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EXHIBIT 10.44
COMMON STOCK PURCHASE AGREEMENT
RIBOGENE, INC.
SEPTEMBER _____, 1998
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TABLE OF CONTENTS
PAGE
1. AUTHORIZATION AND SALE OF THE SHARES.....................................................................1
1.1 AUTHORIZATION OF THE SHARES..............................................................................1
1.2 SALE OF SHARES...........................................................................................1
2. CLOSING DATE; DELIVERY...................................................................................1
2.1 CLOSING DATE.............................................................................................1
2.2 DELIVERY.................................................................................................1
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................1
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION; CERTIFICATE AND BYLAWS....................................1
3.2 CAPITALIZATION...........................................................................................2
3.3 AUTHORIZATION............................................................................................2
3.4 VALID ISSUANCE OF SECURITIES.............................................................................2
3.5 OFFERING.................................................................................................2
3.6 NO CONFLICT; NO VIOLATION................................................................................3
3.7 CONSENTS AND APPROVALS...................................................................................3
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER; RESTRICTIONS ON TRANSFER................................3
4.1 LEGAL POWER..............................................................................................3
4.2 DUE EXECUTION............................................................................................3
4.3 INVESTMENT REPRESENTATIONS...............................................................................3
4.4 REMOVAL OF LEGENDS AND TRANSFER RESTRICTIONS.............................................................4
4.5 STANDSTILL COVENANT......................................................................................4
5. CONDITIONS TO CLOSING....................................................................................5
5.1 CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING.........................................................5
5.2 CONDITION TO COMPANY'S OBLIGATIONS AT THE CLOSING........................................................5
6. FURTHER AGREEMENTS.......................................................................................6
6.1 NONDISCLOSURE............................................................................................6
6.2 COOPERATION..............................................................................................6
7. MISCELLANEOUS............................................................................................6
7.1 AMENDMENTS...............................................................................................6
i.
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TABLE OF CONTENTS
(CONTINUED)
PAGE
7.2 GOVERNING LAW............................................................................................6
7.3 SUCCESSORS AND ASSIGNS...................................................................................7
7.4 ENTIRE AGREEMENT.........................................................................................7
7.5 SEVERABILITY OF THIS AGREEMENT...........................................................................7
7.6 TITLES AND SUBTITLES.....................................................................................7
7.7 DELAYS OR OMISSIONS......................................................................................7
7.8 PAYMENT OF FEES AND EXPENSES.............................................................................7
7.9 NOTICES..................................................................................................8
7.10 COUNTERPARTS.............................................................................................8
ii.
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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of September ____, 1998, between RIBOGENE, INC., a Delaware
corporation (the "Company"), and DAINIPPON PHARMACEUTICAL CO., LTD., a
corporation organized under the laws of Japan (the "Purchaser").
1. AUTHORIZATION AND SALE OF THE SHARES.
1.1 AUTHORIZATION OF THE SHARES. The Company has authorized, or before
the Closing, as defined in paragraph 2.1 hereof, will have authorized, the
issuance and sale of 230,000 shares of its Common Stock (the "Common Stock") at
a purchase price of US$.001 per share. The Common Stock has the rights provided
for in the Company's Amended and Restated Certificate of Incorporation, in the
form attached hereto as Exhibit A (the "Certificate").
1.2 SALE OF SHARES. In consideration for the increased royalty payments
to be made to the Company pursuant to Amendment No. 1, dated September ____,
1998, to the License Agreement between the Company and Purchaser (the
"Amendment"), in substantially the form attached hereto as Exhibit B, and
subject to the terms and conditions hereof, the Company will issue and sell to
the Purchaser, and the Purchaser will purchase from the Company, 230,000 shares
of Common Stock (the "Shares") at a purchase price of US$.001 per share, for an
aggregate purchase price of Two Hundred Thirty U.S. Dollars (US$230.00).
