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Exhibit 1
GENELABS TECHNOLOGIES, INC.
COMMON STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
PAGE
1. AGREEMENT TO SELL AND PURCHASE......................................................................... 1
1.1 Authorization of Shares....................................................................... 1
1.2 Sale and Purchase............................................................................. 1
1.3 Fees and Commissions.......................................................................... 1
2. CLOSING, DELIVERY AND PAYMENT.......................................................................... 1
2.1 Closing....................................................................................... 1
2.2 Delivery...................................................................................... 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................... 2
3.1 Organization, Good Standing and Qualification................................................. 2
3.2 Capitalization................................................................................ 2
3.3 Authorization; Binding Obligations............................................................ 2
3.4 Financial Statements.......................................................................... 2
3.5 Liabilities................................................................................... 3
3.6 Absence of Certain Developments............................................................... 3
3.7 Title to Properties and Assets; Liens, etc.................................................... 3
3.9 Compliance with Other Instruments............................................................. 3
3.10 Litigation.................................................................................... 4
3.11 Tax Returns and Payments...................................................................... 4
3.12 Employees..................................................................................... 4
3.13 Compliance with Laws; Permits................................................................. 4
3.14 Offering Valid................................................................................ 5
3.15 Minute Books.................................................................................. 5
3.16 Real Property Holding Corporation............................................................. 5
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER............................................. 5
4.1 Requisite Power and Authority................................................................. 5
4.2 Consents...................................................................................... 5
4.3 Investment Representations.................................................................... 5
4.4 Xxxx-Xxxxx-Xxxxxx Filing...................................................................... 6
4.5 Market Stand-Off Agreement.................................................................... 6
5. CONDITIONS TO CLOSING.................................................................................. 6
5.1 Conditions to Obligations of the Purchase..................................................... 6
5.2 Conditions to Obligations of the Company. . .................................................. 7
5.3 Conditions to Obligations of the Company. .................................................... 8
6. MISCELLANEOUS.......................................................................................... 8
6.1 Governing Law................................................................................. 8
6.2 Survival...................................................................................... 8
6.3 Successors and Assigns........................................................................ 8
6.4 Entire Agreement.............................................................................. 8
6.5 Severability.................................................................................. 8
COMMON STOCK PURCHASE AGREEMENT
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6.6 Amendment and Waiver.......................................................................... 8
6.7 Delays or Omissions........................................................................... 8
6.8 Notices....................................................................................... 9
6.9 Expenses...................................................................................... 9
6.10 Titles and Subtitles.......................................................................... 9
6.11 Counterparts.................................................................................. 9
6.12 Broker's Fees................................................................................. 9
6.13 Exculpation of Purchaser...................................................................... 9
COMMON STOCK PURCHASE AGREEMENT
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GENELABS TECHNOLOGIES, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is entered into
as of November 15, 1996, by and among GENELABS TECHNOLOGIES, INC., a California
corporation (the "Company"), and VERON INTERNATIONAL LIMITED ("Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale and issuance of up to an
aggregate of Two Million Six Hundred Thousand (2,600,000) shares of its Common
Stock (the "Shares");
WHEREAS, Purchaser desires to purchase the Shares on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Shares to Purchaser
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closings (as
defined in Section 2 below), the Company shall have authorized the sale and
issuance to Purchaser of the Shares.
1.2 SALE AND PURCHASE. Subject to the terms and conditions
hereof, at the Closings (as hereinafter defined) the Company hereby agrees to
issue and sell to the Purchaser, and the Purchaser agrees to purchase from the
Company, the Shares at a purchase price of four dollars ($4.00) per share. Of
the Shares to be purchased, 700,000 shares shall be purchased at the First
Closing, and 1,900,000 shares shall be purchased at the Second Closing.
1.3 FEES AND COMMISSIONS. Promptly following the Second
Closing, the Company shall pay a commission in the amount of nine hundred fifty
thousand dollars ($950,000) to the Purchaser or its affiliates from the proceeds
to the Company in lieu of payment of any broker's fees or commissions and to
cover Purchaser's fees and expenses related to the purchase.
