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EXHIBIT 10.9
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83
AND 230.406 * INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST THAT IS FILED SEPARATELY WITH THE COMMISSION
TERMINATION AND REDEMPTION AGREEMENT
TERMINATION AND REDEMPTION AGREEMENT (the "Agreement") effective June
28, 1996 (the "Effective Date") by and between Amgen Inc., a corporation
organized under the laws of Delaware ("Amgen") with principal offices located at
Amgen Center, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 and Alanex Corporation, a
corporation organized under the laws of California ("Alanex") with principal
offices located at 0000 Xxxxxxx Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
A. Amgen and Alanex entered into a Research and License Agreement
dated April 1, 1994 as amended as of November 8, 1994, as of January 1, 1995 and
as of April 5, 1995 (the "Research Agreement").
B. Amgen and Alanex entered into Series A Preferred Stock Purchase
Agreement dated April 1, 1994 (the "Series A Agreement") pursuant to which Amgen
purchased 2,978,182 shares of Alanex Series A Convertible Preferred Stock (the
"Amgen Shares").
C. Alanex issued to Amgen a Warrant dated April 1, 1994 to purchase
703,636 shares of Alanex Common Stock (the "Prior Warrant").
D. Amgen and Alanex now wish to terminate the Research Programs (as
defined in the Research Agreement) and in full and complete satisfaction of all
of Amgen's and Alanex's remaining obligations under the Research Agreement, the
Series A Agreement and the Prior Warrant, Amgen will (i) pay to Alanex six
hundred thousand dollars ($600,000), (ii) extend to Alanex the option to borrow
from Amgen an amount not to exceed one million dollars ($1,000,000) pursuant
to the terms and conditions set forth herein and (iii) submit the Prior Warrant
to Alanex for cancellation; and Alanex will (i) redeem the shares of Alanex
Series A Convertible Preferred Stock owned by Amgen, and in consideration
therefore, (ii) deliver to Amgen a four million five hundred thousand dollar
($4,500,000)
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promissory note in the form attached hereto as Exhibit A (the "Alanex Promissory
Note") and (iii) issue to Amgen a warrant to purchase shares of Alanex Common
Stock in the form attached as Exhibit C (the "Warrant").
E. Alanex has further agreed to provide to Amgen samples of
certain Compounds (as defined below) and Amgen has agreed to pay to Alanex four
hundred thousand dollars ($400,000) in consideration of the receipt of such
samples. Amgen shall have non-exclusive rights to the Compounds but shall
otherwise have no rights to Alanex intellectual property.
NOW THEREFORE, in consideration of the foregoing and the
covenants and promises contained herein, the parties agree as follows:
1. DEFINITIONS. Unless otherwise provided, each capitalized term set forth
herein shall have the meaning assigned to it in the Research Agreement.
1.1 ALANEX PROMISSORY NOTE shall have the meaning set forth in
Recital D and shall mean any promissory note issued in conversion
thereof pursuant to Section 6 hereof.
1.2 ALANEX COLLABORATION TECHNOLOGY shall have the meaning set
forth in the Research Agreement.
1.3 AMGEN SHARES shall have the meaning set forth in Recital B.
1.4 CHEMICAL INFORMATION shall have the meaning set forth in
Section 4 hereof.
1.5 CLOSING shall mean the closing of the Amgen Share
redemption and Alanex Promissory Note and Warrant issuance.
1.6 CLOSING DATE shall mean the date of the Closing determined
in accordance with Section 3.6 hereof.
1.7 COMPOUNDS shall have the meaning set forth in the Research
Agreement.
1.8 DEFAULT shall mean the occurrence of any of the following:
(i) Alanex shall have failed to observe or perform any Alanex covenant
set forth herein, (ii) any representation of Alanex set forth herein
shall prove to have been incorrect when made, (iii) Alanex shall fail to
pay when due any amount owing under the Alanex Promissory Note (or shall
have
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failed to convert the Alanex Promissory Note pursuant to Section 6) or
Option Note within fifteen (15) days after notice thereof from Amgen, or
(iv) Alanex shall commence a voluntary case or shall have an involuntary
case or proceeding commenced against it seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a receiver, trustee, and in the event of
an involuntary case or proceeding, such case or proceeding remains
undismissed, unstayed and in effect for more than sixty (60) days.
1.9 EFFECTIVE DATE shall mean the date set forth in the first
paragraph of this Agreement.
1.10 ELECTION PERIOD shall have the meaning set forth in
Section 5.1a hereof.
1.11 OPTION EXERCISE NOTICE shall have the meaning set forth in
Section 5.1c hereof.
1.12 OPTION NOTE shall mean the Alanex promissory note in the
amount determined in accordance with Section 5.1b hereof in the form
attached hereto as Exhibit B.
