Exhibit 10.1
XXXXXXXXXXXXX.XXX, INC.
SERIES B CONVERTIBLE PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT
DATED AS OF
AUGUST 20, 1999
SECTION 1
AUTHORIZATION AND SALE OF SERIES B CONVERTIBLE PREFERRED STOCK AND WARRANT
1.1 AUTHORIZATION............................................................1
1.2 SALE OF PREFERRED........................................................1
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE.............................................................1
2.2 DELIVERY.................................................................1
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS; SUBSIDIARIES..........2
3.2 CORPORATE POWER..........................................................2
3.3 CAPITALIZATION...........................................................2
3.4 AUTHORIZATION............................................................3
3.5 COMPLIANCE WITH OTHER INSTRUMENTS, NONE BURDENSOME.......................3
3.6 GOVERNMENTAL CONSENT.....................................................3
3.7 LITIGATION...............................................................4
3.8 PATENTS AND TRADEMARKS...................................................4
3.9 MATERIAL CONTRACTS AND OBLIGATIONS.......................................4
3.10 EMPLOYEE AGREEMENTS.....................................................5
3.11 AGREEMENTS; ACTION......................................................5
3.12 DISCLOSURE..............................................................5
3.13 REGISTRATION RIGHTS.....................................................6
3.14 TITLE TO PROPERTY AND ASSETS............................................6
3.15 TAX RETURNS AND PAYMENTS................................................6
3.16 MINUTE BOOKS............................................................6
3.17 LABOR AGREEMENTS AND ACTIONS............................................6
3.18 CERCLA/SUPERFUND REQUIREMENTS...........................................7
3.19 RELATED-PARTY TRANSACTIONS..............................................8
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3.20 PERMITS.................................................................8
3.21 EMPLOYEE BENEFIT PLANS..................................................8
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
4.1 EXPERIENCE...............................................................9
4.2 INVESTMENT...............................................................9
4.3 RULE 144................................................................10
4.4 NO PUBLIC MARKET........................................................10
4.5 AUTHORIZATION...........................................................10
4.6 FINDER'S FEES...........................................................10
SECTION 5
CONDITIONS TO CLOSING OF PURCHASERS
5.1 REPRESENTATIONS AND WARRANTIES CORRECT..................................11
5.2 COVENANTS...............................................................11
5.3 OPINION OF COMPANY'S COUNSEL............................................11
5.4 BLUE SKY................................................................11
5.5 RESTATED CERTIFICATE OF INCORPORATION...................................11
5.6 INVESTOR RIGHTS AGREEMENT...............................................11
5.7 AMENDED AND RESTATED CO-SALE AGREEMENT..................................11
5.8 VOTING AGREEMENT........................................................11
5.9 AMENDED AND RESTATED COOPERATIVE AGREEMENT..............................11
5.10 COMPLIANCE CERTIFICATE.................................................11
5.11 QUALIFICATIONS.........................................................12
SECTION 6
CONDITIONS TO CLOSING OF COMPANY
6.1 REPRESENTATIONS.........................................................12
6.2 COVENANTS...............................................................12
6.3 BLUE SKY................................................................12
6.4 RESTATED CERTIFICATE OF INCORPORATION...................................12
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6.5 QUALIFICATIONS..........................................................12
SECTION 7
INDEMNIFICATION
7.1 INDEMNIFICATION.........................................................12
7.2 BROKERS OR FINDERS......................................................13
SECTION 8
MISCELLANEOUS
8.1 GOVERNING LAW...........................................................13
8.2.CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF CALIFORNIA.......13
8.3.WAIVER OF JURY TRIAL....................................................14
8.4 SURVIVAL................................................................14
8.5 SUCCESSORS AND ASSIGNS..................................................14
8.6 ENTIRE AGREEMENT; AMENDMENT.............................................14
8.7 NOTICES.................................................................14
8.8 DELAYS OR OMISSIONS.....................................................15
8.9 CALIFORNIA CORPORATE SECURITIES LAW.....................................15
8.10 COUNTERPARTS...........................................................15
8.11 SEVERABILITY...........................................................15
8.12 TITLES AND SUBTITLES...................................................15
8.13 TRANSFER OF UNITS......................................................15
SIGNATURE BLOCKS..............................................................17
EXHIBITS
*EXHIBIT A - SCHEDULE OF PURCHAERS........................................EXA
*EXHIBIT B - CERTIFICATE OF INCORPORATION.................................EXB
*EXHIBIT C - SCHEDULE OF EXCEPTIONS.......................................EXC
*EXHIBITS D1 & D2 - HOLDERS OF SHARES OUTSTANDING.........................EXD
*EXHIBIT E - INVESTOR RIGHTS AGREEMENT....................................EXE
*EXHIBIT F - - AMENDED AND RESTATED CO-SALE AGREEMENT.....................EXF
*EXHIBIT G - AMENDED AND RESTATED VOTING AGREEMENT........................EXG
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*EXHIBIT H - AMENDED AND RESTATED COOPERATIVE AGREEMENT...................EXH
*EXHIBIT I - MATERIAL CONTRACTS AND OBLIGATIONS...........................EXI
*EXHIBITS J - COUNSEL OPINION.............................................EXJ
*EXHIBIT K - COMPLIANCE CERTIFICATE.......................................EXK
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XXXXXXXXXXXXX.XXX, INC.