2. CLOSING, DELIVERY AND PAYMENT.
2.1 CLOSING DATES. There will be two closing of the sale and
purchase of the Shares being purchased by the Purchaser hereunder, (referred to
as the "First Closing" and the "Second Closings"). The First Closing shall be
held at Cooley Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx, 0xx
Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 8:00 a.m. on November 18, 1996, or at such
other time and place as the Company and the Purchaser mutually agree upon (such
date is hereinafter referred to as the "First Closing Date"). The Second Closing
shall be held at Cooley Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx,
0xx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 on such date as the
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Company shall specify in writing (such date is hereinafter referred to as a
"Second Closing Date"). The sole purpose of the Second Closing will be to issue
and purchase any Shares that may not lawfully be purchased in the First Closing.
Beneficial ownership of the Shares to be issued in the Second Closing shall not
pass to Purchaser until such shares are released from escrow.
2.2 DELIVERY. At the First Closing, subject to the terms and
conditions hereof, the Company will deliver to the Purchaser certificates
representing the number of Shares to be purchased at such Closing by the
Purchaser, against payment of the purchase price therefore by wire transfer to
the order of the Company. In addition, at the First Closing the Company and the
Purchaser shall deliver to the Escrow Agent the balance of the Shares and
consideration to be paid therefore pursuant to this Agreement and in accordance
with and subject to the Escrow Agreement attached hereto as Exhibit A (the
"Escrow Agreement"). Capitalized terms used herein but not otherwise defined
shall have the meanings assigned thereto in the Escrow Agreement. At the Second
Closing, subject to the terms and conditions hereof, the Escrow Agent will
deliver to the Purchaser certificates representing the number of Shares to be
purchased at such Closing by the Purchaser against payment of the purchase price
therefore upon release of the Escrow Funds from the Escrow Account.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchaser as
of the date hereof as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of California. The Company has all requisite corporate power
and authority to own and operate its properties and assets, to execute and
deliver this Agreement, to issue and sell the Shares and to carry out the
provisions of this Agreement and to carry on its business as presently conducted
and as presently proposed to be conducted.
3.2 CAPITALIZATION. The authorized capital stock of the
Company, as of November 1, 1996, consists of: (a) Seventy-Five Million
(75,000,000) shares of Common Stock, Thirty-Six Million Three Hundred
Seventy-One Thousand Eighteen (36,371,018) shares of which are issued and
outstanding; and (b) Five Million (5,000,000) shares of Preferred Stock, Ten
Thousand (10,000) shares of which are designated Series A Preferred Stock, all
of which are issued and outstanding. The Preferred Shares presently are
convertible into a total of 3,333,333 shares of Common Stock, based on the
current market price of the Company's Common Stock. All issued and outstanding
shares of the Company's Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable. When issued in compliance with the
provisions of this Agreement, the Shares will be validly issued, fully paid and
nonassessable, and will be free of 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.
3.3 AUTHORIZATION; BINDING OBLIGATIONS. All corporate action
on the part of the Company, its officers, directors and shareholders necessary
for the authorization of this Agreement, the performance of all obligations of
the Company hereunder at the Closing and the authorization, sale, issuance and
delivery of the Shares pursuant hereto has been taken or will be taken prior to
the First Closing. The Agreement, when executed and delivered, will be a valid
and binding obligation of the Company enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy,
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insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (ii) general principles of
equity that restrict the availability of equitable remedies.
3.4 FINANCIAL STATEMENTS. The Company has filed with the
Securities and Exchange Commission (the "SEC") the documents set forth in
Exhibit A (the "SEC Filings").
(a) The SEC Filings conform in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the SEC thereunder as of their
respective filing dates and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The documents or portions thereof
that were incorporated by reference in the SEC Filings pursuant to the
requirements of the Exchange Act, when such incorporated documents or portions
were first filed with the SEC, conformed in all material respects with any
applicable requirements of the Exchange Act and the rules and regulations of the
SEC thereunder.
