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EXHIBIT 10.6
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of September 7,
1995 by and between CombiChem, Inc., a California corporation (the "Company")
and Xxxx Xxxxxxx, an individual resident of the State of California (the
"Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Sale of Series C Preferred Shares. Subject to the terms and
conditions of this Agreement, the Purchaser hereby purchases, and the Company
hereby sells to the Purchaser, 8,065 shares of the Company's Series C Preferred
Stock (the "Shares") in consideration and for services previously rendered by
the Purchaser to the Company (the "Purchase Price"). The Purchaser and the
Company each agree that the consideration paid to the Company by the Purchaser
has a fair market value on the Closing Date of $5,000 in the form of services
rendered.
2. Closing. The purchase and sale of the Shares shall take place at the
offices of the Company, simultaneous with the execution of this Agreement, or at
such other place and time as the Company and the Purchaser shall mutually agree,
either orally or in writing (the "Closing"). At the Closing, subject to the
terms and conditions hereof, the Company shall deliver to the Purchaser a
certificate, registered in the name Purchaser designates by notice to the
Company, representing the Shares to be purchased by the Purchaser from the
Company, dated the date of the Closing.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
(a) Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
the Company's obligations under this Agreement, and for the authorization,
issuance, sale and delivery of the Shares has been taken or will be taken prior
to the Closing. This Agreement, when executed and delivered by the Company and
the Purchaser shall constitute a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors.
4. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows:
(a) Authorization. The Purchaser has the requisite legal power
and authority to enter into this Agreement and that this Agreement when executed
shall constitute a valid and legally binding obligation of the Purchaser.
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(b) Investment Intent. This Agreement is made with the Purchaser
in reliance upon his representation to the Company, which by its execution
hereof he confirms, that the Shares have been acquired with his own property for
investment for an indefinite period for his own account, not as a nominee or
agent, and not with a view to the sale or distribution of any part thereof, and
that Purchaser has no present intention of selling, granting participation in,
or otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that he does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participations, to such
person or to any third person, with respect to any of the Shares.
(c) Reliance Upon the Purchaser's Representations. The Purchaser
understands (i) that the Shares are not registered under the Securities Act of
1933, as amended (the "Securities Act") or qualified under the California
Corporate Securities Law of 1968, as amended (the "Law"), and (ii) that the
Shares are being issued to the Purchaser on the ground that the sale provided
for in this Agreement and the issuance of securities hereunder is exempt from
registration under the Securities Act pursuant to Section 4(2) thereof and/or
Regulation D promulgated thereunder and the exemption from qualification
provided by Section 25102(f) of the Law, and (iii) that the Company's reliance
on such exemptions is predicated on the Purchaser's representations set forth
herein. The Purchaser realizes that the basis for the exemptions may not be
present if, notwithstanding such representations, the Purchaser has in mind
merely acquiring the Shares for a fixed or determinable period in the future, or
for a market rise, or for sale if the market does not rise. The Purchaser does
not have any such intention. These exemptions only exempt the issuance of the
Shares to the Purchaser and not any sale or other disposition of the Shares or
any interest therein by the Purchaser.
(d) Restricted Securities. The Purchaser hereby confirms that the
Purchaser has been informed that the Shares are restricted securities under the
Securities Act and may not be resold or transferred unless the Shares are first
registered under the Federal securities laws or unless an exemption from such
registration is available. In addition, the Purchaser understands that any
resale or transfer must comply with applicable state securities laws.
Accordingly, the Purchaser hereby acknowledges that the Purchaser is prepared to
hold the Shares for an indefinite period, and that the Purchaser is familiar
with the provisions of Rule 144 of the Securities and Exchange Commission issued
under the Securities Act, and is aware that Rule 144 is not presently available
to exempt the sale of the Shares from the registration requirements of the
Securities Act.
