Exhibit 4
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO XXXXXX
LABORATORIES, AN ILLINOIS CORPORATION, THAT SUCH REGISTRATION IS NOT
REQUIRED.
CALL OPTION AGREEMENT
THIS CALL OPTION AGREEMENT (the "Agreement") is made as of May 7,
1999, between SangStat Medical Corporation, a Delaware corporation,
("SangStat") and Xxxxxx Laboratories, an Illinois corporation ("Xxxxxx").
WHEREAS, SangStat and Xxxxxx have entered a Stock Purchase Agreement
even date herewith (the "Stock Purchase Agreement"); and
WHEREAS, subject to the terms and conditions of this Call Option
Agreement (the "Agreement") and on the basis of the representations and
warranties set forth in this Agreement and in the Stock Purchase Agreement,
Xxxxxx has agreed to grant SangStat the right to repurchase from Xxxxxx the
Initial Shares and Option Shares purchased by Xxxxxx from SangStat pursuant
to the Stock Purchase Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. CERTAIN DEFINITIONS.
1.1 TERMS DEFINED IN THE STOCK PURCHASE AGREEMENT. To the
extent a term is not otherwise defined in this Agreement, it shall have the
same meaning as the meaning given to it in the Stock Purchase Agreement.
1.2 CALL OPTION. The term "Call Option" shall mean either a
Call Option for the Initial Shares or a Call Option for the Option Shares, as
the context requires.
1.3 CALL OPTION FOR THE INITIAL SHARES. The term "Call
Option for the Initial Shares" shall mean the right of SangStat to purchase
SangStat stock from Xxxxxx described in SECTION 2.1 (a) below.
1.4 CALL OPTION FOR THE OPTION SHARES. The term "Call Option
for the Option Shares" shall mean the right of SangStat to purchase SangStat
stock from Xxxxxx described in Section 2.1(b) below.
2. CALL OPTIONS.
2.1 GRANT OF CALL OPTIONS, EXERCISE PRICE. Subject to the
terms and conditions herein set forth, Xxxxxx hereby grants to SangStat:
(a) the right (the "Call Option for the Initial Shares")
to purchase from Xxxxxx any or all of the Initial
Shares at an exercise price per share equal to two
times the Price per Initial Share paid by Xxxxxx to
SangStat pursuant to SECTION 1.1 of the Stock
Purchase Agreement); and
(b) the right (the "Call Option for the Option Shares")
to purchase from Xxxxxx any or all of the Option
Shares at an exercise price per share equal to two
times the Price per Option Share paid by Xxxxxx to
SangStat pursuant to SECTION 2.2 of the Stock
Purchase Agreement.
2.2 TERM OF THE CALL OPTIONS. SangStat may exercise either
or both of the Call Options, in whole or in part, at any time after the date
hereof until December 31, 2001.
2.3 MANNER OF EXERCISING CALL OPTION. SangStat may exercise
a Call Option only by surrendering a completed and fully-executed Call Option
Subscription Form (in the form attached hereto as EXHIBIT A) to Xxxxxx. On
the fifth day following proper exercise of the Call Option (the "Closing
Date"), SangStat shall pay the exercise price for the Call Option to Xxxxxx.
The Call Option shall be deemed to have been exercised immediately prior to
the close of business on the Closing Date, and any person(s), entity or
entities entitled to receive the shares of Common Stock issuable upon
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. The exercise price for a
Call Option shall be paid to Xxxxxx by wire transfer to the bank account of
Xxxxxx.
3. CHANGES IN CAPITAL STRUCTURE. If SangStat shall at any time
change the number of its issued common shares without receiving new
consideration (such as by stock dividends or stock splits), then the number
of shares of SangStat common stock covered by each of the Call Options and
the exercise price of each of the Call Options shall be adjusted so that the
aggregate consideration payable to Xxxxxx and the value of the Call Options,
in the aggregate, shall not be changed.
4. CALIFORNIA COMMISSIONER OF CORPORATIONS.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT
BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF, THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF
ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM ALL QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS
AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXX.
