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EXHIBIT 10.41
STOCK PURCHASE AGREEMENT
RIBOGENE, INC.
JULY 6, 1998
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE........................................................................................1
1.1 Sale of Shares..................................................................................1
1.2 Closing Date....................................................................................1
1.3 Delivery........................................................................................1
1.4 Standstill Covenant.............................................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................2
2.1 Organization and Standing; Certificate and Bylaws...............................................2
2.2 Authorization...................................................................................2
2.3 Validity of Shares..............................................................................2
2.4 Offering........................................................................................2
2.5 No Conflict; No Violation.......................................................................2
2.6 Consents and Approvals..........................................................................3
3. REPRESENTATIONS AND WARRANTIES OF XXXXXXX................................................................3
3.1 Legal Power.....................................................................................3
3.2 Due Execution...................................................................................3
3.3 Investment Representations......................................................................3
4. LIMITATIONS ON TRANSFER..................................................................................4
5. REGISTRATION OF SHARES...................................................................................5
5.1 Registration....................................................................................5
5.2 Delay of Registration; Furnishing Information...................................................5
6. CONDITIONS TO CLOSING....................................................................................5
6.1 Conditions to Obligations of Xxxxxxx............................................................5
(a) Representations and Warranties True; Performance of Obligations........................5
(b) Qualifications, Legal Investment.......................................................6
(c) Registration Rights Agreement..........................................................6
6.2 Conditions to Obligations of the Company........................................................6
(a) Representations and Warranties True....................................................6
(b) Performance of Obligations.............................................................6
(c) Qualifications, Legal Investment.......................................................6
7. MISCELLANEOUS............................................................................................6
i.
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TABLE OF CONTENTS
(CONTINUED)
PAGE
7.1 Governing Law...................................................................................6
7.2 Successors and Assigns..........................................................................7
7.3 Entire Agreement................................................................................7
7.4 Severability....................................................................................7
7.5 Amendment and Waiver............................................................................7
7.6 Delays or Omissions.............................................................................7
7.7 Notices.........................................................................................8
7.8 Titles and Subtitles............................................................................8
7.9 Counterparts....................................................................................8
EXHIBITS
Exhibit A -- Schedule of Exceptions
Exhibit B -- Permitted Pledgee
Exhibit C -- Registration Rights Agreement
ii.
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of July 6, 1998 (the "Effective Date"), by and between RIBOGENE, INC., a
Delaware corporation (the "Company"), and XXXXXXX PHARMACEUTICAL CORPORATION, a
New Jersey corporation ("Xxxxxxx").
1. PURCHASE AND SALE.
Subject to the terms and conditions hereof, and in reliance upon
the representations, warranties and agreements contained herein, the Company
hereby agrees to issue and sell to Xxxxxxx, and Xxxxxxx hereby agrees to
purchase from the Company, the aggregate number of shares of the Company's
Series A Convertible Non-voting Preferred Stock (the "Series A Preferred")
determined in accordance with Subsection 1.1 hereof.
1.1 SALE OF SHARES. The Company shall issue and sell to Xxxxxxx,
and Xxxxxxx shall purchase for cash from the Company one million four hundred
twenty-eight thousand five hundred seventy-two (1,428,572) shares of the
Company's Series A Preferred (the "Shares") for an aggregate purchase price of
ten million four dollars ($10,000,004). Shares of the Company's Common Stock
issuable upon conversion of the Shares shall hereinafter be referred to as the
"Conversion Shares."
1.2 CLOSING DATE. The closing of the sale and purchase of the
Shares under this Agreement (the "Closing") shall take place at 10:00 a.m.,
local time, on July 16, 1998, at the offices of Xxxxxx Godward LLP, Five Palo
Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, or at such other
time or place as the Company and Xxxxxxx may mutually agree (such date is
hereinafter referred to as the "Closing Date").
