national securities exchange or to cease to
be authorized to be quoted in an interdealer quotation system of a registered
national securities association; (i) a class of equity securities of CV
Therapeutics to become eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of 1934 ("Exchange Act"); or
(j) any action similar to any of those enumerated above.
Page 8 of 14
<PAGE> 9
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) BB Biotech may be deemed to be the indirect beneficial owner
of the 1,397,147 shares of Common Stock held directly by Biotech Target as of
October 7, 1997, which represents approximately 16.6% of CV Therapeutics's
outstanding shares of Common Stock. No shares of CV Therapeutics Common Stock
are directly owned by BB Biotech. To the best knowledge of BB Biotech and
Biotech Target, no director or executive officer of BB Biotech or Biotech
Target owns any shares of CV Therapeutics Common Stock.
(b) The number of shares of CV Therapeutics Common Stock to which
there is sole power to vote or to direct the vote, shared power to vote or to
direct the vote, sole power to dispose or to direct the disposition, or shared
power to dispose or direct the disposition, is set forth in the cover pages
hereof and such information is incorporated herein by reference. BB Biotech,
through its ownership of Biotech Target, may be deemed to beneficially own the
shares of CV Therapeutics Common Stock within the meaning of Regulation 13D
under the Exchange Act, and may be deemed to share with Biotech Target the
power to vote, or direct the vote of, and the power to dispose of or direct the
disposition of, the aggregate 1,397,147 shares of CV Therapeutics Common Stock
held by Biotech Target. BB Biotech hereby expressly declares that the filing
of this statement shall not be construed as an admission that it is, for
purposes of Section 13(d) of the Exchange Act, the beneficial owner of the
shares of CV Therapeutics Common Stock held by Biotech Target.
(c) On October 7, 1997 Biotech Target purchased 1,397,147 shares
of Common Stock in a privately negotiated transaction pursuant to the Agreement
for an aggregate consideration of $12,963,610. As of October 7, 1997, Biotech
Target holds 16.6% of the outstanding shares of CV Therapeutics.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
Pursuant to the Agreement, CV Therapeutics and Biotech Target have
agreed to the following provisions as they relate to the shares of CV
Therapeutics Common Stock:
(a) Registration Rights. CV Therapeutics has provided Biotech
Target with certain registration rights with respect to the resale of shares of
Common Stock held by Biotech Target. Among other things, CV Therapeutics has
agreed to prepare and file a
Page 9 of 14
<PAGE> 10
registration statement on Form S-3 with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, to register the resale of the
shares by Biotech Target on November 19, 1997 or as soon as thereafter as is
practicable and to use its best efforts to cause such registration statement to
be declared effective as soon as practicable.
(b) Reference to the Agreement. The response to this Item 6 is
qualified in its entirety by reference to the Agreement, the full text of which
is filed as Exhibit 4 hereto and incorporated herein by reference.
Except for the Agreement, neither BB Biotech nor Biotech Target nor,
to the best of their knowledge, any of the executive officers or directors of
either BB Biotech or Biotech Target, is a party to any contract, arrangement,
understanding, or relationship (legal or otherwise) with any person with
respect to any securities of CV Therapeutics (including the shares of Common
Stock), finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, divisions of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1: Translation of minutes of the October 18, 1995, Board of
Directors Meeting of Biotech Target (evidencing a power of
attorney in favor of Dr. Andreas Bremer).*
Exhibit 2: Translation of minutes of the January 3, 1997 Board of
Directors Meeting of Biotech Target (evidencing a power of
attorney in favor of Dr. Anders Hove).*
Exhibit 3: Translation of evidence of a power of attorney in favor of
Victor Bischoff and Hans-Joerg Graf on behalf of BB Biotech.**
Exhibit 4: Agreement by and between BB Biotech and Biotech Target with
respect to the filing of this disclosure statement.
Exhibit 5: Common Stock Purchase Agreement dated October 7, 1997
- ----------------
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<PAGE> 11
* See Powers of Attorney, attached as Exhibits 1 and 2 to the Schedule 13D
related to Alexion Pharmaceuticals, Inc. filed with the Securities and Exchange
Commission on September 18, 1997, which Exhibit is incorporated by reference
herein.
** See Power of Attorney, attached as an Exhibit 99.E to the Schedule 13D
relating to Biogen, Inc. filed with the Securities and Exchange Commission on
June 2, 1994, which Exhibit is incorporated by reference herein.
Page 11 of 14
<PAGE> 12
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BB BIOTECH AG
Date: October 16, 1997 By: /s/ Hans-Joerg Graf
-------------------------
Name: Hans-Joerg Graf
-----------------------
Date: October 16, 1997 By: /s/ Dr. Victor Bischoff
-------------------------
Name: Dr. Victor Bischoff
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BIOTECH TARGET, S.A.
Date: October 16, 1997 By: /s/ Dr. Andreas Bremer
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Name: Dr. Andreas Bremer
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Date: October 16, 1997 By: /s/ Dr. Anders Hove
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Name: Dr. Anders Hove
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Page 12 of 14
<PAGE> 13
APPENDIX A TO ITEM 2
<TABLE>
<CAPTION>
PRESENT
NAME AND POSITION RESIDENCE OR PRINCIPAL
WITH COMPANY BUSINESS ADDRESS OCCUPATION
- ------------ ---------------- ----------
<S> <C> <C>
BB BIOTECH
Dr. Ernst Thomke Vordergasse 3, Chairman
(Swiss citizen) 8200 Schaffhausen, and Director
CH/Switzerland
Dr. Victor Bischoff Vordergasse 3, Vice-
(Swiss citizen) 8200 Schaffhausen, Chairman
CH/Switzerland and Director
Dr. David Baltimore Rockefeller University Professor
(U.S. citizen) 1239 York Avenue and Director
New York, NY 19921
BIOTECH TARGET
Dr. Andreas Bremer Grafenauweg 4, signatory
(German citizen) 6301 Zug authority
CH/Switzerland
Dr. Anders Hove Grafenauweg 4, signatory
(Danish citizen) 6301 Zug authority
CH/Switzerland
Hans-Joerg Graf Grafenauweg 4, signatory
(Swiss citizen) 6301 Zug authority
CH/Switzerland
Pablo Javier Espino Swiss Bank Tower, President
(Panamanian citizen) Panama 1, and Director
Republic of Panama
Adelina M. de Estribi Swiss Bank Tower, Director
(Panamanian citizen) Panama 1,
Republic of Panama
</TABLE>
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<PAGE> 14
EXHIBIT 4
JOINT FILING AGREEMENT
We, the undersigned, hereby express our agreement that the attached
Schedule 13D (including all amendments thereto) is filed on behalf of each of
the undersigned.