1.13 OPTION NOTE CLOSING shall mean the closing of the Option
Note.
1.14 OPTION NOTE CLOSING DATE shall mean the date of the Option
Note Closing determined in accordance with Section 5.1d hereof.
1.15 PARTY shall mean Amgen or Alanex as the case may be and
PARTIES shall mean each of them.
1.16 PRIME RATE shall mean the prime interest rate charged by
Citibank, N.A., as announced or published (being the rate announced for
short-term unsecured loans); provided, however that such rate shall be
adjusted if necessary to make the amount of interest charged not violate
applicable usury laws.
1.17 PRINCIPAL AMOUNT shall have the meaning set forth in
Section 5.1b hereof.
1.18 PRIOR WARRANT shall have the meaning set forth in Recital
C.
1.19 PROCEEDS shall mean and include amounts received by reason
of (i) issuance of any equity or debt securities or securities
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exercisable for or into equity or debt securities, (ii) payments under
technology license agreements, (iii) payments under corporate alliances
or corporate partnering arrangements, (iv) payments for the sale of
assets or property and (v) payments or draws under any lines of credit.
Notwithstanding the foregoing, in no event will Proceeds include amounts
paid to Alanex which are reasonably allocated to the funding of the
conduct of specific research projects by Alanex on behalf of a corporate
sponsor, partner or other third party and which amounts are reasonable
and customary in the industry for the performance of similar research
activities.
1.20 RESEARCH AGREEMENT shall have the meaning set forth in
Recital A.
1.21 SAMPLES shall have the meaning set forth in Section 4
hereof.
1.22 SERIES A AGREEMENT shall have the meaning set forth in
Recital B.
1.23 WARRANT shall have the meaning set forth in Recital D.
1.24 WARRANT SHARES shall mean the shares of Alanex
Common Stock issuable upon exercise of the Warrant.
2. WAIVER; TERMINATION; REVERSION OF LICENSES. Effective as of the Closing
Date:
2.1 WAIVER. The Parties hereby waive the three (3) year
minimum term for the Research Programs as set forth in Section 4.9 of
the Research Agreement.
2.2 TERMINATION. The Research Programs are hereby terminated
in accordance with Section 4.9 of the Research Agreement. The Research
Agreement is hereby terminated in accordance with Section 14.1 thereof.
The Series A Agreement and the Prior Warrant are hereby terminated.
Amgen and Alanex agree that the April 1, 1996 payment made by Amgen to
Alanex of six hundred thousand dollars ($600,000) for Research Program
Funding shall be full and complete satisfaction of all Amgen obligations
pursuant to the Research Agreement.
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2.3 REVERSION OF LICENSES. All license grants, options and
other rights granted to either party in Article 5 of the Research
Agreement hereby revert to the granting party.
3. CLOSING
3.1 REDEMPTION. Alanex agrees to redeem from Amgen and Amgen
agrees to submit for redemption by Alanex, the Amgen Shares.
3.2 WARRANTS. In consideration for the redemption of the
Amgen Shares and other good and valuable consideration set forth herein
(i) the Prior Warrant shall terminate and Amgen shall have no claims of
any nature to the capital stock of Alanex except as provided under the
terms of the Warrant and (ii) Alanex agrees to issue to Amgen the
Warrant.
3.3 ALANEX PROMISSORY NOTE. In consideration for the
redemption of the Amgen Shares, Alanex agrees to issue to Amgen the
Alanex Promissory Note in principal amount of four million five hundred
thousand dollars ($4,500,000). The Parties agree that the value of the
Warrant plus the principal amount of the Alanex Promissory Note is
substantially equivalent to the value of the Amgen Shares.
3.4 REPRESENTATIONS AND WARRANTIES. The Parties represent and
warrant as set forth below:
a. Shares. Amgen represents and warrants that it has
good title, free of any lien or right of any third party, to the
Amgen Shares to be redeemed.
b. Warrant. Alanex represents and warrants that the
Warrant, when delivered, will be fully paid and duly issued.
c. Warrant Shares. Alanex represents and warrants that
the Warrant Shares have been duly authorized and reserved for
issuance upon exercise of the Warrant, will be duly and validly
issued, fully paid and non-assessable and not subject to
preemptive or other similar rights and will be free, at the time
of issuance, of all restrictions on transfer subject to
restrictions on transfer imposed by applicable federal and state
securities laws.
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d. Organization, Standing and Corporate Power and Authority.
