COMMON STOCK PURCHASE AGREEMENT
Dated As Of June 30, 1998
for the purchase of Common Stock of
SUGEN, INC.
by
OCEANA INVESTMENT CORPORATION PLC
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF COMMON STOCK........................................................................1
2. CLOSING; DELIVERY........................................................................................1
2.1 Closing.........................................................................................1
2.2 Payment and Delivery............................................................................2
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.................................................2
3.1 Organization....................................................................................3
3.2 Capitalization..................................................................................3
3.3 Authority.......................................................................................3
3.4 Financial Statements............................................................................3
3.5 Issuance of the Shares..........................................................................4
3.6 No Conflict with Law or Documents...............................................................4
3.7 Absence of Certain Developments.................................................................4
3.8 Litigation......................................................................................4
3.9 Registration Rights Covenant....................................................................4
3.10 Covenant to Keep Public Information Available...................................................9
3.11 SEC Reports....................................................................................10
3.12 Securities Law Compliance......................................................................10
3.13 Registration Rights............................................................................10
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER..................................................10
4.1 Legal Power....................................................................................10
4.2 Due Execution..................................................................................10
4.3 Investment Representations and Covenants.......................................................10
5. MISCELLANEOUS...........................................................................................11
5.1 Governing Law..................................................................................11
5.2 Successors and Assigns.........................................................................11
5.3 Entire Agreement...............................................................................12
5.4 Separability...................................................................................12
5.5 Amendment and Waiver...........................................................................12
5.6 Notices........................................................................................12
5.7 Fees and Expenses..............................................................................13
i.
TABLE OF CONTENTS
(CONTINUED)
5.8 Titles and Subtitles...........................................................................13
5.9 Counterparts...................................................................................13
ii.
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Table of Contents/Authorities.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement) is made as of
June 30, 1998 (the "Effective Date") by and between SUGEN, INC., a Delaware
corporation (the "Company"), and OCEANA INVESTMENT CORPORATION PLC, a
corporation organized under the laws of England and Wales (itself or one of its
wholly owned subsidiaries designated by it, "Purchaser"). In consideration of
the mutual promises, representations, warranties and conditions set forth in
this Agreement, the Company and Purchaser agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK. The Company has authorized the
issuance and sale to Purchaser of 93,750 shares (the "Shares") of its common
stock, $.01 par value (the "Common Stock"). In reliance upon Purchaser's
representations and warranties contained in Section 4 hereof and subject to the
terms and conditions set forth herein, the Company agrees to sell to Purchaser
the Shares, to be issued and sold at a price per share equal to $24.00. In
reliance upon the representations and warranties of the Company contained in
Section 3 hereof and subject to the terms and conditions set forth herein,
Purchaser hereby agrees to purchase the Shares at the per share purchase price
set forth above.
2. CLOSING; DELIVERY.
The closing of the sale and purchase of Shares under this
Agreement (the "Closing") shall take place at 10:00 a.m., California time, on
the date of satisfaction of the conditions set forth below (the "Closing Date"),
at the offices of Xxxxxx Godward LLP, Five Palo Alto Square, 3000 El Camino
Real, Palo Alto, California, or at such other time and place as the Company and
Purchaser may agree. At the Closing, the Company will issue and sell, and
Purchaser will purchase, the Shares for an aggregate purchase price of
$2,250,000.
2.1 Closing. (a) The obligations of Purchaser to purchase the
Shares at the Closing are subject to the fulfillment on or before the Closing
Date of each of the following conditions, which may be waived only in writing,
on or before June 30, 1998:
(i) The representations and warranties of
the Company contained in Section 3 shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
(ii) The Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing Date.
