EXHIBIT 10.25
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made by and between SPECTRAGEN, INC.,
a Delaware corporation (the "Company"), and XXX XXXXX ("Purchaser").
WITNESSETH:
WHEREAS, Purchaser holds a non-statutory stock option to purchase
shares of common stock of the Company pursuant to the Company's 1995 Stock
Option Plan (the "Plan") which Purchaser desires to exercise; and
WHEREAS, Purchaser wishes to take advantage of the early exercise
provision of his option and therefore to enter into this Agreement;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Purchaser hereby agrees to purchase from the Company, and the
Company hereby agrees to sell to Purchaser, an aggregate of One Hundred Thousand
(100,000) shares of the Company's Common Stock (the "Stock"), for an exercise
price of Twenty Cents ($0.20) per share (total exercise price: (Twenty Thousand
Dollars ($20,000)), payable in cash.
The closing hereunder shall occur at the offices of the Company on the
date of this Agreement or at such other time and place as the parties may
mutually agree upon in writing.
At the closing, Purchaser shall deliver one (1) stock assignment in the
form of Exhibit A, duly endorsed (with date and number of shares left blank),
joint escrow instructions (the "Joint Escrow Instructions") in the form of
Exhibit B, duly executed by Purchaser, and the total exercise price.
At the closing or as soon thereafter as practicable, the Company shall
deliver to the Escrow Agent (as defined in paragraph 8 below) a share
certificate for all of the Stock that is to be subject to the Purchase Option
(as defined in paragraph 2 below).
2. In accordance with the provisions of Section 408(b) of the
California General Corporation Law, the Stock to be purchased by Purchaser
pursuant to this Agreement shall be subject to the following option ("Purchase
Option"):
(a) In the event that Purchaser shall cease to be an employee
of the Company for any reason (including his death), or no reason, with or
without cause, the Purchase Option may be exercised. The Company shall have the
right at any time within the ninety (90) day period after Purchaser's
termination of service with the Company and all related companies or such longer
period as may be agreed to by the Company and
Purchaser (for example, for purposes of satisfying the requirements of Section
1202(c)(3) of the Internal Revenue Code) to purchase from Purchaser or his
personal representative, as the case may be, at the price per share paid by
Purchaser pursuant to this Agreement ("Option Price").
(b) The Stock shall vest as follows: One-twentieth (1/20) of
the total number of shares of Stock shall vest one year from the first date of
employment and one-sixtieth (1/60) will vest monthly thereafter, so that upon
the date that is five years from the Commencement Date, all of the shares of
Stock shall have vested. Shares of Stock that have vested shall not be subject
to the Purchase Option.
(c) In addition, and without limiting the foregoing Purchase
Option, if at any time during the term of the Purchase Option, there occurs: (a)
a dissolution or liquidation of the Company; (b) a merger or consolidation
involving the Company in which the Company is not the surviving Company; (c) a
reverse merger in which the Company is the surviving corporation but the shares
of the Company's common stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of
other securities, cash or otherwise; or (d) any other capital reorganization in
which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanged, then: (i) if there is no successor to the Company, the
Company shall have the right to exercise its Purchase Option as to all or any
portion of the Stock then subject to the Purchase Option set forth above to the
same extent as if Purchaser's employment by the Company had ceased on the date
preceding the date of consummation of said event or transaction, or (ii) the
Purchase Option may be assigned to any successor of the Company, and the
Purchase Option shall apply if Purchaser shall cease for any reason to be an
employee of such successor on the same basis as set forth above. In that case,
references herein to the "Company" shall be deemed to refer to such successor.
(d) As used herein, employment with the Company shall include
employment with an affiliate of the Company.
(e) This Agreement is not an employment contract and nothing
in this Agreement shall be deemed to create in any way whatsoever any obligation
on the part of Purchaser to continue in the employ of the Company, or of the
Company to continue Purchaser in the employ of the Company.
(f) In the event that the Stock's Fair Market Value (as
defined in the Plan) is equal to or exceeds the Option Price on the date that
the Purchaser ceases to be employed, the Company shall exercise its Purchase
Option to the extent permitted by law.
3. The Purchase Option may be exercised by giving written notice of
exercise delivered or mailed as provided in paragraph 14. Upon providing of such
notice and payment or tender of the purchase price, the Company shall become the
legal and beneficial owner of the Stock being purchased and all rights and
interests therein or related thereto.
2.
4. If from time to time during the term of the Purchase Option there is
any stock dividend or liquidating dividend or distribution of cash and/or
property, stock split or other change in the character or amount of any of the
outstanding securities of the Company, then, in such event, any and all new,
substituted or additional securities or other property to which Purchaser is
entitled by reason of his ownership of Stock will be immediately subject to the
Purchase Option and be included in the word "Stock" for all purposes of the
Purchase Option with the same force and effect as the shares of Stock then
subject to the Purchase Option. While the total Option Price shall remain the
same after each such event, the Option Price per share of Stock upon exercise of
the Purchase Option shall be appropriately adjusted.