Each Party represents and warrants to the other that it is a
corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has the full
corporate power and authority to execute, deliver and perform this
Agreement. Alanex represents and warrants that it has the full
corporate power and authority to execute, deliver and perform its
obligations under the Alanex Promissory Note and the Warrant.
e. Creditors of Alanex. Alanex represents and warrants that
attached hereto as Schedule 1 is a complete, accurate and current list
of all of its creditors to whom it is indebted in excess of $25,000.
f. Corporate Authorization; Noncontravention. Alanex represents
and warrants that the execution, delivery and performance of this
Agreement and the Alanex Promissory Note and Warrant have been duly
authorized by all necessary corporate action by Alanex. Alanex
represents and warrants that the execution, delivery and performance of
this Agreement and the Alanex Promissory Note and Warrant, including
without limitation the issuance and delivery of the Alanex Promissory
Note and the issuance and sale of the Warrant and the Warrant Shares,
do not violate in any material respect any provision of law and do not
conflict in any material respect with or result in a breach or default
under articles of incorporation or bylaws of Alanex or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon Alanex. Amgen represents and warrants that the execution,
delivery and performance of this Agreement has been duly authorized by
all necessary corporate action by Amgen. Amgen represents and warrants
that the execution, delivery and performance of this Agreement do not
violate in any material respect any provision of law and do not
conflict in any material respect with or result in a breach or default
under any provision of applicable law or regulation or the certificate
of incorporation or
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by-laws of Amgen or of any agreement, judgment, injunction, order,
decree or other instrument binding upon Amgen.
g. Binding Effect. Alanex represents and warrants that this
Agreement has been duly executed and delivered and constitutes a valid
and binding agreement of Alanex enforceable in accordance with its
terms, subject to bankruptcy or equitable laws that might affect the
enforceability thereof. Alanex represents and warrants that the Alanex
Promissory Note and Warrant, when executed and delivered in accordance
with the terms hereof, will have been duly executed and delivered and
will constitute a valid and binding agreement of Alanex, subject to
bankruptcy or equitable laws that might affect the enforceability
thereof. Amgen represents and warrants that this Agreement constitutes
a valid and binding agreement of Amgen enforceable in accordance with
its terms, subject to bankruptcy or equitable laws that might affect
the enforceability thereof.
3.5 CONDITIONS TO CLOSING. The Parties' obligation to redeem the
Amgen Shares in exchange for the Alanex Promissory Note and Warrant shall
be subject to satisfaction of the following conditions (i) the
representations and warranties of each Party shall be true and correct,
(ii) immediately before and after such redemption and exchange no Default
shall have occurred, (iii) Amgen shall have delivered to Alanex the
certificate or certificates representing the Amgen Shares being redeemed,
duly assigned and a duly executed counterpart of this Agreement and (iv)
Alanex shall have delivered to Amgen, (a) the Warrant duly executed, (b)
the Alanex Promissory Note duly executed, (c) a duly executed counterpart
of this Agreement, (d) an opinion of counsel substantially in the form
attached hereto as Exhibit D, and (e) written consents satisfactory to
Amgen to the transactions contemplated by this Agreement, the Alanex
Promissory Note, the Warrant and the Option Note from all existing
creditors of Alanex to whom Alanex is indebted in excess of $25,000.
3.6 CLOSING DATE. The Closing shall take place at 10:00 a.m. on the
tenth day after the Effective Date at the offices of Alanex at 3550
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*CONFIDENTIAL TREATMENT REQUESTED
General Atomics Court, San Diego, California, or such other time and place
as the Parties may agree.
4. COMPOUNDS. The Alanex Collaboration Technology developed under the
Research Agreement includes approximately ******************** Compounds. On or
before October 28, 1996, Alanex will provide to Amgen samples of each Compound
included in the Alanex Collaboration Technology (the "Samples"). The Samples
will be provided by Alanex to Amgen in a microtiter plate format consisting of
individual aliquots containing no less than five milligrams (5 mg) of each
Compound in one hundred percent (100%) dimelthysulfoxide at minus 20 degrees
Centigrade (-20 degrees C). Chemical information and chemical structures for
each Compound delivered to Amgen in an electronic chemically intelligent format
will be provided with the Samples (the "Chemical Information"). Upon Amgen's
receipt of the Samples and Chemical Information, Amgen will pay to Alanex, four
hundred thousand dollars ($400,000). Amgen shall have non-exclusive rights to
the Compounds but shall otherwise have no rights to Alanex intellectual
property.