SERIES B CONVERTIBLE PREFERRED STOCK AND WARRANTS
PURCHASE AGREEMENT
This Agreement is made as of August 20, 1999, by and among
XxxxXxxxxxxxx.xxx, Inc., a Delaware corporation ("COMPANY"), and the entities
listed on the Schedule of Purchasers attached hereto as EXHIBIT A (collectively,
the "PURCHASER").
SECTION 1
AUTHORIZATION AND SALE OF SERIES B CONVERTIBLE PREFERRED STOCK AND WARRANTS
1.1 AUTHORIZATION. The Company has authorized the sale and
issuance of up to one million eight hundred thousand (1,800,000) shares (the
"SHARES") of Series B Convertible Preferred Stock (the "SERIES B PREFERRED
STOCK") and warrants to purchase three hundred thousand eight hundred fifteen
(300,815) shares of Common Stock at a strike price of five dollars ($5.00) per
share of Common Stock (the "WARRANT"), the Series B Preferred Stock and the
Common Stock having the rights, preferences, privileges and restrictions as set
forth in the Second Amended and Restated Certificate of Incorporation
("CERTIFICATE OF INCORPORATION") in substantially the form attached hereto as
EXHIBIT B.
1.2 SALE OF PREFERRED AND WARRANT. Subject to the terms and
conditions hereof, each of the Purchasers agrees to purchase at the Closing (as
hereinafter defined) and the Company agrees to issue and sell to each Purchaser
that number of Shares and Warrant in the form of Units as specified opposite the
Purchaser's name in column 2 of the Schedule of Purchasers, at a per Unit
purchase price of TWO DOLLARS AND TWENTY EIGHT CENTS ($2.28) in the form of
payment as set forth in column 3. Each Purchaser and the Company agree that any
transfer of Units, Shares and Warrants by the Purchasers shall be in accordance
with the provisions of Section 8.13 of this Agreement. In the event that there
is more than one (1) Purchaser, the Company's agreements with each Purchaser are
separate agreements, and the sale of the Units to each Purchaser is a separate
sale.
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the
Series B Preferred Stock hereunder (the "CLOSING") is to be held at the offices
of Arena Pharmaceuticals, Inc. 0000 Xxxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, on the date hereof (the "CLOSING DATE").
2.2 DELIVERY. At each Closing, the Company will deliver to each
Purchaser participating in such Closing a certificate or certificates,
registered in such Purchaser's name as set forth on the Schedule of Purchasers,
representing the number of Shares designated in column 2 of the Schedule of
Purchasers to be purchased by such Purchaser at such Closing, and a
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separate Warrant Agreement, against payment of the aggregate purchase price,
by check payable to the Company, by wire transfer or by other instrument as
agreed to by the Company and Purchaser.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Schedule of Exceptions to Representations
and Warranties, attached hereto as EXHIBIT C, the Company represents and
warrants to the Purchasers as follows:
3.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS;
SUBSIDIARIES. The Company is a corporation duly organized and existing under,
and by virtue of, the laws of the State of Delaware and is in good standing
under such laws. The Company has requisite corporate power and authority to own
and operate its properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. The Company is not presently
qualified to do business as a foreign corporation in any jurisdiction other than
California, and the failure to be so qualified will not have a material adverse
effect on the Company's business as now conducted or as now proposed to be
conducted. The Company has furnished the Purchasers with copies of its
Certificate of Incorporation, Restated Certificate of Incorporation, Second
Amended and Restated Certificate of Incorporation and Bylaws, and the Purchasers
have reviewed such documents. Said copies are true, correct and complete and
contain all amendments through the applicable Closing Date. Prior to the Closing
Date, the Company does not presently own or control, directly or indirectly, any
interest in any other corporation, association or other business entity (SEE
EXHIBIT C).
3.2 CORPORATE POWER. The Company will have at the applicable
Closing Date all requisite legal and corporate power and authority to execute
and deliver this Agreement and the Related Agreements (as defined below), to
sell and issue the Shares hereunder, to issue the Common Stock issuable upon
conversion of the Series B Preferred Stock and to carry out and perform its
obligations under the terms of this Agreement and the Related Agreements.
3.3 CAPITALIZATION. Immediately prior to the Closing, the
authorized capital stock of the Company will consist of fifteen million
(15,000,000) shares, Nine Million Eight Hundred Sixty Two Thousand Five Hundred
of which consist of Common Stock, par value $.0001, One Million Seventy Five
Thousand (1,075,000) shares of which are issued and outstanding, Three Hundred
Thousand Eight Hundred Fifteen (300,815) of which are reserved for issuance
pursuant to the Warrant, none of which are issued and outstanding, Five Million
One Hundred Thirty Seven Thousand Five Hundred (5,137,500) shares of Preferred
Stock, par value $.0001, Three Million Three Hundred Thirty Seven Thousand Five
Hundred (3,337,500) of which are designated Series A Preferred Stock, which are
issued and outstanding, One Million Eight Hundred Thousand (1,800,000) of which
are designated Series B Preferred Stock, none of which are issued and
outstanding. The outstanding shares of Common Stock and Series A Preferred Stock
have been duly authorized and validly issued to the persons listed on EXHIBIT D1
and D2, respectively, hereto, are fully paid and nonassessable, and have been
issued in compliance with applicable state and federal securities laws. The
rights, preferences, privileges and restrictions of
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the Shares are as stated in the Certificate of Incorporation. The Company has
reserved 300,000 shares of Common Stock for issuance pursuant to the exercise
of options granted under the Amended and Restated XxxxXxxxxxxxx.xxx, Inc.