5. All certificates representing any shares of Stock of the Company
subject to the provisions of this Agreement shall have endorsed thereon legends
in substantially the following form:
(i) "The shares represented by this certificate are
subject to an option set forth in an agreement between the Company and the
registered holder, or his predecessor in interest, a copy of which is on file at
the principal office of this Company. Any transfer or attempted transfer of any
shares subject to such option is void without the prior express written consent
of the issuer of these shares."
(ii) "These securities have not been registered under
the Securities Act of 1933. They may not be sold, offered for sale, pledged or
hypothecated in the absence of an effective registration statement as to the
securities under said Act or an opinion of counsel satisfactory to the Company
that such registration is not required."
(iii) Any legend required to be placed thereon by the
California Commissioner of Corporations.
6. Purchaser acknowledges that he is aware that the Stock to be issued
to him by the Company pursuant to this Agreement has not been registered under
the Securities Act of 1933, as amended (the "Act"), on the basis that no
distribution or public offering of the Stock is to be effected, and in this
connection acknowledges that the Company is relying on the following
representations: Purchaser warrants and represents to the Company that he is
acquiring the Stock for investment and not with any present intention of
distributing or selling the Stock and he does not presently have reason to
anticipate any change in circumstances or any particular occasion or event which
would cause him to sell the Stock. Purchaser recognizes that the Stock must be
held indefinitely unless it is subsequently registered under the Act or an
exemption from such registration is available and, further, recognizes that the
Company is under no obligation to register the Stock or to comply with any
exemption from such registration.
7. Purchaser is aware that the Stock may not be sold pursuant to Rule
144 adopted under the Act unless certain conditions are met and until Purchaser
has held the Stock for at least two (2) years. Among the conditions for use of
Rule 144 is the availability
3.
of specified current public information about the Company. Purchaser recognizes
that the Company presently has no plans to make such information available to
the public.
Whether or not the Purchase Option is exercised or has lapsed,
Purchaser further agrees not to make any disposition of any of the Stock in any
event unless and until;
(a) There is then in effect a registration statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) Purchaser shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii)
Purchaser shall have given the Corporation an opinion of counsel, which opinion
and counsel shall be satisfactory to the Company, to the effect that such
disposition will not require registration of the Stock under the Act.
8. As security for his faithful performance of the terms of this
Agreement and to insure the availability for delivery of Purchaser's Stock upon
exercise of the Purchase Option herein provided for, Purchaser agrees, at the
closing hereunder (or as soon thereafter as practicable), to deliver (or have
the Company deliver on the Purchaser's behalf) to and deposit with the Secretary
of the Company ("Escrow Agent"), as Escrow Agent in this transaction, one (1)
stock assignment duly endorsed (with date and number of shares left blank) in
the form attached hereto as Exhibit A, together with a certificate or
certificates evidencing all of the Stock subject to the Purchase Option; said
documents are to be held by the Escrow Agent and delivered by said Escrow Agent
pursuant to the Joint Escrow Instructions of the Company and Purchaser set forth
in Exhibit B attached hereto and incorporated herein by this reference, which
instructions shall also be delivered to the Escrow Agent at the closing
hereunder (or as soon thereafter as practicable).
9. Purchaser shall not sell or transfer any of the Stock subject to the
Purchase Option or any interest therein so long as such Stock is subject to the
Purchase Option.
10. The Company shall not be required (i) to transfer on its books any
shares of Stock of the Company which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement or (ii) to treat
as owner of such shares or to accord the right to vote as such owner or to pay
dividends to any transferee to whom such shares shall have been so transferred.
11. Subject to the provisions of paragraphs 9 and 10 above, Purchaser
(but not any unapproved transferee) shall, during the term of this Agreement,
exercise all rights and privileges of a stockholder of the Company with respect
to the Stock.
12. Purchaser acknowledges receipt of a copy of Section 260.141.11 of
Title 10 of the California Administrative Code, attached hereto as Exhibit C.
4.
13. The parties agree to execute such further instruments and to take
such further action as reasonably may be necessary to carry out the intent of
this Agreement.
14. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in any United States Post Office Box, by registered or certified mail
with postage and fees prepaid, addressed to the other party hereto at his
address hereinafter shown below his signature or at such other address as such
part may designate by ten (10) days' advance written notice to the other part
hereto.
15. This Agreement shall bind and inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, inure to the benefit of and be binding upon
Purchaser, his heirs, executors, administrators, successors, and assigns.