5. OPTION NOTE FUNDING.
5.1 OPTION NOTE. In consideration of the matters described in Section
2 hereof, Amgen agrees to extend to Alanex the option to borrow from Amgen
an amount not to exceed the Principal Amount (as hereinafter defined)
pursuant to the following terms and conditions:
a. Exercise. Alanex shall use its best efforts to obtain third
party financing(s) for its present and future operations prior to
December 1, 1996. If after using such best efforts Alanex is unable to
obtain from such third party or parties Proceeds in an aggregate of one
million dollars ($1,000,000) or more on commercially reasonable terms
(taking into account Alanex's current financial condition and need for
such financing), then Alanex may elect to borrow the Principal Amount
from Amgen at any one time between December 1, 1996 and January 15,
1997 (the "Election Period"). Prior to delivery by Amgen of the
Principal Amount,
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Alanex shall issue and deliver to Amgen the Option Note evidencing such
indebtedness.
b. Principal Amount, Interest and Term. The principal amount of
the Option Note (the "Principal Amount") shall be an amount elected by
Alanex not to exceed one million dollars ($1,000,000), which amount
shall be reduced by the aggregate amount of all Proceeds received by
Alanex between the Effective Date and the Option Note Closing Date. The
Option Note shall bear interest at the Prime Rate effective on the
Option Note Closing Date. The Option Note shall have a term of three
(3) years from the Option Note Closing Date, subject to acceleration as
provided in Section 7 hereof.
c. Notice. Upon Alanex's election to borrow the Principal Amount
from Amgen, Alanex will provide to Amgen during the Election Period
written notice (the "Option Exercise Notice") of its election, the
Principal Amount and the aggregate amount of all Proceeds received by
it on or before the date of such notice. Alanex shall subsequently
provide Amgen with prompt written notice following its receipt of any
Proceeds between the date of the Option Exercise Notice and the Option
Note Closing Date.
d. Option Note Closing Date. The Option Note Closing will take
place at 10:00 a.m. on the tenth day after the date upon which Alanex
shall provide Amgen with the Option Exercise Notice at the offices of
Alanex at 3550 General Atomics Court, San Diego, California, or such
other time and place as the Parties may agree.
e. No Additional Funding. In order to induce Amgen to make
available the Option Note funding, Alanex agrees as follows: (i)
nothing contained herein or in any conduct of the representatives of
Amgen shall obligate Amgen or shall be construed as an obligation of or
commitment by Amgen to loan, advance or arrange to provide any
additional funds and Amgen shall not be obligated to loan, advance or
arrange to provide additional funds, (ii) Amgen shall have no
responsibility whatsoever for Alanex's financial condition or any
changes in Alanex's financial condition; and (iii) Alanex shall
indemnify and hold harmless Amgen and its affiliates and its and their
respective officers, directors, employees and representatives form any
and all
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damages (whether or not arising from third party claims) arising from
the Option Note funding or the Option Note.
5.2 REPRESENTATIONS AND WARRANTIES. Alanex will make the following
representations and warranties on and as of the Option Note Closing Date in
connection with issuance and delivery of the Option Note:
a. Organization, Standing and Corporate Power and Authority. It
is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the full
corporate power and authority to execute, deliver and perform its
obligations under the Option Note.
b. Corporate Authorization; Noncontravention. The execution,
delivery and performance of the Option Note have been duly authorized
by all necessary corporate action by Alanex. The execution, delivery
and performance of the Option Note do not violate in any material
respect any provision of law and do not conflict in any material
respect with or result in a breach or default under any provision of
applicable law or regulation or the certification of incorporation or
by-laws of Alanex or of any agreement, judgment, injunction, order,
decree or other instrument binding upon Alanex.
c. Binding Effect. The Option Note when executed and delivered
in accordance with the terms hereof, will have been duly executed and
delivered and will constitute a valid and binding agreement of Alanex
enforceable in accordance with its terms, subject to bankruptcy or
equitable laws that might affect the enforceability thereof.
d. Principal Amount. The Principal Amount does not exceed one
million dollars ($1,000,000) less the aggregate amount of all Proceeds
received by Alanex between the Effective Date and the Option Note
Closing Date.
e. Intention. Alanex has no present intention of filing for
protection from creditors under the federal bankruptcy laws.
5.3 COVENANTS. For so long as any amounts shall be due and payable
by Alanex to Amgen under the Option Note, Alanex shall:
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a. Use of Option Note Proceeds. Use the proceeds of the Option
Note only for general corporate purposes.
b. Preservation of Existence. Preserve and maintain its
existence in the jurisdiction of its incorporation and qualifications
and authorizations to transact business in each jurisdiction in which
the conduct of its business requires qualification.
c. Conduct of Business. Continue to engage in business of the
same general type as conducted by Alanex on the Effective Date.
d. Distributions. Make no dividend or distribution, whether from
capital, income or otherwise and whether in cash or property, or
purchase, redeem or otherwise acquire or retire for value any
securities of Alanex.
e. Affiliate Transactions. Make no transaction of any kind with
an affiliate of Alanex, unless the Board of Directors determines that
such transaction is fair to Alanex and is on terms at least as
favorable as could be obtained from an unaffiliated party.
f. Defaults. Notify Amgen within ten (10) days of any officer of
Alanex obtaining knowledge of any Default.
g. Notifications. Notify Amgen in writing within ten (10) days
of Alanex's receipt of or entitlement to any Proceeds.