1.3 DELIVERY. At the Closing, the Company will deliver to Xxxxxxx
a certificate registered in the name of Xxxxxxx, representing the Shares to be
purchased by Xxxxxxx from the Company, dated the Closing Date, against payment
of the Purchase Price by wire transfer, a check made payable to the order of the
Company, or any combination thereof.
1.4 STANDSTILL COVENANT. Other than the Shares which it will
purchase pursuant to Section 1.1 of this Agreement, Xxxxxxx hereby covenants and
agrees that neither Xxxxxxx nor any of its affiliates (including parents,
subsidiaries or other related entities) will, without the prior written consent
of the Company (i) purchase or otherwise acquire, directly or indirectly, any
equity securities or assets of the Company (or rights or options to purchase
such securities), or (ii) make any tender or exchange offer, merger, business
combination, recapitalization or other extraordinary transaction involving the
Company, or (iii) enter into any agreement with any other person with respect to
the foregoing, or assist any other person to do any of the foregoing. This
provision shall terminate and be of no further force or effect five (5) years
from the Effective Date or such earlier date as shall be agreed to by the
Company.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as otherwise set forth on the Schedule of Exceptions
attached hereto as Exhibit A, which shall contain Section numbers specifically
corresponding to the Section numbers in this Agreement, the Company hereby
represents and warrants to Xxxxxxx as follows:
2.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has full power and authority to own
and operate its properties and assets and to carry on its business as presently
conducted and as proposed to be conducted. The Company is qualified as a foreign
corporation to do business in each jurisdiction in the United States in which
the ownership of its property or the conduct of its business requires such
qualification, except where any statutory fines or penalties or any corporate
disability imposed for the failure to qualify would not materially adversely
affect the Company, its assets, financial condition or operations. True and
correct copies of the Company's Amended and Restated Certificate of
Incorporation and Bylaws currently in effect have been delivered to Xxxxxxx.
2.2 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
of the Company's obligations hereunder, and for the authorization, issuance,
sale and delivery of the Shares has been taken or will be taken prior to
Closing. This Agreement, when executed and delivered, shall constitute a valid
and legally binding obligation of the Company in accordance with its terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors, and subject to general equity principles.
2.3 VALIDITY OF SHARES. The sale of the Shares is not subject to
any preemptive rights or rights of first refusal that have not been waived and,
when issued, sold and delivered in compliance with the provisions of this
Agreement, the Shares will be validly issued, fully paid and non-assessable, and
will be free of any liens or encumbrances created by the Company; provided,
however, that the Shares may be subject to restrictions on transfer under state
and/or federal securities laws as set forth herein or as otherwise required by
such laws at the time a transfer is proposed.
2.4 OFFERING. Assuming the accuracy of the representations and
warranties of Xxxxxxx contained in Section 3 hereof, the offer, issue, and sale
of Shares are exempt from the registration and prospectus delivery requirements
of the Securities Act, and the Shares have been registered or qualified (or are
exempt from registration and qualification) under the registration, permit, or
qualification requirements of all applicable state securities laws.
2.5 NO CONFLICT; NO VIOLATION. The execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
hereby will not (a) conflict with any provisions of the Amended and Restated
Certificate of Incorporation or Bylaws of the Company; (b) result in any
material violation or default of, or permit the acceleration of any obligation
under (in each case, upon the giving of notice, the passage of time, or both),
any material mortgage, indenture, lease, agreement or other instrument, permit,
franchise, license,
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judgment, order, decree, law, ordinance, rule or regulation applicable to the
Company or its properties.
2.6 CONSENTS AND APPROVALS. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations,
or filings with, any governmental authority, required on the part of the Company
in connection with the valid execution and delivery of this Agreement, the
offer, sale or issuance of the Shares, or the consummation of any other
transaction contemplated hereby have been obtained, or will be effective at the
Closing, except for notices required or permitted to be filed with certain state
and federal securities commissions after the Closing, which notices will be
filed on a timely basis.
