Exhibit 10.28
RIGHT OF FIRST REFUSAL AGREEMENT
This RIGHT OF FIRST REFUSAL AGREEMENT is entered into as of
the 7th day of May, 1999 by and among SangStat Medical Corporation, a
Delaware corporation ("SangStat"), and Xxxxxx Laboratories, an Illinois
corporation ("Xxxxxx").
W I T N E S S E T H :
WHEREAS, SangStat and Xxxxxx are parties to the Stock Purchase
Agreement of even date herewith (the "Stock Purchase Agreement"),
pursuant to which Xxxxxx is purchasing those shares of SangStat's common
stock $0.001 par value (the "Common Stock") that are defined in the
Stock Purchase Agreement as being the "Initial Shares" and may purchase
those shares of the Common Stock that are defined in the Stock Purchase
Agreement as being the "Option Shares" (the Initial Shares and the
Option Shares are referred to collectively herein as the "Shares"); and
WHEREAS, SangStat and Xxxxxx wish to provide further
inducements to each other to consummate the proposed transaction;
WHEREAS, all terms not otherwise defined herein shall have the
same meanings ascribed to them in the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual promises set forth in this Agreement;
THE PARTIES AGREE AS FOLLOWS:
1. Right of Refusal.
(a) Transfer Notice. If at any time after the
expiration of the Market Stand-Off set forth in the Stock Purchase
Agreement, Xxxxxx proposes to transfer any of the Shares to one or more
third parties or in an open market transaction (a "Transfer"), then
Xxxxxx shall give SangStat written notice of Xxxxxx'x intention to make
the Transfer (the "Transfer Notice"), which Transfer Notice shall
include (i) a description of the Shares to be transferred ("Offered
Shares"), (ii) the identity of the prospective transferee(s) if it is not
an open market transaction and (iii) the consideration and the material
terms and conditions upon which the proposed Transfer is to be made. The
Transfer Notice shall also include a copy of any written proposal, term
sheet or letter of intent, or other agreement relating to the proposed
Transfer.
(b) SangStat's Option. SangStat shall have an option
for a period of thirty (30) days from receipt of the Transfer Notice to
elect to purchase the Offered Shares at the same price and subject to the
same material terms and conditions as described in the Transfer Notice or
if the Transfer Notice proposes an open market transaction, then the
purchase price for SangStat shall be the average of the closing prices for
SangStat's Common Stock, as quoted on the Nasdaq National Market, on each
of the twenty (20) trading days immediately preceding the date of the
Transfer Notice. SangStat may exercise such purchase option and, thereby,
purchase all of the Offered Shares if the Transfer Notice proposes a
transfer to one or more third parties not in an open market transaction,
or purchase all (or a portion of) the Offered Shares if the Transfer
Notice proposes an open market transaction by notifying Xxxxxx in writing
before expiration of the such thirty (30) day period as to the number of
such shares which it wishes to purchase. If SangStat gives Xxxxxx notice
that it desires to purchase such shares, then payment for the Offered
Shares shall be by check or wire transfer, against delivery of the Offered
Shares to be purchased at a place agreed upon between the parties and at
the time of the scheduled closing therefor, which shall be no later than
forty-five (45) days after SangStat's receipt of the Transfer Notice,
unless the Transfer Notice contemplated a later closing with the
prospective third party transferee(s) or unless the value of the purchase
price has not yet been established pursuant to Section 1.1(c).
(c) Valuation of Property. Should the purchase price
specified in the Transfer Notice be payable in property other than cash or
evidences of indebtedness, SangStat shall have the right to pay the
purchase price in the form of cash equal in amount to the value of such
property. If Xxxxxx and SangStat cannot agree on such cash value within
ten (10) days after SangStat's receipt of the Transfer Notice, the
valuation shall be made by an appraiser of recognized standing selected by
Xxxxxx and SangStat or, if they cannot agree on an appraiser within twenty
(20) days after SangStat's receipt of the Transfer Notice, each shall
select an appraiser of recognized standing and the two appraisers shall
designate a third appraiser of recognized standing, whose appraisal shall
be determinative of such value. The cost of such appraisal shall be
shared equally by Xxxxxx and SangStat. If the time for the closing of
SangStat's purchase but for the determination of the value of the purchase
price offered by the prospective transferee(s), then such closing shall
held on or prior to the fifth business day after such valuation shall have
been made pursuant to this subsection.