BB BIOTECH AG
Date: October 16, 1997 By: /s/ Hans-Joerg Graf
-------------------------
Name: Hans-Joerg Graf
-----------------------
Date: October 16, 1997 By: /s/ Dr. Victor Bischoff
-------------------------
Name: Dr. Victor Bischoff
-----------------------
BIOTECH TARGET, S.A.
Date: October 16, 1997 By: /s/ Dr. Andreas Bremer
-------------------------
Name: Dr. Andreas Bremer
-----------------------
Date: October 16, 1997 By: /s/ Dr. Anders Hove
-------------------------
Name: Dr. Anders Hove
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Page 14 of 14
<PAGE> 15
CV THERAPEUTICS, INC.
COMMON STOCK PURCHASE AGREEMENT
OCTOBER 7, 1997
<PAGE> 16
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1. PURCHASE AND SALE OF COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. CLOSING DATE; DELIVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.1 Organization and Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.2 Corporate Power; Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.3 Issuance and Delivery of the Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.4 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.6 Governmental Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.7 No Material Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.14 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Investment Experience. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Investment Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.4 Registration or Exemption Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.5 Restriction on Short Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.6 No Legal, Tax or Investment Advice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5. CONDITIONS TO CLOSING OF PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Legal Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Officers Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.4 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 6. CONDITIONS TO CLOSING OF COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 7. REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 Registration Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.2 Indemnification and Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF SHARES: COMPLIANCE WITH SECURITIES ACT . . . . . . . . . . . . . . . . 11
8.1 Restrictions on Transferability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.2 Restrictive Legend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.3 Transfer of Shares after Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.4 Purchaser Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.1 Waivers and Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.3 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9.4 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.6 Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.7 Severability of this Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.9 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.10 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
i.
<PAGE> 17
Exhibit A Instruction Sheet for Purchaser
Exhibit A-1 Stock Certificate Questionnaire
Exhibit A-2 Registration Statement Questionnaire
Exhibit A-3 Certificate for Corporate, Partnership, Trust, Foundation and
Joint Purchasers
Exhibit B Purchaser's Certificate of Subsequent Sale
Exhibit C Form of Legal Opinion
ii.
<PAGE> 18
CV THERAPEUTICS, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made as of
October 7, 1997 (the "Effective Date"), by and between CV THERAPEUTICS, INC., a
Delaware corporation (the "Company") and BIOTECH TARGET S.A., a corporation
organized under the laws of Panama (the "Purchaser").
SECTION 1. PURCHASE AND SALE OF COMMON STOCK
Subject to the terms and conditions of this Agreement, the Company
agrees to issue and sell to Purchaser and Purchaser agrees to purchase from the
Company 1,397,147 shares of the Company's Common Stock, $0.001 par value (the
"Shares"), for a purchase price of $12,923,610.
SECTION 2. CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the
Shares hereunder (the "Closing") shall be held at the offices of Cooley Godward
LLP, Five Palo Alto Square, 3000 El Camino Real, Palo Alto, California, 94306
at 10:00 a.m., on October 7, 1997 or at such other time and place upon which
the Company and Purchaser 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 to
Purchaser a certificate, registered in Purchaser's name, representing the
number of shares of Common Stock to be purchased by Purchaser. Such delivery
shall be against payment of the purchase price therefor by wire transfer to the
Company's bank account.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser as of the Closing
Date as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full power and authority to own and operate its properties
and assets and to carry on its business as presently conducted and as proposed
to be conducted. The Company is qualified as a foreign corporation to do
business in each jurisdiction in the United States in which the ownership of
its property or the conduct of its business requires such qualification, except
where any statutory fines or penalties or any corporate disability imposed for
the failure to qualify would not materially or adversely affect the Company,
its assets, financial condition or operations.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power to, and has taken all requisite corporate action to, execute
and deliver this Agreement, to sell and issue the Shares and to carry out and
perform all of its obligations under this
1.
<PAGE> 19
Agreement. This Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting the enforcement of creditors' rights generally,
(ii) as limited by equitable principles generally and (iii) as to those
provisions of Section 7.2 relating to indemnity or contribution, as may be
limited by applicable laws. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby by the
Company will (i) conflict with or violate any provision of the Amended and
Restated Certificate of Incorporation or Restated By-Laws of the Company; (ii)
conflict with or violate any law, rule, regulation, ordinance, order, writ,
injunction, judgment or decree applicable to the Company or its business, which
violation would have a material adverse effect on the Company; or (iii)
conflict with or result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination or cancellation of, or accelerate the
performance required by or maturity of, or result in the creation of any
security interest, lien, charge or encumbrance on any of the Company's assets
pursuant to any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, permit, license, franchise, lease contract, or other
instrument or obligation to which the Company is a party, which breach,
default, termination, cancellation, acceleration, security interest, lien,
charge or encumbrance would have a material adverse effect on the Company.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued
and paid for in compliance with the provisions of this Agreement, will be
validly issued, fully paid and nonassessable. The issuance and delivery of the
Shares is not subject to preemptive, co-sale, right of first refusal or any
other similar rights of the stockholders of the Company or any liens or
encumbrances, provided, however, that the Shares may be subject to restrictions
on transfer under state and/or federal securities laws as set forth herein or
as otherwise required by such laws at the time a transfer is proposed.
3.4 FULL DISCLOSURE. The Company has furnished to Purchaser the
following documents filed with or to be filed with the Securities and Exchange
Commission (collectively, the "SEC Documents") and the Company warrants that
the information contained in such documents, as of their respective dates, did
not contain any untrue statement of a material fact, and did not omit to state
any material fact necessary to make any statement, in light of the
circumstances under which such statement was made, not misleading:
(a) The prospectus for the Company's initial public
offering of Common Stock, dated November 19, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997, and June 30, 1997.
(c) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996.
3.5 LITIGATION. Except as set forth in the SEC Documents, there
is no pending or, to the Company s knowledge, threatened action, suit or other
proceeding before any court,
2.