2. CLOSING DATE; DELIVERY.
2.1 CLOSING DATE. The closing for the purchase and sale of the Shares
hereunder will be on September ____, 1998 (the "Closing") at the offices of
▇▇▇▇▇▇ Godward LLP, Five Palo Alto Square, 4th Floor, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other time and place as the Company and
the Purchaser shall agree upon (the "Closing Date").
2.2 DELIVERY. At the Closing, the Company will deliver to Purchaser a
certificate registered in the name of Purchaser, representing the Shares to be
purchased by Purchaser from the Company, dated the Closing Date, against payment
of the aggregate purchase price by wire transfer, a check made payable to the
order of the Company, or any combination thereof.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchaser as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION; CERTIFICATE AND
BYLAWS. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now conducted and as
proposed to be conducted. The Company is duly qualified to transact business and
is in good standing in each jurisdiction in the United States in which the
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failure so to qualify would have a material adverse effect on its business or
properties. True and correct copies of the Company's Certificate and Bylaws
currently in effect have been delivered to Purchaser.
3.2 CAPITALIZATION. The authorized capital of the Company consists, or
will consist, immediately prior to Closing of:
(a) Preferred Stock.
(i) 5,000,000 shares of Preferred Stock, of which
1,428,572 shares have been designated Series A Non-voting Convertible Preferred
Stock, 1,428,572 of which are issued and outstanding,
(b) Common Stock. 30,000,000 shares of Common Stock, of which
5,364,055 shares are issued and outstanding.
(c) There are no outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements, orally or in writing,
for the purchase or acquisition from the Company of any shares of its capital
stock, except for: (i) the conversion privileges of the Series A Non-voting
Convertible Preferred Stock; (ii) an aggregate of 1,662,433 shares of Common
Stock reserved for issuance under the Company's stock and equity incentive
plans; (iii) an aggregate of 733,755 shares of Common Stock reserved for
issuance upon the exercise of outstanding placement agent options; and (iv) an
aggregate of 598,963 shares of Common Stock reserved for issuance upon the
exercise of outstanding warrants.
3.3 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of the Agreement, the issuance of the Shares and the performance of
all obligations of the Company hereunder has been taken or will be taken prior
to the Closing, and the Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms.
3.4 VALID ISSUANCE OF SECURITIES. The sale of the Shares is not subject
to any preemptive rights or rights of first refusal that have not been waived
and, when issued, sold and delivered in compliance with the provisions of this
Agreement, the Shares will be validly issued, fully paid and non-assessable, and
will be free of any liens or encumbrances created by the Company; provided,
however, that the Shares may be subject to restrictions on transfer under state
and/or federal securities laws as set forth herein or as otherwise required by
such laws at the time a transfer is proposed.
3.5 OFFERING. Assuming the accuracy of the representations and
warranties of Purchaser contained in Section 4 hereof, the offer, issue, and
sale of the Shares is exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the "Act"), and the
Shares have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit, or qualification requirements of
all applicable state securities laws.
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3.6 NO CONFLICT; NO VIOLATION. The execution, delivery and performance
of this Agreement and consummation of the transactions contemplated hereby will
not (a) conflict with any provisions of the Certificate or Bylaws of the
Company; (b) result in any material violation or default of, or permit the
acceleration of any obligation under (in each case, upon the giving of notice,
the passage of time, or both), any material mortgage, indenture, lease,
agreement or other instrument, permit, franchise, license, judgment, order,
decree, law, ordinance, rule or regulation applicable to the Company or its
properties.
3.7 CONSENTS AND APPROVALS. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations,
or filings with, any governmental authority, required on the part of the Company
in connection with the valid execution and delivery of this Agreement, the
offer, sale or issuance of the Shares, or the consummation of any other
transaction contemplated hereby have been obtained, or will be effective at the
Closing, except for notices required or permitted to be filed with certain state
and federal securities commissions after the Closing, which notices will be
filed on a timely basis.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER; RESTRICTIONS ON
TRANSFER.
