Exhibit 10.38
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MYRIAD GENETICS, INC.
129,665 SHARES OF
COMMON STOCK
STOCK PURCHASE AGREEMENT
DATED AS OF APRIL 22, 1997
MYRIAD GENETICS, INC.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made as of April 22, 1997, is by and between MYRIAD
GENETICS, INC. (the "Company"), a Delaware corporation with principal offices at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, and SCHERING CORPORATION, a New Jersey
corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
(the "Purchaser").
WHEREAS the Company and the Purchaser and Schering-Plough Ltd. are entering
into a Research Collaboration and License Agreement (the "Collaboration
Agreement") as of the date hereof, and the Collaboration Agreement contemplates
that the parties hereto shall enter into this Stock Purchase Agreement, which
shall be attached as Attachment 4.2 to the Collaboration Agreement, and a
Standstill Agreement, which shall be attached as Attachment I hereto;
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Collaboration Agreement, the Standstill Agreement and this Stock Purchase
Agreement, the parties agree as follows:
SECTION 1. Definitions. Capitalized terms used herein, unless otherwise
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defined, shall have the meanings given to them in the Collaboration Agreement.
SECTION 2. Authorization of Sale of the Shares. The Company has
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authorized the issuance and sale to the Purchaser of 129,665 shares (each, a
"Share" and, collectively, the "Shares") of common stock, $.01 par value per
share ("Common Stock"), of the Company, constituting 1.43% of the outstanding
Common Stock on the Effective Date after such issuance.
SECTION 3. Agreement to Sell and Purchase the Shares. At the Closing
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(as defined in Section 4 hereof), the Company will sell to the Purchaser, and
the Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, the Shares, at a purchase price per Share equal to the
Fair Market Value of the Common Stock as of the Effective Date.
SECTION 4. Delivery of the Shares at the Closing. The completion of
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the purchase and sale of the Shares pursuant to this Stock Purchaser Agreement
(the "Closing") shall occur on the Effective Date or such later time as shall be
agreed to by the Company and the Purchaser. At the
SECTION 4. Delivery of the Shares at the Closing. The completion of the
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purchase and sale of the Shares pursuant to this Stock Purchaser Agreement (the
"Closing") shall occur on the Effective Date or such later time as shall be
agreed to by the Company and the Purchaser. At the Closing, the Company shall
deliver to Purchaser one or more stock certificates, pursuant to the Purchaser's
reasonable request, each such certificate to be registered in the name of the
Purchaser. The Company's obligation to close the transaction shall be subject to
the following conditions, any of which may be waived by the Company: (a) receipt
by the Company of a certified or official bank check or checks or wire transfer
of funds in the full amount of the purchase price for the Shares being purchased
hereunder; (b) execution and delivery by the Company and the Purchaser and
Schering-Plough Ltd. of the Collaboration Agreement; (c) the accuracy of the
representations and warranties made by the Purchaser herein as though such
representations and warranties had been made on and as of Closing, and the
fulfillment of those undertakings of the Purchaser to be fulfilled prior to the
Closing and the Company's receipt of a Certificate of the President or a Vice
President of the Purchaser certifying as to the same; and (d) execution and
delivery by the Purchaser of the Standstill Agreement. The Purchaser' s
obligation to close the transaction shall be subject to the fulfillment of the
following conditions, any of which may be waived by the Purchaser: (a) execution
and delivery by the Company and the Purchaser and Schering-Plough Ltd. of the
Collaboration Agreement, and (b) the accuracy of the representations and
warranties made by the Company herein as of the Closing as though such
representations and warranties had been made on and as of Closing, and the
fulfillment of those undertakings of the Company to be fulfilled prior to
Closing, and the Purchaser's receipt of a certificate executed by the President
of the Company certifying as to the same.
SECTION 5. Representations, Warranties and Covenants of the Company. The
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Company hereby represents and warrants to, and covenants with, the Purchaser as
follows:
5.1. Organization. The Company and its wholly-owned subsidiaries,
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Myriad Diagnostic Services, Inc. and Myriad Financial, Inc. (the
"Subsidiaries"), are duly organized, validly existing and in good standing under
the laws of the respective jurisdictions of their
organization. Each of the Company and the Subsidiaries has full corporate power
and authority to own, operate and occupy its properties and to conduct its
business as presently conducted and is registered or qualified to do business
and in good standing in each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified would have a
material adverse effect upon the business, financial condition, properties or
operations of the Company and the Subsidiaries, taken together. The Company does
not own, directly or indirectly, any interest in any corporation, association,
or other entity, other than the Subsidiaries.