(iii) All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful sale and
issuance of the Shares at the Closing pursuant to this Agreement shall have been
obtained and shall be effective on and as of the Closing Date. No
1.
stop order or other order enjoining the sale of the Shares shall have been
issued and no proceedings for such purpose shall be pending or, to the knowledge
of the Company, threatened by the SEC, or any commissioner of corporations or
similar officer of any state having jurisdiction over this transaction. At the
time of the Closing, the sale and issuance of the Shares shall be legally
permitted by all laws and regulations to which Purchaser and the Company are
subject.
(iv) The Company and ProChon Biotech
Limited, an Israeli corporation ("ProChon"), shall have executed and delivered
to each other the Heads of Agreement by and between the Company and ProChon
dated as of the Closing Date (the "Heads of Agreement").
(b) The obligations of the Company are subject to
fulfillment on or before the Closing Date of each of the following conditions,
which may be waived only in writing, on or before June 30, 1998:
(i) The representations and warranties of
the Purchaser contained in Section 4 shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
(ii) The Purchaser shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing Date.
(iii) All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful sale and
issuance of the Shares at the Closing pursuant to this Agreement shall have been
obtained and shall be effective on and as of the Closing Date. No stop order or
other order enjoining the sale of the Shares shall have been issued and no
proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by the SEC, or any commissioner of corporations or similar
officer of any state having jurisdiction over this transaction. At the time of
the Closing, the sale and issuance of the Shares shall be legally permitted by
all laws and regulations to which Purchaser and the Company are subject.
(iv) The Company and ProChon shall have
executed and delivered to each other the Heads of Agreement dated as of the
Closing Date.
2.2 Payment and Delivery. At the Closing, subject to the terms
and conditions hereof, the Company will deliver to Purchaser a stock
certificate, registered in the name of Purchaser, representing the Shares to be
purchased by Purchaser from the Company, dated as of the Closing, against
payment of the purchase price therefor by wire transfer, unless other means of
payment shall have been agreed upon by Purchaser and the Company.
2.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Subject to and except as disclosed by the Company in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997 (the
"Form 10-K"), quarterly report on Form 10-Q for the quarter ended March 31, 1998
(the "Form 10-Q") and Proxy Statement for the 1998 Annual Meeting of
Stockholders, dated as of April 17, 1998 (the "Proxy Statement"), each
previously delivered to Purchaser, or in the Schedule of Exceptions attached
hereto as Exhibit A (the "Schedule of Exceptions"), the Company hereby
represents and warrants to Purchaser as follows as of the date hereof and as of
the Closing Date, and all such representations and warranties shall survive the
Closing:
3.1 Organization. The Company is a corporation, duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. The Company has all requisite power and
authority to own or lease its properties and to conduct its business as now
conducted. The Company holds all licenses and permits required for the conduct
of its business as now conducted, which, if not obtained, would have a material
adverse effect on the business, financial condition or results of operations of
the Company taken as a whole. The Company is qualified as a foreign corporation
and is in good standing in all states where the conduct of its business or its
ownership or leasing of property requires such qualification, except where the
failure to so qualify would not have a material adverse effect on the business,
financial condition or results of operations of the Company taken as a whole.
3.2 Capitalization. The authorized, issued and outstanding
capital stock of the Company and a description of the Company's stock option and
stock purchase plans is as set forth in the Proxy Statement. All of the issued
and outstanding shares of common stock have been duly authorized, validly issued
and are fully paid and nonassessable. Except for rights granted under the
Company's 1992 Stock Option Plan, 1994 Non-Employee Directors' Stock Option
Plan, Employee Stock Purchase Plan, Long-Term Objectives Stock Option Plan for
Senior Management and Preferred Share Purchase Rights Plan and the outstanding
warrants and 8% Senior Custom Convertible Notes described in the Form 10-K
(certain of which have been exercised or converted as described in Schedule
3.2), there are no existing subscriptions, options, warrants, calls,
commitments, agreements, conversion or other rights of any character (contingent
or otherwise) to purchase or otherwise acquire from the Company, at any time, or
upon the happening of any stated event, any shares of the capital stock of the
Company. On June 29, 1998, 16,058,126 shares of Common Stock were outstanding,
and no other shares of capital stock of the Company were outstanding.