1999 Equity Compensation Plan (the "1999 PLAN"). Except as set forth on
EXHIBIT C, there are no options, warrants or other rights to purchase any of
the Company's authorized and unissued capital stock.
3.4 AUTHORIZATION. All corporate action on the part of the
Company, its directors and stockholders necessary for the authorization,
execution, delivery and performance by the Company of this Agreement, the Series
A and Series B Preferred Stock Investor Rights Agreement attached hereto as
EXHIBIT E (the "INVESTOR RIGHTS AGREEMENT"), the Amended and Restated Co-Sale
Agreement attached hereto as EXHIBIT F (the "AMENDED AND RESTATED CO-SALE
AGREEMENT") the Amended and Restated Voting Agreement attached hereto as EXHIBIT
G (the "AMENDED AND RESTATED VOTING AGREEMENT"), the Amended and Restated
Cooperative Voting Rights Agreement attached hereto as EXHIBIT H (the "AMENDED
AND RESTATED COOPERATIVE AGREEMENT"), the authorization, sale, issuance and
delivery of the Shares and the performance of all of the Company's obligations
hereunder and thereunder and has been taken or will be taken prior to the
Closing. This Agreement and the Investor Rights Agreement, the Amended and
Restated Co-Sale Agreement, the Amended and Restated Voting Agreement and the
Amended and Restated Cooperative Agreement (collectively, the "RELATED
AGREEMENTS"), when executed and delivered by the Company shall constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debt and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares and Warrant, when
issued in compliance with the provisions of this Agreement, will be validly
issued, will be fully paid and nonassessable, and will have the rights,
preferences and privileges described in the Certificate of Incorporation and
will be free of restrictions on transfer other than under this Agreement and
applicable federal and state securities laws. Based in part upon the
representations of the Purchasers in this Agreement, the Shares and Warrant will
be issued in compliance with all applicable United States of America federal and
state securities laws. The Common Stock issuable upon conversion of the Shares
has been duly and validly reserved for issuance and upon issuance in accordance
with the terms of the Certificate of Incorporation, will be duly and validly
issued, fully paid and non-assessable and will be issued in compliance with all
applicable United States of America federal and state securities laws and will
be free of restrictions on transfer other than under this Agreement and
applicable United States of America federal and state securities laws.
3.5 COMPLIANCE WITH OTHER INSTRUMENTS, NONE BURDENSOME. The
Company is not in violation or default of any term of its Certificate of
Incorporation or Bylaws, or of any term or provision of any mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment, order, writ
or decree, and as of the Closing Date is not in violation of any statute, rule
or regulation applicable to the Company. The execution, delivery and performance
of and compliance with this Agreement and the Related Agreements and the
issuance of the Shares and the Common Stock issuable upon the conversion of the
Shares, have not resulted and will not result in any violation of, or conflict
with, or constitute, with or without the passage of time and giving of notice, a
default under the Company's Certificate of Incorporation or Bylaws or any of
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its agreements, nor result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company.
3.6 GOVERNMENTAL CONSENT. No consent, approval or authorization of
or designation, declaration or filing with any United States of America federal
or state governmental authority on the part of the Company is required in
connection with the valid execution and delivery of this Agreement, or the
offer, sale or issuance of the Warrant and of the Shares (and the Common Stock
issuable upon conversion of the Shares), respectively, or the consummation of
any other transaction contemplated hereby, except (a) qualification (or taking
such action as may be necessary to secure an exemption from qualification, if
available) of the offer and sale of the Warrant and of the Shares (and the
Common Stock issuable upon conversion of the Shares), respectively, under state
securities laws, which filings and qualifications, if required, will be
accomplished in a timely manner, and (b) filing of a notice pursuant to
Regulation D of the Securities Act of 1933, as amended (the "SECURITIES ACT"),
which filing will be accomplished in a timely manner.
3.7 LITIGATION. There is no action, suit or proceeding pending or
currently threatened against the Company which questions the validity of this
Agreement or the Related Agreements or the right of the Company to enter into
this Agreement or the Related Agreements, or to consummate the transactions
contemplated hereby or thereby, or which might result, either individually or in
the aggregate, in any material adverse changes in the assets, condition, affairs
or prospects of the Company, financial 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 provisions
of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality. There is no action, suit or proceeding by the Company
currently pending or which the Company intends to initiate.