(b) The consolidated financial statements of the Company
included in the SEC Filings 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.
(c) Notwithstanding any provision therein to the contrary, it
is understood by the Company and the Purchaser that the Company is not
representing or warranting any statement in the SEC Filings relating to future,
anticipated or possible circumstances, occurrences or developments.
3.5 LIABILITIES. The Company has no material liabilities and,
to the best of its knowledge, knows of no material contingent liabilities not
disclosed in the SEC Filings, except current liabilities incurred in the
ordinary course of business subsequent to September 30, 1996.
3.6 ABSENCE OF CERTAIN DEVELOPMENTS. Except as described in
the SEC Filings and except in the ordinary course of business consistent with
past practices, the Company has not (a) incurred or become subject to any
material liabilities (absolute or contingent); (b) mortgaged, pledged or
subjected to lien, charge or any other encumbrance any of its assets, tangible
or intangible; (c) sold, assigned or transferred any of its assets or canceled
any debts or obligations; (d) suffered any extraordinary losses, or waived any
rights of substantial value; (e) entered into any material transaction; or (f)
otherwise had any material change in its condition, financial or otherwise,
except that the Company continues to incur losses as set forth in and
contemplated by the SEC Filings.
3.7 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. The Company
has good and marketable title to its properties and assets, including the
properties and assets reflected in the most recent balance sheet included in the
SEC Filings, and good title to its leasehold estates, in each case subject to no
mortgage, pledge, lien, lease, encumbrance or charge, other than (i) those
resulting from taxes which have not yet become delinquent, (ii) minor liens and
encumbrances which do not materially detract from the value of the property
subject thereto or materially impair the operations of the Company, and (iii)
those that have otherwise arisen in the ordinary course of business. All
facilities, machinery, equipment, fixtures, vehicles and other properties owned,
leased or used by the Company are in good operating condition and repair and are
reasonably fit and usable for the purposes for which they are being used.
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3.8 PATENTS AND TRADEMARKS. Except as set forth in the SEC
Filings, to the best of its knowledge, the Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information and other proprietary rights and processes necessary
for its business as now conducted, without any known infringement of the rights
of others except for such infringement that would not have a material adverse
effect on the business or financial condition of the Company.
3.9 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any term of its Amended and Restated Articles of
Incorporation (the "Articles") or Amended Bylaws ("Bylaws"), or of any provision
of any mortgage, indenture, contract, agreement, instrument or contract to which
it is party or by which it is bound or of any judgment, decree, order, writ or,
to its knowledge, any statute, rule or regulation applicable to the Company, in
each case, which would materially and adversely affect the business, assets,
liabilities, financial condition, operations or prospects of the Company. The
execution, delivery, and performance of and compliance with this Agreement, and
the issuance and sale of the Shares pursuant hereto will not, with or without
the passage of time or giving of notice, result in any such material violation,
or be in conflict with or constitute a default under any such term, or result in
the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
the properties or assets of the Company or the suspension, revocation,
impairment, forfeiture or nonrenewal of any permit license, authorization or
approval applicable to the Company, its business or operations or any of its
assets or properties except for such violation, conflict or default that would
not have a material adverse effect on the business and financial condition of
the Company.
3.10 LITIGATION. There is no action, suit, proceeding or
investigation pending or to the Company's knowledge currently threatened against
the Company that questions the validity of this Agreement, or the right of the
Company to enter into this Agreement, or to consummate the transactions
contemplated hereby, or which might result, either individually or in the
aggregate, in any material adverse change in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change in the current
equity ownership of the Company, nor is the Company aware that there is any
basis for the foregoing. The Company is not a party or subject to the provisions
of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality.
