Exhibit 10.29
GENOMICA CORPORATION
SERIES D PREFERRED STOCK
PURCHASE AGREEMENT
September 5, 2000
TABLE OF CONTENTS
Page
Section 1. AGREEMENT TO SELL AND PURCHASE....................... 1
1.1 Authorization of Shares.............................. 1
1.2 Sale and Purchase.................................... 1
Section 2. CLOSING, DELIVERY AND PAYMENT........................ 1
2.1 Closing.............................................. 1
2.2 Delivery............................................. 1
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........ 2
3.1 Organization, Good Standing and Qualification........ 2
3.2 Subsidiaries......................................... 2
3.3 Capitalization; Voting Rights........................ 2
3.4 Authorization; Binding Obligations................... 3
3.5 Financial Statements................................. 3
3.6 Liabilities.......................................... 3
3.7 Agreements; Action................................... 4
3.8 Obligations to Related Parties....................... 4
3.9 Absence of Changes................................... 5
3.10 Title to Properties and Assets; Liens, Etc........... 6
3.11 Patents and Trademarks............................... 6
3.12 Compliance with Other Instruments.................... 7
3.13 Litigation........................................... 7
3.14 Tax Returns and Payments............................. 7
3.15 Employees............................................ 8
3.16 Proprietary Information and Inventions Agreements.... 8
3.17 Obligations of Management............................ 8
3.18 Registration Rights.................................. 8
3.19 Compliance with Laws; Permits........................ 8
3.20 Offering Valid....................................... 9
3.21 Full Disclosure...................................... 9
3.22 Environmental Laws................................... 9
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...... 9
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.1 Requisite Power and Authority........................ 9
4.2 Investment Representations........................... 10
4.3 Transfer Restrictions................................ 11
Section 5. CONDITIONS TO CLOSING................................ 11
5.1 Conditions to Purchaser's Obligations at the Closing. 11
5.2 Conditions to Obligations of the Company............. 12
Section 6. MISCELLANEOUS........................................ 12
6.1 Governing Law........................................ 12
6.2 Survival............................................. 12
6.3 Successors and Assigns............................... 12
6.4 Entire Agreement..................................... 13
6.5 Severability......................................... 13
6.6 Amendment and Waiver................................. 13
6.7 Delays or Omissions.................................. 13
6.8 Notices.............................................. 13
6.9 Titles and Subtitles................................. 13
6.10 Counterparts......................................... 13
6.11 Broker's Fees........................................ 13
6.12 Expenses............................................. 14
6.13 Attorneys' Fees...................................... 14
6.14 Publicity............................................ 14
ii.
INDEX OF EXHIBITS
Schedule of Purchasers EXHIBIT A
Restated Certificate of Incorporation EXHIBIT B
Second Amended and Restated Investors' Rights Agreement EXHIBIT C
GENOMICA CORPORATION
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
This Series D Preferred Stock Purchase Agreement (the "Agreement") is
entered into as of this 5th day of September, 2000, by and between Genomica
Corporation, a Delaware corporation (the "Company"), and PE Corporation (NY), a
New York corporation, whose address is set forth on the Schedule of Purchasers
attached hereto as Exhibit A ("Purchaser").
RECITALS
Whereas, the Company has authorized the sale and issuance of nine hundred
thousand (900,000) shares of its Series D Preferred 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:
Section 1. AGREEMENT TO SELL AND PURCHASE
1.1 Authorization of Shares. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized (i) the sale and issuance to
Purchaser of the Shares and (ii) the issuance of such shares of Common Stock to
be issued upon conversion of the Shares (the "Conversion Shares"). The Shares
and the Conversion Shares shall have the rights, preferences, privileges and
restrictions set forth in the Restated Certificate of Incorporation of the
Company, in the form attached hereto as Exhibit B (the "Certificate").
1.2 Sale and Purchase. Subject to the terms and conditions hereof, at the
Closing (as hereinafter defined), the Company hereby agrees to issue and sell to
Purchaser and Purchaser agrees to purchase from the Company, the Shares at a
purchase price of $3.34 per share.
Section 2. CLOSING, DELIVERY AND PAYMENT
2.1 Closing. The closing of the sale and purchase of the Shares under this
Agreement (the "Closing") shall take place on the date hereof, at the offices of
Xxxxxx Godward llp, 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000,
or at such other time or place as the Company and Purchaser may mutually agree
(such date is hereinafter referred to as a "Closing Date").