3.8 PATENTS AND TRADEMARKS. Other than as set forth in EXHIBIT C,
the Company (i) has sufficient title and ownership of the patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary
rights and processes necessary for the operation of its business as now
conducted without any conflict with or infringement of the rights of others and
(ii) believes it can develop or obtain on terms which will not adversely affect
the business of the Company sufficient title and ownership of such items listed
in clause (i) as will be necessary for the conduct of its business as intended
to be conducted without any conflict with or 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, proprietary rights and processes of any other person or entity. The
Company has not received any communications alleging that the Company has
violated or, by conducting its business as now conducted, 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. The Company is not
aware that any of its employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of such employee's best efforts to promote the
interests of the Company or that would conflict with the Company's business as
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proposed to be conducted. Neither the execution nor delivery of this
Agreement, nor the carrying on of the Company's business by the employees of
the Company, nor the conduct of the Company's business as proposed, will, to
the Company's knowledge, after due inquiry, 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 of such employees
is now obligated. Other than as set forth on EXHIBIT C, the Company does not
believe it is utilizing or will be necessary to utilize any inventions of any
of its employees (or people it currently intends to hire) made prior to their
employment by the Company.
3.9 MATERIAL CONTRACTS AND OBLIGATIONS. The Company has made
available to the Purchasers who so request copies of all of the Company's
material contracts, which are set forth on EXHIBIT I attached hereto.
3.10 EMPLOYEE AGREEMENTS. Each employee and officer of the Company
has executed an agreement with the Company regarding confidentiality of
proprietary information and assignment of inventions. The Company, after
reasonable investigation, is not aware that any of its employees is in
violation thereof, and the Company will use its best efforts to prevent any
such violation.
3.11 AGREEMENTS; ACTION.
(a) Other than as set forth in EXHIBIT C, and except for
agreements explicitly contemplated hereby, there are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, affiliates, or any affiliate thereof.
(b) Other than as set forth in EXHIBIT C, there are no
agreements, understandings, instruments, contracts or proposed transactions
to which the Company is a party or by which it is bound that involve (i)
obligations of, or payments to the Company in excess of, $50,000, or (ii) the
license of any patent, copyright, trade secret or other proprietary right to
or from the Company.
(c) Other than as set forth in EXHIBIT C, the Company has not,
subsequent to August 20, 1999, except for repurchases of options, at cost,
from terminated employees, (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 incurred
any other liabilities in excess of $50,000 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.
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(e) The Company is not a party to and is not bound by any
contract, agreement or instrument, or subject to any restriction under its
Certificate of Incorporation or Bylaws which adversely affects its business as
now conducted or as proposed to be conducted, its properties or its financial
condition.
3.12 DISCLOSURE. The Company has fully provided: (i) each Purchaser
with all the information which such Purchaser has requested for deciding whether
to acquire the Warrant and the shares of Series B Preferred Stock; and (ii) all
information that the Company believes is reasonably necessary to enable such
Purchaser to make such decision. Additionally, all agreements referenced in
EXHIBIT C of this Agreement have been provided to Purchasers prior to the
Closing Date, and Purchases acknowledge that all such agreements have been fully
reviewed by Purchaser and/or its authorized representative. This Agreement and
all schedules and Exhibits attached hereto do not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements herein or therein not misleading.
3.13 REGISTRATION RIGHTS. Except as contemplated by this Agreement
and except as provided for in the Series A Convertible Preferred Stock Purchase
Agreement dated June 30, 1999, the Company has not granted or agreed to grant
any registration rights, including piggyback rights, to any person or entity.
3.14 TITLE TO PROPERTY AND ASSETS. Other than as set forth in
EXHIBIT C, the Company owns its property and assets free and clear of all
mortgages, liens, loans and encumbrances, except such encumbrances and liens
that arise in the ordinary course of business and do not materially impair the
Company's ownership or use of such property or assets. With respect to the
property and assets it leases, the Company is in compliance with such leases
and, to the best of its knowledge, holds a valid leasehold or sublease interest
free of any liens, claims or encumbrances.
3.15 TAX RETURNS AND PAYMENTS. The Company will file all tax
returns and reports as required by law. These returns and reports shall be true
and correct in all material respects. The Company shall pay all taxes and other
assessments due. The Company has not elected pursuant to the Internal Revenue
Code of 1986, as amended (the "CODE"), to be treated as a Subchapter S
corporation or a collapsible corporation pursuant to Section 1362(a) or Section
341(f) of the Code, nor has it made any other elections pursuant to the Code
(other than elections that relate solely to methods of accounting, depreciation
or amortization) that would have a material effect on the Company, its financial
condition, its business as presently conducted or proposed to be conducted or
any of its properties or material assets. The Company has never had any tax
deficiency proposed or assessed against it and has not executed any waiver of
any statute of limitations on the assessment or collection of any tax or
governmental charge. None of the Company's federal income tax returns and none
of its state income or franchise tax or sales or use tax returns has ever been
audited by governmental authorities. The Company has not incurred any taxes,
assessments or governmental charges other than in the ordinary course of
business and the Company has made adequate provisions on its books of account
for all taxes, assessments and governmental charges with respect to its
business, properties and operations for such period. The Company has withheld or
collected from each payment made to each of its employees, the amount of all
taxes (including, but not limited to, federal income taxes, Federal
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Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes)
required to be withheld or collected therefrom, and has paid the same to the
proper tax receiving officers or authorized depositories.