5.2. Due Authorization. The Company has all requisite corporate
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power and authority to execute, deliver and perform its obligations under this
Stock Purchase Agreement, and this Stock Purchase Agreement has been duly
authorized and executed by the Company and constitutes a legal, valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, except as rights to indemnity and contribution may be limited by
state, federal or foreign laws or the public policy underlying such laws, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally, and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3. Non-Contravention. The execution and delivery of this Stock
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Purchase Agreement, the issuance and sale of the Shares to be sold by the
Company hereunder, the fulfillment of the terms of this Stock Purchase Agreement
and the consummation of the transactions contemplated hereby will not conflict
with or constitute a violation of, or default (with the passage of time or
otherwise) under, any material agreement or instrument to which any of the
Company or the Subsidiaries is a party or by which it is bound or the charter,
by-laws or other organizational documents of the Company or the Subsidiaries nor
result in the creation or imposition of any lien, encumbrance, claim, security
interest or restriction whatsoever upon any of the material properties or assets
of the Company or the Subsidiaries or an acceleration of indebtedness pursuant
to any obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or any material indenture,
mortgage, deed
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of trust or any other agreement or instrument to which any of the Company or the
Subsidiaries is a party or by which any of them is bound or to which any of the
property or assets of the Company or the Subsidiaries is subject, nor conflict
with, or result in a violation of, any law, administrative regulation, ordinance
or order of any court or governmental agency, arbitration panel or authority
applicable to the Company or the Subsidiaries. No consent, approval,
authorization or other order of, or registration, qualification or filing with,
any regulatory body, administrative agency, or other governmental body is
required for the valid issuance and sale of the Shares to be sold pursuant to
this Stock Purchase Agreement, other than such as have been or will be made or
obtained.
5.4. No Material Adverse Change. Subsequent to the date of the most
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recent Quarterly Report on Form 10-Q filed by the Company with the Securities
and Exchange Commission, the Company and the Subsidiaries taken together have
not incurred any material liabilities or obligations, direct or contingent,
other than in the ordinary course of business, and there has not been any
material adverse change in their consolidated condition (in each case, financial
or other), results of operations, business, prospects, key personnel or
capitalization.
5.5 Capitalization. As of March 15, 1997, the Company had a total
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authorized capitalization consisting of (i) 15,000,000 shares of Common Stock,
of which 9,054,595 shares were outstanding, and (ii) 5,000,000 shares of
preferred stock, $.01 par value per share, of which no shares were outstanding.
As of such date, there were outstanding options to acquire a total of 1,075,334
shares of Common Stock and outstanding warrants to acquire a total of 51,990
shares of Common Stock. The outstanding shares of capital stock of the Company
have been duly and validly issued and are fully paid and nonassessable. The
Shares have been duly authorized and, when issued and paid for pursuant to the
terms of this Stock Purchase Agreement, will be validly issued, fully paid and
nonassessable.
5.6 Disclosure. This Stock Purchase Agreement does not contain any
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untrue statement of a material fact about the Company or its subsidiaries or
omit to state any material
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fact about the Company or its subsidiaries necessary in order to make the
statements contained herein, in light of the circumstances under which they were
made, not misleading.
SECTION 6. Representations, Warranties and Covenants of the Purchaser.
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6.1. Securities Act Exemption. The Purchaser represents and warrants
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to, and covenants with, the Company, as of the date hereof and as of the Closing
Date, that: (i) the Purchaser is an "accredited investor" as defined in
Regulation D under the United States Securities Act of 1933, as amended (the
"Securities Act"), and also is knowledgeable and experienced in making
investments in private placement transactions such as the purchase of the
Shares; (ii) the Purchaser is acquiring the Shares for its own account for
investment and with no present intention of distributing any of such Shares, and
no arrangement or understanding exists with any other person regarding the
distribution of any of such Shares (this representation and warranty not
limiting the Purchaser's right to sell pursuant to an effective registration
statement registering the Shares for resale or pursuant to any other means of
sale legally available); (iii) the Purchaser will not, directly or indirectly,
voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares except in compliance with the Securities Act, applicable state securities
laws and the respective rules and regulations promulgated thereunder, and
applicable foreign laws; and (iv) the Purchaser has had an opportunity to ask
questions of and receive answers from the management of the Company regarding
the Company, its business and the offering of the Shares.
