[CONFIDENTIAL TREATMENT REQUESTED.
CERTAIN PORTIONS OF THIS AGREEMENT
HAVE BEEN REDACTED AND HAVE BEEN
SEPARATELY FILED WITH THE COMMISSION]
EXHIBIT 4.13
METABASIS THERAPEUTICS, INC.
INVESTOR RIGHTS AGREEMENT
DECEMBER 18, 1997
TABLE OF CONTENTS
Page
1. GENERAL................................................. 1
1.1. DEFINITIONS........................................ 1
2. REGISTRATION; RESTRICTIONS ON TRANSFER.................. 3
2.1 REQUESTED REGISTRATION............................. 3
2.2 PIGGYBACK REGISTRATION............................. 5
2.3 FORM S-3 REGISTRATION.............................. 6
2.4 EXPENSES OF REGISTRATION........................... 7
2.5 OBLIGATIONS OF THE COMPANY......................... 7
2.6 TERMINATION OF REGISTRATION RIGHTS................. 8
2.7 DELAY OF REGISTRATION; FURNISHING INFORMATION...... 8
2.8 INDEMNIFICATION.................................... 9
2.9 ASSIGNMENT OF REGISTRATION RIGHTS.................. 11
2.10 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS...... 11
2.11 "MARKET STAND-OFF" AGREEMENT...................... 11
2.12 RULE 144 REPORTING................................ 11
3. EXCHANGE RIGHT.......................................... 12
3.1 NOTICE OF EXERCISE................................. 12
3.2 GSI EXCHANGE SHARES................................ 12
3.3 ADJUSTMENT FOR RECAPITALIZATION.................... 13
3.4 ADJUSTMENT FOR REORGANIZATION...................... 13
3.5 CERTIFICATE OF ADJUSTMENT.......................... 13
3.6 EXCHANGE MECHANICS................................. 13
3.7 GSI OBLIGATIONS IN RESPECT OF GSI EXCHANGE SHARES.. 13
3.8 FRACTIONAL SHARES.................................. 14
3.9 PAYMENT OF TAXES................................... 14
4. COVENANTS OF THE COMPANY................................ 14
4.1 BASIC FINANCIAL INFORMATION AND REPORTING.......... 14
4.2 INSPECTION RIGHTS.................................. 15
4.3 CONFIDENTIALITY OF RECORDS......................... 15
4.4 USE OF PROCEEDS.................................... 15
4.5 BOARD OBSERVER RIGHTS.............................. 16
4.6 REAL PROPERTY HOLDING CORPORATION.................. 16
4.7 TERMINATION OF COVENANTS........................... 16
5. MISCELLANEOUS........................................... 16
5.1 GOVERNING LAW; ARBITRATION......................... 16
5.2 SURVIVAL........................................... 17
5.3 SUCCESSORS AND ASSIGNS............................. 17
5.4 SEVERABILITY....................................... 17
5.5 AMENDMENT AND WAIVER............................... 17
5.6 DELAYS OR OMISSIONS................................ 18
5.7 NOTICES............................................ 18
5.8 ATTORNEYS' FEES.................................... 19
5.9 SECTION REFERENCES; TITLES AND SUBTITLES........... 19
5.10 COUNTERPARTS...................................... 19
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (the "Agreement") is entered into as of
December 18, 1997 (the "EFFECTIVE DATE"), by and among GENSIA SICOR INC., a
Delaware corporation ("GSI"), METABASIS THERAPEUTICS, INC., a Delaware
corporation (the "COMPANY") and SANKYO CO., LTD., a Japanese corporation
("INVESTOR"). GSI, the Company and Investor are sometimes referred to in this
Agreement collectively as the "PARTIES" and each individually as a "PARTY."
RECITALS
WHEREAS, the Company proposes to sell and issue up to 851,939 shares of
Series A Preferred Stock to Investor pursuant to the Stock Purchase Agreement
dated December 18, 1997 by and among the Parties (the "PURCHASE AGREEMENT"); and
WHEREAS, as a condition of entering into the Purchase Agreement, Investor
has requested that GSI and the Company extend to it registration rights,
information rights and other rights as set forth below.
NOW THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Purchase Agreement, the Parties mutually agree as follows:
1. GENERAL
1.1 Definitions. As used in this Agreement the following terms shall
have the following respective meanings:
"BOARD OF DIRECTORS" means the Company's Board of Directors.
"COMMON STOCK" means the Company's Common Stock, par value $.01 per
share.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE RIGHT" is defined in Section 3.
"EXERCISE DATE" means the date of the Exercise Notice.
"EXERCISE NOTICE" is defined in Section 3.1.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof and as hereafter amended, or any successor registration form under
the Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company or GSI, as applicable, with the SEC.
