STOCK PURCHASE AGREEMENT
RIBOGENE, INC.
MAY 29, 1998
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Sale of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 "Market Stand-Off" Agreements. . . . . . . . . . . . . . . . . . . 2
2. REPRESENTATIONS AND WARRANTIES OF RIBOGENE. . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . . . . 3
2.6 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . 3
3. REPRESENTATIONS AND WARRANTIES OF XXXXXX. . . . . . . . . . . . . . . . . 3
3.1 Legal Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Due Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Investment Representations . . . . . . . . . . . . . . . . . . . . 3
4. REGISTRATION OF SHARES AND INITIAL SHARES . . . . . . . . . . . . . . . . 4
4.1 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Expenses of Registration . . . . . . . . . . . . . . . . . . . . . 5
4.3 Obligations of RiboGene. . . . . . . . . . . . . . . . . . . . . . 5
4.4 Delay of Registration; Furnishing Information. . . . . . . . . . . 6
5. CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Conditions to Obligations of Xxxxxx. . . . . . . . . . . . . . . . 6
(a) Representations and Warranties True; Performance of
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Completion of Initial Public Offering.. . . . . . . . . . . . 6
(c) Qualifications, Legal Investment. . . . . . . . . . . . . . . 6
(d) Certificate.. . . . . . . . . . . . . . . . . . . . . . . . . 7
(e) Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 7
5.2 Conditions to Obligations of RiboGene. . . . . . . . . . . . . . . 7
(a) Representations and Warranties True . . . . . . . . . . . . . 7
i.
TABLE OF CONTENTS
PAGE
(b) Performance of Obligations. . . . . . . . . . . . . . . . . . 8
(c) Qualifications, Legal Investment. . . . . . . . . . . . . . . 8
6. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 8
6.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.5 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . 8
6.6 Delays or Omissions. . . . . . . . . . . . . . . . . . . . . . . . 8
6.7 Notices, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.8 Titles and Subtitles . . . . . . . . . . . . . . . . . . . . . . .10
6.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . .10
ii.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of May 29, 1998 (the "Effective Date"), by and between RIBOGENE,
INC., a Delaware corporation ("RIBOGENE"), and XXXXXX LABORATORIES, an
Illinois corporation ("XXXXXX").
RECITALS
A. RIBOGENE and XXXXXX are parties to that certain Series E
Preferred Stock Purchase Agreement, as amended, dated as of April 26, 1996
(the "Series E Purchase Agreement"), whereby XXXXXX covenants to purchase
shares of RIBOGENE capital stock upon the occurrence of an Initial Public
Offering (as such term is defined in the Series E Purchase Agreement) if
the aggregate Price to Public of the Initial Public Offering is not less
than $16,000,000 (exclusive of the Shares, which Shares are defined below).
X. XXXXXX purchased and currently owns 1,555,556 shares of
RIBOGENE's Series E Preferred Stock pursuant to the Series E Purchase
Agreement, which shares will be converted to shares of common stock of
RIBOGENE upon the closing of the Initial Public Offering and which shares
are hereinafter referred to as the "Initial Shares."
C. Pursuant to Section 9 of the Series E Purchase Agreement,
RIBOGENE desires to sell and issue to XXXXXX, and XXXXXX desires to buy,
shares of RIBOGENE's common stock, as provided herein.
NOW, THEREFORE, the Parties hereto agree as follows:
1. PURCHASE AND SALE.
Subject to the terms and conditions hereof, and in reliance
upon the representations, warranties and agreements contained herein,
RIBOGENE hereby agrees to issue and sell to XXXXXX, and XXXXXX hereby
agrees to purchase from RIBOGENE, the aggregate number of shares of
RIBOGENE's Common Stock (the "Shares") determined in accordance with
Subsection 1.1 hereof.
1.1 SALE OF SHARES. On the Closing Date (as defined in
Subsection 1.2), RIBOGENE shall issue and sell to XXXXXX, and XXXXXX shall
purchase from RIBOGENE for $4,000,000, the number of shares of RIBOGENE's
Common Stock (the "Shares") equal to the quotient of $4,000,000 (the
"Purchase Price") divided by the Per Share Price (as hereinafter defined).