2.2 Delivery. At the Closing, subject to the terms and conditions hereof,
the Company will deliver to the Purchaser a certificate representing the Shares
to be purchased at the
1.
Closing by Purchaser, against payment of the purchase price therefor, by check
or wire transfer made payable to the order of the Company or cancellation of
indebtedness.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Schedule of Exceptions delivered to the
Purchaser, the Company hereby represents and warrants to Purchaser 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 Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement and the Second Amended and Restated Investors' Rights Agreement,
in the form attached hereto as Exhibit C (the "Investors' Rights Agreement"), to
issue and sell the Shares and the Conversion Shares and to carry out the
provisions of this Agreement, the Investors' Rights Agreement and the
Certificate and to carry on its business as presently conducted and as presently
proposed to be conducted. The Company is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in all jurisdictions
in which the nature of its activities and of its properties (both owned and
leased) make such qualifications necessary, except for those jurisdictions in
which failure to do so would not have a material adverse effect on the Company
or its business. The Company has made available to the Purchaser true, correct
and complete copies of the Company's Certificate of Incorporation and Bylaws,
each as amended to date.
3.2 Subsidiaries. The Company owns no equity securities of any other
corporation, limited partnership or similar entity. The Company is not a
participant in any joint venture, partnership or similar arrangement.
3.3 Capitalization; Voting Rights. The authorized capital stock of the
Company, immediately prior to the Closing, will consist of (a) sixty-five
million (65,000,000) shares of Common Stock, of which five million five hundred
eighty-nine thousand six hundred seventy-one (5,589,671) shares are issued and
outstanding, and (b) forty-eight million eight hundred thirty-eight thousand one
hundred seventy-eight (48,838,178) shares of Preferred Stock, of which twelve
million six hundred eighty-eight thousand one hundred seventy-eight (12,688,178)
shares are designated Series A Preferred Stock, of which twelve million five
hundred thirty-three thousand six hundred seventy-six (12,533,676) are issued
and outstanding, of which twenty-five million (25,000,000) shares are designated
Series B Preferred Stock, of which eighteen million eight hundred twenty-six
thousand nine hundred fifty-nine (18,826,959) are issued and outstanding, of
which ten million two-hundred fifty thousand (10,250,000) shares are designated
Series C Preferred Stock, of which ten million twenty-two thousand six hundred
thirty-four (10,022,634) are issued and outstanding, and of which nine hundred
thousand (900,000) shares are designated Series D Preferred Stock, none of which
are issued and outstanding. All issued and outstanding shares of the Company's
Common Stock and Preferred Stock (i) have been duly authorized and validly
issued, (ii) are fully paid and nonassessable and (iii) were issued in
compliance with all applicable state and federal laws concerning the issuance of
securities. The rights, preferences, privileges and restrictions of the Shares
are as stated in the Certificate. The Conversion Shares have been duly and
validly reserved for issuance. Except as may be granted
2.
pursuant to this Agreement, there are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal), proxy
or stockholder agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities. The Shares and the
Conversion Shares have been duly authorized and, when issued in compliance with
the provisions of this Agreement and the Certificate, will be validly issued
(including, without limitation, issued in compliance with applicable state and
federal securities laws), fully paid and nonassessable and will be free of any
liens or encumbrances; provided, however, that the Shares and the Conversion
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 transfer is proposed.
3.4 Authorization; Binding Obligations. All corporate action on the part
of the Company, its officers, directors and stockholders necessary for the
authorization of this Agreement and the Investors' Rights Agreement and the
filing of the Certificate, the performance of all obligations of the Company
hereunder and thereunder and the authorization, sale, issuance and delivery of
the Shares pursuant hereto and the Conversion Shares pursuant to the Certificate
has been taken or will be taken prior to the Closing. The Agreement and the
Investors' Rights Agreement, when executed and delivered, will be valid and
binding obligations of the Company enforceable in accordance with their terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights; (ii) general principles of equity that restrict the
availability of equitable remedies; and (iii) to the extent that the
enforceability of the indemnification provisions in Section 3.11 of the
Investors' Rights Agreement may be limited by applicable laws. The sale of the
Shares and the subsequent conversion of the Shares into Conversion Shares are
not and will not be subject to any preemptive rights or rights of first refusal
that have not been properly waived or complied with.