3.16 MINUTE BOOKS. The minute books of the Company have been made
available to the Purchasers and contain a complete summary of all meetings of
directors and stockholders since the time of incorporation and reflect all
transactions referred to in such minutes accurately in all material respects.
3.17 LABOR AGREEMENTS AND ACTIONS. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company (as such business is presently
conducted and as it is proposed to be conducted), nor is the Company aware of
any labor organization activity involving its employees. The Company is not
aware that any officer or key employee, or that any group of key employees,
intends to terminate their employment with the Company, nor does the Company
have a present intention to terminate the employment of any of the foregoing.
The employment of each officer and employee of the Company is terminable at the
will of the Company. To the Company's knowledge, the Company has complied in all
material respects with all applicable state and federal equal employment
opportunity and other laws related to employment.
3.18 CERCLA/SUPERFUND REQUIREMENTS.
SEE EXHIBIT C with respect to this Section 3.18.
(a) The Company, the operations of its business, and any real
property that the Company owns, leases, subleases or otherwise occupies or uses
(the "PREMISES") are in compliance in all material respects with all applicable
Environmental Laws (as defined below) and orders or directives of any
governmental authorities having jurisdiction under such Environmental Laws
including, without limitation, any Environmental Laws or orders or directives
with respect to any cleanup or remediation of any release or threat of release
of Hazardous Substances.
(b) The Company has not received any citation, directive,
letter or other communication, written or oral, or any notice of any
proceedings, claims or lawsuits, from any person, entity or governmental
authority arising out of the ownership or occupation of the Premises, or the
conduct of its operations.
(c) The Company has obtained and is maintaining in full force
and effect all necessary permits, licenses and approvals required by any
Environmental Laws applicable to the Premises and the business operations
conducted thereon (including operations conducted by tenants on the Premises)
and is in compliance with all such permits, licenses and approvals.
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(d) The Company has not caused, or allowed a release, or a
threat of release, of any Hazardous Substance unto, nor to the best of the
Company's knowledge, after due inquiry, has the Premises ever been subject to a
release, or a threat of a release, of any Hazardous Substance.
(e) The term "ENVIRONMENTAL LAWS" shall mean any federal,
state or local law, ordinance or regulation pertaining to the protection of
human health or the environment including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Sections 9601,
et seq., Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Sections
11001, et seq., and the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901, et seq.
(f) The term "HAZARDOUS SUBSTANCE" shall mean any substance
regulated as a hazardous waste, substance or material under Environmental Laws,
and shall include oil and petroleum products, asbestos, polychlorinated
biphenyls and urea formaldehyde.
3.19 RELATED-PARTY TRANSACTIONS. Other than as is set forth in
EXHIBIT C, no employee, officer or director of the Company or member of his or
her immediate family is indebted to the Company, nor is the Company indebted (or
committed to make loans or extend or guarantee credit) to any of them. To the
best of the Company's knowledge, none of such persons has any direct or indirect
ownership in any firm or corporation with which the Company is affiliated or
with which the Company has a business relationship, or any firm or corporation
that competes with the Company, except that employees, officers or directors of
the Company and members of their immediate families may own stock in publicly
traded companies that may compete with the Company. To the best of the Company's
knowledge, no officer or director or any member of their immediate families is,
directly or indirectly, interested in any material contract with the Company.
3.20 PERMITS. 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 the
Company believes that 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 in any material respect under any of such
franchises, permits, licenses or other similar authority.
3.21 EMPLOYEE BENEFIT PLANS. Neither the Company nor any ERISA
Affiliate maintains or contributes to or, at any time has had any obligation to
maintain or contribute to, any Guaranteed Pension Plan (as defined below) or
Multiemployer Plan (as defined below). With respect to each Employee Benefit
Plan (as defined below) and as listed on EXHIBIT C, to the extent applicable,
(a) Each such Employee Benefit Plan has been maintained and
operated in all material respects in compliance with its terms and with all
applicable provisions of the Employee
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Retirement Income Security Act of 1974, as amended ("ERISA"), the Code and
all applicable regulations, rulings and other authority issued thereunder;
(b) All contributions required by law to have been made under
each such Employee Benefit Plan (without regard to any waivers granted under
Section 412 of the Code) to any fund or trust established thereunder or in
connection therewith have been made by the due date thereof;
(c) Each such Employee Benefit Plan intended to qualify under
Section 401(a) of the Code is the subject of a favorable unrevoked determination
letter issued by the Internal Revenue Service as to its qualified status under
the Code, which determination letter may still be relied upon as to such tax
qualified status, and no circumstances have occurred since the date of such
determination that would adversely affect the tax qualified status of any such
Employee Benefit Plan; each trust created under any such Employee Benefit Plan
is exempt from tax under Section 501(a) of the Code and has been so exempt
during the period from creation to date;
(d) None of such Employee Benefit Plans that are "employee
welfare benefit plans" as defined in Section 3(1) of ERISA provides for
continuing benefits or coverage for any participant or beneficiary of a
participant after such participant's termination of employment, except as
required by applicable law, including Section 4980B of the Code and Section 601
of ERISA; and
(e) The term "EMPLOYEE BENEFIT PLAN" means any employee
benefit plan within the meaning of Section 3(3) of ERISA maintained or
contributed to by the Company or any ERISA Affiliate, other than a Multiemployer
Plan.
