STOCK PURCHASE AGREEMENT Dated as of December 5, 2006 by and among HALOZYME THERAPEUTICS, INC. and ROCHE FINANCE LTD
Exhibit 99.2
Dated as of December 5, 2006
by and among
HALOZYME THERAPEUTICS, INC.
and
ROCHE FINANCE LTD
| Page | ||||||||||
| Article I | Purchase and Sale of Common Stock | 1 | ||||||||
| Section 1.1 | Purchase and Sale of Common Stock | 1 | ||||||||
| Section 1.2 | Purchase Price and Closing | 1 | ||||||||
| Article II | Representations and Warranties | 2 | ||||||||
| Section 2.1 | Representations and Warranties of the Company | 2 | ||||||||
| Section 2.2 | Representations and Warranties of the Purchaser | 6 | ||||||||
| Article III | Covenants | 7 | ||||||||
| Section 3.1 | Compliance | 7 | ||||||||
| Section 3.2 | Use of Proceeds | 7 | ||||||||
| Section 3.3 | Press Release | 7 | ||||||||
| Section 3.4 | Short Selling | 7 | ||||||||
| Article IV | Conditions | 8 | ||||||||
| Section 4.1 | Conditions Precedent to the Obligation of the Company to Sell the Shares | 8 | ||||||||
| Section 4.2 | Conditions Precedent to the Obligation of the Purchaser to Purchase the Shares | 8 | ||||||||
| Article V | Miscellaneous | 10 | ||||||||
| Section 5.1 | Fees and Expenses | 10 | ||||||||
| Section 5.2 | Specific Performance; Consent to Jurisdiction | 10 | ||||||||
| Section 5.3 | Entire Agreement; Amendment | 10 | ||||||||
| Section 5.4 | Notices | 10 | ||||||||
| Section 5.5 | Waivers | 11 | ||||||||
| Section 5.6 | Headings | 11 | ||||||||
| Section 5.7 | Successors and Assigns | 11 | ||||||||
| Section 5.8 | No Third Party Beneficiaries | 12 | ||||||||
| Section 5.9 | Counterparts | 12 | ||||||||
| Section 5.10 | Severability | 12 | ||||||||
| Section 5.11 | Further Assurances | 12 | ||||||||
i
This STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of December 5, 2006, is
entered into by and between Halozyme Therapeutics, Inc., a Nevada corporation (the
“Company”), and Roche Finance Ltd, a Swiss company (the “Purchaser”), for the
purchase and sale of 3,385,000 shares of the Company’s Common Stock, par value $.001 per share (the
“Shares”).
WHEREAS, this Agreement is being entered into in connection with the execution of that certain
License and Collaboration Agreement between the Company and Purchaser dated as of the date hereof
(the “License Agreement”); and
WHEREAS, this Agreement, and the transaction contemplated hereby, is a material inducement for
the parties to enter into the collaborative relationship established by the License Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein
contained, the parties hereby agree as follows:
ARTICLE I
Purchase and Sale of Common Stock
Section 1.1 Purchase and Sale of Common Stock. Upon the following terms and
conditions, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company, 3,385,000 shares of Common Stock at a price per share of $3.27 (the “Per
Share Purchase Price”), for an aggregate purchase price of $11,068,950 as determined herein
(the “Purchase Price”). The parties agree that the Per Share Purchase Price shall equal
the higher of (i) 125% of the average closing price of the Company’s Common Stock as reported by
the American Stock Exchange (“AMEX”) over the ninety (90) trading days immediately
preceding, but not including, the date of this Agreement, or (ii) the closing price of the
Company’s Common Stock as reported by AMEX for the trading day immediately preceding the date of
this Agreement. At the Closing, the parties agree to execute a Registration Rights Agreement in
the form attached hereto as Exhibit A (the “Rights Agreement”).
Section 1.2 Purchase Price and Closing. Subject to the terms and conditions hereof,
the Company agrees to issue and sell to the Purchaser and, in consideration of and in express
reliance upon the representations, warranties, covenants, terms and conditions of this Agreement,
the Purchaser agrees to purchase the Shares. The closing of the purchase and sale of the Shares to
be acquired by the Purchaser from the Company under this Agreement shall take place at the offices
of the Company’s counsel, DLA Piper US LLP (the “Closing”) at 9:00 AM, San Diego time (i)
on the effective date of the license granted under the License Agreement, provided, that
all of the conditions set forth in Article IV hereof and applicable to the Closing shall have been
fulfilled or waived in accordance herewith, or (ii) at such other time and place or on such date as
the Purchaser and the Company may agree upon (the “Closing Date”). Subject to the terms
and conditions of this Agreement, at the Closing the Company shall deliver or cause to be delivered
to the Purchaser a certificate registered in the name of the Purchaser representing the number of
Shares Purchaser is purchasing pursuant to the terms hereof. At the Closing, the Purchaser
shall deliver the Purchase Price by wire transfer to an account designated by the Company.