3. REPRESENTATIONS AND WARRANTIES OF XXXXXXX.
Xxxxxxx hereby represents and warrants to the Company as follows:
3.1 LEGAL POWER. It has the requisite legal power to enter into
this Agreement, to purchase the Shares hereunder, and to carry out and perform
its obligations under the terms of this Agreement.
3.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by it, and, upon due execution and delivery by the
Company, this Agreement will be a valid and binding agreement of it.
3.3 INVESTMENT REPRESENTATIONS.
(a) Xxxxxxx is acquiring the Shares and Conversion Shares
for its own account, not as nominee or agent, for investment and not with a view
to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act.
(b) Xxxxxxx understands (i) that neither the Shares nor the
Conversion Shares have been registered under the Securities Act, by reason of a
specific exemption therefrom, that they must be held by it indefinitely, and
that it must, therefore, bear the economic risk of such investment indefinitely,
unless a subsequent disposition thereof is registered under the Securities Act
or is exempt from such registration; (ii) each certificate representing the
Shares and Conversion Shares will be endorsed with the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
(A) PURSUANT TO SEC RULE 144 OR (B) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT COVERING SUCH SECURITIES OR (C) RIBOGENE,
INC. RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO RIBOGENE, INC., STATING THAT SUCH SALE,
OFFER FOR SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
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EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE 1933 ACT."
and (iii) the Company will instruct any transfer agent not to register the
transfer of any of the Shares or Conversion Shares unless the conditions
specified in the foregoing legend are satisfied. Xxxxxxx shall have the right to
demand removal of the foregoing legend with respect to any or all of the Shares
and Conversion Shares if, in the opinion of counsel to the Company, removal of
such legend is permitted by the rules and regulations of the SEC.
(c) It has been furnished with such materials and has been
given access to such information relating to the Company as it or its qualified
representative has requested and it has been afforded the opportunity to ask
questions regarding the Company and the Shares, all as it has found necessary to
make an informed investment decision.
(d) It is an "accredited investor" within the meaning of
Regulation D under the 1933 Act.
(e) It was not formed for the specific purpose of acquiring
the Shares or Conversion Shares offered hereunder.
4. LIMITATIONS ON TRANSFER.
(a) Xxxxxxx hereby covenants and agrees that it will not,
without the prior written consent of the Company, contract to sell, sell or
otherwise transfer, loan, pledge or grant any rights, except a bona fide pledge
to the company listed in Exhibit B, with respect to any Shares or any Conversion
Shares acquired pursuant to this Agreement (or purchase or sell any derivative
security that has a similar effect or enter into any contract that has a similar
effect) during a period of twelve (12) months from the Effective Date; provided,
however, that Xxxxxxx shall be permitted to tender and transfer any such shares
(a) to a subsidiary of Xxxxxxx controlled by Xxxxxxx, on the condition that any
such subsidiary shall agree in writing to be bound by the terms of this
Agreement, (b) to a tender offeror in connection with a tender offer by any
person or entity to acquire thirty-three percent (33%) or more of the Company's
outstanding voting equity securities.
(b) Except as provided in Paragraph 4.4(a) above, Xxxxxxx
shall not transfer any Shares or Conversion Shares purchased pursuant to this
Agreement, whether or not for consideration, to a third party, without complying
with the provisions of this Paragraph 4.4(b). The right of first refusal herein
shall not be assignable by the Company except to any legal entity which directly
or indirectly, within the meaning of the Securities Act, is controlled by or
controls the Company.
