Exhibit 10.36
STOCK AND WARRANT PURCHASE AGREEMENT
THIS STOCK AND WARRANT PURCHASE AGREEMENT (this "AGREEMENT") is dated as
FEBRUARY 25, 2004 and is made by and between deCODE genetics, Inc., a Delaware
corporation (the "SELLER") and Merck & Co., Inc., a New Jersey corporation (the
"PURCHASER").
PRELIMINARY STATEMENTS
A. The Purchaser and the Seller's wholly owned subsidiary, deCODE
genetics, ehf, are parties to that certain License and Research Collaboration
Agreement dated as of the date hereof (the "LICENSE AGREEMENT").
B. In connection with the execution of the License Agreement, the
Purchaser has agreed to acquire from the Seller, and the Seller has agreed to
sell to the Purchaser, the Securities (as hereinafter defined).
AGREEMENT
In consideration of the premises and the mutual promises hereinafter set
forth, the parties hereby agree as follows:
1. DEFINITIONS. All capitalized terms used in this Agreement shall
have the meanings assigned to them elsewhere in this Agreement or as specified
below:
"AGREEMENT" shall have the meaning set forth in the opening
paragraph hereof.
"CLOSINg" shall mean the closing of the sale to, and purchase by,
the Purchaser of the Securities.
"COMMISSION" shall mean the United States Securities and Exchange
Commission.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"MATERIAL ADVERSE EFFECT" shall mean any change or effect that,
individually or in the aggregate with all other such changes or effects, would
have a material adverse effect on the business, assets, results or operations,
or financial condition of such party and its subsidiaries taken as a whole or
materially impair the ability of such party to perform its obligations under
this Agreement.
"PERSON" shall mean and include an individual, a corporation, a
partnership, a trust, an incorporated organization, a limited liability company,
a joint stock corporation, a joint venture, a government or any department,
agency or political subdivision thereof and any other entity.
"PURCHASE PRICE" shall have the meaning set forth in Section 2.2.
"PURCHASER" shall have the meaning set forth in the opening
paragraph hereof.
"REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean (1) the Shares; (2) the
Warrant Shares, and (3) any securities issued or issuable with respect to the
Shares or Warrant Shares by way of a stock dividend or stock split or in
connection with a combination of shares, reclassification, recapitalization,
merger or consolidation or reorganization; PROVIDED, HOWEVER, that such shares
of common stock or other securities shall cease to be Registrable Securities if
and when they (i) have been sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction; (ii) have been sold
in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect to such common stock
are removed upon the consummation of such sale; or (iii) can be sold in any
three month period (or any other relevant period under any amendment to Rule 144
made subsequent to the date hereof) pursuant to Rule 144 without regard to any
manner of sale or volume limitations.
"RULE 144" shall mean Rule 144 promulgated by the Commission
pursuant to the Securities Act or any similar successor rule.
"SECURITIES" shall mean the Shares and the Warrant.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect from time to time.
"SELLER" shall have the meaning set forth in the opening paragraph
hereof.
"SHARES" shall mean 689,703 shares of the Seller's common stock,
par value $.001.
"UNDERWRITTEN OFFERING" shall mean a distribution, registered
pursuant to the Securities Act, in which securities of the Seller are sold to
the public through one or more underwriters.
"WARRANT" shall mean a warrant to purchase 1,724,257 shares of the
Seller's common stock for an exercise price of $29.00 per share, in
substantially the form as attached hereto as Exhibit A.
"WARRANT SHARES" shall mean the shares of the Seller's common
stock underlying the Warrant.
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2. SALE AND PURCHASE OF SECURITIES.
2.1 AGREEMENT TO PURCHASE AND SELL. Upon the terms and subject
to the conditions set forth in this Agreement and upon the representations and
warranties made herein, the Seller is hereby selling to the Purchaser, and the
Purchaser is hereby purchasing from the Seller, the Securities.
2.2 PURCHASE PRICE. The aggregate purchase price for the
Securities is $10,000,000 (the "PURCHASE PRICE").
