1
EXHIBIT 10.31
DECODE GENETICS, INC.
SERIES C PREFERRED STOCK REPURCHASE AGREEMENT
This Series C Preferred Stock Repurchase Agreement ("Agreement") is made
effective as of July 12, 1999 by and between deCODE genetics, Inc., a Delaware
corporation (the "Company"), and Roche Finance Ltd. (the "Seller").
PRELIMINARY STATEMENTS
A. The Seller is the owner of certain shares of the Company's Series C
Preferred Stock (the "Series C Stock") .
B. The Seller wishes to sell to the Company, and the Company wishes to
purchase from the Seller, 100,000 shares of Series C Stock (the "Shares").
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1. SALE AND PURCHASE OF THE SHARES.
1.1 Sale and Purchase. Subject to the terms and conditions hereof, the
Seller agrees to sell , and the Company agrees to purchase, the Shares for a
purchase price of Seven Dollars and Fifty Cents ($7.50) per share.
1.2 Payment for Shares. Following execution and delivery of this
Agreement by the Company and the Seller, the Company shall pay the purchase
price of the Shares by check or wire transfer to such account as the Seller
shall designate.
1.3 Delivery of Certificates. Upon full payment by the Company of the
purchase price of the Shares, the Seller will deliver to the Company one or more
certificates representing the Shares. In the event that less than all of the
shares represented by a certificate are repurchased, the Company will deliver to
the Seller a new certificate representing the unpurchased shares.
Notwithstanding the foregoing, from and after payment by the Company as provided
in Section 1.2 hereof, all rights of the Seller as a holder of the Shares shall
cease and terminate.
2. REPRESENTATIONS OF THE SELLER.
The Seller hereby represents and warrants to the Company as follows:
2.1 Power and Authority. It has full power and authority to sell the
Shares and to enter into and perform this Agreement and any other agreements and
instruments to be executed and delivered herewith, and such sale and such
agreements (i) have been duly authorized, (ii) are legal, valid, binding and
enforceable against the Seller and (iii) are not in contravention of any law,
order or agreement by which the Seller is bound.
2
2.2 Title. It has made no prior assignment of the Shares or of any
interest therein. It is the sole legal and beneficial owner of the Shares and
has good and marketable title thereto, free and clear of all liens, claims and
encumbrances of any kind, and will transfer to the Company such good and
marketable title, free and clear of any liens, claims and encumbrances of any
kind.
2.3 Company Information. It is a sophisticated seller with respect to
the Shares, has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the sale of the
Shares, and has independently, without reliance upon the Company (other than
reliance upon the representations and warranties of the Company set forth
herein) and based on such information as it deemed appropriate, made its own
analysis and decision to enter into this Agreement, and the Seller acknowledges
and agrees that the Company may possess material information with respect to the
Company not known to the Seller ("Company Information"), that the Seller has not
requested the Company Information and that the Company shall have no liability
to the Seller with respect to the nondisclosure of the Company Information and
the Seller hereby releases the Company therefrom.
3. REPRESENTATIONS OF THE COMPANY.
The Company hereby represents and warrants to the Seller that it has full
power and authority to purchase the Shares and to enter into and perform this
Agreement and any other agreements and instruments to be executed and delivered
herewith, and such purchase and such agreements (i) have been duly authorized,
(ii) are legal, valid, binding and enforceable against the Company and (iii) are
not in contravention of any law, order or agreement by which the Company is
bound.
4. MISCELLANEOUS.
4.1 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.
4.2 Binding Effect; 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.
4.3 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof.
4.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
2
3
4.5 Further Action. Each party shall, without further consideration,
take such further action and execute and deliver such further documents as may
be reasonably requested by the other party in order to carry out the provisions
and purposes of this Agreement.
4.6 Reissuance of Shares. The Company will not sell or otherwise
reissue the Shares without the Seller's written consent.
* * *
This Series C Preferred Stock Repurchase Agreement is hereby executed as of the
date first above written.
deCODE genetics, Inc.