(i) In the event Xxxxxxx desires to transfer any Shares
or Conversion Shares then held by it, Xxxxxxx shall give written notice to the
Secretary of the Company of such intent to transfer (the "Transfer Notice"). The
Transfer Notice must name the proposed transferee (if a private transaction),
the number of such shares involved in the proposed transfer, the proposed
purchase price per share (if a private transaction), and any other terms and
conditions of the proposed transfer. Within five (5) business days after
delivery of the Transfer Notice, the Company shall have the right to elect to
purchase all or a part representing at least
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thirty-three percent (33%) of the Shares or Conversion Shares proposed to be
transferred (the "Option Shares") on substantially the same terms and conditions
specified in the Transfer Notice, by delivery to Xxxxxxx of a written notice
stating the number of Option Shares the Company elects to purchase.
(ii) In the event that the Company fails to exercise
the right of first refusal as to all Option Shares within the period specified
above, Xxxxxxx shall have one hundred twenty (120) days thereafter to sell the
Option Shares at a price and upon terms no more favorable to the purchase
thereof than specified in the Transfer Notice. In the event that Xxxxxxx has not
sold such shares within such one hundred twenty (120) day period, Xxxxxxx shall
not thereafter sell any of such shares without first offering such shares to the
Company in the manner provided above.
(iii) In the event of a consolidation or merger of
Xxxxxxx with or into any other corporation or other entity or person or any
other corporate reorganization, in which the stockholders of Xxxxxxx immediately
prior to such consolidation, merger or reorganization, own less than fifty
percent (50%) of Xxxxxxx' voting power immediately after such consolidation,
merger or reorganization, or any transaction or series of related transactions
in which in excess of fifty percent (50%) of Xxxxxxx' voting power is
transferred, the Company shall have the right to purchase all or a part
representing at least thirty-three percent (33%) of the shares of the Company
then held by Xxxxxxx, by delivery to Xxxxxxx of a written notice stating the
number of shares the Company elects to purchase.
5. REGISTRATION OF SHARES.
5.1 REGISTRATION. The registration rights concerning the Shares
purchased by Xxxxxxx shall be governed by the registration rights agreement set
forth in Exhibit C.
5.2 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) Xxxxxxx shall not have any right to obtain or seek an
injunction restraining or otherwise delaying any such Registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Section 5.
(b) It shall be a condition precedent to the obligations of
Company to take any action pursuant to this Section 5 that Xxxxxxx shall furnish
to Company such information regarding themselves, the Shares and Conversion
Shares held by them and the intended method of disposition of such shares as
shall be required to effect the registration of the Conversion Shares.
6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO OBLIGATIONS OF XXXXXXX. Xxxxxxx'x obligation to
purchase the Shares at the Closing is subject to the fulfillment, at or prior to
the Closing, of all of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 2
hereof shall
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be true and correct in all material respects on the Effective Date, and the
Company shall have performed all obligations and conditions herein required to
be performed by it on or prior to the Closing.
(b) QUALIFICATIONS, LEGAL INVESTMENT. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful sale and issuance of the Shares pursuant to this Agreement shall have
been duly obtained and shall be effective on and as of the Closing. No stop
order or other order enjoining the sale of the Shares shall have been issued and
no proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by the SEC or any commissioner of corporations or similar
officer of any other state having jurisdiction over this transaction. At the
time of the Closing, the sale and issuance of the Shares shall be legally
permitted by all laws and regulations to which Xxxxxxx and the Company are
subject.
(c) REGISTRATION RIGHTS AGREEMENT. The execution of a
Registration Rights Agreement by RiboGene in the form attached hereto as Exhibit
C.
6.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
fulfillment to the Company's satisfaction, on or prior to the Closing, of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties made by Xxxxxxx in Section 3 hereof shall be true and correct at
the Effective Date.
(b) PERFORMANCE OF OBLIGATIONS. Xxxxxxx shall have performed
and complied with all agreements and conditions herein required to be performed
or complied with by it on or before the Closing.
(c) QUALIFICATIONS, LEGAL INVESTMENT. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful sale and issuance of the Shares pursuant to this Agreement shall have
been duly obtained and shall be effective on and as of the Closing. No stop
order or other order enjoining the sale of the Shares shall have been issued and
no proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by the SEC or any commissioner of corporations or similar
officer of any state having jurisdiction over this transaction. At the time of
the Closing, the sale and issuance of the Shares shall be legally permitted by
all laws and regulations to which Xxxxxxx and the Company are subject.