(f) The term "ERISA AFFILIATE" means any Person that is
treated as a single employer with the Company under Section 414 of the Code.
(g) The term "GUARANTEED PENSION PLAN" means any employee
pension benefit plan within the meaning of Section 3(2) of ERISA maintained or
contributed to by the Company or any ERISA Affiliate, the benefits of which are
guaranteed on termination in full or in part by the Pension Benefit Guarantee
Corporation pursuant to Title IV of ERISA, other than a Multiemployer Plan.
(h) The term "MULTIEMPLOYER PLAN" means a multiemployer plan
within the meaning of Section 3(37) of ERISA.
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SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally represents and warrants to the Company
with respect to the purchase of the Warrant and of the shares of Series B
Preferred Stock, respectively, as follows:
4.1 EXPERIENCE. The Purchaser has substantial experience in
evaluating and participating and/or investing (as the case may be) 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.
4.2 INVESTMENT. The Purchaser is acquiring the Warrant and the
shares of Series B Preferred Stock and the underlying Common Stock for
investment for its own account, not as a nominee or agent, and not with the view
to, or for resale in connection with, any distribution thereof. The Purchaser
understands that the Warrant and the shares of Series B Preferred Stock to be
purchased and the underlying Common Stock may not be sold, transferred or
otherwise disposed of without registration under the Securities Act or by reason
of a specific exemption from the registration provisions of the Securities Act,
the availability of which depends upon, among other things, the bona fide nature
of the investment intent and the accuracy of such Purchaser's representations as
expressed herein. Each Purchaser that is not a corporation is an "accredited
investor" within the meaning of Regulation D, Rule 501(a), promulgated by the
Securities and Exchange Commission. The acquisition of the Warrant and of the
shares of Series B Preferred Stock and the underlying Common Stock by the
Purchaser will be made in compliance with all laws outside of the United States
of America to which the Purchaser is subject.
4.3 RULE 144. The Purchaser acknowledges that the Warrant and of
the shares of Series B Preferred Stock and the underlying Common Stock must be
held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from such registration is available. The Purchaser is aware
of the provisions of Rule 144 promulgated under the Securities Act which permit
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale occurring not less than one year after
a party has purchased and paid for the security to be sold, the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" and the number of shares being sold during any three-month period
not exceeding specified limitations.
4.4 NO PUBLIC MARKET. The Purchaser understands that no public
market now exists for any of the securities issued by the Company and that the
Company has made no assurances that a public market will ever exist for the
Company's securities.
4.5 AUTHORIZATION. This Agreement when executed and delivered by
the Purchaser will constitute a valid and legally binding obligation of the
Purchaser, enforceable in accordance
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with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
4.6 FINDER'S FEES. The Purchasers have not incurred, and will not
incur, directly or indirectly, as a result of any action taken by the Company,
any liability for brokerage or finders' fees or agents' commissions or any
similar charges in connection with this Agreement.
SECTION 5
CONDITIONS TO CLOSING OF PURCHASERS
The Purchaser's obligations to purchase shares of Series B Preferred
Stock and the Warrant at the Closing Date are, at the option of such Purchaser,
subject to the fulfillment of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Company in Section 3 hereof shall be true and correct
as of the Closing Date.
5.2 COVENANTS. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with unless waived in writing by the
Purchaser.
5.3 OPINION OF COMPANY'S COUNSEL. The Purchasers shall have
received from Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx, LLP, counsel to the
Company, an opinion addressed to them, dated the Closing Date, in substantially
the form attached hereto as EXHIBIT J.
5.4 BLUE SKY. The Company shall have obtained all necessary state
securities law permits and qualifications, or have the availability of
exemptions therefrom, required by any state for the offer and sale of the
Warrant and Shares and the Common Stock issuable upon conversion of the Shares.
5.5 SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION. The
Second Amended and Restated Certificate of Incorporation shall have been filed
with the Delaware Secretary of State.
5.6 INVESTOR RIGHTS AGREEMENT. The Series A and Series B Investor
Rights Agreement in the form attached hereto as EXHIBIT E shall have been
executed and shall be binding on the parties thereto.
5.7 AMENDED AND RESTATED CO-SALE AGREEMENT. The Amended and
Restated Co-Sale Agreement in the form attached hereto as EXHIBIT F shall have
been executed and shall be binding on the parties thereto.
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5.8 AMENDED AND RESTATED VOTING AGREEMENT. The Amended and
Restated Voting Agreement in the form attached hereto as EXHIBIT G shall have
been executed and shall be binding on the parties thereto.
