1
EXHIBIT 10.13
RIGHT OF FIRST REFUSAL AGREEMENT
RIGHT OF FIRST REFUSAL AGREEMENT, dated July 29, 1996, between
Xxxxxxx Xxxxx Securities Incorporated, a Delaware corporation (the "Placement
Agent"), and ZymeTx, Inc. (the "Company").
WHEREAS, the Placement Agent and the Company are parties to the
Placement Agency Agreement, dated as of May 22, 1996, between the Placement
Agent and the Company (the "Placement Agency Agreement"); and
WHEREAS, pursuant to Section 6(j) of the Placement Agency Agreement
the Company has agreed to grant to the Placement Agent rights of first refusal.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows.
1. Grant of Rights.
(a) In the event that, within the five years following
the date of the First Closing (as defined in the Placement Agency Agreement),
the Company desires to (i) issue any of its capital stock or securities
convertible into, or exercisable or exchangeable for, its capital stock
("Securities") or (ii) engage any underwriter or agent for any proposed public
or private offering of the Company's Securities by the Company or any of its
principal stockholders, the Company shall, prior to any such issuance or
engagement, provide written notice (the "Notice") thereof to the Placement
Agent, describing in detail the terms thereof.
(b) The Placement Agent shall have the right, within 30
business days of receipt of any Notice, to elect in writing to purchase all of
such Securities, or to act as underwriter or agent, as described in the Notice,
on the same terms set forth in the Notice. The Placement Agent's failure to so
elect within such 30-day period shall be deemed to be a waiver of the Placement
Agent's rights under this Agreement and under Section 6(j) of the Placement
Agency Agreement with respect to the particular issuance of Securities or
engagement of an underwriter or agent described in the Notice, and the Company
may issue such Securities or engage such underwriter or agent on the terms set
forth in the Notice, subject to Section 6(i) of the Placement Agency Agreement;
provided, however, that prior to accepting any proposal with respect to the
issuance of Securities or engagement of any underwriter or agent on terms
materially less favorable to the Company than those set forth in the Notice,
the Placement Agent shall be entitled to enforce its rights of first refusal
under this Agreement.
2
(c) The Placement Agent's failure to enforce its rights
of first refusal under this Agreement with respect to any Notice shall not
constitute a waiver of its rights of first refusal with respect to any
subsequent issuance of Securities or engagement of an underwriter or agent by
the Company during the term of this Agreement.
2. Successors. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their permitted
assigns and successors.
3. Governing Law. this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the principles of conflicts of laws thereof.
4. Severability. Should any term or provision hereof be
deemed invalid, void or unenforceable either in its entirety or in a particular
application, the remainder of this Agreement shall nonetheless remain in full
force and effect and, if the subject term or provision shall be deemed to be
invalid, void or unenforceable only with respect to a particular application,
such term or provision shall remain in full force and effect with respect to
all other applications.
5. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof, and
all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, with the exception of Section 6(i) of the
Placement Agency Agreement, are merged herein. No modification, waiver,
amendment, discharge or change of this Agreement shall be valid unless the same
is in writing and signed by all of the parties hereto except as to other
written instructions and the like specifically referred to above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ZYMETX, INC.
By: /s/ XXXXX X. XXXXXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