<PAGE> 20
governmental body or authority, or arbitrator to which the Company is a party
or to which its property or assets are subject and to the Company's knowledge,
no basis exists for any (i) material legal proceeding by or against the Company
or (ii) governmental proceeding or investigation of the Company.
3.6 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Federal, state, or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement except for (a) compliance with the securities
and blue sky laws in the states and other jurisdictions in which shares of
Common Stock are offered and/or sold, which compliance will be effected in
accordance with such laws, and (b) the filing of a registration statement and
all amendments thereto with the SEC as contemplated by Section 7.1 of this
Agreement.
3.7 NO MATERIAL ADVERSE CHANGE. Since June 30, 1997, there have
not been any changes in the assets, liabilities, financial condition or
operations of the Company from that reflected in the SEC Documents except
changes in the ordinary course of business or which have not been, either
individually or in the aggregate, materially adverse.
3.8 CAPITALIZATION. At October 3, 1997, the Company had 7,020,444
shares of Common Stock outstanding, held 28,527 shares of Common Stock in
treasury, and had options and warrants to purchase 916,579 and 549,504 shares
of Common Stock, respectively, outstanding.
3.9 NO VIOLATIONS. The Company is not in violation of its
charter, bylaws or other organizational document, or of any law, administrative
regulation, ordinance, order, judgment or decree of any court or governmental
agency, arbitration panel or authority applicable to the Company, except for
violations which, individually or in the aggregate, would not have a material
adverse effect on the Company. The Company is not in default in any material
respect in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness in any
indenture, mortgage, deed of trust, or any other agreement or instrument to
which the Company is a party or by which the Company is bound or by which the
properties of the Company are bound or affected, except for violations which,
individually or in the aggregate, would not have a material adverse effect on
the Company, and there exists no condition which, with the passage of time or
otherwise, would constitute a material default under any such document or
instrument or result in the imposition of any material penalty or the
acceleration of any material indebtedness.
3.10 GOVERNMENTAL PERMITS, ETC. The Company has all necessary
franchises, licenses, permits, certificates and other authorizations from any
foreign, federal, state or local government or governmental agency, department,
or body that are currently necessary for the operation of the business of the
Company as currently conducted and as described in reports required to be filed
by the Company under the Securities and Exchange Act of 1934, as amended (the
"1934 Act Filings") and the absence of which would have a material adverse
effect on the Company.
3.
<PAGE> 21
3.11 FINANCIAL STATEMENTS. The financial statements of the Company
and the related notes contained in the 1934 Act Filings present fairly, subject
to normal year end adjustments in the case of the quarterly statements, the
financial position of the Company as of the dates indicated, and the results of
its operations and cash flows for the periods therein specified and the assets
and liabilities of the Company have not changed materially since the date of
the most recent 1934 Act Filing except for changes in the ordinary course of
business. Such financial statements (including the related notes) have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods therein specified, except as
disclosed in the 1934 Act Filings.
3.12 OPERATION OF THE BUSINESS. Except as described in the 1934
Act Filings, the Company owns and retains all such assets and contractual
rights necessary for it to operate its business as described in the 1934 Act
Filings, except where the failure to own or retain such assets or contractual
rights would not have a material adverse effect upon the operations of the
Company.
3.13 ENVIRONMENTAL MATTERS. The Company is in compliance with all
applicable local, state and federal safety and environmental laws and
regulations, except where the failure to comply with such environmental laws
and regulations would not have a material adverse effect upon the operations of
the Company.
3.14 INTELLECTUAL PROPERTY. Except as described in the SEC
Documents, the Company owns or possesses sufficient rights to use all material
patents, patent rights, trademarks, copyrights, licenses, inventions, trade
secrets and know-how described or referred to in the SEC Documents, as owned or
used by it or that are necessary for the conduct of its business as now
conducted or as described in the SEC Documents. Except as described in the SEC
Documents, the Company has not entered into or become party to any material
development, license or other agreement pursuant to which it has secured the
right or obligation to use, or granted others the right or obligation to use,
any trademarks, servicemarks, trade names, copyrights, patents or any other
intellectual property right. All technical information developed by or
belonging to the Company which has not been patented has been kept
confidential.
3.15 RELIANCE. The Company acknowledges that the Purchaser has
reviewed and relied upon the 1934 Act Filings in making its decision to
purchase the Shares.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Purchaser hereby represents and warrants to the Company, effective as
of the Closing Date, as follows:
4.1 AUTHORIZATION. Purchaser represents and warrants to the
Company that: (i) Purchaser 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 purchase the Shares and to carry out and
perform all of its obligations under this Agreement; and (ii) this Agreement
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance
4.
<PAGE> 22
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.
4.2 INVESTMENT EXPERIENCE. Purchaser is an "accredited investor"
as defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser is aware of the Company's 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 Shares. Purchaser 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 Shares.
4.3 INVESTMENT INTENT. Purchaser is purchasing the Shares for its
own account as principal, for investment purposes only, and not with a view to,
or for, resale, distribution or fractionalization thereof, in whole or in part,
within the meaning of the Securities Act. Purchaser understands that its
acquisition of the Shares 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 Purchaser's investment intent as expressed herein.
Purchaser will complete or cause to be completed the Purchaser
Certificates/Questionnaire attached hereto as Exhibits A-1 through A-3 for use
in connection with the sale of Shares and in preparation of the Registration
Statement (as defined below), will deliver the such Certificates/Questionnaires
to the Company on or prior to the October 13, 1997, and the responses provided
therein shall be true and correct as of the Closing Date.
4.4 REGISTRATION OR EXEMPTION REQUIREMENTS. Purchaser further
acknowledges and understands that the Shares must be held for investment
purposes, and they may not be resold or otherwise transferred except in a
transaction registered under the Securities Act or pursuant to an exemption
from such registration. Purchaser understands that the certificate(s)
evidencing the Shares will be imprinted with a legend that prohibits the
transfer of the Shares unless (i) they are registered or such registration is
not required, and (ii) if the transfer is pursuant to an exemption from
registration other than Rule 144 under the Securities Act ("Rule 144") and, if
the Company shall so request in writing, an opinion of counsel will be required
satisfactory to the Company to the effect that the transaction is so exempt and
in compliance with applicable state law.