3.5 Financial Statements. The Company has delivered to each Purchaser its
audited balance sheet as at December 31, 1999, its audited statement of
operations, its audited statement of stockholders' equity and its audited
statement of cash flows for the twelve months ending December 31, 1999 and (ii)
its unaudited balance sheet as at June 30, 2000 (the "Statement Date") and its
unaudited statement of operations, unaudited statement of stockholders' equity
and unaudited statement of cash flows for the six-month period ending on the
Statement Date (collectively, the "Financial Statements"). The Financial
Statements, together with the notes thereto, are complete and correct in all
material respects, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated, except as disclosed therein, and present fairly the financial
condition and position of the Company as of the Statement Date; provided,
however, that the unaudited financial statements are subject to normal recurring
year-end audit adjustments (which are not expected to be material), and do not
contain all footnotes required under generally accepted accounting principles.
3.6 Liabilities. The Company has no material liabilities and, to the best
of its knowledge, has no material contingent liabilities not otherwise disclosed
in the Financial Statements, except current liabilities incurred in the ordinary
course of business subsequent to
3.
the Statement Date which have not been and are not reasonably expected to be,
either in any individual case or in the aggregate, materially adverse.
3.7 Agreements; Action.
(a) Except for agreements explicitly contemplated hereby and
agreements between the Company and its employees with respect to the sale of the
Company's Common Stock pursuant to the grant of stock options, there are no
agreements, understandings or proposed transactions between the Company and any
of its officers, directors, affiliates or any affiliate thereof.
(b) There are no agreements, understandings, instruments, contracts,
proposed transactions, judgments, orders, writs or decrees to which the Company
is a party or to its knowledge by which it is bound which may involve (i)
obligations (contingent or otherwise) of, or payments to, the Company in excess
of $25,000, or (ii) the license of any patent, copyright, trade secret or other
proprietary right to or from the Company (other than licenses arising from the
purchase of "off the shelf" or other standard products), or (iii) provisions
restricting or affecting the development, manufacture or distribution of the
Company's products or services, or (iv) indemnification by the Company with
respect to infringements of proprietary rights.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or any
other liabilities (other than with respect to distributions, indebtedness and
other obligations incurred in the ordinary course of business or as disclosed in
the Financial Statements) individually in excess of $25,000 or, in the case of
indebtedness and/or liabilities individually less than $25,000, in excess of
$75,000 in the aggregate, (iii) made any loans or advances to any person, other
than ordinary advances for travel expenses or (iv) sold, exchanged or otherwise
disposed of any of its assets or rights, other than the sale of its inventory in
the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
3.8 Obligations to Related Parties. There are no obligations of the
Company to officers, directors, stockholders, or employees of the Company other
than (a) for payment of salary for services rendered, (b) reimbursement for
reasonable expenses incurred on behalf of the Company and (c) for other standard
employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the Board
of Directors of the Company). No such officer, director or stockholder, or any
member of their immediate families is, directly or indirectly, interested in any
material contract with the Company (other than such contracts as relate to any
such person's ownership of capital stock or other securities of the Company).
The Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
4.
3.9 Absence of Changes. Except as set forth in Schedule 3.9, since the
Statement Date, there has not been:
(a) Any change in the assets, liabilities, financial condition or
operations of the Company from that reflected in the Financial Statements, other
than changes in the ordinary course of business, none of which individually or
in the aggregate has had or is expected to have a material adverse effect on
such assets, liabilities, financial condition or operations of the Company;
(b) Any resignation or termination of any key officers of the
Company; and the Company, to the best of its knowledge, does not know of the
impending resignation or termination of employment of any such officer;
(c) Any material change in the contingent obligations of the Company
by way of guaranty, endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of the Company;
(e) Any waiver by the Company of a valuable right or of a material
debt owed to it;
(f) Any direct or indirect loans made by the Company to any
stockholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business;
(g) Any material change in any compensation arrangement or agreement
with any employee, officer, director or stockholder;
(h) Any declaration or payment of any dividend or other distribution
of the assets of the Company or any direct or indirect redemptions of shares of
the Company's stock;
(i) To the Company's knowledge, any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or guaranteed
by the Company, except those for immaterial amounts and for current liabilities
incurred in the ordinary course of business;
(k) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets or any sale, transfer lease
or pledge of a material asset, except in the ordinary course of business;
(l) Any change in any material agreement to which the Company is a
party or by which it is bound which materially and adversely affects the
business, assets, liabilities, financial condition, operations or prospects of
the Company; or any loss of any material customer of the Company, or any
cancellation of any order by a material customer of the
5.