ARTICLE II
Representations and Warranties
Section 2.1 Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
(a) Organization, Good Standing and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State of Nevada and has
the requisite corporate power to own, lease and operate its properties and assets and to conduct
its business as it is now being conducted and as described in the documents filed by the Company
with the Securities and Exchange Commission (the “Commission”) pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (all
of the foregoing including filings incorporated by reference therein being referred to herein as
the “Commission Documents”), since the end of its most recently completed fiscal year
through the date hereof, including, without limitation, its most recent report on Form 10-Q. Other
than wholly owned subsidiary Halozyme, Inc., a California corporation (the “Subsidiary”),
the Company does not own securities of any kind in any other entity. The Company and the
Subsidiary are qualified to do business as foreign corporations and are in good standing in every
jurisdiction in which the nature of the business conducted or property owned by them makes such
qualification necessary, except for any jurisdiction(s) (alone or in the aggregate) in which the
failure to be so qualified will not have a Material Adverse Effect. For the purposes of this
Agreement, “Material Adverse Effect” means any effect on the business, operations,
properties or financial condition of the Company and its Subsidiary that is material and adverse to
the Company and its Subsidiary, taken as a whole, and any condition, circumstance or situation that
would prohibit the Company from entering into and performing any of its obligations hereunder.
(b) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into and perform this Agreement and to issue and sell the Shares in accordance
with the terms hereof. The execution, delivery and performance of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no further consent or authorization of the
Company, its Board of Directors or stockholders is required. When executed and delivered by the
Company, this Agreement shall constitute a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies
or by other equitable principles of general application.
(c) Issuance of Shares. The Shares have been duly authorized by all necessary
corporate action and, when paid for and issued in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free and clear of all liens, encumbrances and rights of
refusal of any kind (other than restrictions on transfer under applicable securities
laws) and the holder of the Shares shall be entitled to all rights accorded to a holder of
Common Stock.
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(d) No Conflicts; Governmental Approvals. The execution, delivery and performance of
the Agreement by the Company and the consummation by the Company of the transactions contemplated
hereby do not and will not (i) violate any provision of the Company’s Articles of Incorporation
(the “Articles”) or Bylaws (the “Bylaws”), each as amended to date, or the
Subsidiary’s comparable charter documents, (ii) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the
Company or its Subsidiary is a party or by which the Company or its Subsidiary’s respective
properties or assets are bound, or (iii) result in a violation of any federal, state, local or
foreign statute, rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or its Subsidiary or by which any
property or asset of the Company or its Subsidiary are bound or affected, except for such
conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor its
Subsidiary is required under federal, state, foreign or local law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its obligations under
this Agreement or issue and sell the Shares in accordance with the terms hereof (other than any
filings, consents and approvals which may be required to be made by the Company under applicable
state and federal securities laws, rules or regulations prior to or subsequent to the Closing).
(e) Commission Documents, Financial Statements. The Common Stock of the Company is
registered pursuant to Section 12(g) of the Exchange Act. During the two year period preceding the
Closing Date, the Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Commission pursuant to the reporting requirements of
the Exchange Act. At the times of their respective filing, all such reports, schedules, forms,
statements and other documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated thereunder and other
federal, state and local laws, rules and regulations applicable to such documents. At the times of
their respective filings, such reports, schedules, forms, statements and other documents did not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. As of their respective dates, the financial statements
of the Company included in the Commission Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of the Commission or
other applicable rules and regulations with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated in such financial statements
or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements), and fairly present in all
material respects the consolidated financial position of the Company as of the dates thereof and
the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
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(f) No Material Adverse Change. Except as disclosed in the Commission Documents,
since September 30, 2006, neither the Company nor its Subsidiary has (i) experienced or suffered
any Material Adverse Effect, (ii) incurred any liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) other
than those incurred in the ordinary course of the Company’s or its Subsidiary’s respective
businesses or (iii) declared, made or paid any dividend or distribution of any kind on their
capital stock.