3.3 Authority. The Company has all requisite power and
authority to enter into this Agreement, and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Company, and upon execution
and delivery by the Company, this Agreement will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditor's rights from time
to time in effect, and subject to general equity principles.
3.
3.4 Financial Statements. The financial statements of the
Company included in the Form 10-K and Form 10-Q fairly presented in all material
respects the financial position and results of operations of the Company at
their respective dates and for the respective periods to which they apply; and
such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved except as otherwise stated therein.
3.5 Issuance of the Shares. The Shares, when issued pursuant
to the terms of this Agreement, will be duly and validly authorized and issued,
fully paid and nonassessable.
3.6 No Conflict with Law or Documents. The execution, delivery
and consummation of this Agreement and the transactions contemplated hereby will
not (a) conflict with any provisions of the Certificate of Incorporation or the
Bylaws of the Company; (b) result in any violation of or default or loss of a
benefit under, or permit the acceleration of any obligation under or conflict
with (in each case, upon the giving of notice, the passage of time, or both) any
mortgage, indenture, lease, agreement or other instrument, permit, franchise
license, judgment, order, decree, law, ordinance, rule or regulation applicable
to the Company or its respective properties.
3.7 Absence of Certain Developments. Since March 31, 1998, the
Company has not (a) incurred or become subject to any material liabilities
(absolute or contingent) except current liabilities incurred, and liabilities
under contracts entered into, in the ordinary course of business, consistent
with past practices; (b) mortgaged, pledged or subjected to lien, charge or any
other encumbrance any material assets, tangible or intangible except in the
ordinary course of business, consistent with past practices; (c) sold, assigned
or transferred any material assets or canceled any material debts or obligations
except in the ordinary course of business, consistent with past practices; (d)
suffered any extraordinary losses, or waived any rights of substantial value;
(e) entered into any material transaction other than in the ordinary course of
business, consistent with past practices; or (f) otherwise had any change in its
condition, financial or otherwise, except for changes in the ordinary course of
business, consistent with past practices, none of which individually or in the
aggregate has been materially adverse to the Company.
3.8 Litigation. To the Company's knowledge, there are no
actions, suits, proceedings or investigations pending or threatened against or
affecting the Company that in the aggregate could reasonably be anticipated to
result in any material adverse effect on the Company.
3.9 Registration Rights Covenant.
(a) At any time during the 180-day period immediately
following the earlier of (i) the expiration of the Term of the Collaboration (as
defined in the Heads of Agreement), without giving effect to any extensions
thereof or (ii) the earlier termination of the Term of the Collaboration
pursuant to terms set forth in the Heads of Agreement or the Collaboration
Agreement contemplated by the Heads of Agreement (the "Collaboration
Agreement"), Purchaser shall have the right to cause the Company to file a
registration statement under the Securities Act for a public offering of all or
part of the Shares, but in no event less than
4.
75,000 Shares, beneficially owned by Purchaser by delivering written notice
thereof to the Company specifying the number of Shares to be included in such
registration and the intended method of distribution thereof (the "Registration
Request"). Upon receipt of the Registration Request, the Company shall, as
expeditiously as possible, use its best efforts to promptly effect the
registration under the Securities Act, and all applicable state securities laws,
to the extent necessary to permit the sale or other disposition by Purchaser of
the Shares to be so registered in accordance with such notice.
(b) The demand registration rights granted in Section
3.9(a) are subject to the following limitations: (i) the Company shall not be
obligated to effect more than one registration pursuant to Section 3.9(a), (ii)
the Company shall not be obligated to effect such registration for a period of
60 days following the closing of an underwritten public offering of the
Company's equity securities that is in registration at the time of the receipt
of the Registration Request (provided that the period within which Purchaser may
demand registration hereunder will be extended by the number of days by which
the registration requested by Purchaser is delayed pursuant to this sentence);
and (iii) if the Company shall furnish to Purchaser a certificate signed by the
Chairman of the Board of Directors of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration to be
effected at such time, then the Company shall have the right to defer the filing
of the registration for a period of not more than 180 days after receipt of the
Registration Request (provided that the period within which Purchaser may demand
registration hereunder will be extended by the number of days by which the
registration requested by Purchaser is delayed pursuant to this sentence).