Company which materially and adversely affects the business, assets,
liabilities, financial condition, operations or prospects of the Company,
(m) Any changes in the accounting methods, practices or principles
followed by the Company; or
(n) To the Company's knowledge, any other event or condition of any
character that, either individually or cumulatively, has materially and
adversely affected the business, assets, liabilities, financial condition,
operations or prospects of the Company. For purposes of this subsection (n), a
material and adverse effect shall only be deemed to occur if its monetary impact
exceeds, or with the passage of time, can be reasonably deemed to exceed
$75,000.
3.10 Title to Properties and Assets; Liens, Etc. The Company has good and
marketable title to its properties and assets, 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 which do not materially detract from the value of
the property subject thereto or materially impair the operations of the Company.
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. The Company is in compliance with all material terms of each lease to
which it is a party or is otherwise bound.
3.11 Patents and Trademarks. To 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 and as proposed to be
conducted, without any known infringement of the rights of others. There are no
outstanding options, licenses or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes of any other person or entity other than such
licenses or agreements arising from the purchase of "off the shelf" or standard
products. The Company has not received any communications alleging that the
Company has violated or, by conducting its business as proposed, would violate
any of the patents, trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity, nor, to the
Company's knowledge, is there a reasonable basis therefor. The Company is not
aware that any of its employees is obligated under any contract (including
licenses, covenants or commitments or any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with their duties to the Company's business by the employees of
the Company. The conduct of the Company's business as proposed, will not, to the
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated. The Company
does not
6.
believe it is or will be necessary to utilize any inventions, trade secrets or
proprietary information of any of its employees made prior to their employment
by the Company, except for inventions, trade secrets or proprietary information
that have been assigned to the Company.
3.12 Compliance with Other Instruments. The Company is not in violation or
default of any term of its Certificate or 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 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 Investors' Rights
Agreement, and the issuance and sale of the Shares pursuant hereto and of the
Conversion Shares pursuant to the Certificate, 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 of any
instrument, contract, permit, license, indenture or agreement to which it is a
party or by which it is bound, 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 non-renewal of
any permit, license, authorization or approval applicable to the Company, its
business or operations or any of its assets or properties.
3.13 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 Investors' Rights Agreement
or the right of the Company to enter into any of such agreements, or to
consummate the transactions contemplated hereby or thereby, 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 foregoing
includes, without limitation, actions pending or threatened (or any basis
therefor known to the Company) involving the prior employment of any of the
Company's employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. 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. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
3.14 Tax Returns and Payments. The Company has timely filed all tax returns
(federal, state and local) required to be filed by it, and such returns were
true, correct and complete in all material respects. 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
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.
7.
3.15 Employees. The Company is not a party to or bound by any currently
effective employment contract, deferred compensation arrangement, bonus plan,
incentive plan, profit sharing plan, retirement agreement or other employee
compensation plan or agreement. 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 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. The Company has not received any notice
alleging that any such violation has occurred. No employee of the Company has
been granted the right to continued employment by the Company or to any material
compensation following termination of employment with the Company. The Company
is not aware that any officer or key employee, or that any group of key
employees, intends to terminate, his, her or their employment with the Company,
nor does the Company have a present intention to terminate the employment of any
officer, key employee or group of key employees.
3.16 Proprietary Information and Inventions Agreements. Each current
employee, officer and consultant of the Company has executed a Proprietary
Information and Inventions Agreement in a form acceptable to the Purchaser. No
current employee, officer or consultant of the Company has excluded works or
inventions made prior to his or her employment with the Company from his or her
assignment of inventions pursuant to such employee, officer or consultant's
Proprietary Information and Inventions Agreement.
3.17 Obligations of Management. Each officer of the Company is currently
devoting one hundred percent (100%) of his business time to the conduct of the
business of the Company. The Company is not aware of any officer or key
employee of the Company who plans to work less than full time at the Company in
the future.
3.18 Registration Rights. Except as required pursuant to the Investors'
Rights Agreement, the Company is presently not under any obligation, and has not
granted any rights, to register (as defined in Section 1 of the Investors'
Rights Agreement) any of the Company's presently outstanding securities or any
of its securities that may hereafter be issued.
3.19 Compliance with Laws; Permits. 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. No governmental orders,
permissions, consents, approvals or authorizations are required to be obtained
and no registrations or declarations are required to be filed in connection with
the execution and delivery of this Agreement and the Investors' Rights Agreement
and the issuance of the Shares or the Conversion Shares, except such as have
been duly and validly obtained or filed, or with respect to any filings that
must be made after the Closing, as will be filed in a timely manner. 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
8.