4.5 RESTRICTION ON SHORT SALES. Purchaser represents and warrants
to and covenants with the Company that Purchaser has not engaged and will not
engage in any short sales of the Company's Common Stock prior to the
effectiveness of the Registration Statement, except to the extent that any such
short sale is fully covered by shares of Common Stock of the Company other than
the Shares.
4.6 NO LEGAL, TAX OR INVESTMENT ADVICE. Purchaser understands
that nothing in this Agreement or any other materials presented to Purchaser in
connection with the purchase and sale of the Shares constitutes legal, tax or
investment advice and that independent legal counsel
5.
<PAGE> 23
has reviewed these documents and materials on Purchaser's behalf. Purchaser
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of the Shares.
SECTION 5. CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligation to purchase the Shares at the Closing is, at
the option of Purchaser, 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 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.
5.2 LEGAL OPINION. The Company shall have delivered a legal
opinion from Cooley Godward LLP, counsel to the Company, addressed to Purchaser
in the form attached hereto as Exhibit C with respect to the sale of the Shares
by the Company hereunder.
5.3 OFFICERS CERTIFICATE. The Company shall deliver to Purchaser
a certificate, dated as of the Closing Date, signed by the Chief Executive
Officer of the Company, stating that the representations and warranties set
forth in Section 3 are true as of and all of the closing conditions set forth
in Section 5 have been satisfied on the Closing Date.
5.4 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.
SECTION 6. CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares is, at the
option of the Company, subject to the fulfillment or waiver of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations made by
Purchaser in Section 4 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 such date.
6.2 COVENANTS. All covenants, agreements and conditions contained
in this Agreement to be performed by Purchaser on or prior to the Closing Date
shall have been performed or complied with in all material respects.
SECTION 7. REGISTRATION RIGHTS
7.1 REGISTRATION REQUIREMENTS
6.
<PAGE> 24
(a) Except as provided in paragraph (d) below, the
Company shall prepare and file a registration statement on Form S-3 with the
SEC under the Securities Act to register the resale of the Shares by Purchaser
on November 19, 1997 and use its best efforts to cause the registration
statement to be declared effective as soon as practicable. In the event that
at any time the filing of such registration statement is undertaken or is
required to be undertaken the Company fails to qualify for use of Form S-3 for
purposes of registering for resale the Shares, the Company shall cause a
registration statement on Form S-1 to be filed as soon as practicable
thereunder. The Purchaser agrees to furnish promptly to the Company in writing
all information reasonably required by the Company to file such a registration
statement on Form S-3 or a registration statement on Form S-1, as the case may
be (either such registration statement referred to hereinafter as the
"Registration Statement").
(b) The Company shall pay all Registration Expenses (as
defined below) in connection with any registration, qualification or compliance
hereunder, and Purchaser shall pay all Selling Expenses (as defined below) and
other expenses that are not Registration Expenses relating to the Shares resold
by Purchaser. "Registration Expenses" shall mean all expenses, except for
Selling Expenses, incurred by the Company in complying with the registration
provisions herein described, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel and independent public accountants for the Company,
blue sky fees, transfer agent fees and expenses and the expense of any special
audits incident to or required by any such registration. "Selling Expenses"
shall mean selling commissions, underwriting fees and stock transfer taxes
applicable to the Shares and, subject to Section 9.10, all fees and
disbursements of counsel for Purchaser.
(c) In the case of the registration effected by the
Company pursuant to these registration provisions, the Company will use its
best efforts to: (i) keep such registration effective until the earlier of (A)
the third anniversary of the Closing Date, (B) such date as all of the Shares
have been resold or (C) such time as all of the Shares held by Purchaser can be
sold within a given three-month period without compliance with the registration
requirements of the Securities Act pursuant to Rule 144; (ii) prepare and file
with the SEC such amendments and supplements to the Registration Statement and
the prospectus used in connection with the Registration Statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by the Registration Statement; (iii)
furnish such number of prospectuses and other documents incident thereto,
including any amendment of or supplement to the prospectus, as Purchaser from
time to time may reasonably request in order to facilitate the public sale or
other disposition of all or any of the Shares held by Purchaser; (iv) cause all
Shares registered as described herein to be listed on each securities exchange
and quoted on each quotation service on which similar securities issued by the
Company are then listed or quoted; (v) provide a transfer agent and registrar
for all Shares registered pursuant to the Registration Statement and a CUSIP
number for all such Shares; (vi) promptly comply with all applicable rules and
regulations of the SEC; and (vii) file the documents required of the Company
and otherwise promptly obtain, if applicable, and maintain requisite blue sky
clearance in (A) all jurisdictions in which any of the Shares are originally
sold and (B) all other states specified in writing by Purchaser, provided as to
clause (B), however, that the Company shall not be required to qualify to do
business or consent to service of process
7.
<PAGE> 25
in any state in which it is not now so qualified or has not so consented. The
Company shall use its best efforts to qualify for use of Form S-3 under the
Securities Act to register the resale of the Shares and to maintain such
qualification during the periods described in paragraph (i).
(d) The Company may delay the filing of the Registration
Statement for up to eighty (80) days by giving written notice to Purchaser if
the Company shall have determined that the Company may be required to disclose
any material corporate development which disclosure may have a negative
material effect on the Company. The duration of any such delay shall be added
to the period of time that the Company agrees to keep the Registration
Statement open.
(e) Following the effectiveness of the Registration
Statement, the Company may, at any time, but not more than once in any
six-month period, suspend the effectiveness of such registration statement for
up to 45 days, as appropriate (a "Suspension Period"), by giving notice to
Purchaser, if the Company shall have determined that the Company may be
required to disclose any material corporate development which disclosure may
have a negative material effect on the Company. The Company agrees to use
commercially reasonable efforts to minimize the length of any suspension. The
duration of any Suspension Period shall be added to the period of time that the
Company agrees to keep the Registration Statement effective. Purchaser agrees
that, upon receipt of any notice from the Company of a Suspension Period,
Purchaser shall forthwith discontinue disposition of shares covered by such
Registration Statement or prospectus until Purchaser (i) is advised in writing
by the Company that the use of the applicable prospectus may be resumed, (ii)
has received copies of a supplemental or amended prospectus, if applicable, and
(iii) has received copies of any additional or supplemental filings which are
incorporated or deemed to be incorporated by reference in such prospectus.