(g) No Undisclosed Events or Circumstances. Except as disclosed in the Commission
Documents, since September 30, 2006, except for the consummation of the transactions contemplated
herein, to the Company’s knowledge, no event or circumstance has occurred or exists with respect to
the Company or its Subsidiary or their respective businesses, properties, operations or financial
condition, which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or disclosed.
(h) Disclosure; Non-Public Information. Neither this Agreement nor any other
documents, certificates or instruments furnished to the Purchaser by or on behalf of the Company or
its Subsidiary in connection with the transactions contemplated by this Agreement contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements made herein or therein, in the light of the circumstances under which they were made
herein or therein, not misleading. Except with respect to the material terms and conditions of the
transaction contemplated by this Agreement, which shall be publicly disclosed by the Company
pursuant to applicable law, the Company confirms that neither it nor any person acting on its
behalf has provided the Purchaser with any information that the Company believes constitutes
material, non-public information.
(i) Litigation. No action, suit, proceeding or investigation is currently pending or,
to the knowledge of the Company, has been threatened in writing against the Company that: (i)
concerns or questions the validity of this Agreement; (ii) concerns or questions the right of the
Company to enter into this Agreement; or (iii) is reasonably likely to have a Material Adverse
Effect. The Company is neither a party to nor 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 that the Company
intends to initiate.
(j) Compliance. Except for defaults or violations which are not reasonably likely to
have a Material Adverse Effect, neither the Company nor its Subsidiary (i) is in default under or
in violation of (and no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or its Subsidiary under), nor has the
Company or its Subsidiary received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other agreement or instrument to which
it is a party or by which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court, arbitrator or
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governmental body, or (iii) is or has been in violation of any statute, rule or regulation of
any governmental authority, including without limitation all foreign, federal, state and local laws
applicable to its business.
(k) Patents and Other Proprietary Rights.
(i) Each of the Company and its Subsidiary has entered into agreements with each of its
officers, employees and consultants involved in research and development work, including
development of the Company’s and its Subsidiary’s products and technology providing the Company or
its Subsidiary, to the extent permitted by law, with title and ownership to patents, patent
applications, trade secrets and inventions conceived, developed, reduced to practice by such
person, solely or jointly with other of such persons, during the period of employment by the
Company or its Subsidiary. The Company is not aware that any of its or its Subsidiary’s employees
or consultants is in violation thereof.¶
(ii) To the knowledge of the Company, the Company or its Subsidiary owns or possesses adequate
licenses or other rights to use all patents, patent applications, trademarks, trademark
applications, trade secrets, service marks, trade names, copyrights, inventions, drawings, designs,
customer lists, proprietary know-how or information, or other rights with respect thereto
(collectively referred to as “Company Proprietary Rights”), used in the business of the
Company or its Subsidiary, and the Company Proprietary Rights are to the knowledge of the Company
sufficient to conduct its or its Subsidiary’s business as it has been conducted and is now being
conducted, without any known conflicts with, or infringement of, the rights of others.¶
(iii) To the knowledge of the Company, there are no facts or alleged facts which would
reasonably serve as a basis for any claim that the Company or its Subsidiary does not have the
right to use, free of any rights or claims of others, all Company Proprietary Rights in the
development, manufacture, use, sale or other disposition of any or all products or services
presently used, furnished or sold in the business of the Company or its Subsidiary, subject to the
terms, conditions and restrictions in any license agreement related to any Company Proprietary
Rights.¶
(iv) Neither the Company nor its Subsidiary has received any written communications alleging
that the Company or its Subsidiary has violated or, by conducting its business as proposed, would
violate any of the patents, trademarks, service marks, trade names, domain names, copyrights, trade
secrets or other proprietary rights or processes of any other person or entity
(l) Environmental Regulations. Except for failures which are not reasonably likely to
have a Material Adverse Effect, as of the date hereof each of the Company and its Subsidiary has
met all applicable local, state, federal and national environmental regulations and has disposed of
its waste products and effluents, if any, and/or has caused others to dispose of such waste
products and effluents, if any, in accordance with all applicable state, local, federal and
national environmental regulations and in such a manner that, to the knowledge of the Company or
its Subsidiary: (a) no harm has resulted or will likely result to any of its respective
employees or properties or to any other person or entities or their properties, and (b)
neither the Company nor its Subsidiary has incurred any liability with respect thereto.