(c) If and when the Company is required by the
provisions of Section 3.9(a) to include any of the Shares in a registration
under the Securities Act, Purchaser will furnish in writing such information as
is reasonably requested by the Company for inclusion in the registration
statement relating to such offering and such other information and documentation
as the Company shall reasonably request, and the Company will, as expeditiously
as possible:
(i) Prepare and file with the Securities and
Exchange Commission ("SEC") a registration statement with respect to such
securities and use its best efforts to cause such registration to become and
remain effective for such period as may be necessary to permit the successful
marketing of such securities, but not exceeding 120 days (excluding any period
during which a stop order is in effect).
(ii) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act and to keep such registration statement effective for that
period of time specified in paragraph (i) of this section.
(iii) Furnish to Purchaser such number of
prospectuses and preliminary prospectuses in conformity with the requirements of
the Securities Act and such other documents as such Purchaser may reasonably
request in order to facilitate the public sale or other disposition of the
Shares registered hereunder.
5.
(iv) Use its best efforts to register or
qualify the Shares covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as Purchaser shall reasonably
request and do any and all other acts and things which may be necessary or
desirable to enable Purchaser to consummate the public sale or other disposition
in such jurisdictions of the Shares covered by such registration statement,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(d) In the event of a registration of any of the
Shares under the Securities Act pursuant to Section 3.9(a) in connection with an
underwritten public offering, the Company will enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriters of such offering, including without limitation
providing usual and customary indemnification. In the event Purchaser proposes
to sell Shares in accordance with this Section pursuant to an underwritten
offering, the Company shall have the right to approve the managing underwriters
for such offering; provided, however, that such approval shall not be
unreasonably withheld.
(e) At any time or from time to time following the
earlier of (i) the expiration of the Term of the Collaboration (as defined in
the Heads of Agreement), without giving effect to any extensions thereof or (ii)
the earlier termination of the Term of the Collaboration pursuant to terms set
forth in the Heads of Agreement or the Collaboration Agreement, if the Company
shall determine to register any of its securities under the Securities Act
either for its own account or the account of a security holder or holders
exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any registration
form that does not permit secondary sales, then the Company will:
(i) promptly give to Purchaser a written
notice thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 3.9(f) below, and in any
underwriting involved therein, all of the Shares specified in a written request
or requests made by Purchaser and received by the Company within twenty (20)
days after the written notice from the Company described in clause (i) above is
mailed or delivered by the Company. Such written request may specify all or a
part of the Shares.
(f) If the registration of which the Company gives
notice to Purchaser is for a registered public offering involving an
underwriting, the Company shall so advise Purchaser as a part of the written
notice given pursuant to Section 3.9(e)(i). In such event, the right of
Purchaser to registration pursuant to Section 3.9(e) shall be conditioned upon
Purchaser's participation in such underwriting and the inclusion of all or any
part of the Shares specified in Purchaser's notice in the underwriting to the
extent provided herein. Purchaser shall (together with the Company and the other
holders of securities of the Company with registration rights to participate
therein distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
6.