"GSI COMMON SHARES" means shares of GSI Common Stock.
"GSI COMMON STOCK" means GSI's common stock.
"GSI EXCHANGE SHARES" is defined in Section 3.2.
"GSI MARKET PRICE" means the arithmetical average of the closing prices
for the GSI Common Stock as quoted on the Nasdaq National Market for the twenty
(20) consecutive Trading Days ending immediately prior to the Exercise Date.
"HOLDER" means any person owning of record Registrable Securities that
have not been sold to the public or any assignee of record of such Registrable
Securities in accordance with Section 2.9.
"INITIAL OFFERING" means the Company's first offering of its Common
Stock registered under the Securities Act.
"MTI COMMON PRICE" means $7.09, as proportionately adjusted for any
Recapitalization.
"R&D AGREEMENT" means the Collaborative Research and Development
Agreement dated April 21, 1997 between GSI and Investor, as amended from time to
time.
"RECAPITALIZATION" means a stock split, stock combination, stock
dividend, reclassification or any similar transaction.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) shares of Common Stock issuable or
issued upon conversion of the Series A Preferred Stock issued pursuant to the
Purchase Agreement; and (ii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right, or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for, or in
replacement of, such Series A Preferred Stock or Common Stock. Notwithstanding
the foregoing, Registrable Securities shall not include any securities sold by a
person to the public either pursuant to a registration statement or Rule 144 or
sold in a private transaction in which the transferor's rights under Section 2
of this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of shares
determined by calculating the total number of shares of the Company's Common
Stock that are Registrable Securities and (1) are then issued and outstanding
and (2) are issuable pursuant to then exercisable or convertible securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 2.1, 2.2 and 2.3 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees, and
disbursements of counsel for the Company, reasonable fees and disbursements of a
single special counsel for the Holders, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"REORGANIZATION" means a merger, acquisition (whether of the subject
entity or another entity) or sale of substantially all of the subject entity's
assets.
"RESEARCH PROGRAM TERM" is as defined in Section 1.18 of the R&D
Agreement.
"RULE 144" means Rule 144, as amended, under the Securities Act, or any
successor thereto.
"RULE 145" means Rule 145, as amended, under the Securities Act, or any
successor thereto.
"RULE 415" means Rule 415, as amended, under the Securities Act, or any
successor thereto.
"SEC" or "COMMISSION" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"TRADING DAY" means any day on which trading of GSI Common Stock is
conducted on the Nasdaq National Market.
"TRIGGER DATE" is defined in Section 3.1.
"TRIGGERING EVENT" is defined in Section 2.1.1.
"VIOLATION" is defined in Section 2.8.
2. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 Requested Registration.
2.1.1 Holder's registration rights pursuant to this Section 2.1
shall be effective only in the event that (i) (A) the Company has effected the
Initial Offering, (B) the lock-up obligation under Section 2.11 has lapsed and
(C) the Company is not yet eligible to use Form S-3 to register Registrable
Securities for resale or (ii) the Company first becomes subject to the periodic
reporting requirements of Section 13(a) or 15(d) of the Exchange Act (or any
successor provisions thereof), whichever event shall first occur (each, a
"TRIGGERING EVENT"). In the event the Company or GSI, so long as GSI owns at
least eighty percent (80%) of the Company's capital stock, anticipates the
occurrence of the Triggering Event described in clause (ii) of the immediately
preceding sentence, the Company or GSI, so long as GSI owns at least eighty
percent (80%) of the Company's capital stock, shall so notify all Holders in
writing at least 60 days prior to the anticipated date of such Triggering Event.
Subject to the conditions of this Section 2.1, if the Company shall receive a
written request from the Holders of more than fifty percent (50%) of the
Registrable Securities then outstanding (the "INITIATING HOLDERS") that the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities having an aggregate offering price to the
public in excess of $5,000,000, then the Company shall, within five (5) days of
the receipt thereof, give written notice of such request to all Holders and,
subject to the limitations of this Section 2.1, (i) effect the registration for
resale under the Securities Act of all Registrable Securities that the Holders
request to be registered and (ii) take all steps reasonably practicable to cause
such registration to become effective as soon as practicable.