5.4 CONDITIONS TO FUNDING. Amgen's obligation to provide the Option
Note funding on the Option Note Closing Date shall be subject to
satisfaction of the following conditions: (i) Amgen shall have received
Option Exercise Notice, (ii) the representations and warranties of Alanex
set forth herein shall be true as if made on such date, (iii) immediately
before and after such purchase no Default shall have occurred, (iv) Alanex
shall deliver to Amgen a duly executed Option Note and a certificate of the
Chief Executive Officer or Chief Financial Officer of Alanex certifying as
to the accuracy of the matters set forth in Section 5.2 as of the Option
Note Closing Date, and (v) Alanex shall have performed all of its
obligations under this Agreement.
5.5 REPAYMENT. Until all amounts due under the Option Note are repaid
in full, Alanex will pay to Amgen in repayment of such amounts, fifty
percent (50%) of all Proceeds received by Alanex after the
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Option Note Closing Date not later than ten (10) days following Alanex's
receipt of the same.
6. ALANEX PROMISSORY NOTE CONVERSION. If for any reason Alanex is unable to
repay the entire principal balance of the Alanex Promissory Note when due on
maturity (June 28, 0000), Xxxxxx may prior to the maturity date (upon written
notice provided to Amgen not later than ten (10) days prior to maturity),
convert the Alanex Promissory Note into an interest bearing term note
satisfactory in form to Amgen (Alanex shall in connection therewith also make
representations and warranties to Amgen satisfactory in form and substance to
Amgen) with principal and interest at the Prime Rate effective on the date of
conversion payable to Amgen in monthly installments over three (3) years using a
customary three (3) year amortization schedule.
7. DEFAULT. Upon a Default, all outstanding amounts payable under the Alanex
Promissory Note and the Option Note shall automatically become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Alanex, and Amgen may pursue any other remedy
available hereunder or under the Alanex Promissory Note, the Option Note or by
law.
8. MISCELLANEOUS PROVISIONS.
8.1 SURVIVAL OF REPRESENTATIONS, ETC. All representations and
warranties contained herein shall survive the execution and delivery of
this Agreement, the Warrant, the Alanex Promissory Note and the Option Note
and the closing of the transactions contemplated hereby and thereby
indefinitely without regard to any investigation made by any of the parties
hereto. All agreements and covenants contained herein shall survive
indefinitely until, by their respective terms, they are no longer
operative.
8.2 INDEMNIFICATION. Each Party shall, with respect to the
representations, warranties, covenants and agreements made by it herein
indemnify, defend and hold the other Party harmless against all liability,
together with all reasonable costs and expenses related thereto (including
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legal and accounting fees and expenses), arising from the untruth,
inaccuracy or breach of any such representations, warranties, covenants
or agreements.
8.3 FURTHER ACTIONS. Each Party agrees to execute, acknowledge
and deliver such further instruments, and to do all such other acts, as
may be necessary or appropriate in order to carry out the purposes and
intent of the Agreement.
8.4 CONFIDENTIALITY. The Parties agree that the material terms
of this Agreement shall be considered confidential information of both
Parties which shall not be disclosed by either party except on a need to
know basis or as required by law. The Parties will consult with one
another and agree on the provisions of this Agreement to be redacted in
any filings made by the Parties with the Securities and Exchange
Commission or as otherwise required by law.
8.5 NOTICES. All notices and other communications thereunder
shall be in writing and shall be deemed given if delivered personally,
or mailed by registered or certified mail (return receipt requested)
with postage prepaid, or sent by express courier service, to the parties
at the following address ( or at such address for a Party as shall be
specified by like notice):
If to Amgen, addressed to: Amgen Inc.
Amgen Center
0000 XxXxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel and Secretary
With a copy to: Vice President,
Product Licensing
If to Alanex, addressed to: Alanex Corporation
000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Dr. Xxxxxx Xxxxx
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8.6 AMENDMENT. No amendment modification or supplement of any
provision of this Agreement shall be valid or effective unless made in wiring
and signed by a duly authorized officer of each Party.
8.7 WAIVER. No provision of this Agreement shall be waived by any
act, omission or knowledge of any Party or its agents or employees except by an
instrument in writing expressly waiving such provision and signed by a duly
authorized officer of the waiving.
8.8 COUNTERPARTS. The Agreement may be executed simultaneously in any
number of counterparts, each of which need not contain the signature of more
than one Party but all such counterparts taken together shall constitute one and
the same agreement.