Notwithstanding any other provision of Sections 3.9(e) or (f), if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all of
the Shares from, or limit the number of Shares to be included in, the
registration and underwriting. The Company shall so advise Purchaser and other
holders of securities requesting registration, and the number of shares that are
entitled to be included in the registration and underwriting shall be allocated
first to the Company for securities being sold for its own account and
thereafter the number of shares that are entitled to be included in the
registration shall be allocated among Purchaser and other holders requesting
inclusion of shares on a pro rata basis, subject to any prior agreements among
the Company and its other stockholders, but only to the extent that such other
agreements provide for additional limitations on the number of shares such other
stockholders or the Company will be entitled to include in the registration,
which agreements are in effect as of the Effective Date. If Purchaser or any
other person does not agree to the terms of any such underwriting, Purchaser and
any other such person shall be excluded therefrom by written notice from the
Company or the underwriter. Any Shares or other securities excluded or withdrawn
from such underwriting shall also be withdrawn from such registration.
(g) As used herein, "Registration Expenses" shall
mean all expenses incurred by the Company in complying with this Section 3.9,
including, without limitation, all registration, qualification and filing fees;
printing expenses; fees and disbursements of counsel for the Company (and the
fees and disbursements of counsel for the Company in its capacity as counsel to
the Purchaser hereunder; if Company counsel does not make itself available for
this purpose, the Company will pay the reasonable fees and disbursements of one
counsel for the Purchaser as selected by Purchaser) and of the Company's
independent accounting firm; blue sky fees and expenses; underwriting discounts
and commissions and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company). Purchaser will pay
all Registration Expenses in connection with a registration pursuant to Section
3.9(a) hereof; provided, however, that in the event Purchaser withdraws its
demand for registration after having learned of a material adverse change in the
condition, business, or prospects of the Company from that known to Purchaser at
the time of its demand (in which case Purchaser shall retain its rights pursuant
to Section 3.9(a)), all Registration Expenses shall be borne by the Company. All
Registration Expenses in connection with any registration pursuant to Section
3.9(e) hereof shall be borne by the Company; provided, however, that any
incremental filing fees or other expenses incurred by the Company solely by
reason of Purchaser's exercise of registration rights pursuant to Section 3.9(e)
shall be borne by the Purchaser.
(h) The rights conferred upon Purchaser under this
Section 3.9 may be assigned by Purchaser to any permitted transferee of the
Shares, provided that each such transfer complies with Section 4.5, and
provided, further, that only Purchaser shall be authorized to give notice to the
Company of any request for registration under Section 3.9(a).
(i) In the event any Shares are included in a
registration statement under Sections 3.9(a) or (e):
7.
(i) To the extent permitted by law, the
Company will indemnify and hold harmless Purchaser, the partners, officers,
directors and legal counsel of Purchaser, any underwriter (as defined in the
Securities Act) for Purchaser and each person, if any, who controls Purchaser or
such underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by the Company: (a) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (b) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(c) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse Purchaser and each partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided however, that the indemnity
agreement contained in this Section 3.9(i)(i) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by Purchaser or such partner, officer, director,
underwriter or controlling person of Purchaser.
(ii) To the extent permitted by law,
Purchaser will indemnify and hold harmless the Company, each of its directors,
its officers and legal counsel and each person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter and any other person
selling securities under such registration statement or any of such other
person's partners, directors or officers or any person who controls such person,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter or
other such person, or partner, director, officer or controlling person of such
person may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by Purchaser
under an instrument duly executed by Purchaser and stated to be specifically for
use in connection with such registration; and Purchaser will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other person, or partner, officer,
director or controlling person of such other person in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided,
8.
however, that the indemnity agreement contained in this Section 3.9(i)(ii) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Purchaser, which consent shall not be unreasonably withheld; provided further,
that in no event shall any indemnity under this Section 3.9(i)(ii) exceed the
net proceeds from the offering received by such Purchaser
(iii) Promptly after receipt by an
indemnified party under this Section 3.9(i) of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 3.9(i), deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
3.9(i), but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 3.9(i).
(iv) If the indemnification provided for in
this Section 3.9(i) is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any losses, claims, damages
or liabilities referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall to the extent permitted by
applicable law contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
Violation(s) that resulted in such loss, claim, damage or liability, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by a court
of law by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, that in no event
shall any contribution by Purchaser hereunder exceed the proceeds from the
offering received by Purchaser.