In the event the number of Shares includes a fraction of a share, the
number of Shares shall be rounded to the nearest whole number of shares and
the Purchase Price shall be adjusted to equal the Per Share Price times
such whole number of Shares. The Per Share Price shall be the Price to
Public stated on the front cover of the final prospectus distributed in
connection with the Initial Public Offering.
1.2 CLOSING DATE. The closing of the sale and purchase of
the Shares (the "Closing") shall take place on the date of the closing of
the Initial Public Offering (the "Closing Date").
1.
1.3 DELIVERY. At the Closing, RIBOGENE will deliver to
XXXXXX a certificate registered in the name of XXXXXX, representing the
Shares to be purchased by XXXXXX from RIBOGENE, dated the Closing Date,
against payment of the Purchase Price by wire transfer, a check made
payable to the order of RIBOGENE, or any combination thereof.
1.4 "MARKET STAND-OFF" AGREEMENTS. XXXXXX hereby agrees
that prior to the first anniversary of the Closing Date, it shall not sell
or otherwise transfer or dispose of any of the Shares held by it. RIBOGENE
may impose stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of the applicable periods.
2. REPRESENTATIONS AND WARRANTIES OF RIBOGENE.
RIBOGENE hereby represents and warrants to XXXXXX as follows:
2.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS.
RIBOGENE 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. RIBOGENE
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 RIBOGENE, its assets,
financial condition or operations. True and correct copies of RIBOGENE's
Amended and Restated Certificate of Incorporation and Bylaws currently in
effect have been delivered to XXXXXX.
2.2 AUTHORIZATION. All corporate action on the part of
RIBOGENE, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of
all of RIBOGENE'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 RIBOGENE 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 RIBOGENE; 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 XXXXXX contained in Section 3 hereof, the offer, issue,
and sale of Shares are exempt from the registration and prospectus delivery
requirements of the 1933 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.
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 RIBOGENE;
(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, judgment,
order, decree, law, ordinance, rule or regulation applicable to RIBOGENE 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 RIBOGENE 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 XXXXXX.
XXXXXX hereby represents and warrants to RIBOGENE 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 RIBOGENE, this Agreement will be a valid and binding agreement
of it.
3.3 INVESTMENT REPRESENTATIONS.
(a) It is acquiring the 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 1933 Act.
(b) It understands that (i) the Shares have not been
registered under the 1933 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 1933 Act or is exempt from such
registration; (ii) each certificate representing the 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, 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.
3.
RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO RIBOGENE, INC., STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF THE 1933 ACT."
and (iii) RIBOGENE will instruct any transfer agent not to register the
transfer of any of the Shares unless the conditions specified in the
foregoing legend are satisfied.
XXXXXX shall have the right to demand removal of the foregoing
legend with respect to any or all of the Shares if, in the opinion of
counsel to RIBOGENE, 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 RIBOGENE as it or its
qualified representative has requested and it has been afforded the
opportunity to ask questions regarding RIBOGENE 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 offered hereunder.
4. REGISTRATION OF SHARES AND INITIAL SHARES.
4.1 REGISTRATION. The registration rights provided herein
are without prejudice to the registration rights contained in the Series E
Purchase Agreement and pertinent exhibits thereto, as amended. The term
"Registrable Shares" means the Shares and the Initial Shares. If RIBOGENE
shall receive at any time after the one year anniversary of the Closing
Date a written request from XXXXXX covering the Registrable Shares then
outstanding that RIBOGENE file a registration statement under the 1933 Act,
then RIBOGENE shall file as soon as practicable, and in any event within
thirty (30) days of the receipt of such request, a registration statement
with the SEC (the "Registration") under the 1933 Act covering all
Registrable Shares which Xxxxxx requests to be registered. In connection
with such Registration RIBOGENE will:
(a) promptly give written notice of the proposed
Registration, and any related qualification or compliance, to XXXXXX; and
(b) as soon as practicable, effect such
Registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of
all of XXXXXX'x Shares; PROVIDED, HOWEVER, that RIBOGENE shall not be
obligated to effect any such Registration, qualification or compliance
pursuant to this Section 4:
(i) if RIBOGENE shall furnish to XXXXXX a
certificate signed by the Chairman of the Board of Directors of RIBOGENE
stating that in the good faith judgment of the Board of Directors of
RIBOGENE, it would be seriously detrimental to RIBOGENE and its
stockholders for such Registration to be effected at such time, in which
event RIBOGENE shall
4.