(e) Receipt of Information. The Purchaser acknowledges that he
has received all the information he considers necessary or appropriate for
deciding whether to purchase the Shares. The Purchaser further represents that
he has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Shares and the
business, properties, prospects, and financial condition of the Company and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort
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or expense) necessary to verify the accuracy of any information furnished to
Purchaser or to which Purchaser had access.
(f) Investment Experience. In connection with representations
made herein, the Purchaser represents that he has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of his investment, has the ability to bear the economic risks of his
investment and has been furnished with and has had access to all of the
information he considers necessary or appropriate to evaluate the risks and
merits of an investment in the Shares, and he had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management.
(g) Limitations on Disposition. The Purchaser agrees that in no
event will he make a disposition of any of the Shares, unless and until (i) he
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and (ii) he shall have furnished the Company with an
opinion of counsel satisfactory to the Company to the effect that (a) such
disposition will not require registration of such Shares under the Securities
Act, or (b) that appropriate action necessary for compliance with the Securities
Act has been taken, or (iii) the Company shall have waived, expressly and in
writing, its rights under clauses (i) and (ii) of this subparagraph. The opinion
shall also indicate that the disposition is exempt from, in compliance with, or
qualified under all applicable state securities laws.
(h) Public Sale. The Purchaser agrees not to make, without the
prior written consent of the Company, any public offering or sale of the Shares,
even if permitted to do so pursuant to Rule 144(k) promulgated under the
Securities Act, until the earlier of (i) six months after the date on which the
Company effects its initial registered public offering pursuant to the
Securities Act or (ii) five years after the date of the Closing of this
Agreement.
(i) Legends. All certificates representing any shares of the
Company subject to the provisions of this Agreement shall have endorsed thereon
customary legends regarding:
(1) Restrictions on transfer under the Securities Act.
(2) Any legend required by state securities laws.
5. Market Stand-Off Agreement. The Purchaser hereby agrees that, during
the period of duration specified by the Company and an underwriter of common
stock or other securities of the Company, following the effective date of an
initial registration statement of the Company filed under the Securities Act, it
shall not, to the extent requested by the Company and such underwriter, directly
or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be
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similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided,
however, that:
(a) such agreement shall not exceed 180 days for the
first such registration statement of the Company which covers common stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering; and
(b) such agreement shall not exceed 90 days for any
subsequent registration statement of the Company which covers common stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering.
In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the Shares of the
Purchaser (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
6. Miscellaneous.
(a) Further Assurances. Each of the parties hereby agrees to
execute and deliver such other documents and to take such further actions as may
reasonably be requested by the other party in order to consummate the
transactions contemplated herein or to carry out the intent of this Agreement.
(b) Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery or
upon deposit in the United States Post Office, by registered or certified mail
with postage and fees prepaid, 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.
(c) Governing Law. This Agreement has been negotiated, executed
and delivered in the State of California. The parties hereto agree that all
questions pertaining to the validity and interpretation of this Agreement shall
be determined in accordance with the laws of the State of California.
(d) Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon the Purchaser, his successors and
assigns.
(e) Amendments and Waivers. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous understandings, written or oral. This Agreement may only
be amended with the written consent of the parties hereto, or the successors or
assigns of the foregoing, and no oral waiver or amendment shall be effective
under any circumstances whatsoever.
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(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same Agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
(g) Severable Provisions. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
(h) Separate Counsel. The Purchaser acknowledges and agrees that
Xxxxxxx, Xxxxxxx & Xxxxxxxx represents solely the Company and has not
represented his interests and that the Purchaser has been provided the
opportunity and encouraged to consult with counsel of the Purchaser's own
choosing with respect to this Agreement. The Purchaser certifies and
acknowledges that the Purchaser has carefully read all of the provisions of this
Agreement and that the Purchaser fully understands and shall fully and
faithfully comply with such provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
COMBICHEM, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxx
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Title: Chairman
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Address: 0000 Xxxxxx Xxxxx Xx
Xxx Xxxxx, Xxxxxxxxxx 00000
PURCHASER:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Address: 00000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