2.3 CLOSING. The Closing is occurring simultaneously herewith
at the offices of Xxxxxxx & Xxx, P.C., 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 on the date hereof.
2.4 CLOSING ACTIONS. At the Closing, (i) the Purchaser is
delivering to the Seller the Purchase Price by wire transfer to such account
previously specified by the Seller, and (ii) the Seller is delivering to the
Purchaser a certificate representing the Shares and a certificate evidencing the
Warrant.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Purchaser as follows:
3.1 ORGANIZATION. The Seller is (i) a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (ii) has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
businesses as presently conducted, and (iii) is duly qualified and in good
standing to do business in all of the jurisdictions in which the conduct of the
Seller's business or its ownership, leasing or operation of property requires
such qualification and where the absence of such qualification would have a
Material Adverse Effect on the Seller.
3.2 AUTHORIZATION. The Seller has full legal power and
authority to enter into and perform this Agreement. This Agreement has been duly
and validly executed and delivered by the Seller and constitutes the valid and
binding obligation of the Seller, enforceable in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors' rights generally and to general principles of
equity. The Shares have been duly authorized, are duly and validly issued, fully
paid and non-assessable, and are free of any liens or encumbrances. The Warrant
is duly and validly issued and free of any liens or encumbrances. The Warrant
Shares have been duly and validly reserved for issuance.
3.3 CAPITALIZATION. The authorized capital stock of the
Seller is (i) 100,000,000 shares of common stock, par value $.001, of which
53,736,460 were outstanding as of December 31, 2003 and (ii) 6,716,666 shares of
preferred stock, par value $.001, of which no shares are outstanding. The Seller
has reserved 1,400,467 of common stock for issuance upon outstanding warrants
(exclusive of the Warrant) and 4,108,331 shares of common stock for
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issuance to employees, consultants, officers or directors pursuant to its 1996
Equity Incentive Plan, as amended, and its 2002 Equity Incentive Plan.
3.4 DISCLOSURE. The registration statements, reports and proxy
statements filed by the Seller with the Commission, including the financial
statements contained therein (collectively, the "SEC Reports"), complied, as of
their respective dates, in all material respects with the requirements of the
Securities Act and the Exchange Act, and did not, as of their respective dates,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein
not misleading.
3.5 NO MATERIAL ADVERSE CHANGE. Since December 31, 2003, there
has been no Material Adverse Effect on the financial condition, results of
operations, assets, liabilities or business of the Seller and its subsidiaries,
taken as a whole, other than those generally affecting Persons in the Seller's
business, those generally affecting the economy, and those resulting from
changes in general economic, political or financial conditions.
3.6 NO CONSENTS OR APPROVALS REQUIRED. No consents, approvals
or authorization of designation, declaration or filing with any governmental or
regulatory authority, agency, commission, body or other governmental entity or
by any court or other third party is required for the valid authorization,
execution, delivery and performance by the Seller of this Agreement or for the
valid sale and delivery of the Securities.
3.7 LISTING. The Seller has been approved for listing on, and
no notification of the issuance of the Securities is required to be given to,
the Nasdaq National Market.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Seller as follows:
4.1 AUTHORIZATION OF AGREEMENT. The Purchaser has full legal
power and authority to enter into and perform this Agreement. This Agreement has
been duly and validly executed and delivered by the Purchaser and constitutes
the valid and binding obligation of the Purchaser, enforceable in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights generally and to general
principles of equity.
4.2 ACCREDITED PURCHASER. The Purchaser is an accredited
investor within the meaning of Rule 501(a) promulgated under the Securities Act.
The Securities are being purchased or otherwise acquired for its own account and
not with the view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act. It understands
that the Securities have not been registered under the Securities Act or any
applicable state laws by reason of their issuance or contemplated issuance in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act and such laws, and that the reliance of the Seller and others
upon this exemption is predicated in part upon this representation and warranty.