have the right to defer the filing of the registration statement for a period
of not more than ninety (90) days; PROVIDED, that such right to delay shall
be exercised by RIBOGENE not more than once in any twelve (12) month period,
or
(ii) in any particular jurisdiction in which
RIBOGENE would be required to qualify to do business or to execute a
general consent to service of process in effecting such Registration,
qualification or compliance.
(c) XXXXXX hereby covenants that prior to the first
anniversary of the Closing, it shall not exercise its registration rights
under Section 3 of that certain Tenth Amended and Restated Rights
Agreement, dated March 23, 1998.
4.2 EXPENSES OF REGISTRATION. Except as specifically
provided herein, all expenses incurred in connection with a Registration,
qualification or compliance pursuant to this Section 4 ("Registration
Expenses") shall be borne by RIBOGENE. All underwriting discounts and
selling commissions applicable to such Registration shall be borne by
XXXXXX. RIBOGENE shall not, however, be required to pay for expenses of any
Registration proceeding begun pursuant to this Section 4 which has been
subsequently withdrawn at the request of XXXXXX unless the withdrawal is
based upon material adverse information concerning RIBOGENE of which XXXXXX
was not aware at the time such Registration was initiated.
4.3 OBLIGATIONS OF RIBOGENE. When required to effect the
Registration of the Shares, RIBOGENE shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Shares and use all reasonable
efforts to cause such registration statement to become effective, and keep
such registration statement effective until ABBOTT has completed the
distribution related thereto.
(b) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the 1933 Act with respect to the disposition of the
Registrable Shares covered by such registration statement for the period
set forth in paragraph (a) above.
(c) Furnish to XXXXXX such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the
Registrable Shares then owned by them.
(d) Use its reasonable best efforts to register and
qualify the Registrable Shares covered by such registration statement under
such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by XXXXXX; PROVIDED that RIBOGENE shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the
5.
managing underwriter(s) of such offering. Should XXXXXX participate in such
underwriting, XXXXXX shall also enter into and perform its obligations under
such an agreement.
(f) Notify XXXXXX 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 therein not misleading in the light of the circumstances
then existing.
(g) Use its best efforts to furnish, on the date
that such Registrable Shares are delivered to the underwriters for sale, if
such Registrable Shares are being sold through underwriters, (i) an
opinion, dated as of such date, of the counsel representing RIBOGENE for
the purposes of such Registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a letter dated as of such date, from the
independent certified public accountants of RIBOGENE, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering addressed to the
underwriters.
4.4 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) XXXXXX 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 4.
(b) It shall be a condition precedent to the
obligations of RIBOGENE to take any action pursuant to this Section 4 that
XXXXXX shall furnish to RIBOGENE such information regarding themselves, the
Shares held by them and the intended method of disposition of such Shares
as shall be required to effect the registration of the Shares.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO OBLIGATIONS OF XXXXXX. XXXXXX'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
RIBOGENE in Section 2 hereof shall be true and correct in all material
respects on the date of the Closing with the same force and effect as if
they had been made on and as of said date; and RIBOGENE shall have
performed all obligations and conditions herein required to be performed by
it on or prior to the Closing.
(b) COMPLETION OF INITIAL PUBLIC OFFERING. The
Company shall have completed its Initial Public Offering.
(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.
6.
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 RIBOGENE, 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 XXXXXX
and RIBOGENE are subject.
