Exhibit 4.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), is dated as of August
18, 2002, by and among HILAL CAPITAL, L.P. ("Hilal Capital"), HILAL CAPITAL QP,
LP ("Hilal QP"), HILAL CAPITAL INTERNATIONAL LTD. ("HCI"), HILAL CAPITAL
ASSOCIATES LLC ("HCA"), Xx. Xxxxx Xxxxx ("Hilal"), Xx. Xxxx Xxxxx, Xx. Xxxxxx
Xxxxx, Xx. Xxxxx Xxxxx-Xxxxx, Estate of Xxxxx Xxxxx, Xxxxxxx Xxxxx 2000 Family
Trust, Xx. Xxxxxxx Xxxxx, Xxxxx Xxxxx-Xxxxx in custody for Xxxxxxxxx Xxxxx,
Xxxxx Xxxxx-Xxxxx in custody for Xxxxxxx Xxxx, and APPLIED MOLECULAR EVOLUTION,
INC., a Delaware corporation (the "Company" or the "Purchaser"). Hilal Capital,
Hilal QP, HCI, HCA, Hilal, Xx. Xxxx Xxxxx, Xx. Xxxxxx Xxxxx, Xx. Xxxxx
Xxxxx-Xxxxx, Estate of Xxxxx Xxxxx, Xxxxxxx Xxxxx 2000 Family Trust, Xx. Xxxxxxx
Xxxxx, Xxxxx Xxxxx-Xxxxx in custody for Xxxxxxxxx Xxxxx and Xxxxx Xxxxx-Xxxxx in
custody for Xxxxxxx Xxxx are hereinafter referred to individually as a "Seller,"
and collectively as, the "Sellers."
WHEREAS, the Sellers desire to sell, and the Purchaser desires to
purchase, shares of the Company's capital stock as herein described, on the
terms and conditions hereinafter set forth:
NOW, THEREFORE, it is agreed between the parties as follows:
1. (a) Subject to the terms and conditions of this Agreement, the
Sellers agrees to sell to the Purchaser at the Closing (as defined below), and
the Purchaser agrees to purchase from the Sellers at the Closing, that number of
shares of the Company's common stock, par value $0.001 per share, set forth
opposite such Seller's name on Annex A hereto (the "Shares") (1,873,111 Shares
in the aggregate), for a purchase price of $3.89 per share ($7,286,401.79 in the
aggregate). The Sellers and the Company represent, warrant, and covenant to each
other that there are no broker's fees or commissions to be paid in connection
with the transactions contemplated hereby.
(b) The purchase and sale of the Shares hereunder shall occur at the
offices of Pillsbury Winthrop LLP, 00 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx,
at 10:00 a.m. (P.S.T.) on Tuesday, August 20, 2002, or such other time and/or
place as the Purchaser and Hilal (on behalf of himself and each of the other
Sellers) shall agree in writing (the "Closing"). At the Closing, each of the
Sellers shall deliver to the Purchaser either (i) certificates representing the
Shares which the Purchaser is purchasing from such Seller, together with a stock
power duly executed or (ii) written evidence satisfactory to the Purchaser of
the Shares having been transferred to Equiserve Trust Company (150 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; Telephone: (000) 000-0000; Telefax: (781)
575-2149; Attention: Xx. Xxxxxxx Xxxxxxxx) ("Equiserve") for the account of the
Purchaser, in either case against delivery to each such Seller by the Purchaser
of a bank wire in the amount of the purchase price therefor payable to such
Seller's order.
2. Each of the Sellers covenants, represents and warrants to the Company
as follows:
(a) Such Seller will (i) cause certificates for the number of Shares to
be sold by such Seller hereunder to be delivered to the Company, endorsed in
blank or with blank stock powers duly executed (in each case, a "Stock Power"),
with a signature appropriately guaranteed or (ii) provide
written evidence satisfactory to the Purchaser of the Shares having been
transferred to Equiserve for the account of the Purchaser. Such Seller agrees to
furnish to the Company such other documentation which may be reasonably
necessary or appropriate to transfer record ownership of the such Seller's
Shares to the Company.
(b) This Agreement and the Stock Power have each been duly authorized,
executed and delivered by or on behalf of such Seller and, assuming due
authorization, execution and delivery by the Company, constitute the valid and
legally binding agreements of such Seller, enforceable against such Seller in
accordance with its terms.
(c) Such Seller has, and as of the Closing will have, valid and
marketable title to the Shares to be sold by such Seller free and clear of any
and all liens, claims, security interests or other encumbrances, including,
without limitation, any restriction on transfer.
(d) Such Seller has, and as of the Closing will have, full legal right,
power and authorization, and any approval required by law, to sell, assign,
transfer and deliver the Shares to be sold by such Seller in the manner provided
by this Agreement.
3. The Company represents and warrants to each of the Sellers as
follows:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of the Company and, assuming due authorization, execution and
delivery by each of the Sellers, constitutes the valid and legally binding
agreement of Company, enforceable against Company in accordance with its terms.
The Company has all requisite corporate power and authority to enter into and
perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by the
Company (i) do not contravene, violate, conflict with or result in any breach of
the terms of the Company's certificate of incorporation or by-laws; (ii) do not
breach or violate any applicable law, judgement, order, decree, permit, or
regulation; and (iii) do not contravene, violate, conflict with or result in any
breach of the terms or the creation of any lien under, any contract, or other
undertaking to which the Company is bound, or any order or decree relating to
the Company. No approval, consent, exemption, or authorization is required in
connection with the execution, delivery and performance by the Company of this
Agreement.