3.11 TAX RETURNS AND PAYMENTS. The Company has timely filed
all tax returns (federal, state and local) required to be filed by it. All taxes
shown to be due and payable on such returns, any assessments imposed, and to the
Company's knowledge all other taxes due and payable by the Company on or before
the First Closing have been paid or will be paid prior to the time they become
delinquent. The Company has not been advised (i) that any of its returns,
federal, state or other, have been or are being audited as of the date hereof,
or (ii) of any deficiency in assessment or proposed judgment to its federal,
state or other taxes. The Company has no knowledge of any liability of any tax
to be imposed upon its properties or assets as of the date of this Agreement
that is not adequately provided for.
3.12 EMPLOYEES. The Company has no collective bargaining
agreements with any of its employees. There is no labor union organizing
activity pending or, to the Company's knowledge, threatened with respect to the
Company. To the Company's knowledge, no employee of the Company, nor any
consultant with whom the Company has contracted, is in violation of any term of
any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to
contract with, the Company because of the nature of the business to be conducted
by the Company; and to the Company's knowledge the continued employment
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by the Company of its present employees, and the performance of the Company's
contracts with its independent contractors, will not result in any such
violation.
3.13 COMPLIANCE WITH LAWS; PERMITS. To its knowledge, the
Company is not in violation of any applicable statute, rule, regulation, order
or restriction of any domestic or foreign government or any instrumentality or
agency thereof in respect of the conduct of its business or the ownership of its
properties which violation would materially and adversely affect the business,
assets, liabilities, financial condition, operations or prospects of the
Company. The Company has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which could materially and adversely affect the business,
properties, prospects or financial condition of the Company and believes it can
obtain, without undue burden or expense, any similar authority for the conduct
of its business as planned to be conducted.
3.14 OFFERING VALID. Assuming the accuracy of the
representations and warranties of the Purchaser contained in Section 4.3 hereof,
the offer, sale and issuance of the Shares will be exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act")
and will have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws.
3.15 MINUTE BOOKS. The minute books of the Company made
available to the Purchaser contain a complete summary of all meetings of
directors and shareholders since the time of incorporation.
3.16 REAL PROPERTY HOLDING CORPORATION. The Company is not a
real property holding corporation within the meaning of Internal Revenue Code
Section 897(c)(2) and any regulations promulgated thereunder.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser hereby represents and warrants to the Company as of the date hereof as
follows:
4.1 REQUISITE POWER AND AUTHORITY. Purchaser has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and to carry out its provisions. All action on
Purchaser's part required for the lawful execution and delivery of this
Agreement have been or will be effectively taken prior to the Closing. Upon its
execution and delivery, this Agreement will be a valid and binding obligation of
the Purchaser, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application affecting enforcement of creditors' rights, and (ii)
general principles of equity that restrict the availability of equitable
remedies.
4.2 CONSENTS. All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings with any
governmental or banking authority on the part of the Purchaser required in
connection with the consummation of the transactions contemplated in this
Agreement have been or shall have been obtained prior to and be effective as of
the Closing.
4.3 INVESTMENT REPRESENTATIONS. Purchaser understands that the
Shares have not been registered under the Securities Act. Purchaser also
understands that the Shares are being offered and sold pursuant to an exemption
from registration contained in Section 4(2) and not Regulation S under the
Securities Act based in part upon Purchaser's representations contained in the
Agreement. Purchaser hereby represents and warrants as follows:
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(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company so that it 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 indefinitely unless the Shares are registered pursuant
to the Securities Act, or an exemption from registration is available. 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 Purchaser to transfer all or any portion of the Shares
under the circumstances, in the amounts or at the times Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is
acquiring the Shares for Purchaser's own account for investment only, and not
with a view towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. 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. Further,
Purchaser is aware of no publication of any advertisement in connection with the
transactions contemplated in the Agreement.
(d) ACCREDITED INVESTOR. Purchaser represents that it
is an accredited investor within the meaning of Regulation D under the
Securities Act.
(e) COMPANY INFORMATION. Purchaser has received the
SEC Filings and 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.
(f) RULE 144. 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 two years 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.
(g) RESIDENCE. The office or offices of the Purchaser
in which its investment decision was made is located at the address or addresses
of the Purchaser set forth on the signature page hereof.