(f) The Company will, as expeditiously as possible,
notify Purchaser (i) of the effective date of the Registration Statement and
the date when any post-effective amendment to the Registration Statement
becomes effective; (ii) of any stop order or notification from the SEC or any
other jurisdiction as to the suspension of the effectiveness of the
Registration Statement; and (iii) of the end of any suspension hereunder.
(g) With a view to making available to Purchaser the
benefits of Rule 144 and any other rule or regulation of the SEC that may at
any time permit Purchaser to sell Shares to the public without registration or
pursuant to registration, the Company covenants and agrees to: (i) make and
keep public information available, as those terms are understood and defined in
Rule 144, until the earlier of (A) the third anniversary of the Closing Date or
(B) such date as all of the Shares shall have been resold; (ii) file with the
SEC in a timely manner all reports and other documents required of the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
maintain registration of its Common Stock under Section 12 of the Exchange Act;
and (iii) furnish to Purchaser upon request, as long as Purchaser owns any
Shares, (A) a written statement by the Company that it has complied with the
reporting requirements of the Exchange Act, (B) a copy of the most recent
annual or quarterly report of the Company, and (C) such other information as
may be reasonably requested in order to avail Purchaser of any rule or
regulation of the SEC that permits the selling of any such Shares without
registration.
8.
<PAGE> 26
7.2 INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify Purchaser and hold
Purchaser harmless from and against any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) to which Purchaser may become
subject (under the Securities Act, Exchange Act, state securities laws or
otherwise) insofar as such losses, claims, damages or liabilities (or actions,
proceedings or settlements in respect thereof) arise out of, or are based upon,
(i) any untrue statement (or alleged untrue statement) of a material fact
contained in the Registration Statement, on the effective date thereof or any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, (ii) the omission or the alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) any failure by the Company (or its agents) to fulfill any
undertaking included in the Registration Statement, or (iv) breach by the
Company of its representations, warranties, covenants or obligations in this
Agreement, and the Company will, as incurred, reimburse Purchaser for any legal
or other expenses reasonably incurred in investigating, defending or preparing
to defend any such action, loss, damage, proceeding or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon (i)
an untrue statement (or omission) made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Purchaser specifically for use in preparation of the
Registration Statement unless Purchaser provided the Company with additional
written information a reasonable time prior to the effectiveness of the
Registration Statement as is required to make the previously supplied
information true and correct, (ii) the failure of Purchaser to comply with the
covenants and agreements contained in Section 7.1 or 8.3 hereof, or (iii) any
untrue statement (or omission) in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to Purchaser by the Company a
reasonable time prior to the pertinent sale or sales by Purchaser. The Company
will reimburse Purchaser for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the obligations under this section and the
possibility that such payments might later be held to be improper, provided,
that (i) to the extent any such payment is ultimately held to be improper, the
persons receiving such payments shall promptly refund them and (ii) such
persons shall provide to the Company, upon request, reasonable assurances of
their ability to effect any refund, when and if due.
(b) Purchaser agrees to indemnify and hold harmless the
Company from and against any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) to which the Company may become subject
(under the Securities Act or otherwise) insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon (i) an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Purchaser specifically for use in preparation of the
Registration Statement, provided, however, that Purchaser shall not be liable
in any such case for any untrue statement included in any Prospectus which
statement has been corrected, in writing, by Purchaser and delivered to the
Company a reasonable time before the sale from which such loss occurred, (ii) a
breach by the
9.
<PAGE> 27
Purchaser of its representations, warranties, covenants or obligations in this
Agreement, or (iii) any untrue statement in any Prospectus that is corrected in
any subsequent Prospectus that was delivered to the Purchaser prior to the
pertinent sale or sales by Purchaser, provided, further, however, that the
liability of Purchaser hereunder shall be limited to the proceeds received by
Purchaser from the sale of the Shares covered by such Registration Statement;
and provided, further, however, that the obligations of Purchaser hereunder
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if settlement is effected without the consent of
Purchaser. Purchaser will reimburse the Company for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations under
this section and the possibility that such payments might later be held to be
improper, provided, that (i) to the extent any such payment is ultimately held
to be improper, the persons receiving such payments shall promptly refund them
and (ii) such persons shall provide to Purchaser, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
(c) Promptly after receipt by any indemnified person of a
notice of a claim or the commencement of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant to this
Section 7.2, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action, and, subject to
the provisions hereinafter stated, in case any such action shall be brought
against an indemnified person and the indemnifying person shall have been
notified thereof, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall wish, to assume and undertake the
defense thereof, with counsel reasonably satisfactory to the indemnified
person. After notice from the indemnifying person to such indemnified person
of the indemnifying person's election to assume and undertake the defense
thereof, the indemnifying person shall not be liable to such indemnified person
for any legal expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if there exists or
shall exist a conflict of interest that would make it inappropriate in the
reasonable judgment of the indemnified person for the same counsel to represent
both the indemnified person and such indemnifying person or any affiliate or
associate thereof, the indemnified person shall be entitled to retain its own
counsel at the expense of such indemnifying person.
(d) If the indemnification provided for in this Section
7.2 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions proceedings or settlements in respect thereof) referred
to therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Purchaser on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
10.
<PAGE> 28
information supplied by the Company on the one hand or Purchaser on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
Purchaser agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), Purchaser shall not be required to contribute any amount in
excess of the amount by which the amount received by Purchaser (net of Selling
Expenses) from the sale of the Shares to which such loss relates exceeds the
amount of any damages which Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and Purchaser under this
Section 7.2 shall be in addition to any liability which the Company and
Purchaser may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company or Purchaser
within the meaning of the Securities Act.
SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF SHARES: COMPLIANCE WITH
SECURITIES ACT
8.1 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be
transferable in the absence of a registration under the Securities Act or an
exemption therefrom or in the absence of compliance with any term of this
Agreement. The Company shall be entitled to give stop transfer instructions to
its transfer agent with respect to the Shares in order to enforce the foregoing
restrictions.