2.1.2 If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.1 and the Company shall include such information in the written
notice described in the last sentence of Section 2.1.1. In such event, the right
of any Holder to include its Registrable Securities in such registration shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall, along
with the Company, enter into an underwriting agreement in customary form
(including indemnities from the Company as set forth in Section 2.8.1) with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders (which underwriter or underwriters shall be
reasonably acceptable to the Company). Notwithstanding any other provision of
this Section 2.1, if the underwriter advises the Company that marketing factors
require a limitation of the number of securities to be underwritten (including
Registrable Securities) then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting shall be
allocated to the Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders). Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
2.1.3 The Company shall not be required to effect a registration
pursuant to this Section 2.1:
(i) after the Company has effected two (2) registrations
pursuant to this Section 2.1;
(ii) during the period starting with the date of filing of,
and ending on the date 180 days following the effective date of the registration
statement pertaining to the Initial Offering, provided that the Company is
making reasonable and good faith efforts to cause the registration statement
covering the shares to be sold in the Initial Offering to become effective; or
(iii) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.1, a certificate signed by an
officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such registration statement to be effected at such time, in
which event the Company shall have the right to defer such filing for a period
of not more than 90 days after receipt of the request of the Initiating Holders;
provided that such right to delay a request shall only be exercisable following
the Initial Offering and shall be exercised by the Company not more than once in
any twelve (12) month period.
2.2 PIGGYBACK REGISTRATION. The Company shall notify all Holders in
writing at least 30 days prior to the filing of any registration statement under
the Securities Act for purposes of a public offering of securities of the
Company (including, but not limited to, registration statements relating to
secondary offerings of securities of the Company, but excluding registration
statements filed pursuant to Section 2.1 or relating to employee benefit plans
or with respect to corporate reorganizations or other transactions under Rule
145) and will afford each such Holder an opportunity to include in such
registration statement all or part of such Registrable Securities held by such
Holder. Each Holder desiring to include in any such registration statement all
or any part of the Registrable Securities held by it shall, within 15 days after
the above-described notice from the Company, so notify the Company in writing.
Such notice shall state the intended method of disposition of the Registrable
Securities by such Holder. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent such registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
2.2.1 UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.2 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to this
Section 2.2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of securities to be
underwritten, the number of securities that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders and other
holders of the Company's securities with equivalent registration rights on a pro
rata basis based on the total number of Registrable Securities held by the
Holders and such other holders; and third, to any shareholder of the Company
(other than a Holder) on a pro rata basis. No such reduction shall reduce the
securities being offered by the Company for its own account to be included in
the registration and underwriting, and in no event shall the amount of
securities of the selling Holders included in the registration be reduced below
twenty-five percent (25%) of the total amount of securities included in such
registration, unless such offering is the Initial Offering and such registration
does not include shares of any other selling shareholders, in which event any or
all of the Registrable Securities of the Holders may be excluded in accordance
with the immediately preceding sentence.
2.2.2 RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated or withdraw any
registration initiated by it under this Section 2.2 prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 2.4.
2.3 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests that
the Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
2.3.1 promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders of Registrable
Securities; and
2.3.2 as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within 15 days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.3:
(i) if Form S-3 is not available for such offering by the
Holders;
(ii) if the Holders propose to sell Registrable Securities and
such other securities (if any) at an aggregate price to the public of less than
$500,000;
(iii) if the Company shall furnish to the Holders a certificate
signed by an officer of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such Form S-3 registration to be effected at
such time, in which event the Company shall have the right to defer the filing
of the Form S-3 registration statement for a period of not more than 90 days
after receipt of the request of the Holder or Holders under this Section 2.3;
provided, that such right to delay a request shall be exercised by the Company
not more than once in any 12-month period;
(iv) if the Company has, within the 12 month period preceding
the date of such request, already effected two (2) registrations on Form S-3 for
the Holders pursuant to this Section 2.3; or
(v) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
2.3.3 Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All Registration Expenses incurred in
connection with registrations requested pursuant to this Section 2.3 shall be
paid by the selling Holders pro rata in proportion to the
number of shares sold by each. As an alternative to filing a series of
registration statements on Form S-3, the Company may fulfill its obligations
under this Section 2.3 by filing and causing to be declared effective under Rule
415 one registration statement on Form S-3 covering all of the Registrable
Securities.
2.4 EXPENSES OF REGISTRATION. Except as specifically provided herein,
all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.1 or any registration under
Section 2.2 herein shall be borne by the Company. All Selling Expenses incurred
in connection with any registrations hereunder, shall be borne by the Holders of
the Registrable Securities so registered pro rata on the basis of the number of
shares which are held by such Holders and so registered. The Company shall not,
however, be required to pay for expenses of any registration proceeding begun
pursuant to Section 2.1, the request of which has been subsequently withdrawn by
the Initiating Holders unless (a) the withdrawal is based upon material adverse
information concerning the Company of which the Initiating Holders were not
aware at the time of such request or (b) the Holders of more than fifty percent
(50%) of the Registrable Securities agree to forfeit their right to one
requested registration pursuant to Section 2.1 in which event such right shall
be forfeited by all Holders. If the Holders are required to pay Registration
Expenses pursuant to the immediately preceding sentence, such expenses shall be
borne by the holders of securities (including Registrable Securities) requesting
such registration in proportion to the number of shares for which registration
was requested. If the Company is required to pay the Registration Expenses of a
withdrawn offering pursuant to clause (a) above, then the Holders shall not
forfeit their rights to one requested registration pursuant to Section 2.1.