It further understands that the Securities may not be transferred or resold
without (a) registration under the Securities Act and any applicable state
securities
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laws, or (b) an exemption from the requirements of the Securities Act and
applicable state securities laws.
4.3 INVESTMENT EVALUATION. The Purchaser has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the investment to be made hereunder.
4.4 LEGEND. The Purchaser understands that the certificates for
the Shares and the Warrant bear a legend in substantially the following form in
addition to any other legends that may be required under any other documents to
which the Purchaser is a party.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE
SECURITIES ACT OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES ACTS
OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER,
SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION OR IS IN ACCORDANCE
WITH THE PROVISIONS OF REGULATION S UNDER THE ACT. HEDGING
TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE ACT.
4.5 BUSINESS AFFAIRS. The Purchaser is aware of the Seller's
business affairs and financial condition and has acquired sufficient information
about the Seller and has had such access to Seller's books and records and
Seller's executive offices as it deems necessary to reach an informed and
knowledgeable decision to acquire the Securities. The Purchaser recognizes that
investment in the Securities involves a number of significant risks.
5. DEMAND REGISTRATION RIGHTS; PROCEDURES.
5.1 GRANT OF DEMAND REGISTRATION RIGHTS. Subject to the terms
of this Agreement, at any time and from time to time, the Purchaser shall be
entitled to request registration under the Securities Act of at least fifty
percent (50%) of the Registrable Securities then held by the Purchaser. Each
such request for registration must specify the number of Registrable Securities
requested to be registered and whether such registration is to be in the form of
an Underwritten Offering.
5.2 SELECTION OF UNDERWRITER(s). If the Purchaser elects to
have the offering of Registrable Securities pursuant to a Demand Registration be
in the form of an Underwritten Offering, the Purchaser shall select and obtain
the investment banker or investment bankers and manager or managers for the
offering, subject to the approval of the Seller.
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5.3 PRIORITY ON UNDERWRITTEN DEMAND REGISTRATION. If a Demand
Registration is an Underwritten Offering and the managing underwriters advise
the Purchaser and the Seller in writing that in their opinion the number of
Registrable Securities requested to be included in such offering exceeds the
number of Registrable Securities that can be sold therein without adversely
affecting the marketability of the offering, the Seller will include in such
registration the number of Registrable Securities requested to be included that,
in the opinion of such underwriters, can be sold without adversely affecting the
marketability of the offering. If there is any reduction in the number of
Registrable Securities included in such Underwritten Offering by the Purchaser,
no securities of any other Person shall be included in such registration. The
Purchaser may abandon a Demand Registration at any time. An abandoned Demand
Registration shall not count as a Demand Registration and such Purchaser shall
retain its rights hereunder with respect to the number of Demand Registrations
without a reduction as a result thereof if such Purchaser, at its option, pays
all fees and expenses in connection with such abandoned registration other than
fees and expenses relating to any Registrable Securities that any Person other
than the Purchaser may have requested to be included in such abandoned
registration.
5.4 LIMITATIONS ON DEMAND REGISTRATION. Notwithstanding any
other provision in this Agreement, (i) the Purchaser shall not be permitted to
make more than three (3) requests for a Demand Registration pursuant to Section
5.1 provided however in the event that the Purchaser exercises the Warrant, the
Purchaser shall be permitted three additional requests for Demand Registration
with respect to the Registrable Securities issued upon exercise of the Warrant,
and (ii) the Seller shall not be required to effect more than one (1) Demand
Registration during any 12-month period.
5.5 POSTPONEMENT OF DEMAND REGISTRATION BY THE SELLER. The
Seller may postpone for up to 90 days the filing of a registration statement for
a Demand Registration if the Seller has delivered a certificate to the Purchaser
stating that the Board, acting in good faith, has determined that pursuance of
such Demand Registration would be seriously detrimental to the Seller and its
stockholders PROVIDED, HOWEVER, that in the event of any such postponement, the
Purchaser shall be entitled to withdraw the request for such Demand Registration
and, if such request is withdrawn, such request shall not count as a Demand
Registration hereunder. The Seller may postpone such filing for the reasons
stated above not more than once during any calendar year. In addition, the
Seller shall not be required to effect any registration pursuant to this
Agreement at any time when another registration statement (other than on Form
S-8) of the Seller (A) is reasonably foreseen by the Board to be filed with the
Commission within thirty (30) days after the request for such Demand
Registration has been filed and not yet become effective, or (B) has become
effective less than six (6) months prior to the date of the request for such
Demand Registration.