6.2. Due Authorization. The Purchaser further represents and
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warrants to, and covenants with, the Company that (i) the Purchaser has all
requisite power and authority to execute, deliver and perform this Stock
Purchase Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution, delivery and
performance of this Stock Purchase Agreement, and (ii) upon the execution and
the delivery hereof and thereof, this Stock Purchase Agreement shall constitute
a valid and binding obligation of the Purchaser enforceable in accordance with
its terms, except as rights to indemnity and contribution may be limited by
state, federal or foreign laws or the public policy underlying such
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laws, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally, and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
6.3. Restrictions on Transfer. The Purchaser acknowledges and
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understands that the Purchaser must bear the economic risk of its investment in
the Shares for an indefinite period of time because the Shares have not been
registered under the Securities Act and, therefore, cannot be sold unless
subsequently registered under the Securities Act or an exemption from such
registration is available. The certificates representing the Shares issued to
each Purchaser will bear a legend in substantially the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED. THE SECURITIES EVIDENCED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO THE PROVISIONS OF A STOCK PURCHASE
AGREEMENT DATED AS OF APRIL 22, 1997.
The Purchaser agrees that any sale, transfer, pledge, hypothecation or
other disposition of the Shares shall be made in compliance with such legends.
6.4. Lock-up. The Purchaser agrees that it shall, if so requested
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by the Company, enter into an agreement providing that it shall not offer, sell
or grant an option for the sale, or otherwise dispose of any shares of Common
Stock or any securities convertible into or
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exercisable for shares of Common Stock (including, without limitation, the
Shares and any options, warrants, stock appreciation rights, or similar rights
with an exercise or conversion privilege at a price related to, or derived from,
the market price of the Common Stock), during the period of ninety (90) days
after the closing of any underwritten public offering of the Company's Common
Stock, without the prior written consent of the managing underwriters of such
public offering (which consent shall not be unreasonably withheld); provided,
however, that this Section 6.4 shall not apply or be effective unless all
executive officers and directors of the Company and all holders of ten percent
(10%) or more of the Common Stock of the Company on a fully diluted basis enter
into similar agreements; and provided, further, that the limitation set forth in
this Section 6.4 shall not apply to the Purchaser more than once in any twelve-
month period, except in the case where the Company seeks to access the public
equity markets to raise capital through an underwritten public offering more
than once in a given twelve-month period, which the parties acknowledge will be
unusual. The restrictions in this Section 6.4 shall apply to any permitted
transferee of the Shares hereunder.
SECTION 7. Survival of Representations, Warranties and Agreements;
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Indemnification.
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7.1 Survival of Representations, Warranties and Agreements.
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Notwithstanding any investigation made by any party to this Stock Purchase
Agreement, all covenants, agreements, representations and warranties made by the
Company and the Purchaser herein shall survive the execution hereof, the
delivery to the Purchaser of the Shares being purchased, and the payment
therefor.
7.2 Indemnification by the Company. The Company hereby agrees to defend,
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indemnify and hold the Purchaser and its Affiliates and their respective
officers, directors, employees and agents (collectively, the "Purchaser
Indemnitees") harmless from and against any damages, liabilities, losses and
expenses (including reasonable attorneys' fees and expenses) which are actually
sustained by the Purchaser Indemnitees as a result of or based upon a material
breach of any representation, warranty or agreement of the Company in this Stock
Purchase Agreement, or by reason of any claim, action or proceeding asserted or
arising out of a breach of any such representation, warranty or agreement.
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7.3 Indemnification by the Purchaser. The Purchaser hereby agrees to
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defend, indemnify and hold the Company and its Affiliates and their respective
officers, directors, employees and agents (collectively, the "Company
Indemnitees") harmless from and against any damages, liabilities, losses and
expenses (including reasonable attorneys' fees and expenses) which are actually
sustained by the Company Indemnitees as a result of or based upon a material
breach of any representation, warranty or agreement of the Purchaser in this
Stock Purchase Agreement, or by reason of any claim, action or proceeding
asserted or arising out of a breach of any such representation, warranty or
agreement.