2.5 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration hereunder of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
2.5.1 Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective, and keep such registration
statement effective for up to 60 days or, in the case of Registrable Securities
registered under Form S-3 in accordance with Rule 415, until the Holder or
Holders have completed the distribution related thereto.
2.5.2 Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
2.5.3 Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, and any amendment of or
supplement to the prospectus, in conformity with
the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
2.5.4 Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
2.5.5 In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form (including indemnities from the Company as set forth in Section
2.8.1), with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
2.5.6 Notify each Holder of Registrable Securities covered by 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
as a result of which the prospectus included 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 the light of the circumstances then
existing.
2.5.7 Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of the closing date of
the offering, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) letters
dated as of (x) the effective date of the registration statement covering such
Registrable Securities and (y) the closing date of the offering, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders requesting registration, addressed to the
underwriters, if any, and if permitted by applicable accounting standards, to
the Holders requesting registration of Registrable Securities.
2.6 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Article 2 shall terminate and be of no further force and effect three
(3) years after the date of a Triggering Event. In addition, a Holder's
registration rights
shall expire if (i) (A) a Triggering Event has occurred and the Company is
subject to the provisions of the Exchange Act, (B) such Holder (together with
its affiliates, partners and former partners) holds less than 1% of the
Company's outstanding Common Stock (treating all shares of convertible preferred
stock, if any, on an as-converted basis) and (C) all Registrable Securities held
by such Holder may be sold under Rule 144 during any 90 day period; or (ii) the
Exchange Right pursuant to Section 3 shall have been exercised.
2.7 DELAY OF REGISTRATION; FURNISHING INFORMATION.
2.7.1 No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Section 2.
2.7.2 It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Sections 2.1, 2.2 or 2.3 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
2.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 2.1, 2.2 or 2.3:
2.8.1 To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, officers, directors and legal
counsel of each Holder, any underwriter (as defined in the Securities Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities, joint or several, to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 2.8.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, shareholder,
underwriter or controlling person of such Holder.
2.8.2 To the extent permitted by law, each Holder will, if
Registrable Securities held by Holder are included in the securities as to which
such registration qualifications or compliance is being effected, indemnify and
hold harmless the Company, each of its directors, its officers, and legal
counsel and each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities, joint or several, to which the Company
or any such director, officer, controlling person, underwriter or other such
Holder, or partner, director, officer or controlling person of such other Holder
may become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder under
an instrument duly executed by such Holder and stated to be specifically for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other Holder, or partner, officer,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 2.8.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; and provided further, that in no event shall
any indemnity under this Section 2.8.2 exceed the net proceeds from the offering
received by such Holder.
2.8.3 Promptly after receipt by an indemnified Party under this
Section 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified Party will, if a claim in respect thereof
is to be made against any indemnifying Party under this Section 2.8, deliver to
the indemnifying Party a written notice of the commencement thereof and the
indemnifying Party shall have the right to participate
in, and, to the extent the indemnifying Party so desires, jointly with any other
indemnifying Party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the Parties; provided, however, that an indemnified
Party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying Party, if representation of such indemnified
Party by the counsel retained by the indemnifying Party would be inappropriate
due to actual or potential differing interests between such indemnified Party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying Party within a reasonable time of
the commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying Party of any liability to
the indemnified Party under this Section 2.8, but the omission so to deliver
written notice to the indemnifying Party will not relieve it of any liability
that it may have to any indemnified Party otherwise than under this Section 2.8.
2.8.4 If the indemnification provided for in this Section 2.8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
Party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying Party, in lieu of indemnifying such indemnified Party
thereunder, shall, to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying Party on the one hand and of the indemnified
Party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying Party and of the
indemnified Party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying Party or by the indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that in no event shall any
contribution by a Holder hereunder exceed the proceeds from the offering
received by such Holder.
2.8.5 The obligations of the Company and Holders under this
Section 2.8 shall survive completion of any offering of Registrable Securities
in a registration statement and the termination of this Agreement. 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 to such claim or litigation.
2.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to a transferee or
assignee of Registrable Securities that (i) is a wholly-owned subsidiary or the
parent (if any) of such Holder, or (ii) a successor in interest in the event of
Reorganization of the Holder in which the Holder is not the surviving entity;
provided, however, that (A) the transferor shall, within 10 days after such
transfer, furnish to the Company written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (B) such transferee shall agree to be
subject to all restrictions set forth in this Agreement.