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxxx, President
3
4
ROCHE FINANCE LTD
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xx. Xxxxx Xxxxx
-----------------------------------
Title Director
-----------------------------------
By: /s/ Xxxxx Matter
-----------------------------------
Name Xxxxx Matter
-----------------------------------
Title: Director
-----------------------------------
Address:
000 Xxxxxxxxxxxxxxxxx
XX-0000 Xxxxx
XXXXXXXXXXX
Attention: CFDV Xxxxxxxx 00 Xxxx 000
Facsimile No.: 00-00-000-0000
4
5
DECODE GENETICS, INC.
ADDENDUM TO
SERIES C PREFERRED STOCK REPURCHASE AGREEMENT
This Addendum to Series C Preferred Stock Repurchase Agreement (this
"Addendum") is made effective as of March 1, 2000 (the "Effective Date") by and
between deCODE genetics, Inc., a Delaware corporation (the "Company"), and Roche
Finance Ltd. (the "Seller").
PRELIMINARY STATEMENTS
A. The Company and the Seller entered into a Series C Preferred Stock
Repurchase Agreement, dated July 12, 1999 (the "Series C Repurchase Agreement"),
pursuant to which the Corporation repurchased 100,000 shares (the "Series C
Shares") of the Corporation's Series C Preferred Stock from the Seller at a
closing held on August 24th, 1999 (the "Closing Date").
B. It was the understanding among the Company and the Sellers that the
purchase price for the Series C Shares would be equal to the price per share,
net of commissions and other fees payable to the purchaser (the "Purchaser"), at
which the Company sold shares of its Series B Preferred Stock pursuant to a
stock purchase agreement dated as of June 30, 1999 (the "Series B Offering").
C. Contemporaneously with the execution of the Series C Repurchase
Agreement, the Company and the Sellers entered into an oral agreement that if
any contingent portion of the purchase price in the Series B Offering became
payable, the purchase price for the Series C Shares would be adjusted upward
accordingly, with the amount of such adjustment to be paid to the Sellers by the
Company after such contingent portion of the purchase price in the Series B
Offering became payable.
D. The Company and the Purchaser have entered into an Addendum to Stock
Purchase Agreement confirming that on December 28, 1999, they agreed that a
contingent payment of $7.50, less commissions and other fees payable to the
Purchaser in an amount equal to seven percent (7%) of the sum of the original
purchase price and the contingent payment, was due and payable.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1. ADJUSTMENT TO PURCHASE PRICE; PAYMENT OF DEFICIENCY. The adjusted
purchase price for the Series C Shares as of the Closing Date is US$13.95 per
share. Within five business days of the Effective Date, the Company shall pay,
by check or wire transfer to such account as the Seller shall designate, US$6.45
(representing the adjusted purchase price of US$13.95 less the US$7.50 already
paid) for each of the Series C Shares sold to the Company by the Seller under
the Series C Repurchase Agreement.
2. RATIFICATION OF AMENDMENT OF AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT. The amendment of the Amended and Restated Investors' Rights Agreement
dated as of February 2, 1998, as amended, among the Company and certain of its
stockholders to grant
6
the provisions of Section 2 thereof to the holders of the Series B Preferred
Stock sold in the Series B Offering is hereby ratified, approved and confirmed.
3. MISCELLANEOUS. This Addendum 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. 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. This Addendum, together with the Series C
Repurchase Agreement, constitutes the full and entire understanding and
agreement among the parties with regard to the subject matter hereof. This
Addendum may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument.
Except as set forth herein, all terms of the Series C Repurchase Agreement
remain unchanged and in full force and effect.
This Addendum to Series C Preferred Stock Repurchase Agreement is hereby
executed to be effective as of the date first above written.
7
DECODE GENETICS, INC.
Dated:_______________________ By: /S/ Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx, President
ROCHE FINANCE LTD
Dated: 29 February 2000 By: /s/ Xxxxx Xxxxx
Name: Xx. Xxxxx Xxxxx
Title: Director
By: /s/ Beat Krahenmann
Name: Dr. Beat Krahenmann
Title: Deputy Director
Address:
000 Xxxxxxxxxxxxxxxxx
XX-0000 Xxxxx
XXXXXXXXXXX
Attention: CFDV Xxxxxxxx 00 Xxxx 000