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. The
Company is not in default under any such franchises, permits, licenses or other
similar authority which has or could reasonably be deemed to have a material
adverse effect on the business, properties, prospects or financial condition of
the Company.
3.20 Offering Valid. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Section 4.2 hereof, the offer, sale and
issuance of the Shares and the Conversion 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. Neither the
Company nor any agent on its behalf has solicited or will solicit any offers to
sell or has offered to sell or will offer to sell all or any part of the Shares
to any person or persons so as to bring the sale of such Shares by the Company
within the registration provisions of the Securities Act or any state securities
laws.
3.21 Full Disclosure. This Agreement, the Exhibits hereto, the Investors'
Rights Agreement, the Registration Statement as of its date (as defined below)
and all other documents delivered by the Company to Purchaser or their attorneys
or agents in connection herewith or therewith or with the transactions
contemplated hereby or thereby, do not contain any untrue statement of a
material fact nor, to the Company's knowledge, omit to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. In addition, no events have occurred since the filing date of the
Registration Statement (other than the transactions contemplated with
Purchaser), which have caused the Registration Statement to contain any untrue
statement of a material fact as of the date hereof or, to the Company's
knowledge, omit to state a material fact necessary in order to make the
statements contained therein not misleading as of the date hereof. For these
purposes, "Registration Statement" means the Company's Amendment No. 4 to Form
S-1 Registration Statement filed with the Securities and Exchange Commission on
August 3, 2000.
3.22 Environmental Laws. The Company is not in violation of any applicable
statute, law or regulation relating to the environment, and no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation. The Company has received no notice from any
governmental entity or third party regarding the matters in the foregoing
sentence.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to the Company as follows (such
representations and warranties do not lessen or obviate the representations and
warranties of the Company set forth in this Agreement):
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 the Investors' Rights Agreement and to carry out their provisions.
All action on Purchaser's part
9.
required for the lawful execution and delivery of this Agreement and the
Investors' Rights Agreement has been or will be effectively taken prior to the
Closing. Upon their execution and delivery, this Agreement and the Investors'
Rights Agreement will be valid and binding obligations of Purchaser, enforceable
in accordance with their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights, (ii) general principles of equity
that restrict the availability of equitable remedies and (iii) to the extent
that the enforceability of the indemnification provisions of the Investors'
Rights Agreement may be limited by applicable laws.
4.2 Investment Representations. Purchaser understands that neither the
Shares nor the Conversion Shares have 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 the Securities Act based in part
upon Purchaser's representations contained in the Agreement. Purchaser hereby
represents and warrants as follows:
(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 (or the Conversion Shares) are
registered pursuant to the Securities Act, or an exemption from registration is
available. Purchaser 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 or the Conversion Shares under the circumstances, in the amounts
or at the times Purchaser might propose.
(b) Acquisition for Own Account. Purchaser is acquiring the Shares
and the Conversion 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 (without
conducting any independent investigation) is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(d) Institutional Investor. Purchaser represents that it is an
accredited investor within the meaning of such term under paragraph (a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) of Rule 501 under the Securities Act.
(e) Rule 144. Purchaser acknowledges and agrees that the Shares, and,
if issued, the Conversion 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 as in effect from
time to time, which permits limited resale of shares purchased in a private
placement
10.
subject to the satisfaction of certain conditions, including, among other
things, the availability of certain current public information about the
Company, the resale occurring following the required holding period under Rule
144 and the number of shares being sold during any three-month period not
exceeding specified limitations.
(f) Residence. The office or offices of the Purchaser in which its
investment decision was made are located in the States of California and
Connecticut.
4.3 Transfer Restrictions. Purchaser acknowledges and agrees that the
Shares and, if issued, the Conversion Shares are subject to restrictions on
transfer as set forth in the Investors' Rights Agreement.
Section 5. CONDITIONS TO CLOSING
5.1 Conditions to Purchaser's Obligations at the Closing. Purchaser's
obligations to purchase the Shares at the 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 as of the Closing Date with the
same force and effect as if they had been made as of the Closing 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 Closing.
(b) Legal Investment. On the Closing Date, the sale and issuance of
the Shares and the proposed issuance of the Conversion Shares shall be legally
permitted by all laws and regulations to which 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 and the
Investors' Rights Agreement (except for such as may be properly obtained
subsequent to the Closing).