Purchaser hereby represents and warrants to the Company with respect to
the purchase of the Shares provided for herein as follows:
4.1 LEGAL POWER. It has the requisite legal power to enter into this
Agreement, to purchase the Shares hereunder, and to carry out and perform its
obligations under the terms of this Agreement.
4.2 DUE EXECUTION. This Agreement has been duly authorized, executed
and delivered by it, and, upon due execution and delivery by the Company, this
Agreement will be a valid and binding agreement of it.
4.3 INVESTMENT REPRESENTATIONS.
(a) Purchaser is acquiring the Shares for its own account, not
as nominee or agent, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Act.
(b) Purchaser understands (i) that the Shares have not been
registered under the Act, by reason of a specific exemption therefrom, that they
must be held by it indefinitely, and that it must, therefore, bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Act or is exempt from such registration; (ii) each
certificate representing the Shares will be endorsed with the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the "1933
ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS (A)
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PURSUANT TO SEC RULE 144 OR (B) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT COVERING SUCH SECURITIES OR (C) RIBOGENE,
INC. RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO RIBOGENE, INC., STATING THAT SUCH SALE,
OFFER FOR SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE 1933 ACT."
and (iii) the Company will instruct any transfer agent not to register the
transfer of any of the Shares unless the conditions specified in the foregoing
legend are satisfied. Purchaser shall have the right to demand removal of the
foregoing legend with respect to any or all of the Shares and if, in the opinion
of counsel to the Company, removal of such legend is permitted by the rules and
regulations of the Securities and Exchange Commission ("SEC").
(c) It has been furnished with such materials and has been
given access to such information relating to the Company as it or its qualified
representative has requested and it has been afforded the opportunity to ask
questions regarding the Company and the Shares, all as it has found necessary to
make an informed investment decision.
(d) It is an "accredited investor" within the meaning of
Regulation D under the Act.
(e) It was not formed for the specific purpose of acquiring
the Shares offered hereunder.
4.4 REMOVAL OF LEGENDS AND TRANSFER RESTRICTIONS. The legend relating
to the Act endorsed on a stock certificate pursuant to paragraph 4.3 of this
Agreement and the stop transfer instructions with respect to the Shares
represented by such certificate shall be removed and the Company shall issue a
certificate without such legend to the holder of such Shares if such Shares are
registered under the Act and a prospectus meeting the requirements of Section 10
of the Act is available or if such holder provides to the Company an opinion of
counsel for such holder of the Shares reasonably satisfactory to the Company, or
a no-action letter or interpretive opinion of the staff of the SEC to the effect
that a public sale, transfer or assignment of such Shares may be made without
registration and without compliance with any restriction such as Rule 144.
4.5 STANDSTILL COVENANT. Other than the Shares which it will purchase
pursuant to Section 1.1 of this Agreement, Purchaser hereby covenants and agrees
that neither Purchaser nor any of its affiliates (including parents,
subsidiaries or other related entities) will, without the prior written consent
of the Company (i) purchase or otherwise acquire, directly or indirectly, any
equity securities or assets of the Company (or rights or options to purchase
such securities), or (ii) make any tender or exchange offer, merger, business
combination, recapitalization or other extraordinary transaction involving the
Company, or (iii) enter into any agreement with any other person with respect to
the foregoing, or assist any other person to do any of the foregoing. This
provision shall terminate and be of no further force or effect five (5) years
from the Closing Date or such earlier date as shall be agreed to by the Company.
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5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING. The Purchaser's
obligation to purchase the Shares at the Closing is subject to the fulfillment
on or prior to the Closing Date of the following conditions, any of which may be
waived in writing in whole or in part by the Purchaser:
(a) The representations and warranties made by the Company
herein shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on and as
of the same date; and the Company shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing Date.