8.2 RESTRICTIVE LEGEND. Each certificate representing Shares
shall bear substantially the following legends (in addition to any legends
required under applicable securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
ADDITIONALLY, THE TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SPECIFIED IN THE COMMON
STOCK PURCHASE AGREEMENT DATED OCTOBER 7, 1997 BETWEEN THE COMPANY AND
THE ORIGINAL PURCHASER, AND NO TRANSFER OF SHARES SHALL BE VALID OR
EFFECTIVE ABSENT
11.
<PAGE> 29
COMPLIANCE WITH SUCH RESTRICTIONS. ALL SUBSEQUENT HOLDERS OF THIS
CERTIFICATE WILL HAVE AGREED TO BE BOUND BY CERTAIN OF THE TERMS OF
THE AGREEMENT, INCLUDING SECTIONS 7.1 AND 8.3 OF THE AGREEMENT.
COPIES OF THE AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE REGISTERED HOLDER OF THIS CERTIFICATE TO THE SECRETARY OF
THE COMPANY.
Upon the request of Purchaser, the Company shall remove the foregoing
legend from the certificates evidencing the Shares and issue to Purchaser new
certificates free of any transfer legend if with such request, and at the
request of the Company, the Company shall have received an opinion of counsel
satisfactory to the Company, to the effect that any transfers by Purchaser of
such Shares may be made to the public without compliance with either Section 5
of the Securities Act or Rule 144 thereunder and applicable state securities
laws.
8.3 TRANSFER OF SHARES AFTER REGISTRATION. Purchaser hereby
covenants with the Company not to make any sale of the Shares except either (i)
in accordance with the Registration Statement, in which case Purchaser
covenants to comply with the requirement of delivering a current prospectus,
(ii) in accordance with Rule 144, in which case Purchaser covenants to comply
with Rule 144, or (iii) otherwise in accordance with and pursuant to applicable
federal and state securities laws. Purchaser further acknowledges and agrees
that such Shares are not transferable on the books of the Company unless the
certificate submitted to the Company's transfer agent evidencing such Shares is
accompanied by a separate certificate executed by an officer of, or other
person duly authorized by, the Purchaser in the form attached hereto as Exhibit
B.
8.4 PURCHASER INFORMATION. Purchaser covenants that it will
promptly notify the Company in writing of any changes in the information set
forth in the Registration Statement regarding Purchaser.
SECTION 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 Purchaser.
9.2 GOVERNING LAW. This Agreement shall be governed in all
respects by and construed in accordance with the laws of the State of Delaware
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 Purchaser and the Closing. With respect to any registration made
pursuant to this Agreement, the covenants and agreements set forth in section
7.1 shall continue in effect until all obligations hereunder with respect
thereto are fulfilled, and provided that the indemnification and contribution
obligations as set forth in Section 7.2 shall survive for the period of the
statute of limitations with respect thereto.
12.
<PAGE> 30
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. Notwithstanding the
foregoing, Purchaser shall not assign this Agreement without the prior written
consent of the Company, which consent shall not be unreasonably withheld,
except that Purchaser is entitled to assign this Agreement to its Affiliates
(as such term is defined in Rule 12b-2 of the Exchange Act).
9.5 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects thereof.
9.6 NOTICES, ETC. All notices and other communications required
or permitted under this Agreement shall be effective upon receipt and shall be
in writing and may be delivered in person, by telecopy, overnight delivery
service or registered or certified United States mail, addressed to the Company
or Purchaser, as the case may be, at their respective addresses set forth
below:
If to the Company:
CV Therapeutics, Inc.
3172 Porter Drive
Palo Alto, CA 94304
Attn: Louis G. Lange, M.D., Ph.D.
Chief Executive Officer
Telephone: (650) 812-9510
Facsimile: (650) 858-0388
With a copy to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Attn: Alan C. Mendelson, Esq.
Telephone: (650) 843-5000
Facsimile: (650) 857-0663
If to Purchaser:
Biotech Target S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
13.
<PAGE> 31
With copies to:
Bellevue Asset Management AG
Grafenauweg 4
CH-6301 Zug
SWITZERLAND
Attn: Dr. Andreas Bremer
Telephone: 011-41-724-5920
Facsimile: 011-41-724-5958
and:
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attn: Daniel Goelzer
Telephone: (202) 452-7000
Facsimile: (202) 452-7072
All notices and other communications shall be effective upon the
earlier of actual receipt thereof by the person to whom notice is directed or
(i) in the case of notices and communications sent by personal delivery or
telecopy, one business day after such notice or communication arrives at the
applicable address or was successfully sent to the applicable telecopy number,
(ii) in the case of notices and communications sent by overnight delivery
service, at noon (local time) on the second business day following the day such
notice or communication was sent, and (iii) in the case of notices and
communications sent by United States mail, seven days after such notice or
communication shall have been deposited in the United States mail. Any notice
delivered to a party hereunder shall be sent simultaneously, by the same means,
to such party's counsel as set forth above.
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. 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.
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.
14.
<PAGE> 32
9.10 EXPENSES. The Company agrees to bear the cost of reasonable
fees and expenses of one counsel for the Purchaser, in an amount not to exceed
$10,000, and reasonable fees and expenses of one counsel for the Purchaser in
connection with its review of the Registration Statement.
9.11 CHOICE OF FORUM; VENUE; SERVICE OF PROCESS. Any claim, suit,
action or proceeding between the parties hereto relating to this Agreement, to
any document, instrument, or agreement delivered pursuant hereto, referred to
herein, or contemplated hereby, or in any other manner arising out of or
relating to the transactions contemplated by or referenced in this Agreement,
shall be commenced and maintained exclusively in the United States District of
Delaware or, if such Court lacks jurisdiction over the subject matter, in a
state court of competent subject matter jurisdiction sitting in the State of
Delaware. The parties hereby submit themselves unconditionally and irrevocably
to the personal jurisdiction of such courts. The parties further agree that
venue shall be exclusively in Delaware. The parties irrevocably waive any
objection to such personal jurisdiction or venue including, but not limited to,
the objection that any suit, action, or proceeding brought in the State of
Delaware has been brought in an inconvenient forum. The parties irrevocably
agree that process issuing from such courts may be served on them, either
personally or by certified mail, return receipt requested, at the addresses
given in Section 9.6 hereof or such addresses as are subsequently confirmed in
writing; and further irrevocably waive any objection to service of process made
in such manner and at such addresses, including without limitation, any
objection that service in such manner and at such addresses is not authorized
by the local or procedural laws of the State of Delaware.
