MEMORIALIZATION AGREEMENT
Exhibit 10.40
This Memorialization Agreement is entered into as of this 12th day of January, 2006, between
Ciphergen Biosystems, Inc., a Delaware corporation (the “Company”), and Quest Diagnostics
Incorporated (the “Purchaser”) (each a “Party” and together the “Parties”).
RECITALS
1. The Company and the Purchaser have previously entered into a Stock Purchase Agreement dated
as of July 22, 2005 (the “Purchase Agreement”) providing for the sale to the Purchaser of 6,225,000
shares of Common Stock (the “Common Stock”) of the Company and the issuance to the Purchaser of a
Warrant (the “Warrant”) to purchase additional 2,200,000 shares of Common Stock (the “Warrant
Shares”).
2. The Company and the Purchaser now wish to clarify their original intent with regard to the
terms of the Purchase Agreement and the Warrant.
NOW, THEREFORE, the Parties agree as follows:
1. The Warrant may not be exercised for a number of shares that would result in the Purchaser,
after the issuance of any Warrant Shares, owning more than 19.9% of the number of shares of the
Company’s Common Stock outstanding as of the date of such exercise; provided that Purchaser
may, prior to or concurrently with the issuance of any Warrant Shares, sell such number of shares
of Common Stock that, after giving effect to the issuance of the Warrant Shares and such sale,
Purchaser would not own more than 19.9% of the shares of the Common Stock.
2. The foregoing shall constitute the agreement of the Parties notwithstanding any
language contained in the Purchase Agreement or the Warrant which may be construed to the
contrary.
3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first written above.
| CIPHERGEN BIOSYSTEMS, INC. | ||||
By:
|
/s/ Xxxx X. Page
|
|||
Name:
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Xxxx X. Page | |||
Title:
|
President & CEO | |||
| QUEST DIAGNOSTICS INCORPORATED | ||||
By:
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/s/ Xxxxxxxxx X. Xxxxxxx | |||
Name:
|
Xxxxxxxxx X. Xxxxxxx | |||
Title:
|
VP, Office of the Chairman | |||