8.9 DESCRIPTIVE HEADINGS. The descriptive heading of this Agreement
are for convenience only, and shall be of no force or effect in construing or
interpreting any of the provisions of this Agreement.
8.10 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the State of California
and the Parties hereby consent to the jurisdiction of the California Courts,
both state and federal.
8.11 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
8.12 ENTIRE AGREEMENT OF THE PARTIES. This Agreement, together with
the Warrant, the Alanex Promissory Note and the Option Note, will constitute and
contain the complete, final and exclusive understanding and agreement of the
Parties and cancels and supersedes any and all other prior negotiations,
correspondence, understandings and agreements whether oral or written, between
the Parties respecting the subject matter hereof.
8.13 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by Alanex without the prior written
consent of Amgen. Subject to the foregoing, this Agreement shall
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be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
AMGEN INC.
By: /s/ Illegible
-------------------------------
Title: SENIOR VICE PRESIDENT
-----------------------------
ALANEX CORPORATION
By: /s/ XXXXXX X. XXXXX
--------------------------------
Title: PRESIDENT & CEO
-----------------------------
EXHIBIT A - Alanex Promissory Note
EXHIBIT B - Option Note
EXHIBIT C - Warrant
EXHIBIT D - Form of Opinion of Counsel
Schedule 1 - Alanex Creditors
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EXHIBIT A
Submitted As Exhibit 10.11 to Registration Statement
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Exhibit B
PROMISSORY NOTE
$1,000,000 San Diego, California
1. FOR VALUE RECEIVED, the undersigned, ALANEX CORPORATION, (the
"Maker"), promises to pay to AMGEN INC., a Delaware corporation ("Lender"), or
place or places which the Lender may designate in writing from time to time, the
principal amount of One Million Dollars ($1,000,000) or such lesser amount as
may actually be advanced to Maker, with interest from the date of advancement on
the unpaid principal balance hereunder at the rate percent ( %) per annum
(on the basis of a 365-day year and the actual number of days elapsed). the
unpaid principal balance of the obligation at any time shall be the total
amount advanced hereunder less the amount of principal repayments made by or
for Maker hereunder. Lender shall undertake to endorse hereon the amount of the
principal advance, repayments and outstanding balances from time to time;
provided, that any failure to make such notation or endorsement shall not affect
Maker's continuing obligations under this Note. In no event shall such
interest be charged under this Note which would violate any applicable usury
law. The principal amount under this Note together with all accrued and unpaid
interest thereon, plus any other amounts then owing pursuant to this Note,
shall be due and payable in full on , (the "Maturity Date") without
notice and without the need for any action or election by Lender; provided,
however, that: (a) if such date is not a normal business day, such payment
shall not be due until the first business day thereafter and (b) upon a Default
(as defined in that certain Termination and Redemption Agreement between Maker
and Lender effective as of June , 1996 (the "Agreement")) all such amounts
shall automatically become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Maker. All accrued and unpaid interest shall be due and payable in arrears in
monthly installments commencing on and continuing
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thereafter on the same numerical day of each subsequent calendar month, except
as otherwise provided in clauses (a) and (b) of the preceding sentence.
2. Each payment under this note shall first be credited against
accrued and unpaid interest, and any remainder shall be credited against
principal. Any prepayment shall be without penalty except that interest shall
be paid to the date of payment on the principal amount then outstanding.
3. Principal and interest shall be payable in lawful money of the
United States of America by check hand delivered to Lender or by federal funds
wire upon Lender's request, in which case applicable wiring instructions will
be provided.
4. If default occurs with respect to any payment due under this Note,
including, without limitation, failure to pay any principal and accrued
interest when due: (i) interest shall thereafter accrue on the entire unpaid
principal balance hereunder at the same rate as that set forth hereinabove (on
the basis of a 365-day year and the actual number of days elapsed); (ii) Maker
promises to pay all costs and expenses, including attorneys' fees, incurred by
the holder hereof in collecting or attempting to collect the indebtedness under
this Note, whether or not any action or proceeding is commenced; and (iii)
Maker hereby waives the right to plead any and all statutes of limitation as a
defense to a demand hereunder to the full extent permitted by law.
5. None of the provisions hereof and none of the Lender's rights or
remedies hereunder on account of past or future defaults shall be deemed to
have been waived by the Lender's acceptance of any past due installments or by
any indulgence granted by the Lender to Maker.
6. Maker hereby waives presentment, demand, protest and notice thereof
or of dishonor, and agrees that it shall remain liable for all amounts due
hereunder notwithstanding any extension of time or change in the terms of
payment of this Note granted by any holder hereof or any delay or failure by
the holder hereof to exercise any rights under this Note or the Agreement.
-2-
19
7. This Note shall be governed by and construed in accordance with the
laws of the State of California.