5.6 SPECIAL AUDITS. Notwithstanding any other provision of this
Agreement, the Seller shall not be required to undergo or pay for any special
audit to effect any registration statement pursuant to this Section 5, and if
such a special audit would be required in order to file or effect a registration
statement hereunder, the Seller shall be entitled to delay the filing or
effectiveness of such registration statement until a reasonable period of time
following
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completion of such audit in the ordinary course of the Seller's business;
PROVIDED, HOWEVER, that the Seller shall not be entitled to delay the filing or
effectiveness of such registration statement if the Purchaser shall agree to pay
for the cost of such audit.
5.7 PROCEDURES. If and as often as the Seller is required by
the provisions of this Section 5 to include shares of Registrable Securities
held by the Purchaser in a registration statement filed under the Securities
Act, the Seller, at its expense and as expeditiously as possible, agrees to:
(i) in accordance with the Securities Act and all
applicable rules and regulations, prepare and file with the Commission a
registration statement with respect to such securities and use its best efforts
to cause such registration statement to become and remain effective for a period
of 90 days (or, if such registration statement has been filed on Form S-3 and
the Purchaser has indicated in its request for a Demand Registration that it is
requesting a shelf registration pursuant to Rule 415 under the Securities Act,
for a period of two years) and prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
contained therein as may be necessary to keep such registration statement
effective and such registration statement and prospectus accurate and complete
during such period of time;
(ii) furnish to the Purchaser and to any underwriters of
the securities being registered such number of copies of the registration
statement and each amendment and supplement thereto, preliminary prospectus,
final prospectus and such other documents as such underwriters and Purchaser may
reasonably request in order to facilitate the public offering of such
securities;
(iii) use reasonable efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as the Purchaser and underwriters may
reasonably request within 20 days prior to the original filing of such
registration statement, except that the Seller shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified, or to subject itself to taxation in any such jurisdiction;
(iv) notify the Purchaser promptly after it shall receive
notice thereof, of the date and time when such registration statement and each
post-effective amendment thereto has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
(v) prepare and file promptly with the Commission, and
promptly notify the Purchaser of the filing of, such amendments or supplements
to such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other prospectus as
then
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in effect would include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(vi) advise the Purchaser, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for that purpose.
5.8 PURCHASER'S AGREEMENTS. The Purchaser shall (i) provide the
Seller with such information with respect to the Purchaser and the distribution
of the Registrable Securities of the Purchaser that is sought to be effected
pursuant to this Agreement as the Seller may from time to time reasonably
request in writing and as shall be required by law or by the Commission in
connection therewith, (ii) comply with all applicable provisions of the
Securities Act, the Exchange Act and any other applicable law or regulation,
including without limitation, the prospectus delivery requirements of the
Securities Act, and (iii) not make any disposition of the Registrable Securities
pursuant to a registration statement filed pursuant to this Agreement following
notice from the Seller of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading in light of the circumstances then existing until it
receives written notice from the Seller that the use of such prospectus may be
resumed or until it receives copies of any supplement or amendment to such
prospectus.
5.9 FORMS. All references in this Agreement to particular forms
of registration statements are intended to include, and shall be deemed to
include, references to all successor forms which are intended to replace, or to
apply to similar transactions as, the forms herein referenced.