5.9 AMENDED AND RESTATED COOPERATIVE AGREEMENT. The Amended and
Restated Cooperative Agreement in the form attached hereto as EXHIBIT H shall
have been executed and shall be binding on the parties thereto
5.10 COMPLIANCE CERTIFICATE. The Company shall have delivered to
the Purchasers a certificate of the Company in substantially the form attached
hereto as EXHIBIT K, executed by the President of the Company, dated the Closing
Date, and certifying, among other things, to the fulfillment of the conditions
specified in Sections 5.1, 5.2 and 5.5 of this Agreement.
5.11 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
SECTION 6
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares and the Warrant
at the Closing Date is, at the option of the Company, subject to the fulfillment
of the following conditions:
6.1 REPRESENTATIONS. The representations made by the Purchasers in
Section 4 hereof shall be true and correct as of the Closing Date.
6.2 COVENANTS. All covenants, agreements, and conditions contained
in this Agreement to be performed by the Purchasers on or prior to the Closing
Date shall have been performed or complied with unless waived in writing by the
Company.
6.3 BLUE SKY. The Company shall have obtained all necessary state
securities law permits and qualifications, or have the availability of
exemptions therefrom, required by any state for the offer and sale of the Shares
and the Common Stock issuable upon conversion of the Shares.
6.4 SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION. The
Second Amended and Restated Certificate of Incorporation shall have been filed
with the Delaware Secretary of State.
6.5 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
securities pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
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SECTION 7
INDEMNIFICATION; BROKERS OR FINDERS
7.1 INDEMNIFICATION. Notwithstanding any disclosures made in this
Agreement or EXHIBIT C hereto or any knowledge acquired by any Purchaser, the
Company hereby agrees to indemnify, exonerate and hold each of the Purchasers
and their (if applicable) general and limited partners and their respective
shareholders, officers, directors, employees and agents (the "INDEMNITEES") free
and harmless from and against any and all actions, causes of action or suits
brought against them by third parties ("THIRD PARTY CLAIMS"), losses,
liabilities, damages and expenses, including, without limitation, reasonable
attorneys' fees and disbursements (collectively, "DAMAGES") arising from any
such Third Party Claim, incurred in the capacity as a Purchaser by any of the
Indemnitees as a result of or relating to (i) any transaction by the Company
financed or to be financed in whole or in part, directly or indirectly, with
proceeds from the sale of any of the Warrant and Shares, except for those
transactions which have been approved by the Company's Board of Directors
following the date hereof, (ii) the execution, delivery, performance or
enforcement of this Agreement, the Related Agreements or any other agreement
contemplated hereby or thereby (including, without limitation, any failure by
the Company to comply with any of its covenants or any breach of its
representations and warranties in this Agreement, the Related Agreements or any
other agreement contemplated hereby or thereby) except where such Damages are
caused directly by the actions of the Indemnitee in violation of its obligations
under such agreements, (iii) any violation by the Company of any Environmental
Laws, or (iv) the investigation or remediation of offsite locations at which the
Company or its predecessors are alleged to have directly or indirectly disposed
of Hazardous Materials.
7.2 BROKERS OR FINDERS. The Company shall hold harmless and
indemnify each of the Purchasers from and against any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement incurred, directly or indirectly, as a result of any action taken
by the Company, and each Purchaser shall hold harmless and indemnify the Company
and the other Purchasers from and against any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement incurred, directly or indirectly, as a result of any action taken
by such Purchaser.
SECTION 8
MISCELLANEOUS
8.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the internal laws of the State of Delaware, without respect to
provisions concerning the conflict of laws that would otherwise require
application of the substantive law of another jurisdiction.
8.2. CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF CALIFORNIA.
(a) Each of the parties hereto hereby consents to the
exclusive jurisdiction of the courts of the State of California and the United
States District Court for the Southern District
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of California, as well as to the jurisdiction of all courts to which an
appeal may be taken from such courts, for the purpose of any suit, action or
other proceeding arising out of, or in connection with, this Agreement or any
of the Related Agreements or any of the transactions contemplated hereby or
thereby.
(b) Each party hereby expressly waives any and all rights to
bring any suit, action or other proceeding in or before any court or tribunal
other than the courts of the State of California and covenants that it shall not
seek in any manner to resolve any dispute other than as set forth in this
Section 8 or to challenge or set aside any decision, award or judgment obtained
in accordance with the provisions hereof.
(c) Each of the parties hereto hereby expressly waives any and
all objections it may have to venue, including, without limitation, the
inconvenience of such forum, in any of such courts. In addition, each of the
parties consents to the service of process by personal service or any manner in
which notices may be delivered hereunder in accordance with Section 8.7.
8.3 WAIVER OF JURY TRIAL. Each of the parties hereto hereby
voluntarily and irrevocably waives trial by jury in any action or other
proceeding brought in connection with this agreement, any of the other
transaction documents or any of the transactions contemplated hereby or thereby.
8.4 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Purchaser and
the closing of the transactions contemplated hereby.
8.5 SUCCESSORS AND ASSIGNS. Except as otherwise 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,
provided, however, that the rights of a Purchaser to purchase the Warrant and
the Shares (and the Common Stock issuable upon conversion of the Shares) shall
not be assignable without the consent of the Company.