SECTION 8. Registration of the Shares; Compliance with the Securities Act.
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8.1 "Piggyback" Registration. If at any time the Company shall
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initiate a registration under the Securities Act of any of its Common Stock for
its own account, other than securities to be issued (i) in connection with any
acquisition of any entity or business, (ii) upon the exercise of stock options,
or (iii) pursuant to employee benefit plans (including registrations on Form S-8
or Form S-4 or their then equivalents), it shall send to the Purchaser written
notice of such determination and, if within fifteen (15) days after the giving
of such notice, the Purchaser shall so request in a writing received by the
Company, the Company shall include in such registration statement all or any
part of the Shares that the Purchaser requests to be registered therein; except
that, if in connection with any underwritten public offering of Common Stock by
the Company, the managing underwriter shall recommend that the number of Shares
to be included in such registration statement be limited because, in the
underwriter's judgment, such limitation will facilitate the public distribution
of the Company's shares, then the number of Shares to be included in such
registration statement shall be limited to the extent so recommended (which may
be the complete exclusion of such shares); provided, however, that such
limitation shall be proportionate to the limitation applied to any other holders
of Common Stock with registration rights who request the inclusion of shares in
the registration statement. The rights granted by the Company under this
Section 8.1 shall terminate on the date that the Shares first become eligible
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for resale pursuant to Rule 144 under the Securities Act (such termination to be
subject to the Company's compliance with Section 9 hereof).
8.2 Effectiveness of Registration Statements. The Company will use
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commercially reasonable efforts to maintain the effectiveness of any
registration statement under which any of the Shares are being offered pursuant
to Section 8.1 hereof until the earlier to occur of (i) the completion of the
distribution pursuant to such registration statement or (ii) thirty (30) days
after the effectiveness of such registration statement. The Company will
promptly notify the Purchaser and each underwriter under such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event of which the
Company has knowledge as a result of which the prospectus contained 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 light of the
circumstances then existing. The Purchaser agrees upon receipt of such notice
forthwith to cease making offers and sales of Shares pursuant to such
registration statement or deliveries of the prospectus contained therein for any
purpose until the Company has prepared and furnished such amendment or
supplement to the prospectus as may be necessary so that, as thereafter
delivered to a purchaser of Shares, such prospectus shall not include an untrue
statement of a material fact or omit 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. The Purchaser further agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in this Section 8.2, the Purchaser will, if requested by the
Company, deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in the Purchaser's possession of the prospectus
current at the time of receipt of such notice from the Company.
8.3 Expenses of Registration. All costs and expenses incurred in
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connection with any registration pursuant to this Section 8, including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel for the Company, and expenses of any special
audits of the Company's financial statements incidental to
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or required by such registration shall be paid by the Company; provided,
however, that the Company shall have no obligation to pay any stock transfer
taxes, underwriters' fees, discounts or commissions with respect to the sale of
the Shares, or the fees and expenses of any counsel or advisor to the Purchaser.
8.4 Registration Procedures.
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Whenever the Purchaser has requested that any Shares be included in a
Company registration statement pursuant to this Section 8, the Company will use
commercially reasonable efforts to effect the registration and sale of such
Shares upon the terms and conditions hereof, and in connection with any such
request, the Company will:
(a) as soon as reasonably possible, furnish to the Purchaser
copies of such registration statement as filed and each amendment
and supplement thereto, as many copies of the prospectus included
in such registration statement and any amendments or supplements
thereto as the Purchaser may reasonably request (including each
preliminary prospectus);
(b) use its best efforts to register or qualify such Shares
under the securities or blue sky laws of such jurisdictions as
the managing underwriter of such offering, if any, or the selling
shareholders under such registration statement if there is no
underwriter, may reasonably request and do any and all other acts
and things which may be reasonably necessary or advisable to
enable the Purchaser to consummate the disposition in such
jurisdictions of the Shares; provided, that the Company will not
be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this paragraph (b), or (ii) take any action that would
subject it to the service of process in suits other than relating
to the sale of the Shares or any violation of state securities
laws in any jurisdiction where it is not now so subject;
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(c) use its best efforts to cause the Shares covered by such
registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the Purchaser or the underwriter or underwriters, if any,
to consummate the disposition of such Shares subject to the
proviso contained in paragraph (b) above;
(d) notify the Purchaser of any stop order issued or threatened
by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(e) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions
(including obtaining customary opinions of counsel for the
Company) as are reasonably required in order to expedite or
facilitate the disposition of such Shares;
(f) to the extent customary for an offering of the type
registered by such registration statement, use its best efforts
to obtain a comfort letter from the Company's independent public
accountants in customary form and covering matters of the type
customarily covered by comfort letters with respect to such type
of offering (it being acknowledged by the Purchaser that comfort
letters are not customarily obtained in non-underwritten
offerings);
(g) otherwise comply with all applicable rules and regulations
of the Commission, and make generally available to its security
holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(h) cause all such Shares to be listed on each securities
exchange or quotation system on which similar securities issued
by the Company are then listed; and
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(i) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD")
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and in the performance of any due diligence investigation that is
required in accordance with the rules and regulations of the
NASD).