15.
<PAGE> 33
The foregoing agreement is hereby executed as of the date first above
written.
CV THERAPEUTICS, INC. BIOTECH TARGET S.A.
By: /s/ LOUIS G. LANGE By: /s/ DR. ANDREAS BREMER
---------------------------------- --------------------------------
Louis G. Lange, M.D., Ph.D. Dr. Andreas Bremer
Chief Executive Officer Authorized Signatory
By: /s/ H. JORG GRAF
--------------------------------
H. Jorg Graf
Authorized Signatory
<PAGE> 34
EXHIBIT A
INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Common Stock Purchase Agreement)
A. Complete the following items in the Common Stock Purchase Agreement:
1. Provide the information regarding the Purchaser requested on
the signature page. The Agreement must be executed by an
individual authorized to bind the Purchaser.
2. Exhibit A-1 - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire.
3. Exhibit A-2 - Registration Statement Questionnaire:
Provide the information requested by the Registration
Statement Questionnaire.
4. Exhibit A-3 - Purchaser Certificate:
Provide the information requested by the Certificate.
5. Return the signed Common Stock Purchase Agreement including
the properly completed Exhibit A to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Attn: Joanne Marshall Shea
Fax: (650) 857-0663
B. Instructions regarding the transfer of funds for the purchase of
Shares will be telecopied to Purchaser by the Company at a later date.
C. Upon the resale of the Shares by Purchaser after the Registration
Statement covering the Shares is effective, as described in the Common
Stock Purchase Agreement, Purchaser:
(i) must deliver a current prospectus, and annual and
quarterly reports of the Company to the buyer
(prospectuses, and annual and quarterly reports may
be obtained from the Company at the Purchaser's
request); and
1.
<PAGE> 35
(ii) must send a letter in the form of Exhibit B to the
Company so that the Shares may be properly
transferred.
2.
<PAGE> 36
EXHIBIT A-1
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4.3 of the Common Stock Purchase Agreement,
please provide us with the following information:
1. The exact name that the Shares are to be
registered in (this is the name that will
appear on the stock certificate(s)). You
may use a nominee name if appropriate:
--------------------------
2. The relationship between the Purchaser of
the Shares and the Registered Holder
listed in response to item 1 above:
--------------------------
3. The mailing address of the Registered
Holder listed in response to
item 1 above:
--------------------------
--------------------------
--------------------------
--------------------------
--------------------------
4. The Tax Identification Number of the
Registered Holder listed in response to
item 1 above:
--------------------------
<PAGE> 37
EXHIBIT A-2
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information regarding the Purchaser.
1. Please state your organization's name exactly as it should
appear in the Registration Statement:
2. Have you or your organization had any position, office or
other material relationship within the past three years with the Company?
Yes No
-------- ---------
If yes, please indicate the nature of any such relationships below:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 38
EXHIBIT A-3
CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, FOUNDATION AND JOINT PURCHASERS
If the investor is a corporation, partnership, trust, pension plan,
foundation, joint purchaser (other than a married couple) or other entity, an
authorized officer, partner, or trustee must complete, date and sign this
Certificate.
CERTIFICATE
The undersigned certifies that the representations and responses below
are true and accurate:
(a) The investor has been duly formed and is validly existing and
has full power and authority to invest in the Company. The person signing on
behalf of the undersigned has the authority to execute and deliver the Common
Stock Purchase Agreement on behalf of the Purchaser and to take other actions
with respect thereto.
(b) Indicate the form of entity of the undersigned:
_________ Limited Partnership
_________ General Partnership
_________ Corporation
_________ Revocable Trust (identify each grantor and
indicate under what circumstances the trust
is revocable by the grantor):_________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
(Continue on a separate piece of paper,
if necessary.)
_________ Other Type of Trust (indicate type of trust
and, for trusts other than pension trusts,
name the grantors and beneficiaries):
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
(Continue on a separate piece of paper, if
necessary.)
1.
<PAGE> 39
_________ Other form of organization (indicate form of
organization):
_____________________________________________.
(c) Indicate the date the undersigned entity was formed: _________.
(d) In order for the Company to offer and sell the Shares in
conformance with state and federal securities laws, the following information
must be obtained regarding your investor status. Please initial each category
applicable to you as an investor in the Company.
_________ 1. A bank as defined in Section 3(a)(2) of the
Securities Act, or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities
Act whether acting in its individual or fiduciary capacity;
_________ 2. A broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934;
_________ 3. An insurance company as defined in Section
2(13) of the securities Act;
_________ 4. An investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of that Act;
_________ 5. A Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958;
_________ 6. A plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of
its employees, if such plan has total assets in excess of
$5,000,000;
_________ 7. An employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, which is either a bank, savings and
loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are
accredited investors;
_________ 8. A private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act
of 1940;
_________ 9. An organization described in Section
501(c)(3) of the Internal Revenue Code, a corporation,
Massachusetts or similar business trust, or
2.
<PAGE> 40
partnership, not formed for the specific purpose of acquiring
the Shares, with total assets in excess of $5,000,000;
_________ 10. A trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Shares, whose purchase is directed by a sophisticated
person who has such knowledge and experience in financial and
business matters that such person is capable of evaluating the
merits and risks of investing in the Company;
_________ 11. An entity in which all of the equity owners
qualify under any of the above subparagraphs. If the
undersigned belongs to this investor category only, list the
equity owners of the undersigned, and the investor category
which each such equity owner satisfies:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Continue on a separate piece of paper, if necessary.)
(e) The state of incorporation or formation of the investor is
__________________________ and the investor's principal office is located in
the state of __________________________________.
Dated: __________,19__
- -------------------------------------------
Name of investor
- -------------------------------------------
Signature and title of authorized
officer, partner or trustee
3.
<PAGE> 41
EXHIBIT B
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
To: CV Therapeutics, Inc.
3172 Porter Drive
Palo Alto, CA 94304
The undersigned, the Purchaser or an officer of, or other person duly
authorized by the Purchaser, hereby certifies that __________________ was the
Purchaser of the shares evidenced by the attached certificate, and as such,
proposes to transfer such shares on or about _______________ either (check the
applicable box) [ ] (i) in accordance with the registration statement, file
number ________ in which case the Purchaser certifies that the requirement of
delivering a current prospectus has been complied with or will be complied with
in connection with such sale; [ ] (ii) in accordance with Rule 144 under the
Securities Act of 1933 ("Rule 144"), in which case the Purchaser certifies that
it has complied with or will comply with the requirements of Rule 144; or [ ]
(iii) otherwise in accordance with and pursuant to applicable federal and state
securities laws.