5
Section 2.2 Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows:
(a) Purchaser Sophistication. The Purchaser represents and warrants to, and covenants
with, the Company that (a) the Purchaser is knowledgeable, sophisticated and experienced in making,
and is qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, and has requested, received,
reviewed and considered all information it deemed relevant in making an informed decision to
purchase the Shares and (b) the Purchaser, in connection with its decision to purchase the Shares,
relied only upon the Company’s regular reports on Forms 10-KSB, 10-Q and 8-K as filed by the
Company with the Commission, other publicly available information, and the representations and
warranties of the Company contained herein.
(b) Authorization and Power. The Purchaser has the requisite power and authority to
enter into and perform this Agreement and to purchase the Shares being sold to it hereunder. The
execution, delivery and performance of this Agreement by the Purchaser and the consummation by it
of the transactions contemplated hereby have been duly authorized by all necessary corporate
action, and no further consent or authorization of such Purchaser or its Board of Directors or
stockholders is required. When executed and delivered by the Purchaser, this Agreement shall
constitute a valid and binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws
relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other
equitable principles of general application.
(c) No Conflict. The execution, delivery and performance of this Agreement by the
Purchaser and the consummation by the Purchaser of the transactions contemplated hereby do not and
will not (i) violate any provision of the Purchaser’s charter or organizational documents, (ii)
conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease
agreement, instrument or obligation to which the Purchaser is a party or by which the Purchaser’s
respective properties or assets are bound, or (iii) result in a violation of any federal, state,
local or foreign statute, rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Purchaser or by which any property or asset of
the Purchaser are bound or affected, except, in all cases, other than violations pursuant to
clauses (i) or (iii) (with respect to federal and state securities laws) above, for such conflicts,
defaults, terminations, amendments, acceleration, cancellations and violations as would not,
individually or in the aggregate, materially and adversely affect the Purchaser’s ability to
perform its obligations under the Agreement.
6
(d) Restricted Shares. The Purchaser acknowledges that the Shares are restricted
securities and must be held indefinitely unless subsequently registered under the
Securities Act or the Company receives an opinion of counsel satisfactory to the Company that
such registration is not required. The Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of stock purchased in a private
placement subject to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the stock, 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 stock to be sold, the sale being through a “broker’s transaction” or a transaction directly
with a “market maker” and the number of shares of the stock being sold during any three-month
period not exceeding specified limitations. The Purchaser further acknowledges and understands
that the Company may not be satisfying the current public information requirement of Rule 144 at
the time the Purchaser wishes to sell the Securities and, if so, the Purchaser would be precluded
from selling the Securities under Rule 144 even if the one year minimum holding period has been
satisfied.
(e) Short Sales. The Purchaser represents, warrants and agrees that it has not
engaged in any short selling of the Company’s securities, or established or increased any “put
equivalent position” as defined in Rule 16(a)-1(h) under the Securities Exchange Act of 1934 with
respect to the Company’s securities, within the past 30 trading days.
ARTICLE III
Covenants
Section 3.1 Compliance. The Company shall use commercially reasonable efforts to (i)
cause its Common Stock to continue to be registered under Section 12(g) of the Exchange Act, file
all periodic reports thereunder and continue the listing or trading of its Common Stock on AMEX or
any successor market in good standing and (ii) to satisfy the current public information
requirement of Rule 144 at all times during which the Purchaser holds any Securities.
Section 3.2 Use of Proceeds. The Company shall apply the proceeds from the sale of
the Shares to ongoing operations, or for such other uses as determined by the Company’s Board of
Directors.
Section 3.3 Press Release. The Company and the Purchaser agree that the Company and
the Purchaser shall issue a joint press release announcing the transaction contemplated by this
Agreement prior to the opening of the financial markets in New York City on the business day
immediately after the date hereof.
Section 3.4 Short Selling. For so long as Purchaser owns any of the Shares, neither
the Purchaser nor any of its affiliates shall engage in any short selling of the Company’s
securities, or establish or increase any “put equivalent position” as defined in Rule 16(a)-1(h)
under the Securities Exchange Act of 1934 with respect to the Company’s securities.
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ARTICLE IV
Conditions
Section 4.1 Conditions Precedent to the Obligation of the Company to Sell the Shares.