(d) CERTIFICATE. The Chief Executive Officer of
RIBOGENE shall have delivered to XXXXXX a certificate certifying that the
aggregate Price to Public is not less than $20,000,000 (inclusive of the
Shares) as specified in Section 9 of the Series E Purchase Agreement and
that the representations and warranties set forth in Section 2 hereof are
true and correct, with the same force and effect as if they had been made
on the Closing Date.
(e) OPINION OF COUNSEL. Counsel for RIBOGENE shall
have delivered to XXXXXX an opinion, dated the Closing Date, substantially
to the effect that, on the basis of facts and representation set forth in
such opinion or set forth in writing elsewhere and referred to therein:
(i) RIBOGENE has been duly incorporated and
is a validly existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its properties
and conduct its business as described in Section 2.1 hereof.
(ii) RIBOGENE has corporate power to enter
into and perform its obligations under this Agreement.
(iii) The Shares have been duly authorized and
validly issued and are fully paid and non-assessable and, to the best of
their knowledge and information, have not been issued in violation of or
are not otherwise subject to any preemptive rights or other similar rights.
(iv) Assuming the accuracy of the
representations and warranties of XXXXXX contained in Section 3, hereof,
the offer, issue and sale of the Shares will be exempt from the
registration and prospectus delivery requirements of the 1933 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.
(v) The form of certificate used to evidence
the Shares is in due and proper form and complies with all applicable
statutory requirements.
5.2 CONDITIONS TO OBLIGATIONS OF RIBOGENE. RIBOGENE's
obligation to issue and sell the Shares at the Closing is subject to the
fulfillment to RIBOGENE's satisfaction, on or prior to the Closing, of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The
representations and warranties made by XXXXXX in Section 3 hereof shall be
true and correct at the date of the Closing, with the same force and effect
as if they had been made on and as of said date.
7.
(b) PERFORMANCE OF OBLIGATIONS. XXXXXX 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 RIBOGENE, 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 XXXXXX and RIBOGENE are subject.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements
among Delaware residents, made and to be performed entirely within the
State of Delaware.
6.2 SUCCESSORS AND ASSIGNS. 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.
6.3 ENTIRE AGREEMENT. This Agreement and any 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.
6.4 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.
6.5 AMENDMENT AND WAIVER. 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 RIBOGENE and XXXXXX. Any amendment or waiver
effected in accordance with this Section shall be binding upon XXXXXX, each
future holder of the Shares, and RIBOGENE.
6.6 DELAYS OR OMISSIONS. No delay or omission to exercise
any right, power, or remedy accruing to XXXXXX or any subsequent holder of
any Shares upon any breach, default
8.
or noncompliance of RIBOGENE 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 XXXXXX'x part of any breach, default or noncompliance under this Agreement
or any waiver on XXXXXX'x 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 XXXXXX, shall be cumulative
and not alternative.
6.7 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
effectively given (a) upon personal delivery, (b) on report of successful
transmission by facsimile machine that automatically generates a printed
report indicating whether transmission was completed successfully, at the
conclusion of each transmission, (c) on the first business day after
receipted delivery to a courier service which guarantees next business-day
delivery, under circumstances in which such guaranty is applicable, or (d)
on the earlier of delivery or five (5) business days after mailing by
United States certified by mail, postage and fees prepaid, to the
appropriate party at the address set forth below or to such other address
as the part so notifies the other in writing:
9.
(a) if to RIBOGENE, to:
RIBOGENE, INC.
00000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive
Officer
with a copy to:
XXXXXX 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.
(b) if to ABBOTT, to:
XXXXXX LABORATORIES
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: President, Pharmaceutical Products
Division
with a copy to:
XXXXXX LABORATORIES
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: 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.
6.8 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.
6.9 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.
10.
The foregoing Agreement is hereby executed as of the date first above
written.
RIBOGENE, INC. XXXXXX LABORATORIES
By: ___________________________ By: ___________________________
Printed Name:__________________ Printed Name:__________________
Title:_________________________ Title:_________________________
11.
