Exhibit 10.27
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO XXXXXX LABORATORIES, AN ILLINOIS CORPORATION, THAT SUCH
REGISTRATION IS NOT REQUIRED.
CALL OPTION AGREEMENT
THIS CALL OPTION AGREEMENT (the "Agreement") is made as of
May 7, 1999, between SangStat Medical Corporation, a Delaware corporation,
("SangStat") and Xxxxxx Laboratories, an Illinois corporation ("Xxxxxx").
WHEREAS, SangStat and Xxxxxx have entered a Stock Purchase
Agreement even date herewith (the "Stock Purchase Agreement"); and
WHEREAS, subject to the terms and conditions of this Call
Option Agreement (the "Agreement") and on the basis of the representations
and warranties set forth in this Agreement and in the Stock Purchase
Agreement, Xxxxxx has agreed to grant SangStat the right to repurchase
from Xxxxxx the Initial Shares and Option Shares purchased by Xxxxxx from
SangStat pursuant to the Stock Purchase Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Certain Definitions.
1.1 Terms Defined in the Stock Purchase Agreement. To
the extent a term is not otherwise defined in this Agreement, it shall
have the same meaning as the meaning given to it in the Stock Purchase
Agreement.
1.2 Call Option. The term "Call Option" shall mean
either a Call Option for the Initial Shares or a Call Option for the
Option Shares, as the context requires.
1.3 Call Option for the Initial Shares. The term "Call
Option for the Initial Shares" shall mean the right of SangStat to
purchase SangStat stock from Xxxxxx described in Section 2. 1 (a) below.
1.4 Call Option for the Option Shares. The term "Call
Option for the Option Shares" shall mean the right of SangStat to purchase
SangStat stock from Xxxxxx described in Section 2.1(b) below.
2. Call Options.
2.1 Grant of Call Options, Exercise Price. Subject to
the terms and conditions herein set forth, Xxxxxx hereby grants to
SangStat:
(a) the right (the "Call Option for the Initial
Shares") to purchase from Xxxxxx any or all of the
Initial Shares at an exercise price per share
equal to two times the Price per Initial Share
paid by Xxxxxx to SangStat pursuant to Section 1.1
of the Stock Purchase Agreement); and
(b) the right (the "Call Option for the Option
Shares") to purchase from Xxxxxx any or all of the
Option Shares at an exercise price per share equal
to two times the Price per Option Share paid by
Xxxxxx to SangStat pursuant to Section 2.2 of the
Stock Purchase Agreement.
2.2 Term of the Call Options. SangStat may exercise
either or both of the Call Options, in whole or in part, at any time after
the date hereof until December 31, 2001.
2.3 Manner of Exercising Call Option. SangStat may
exercise a Call Option only by surrendering a completed and fully-executed
Call Option Subscription Form (in the form attached hereto as Exhibit A)
to Xxxxxx. On the fifth day following proper exercise of the Call Option
(the "Closing Date"), SangStat shall pay the exercise price for the Call
Option to Xxxxxx. The Call Option shall be deemed to have been exercised
immediately prior to the close of business on the Closing Date, and any
person(s), entity or entities entitled to receive the shares of Common
Stock issuable upon exercise shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
The exercise price for a Call Option shall be paid to Xxxxxx by wire
transfer to the bank account of Xxxxxx.
3. Changes in Capital Structure. If SangStat shall at any
time change the number of its issued common shares without receiving new
consideration (such as by stock dividends or stock splits), then the
number of shares of SangStat common stock covered by each of the Call
Options and the exercise price of each of the Call Options shall be
adjusted so that the aggregate consideration payable to Xxxxxx and the
value of the Call Options, in the aggregate, shall not be changed.
4. California Commissioner of Corporations.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS
AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF, THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF
ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM ALL QUALIFICATION BY SECTION
25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
5. Representations, Warranties and Covenants of Xxxxxx.
Xxxxxx represents and warrants as of this date, and
covenants for the period beginning on this date and ending the termination
of this Agreement, that:
(a) Xxxxxx has the right to enter into this Agreement
and to transfer to SangStat all or any part of
the Initial Shares and the Option Shares, free
and clear of any lien, claim, encumbrance or
restriction of any type or nature whatsoever
(other than those created by SangStat or
restrictions on resale that may arise under
applicable federal and state securities laws); and
(b) Xxxxxx is not a party to any agreement and will
not enter into an agreement, by which Xxxxxx is
or would be bound (or to which Xxxxxx is or would
become subject) that conflicts or would conflict
with this Agreement or the performance of Xxxxxx'x
obligations under this Agreement.
6. Miscellaneous.
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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.
6.6 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.
6.7 Expenses. Irrespective of whether either of the
Call Options 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.
6.8 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.
6.9 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.
6.10 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.
6.11 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.
6.12 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.
6.13 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 have executed this Agreement
as of the date first above written.
SangStat Medical Corporation
By:
Title:
Xxxxxx Laboratories
By:
Title:
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
EXHIBIT A
CALL OPTION SUBSCRIPTION FORM
(To be signed only upon exercise of Call Option)
To:
The undersigned, the holder of the attached Call Option,
hereby irrevocably elects to exercise the purchase right represented by that
Call Option for, and to purchase under that Call Option, _________________
shares of Common Stock of ____________________ and herewith makes payment of
an aggregate price of $ __________________ for those shares and requests
that the certificates for the shares be issued in the name of, and
delivered to, _______________________ address is ___________________________
________________________ and that all other actions be taken as are
necessary to transfer title to such other property subject to the Call
Option.
Dated:
By:
Title:
Address:
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED,________________________________
hereby sell, assign and transfer unto_____________________________________,
_____________________________________ Shares of the Common Stock of
SangStat Medical Corporation, a Delaware corporation ("SangStat"), standing
in its name on the books of SangStat represented by Certificate No. ________
herewith and do hereby irrevocably constitute and appoint EquiServ LLP to
transfer said stock on the books of SangStat with full power of
substitution in the premises.
Dated:
_________________________________________
Signature
_________________________________________
_________________________________________
This Assignment Separate from Certificate was executed in conjunction with
the terms of a Call Option Agreement dated ____________________ , 1999, and
shall not be used in any manner except as provided in such Agreement.