2.10 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of
this Agreement, the Company shall not, without the prior written consent of the
Holders of at least fifty-one percent (51%) of the Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company that would grant such holder registration rights more favorable than
those granted to the Holders hereunder.
2.11 "MARKET STAND-OFF" AGREEMENT. If requested by the Company as the
representative of the underwriters of Common Stock or other securities of the
Company, the Investor shall not sell or otherwise transfer or dispose of any
shares of Common Stock (or such other securities) held by the Investor (other
than those included in the registration) for a period specified by the
representative of the underwriters not to exceed 180 days following the
effective date of a registration statement filed in connection with the Initial
Offering, and 90 days in the case of subsequent registration statements of the
Company filed under the Securities Act; provided, however, that in each case all
officers and directors of the Company and all holders of at least five percent
(5%) of the Company's voting securities enter into similar agreements.
The obligations described in this Section 2.11 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Rule 145 transaction on Form S-4 or any successor
registration form thereto that may be promulgated in the future. The Company
may impose stop-transfer instructions with respect to the shares of Common Stock
(or other securities) subject to the foregoing restriction until the end of the
180-day period or 90-day period, as the case may be.
2.12 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 or any similar or analogous rule, at
all times after the effective date of the first registration filed by the
Company for an offering of its securities to the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish
to such Holder forthwith upon request: a written statement by the Company
as to its compliance with the reporting requirements of Rule 144, and of
the Exchange Act (at any time after it has become subject to such reporting
requirements); a copy of the most recent annual or quarterly report of the
Company; and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it
to sell any such securities without registration.
3. EXCHANGE RIGHT
The Holders shall have the right to exchange Registrable Securities for
GSI Common Stock in accordance with this Section 3 (the "EXCHANGE RIGHT").
3.1 NOTICE OF EXERCISE. In the event that (i) a Triggering Event has
not occurred by the last day of the Research Program Term (the "TRIGGER DATE"),
and (ii) within 30 days following the Trigger Date, the Holders of more than
fifty percent (50%) of the Registrable Securities notify GSI and the Company in
writing of their election to exchange their Registrable Securities for GSI
Common Shares (the "EXERCISE NOTICE"), GSI shall cause all Registrable
Securities then owned by all Holders to be exchanged for GSI Common Stock
pursuant to this Section 3. The Exchange Right shall be exercisable only once
and only with respect to all Registrable Securities then owned by all Holders.
3.2 GSI EXCHANGE SHARES. The number of GSI Common Shares which a Holder
shall be entitled to receive upon exercise of the Exchange Right (the "GSI
EXCHANGE SHARES") shall be determined pursuant to the following formula:
***
where
D=Number of GSI Exchange Shares;
A=Number of Registrable Securities held by such Holder as of the Exercise Date;
B=MTI Common Price; and
C=GSI Market Price.
3.3 ADJUSTMENT FOR RECAPITALIZATION. If at any time during the period
from the Effective Date to the Exercise Date, the GSI Common Stock is changed
into the same or a different number of shares of any class or classes of stock,
by any form of Recapitalization other than (i) a subdivision or combination of
shares or stock dividend, for which no adjustment pursuant to
*** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
this Section 3.3 shall be made and (ii) a Reorganization, for which adjustment
shall be made pursuant to Section 3.4, each Holder shall have the right to
receive upon exercise of the Exchange Right the kind and amount of stock and
other securities and property receivable upon such Recapitalization by holders
of the maximum number of GSI Common Shares into which Registrable Shares could
have been exchanged immediately prior to such Recapitalization (assuming for
purposes of this Section 3.3 that the Exchange Right was exercisable, and such
exchange was completed, immediately prior to the closing of such
Recapitalization), subject to further adjustment as provided with respect to
such other securities or property pursuant the terms thereof.
3.4 ADJUSTMENT FOR REORGANIZATION. If at any time during the period
from the Effective Date to the Exercise Date, GSI effects a Reorganization,
provision shall be made so that each Holder shall have the right to receive upon
exercise of the Exchange Right the kind and amount of stock and other securities
and property receivable upon such Reorganization by holders of the maximum
number of GSI Common Shares into which Registrable Shares could have been
exchanged immediately prior to such Reorganization (assuming for purposes of
this Section 3.4 that the Exchange Right was exercisable, and such exchange was
completed, immediately prior to the closing of such Reorganization), subject to
further adjustment as provided with respect to such other securities or property
pursuant to the terms thereof.