4.4 XXXX-XXXXX-XXXXXX FILING. Purchaser covenants that it will
use its best efforts to timely file the notification form required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx") and to take
all other action as is necessary to lawfully purchase the Shares under the HSR
Act and otherwise. Purchaser warrants that, as a result of acquiring Shares in
the First Closing, it will not hold voting securities in the Company valued, as
of November 14,1996, in excess of $15 million.
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4.5 MARKET STAND-OFF AGREEMENT. Purchaser agrees that it will
not, directly or indirectly, sell, offer, contract to sell, transfer the
economic risk of ownership in, make any short sale, pledge or otherwise transfer
or dispose of the Shares during the one year period following the First Closing
Date without the prior written consent of the Company.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASE AT THE FIRST
CLOSING. Purchaser's obligations to purchase the Shares at the First Closing are
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE
OF OBLIGATIONS. The representations and warranties made by the Company in
Section 3 hereof shall be true and correct in all material respects at the First
Closing with the same force and effect as if they had been made as of such date,
and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the First Closing.
(b) LEGAL INVESTMENT. The sale and issuance of the
Shares shall be legally permitted by all laws and regulations to which the
Purchaser and the Company are subject.
(c) CONSENTS, PERMITS, AND WAIVERS. The Company shall
have obtained any and all consents, permits and waivers necessary or appropriate
for consummation of the transactions contemplated by the Agreement (except for
such as may be properly obtained subsequent to the Closing).
(d) CORPORATE DOCUMENTS. The Company shall have
delivered to the Purchaser or its counsel, copies of all corporate documents of
the Company as the Purchaser shall reasonably request.
(e) COMPLIANCE CERTIFICATE. The Company shall have
delivered to the Purchaser a Compliance Certificate, executed by the President
and the Chief Accounting Officer of the Company, dated the date of the First
Closing, to the effect that to their knowledge the conditions specified in
subsections (a) and (c) of this Section 5.1 have been satisfied as of the First
Closing Date.
(f) PROCEEDINGS AND DOCUMENTS. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing hereby and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the Purchaser, and the
Purchaser shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT THE FIRST
CLOSING. The Company's obligation to issue and sell the Shares at the First
Closing is subject to the satisfaction, on or prior to the Closing, of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The
representations and warranties made by the Purchaser in Section 4 hereof shall
be true and correct in all material respects at the First Closing with the same
force and effect as if they had been made as of said date.
(b) LEGAL INVESTMENT. The sale and issuance of the
Shares shall be legally permitted by all laws and regulations to which the
Purchaser and the Company are subject.
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(c) PERFORMANCE OF OBLIGATIONS. Purchaser shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by the Purchaser on or before the Closing.
(d) CONSENTS, PERMITS, AND WAIVERS. The Company shall
have obtained any and all consents, permits and waivers necessary or appropriate
for consummation of the transactions contemplated by the Agreement (except for
such as may be properly obtained subsequent to the Closing).
5.3 CONDITIONS TO OBLIGATIONS OF THE COMPANY AND THE PURCHASER
AT THE SECOND CLOSING.
(a) The Escrow Agent shall have released the Shares
and the Funds pursuant to the Escrow Agreement.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and performed entirely in
California.
6.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Purchaser and
the closing of the transactions contemplated hereby.
6.3 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 and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
6.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and
Schedules hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
6.5 SEVERABILITY. In case any provision of the Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
6.6 AMENDMENT AND WAIVER.
(a) Except as set forth in the introductory paragraph
hereof, this Agreement may be amended or modified only upon the written consent
of the Company and the Purchaser.
(b) Except as set forth in the introductory paragraph
hereof, the obligations of the Company and the rights of the holder of the
Shares under the Agreement may be waived only with the written consent of the
Purchaser and the Company.
6.7 DELAYS OR OMISSIONS. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach, default or noncompliance by another
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party under this Agreement, shall impair any such right, power or remedy, nor
shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. All remedies, either under this
Agreement, the Articles, Bylaws, or otherwise afforded to any party, shall be
cumulative and not alternative.