(d) Filing of Certificate. The Certificate shall have been accepted
for filing by the Secretary of State of the State of Delaware.
(e) Reservation of Conversion Shares. The Conversion Shares issuable
upon conversion of the Shares shall have been duly authorized and reserved for
issuance upon such conversion.
(f) Compliance Certificate. The Company shall have delivered to
Purchaser a Compliance Certificate, executed by an officer of the Company, dated
as of the Closing Date, to the effect that the conditions specified in
subsections (a), (c), (d) and (e) of this Section 5.1 have been satisfied.
11.
(g) Second Amended and Restated Investors' Rights Agreement. A Second
Amended and Restated Investors' Rights Agreement, substantially in the form
attached hereto as Exhibit C, shall have been executed and delivered by the
parties thereto.
(h) Legal Opinion. Purchase shall have received from legal counsel to
the Company an opinion addressed to them, dated as of the Closing Date, in form
and substance reasonably satisfactory to the Purchaser.
(i) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing hereby, all
documents and instruments incident to such transactions and all documents,
instruments and proceedings related to the Company's business, technical and
legal due diligence 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. The Company's obligation to
issue and sell the Shares at the 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 as of the Closing Date, with the same force and effect
as if they had been made on and as of said date.
(b) Performance of Obligations. Purchaser shall have performed and
complied with all agreements and conditions herein required to be performed or
complied with by Purchaser on or before the Closing.
(c) Filing of Certificate. The Certificate shall have been filed with
the Secretary of State of the State of Delaware.
(d) Second Amended and Restated Investors' Rights Agreement. A Second
Amended and Restated Investors' Rights Agreement, substantially in the form
attached hereto as Exhibit C, shall have been executed and delivered by the
Purchaser.
(e) 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 this Agreement and the
Investors' Rights Agreement (except for such as may be properly obtained
subsequent to the Closing).
Section 6. MISCELLANEOUS
6.1 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado without regard to its
conflict-of-laws rules; provided, however, that all matters of corporate law
shall be governed by Delaware General Corporation Law.
12.
6.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by Purchaser and the closing of
the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
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,
including the Investors' Rights Agreement, and the other documents delivered
pursuant 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. This Agreement may be amended or modified only
upon the written consent of the Company and Purchaser. The obligations of the
Company and the rights of the Purchaser may be waived only with the written
consent of the Purchaser.
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 party under this Agreement, the Investors'
Rights Agreement or the Certificate, shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such breach, default or
noncompliance thereafter occurring. It is further agreed that any waiver,
permit, consent or approval of any kind of character on any Purchaser's part of
any breach, default or noncompliance under this Agreement, the Investors' Rights
Agreement or under the Certificate or any waiver on such party's part of any
provisions or conditions of the Agreement, the Investors' Rights Agreement or
the Certificate must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, the Investors' Rights Agreement, the Certificate, by law, 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) business day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of
13.
receipt. All communications shall be sent to the Company at the address as set
forth on the signature page hereof and to Purchaser at the address set forth on
Exhibit A attached hereto or at such other address as the Company or Purchaser
may designate by ten (10) days' advance written notice to the other parties
hereto.
6.9 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.
6.10 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.
6.11 Broker's Fees. 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 directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 6.11 being untrue.
6.12 Expenses. The Company shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of the
Agreement.
6.13 Attorneys' Fees. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
6.14 Publicity. Except as required by law or regulation or the rules of any
stock exchange on which a party's securities are traded, neither party to this
Agreement shall, without obtaining the prior written consent of the other party,
issue any press release or make any other public disclosure or announcement
regarding the transactions contemplated by this Agreement or the Investors'
Rights Agreement.
[Remainder of this page intentionally left blank.]
14.
In Witness Whereof, the parties hereto have executed the Series D Preferred
Stock Purchase Agreement as of the date set forth in the first paragraph hereof.
COMPANY: PURCHASER:
Genomica Corporation PE Corporation (NY)
Xxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
-------------------------- -----------------------------------
Title: Chief Executive Officer Title: Senior Vice President & President,
------------------------- Applied Biosystems
-----------------------------------
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
EXHIBIT A
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
Shares of Series D
------------------ Purchase Price
Name Preferred Stock --------------
---- ---------------
PE Corporation (NY) 900,000 $ 3,006,000.00
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: President and Vice President, Finance
EXHIBIT B
RESTATED CERTIFICATE OF INCORPORATION
EXHIBIT C
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