5.10 STANDSTILL. The Purchaser agrees that, in the event of an
Underwritten Offering by the Seller of which the Purchaser has been given at
least 30 days advance notice by the Seller , if requested by the managing
underwriter of such Underwritten Offering, the Purchaser will not offer, pledge,
sell, contract to sell, grant any option for the sale of or otherwise dispose
of, directly or indirectly, any of the Registrable Securities held by the
Purchaser for a period commencing 7 days prior to and ending 90 days following
the effective date of any registration statement pertaining to such Underwritten
Offering, except with respect to any Registrable Securities included in such
registration (it being understood that the Seller shall have not any obligation
to include any Registrable Securities in such offering).
5.11 TERMINATION. Unless sooner terminated pursuant to the terms
of this Agreement, the obligations of the Seller pursuant to this Section 5 as
to any Registrable Securities shall terminate upon the Purchaser's notification
to the Seller in writing that it does not wish to have the Registrable
Securities registered under this Agreement.
6. FEES AND EXPENSES. Each party shall be responsible for payment of
its own fees and expenses incurred in connection with this Agreement and the
transactions contemplated
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hereby. The foregoing notwithstanding, except as set forth in Section 5.3, with
respect to each inclusion of shares of Registrable Securities in a registration
statement pursuant to Section 5 hereof, the Seller agrees to bear all fees,
costs and expenses of and incidental to such registration and the public
offering in connection therewith; PROVIDED, HOWEVER, that the Purchaser shall
pay its own legal and accounting fees and its pro rata share of any applicable
underwriting discount and commissions. The fees, costs and expenses of
registration to be borne as provided in the preceding sentence shall include,
without limitation, all registration, filing, listing, and NASD fees, printing
expenses, fees and disbursements of counsel and accountants for the Seller, and
all legal fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdiction in which such securities are to
be registered or qualified.
7. INDEMNIFICATION; SURVIVAL.
7.1 INDEMNITY.
(a) Each of the Seller and the Purchaser agrees to
indemnify, defend and hold harmless the other, its affiliates and their
respective stockholders, directors, officers, partners, employees, agents,
successors and assigns from and against all losses, damages, liabilities,
deficiencies or obligations, including, without limitation, all claims, actions,
suits, proceedings, demands, judgments, assessments, fines, interest, penalties,
costs and expenses (including settlement costs and reasonable legal fees) to
which any of them may become subject as a result of any and all
misrepresentations or breaches of a representation or warranty made by it
herein.
(b) The Seller hereby agrees to indemnify and hold
harmless the Purchaser, its officers, directors and each Person who controls the
Purchaser within the meaning of the Securities Act, from and against, and agrees
to reimburse the Seller, its officers, directors and controlling Persons and any
underwriter or broker dealer acting for the Purchaser with respect to, all
losses, damages, liabilities, deficiencies or obligations, including, without
limitation, all claims, actions, suits, proceedings, demands, judgments,
assessments, fines, interest, penalties, costs and expenses (including
settlement costs and reasonable legal fees) to which the Purchaser may become
subject under the Securities Act or otherwise, insofar as such claims, actions,
demands, losses, damages, liabilities, costs or expenses arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in a registration statement that includes the Registrable Securities
of the Purchaser, any prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading; PROVIDED, HOWEVER, that the Seller will not be
liable in any such case to the extent that any such claim, action, demand, loss,
damage, liability, cost or expense is caused by an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
written information furnished by the Purchaser specifically for use in the
preparation thereof.
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(c) The Purchaser hereby agrees to indemnify and hold
harmless the Seller, its officers, directors and each Person who controls the
Seller within the meaning of the Securities Act, from and against, and agrees to
reimburse the Seller, its officers, directors and controlling Persons with
respect to, all losses, damages, liabilities, deficiencies or obligations,
including, without limitation, all claims, actions, suits, proceedings, demands,
judgments, assessments, fines, interest, penalties, costs and expenses
(including settlement costs and reasonable legal fees) to which the Seller, its
officers, directors or such controlling Persons may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses are caused by any untrue statement or
alleged untrue statement of any material fact contained in a registration
statement that includes the Registrable Securities of the Purchaser, any
prospectus contained therein or any amendment or supplement thereto, or are
caused by the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance upon
and in conformity with written information furnished by the Purchaser
specifically for use in the preparation thereof. Notwithstanding the foregoing,
the Purchaser shall be obligated hereunder to pay no more than the net proceeds
realized by it upon its sale of Registrable Securities included in such
registration statement.