Print or type:
Name of Purchaser:
----------------------------------------------
Name of Individual
representing
Purchaser:
----------------------------------------------
Title of Individual
representing Purchaser:
----------------------------------------------
Signature by:
Individual representing
Purchaser:
----------------------------------------------
<PAGE> 42
EXHIBIT C
FORM OF OPINION
October 7, 1997
Biotech Target S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
RE: SALE AND PURCHASE OF CV THERAPEUTICS, INC. COMMON STOCK
Gentlemen:
We have acted as counsel for CV Therapeutics, Inc., a Delaware corporation (the
"Company"), in connection with the issuance and sale of 1,397,147 shares of the
Company's Common Stock to Biotech Target S.A., a corporation organized under
the laws of Panama ("Purchaser"), pursuant to the terms of that certain Common
Stock Purchase Agreement, dated October 7, 1997, by and between the Company and
Purchaser (the "Agreement"). The shares of Common Stock issued to Purchaser at
the closing (the "Closing") are referred to herein as the "Shares". We are
rendering this opinion pursuant to Section 5.2 of the Agreement. Except as
otherwise defined herein, capitalized terms used but not defined herein have
the respective meanings given to them in the Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the parties thereto and originals or copies
certified to our satisfaction, of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. Where we
render an opinion "to the best of our knowledge" or concerning an item "known
to us" or our opinion otherwise refers to our knowledge, it is based solely
upon (i) an inquiry of attorneys within this firm who perform legal services
for the Company, (ii) receipt of a certificate executed by an officer of the
Company covering such matters, and (iii) such other investigation, if any, that
we specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity
of all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents where authorization, execution and delivery are
prerequisites to the effectiveness of such documents (except the due
authorization, execution and delivery of the
<PAGE> 43
Agreement by the Company). We have also assumed: that all individuals
executing and delivering documents had the legal capacity to so execute and
deliver; that you have received all documents you were to receive under the
Agreement; that the Agreement is an obligation binding upon you; that you have
filed any required California franchise or income tax returns and have paid any
required California franchise or income taxes; and that there are no extrinsic
agreements or understandings among the parties to the Agreement that would
modify or interpret the terms of the Agreement or the respective rights or
obligations of the parties thereunder.
Our opinion is expressed only with respect to the federal laws of the United
States of America and the laws of the State of California and the General
Corporation Law of the State of Delaware. We express no opinion as to whether
the laws of any particular jurisdiction apply, and no opinion to the extent
that the laws of any jurisdiction other than those identified above are
applicable to the subject matter hereof. We are not rendering any opinion as
to compliance with any antifraud law, rule or regulation relating to
securities, or to the sale or issuance thereof.
With regard to our opinion in paragraph 4 below, we have examined and relied
upon a certificate executed by an officer of the Company, to the effect that
the consideration for all outstanding shares of capital stock of the Company
was received by the Company in accordance with the provisions of the applicable
Board of Directors resolutions and any plan or agreement relating to the
issuance of such shares, and we have undertaken no independent verification
with respect thereto.
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
1. The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of Delaware.
2. The Company has the requisite corporate power to own or lease
its property and assets and to conduct its business as it is currently being
conducted and, to the best of our knowledge, is qualified as a foreign
corporation to do business in each jurisdiction in the United States in which
the ownership of its property or the conduct of its business requires such
qualification and where any statutory fines or penalties or any corporate
disability imposed for the failure to qualify would materially or adversely
affect the Company, its assets, financial condition or operations.
3. The Agreement has been duly and validly authorized, executed
and delivered by the Company and constitutes a valid, legal and binding
agreement of the Company enforceable against the Company in accordance with its
terms, except as rights to indemnity under Section 7.2 of the Agreement may be
limited by applicable laws and except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other
2.
<PAGE> 44
similar laws affecting creditors' rights, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.
4. The Shares have been duly authorized and, upon issuance and
delivery in accordance with the terms of the Agreement, will be validly issued,
fully paid and nonassessable.
5. The offer and sale of the Shares as contemplated by the
Agreement do not violate any provision of the Company's Amended and Restated
Certificate of Incorporation or Restated Bylaws and do not violate or
contravene (a) any governmental statute, rule or regulation applicable to the
Company or (b) any order, writ, judgment, injunction, decree, determination or
award which has been entered against the Company and of which we are aware, the
violation or contravention of which would materially and adversely affect the
Company, its assets, financial condition or operations.
6. All consents, approvals, authorizations, or orders of, and
filings, registrations, and qualifications with any regulatory authority or
governmental body in the United States required for the issuance and sale of
the Shares as contemplated by the Agreement, have been made or obtained, except
for the filing of a Form D pursuant to the Securities and Exchange Commission
Regulation D.
7. The offer and sale of the Shares as contemplated by the
Agreement is exempt from the registration requirements of the Securities Act of
1933, as amended.
3.
<PAGE> 45
This opinion is intended solely for your benefit and is not to be made
available to or be relied upon by any other person, firm, or entity without our
prior written consent.
Very truly yours,
COOLEY GODWARD LLP
By
-----------------------------------------
Deborah A. Marshall
4.
<PAGE> 46
CV THERAPEUTICS, INC.
OFFICER'S CERTIFICATE
The undersigned, Louis G. Lange, M.D., Ph.D., certifies that he is the
duly authorized and elected Chief Executive Officer of CV THERAPEUTICS, INC., a
Delaware corporation (the "Company"), and further certifies that the
representations and warranties set forth in Section 3 of the Common Stock
Purchase Agreement by and between the Company and Biotech Target S.A. dated
October 7, 1997 (the "Agreement") are true as of and all of the closing
conditions set forth in Section 5 of the Agreement have been satisfied as of
October 7, 1997.
IN WITNESS WHEREOF, the undersigned has executed this certificate this
7th day of October, 1997.
/s/ LOUIS G. LANGE
-----------------------------------
Louis G. Lange, M.D., Ph.D.
Chief Executive Officer