(v) The obligations of the Company and
Purchaser under this Section 3.9(i) shall survive completion of any offering of
securities in a registration statement pursuant to Section 3.9. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by
9.
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(j) The right of Purchaser to exercise any right
provided under Section 3.9 shall terminate at such time as all of the Shares may
immediately be sold under Rule 144 under the Securities Act or any successor
provision during any 90-day period.
3.10 Covenant to Keep Public Information Available. The
Company covenants and agrees that it will file the reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder as such may be amended from time to
time (the "Rules"), and will take such further actions as Purchaser may
reasonably request, all to the extent required from time to time to enable
Purchaser to sell Shares at such times as are permitted by this Agreement
without registration under the Securities Act within the limitations of Rule 144
of the Rules or any similar rule or regulation hereafter adopted by the SEC.
Upon the request of Purchaser, the Company will supply Purchaser with a
certificate certifying compliance with this provision.
3.11 SEC Reports. All of the reports filed by the Company
under the Exchange Act prior to the date of this Agreement (the "SEC Reports")
comply in all material respects with the requirements of the Exchange Act. None
of the SEC Reports contains, as of the respective dates thereof, any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made.
3.12 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of Purchaser contained in Section 4, the offer,
issuance, sale and delivery of the Shares constitute an exempt transaction under
the Securities Act.
3.13 Registration Rights. Except as set forth in the Schedule
of Exceptions, the Company is not under any obligation to register any of its
presently outstanding securities or any of its securities which may hereafter be
issued.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser hereby represents, warrants and covenants with the Company as
follows:
4.1 Legal Power. Purchaser has the requisite corporate power
and is authorized to enter into this Agreement, to purchase the Shares hereunder
and to carry out and perform its obligations under the terms of this Agreement.
4.2 Due Execution. This Agreement has been duly authorized
executed and delivered by Purchaser, and upon due execution and delivery by the
Company, this Agreement will be a valid and binding agreement of Purchaser.
4.3 Investment Representations and Covenants. Purchaser is
acquiring the Shares for its own account, not as nominee or agent, for
investment and not with a view to or for resale in connection with, any
distribution or public offering thereof within the meaning of
10.
the Securities Act. Purchaser understands that the Shares have not been
registered under the Securities Act, but are instead being offered and sold to
Purchaser pursuant to an exemption from registration contained in the Securities
Act based in part upon the following representations and warranties:
(a) Purchaser is capable of evaluating the merits and
risks of its investment in the Company and has the capacity to protect its own
interests. Purchaser must bear the economic risk of this investment unless the
Shares are registered pursuant to the Securities Act, or an exemption from
registration is available. Purchaser understands that the Company has no present
intention of registering the Shares. Purchaser also understands that there is no
assurance that any exemption from registration under the Securities Act will be
available and that, even if available, such exemption may not allow such
Purchaser to transfer all or any portion of the Shares under the circumstances,
in the amounts or at the times Purchaser might propose.
(b) Purchaser is acquiring the Shares for such
Purchaser's own account for investment only, and not with a view towards their
distribution.
(c) Purchaser represents that by reason of its, or of
its management's, business or financial experience, Purchaser has the capacity
to protect its own interests in connection with the transactions contemplated in
this Agreement.
(d) Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with directors, officers
and management of the Company and has had the opportunity to review the
Company's operations and facilities. Purchaser has also had the opportunity to
ask questions of and receive answers from, the Company and its management
regarding the terms and conditions of this investment.
(e) Purchaser acknowledges and agrees that the Shares
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser
has been advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things: the availability of certain current public information about the
Company, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale being through an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Exchange Act) and the number of shares being sold
during any three-month period not exceeding specified limitations. Each
certificate representing the Shares shall be stamped or otherwise imprinted with
a legend substantially similar to the following:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL THEY ARE REGISTERED UNDER THE ACT OR UNLESS (A) THE COMPANY HAS
RECEIVED AN
11.