7.2 PROCEDURE. Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party, notify the indemnifying party of the commencement thereof.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof. The indemnity
provided under this Agreement shall not apply to amounts paid in settlement of
any claim, action, suit or proceeding if such settlement is effected without the
consent of the indemnifying party, which consent shall not be unreasonably
withheld. No indemnifying party will consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to the indemnified party of a release from
all liability in respect of such claim, action, suit or proceeding.
7.3 SURVIVAL. All representations made herein by the Seller and
the Purchaser shall survive the closing of the transactions contemplated hereby
for a period of three (3) years. Any matter as to which a claim has been
asserted by notice to the other party that is pending or unresolved at the end
of such survival period shall continue to be covered by this Section 6 until
such matter is finally terminated or otherwise resolved by the parties under
this Agreement or by a court of competent jurisdiction and any amounts payable
hereunder are finally determined and paid.
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8. SUCCESSORS AND ASSIGNS; PARTIES IN INTEREST. This Agreement shall
bind and inure to the benefit of (i) the Purchaser, (ii) the Seller and (iii)
their respective successors and assigns, including without limitation any Person
who succeeds to the rights and properties of a Party as a result of a merger,
consolidation, acquisition of substantially all of a Party's assets or similar
transaction. Except as provided above, no party may assign its rights under this
Agreement without the consent of the other, which consent shall not be
unreasonably withheld.
9. ENTIRE AGREEMENT. This Agreement (as amended from time to time)
and the other writings referred to herein or delivered pursuant hereto which
form a part hereof contain the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
10. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be in writing and shall be delivered in person or
duly sent by overnight courier, facsimile transmission or first class registered
or certified mail, return receipt requested, postage prepaid, addressed to such
party at the address set forth below or such other address as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
(a) If to the Purchaser:
MERCK & Co., Inc.
Xxx XXXXX Xxxxx
X.X. Xxx 000, XX0X-00
Xxxxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Office of Secretary
Facsimile No.: (000)000-0000
With a copy (which shall not constitute notice) to:
MERCK & Co., Inc.
Xxx XXXXX Xxxxx
X.X. Xxx 000, XX0X-00
Xxxxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Chief Licensing Officer
Facsimile: (000) 000-0000
(b) If to the Seller:
deCODE genetics, Inc.
Xxxxxxxxxx 0
XX-000, Xxxxxxxxx, Xxxxxxx
Attn: President
Facsimile No. : x000 000 0000
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and
Attn: Legal Department
Facsimile No. : x000 000 0000
With a copy (which shall not constitute notice) to:
Xxxxxxx & Xxx, P.C.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X., Xxxxxx, Esq.
Facsimile: 0-000-000-0000
All such notices and communications shall be deemed to have been give in the
case of (a) facsimile transmission on the date sent, (b) personal delivery on
the date of such delivery, (c) overnight courier on the day following delivery
to such courier and (d) mailing on the third day after the posting thereof.
11. CHANGES. The terms and provisions of this Agreement may not be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to the consent of the affected party.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey, without regard to
conflict of laws.
15. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. FURTHER ASSURANCES. The parties hereto shall, subsequent to the
date hereof, execute and deliver such further documentation, and take such
further action, in each case without cost to the other party, as shall be
reasonably requested by such other party hereto to further evidence and perfect
the completion of the transactions contemplated hereby.
***
12
IN WITNESS WHEREOF, the parties hereto have caused this Stock and Warrant
Purchase Agreement to be duly executed on their behalf.
deCODE genetics, Inc.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
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Title: CEO
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Merck & Co., Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
------------------------------
Title: Chairman, President and
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Chief Executive Officer
EXHIBIT A
FORM OF WARRANT