8.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
documents delivered pursuant hereto at the Closing constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
PROVIDED, HOWEVER, that holders of 66 2/3% of the Series B Preferred Stock may
act in such regards on behalf of all such holders to waive, modify or amend, any
provisions hereof.
8.7 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, delivered by hand or by messenger, or sent by
facsimile and confirmed by mail addressed (a) if to a
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Purchaser, at such Purchaser's address set forth in EXHIBIT A, or at such
other address as such Purchaser shall have furnished to the Company in
writing, or (b) if to any other holder of any Shares, at such address as such
holder shall have furnished the Company in writing, or, until any such holder
so furnishes an address to the Company, then to and at the address of the
last holder of such Shares who has so furnished an address to the Company, or
(c) if to the Company, to XxxxXxxxxxxxx.xxx, Inc., 0000 Xxxxx Xxxxx Xxxxx,
Xxx Xxxxx, XX 00000, fax (000) 000-0000 and addressed to the attention of the
Corporate Secretary, or at such other address as the Company shall have
furnished to the Purchasers.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally or sent by facsimile, or, if sent by mail, at the earlier
of its receipt or five (5) business days after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
8.8 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any holder
of any Shares, upon any breach or default of the Company under this Agreement,
shall impair any such right, power or remedy of such holder nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or waiver of or acquiescence in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement, or any
waiver on the part of any Purchaser of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Purchaser, shall be cumulative
and not alternative.
8.9 CALIFORNIA CORPORATE SECURITIES LAW. 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
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES
IS EXEMPT FROM THE 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.
8.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Purchasers,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
8.11 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement
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shall continue in full force and effect without said provision; provided that
no such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
8.12 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.
8.13 TRANSFER OF UNITS Prior to the date on which a fully
underwritten, firm commitment offering by the Company of its Common Stock to the
public pursuant to an effective registration statement under the Securities Act
of 1933 or any comparable statement under any similar federal statute then in
force is secured, and which involves the listing of such Common Stock on a
nationally recognized U.S. exchange or the NASDAQ National Market ("QPO Date"),
the Units purchased by the Purchasers may be transferred or otherwise disposed,
to the extent and only if otherwise permitted under the terms and conditions of
this Agreement and/or the Related Agreements, as Units only and not the separate
component parts of the Units (I.E., Shares and Warrant); following the QPO Date,
such requirement shall automatically expire such that the Purchasers may
separately transfer or otherwise dispose, to the extent and only if otherwise
permitted under the terms and conditions of this Agreement and/or Related
Agreements, of the component parts of the Units.
8.14 EFFECTS OF AMENDMENT OR WAIVER. The Purchasers each
acknowledge and agree that by the operation of Section 8.6 hereof the holders of
66-2/3% of the Series B Preferred Stock will have the right to diminish or
eliminate all rights of Purchasers under this Agreement. The foregoing shall not
be construed to grant any right to affect any rights of (i) the holders of any
other preferred stock (and Common Stock issued upon conversion thereof), or (ii)
the Company.
8.15 RIGHTS OF INVESTORS. Any holder of the Series B Preferred
Stock (and Common Stock issued upon conversion thereof) shall have the absolute
right to exercise or refrain from exercising any right or rights that such
holder may have by reason of this Agreement or any Series B Preferred Stock
(including, without limitation, the right to consent to the waiver of any
obligation of the Company under this Agreement and to enter into any agreement
with the Company for the purpose of modifying this Agreement or any other
agreement affecting any such modification), and such holder shall not incur any
liability to any other holder or holders of the Series B Preferred Stock (or
Common Stock issued upon exercise thereof) with respect to exercising or
refraining from exercising any such right or rights.
8.16 EXCULPATION AMONG INVESTORS. Each Purchaser acknowledges that
it is not relying upon any person, firm corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. Each Purchaser agrees that no Purchaser not the respective
controlling persons, officers, directors, partners, agents or employees of such
Purchaser shall be liable for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the Series B Preferred
Stock (or Common Stock issued upon conversion thereof).
--THE REST OF THIS PAGE IS INTENTIONALLY BLANK--
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The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
XXXXXXXXXXXXX.XXX, INC.
By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Secretary
"PURCHASERS"
TREGA BIOSCIENCES, INC.
By: /s/ XXXXXXX X. GREY
-----------------------------------
Name: Xxxxxxx X. Grey
Title: President & Chief Executive Officer
H. XXXX XXXXXXX XXXXXXX XXXXXXXXX, PH.D.
By: /s/ H. XXXX XXXXXXX By: /s/ XXXXXXX XXXXXXXXX
------------------------- ------------------------------
Name (print): H. XXXX XXXXXXX Name (print): XXXXXXX XXXXXXXXX
----------------- ---------------------
...............................................................................
*THE EXHIBITS HAVE BEEN OMITTED FROM THIS AGREEMENT AS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "SEC"). THE OMITTED INFORMATION IS
CONSIDERED IMMATERIAL FROM AN INVESTOR'S PERSPECTIVE. THE COMPANY WILL
FURNISH SUPPLEMENTALLY A COPY OF ANY OF THE EXHIBITS TO THE SEC UPON REQUEST
OF THE SEC.
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