7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement will be governed by and
interpreted in accordance with the laws of the State of California, applicable
to contracts executed and performed wholly within the State of California. Any
claim or controversy arising out of or related to this Agreement or any breach
hereof shall be submitted to a court of applicable jurisdiction in the State of
California, and each party hereby consents to the jurisdiction and venue of such
court.
6.
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7.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, neither party may assign or transfer this Agreement or any
rights or obligations hereunder without the prior written consent of the other;
provided however, that the Company may assign its rights and obligations under
this Agreement to the surviving entity in the event of a merger or other
reorganization in which the Company is not the surviving entity or to the
purchaser of all or substantially all of the Company's assets. Except as
otherwise expressly provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors, and
administrators of the parties hereto.
7.3 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto, and
the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof, and no party shall be liable or bound to any other party in any manner
by any representations, warranties, covenants, or agreements except as
specifically set forth herein or therein. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto and
their respective successors and assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
7.4 SEVERABILITY. In case any provision of this Agreement shall
be invalid, illegal, or unenforceable, it shall, to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
7.5 AMENDMENT AND WAIVER.
(a) 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, either retroactively or prospectively, and either for a
specified period of time or indefinitely), with the written consent of the
Company and Xxxxxxx. Any amendment or waiver effected in accordance with this
Section shall be binding upon Xxxxxxx, each future holder of the Shares, and the
Company.
(b) None of the conditions or provisions of this agreement
shall be held to have been waived by any act or knowledge on the part of either
party, except by an instrument in writing signed by a duly authorized officer or
representative of the parties. Further, the waiver by either party of any right
hereunder or the failure to enforce at any time any of the provisions of this
Agreement, or any rights with respect thereto, shall not be deemed to be a
waiver of any rights hereunder or any breach or failure of performance of the
other party.
7.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power, or remedy accruing to Xxxxxxx or any subsequent holder of any
Shares upon any breach, default or noncompliance of the Company under this
Agreement, shall impair any such right, power, or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any
acquiescence therein, or of any similar breach, default or noncompliance
thereafter occurring. It is further agreed that any waiver, permit, consent, or
approval of any kind or character on Robert's part of any breach, default or
noncompliance under this Agreement or any
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waiver on Robert's part of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth
in such writing, and that all remedies, either under this Agreement, by law, or
otherwise afforded to Xxxxxxx, shall be cumulative and not alternative.
7.7 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be delivered as follows with the notice deemed
given as indicated: (i) by personal delivery when delivered personally; (ii) by
overnight courier upon written verification of receipt; (iii) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; (iv) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to the addresses set forth
above or such other address as either party may specify in writing. If to the
Company, to:
RiboGene, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive
Officer
with a copy to:
Cooley Godward LLP
5 Palo Alto Square, 4th Floor
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(a) if to Xxxxxxx, to:
Xxxxxxx Pharmaceutical Corporation
Meridian Center II
0 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000 0000
Attention: X. X. Xxxxxx, VP and General
Counsel
Notwithstanding the foregoing, all notices and other communications to
an address outside of the United States shall be sent by telecopy and confirmed
in writing to be sent by first class mail.
7.8 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
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The foregoing Agreement is hereby executed as of the date first above
written.
RIBOGENE, INC. XXXXXXX PHARMACEUTICAL CORPORATION
By:_______________________________ By:_________________________________
Printed Name:_____________________ Printed Name:_______________________
Title:____________________________ Title:______________________________
Signature Page of Stock Purchase Agreement
9.
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EXHIBIT A
SCHEDULE OF EXCEPTIONS
None.
14
EXHIBIT B
PERMITTED PLEDGEE
2.
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EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
3.