The obligation hereunder of the Company to issue and sell the Shares to the Purchaser at the
Closing Date is subject to the satisfaction or waiver, at or before the Closing of the conditions
set forth below. These conditions are for the Company’s sole benefit and may be waived by the
Company at any time in its sole discretion.
(a) Accuracy of the Purchaser’s Representations and Warranties. The representations
and warranties of the Purchaser shall be true and correct in all material respects as of the date
when made and as of the Closing Date as though made at that time, except for representations and
warranties that are expressly made as of a particular date, which shall be true and correct in all
material respects as of such date.
(b) Performance by the Purchaser. The Purchaser shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Closing
Date.
(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) Approval of Additional Share Listing Application. The Company shall have received
approval from AMEX of an additional share listing application for the Shares.
(e) Regulatory Approvals. Purchaser and the Company shall have timely obtained from
each governmental entity all approvals, waivers and consents, necessary for consummation of or in
connection with the transactions contemplated by this Agreement, including, without limitation,
such approvals, waivers and consents as may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
(f) Execution of License Agreement. On the Closing Date, each party to the License
Agreement shall have delivered its signature to the License Agreement to the other party.
(g) Delivery of Purchase Price. The Purchase Price for the Shares shall have been
delivered to the Company on the Closing Date.
Section 4.2 Conditions Precedent to the Obligation of the Purchaser to Purchase the
Shares. The obligation hereunder of the Purchaser to purchase the Shares and consummate the
transactions contemplated by this Agreement is subject to the satisfaction or waiver, at or before
the Closing Date, of each of the conditions set forth below. These conditions are for the
Purchaser’s sole benefit and may be waived by the Purchaser at any time in their sole discretion.
8
(a) Accuracy of the Company’s Representations and Warranties. Each of the
representations and warranties of the Company in this Agreement shall be true and correct in all
material respects as of the Closing Date, except for representations and warranties that speak as
of a particular date, which shall be true and correct in all material respects as of such date.
(b) Performance by the Company. The Company shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing
Date.
(c) No Suspension, Etc. Trading in the Common Stock shall not have been suspended by
the Commission or AMEX. The Company shall have received approval from AMEX of an additional share
listing application for the Shares.
(d) No Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(e) Regulatory Approvals. Purchaser and the Company shall have timely obtained from
each governmental entity all approvals, waivers and consents, necessary for consummation of or in
connection with the transactions contemplated by this Agreement, including, without limitation,
such approvals, waivers and consents as may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
(f) No Proceedings or Litigation. No action, suit or proceeding before any arbitrator
or any governmental authority shall have been commenced, and no investigation by any governmental
authority shall have been threatened in writing against the Company or any Subsidiary, or any of
the officers, directors or affiliates of the Company or any Subsidiary seeking to restrain, prevent
or change the transactions contemplated by this Agreement, or seeking damages in connection with
such transactions.
(g) Execution of License Agreement. On the Closing Date, each party shall have
delivered its signature to the License Agreement to the other party and the license granted
thereunder shall be fully effective.
(h) Shares. At the Closing, the Company shall have delivered to the Purchaser a duly
executed certificate representing the Shares being acquired by the Purchaser at the Closing.
(i) Execution of Rights Agreement. On the Closing Date, each party shall have
delivered its signature to the Rights Agreement to the other party, and such agreement shall be in
full force and effect as of such date.
(j) Officer’s Certificate. On the Closing Date, the Company shall have delivered to
the Purchaser a certificate signed by an executive officer on behalf of the Company (the
“Officer’s Certificate”), dated as of the Closing Date, confirming the accuracy of the
Company’s representations, warranties and covenants as of the Closing Date and confirming the
9
compliance by the Company with the conditions precedent set forth in paragraphs (a) and (b) of
this Section 4.2 as of the Closing Date, provided, however, that any inaccuracies in such
representations and warranties identified on such Officer’s Certificate will be disregarded by the
Purchaser if the circumstances giving rise to all such inaccuracies (considered collectively) do
not constitute a Material Adverse Effect on the Company.
ARTICLE V
Miscellaneous
Section 5.1 Fees and Expenses. Each party shall pay the fees and expenses of its
advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such
party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement.
Section 5.2 Specific Performance; Consent to Jurisdiction.
(a) The Company and the Purchaser acknowledge and agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which any of them may be entitled by law or equity.