3.5 CERTIFICATE OF ADJUSTMENT. Within 15 days following the completion
of a Recapitalization or Reorganization, GSI, at its expense, shall compute the
adjustment required in connection therewith pursuant to Section 3.3 or Section
3.4, as applicable, and shall deliver to Investor a certificate showing such
adjustment. The certificate shall set forth in reasonable detail GSI's
calculation of the adjustment and the type and amount of other property which
would be received by the Holders upon exchange of the Registrable Securities
pursuant to this Section 3.
3.6 EXCHANGE MECHANICS. Holders shall deliver the certificate(s)
representing all then outstanding Registrable Securities to GSI, together with
the Exercise Notice. Upon receipt of the Exercise Notice and such certificates,
GSI shall calculate the number of GSI Exchange Shares receivable by each such
Holder pursuant to Section 3.2 and, within ten (10) business days of GSI's
receipt of the Exercise Notice, deliver to each such Holder (i) certificates
representing such Holder's GSI Exchange Shares issued as of the Effective Date,
(ii) a reasonably detailed statement indicating such calculation pursuant to
Section 3.2 (which calculation shall be binding upon the Parties in the absence
of manifest mathematical error or misstatement of the closing prices for the GSI
Common Stock for purposes of calculation of the GSI Market Price) and (iii) any
cash payable in respect of fractional GSI Exchange Shares pursuant to Section
3.8.
3.7 GSI OBLIGATIONS IN RESPECT OF GSI EXCHANGE SHARES. GSI at all times
shall reserve and keep available, solely for issuance and delivery upon exercise
of each Holder's Exchange Right, such number of GSI Exchange Shares as may be
issuable upon such exchange. GSI, at its expense, shall further cause a
registration statement on Form S-3 registering the resale of the GSI Exchange
Shares to be filed and declared effective in accordance with applicable law
(subject to the provisions of Section 2.5, which shall apply mutatis mutandis)
as soon as practicable following GSI's receipt of the Exercise Notice.
3.8 FRACTIONAL SHARES. No fractional GSI Exchange Shares shall be
issued upon exchange of Registrable Securities. All GSI Exchange Shares
(including fractions thereof) issuable upon exchange of Registrable Securities
shall be aggregated for purposes of determining whether the exchange would
result in the issuance of any fractional share. If, after such aggregation, the
exchange would result in any fractional share, GSI shall, in lieu of issuing any
fractional share, pay cash equal to the product of such fraction multiplied by
the GSI Market Price.
3.9 PAYMENT OF TAXES. GSI will pay all taxes (other than taxes based
upon income) and other governmental charges that may be imposed with respect to
the issue or delivery of GSI Exchange Shares upon exchange of Registrable
Securities.
4. COVENANTS OF THE COMPANY
4.1 BASIC FINANCIAL INFORMATION AND REPORTING.
4.1.1 The Company will maintain true books and records of account
in which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
4.1.2 Commencing with the fiscal year ending December 31, 1998, as
soon as practicable after the end of each fiscal year of the Company, the
Company will furnish each Holder a balance sheet of the Company, as of the end
of such fiscal year, and a statement of income and a statement of cash flows of
the Company, for such year, all prepared in accordance with generally accepted
accounting principles consistently applied and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail. Such financial statements shall be accompanied by a report and opinion
thereon by independent public accountants of national standing selected by the
Company's Board of Directors.
4.1.3 As soon as practicable after the end of the first, second
and third quarterly accounting periods in each fiscal year of the Company, and
in any event within 45 days thereafter (provided, however, that the Company
shall deliver the quarterly financial statements for the period ended March 31,
1998 to Investor by May 30, 1998), the Company will furnish each Holder a
balance sheet of the Company as of the end of each such period, and a statement
of income and a statement of cash flows of the Company for such period and for
the current fiscal
year to date, in each case prepared in accordance with generally accepted
accounting principles, with the exception that no notes need be attached to such
statements and year-end audit adjustments may not have been made. In each case
where the Company provides financial information pursuant to this Section 4.1,
financial information for the Company's subsidiaries, if any, will be
consolidated with financial information for the Company.
4.1.4 The Company will furnish each such Holder 30 days prior to
the beginning of each fiscal year a capitalization summary, annual budget and
operating plans for such fiscal year (and as soon as available, any subsequent
revisions thereto); provided, however, that (i) the Company shall deliver the
annual budget and operating plan for the fiscal year ending December 31, 1998 to
Investor within 45 days following the Effective Date) and (ii) to the extent
that the Company reasonably concludes that disclosure of the specific
budget/operating plan line items and corresponding dollar amounts would provide
the Holders with competitively sensitive information regarding the Company's
allocation of resources, the Company shall not be obligated to disclose such
information to the Holders on a line-item basis but shall disclose such
information on an aggregate basis.