1.2 Non-Exercise of Rights. To the extent that SangStat has
not exercised its right to purchase the Offered Shares within the time
period specified in Section 1.1, the rights set forth herein shall
terminate.
1.3 Limitations to Right of Refusal. Notwithstanding the
provisions of Section 1.1 and 1.2 of this Agreement, Xxxxxx may sell or
otherwise assign, with or without consideration, Shares to any affiliate
or successor in interest of Xxxxxx provided that each such transferee or
assignee, prior to the completion of the sale, transfer, or assignment
shall have executed documents assuming the obligations of Xxxxxx under
this Agreement with respect to the transferred securities.
2. Assignments and Transfers; No Third Party Beneficiaries.
This Agreement and the rights and obligations of the parties hereunder
shall inure to the benefit of, and be binding upon, their respective
successors, assigns and legal representatives, but shall not otherwise be
for the benefit of any third party.
3. Legend. Each existing or replacement certificate for
shares now owned by Xxxxxx shall bear the following legend upon its face:
"THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR
TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS
OF A CERTAIN RIGHT OF FIRST REFUSAL AGREEMENT BY
AND BETWEEN THE STOCKHOLDER AND THE CORPORATION.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE
CORPORATION."
4. Term. This Agreement shall terminate upon the earlier
of (i) December 31, 2004 and (ii) the closing of SangStat's sale of all or
substantially all of its assets or the acquisition of SangStat by another
entity by means of merger, consolidation or other transaction or series of
related transactions resulting in the exchange of the outstanding shares
of SangStat's capital stock such that the stockholders of SangStat prior
to such transaction own, directly or indirectly, less than 50% of the
voting power of the surviving entity.
5. Miscellaneous.
5.1 Entire Agreement; Controlling Document. This Agreement
constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence and understandings between the parties with respect to the
subject matter hereof, whether oral or in writing.
5.2 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
5.3 Delay and Waiver. No delay on the part of either party
in exercising any right under this Agreement shall operate as a waiver of
such right. The waiver by either party of any other term or condition of
this Agreement shall not be construed as a waiver of a subsequent breach
or failure of the same term or condition or a waiver of any other term or
condition contained in this Agreement.
5.4 Assignment: Successors and Assigns. No provision of
this Agreement may be assigned without the prior written consent of the
other party hereto. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including
transferees of any of the Initial Shares or Option Shares). Nothing in
this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
5.5 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware without regard to
conflicts of law principles.
5.6 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
5.7 Expenses. Irrespective of whether the Right of First
Refusal is exercised, each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and
performance of this Agreement.
5.8 Alternative Dispute Resolution. The parties agree to
effectuate all reasonable efforts to resolve in an amicable manner any and
all disputes between them in connection with this Agreement. The parties
agree that any dispute that arises in connection with this Agreement,
which cannot be amicably resolved informally shall be finally settled as
set forth in the Alternative Dispute Resolution provisions of Exhibit E to
the Co-Promotion Agreement between Xxxxxx and SangStat dated as of May 7,
1999.
5.9 Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of SangStat and Xxxxxx. Any
amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement
at the time outstanding (including securities into which such securities
are convertible), each future holder of all such securities and SangStat.
5.10 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such
provision shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
5.11 Further Assurances. SangStat and Xxxxxx shall do and
perform or cause to be performed all such further acts and things and
shall execute and deliver all such other agreements, certificates,
instruments or documents as the other party may reasonably request from
time to time in order to carry out the intent and purposes of this
Agreement and the consummation of the transactions contemplated by the
Agreement. Neither SangStat nor Xxxxxx shall voluntarily undertake any
course of action inconsistent with the satisfaction of the requirements
applicable to them as set forth in this Agreement, and each shall promptly
do all such acts and take all such measures as may be appropriate to
enable them to perform as early as practicable their obligations under
this Agreement.
5.12 No Third Party Rights. Nothing in this Agreement shall
create or be deemed to create any rights in any person or entity not a
party to his Agreement.
5.13 Mutual Drafting. This Agreement is the joint product of
SangStat and Xxxxxx and each provision of the Agreement has been subject
to consultation, negotiation and agreement of SangStat and Xxxxxx and
their respective legal counsel and advisers and any rule of construction
that a document shall be interpreted or construed against the drafting
party shall not apply.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
SANGSTAT MEDICAL CORPORATION
By:
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President and Chief Executive Officer
Address: 0000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
XXXXXX LABORATORIES:
By:
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Name:
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Title:
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Address:
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