8. Maker acknowledges, represents and agrees that: (a) this Note
evidences indebtedness of Maker due Lender as a result of a loan (the "Loan")
in the aggregate principal amount of One Million Dollars ($1,000,000) or such
lesser aggregate principal amount as may actually be advanced to Maker by
Lender on the date hereof pursuant to the terms of Section 5 of the Agreement;
(b) nothing contained herein, in the Agreement or in any conduct of
representatives of Lender shall obligate Lender or shall be construed as an
obligation of or commitment by Lender to loan, advance, or arrange to provide
any additional funds to Maker; (c) the representations and warranties made by
Maker to Lender as of the date hereof pursuant to Section 5 of the Agreement
are true, complete and correct as of the date hereof; (d) Lender shall have no
responsibility whatsoever for Maker's financial condition or any changes in
Maker's financial condition; and (e) Maker shall indemnify and hold Lender and
its affiliates and its and their respective officers, directors, employees and
representatives harmless from any and all damages (whether or not arising out
of third party claims) arising from this Note or the Loan.
9. Until the unpaid principal and interest is repaid in full, Maker
hereby agrees to repay sums due under this Note (including accrued and unpaid
interest and principal, without any need for Lender to demand repayment) at any
and all such times as Maker receives Proceeds (as defined in the Agreement), by
an amount equal to fifty percent (50%) of all such Proceeds received. Such
amounts shall be paid by Maker to Lender not later than ten (10) days following
Maker's receipt of the same.
10. Maker represents, warrants and covenants to Lender that the
proceeds of the Loan will be used by Maker only as provided in Section 5 of the
Agreement.
-3-
20
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed the
day and year first above written.
ALANEX CORPORATION,
a California corporation
By:_____________________________
Its: President
By:_____________________________
Its: Secretary
-4-
21
SCHEDULE
OF
ADVANCES, INTEREST AND PAYMENTS OF PRINCIPAL
Amount Amount of Unpaid Notation
of Interest Principal Principal Made
Date Advance Rate Repaid Balance By
---- ------- ------- -------- -------- --------
22
EXHIBIT C
Submitted As Exhibit 10.10 to this Registration Statement
23
EXHIBIT D
[XXXXXX GODWARD LETTERHEAD]
June 28, 1996
Amgen, Inc.
0000 XxXxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Dear Sir or Madam:
We have acted as counsel for Alanex Corporation, a California corporation (the
"Company"), in connection with the issuance and sale of (i) a warrant to
purchase Four Hundred Fifty Thousand (450,000) shares of the Company's Common
Stock (the "New Warrant") and (ii) a promissory note in the principal amount of
Four Million Five Hundred Thousand ($4,500,000) dollars (the "Alanex Promissory
Note"), to Amgen Inc., a Delaware Corporation ("Amgen") (the Alanex Promissory
Note and the New Warrant, collectively, are referred to as the "Related
Agreements"), under the Termination and Redemption Agreement dated as of June
28, 1996 (the "Agreement"). We are rendering this opinion pursuant to Section
3.3(iv)(d) of the Agreement. Except as otherwise defined herein, capitalized
terms used but not defined herein have the respective meanings given to them in
the Agreement.
With your consent, in connection with this opinion, we have examined and relied
upon the representations and warranties as to factual matters contained in and
made pursuant to the Agreement by the parties thereto and upon originals or
copies certified to our satisfaction of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgement are necessary or
appropriate to enable us to render the opinion expressed below. Where we
render an opinion "to the best of our knowledge" or concerning an item "known
to us" or our opinion otherwise refers to our knowledge, it is based solely
upon (i) an inquiry of attorneys within this firm who perform legal services
for the Company, (ii) receipt of a certificate executed by an officer of the
Company covering such matters, and (iii) such other investigation, if any, that
we specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents (except the due authorization, execution and delivery
by the Company of the Agreement and the Related Agreements), where
authorization, execution and delivery are prerequisites to the effectiveness of
such documents. We have also assumed: that all individuals executing and
delivering
24
[COOLEY GODWARD LETTERHEAD]
Amgen Inc.
June 28, 1996
Page Two
documents had the legal capacity to so execute and deliver; that the Agreement
and the Related Agreements are obligations binding upon you; that you have filed
any required California franchise or income tax returns and have paid any
required California Franchise or income taxes; and that there are no extrinsic
agreements or understandings among the parties to the Agreement that would
modify or interpret the terms among of the Agreement or the Related Agreements
or the respective rights or obligations of the parties thereunder.
We have assumed that, at the Closing, Amgen will deliver to the Company
the certificate or certificates representing the Amgen Shares for redemption.