4.2 INSPECTION RIGHTS. Each Holder shall have the right to visit and
inspect any of the properties of the Company or any of its subsidiaries, and to
discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Company shall not be obligated pursuant
to this Section 4.2 to provide information which the Company determines in good
faith to be a trade secret or subject to the attorney-client privilege.
4.3 CONFIDENTIALITY OF RECORDS. Each Holder hereby represents, warrants
and covenants that it shall maintain in confidence, and shall not use or
disclose without the prior written consent of the Company, any information
identified in writing as confidential that is furnished to it by GSI or the
Company in connection with this Agreement. This obligation of confidentiality
shall not apply, however, to any information (i) in the public domain through no
unauthorized act or failure to act by the Holder, (ii) lawfully disclosed to the
Holder by a third party who possessed such information without any obligation of
confidentiality, (iii) known to the Holder at the time of disclosure by GSI or
the Company, as evidenced by written records of the Holder in existence at the
time of the disclosure in question or (iv) which has been independently
developed by employees or other agents of or independent contractors hired by
the Holder without access to the information described in the first sentence of
this Section 4.3. Each Holder further covenants that it shall return to GSI or
the Company all tangible materials containing such information upon request by
GSI or the Company. Investor agrees that it will restrict access to the
confidential information of GSI or the
Company among its officers, directors, employees and financial and legal
advisors to those persons with a need to use such information and who are
parties to agreements with Investor to maintain such information as confidential
(or otherwise subject to obligations to maintain such information as
confidential).
4.4 USE OF PROCEEDS. The Company shall use the proceeds from the sale
of Common Stock sold pursuant to the Purchase Agreement solely (i) in connection
with the Company's obligations under the R&D Agreement (as assigned by GSI to
the Company as contemplated in the Purchase Agreement), (ii) for general working
capital purposes, but not for the repayment of debt and (iii) to pay $2,250,000
payable to GSI pursuant to the terms of the Asset and Liability Transfer
Agreement dated as of December 17, 1997 between the Company and GSI.
4.5 BOARD OBSERVER RIGHTS. Investor shall have the right to designate a
representative to attend Board meetings in a non-voting capacity and to receive
prior written notice of, and copies of all materials distributed at, all such
meetings (regardless of whether Investor's representative attends such
meetings); provided, however, that the Company shall not be obligated under this
Section 4.5 to provide information, or include such observer in discussions
relating to information, which the Company determines in good faith (i) to
involve an ongoing commercial relationship, or a proposed transaction, between
the Company and a third party, or (ii) to be a trade secret or to be subject to
the attorney-client privilege.
4.6 REAL PROPERTY HOLDING CORPORATION. The Company covenants that it
will operate in such that it will not become a "United States real property
holding corporation" ("USRPHC") as that term is defined in Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended, and the regulation thereunder.
The Company agrees to make determinations as to its status as a USRPHC, and will
file statements concerning those determinations with the Internal Revenue
Service, in the manner and at the times required under Reg. ' 1.897-2(h), or any
supplementary or successor provision thereto. Within 30 days of a request from a
Shareholder or any of its partners, the Company will inform the requesting
party, in the manner set forth in Reg. ' 1.897- 2(h)(1)(iv) or any supplementary
or successor provision thereto, whether that party's interest in the Company
constitutes a United States real property interest (within the meaning of
Internal Revenue Code Section 897(c)(1) and the regulations thereunder) and
whether the Company has provided to the Internal Revenue Service all required
notices as to its USRPHC status.
4.7 TERMINATION OF COVENANTS. All covenants of the Company contained in
Section 4 (except those set forth in Section 4.4, which shall expire and
terminate upon expiration of the Research Program Term (as defined in the R&D
Agreement)) shall expire and terminate as to each Holder on (i) the date of a
Triggering Event or (ii) the Holder's exercise of its Exchange Right and receipt
of GSI Exchange Shares in accordance with Section 3.
5. MISCELLANEOUS
5.1 Governing Law; Arbitration.
5.1.1 This Agreement shall be governed by and construed under the
laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
5.1.2 Any disputes arising between the Parties relating to,
arising out of or in any way connected with this Agreement or any term or
condition hereof, or the performance by any Party of its obligations hereunder,
shall be promptly presented to the chief executive officers of the Parties for
resolution and if the chief executive officers cannot promptly resolve such
disputes, then such dispute shall be finally resolved by arbitration. Whenever a
Party shall decide to institute arbitration proceedings, it shall give written
notice to that effect to other Parties. The Party giving notice shall refrain
from instituting the arbitration proceedings for a period of sixty (60) days
following such notice. Any arbitration hereunder shall be conducted pursuant to
the Rules of Arbitration of the International Chamber of Commerce. Each such
arbitration shall be conducted in the English language by a panel of three
arbitrators appointed in accordance with such rules (with GSI and the Company,
on the one hand, and Investor, on the other hand, respectively having the right
to appoint one arbitrator). Any such arbitration shall be held in Los Angeles,
California. The arbitrators shall have the authority to grant specific
performance, and to allocate between the Parties the costs of arbitration in
such equitable manner as they determine. Judgment upon the award so rendered may
be entered in any court having jurisdiction or application may be made to such
court for judicial acceptance of any award and an order of enforcement, as the
case may be.