Xxxxxx represents and warrants as of this date, and covenants for
the period beginning on this date and ending the termination of this Agreement,
that:
(a) Xxxxxx has the right to enter into this Agreement and to
transfer to SangStat all or any part of the Initial Shares
and the Option Shares, free and clear of any lien, claim,
encumbrance or restriction of any type or nature whatsoever
(other than those created by SangStat or restrictions on
resale that may arise under applicable federal and state
securities laws); and
(b) Xxxxxx is not a party to any agreement and will not enter
into an agreement, by which Xxxxxx is or would be bound (or
to which Xxxxxx is or would become subject) that conflicts
or would conflict with this Agreement or the performance of
Xxxxxx'x obligations under this Agreement.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT, CONTROLLING DOCUMENT. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence
and understandings between the parties with respect to the subject matter
hereof, whether oral or in writing.
6.2 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.3 DELAY AND WAIVER. No delay on the part of either party in
exercising any right under this Agreement shall operate as a waiver of such
right. The waiver by either party of any other term or condition of this
Agreement shall not be construed as a waiver of a subsequent breach or failure
of the same term or condition or a waiver of any other term or condition
contained in this Agreement.
6.4 ASSIGNMENT: SUCCESSORS AND ASSIGNS. No provision of this
Agreement may be assigned without the prior written consent of the other
party hereto. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties (including transferees of
any of the Initial Shares or Option Shares). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
6.5 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Delaware without regard to conflicts
of law principles.
6.6 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.7 EXPENSES. Irrespective of whether either of the Call
Options is exercised, each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance
of this Agreement.
6.8 ALTERNATIVE DISPUTE RESOLUTION. The parties agree to
effectuate all reasonable efforts to resolve in an amicable manner any and
all disputes between them in connection with this Agreement. The parties
agree that any dispute that arises in connection with this Agreement, which
cannot be amicably resolved informally, shall be finally settled as set forth
in the Alternative Dispute Resolution provisions of Exhibit E to the
Co-Promotion Agreement between Xxxxxx and SangStat dated as of May 7, 1999.
6.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of SangStat and Xxxxxx. Any
amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement at
the time outstanding (including securities into which such securities are
convertible), each future holder of all such securities and SangStat.
6.10 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
6.11 FURTHER ASSURANCES. SangStat and Xxxxxx shall do and
perform or cause to be performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments or
documents as the other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated by the Agreement. Neither
SangStat nor Xxxxxx shall voluntarily undertake any course of action
inconsistent with the satisfaction of the requirements applicable to them as
set forth in this Agreement, and each shall promptly do all such acts and
take all such measures as may be appropriate to enable them to perform as
early as practicable their obligations under this Agreement.
6.12 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall
create or be deemed to create any rights in any person or entity not a party
to his Agreement.
6.13 MUTUAL DRAFTING. This Agreement is the joint product of
SangStat and Xxxxxx and each provision of the Agreement has been subject to
consultation, negotiation and agreement of SangStat and Xxxxxx and their
respective legal counsel and advisers and any rule of construction that a
document shall be interpreted or construed against the drafting party shall
not apply.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SangStat Medical Corporation
By: ______________________________
Title: ___________________________
Xxxxxx Laboratories
By: ______________________________
Title: ____________________________
SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT
EXHIBIT A
---------
CALL OPTION SUBSCRIPTION FORM
(To be signed only upon exercise of Call Option)
To:
The undersigned, the holder of the attached Call Option, hereby
irrevocably elects to exercise the purchase right represented by that Call
Option for, and to purchase under that Call Option, ________ shares of Common
Stock of _______________ and herewith makes payment of an aggregate price of
$ ___________ for those shares and requests that the certificates for the
shares be issued in the name of, and delivered to, __________________ address
is ____________________________________ and that all other actions be taken
as are necessary to transfer title to such other property subject to the Call
Option.
Dated: ___________________________________
___________________________________
By: _______________________________
Title: ____________________________
Address: __________________________
___________________________________
EXHIBIT B
---------
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _______________ hereby sell, assign and transfer
unto _________________, ______________ Shares of the Common Stock of SangStat
Medical Corporation, a Delaware corporation ("SangStat"), standing in its
name on the books of SangStat represented by Certificate No. ________
herewith and do hereby irrevocably constitute and appoint EquiServ LLP to
transfer said stock on the books of SangStat with full power of substitution
in the premises.
Dated: ______________________________________
Signature
_____________________________________
_____________________________________
This Assignment Separate from Certificate was executed in conjunction
with the terms of a Call Option Agreement dated ___________________, 1999,
and shall not be used in any manner except as provided in such Agreement.