6.8 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified; (ii) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient, if not, then on the next
business day; (iii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iv) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be
sent to the Company at the address as set forth on the signature page hereof and
to the Purchaser at the address set forth on the signature page hereof or at
such other address as the Company or the Purchaser may designate by ten (10)
days advance written notice to the other parties hereto.
6.9 EXPENSES. Each party shall bear its own costs and expenses
it incurs with respect to the negotiation, execution, delivery and performance
of the Agreement.
6.10 TITLES AND SUBTITLES. The titles of the sections and
subsections of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
6.11 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.
6.12 BROKER'S FEES. Except as set forth herein, each party
hereto represents and warrants that no agent, broker, investment banker, person
or firm acting on behalf of or under the authority of such party hereto is or
will be entitled to any broker's or finder's fee or any other commission in
connection with the transactions contemplated herein.
6.13 EXCULPATION OF PURCHASER. The Purchaser acknowledges that
it is not relying upon any person, firm, or corporation, other than the Company
and its officers and directors, in making its investment or decision to invest
in the Company. The Purchaser agrees that the respective controlling persons,
officers, directors, partners, agents, or employees of the Purchaser shall not
be liable for any action heretofore or hereafter taken or omitted to be taken by
any of them in connection with the Shares.
9.
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.
GENELABS TECHNOLOGIES, INC. VERON INTERNATIONAL LIMITED
000 XXXXXXXXX XXXXX TOP FLOOR, CHINACHEM XXXXXX XXXXX
XXXXXXX XXXX, XXXXXXXXXX 00000 00 XXXX XXXX, XXXXXXXXXXX XXXX
XXXXXXX, XXXX XXXX
/s/ XXXXX X. XXXX /s/ XXXXXX XXXXX
By: Xxxxx X. Xxxx By: Xxxxxx Xxxxx
Title: President & Chief Executive
Title: Director
COMMON STOCK PURCHASE AGREEMENT
14
INDEX OF EXHIBITS
Escrow Agreement Exhibit A
SEC Filings Exhibit B
COMMON STOCK PURCHASE AGREEMENT
15
EXHIBIT A
ESCROW AGREEMENT
This Escrow Agreement is entered into as of November 15, 1996, by and
among Genelabs Technologies, Inc. (the "Company") and Veron International
Limited (the "Purchaser") (collectively, the "Participants"), and the Company as
the escrow agent (the "Escrow Agent").
RECITALS
A. The Participants wish to establish an escrow account in connection
with the proposed investment in the Company.
B. The parties hereto desire to establish the terms and conditions
pursuant to which such escrow account will be established and maintained.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. Escrow and Indemnification.
(a) Escrow Fund. On the First Closing Date (as defined in the
Purchaser Agreement of even date within between the parties hereto), the
Purchaser shall deposit with the Escrow Agent an aggregate of $7.6 million (the
"Funds"), and the Company shall deposit 1,900,000 shares of its Common Stock
duly registered in the name of Purchaser (the "Shares"), such deposits to
constitute an escrow fund (the "Escrow Fund"). The Escrow Fund shall be held as
trust fund and shall not be subject to any lien, attachment, trustee process or
any other judicial process of any creditor of any party hereto. The Escrow Agent
agrees to accept delivery of the Escrow Fund and to hold the Escrow Fund in a
separate escrow account (the "Escrow Account"), subject to the terms and
conditions of this Agreement.
(b) Investments. The Escrow Agent shall invest the cash held
in the Escrow Fund in an interest-bearing account or money market instruments at
the discretion of the Escrow Agent. Any interest payable on the funds held in
the Escrow Fund ("Interest") shall be added to the Escrow Fund and become a part
thereof.
(c) Transferability. The Escrow Fund shall not be assignable
or transferable, other than by operation of law. Notice of any such assignment
or transfer by operation of law shall be given to the Escrow Agent, and no such
assignment or transfer shall be valid until such notice is given.
1.