5.2 SURVIVAL. The agreements made herein shall survive any
investigation made by any Holder and the closing of the transactions
contemplated hereby.
5.3 SUCCESSORS AND ASSIGNS. This Agreement is not assignable except to
(i) a wholly-owned subsidiary or the parent (if any) of Investor which acquires
all of the Registrable Securities or (ii) to a successor in interest in the
event of a Reorganization of Investor in which Investor is not the surviving
entity. 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 and shall inure to the
benefit of and be enforceable by each person who shall be a Holder from time to
time; provided, however, that prior to the receipt by the Company of adequate
written notice of the transfer of any Registrable Securities specifying the full
name and address of the transferee, the Company may deem and treat the person
listed as the holder of such shares in its records as the absolute owner and
holder of such shares for all purposes, including the payment of dividends or
any redemption price.
5.4 SEVERABILITY. In case any provision of the Agreement is held to be
unenforceable, then the meaning of such provision shall be construed, to the
extent feasible, so as to render the provision enforceable, and if no feasible
interpretation would
save such provision, it shall be severed from the remainder of this Agreement
which shall remain in full force and effect unless the severed provision is
material to the rights and benefits received by any Party. In such event, the
Parties shall use reasonable commercial efforts to negotiate, in good faith, a
substitute, valid and enforceable provision or agreement which most nearly
effects the Parties' intent in entering into this Agreement.
5.5 AMENDMENT AND WAIVER.
5.5.1 Except as otherwise expressly provided, this Agreement may
be amended or modified only by a written instrument expressly referring to this
Agreement and signed by the Company and the Holders of more than sixty-six and
two-thirds (66 2/3%) of the Registrable Securities.
5.5.2 Except as otherwise expressly provided, the obligations of
the Company and the rights of the Holders under this Agreement may be waived
only by a written instrument expressly referring to this Agreement and signed by
the Holders of at least fifty-one percent (51%) of the Registrable Securities.
5.6 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default, or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default, or noncompliance, or any acquiescence therein, or of any
similar breach, default, or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default, or noncompliance under the Agreement
or any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to the Holders, shall be cumulative and
not alternative.
5.7 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
Party to be notified, (ii) when sent by facsimile, upon receipt of an error-free
transmittal confirmation, or (iii) when sent by an internationally recognized
courier service, on the third business day following the date of deposit with
such courier service, or such earlier delivery date as may be confirmed to the
sender by such courier service. All communications shall be sent to the Party to
be notified at the address as follows or at such other address as such Party may
designate by 10 days advance written notice to the other Parties.
If to GSI:
Gensia Sicor Inc.
00 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
If to the Company:
Metabasis Therapeutics, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Fax: 0-000-000-0000
In the case of a notice to either GSI or the Company,
a copy should also be sent to:
Pillsbury Madison & Sutro LLP
X.X. Xxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: 0-000-000-0000
If to Investor:
Sankyo Co., Ltd.
Xx. 0-0, Xxxxxxxxxx Xxxxxx 0-xxxxx
Xxxx-xx
Xxxxx 000, Xxxxx
Attn: Accounting Department Manager
Fax: 00-0-0000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
AIG Building, 7th Floor
0-0-0 Xxxxxxxxxx, Xxxxxxx-xx
Xxxxx 000, Xxxxx
Attn: Xxx Xxxxxx, Esq.
Fax: 00-0-0000-0000
5.8 ATTORNEYS' FEES. In the event that any dispute among the Parties
should result in arbitration, the prevailing Party in such dispute shall be
entitled to recover from the losing Party(ies) all fees, costs and expenses of
enforcing any right of such prevailing Party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants.
5.9 SECTION REFERENCES; TITLES AND SUBTITLES. Unless otherwise noted,
all references to Sections herein are to Sections of this Agreement. The titles
of the sections and subsections of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement.
5.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement as of the Effective Date.
GSI:
GENSIA SICOR INC.
BY: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Vice President, Finance,
Chief Financial Officer
INVESTOR:
SANKYO CO., LTD.
BY: /s/ Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
Director, Accounting Department
COMPANY:
METABASIS THERAPEUTICS, INC.
BY: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
President and Chief Executive Officer