Without limiting the generality of the foregoing, the Purchase Option of the
Company hereunder shall be assignable by the Company at any time or from time to
time, in whole or in part. Should the right of repurchase be assigned by the
Company, the assignee shall pay to the Company cash equal to the excess, if any,
of the Stock's Fair Market Value (as defined in the Plan) over the Option Price.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 13th day of June, 1996.
SPECTRAGEN, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------
Address: 0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
PURCHASER
/s/ Xxx Xxxxx
----------------------------
Address:
----------------------------
ATTACHMENTS:
Exhibit A Assignment Separate from Certificate
Exhibit B Joint Escrow Instructions
Exhibit C Cal. Admin. Code, Title 10, Section 260.141.11
5.
Exhibit A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ____________________________________ hereby sells,
assigns and transfers unto Spectragen, Inc. ("Lynx") a total of (_____) shares
of Common Stock of Spectragen, Inc. (the "Company") standing in its name on the
books of said corporation represented by Certificate No. _______ herewith and
does hereby irrevocably constitute and appoint Secretary (or his successor) of
Spectragen, Inc. as Attorney to transfer such stock on the books of the within
named Company with full power of substitution in the premises.
This Assignment may be used only in connection with and subject to the
terms and conditions of that certain Stockholders Agreement dated as of August
21, 1995 by and among the Company, Lynx and certain stockholders of the Company,
to which the undersigned stockholder(s) became party as of June 1, 1996.
Dated:
--------------------
Signature
-------------------------
Print Name:
-------------------------
6.
Exhibit B
JOINT ESCROW INSTRUCTIONS
Secretary
Spectragen, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Dear Sir:
As Escrow Agent for Spectragen, Inc., a Delaware corporation
("Company"), Lynx Therapeutics, Inc., a Delaware corporation ("Lynx") and the
undersigned purchaser of stock of the Company ("Stockholder"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to the
terms of that certain Stockholders Agreement ("Agreement"), dated, August 21,
1995, to which the Stockholder became a party on, June 12, 1996, in accordance
with the following instructions:
1. In the event that Lynx exercises the Purchase Right set forth in the
Agreement, Lynx or its assignee will give written notice to Stockholder and you
pursuant to the terms of the Agreement. Stockholder, Lynx and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice in accordance with the terms of the Agreement.
2. At the closing you are directed to: (a) date any stock assignments
necessary for the transfer in question, (b) fill in the number of shares being
transferred, and (c) deliver same, together with the certificate evidencing the
shares of stock to be transferred, to Lynx against the simultaneous delivery to
you of the consideration for the exercise of the Purchase Right set forth in the
Agreement.
3. Stockholder irrevocably authorizes the Company to deposit with you
any certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to such shares as specified in the Agreement.
Stockholder does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities and other property all documents of assignment and/or
transfer and all stock certificates necessary or appropriate to make all
securities negotiable and to complete any transaction herein contemplated,
including but not limited to any appropriate filing with government or bank
officials. Subject to the provisions of this Section 3, Stockholder shall
exercise all rights and privileges of a stockholder of the Company while the
stock is held by you.
4. This escrow shall terminate upon expiration or exercise in full of
the Purchase Right, whichever occurs first.
7.
5. If, at the time of termination of this escrow, you should have in
your possession any documents, securities, or other property belonging to
Stockholder, you shall deliver all of same to any pledgee entitled thereto or,
if none, to Stockholder and shall be discharged of all further obligations
hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties or
their assignees. You shall not be personally liable for any act you may do or
omit to do hereunder as Escrow Agent or as attorney-in-fact for Stockholder
while acting in good faith, and any act done or omitted by you pursuant to the
advice of your own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and you are
hereby expressly authorized to comply with and obey orders, judgments or decrees
of any court. In case you obey or comply with any such order, judgment or decree
of any court, you shall not be liable to any of the parties hereto or to any
other person, firm or corporation by reason of such compliance, notwithstanding
any such order, judgment or decree being subsequently reversed, modified,
annulled, set aside, vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel (including
without limitation the firm of Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx) and
other experts as you may deem necessary properly to advise you in connection
with your obligations hereunder, may rely upon the advice of such counsel, and
may pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be Secretary of the Company or if you shall resign by written
notice to each party. In the event of any such termination, the Company may
appoint any officer or assistant officer of the Company as successor Escrow
Agent and Stockholder hereby confirms the appointment of such successor or
successors as his attorney-in-fact and agent to the full extent of your
appointment.
8.
13. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities, you may (but are not obligated to) retain in your possession without
liability to anyone all or any part of such securities until such dispute shall
have been settled either by mutual written agreement of the parties concerned or
by a final order, decree or judgment of a court of competent jurisdiction after
the time for appeal has expired and no appeal has been perfected, but you shall
be under no duty whatsoever to institute or defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in any United States Post Box, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties hereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten (l0) days' written notice to each of the other parties hereto:
COMPANY: Spectragen, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
LYNX: Lynx Therapeutics, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
STOCKHOLDER: ___________________________________
___________________________________
___________________________________
ESCROW AGENT: Secretary
Spectragen, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
16. By signing these Joint Escrow Instructions you become a party
hereto only for the purpose of such Joint Escrow Instructions; you do not become
a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns. It is
understood and agreed that references to "you" or "your" herein refer to the
original Escrow Agent and to any and
9.
all successor Escrow Agents. It is understood and agreed that the Company and
Lynx may at any time or from time to time assign its rights under the Agreement
and these Joint Escrow Instructions in whole or in part.
Very truly yours,
SPECTRAGEN, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Director
-----------------------------
STOCKHOLDER:
/s/ Xxx Xxxxx
-----------------------------
ESCROW AGENT:
Xxxxx X. Xxxxx
-------------------------
Secretary
Spectragen, Inc.
10.
Exhibit C
STATE OF CALIFORNIA - CALIFORNIA ADMINISTRATIVE CODE
TITLE 10. Investment- Chapter 3. Commissioner of Corporations
260.141.11: RESTRICTION ON TRANSFER. (a) The issuer of any security upon which a
restriction on transfer has been imposed pursuant to Sections 260.102.6,
260.141.10 or 260.534 shall cause a copy of this section to be delivered to each
issuee or transferee of such security at the time the certificate evidencing the
security is delivered to the issuee or transferee.
(b) It is unlawful for the holder of any such security to consummate a sale or
transfer of such security, or any interest therein, without the prior written
consent of the Commissioner (until this condition is removed pursuant to Section
260.141.12 of these rules), except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in subdivision (i) of Section 25102 of the Code or
Section 260.105.14 of these rules;
(4) to the transferor's ancestors, descendants or spouse, or any custodian or
trustee for the account of the transferor or the transferor's ancestors,
descendants, or spouse; or to a transferee by a trustee or custodian for the
account of the transferee or the transferee's ancestors, descendants or spouse;
(5) to holders of securities of the same class of the same issuer;
(6) by way of sift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code (either acting as such
or as a finder) to a resident of a foreign state, territory or country who is
neither domiciled in this state to the knowledge of the broker-dealer, nor
actually present in this state if the sale of such securities is not in
violation of any securities law of the foreign state, territory or country
concerned;
(8) to a broker-dealer licensed under the Code in a principal transaction, or as
an underwriter or a member of an underwriting syndicate or selling group;
(9) if the interest sold or transferred is a pledge or other lien given by the
purchaser to the seller upon a sale of the security for which the Commissioner's
written consent is obtained or under this rule not required;
(10) by way of a sale qualified under Sections 25111, 25112, . 5113, or 25121 of
the Code, of the securities to be transferred, provided that no order under
Section 25140 or Subdivision (a) of Section 25143 is in effect with respect to
such qualification;
(11) by a corporation to a wholly owned subsidiary of such corporation, or by a
wholly owned subsidiary of a corporation to such corporation;
(12) by way of an exchange qualified under Section 25111, 25112 or 25113 of the
Code, provided that no order under Section 25 140 or Subdivision (a) of Section
25143 is in effect with respect to such qualification;
(13) between residents of foreign states, territories or countries who are
neither domiciled nor actually present in this state;
11.
(14) to the State Controller pursuant to the Unclaimed Property Law or to the
administrator of the unclaimed property law of another state;
or
(15) by the State Controller pursuant to the Unclaimed Property Law or by the
administrator of the unclaimed property law of another state if, in either such
case, such person (i) discloses to potential purchasers at S the sale that
transfer of the securities is restricted under rule, (ii) delivers to each
purchaser a copy of this rule, and (iii) advises the Commissioner of the name of
each purchaser:
(16) by a trustee to a successor trustee when such transfer does not involve a
change in the beneficial ownership of the securities;
(17) In by way of an offer and sale of outstanding securities in an issuer
transaction that is subject to the qualification requirement of Section 25110 of
the Code but exempt from that qualification requirement by subdivision (f) of
Section 25102; provided that any such transfer is on the condition that any
certificate evidencing the security is issued to such transferee shall contain
the legend required by this section.
(c) The certificates representing all such securities subject to such a
restriction on transfer, whether upon initial is upon or upon any transfer
thereof, shall bear on their face a legend, prominently stamped or printed
thereon in capital letters of not less than 10-point size, reading as follows:
*IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURlTY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
COMMISSIONER'S RULES. "20856238 020695
12.