The Company may require the Purchaser to furnish to the Company such
information regarding the distribution of the Shares as the Company may from
time to time reasonably request in writing.
8.5 Indemnification.
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(a) Indemnification by the Company. In connection with any
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registration statement in which the Purchaser includes Shares pursuant to this
Section 8, the Company will indemnify the Purchaser, together with each of the
Purchaser's officers, directors and partners, and each underwriter of the
Shares, if any, and each person who controls the Purchaser or any underwriter
within the meaning of the Securities Act, against all claims, losses, expenses,
damages and liabilities (or actions in respect thereto) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement or prospectus, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such person for any reasonable legal and any other expenses
incurred in connection with investigating, defending or settling any such claim,
loss, damage, liability or action, provided that the Company will not be liable
in any such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Purchaser or underwriter
specifically for use therein.
(b) Indemnification by the Purchaser. The Purchaser will, if any
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of its Shares are included in a registration pursuant hereto, indemnify the
Company, each of its directors and
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officers, each underwriter, if any, of the Shares covered by such registration
statement, and each person who controls the Company and any underwriter within
the meaning of the Securities Act, and each other holder of securities
registered under the registration statement, each of its officers, directors and
partners and each person controlling such holder, against all claims, losses,
expenses, damages and liabilities (or actions in respect thereto) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement or prospectus, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such person for any reasonable legal and any other expenses
incurred in connection with investigating, defending or settling any such claim,
loss, damage, liability or action, in each case to the extent, but only to the
extent, that such untrue statement or omission (or alleged untrue statement or
omission) is made in such registration statement or prospectus in reliance upon
and in conformity with written information furnished to the Company by the
Purchaser specifically for use therein.
(c) Contribution. In order to provide for just and equitable
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contribution to joint liability under the Securities Act in any case in which
any person exercising rights under this Section 8.5 makes a claim for
indemnification, but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 8.5 provides for indemnification in such case, then, the Company
and the Purchaser will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and of the Purchaser on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Purchaser on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or by the Purchaser on the other, and each party's relative intent,
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knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (i) the
Purchaser will not be required to contribute any amount in excess of the public
offering price of all Shares offered by it pursuant to such registration
statement; and (ii) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
(d) Indemnification Procedures. Each party entitled to
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indemnification under this Section 8.5 (the "Indemnified Party") shall give
notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party who shall conduct the defense
of such claim or litigation shall be approved by the Indemnified Party (which
approval shall not be unreasonably withheld), and the Indemnified Party may
participate in such defense at such party's expense, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations hereunder, unless such failure
resulted in actual detriment to the Indemnifying Party. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, 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 such Indemnified Party of a release from all
liability in respect of such claim or litigation.