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED OR (B) SUCH SALE IS MADE
PURSUANT TO RULE 144 UNDER THE ACT.
5. MISCELLANEOUS.
5.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents, made and to be performed entirely within the State
of California, without regard to principles of conflict of laws.
5.2 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators of
the parties hereto. It is acknowledged and agreed that Oceana Investment
Corporation PLC may assign its rights and obligations under this Agreement to
one or more of its wholly owned subsidiaries.
5.3 Entire Agreement. This Agreement and the Exhibits hereto,
and the other documents delivered pursuant hereto, constitute the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and no party shall be liable or bound to any other party in any manner by
any representations, warranties, covenants, or agreements except as specifically
set forth herein or therein. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5.4 Separability. In case any provision of this Agreement
shall be invalid, illegal, or unenforceable, it shall to the extent practicable,
be modified so as to make it valid, legal and enforceable and to retain as
nearly as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
5.5 Amendment and Waiver. Except as otherwise provided herein,
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,
either retroactively or prospectively, and either for a specified period of time
or indefinitely), with the written consent of the Company and Purchaser. Any
amendment or waiver effected in accordance with this section shall be binding
upon any holder of any security purchased under this Agreement (including
securities into which such securities have been converted), each future holder
of all such securities, and the Company.
5.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery, on the first business day following mailing by overnight
courier, or on the fifth day following mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company and
Purchaser at the addresses included herein.
12.
5.7 Fees and Expenses. Except as set forth in Section 3.9(g),
the Company and Purchaser shall bear their own expenses and legal fees with
respect to this Agreement and the transactions contemplated hereby.
5.8 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
5.9 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
13.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date set forth in the first paragraph hereof.
SUGEN, INC.
By: /s/ K. Xxxxx Xxxxx, Ph.D.
-------------------------------------
Name: K. Xxxxx Xxxxx, Ph.D.
Title: Executive Vice President
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000-0000
OCEANA INVESTMENT CORPORATION PLC
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
Address: Xxxx Xxxxx
000 Xxxx Xxxx
Xxxxxx XX00XX Xxxxxxx
14.
EXHIBIT A
SCHEDULE OF EXCEPTIONS PURSUANT TO SECTION 3
This Schedule of Exceptions is made and given pursuant to Section 3 of
the Agreement. The paragraph numbers in this Schedule of Exceptions correspond
to the paragraph numbers in the Agreement; however, any information disclosed
herein under any paragraph number shall be deemed to be disclosed and
incorporated into any other paragraph number under the Agreement where such
disclosure would be appropriate. Any terms defined in the Agreement shall have
the same meaning when used in this Schedule of Exceptions as when used in the
Agreement unless the context otherwise requires.
3.2 Capitalization. On June 30, 1998, 136,511 shares of Common Stock
were issued under the Company's Employee Stock Purchase Plan.
Note Conversions Since March 31, 1998
Convertible Note Holder Number of Shares Date of Conversion
----------------------- ---------------- ------------------
Omicron Partners 270,460 5/12/98
Delta Opportunity Fund 207,000 5/22/98
Overbrook Fund 8,300 5/22/98
ACI/DA Investors 70,300 5/22/98
Omicron Partners 20,100 5/27/98
OTATO 41,500 5/28/98
3.13 Registration Rights. The Company has granted registration rights
to the following security holders with respect to the number of shares
indicated:
Security Holder Number of Shares
---------------------------------------------------------------------------- ----------------
Asta Medica Aktiengesellschaft 449,802
Zeneca Limited 1,071,016
AMGEN, Inc. 200,000
Sanwa Business Credit Corp. 2,666
Dr. Xxxxxxxx Xxxx 15,000
Financing for Science International, Inc. 20,798
Genentech, Inc. 133,333
Comdisco 76,847
Vision Pharmaceuticals L.P. 191,571
Convertible Noteholders 1,780,000