4. Each of the Sellers hereby irrevocably nominates, constitutes and
appoints Hilal as the agent and representative of the Sellers, to act in the
name, place and stead of the Sellers in connection with this Agreement and the
transactions contemplated hereby; and Hilal accepts such appointment. Each of
the Sellers hereby grants to Hilal full authority to execute, deliver,
acknowledge, certify and file on behalf of the Sellers any and all documents
(including any amendment of or waiver of rights under this Agreement) that Hilal
may, in his sole discretion, determine to be necessary, desirable or appropriate
for any purpose, in such form and containing such provisions as Hilal may, in
his sole discretion, determine to be appropriate including, without limitation,
the authority to receive notice of, determine, accept service of process,
contest, settle, arbitrate or make claims under this Agreement, and agrees to be
bound in all respects by any act or failure to act of Hilal in connection with
this Agreement and the transactions contemplated hereby. The Purchaser shall be
entitled to (a) deal exclusively with Hilal on all matters relating to the
Sellers under this Agreement and the transactions contemplated hereby and (b)
rely conclusively on any document executed on behalf of the
Sellers by Hilal, and on any other action taken on behalf of the Sellers by
Hilal, as being fully binding upon all of the Sellers.
5. The parties agree to execute such further instruments and to take
such further action as may reasonably be necessary to carry out the intent of
this Agreement.
6. Subject to the provisions of Section 4 hereof, any notice required or
permitted hereunder shall be given in writing and shall be deemed effectively
given upon the receipt, addressed to the other party hereto at his address
hereinafter shown below his signature or at such other address as such party may
designate by advance written notice to the other party hereto.
7. This Agreement shall inure and be binding upon the Company and each
of the Sellers, and their respective permitted successors and assigns. No waiver
of any breach or condition of this Agreement shall be deemed to be a waiver of
any other or subsequent breach or condition, whether of a like or different
nature.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without regard to its choice of laws
principles.
9. Subject to the provisions of Section 4 hereof, no modification of
this Agreement shall be valid unless made in writing and signed by the parties
hereto.
10. This Agreement constitutes the entire complete and final agreement
between the Company and each of the Sellers regarding the sale of the Shares
from the Sellers to the Company. Any and all prior agreements and negotiations
are merged herein.
11. This Agreement may be signed in one or more counterparts, which
together shall constitute one and the same instrument.
12. Irrespective of whether the Closing is effected, each of the parties
hereto shall pay all costs and expenses that each party respectively incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
APPLIED MOLECULAR EVOLUTION, INC., a
Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx, M.D., X.X.
---------------------------------------
Xxxxxxxx X. Xxxxx, M.D., X.X.
Chief Financial Officer
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
HILAL CAPITAL, LP
/s/ Xxxxx Xxxxx, M.D. By: /s/ Xxxxx Xxxxx, M.D.
------------------------------------- ------------------------------
Xx. Xxxxx Xxxxx, on behalf of Name: Xxxxx Xxxxx, M.D.
himself and each of Xx. Xxxx Xxxxx, Title: Managing Member of
Xx. Xxxxxx Xxxxx, Ms. Xxxxx General Partner
Hilal-Campo, Estate of Xxxxx Xxxxx, Address:
Xxxxxxx Xxxxx 2000 Family Trust,
Xx. Xxxxxxx Xxxxx, Xxxxx Xxxxx-Xxxxx
in custody for Xxxxxxxxx Xxxxx
and Xxxxx Xxxxx-Xxxxx in custody
for Xxxxxxx Xxxx.
Address:
HILAL CAPITAL QP, LP HILAL CAPITAL INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxx, M.D. By: /s/ Xxxxx Xxxxx, M.D.
------------------------------- ------------------------------
Name: Xxxxx Xxxxx, M.D. Name: Xxxxx Xxxxx, M.D.
Title: Managing Member of Title: Managing Member of
General Partner Investment Adviser
Address: Address:
HILAL CAPITAL ASSOCIATES LLC
By: /s/ Xxxxx Xxxxx, M.D.
-------------------------------
Name: Xxxxx Xxxxx, M.D.
Title: Managing Member
Address:
ANNEX A
SELLING STOCKHOLDERS
SELLER NUMBER OF SHARES
------ ----------------
Hilal Capital LP 185,555
Hilal Capital QP, LP 408,333
Hilal Capital International Ltd. 462,179
Hilal Capital Associates LLC 0
Xx. Xxxxx Xxxxx 606,666
Xx. Xxxx Xxxxx 61,111
Xx. Xxxxxx Xxxxx 34,156
Xx. Xxxxx Xxxxx-Xxxxx 23,333
Estate of Xxxxx Xxxxx 27,778
Xxxxxxx Xxxxx 2000 Family Trust 27,778
Xx. Xxxxxxx Xxxxx 27,778
Xxxxx Xxxxx-Xxxxx, in custody for Xxxxxxxxx Xxxxx 4,222
Xxxxx Xxxxx-Xxxxx, in custody for Xxxxxxx Xxxx 4,222
---------
Total 1,873,111
=========
A-1