8.6 Conditions to Registration Obligations. The Company shall
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not be obligated to effect the registration of the Purchaser's Shares pursuant
to this Section 8 unless the Purchaser consents to such reasonable conditions
imposed by the Company as the Company shall determine with the advice of counsel
to be required by law, including, without limitation:
(a) conditions requiring the Purchaser to comply with all
prospectus delivery requirements of the Securities Act and with all anti-
stabilization, anti-manipulation and
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similar provisions of Section 10 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any rules issued thereunder by the
Commission, and to furnish to the Company information about sales made in
such public offering;
(b) conditions prohibiting the Purchaser upon receipt of
telegraphic or written notice from the Company from effecting sales of
Shares until further notice;
(c) conditions requiring that at the end of the period during
which the Company is obligated to keep the registration statement effective
under this Section 8, the Purchaser shall discontinue sales of Shares
pursuant to such registration statement upon receipt of notice from the
Company of its intention to remove from registration the securities covered
by such registration statement that remain unsold, and requiring the
Purchaser to notify the Company of the number of Shares registered that
remain unsold immediately upon receipt of notice from the Company; and
(d) conditions requiring the Purchaser to enter into an
underwriting agreement with customary terms and conditions and in form and
substance reasonably satisfactory to the Company.
8.7 Transferability of Registration Rights. The registration
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rights granted hereunder may be transferred by the Purchaser (i) with the prior
written consent of the Company, or (ii) without the prior written consent of the
Company in connection with transfers of a material portion of the Shares to not
more than four (4) transferees; provided, however, that each transferee of
registration rights hereunder shall be subject to the same obligations as the
Purchaser, and provided, further, that if any of such transferees are Affiliates
of the Purchaser, one entity (which may be the Purchaser) shall be designated by
the Purchaser to act on behalf of the Purchaser and such Affiliates to give and
receive all notices and other communications pursuant to this Section 8.
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SECTION 9. Rule 144 Reporting
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With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Shares to the public without registration, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Act and the Exchange; and
(c) furnish to any holder of Shares forthwith upon request a
written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company
as such holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing such holder to sell any
Shares without registration.
SECTION 10. No Fee. The parties hereto hereby represent that there
------
are no brokers or finders entitled to compensation in connection with the
transactions contemplated hereby.
SECTION 11. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid:
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if to the Company, to:
Myriad Genetics, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Purchaser, to:
Schering-Plough Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President, Business Development
with a copy to:
Schering Corporation
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
and General Counsel
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the
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courier service, or (iv) if sent by registered or certified mail, on the 5th
business day following the day such mailing is made.
SECTION 12. Changes. Any term of this Stock Purchaser Agreement may
-------
be amended or compliance therewith waived with the written consent of the
parties hereto; provided, however, that any provision of Section 8 hereof may be
amended or compliance therewith waived by the written consent of the Company and
the holders of a majority of the Shares which have not been previously sold
pursuant to a registration statement under Section 8.1 or an exemption from
registration under the Securities Act.
SECTION 13. Assignment. Subject to Section 8.7 hereof, the rights
----------
and obligations under this Stock Purchase Agreement may not be assigned by any
party hereto without the prior written consent of the other party; provided,
however, that the Purchaser may, without such prior written consent of the
Company, assign its rights and obligations hereunder to an Affiliate.
SECTION 14. Benefit. All statements, representations, warranties,
-------
covenants and agreements in this Stock Purchase Agreement shall be binding on,
and inure to the benefit of, the respective parties hereto and their respective
successors and permitted assigns. Nothing herein shall be construed to create
any rights or obligations except among the parties hereto, and no person or
entity shall be regarded as a third-party beneficiary of this Stock Purchase
Agreement.
SECTION 15. Expenses. Subject to Section 8.3 hereof, each of the
--------
parties hereto shall pay its own fees and expenses (including the fees of any
attorneys, accountants, appraisers or others engaged by such party) in
connection with this Stock Purchase Agreement, the Standstill Agreement and the
transactions contemplated hereby and thereby whether or not the transactions
contemplated hereby or thereby are consummated.
SECTION 16. Headings. The headings of the various sections of this
--------
Stock Purchase Agreement have been inserted for convenience of reference only
and shall not be deemed to be part hereof.
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SECTION 17. Severability. In case any provision contained in this
------------
Stock Purchase Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
SECTION 18. Governing Law. This Stock Purchase Agreement shall be
-------------
governed by and construed in accordance with (a) the internal laws of the State
of Delaware without giving effect to principles of conflicts of law, and (b)
with respect to Section 8 hereof, United States federal law.
SECTION 19. Counterparts. This Stock Purchase Agreement may be
------------
executed in counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
IN WITESS WHEREOF, the parties hereto have duly executed this Stock
Purchase Agreement as of the 22nd day of April 1997.
SCHERING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
MYRIAD GENETICS, INC.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
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