With regard to our opinion in paragraph 3 below, we express no opinion
regarding any law or governmental rule or regulation regarding maximum
allowable interest rates. In addition, in paragraph 3 below, with respect to
enforceability, we express no opinion as to the company's compliance with (i)
Chapter 5 of the California Corporations Code or (ii) the laws relating to
fraudulent conveyances. We have also, for purposes of paragraph 3 below,
assumed (i) the due authorization, execution and delivery by the creditors
named in the Agreement of the consent contemplated by Section 3.5 thereof (the
"Consents"), and (ii) the sufficiency of the consideration received by the
creditors therefor. Any such Consents by the named creditors in no way impair
any rights of any other creditor whose claims may arise from the payment to
Amgen of any amounts under the Alanex Promissory Note to the return of such
amounts.
With regard to our opinion in paragraph 5 below with respect to material
defaults under any material agreement known to us, we have relied solely upon
(i) a list supplied to us by the Company, a copy of which has been supplied to
you, of material agreements to which the Company is a party, or by which it is
bound, and (ii) an examination of the items on the foregoing list; we have made
no further investigation.
Our opinion is expressed only with respect to the federal laws of the
United States of America and the laws of the State of California. We express no
opinion as to whether the laws of any particular jurisdiction apply, and no
opinion to the extent that the laws of any jurisdiction other than those
identified above are applicable to the subject matter hereof. We are not
rendering any opinion as to compliance with any antifraud law, rule or
regulation relation to securities, or to the sale or issuance thereof.
On the basis of foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
25
[XXXXXX GODWARD LETTERHEAD]
Amgen Inc.
June 28, 1996
Page Three
1. The Company has been duly incorporated and is a validly existing corporation
in good standing under the laws of the State of California.
2. The Company has the requisite corporate power and authority to own or lease
its property and assets and to conduct its business as it is currently being
conducted and, to the best of our knowledge, is not required to qualify as a
foreign corporation to do business in any other jurisdiction in the United
States. The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Agreement and the Related
Agreements.
3. The Agreement and the Related Agreements have been duly and validly
authorized, executed and delivered by the Company and constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be
subject to or limited by (a) general equity principles and to limitations on
the availability of equitable relief including specific performance; (b) the
effect of applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting the rights of creditors; (c) limitations
on a borrower's ability to waive rights or benefits given by statute or
otherwise; (d) limitations on the right of a lender to impose added charges
for late payments or defaults by the borrower, where it is determined that
such charges bear no reasonable relation to the damage suffered by the
lender as a result of such late payments; and (e) the effect of California
Civil Code Section 1717 on the recovery of attorneys' fees in contract
actions. Any creditors executing the Consent are not entitled under Chapter
5 of the California Corporations Code to recovery of the fair market value
of the Related Agreements or amounts paid to Amgen under the Alanex
Promissory Note.
4. The Warrant Shares issuable upon exercise of the New Warrant have been duly
authorized and reserved for issuances by all necessary corporate action on
the part of the Company, and upon issuance and delivery against payment
therefor in accordance with the terms of the New Warrant, the Warrant Shares
will be duly and validly issued, outstanding, fully paid and nonassessable.
To the best of our knowledge, there are no options, warrants, conversion
privileges, preemptive rights or other rights presently
26
SCHEDULE 1
ALANEX CREDITORS
(AS OF JUNE 1, 1996)
INTEREST ORIGINAL
NAME OF LENDER REFERENCE DATE RATE DUE AMOUNT BALANCE
-------------- --------- ---- -------- --- -------- -------
BA EQUIPMENT LEASING #1347.1 7/1/91 8.50% 8/1/96 193,185 11,657
000 X. XXXXX XXXXXX
XXXX. 0000
XXXXXXX, XX 00000
XXXXXX XXXXXXX
CREDIT RISK OFFICER
(000) 000-0000
GENESSEE PROPERTIES, INC. N/A 5/1/95 11% 4/1/02 1,430,224 1,253,146
0000 XXXXXXX XXXXXXX XX.
XXX XXXXX, XX 00000
XXXX XXX, CONTROLLER
(000) 000-0000
XXXXXXX XXXXX 232-07A38 8/1/94 CP+2.95% 8/1/99 960,000 714,737
WCMA LOAN
(SEE BELOW)
XXXXXXX XXXXX BUSINESS 9406340101 8/1/96 CP+2.95% 8/1/96 240,000 80,000
FINANCIAL SERVICES --------- ---------
00 X. XXXXXX, 00XX XXXXX 2,823,409 2,038,552
XXXXXXX, XX 00000 --------- ---------
(000) 000-0000
LANDLORD:
GENERAL ATOMICS
0000 XXXXXXX XXXXXXX XX.
XXX XXXXX, XX 00000
XXXXXX XXXXX, FACILITIES DIR.
(000) 000-0000