16
2. Release of Escrow Fund.
(a) Promptly upon the expiration or early termination, if
applicable, of the statutory waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX XXX"), the Escrow Agent shall
release the Funds and Interest to the Company and the Shares to the Purchaser.
3. Fees and Expenses.
(a) No fees shall be payable to the Escrow Agent in connection
with this Escrow Agreement.
4. Limitation of Escrow Agent's Liability.
(a) The Escrow Agent shall incur no liability with respect to
any action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other documents believed by it to be genuine
and duly authorized, nor for other action or inaction except its own willful
misconduct. The Escrow Agent shall not be responsible for the validity or
sufficiency of this Agreement. In all questions arising under the Escrow
Agreement, the Escrow Agent may rely on the advice of counsel, and for anything
done, omitted or suffered in good faith by the Escrow Agent based on such advice
the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be
required to take any action hereunder involving any expense unless the payment
of such expense is made or provided for in a manner reasonably satisfactory to
it.
(b) The Purchaser hereby agrees to indemnify the Escrow Agent
for, and hold it harmless against, any loss liability or expense incurred
without willful misconduct on the part of the Escrow Agent, arising out of or in
connection with its carrying out of its duties hereunder.
5. Termination. This Agreement shall terminate upon the release by the
Escrow Agent of all of the Escrow Fund in accordance with this Agreement.
Sections 4, 5, 6 and 7 shall survive termination.
6. Notices. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case to the address set forth
below. Any such notice, instruction or communication shall be deemed to have
been delivered three business days after it is sent prepaid, or one business day
after it is sent via a reputable nationwide overnight courier service.
2.
17
If to the Participants: To the address listed for such Participant
on the signature page attached hereto.
If to the Escrow Agent: To the address listed as the signature page
attached hereto.
Any party may give any notice, instruction or communication in
connection with this Agreement using any other means (including personal
delivery, telecopy or ordinary mail), but no such notice, instruction or
communication shall be deemed to have been delivered unless and until it is
actually received by the party to whom it was sent. Any party may change the
address to which notices, instructions or communications are to be delivered by
giving the other parties to this Agreement notice thereof in the manner set
forth in this Section 6.
7. General.
(a) Governing Law: Assigns; Forum. This Agreement shall be
governed by and construed as a sealed instrument in accordance with the internal
laws of the State of California without regard to conflict-of-law principles and
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
(b) 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.
(c) Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter of
this Agreement and supersedes all prior agreements or understandings, written or
oral, between the parties with respect to the subject matter hereof.
(d) Waivers. No waiver by any party hereto of any condition or
of any breach of any provision of this Escrow Agreement shall be effective
unless in writing. No waiver by any party of any such condition or breach, in
any one instance, shall be deemed to be a further or continuing waiver of any
such condition or breach or a waiver of any other condition or breach of any
other provision contained herein.
(e) Amendment. This Agreement may be amended only with the
written consent of the Escrow Agent and each of the Participants.
3.
18
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
GENELABS TECHNOLOGIES, INC. VERON INTERNATIONAL LIMITED
000 XXXXXXXXX XXXXX TOP FLOOR, CHINACHEM XXXXXX XXXXX
XXXXXXX XXXX, XXXXXXXXXX 00000 00 XXXX XXXX, XXXXXXXXXXX XXXX
XXXXXXX, XXXX XXXX
/s/ XXXXX X. XXXX /s/ XXXXXX XXXXX
By: Xxxxx X. Xxxx By: Xxxxxx Xxxxx
Title: President & Chief Executive
Officer Title: Director
ESCROW AGREEMENT
1.
19
EXHIBIT B
SEC FILINGS
1. The Company's Form 10-K for the year ended December 31, 1995, as
amended.
2. The Company's Form 10-Q for the quarter ended March 31, 1996.
3. The Company's Form 10-Q for the quarter ended June 30, 1996.
4. The Company's Form 10-Q for the quarter ended September 30, 1996.
5. The Company's proxy statement in connection with the 1996 Annual
Meeting of Shareholders.
COMMON STOCK PURCHASE AGREEMENT