(b) The parties agree that this Agreement, and any disputes arising under this Agreement, will
be governed by and construed in accordance with the laws of the state of California, without giving
effect to any conflict of laws principles to the contrary. The parties irrevocably consent to
personal jurisdiction in the state and federal courts of the state of California, and the exclusive
venue for any such action shall be a state or federal court located in California. The Company and
the Purchaser consent to process being served in any such suit, action or proceeding by mailing a
copy thereof to such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 5.2 shall affect or limit any right to serve process in any other
manner permitted by law. The Company and the Purchaser hereby agree that the prevailing party in
any suit, action or proceeding arising out of or relating to this Agreement shall be entitled to
reimbursement for reasonable legal fees from the non-prevailing party.
Section 5.3 Entire Agreement; Amendment. This Agreement contains the entire
understanding and agreement of the parties with respect to the matters covered hereby and, except
as specifically set forth herein, neither the Company nor the Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters, and they supersede all prior
understandings and agreements with respect to said subject matter, all of which are merged herein.
No provision of this Agreement may be waived or amended other than by a written instrument signed
by the Company and the Purchaser.
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Section 5.4 Notices. Any notice, demand, request, waiver or other communication
required or permitted to be given hereunder shall be in writing and shall be effective (a) upon
delivery by telecopy or facsimile at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be received), or the first
business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second business day following the
date of mailing by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for such communications
shall be:
If to the Company:
|
Halozyme Therapeutics, Inc. | |
| 00000 Xxxxxxxx Xxxxxx Xxxx | ||
| Xxxxx 00 | ||
| Xxx Xxxxx, XX 00000 | ||
| Attention: President and Chief Executive Officer | ||
| Tel. No.: (000) 000-0000 | ||
| Fax No.: (000) 000-0000 | ||
with copies (which copies
shall not constitute notice
to the Company) to:
|
DLA Piper US LLP | |
| 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000 | ||
| Xxx Xxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxx Xxxx | ||
| Tel. No.: (000) 000-0000 | ||
| Fax No.: (000) 000-0000 | ||
| If to the Purchaser: | ||
| Roche Finance Ltd | ||
| Xxxxxxxxxxxxxxxxx 000 | ||
| XX-0000 | ||
| Xxxxx, Xxxxxxxxxxx | ||
| Attn: CFD | ||
| Tel No. 000 00 00 000 0000 | ||
| Fax No. 000 00 00 000 0000 | ||
with copies (which copies
shall not constitute notice
to the Purchaser ) to:
|
Xxxxxxxx-Xx Xxxxx Inc. | |
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxxxxx, Xxx Xxxxxx 00000-0000 | ||
| Attention: General Counsel | ||
| Tel. No.: 000-000-0000 | ||
| Fax No.: 000-000-0000 |
Any party hereto may from time to time change its address for notices by giving written notice
of such changed address to the other party hereto.
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Section 5.5 Waivers. No waiver by either party of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair the exercise of any
such right accruing to it thereafter.
Section 5.6 Headings. The article, section and subsection headings in this Agreement
are for convenience only and shall not constitute a part of this Agreement for any other purpose
and shall not be deemed to limit or affect any of the provisions hereof.
Section 5.7 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and assigns. After the Closing, the assignment by
a party to this Agreement of any rights hereunder shall not affect the obligations of such party
under this Agreement.
Section 5.8 No Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other person.
Section 5.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with the same force and
effect as if such facsimile signature were the original thereof.
Section 5.10 Severability. The provisions of this Agreement are severable and, in the
event that any court of competent jurisdiction shall determine that any one or more of the
provisions or part of the provisions contained in this Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of this Agreement and
this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that such provisions
would be valid, legal and enforceable to the maximum extent possible.
Section 5.11 Further Assurances. From and after the date of this Agreement, upon the
request of the Purchaser or the Company, the Company and the Purchaser shall execute and deliver
such instruments, documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be duly
executed by their respective authorized officers as of the date first above written.
| HALOZYME THERAPEUTICS, INC. |
||||
| By: | /s/ Xxxxxxxx Xxx | |||
| Name: | Xxxxxxxx Xxx | |||
| Title: | President and Chief Executive Officer | |||
| ROCHE FINANCE LTD |
||||
| By: | /s/ Xxxxxxx | |||
| Name: | Xxxxxxx | |||
| Title: | Authorized Signator | |||
| By: | /s/ Kradenmann | |||
| Name: | Kradenmann | |||
| Title: | Authorized Signator | |||
EXHIBIT A
Registration Rights Agreement