(b) All authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful sale and issuance of the Shares
pursuant to this Agreement shall have been duly obtained and shall be effective
on and as of the Closing. No stop order or other order enjoining the sale of the
Shares shall have been issued and no proceedings for such purpose shall be
pending or, to the knowledge of the Company, threatened by the SEC or any
commissioner of corporations or similar officer of any other state having
jurisdiction over this transaction. At the time of the Closing, the sale and
issuance of the Shares shall be legally permitted by all laws and regulations to
which Purchaser and the Company are subject.
(c) The Company and the Purchaser shall have executed the
Amendment in substantially the form attached hereto as Exhibit B.
5.2 CONDITION TO COMPANY'S OBLIGATIONS AT THE CLOSING. The Company's
obligation to sell and issue the Shares at the Closing is subject to the
fulfillment to the Company's satisfaction on or prior to the Closing Date of the
following conditions, any of which may be waived in writing in whole or in part
by the Company:
(a) The representations and warranties made by the Purchaser
herein shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on and as
of the same date, and the Purchaser shall have performed all obligations and
conditions herein required to be performed or observed by them on or prior to
the Closing Date.
(b) All authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful sale and issuance of the Shares
pursuant to this Agreement shall have been duly obtained and shall be effective
on and as of the Closing. No stop order or other order enjoining the sale of the
Shares shall have been issued and no proceedings for such purpose shall be
pending or, to the knowledge of the Company, threatened by the SEC or any
commissioner of corporations or similar officer of any state having jurisdiction
over this transaction. At the time
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of the Closing, the sale and issuance of the Shares shall be legally permitted
by all laws and regulations to which the Purchaser and the Company are subject.
(c) The Company and the Purchaser shall have executed the
Amendment in substantially the form attached hereto as Exhibit B.
6. FURTHER AGREEMENTS.
6.1 NONDISCLOSURE. The Purchaser agrees not to use Confidential
Information (as hereinafter defined) of the Company for its own use other than
as permitted by agreement with the Company or for any purpose except to evaluate
its equity investment in the Company. The Purchaser agrees not to disclose such
Confidential Information to any third parties or to any of its employees except
employees who are required to have the Confidential Information to evaluate the
Purchaser's investment in the Company or as permitted under the terms of any
other agreements between the parties. For purposes of this paragraph,
"Confidential Information" means any information disclosed pursuant to this
Agreement, including, but not limited to, information relating to the Company's
research, products, development activities, inventions, marketing, or finances,
disclosed by the Company either directly or indirectly in writing, orally or by
drawings and which the Company has marked "confidential," "proprietary" or
"secret" or has otherwise identified as being such. Confidential Information
does not include information which (i) is in the Purchaser's possession at the
time of disclosure as shown by Purchaser's files and records and not subject to
a confidentiality undertaking under an other agreement; or (ii) before or after
it has been disclosed to the Purchaser, is part of the public knowledge or
literature, not as a result of any action or inaction of the Purchaser; or (iii)
is approved for release by written authorization of Company or (iv) is disclosed
to the Purchaser by a third party not under an obligation of confidentiality to
the Company; or (v) is independently developed by Purchaser.
6.2 COOPERATION. The Company shall cooperate with the Purchaser in
supplying such information as may be reasonably requested by the Purchaser to
complete and file any information reporting forms presently or hereafter
required by the SEC as a condition to the availability of an exemption,
presently existing or hereafter adopted, from the Act for the sale of the
Shares.
7. MISCELLANEOUS.
7.1 AMENDMENTS. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely), with the written consent of the
Company and Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon Purchaser, each future holder of the Shares, and
the Company.
7.2 GOVERNING LAW. This Agreement will be governed by and interpreted
in accordance with the laws of the State of California, applicable to contracts
executed and performed wholly within the State of California. Any claim or
controversy arising out of or related to this Agreement or any breach hereof
shall be submitted to a court of applicable
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jurisdiction in the State of California, and each party hereby consents to the
jurisdiction and venue of such court.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, neither party may assign or transfer this Agreement or any rights or
obligations hereunder without the prior written consent of the other; provided
however, that the Company may assign its rights and obligations under this
Agreement to the surviving entity in the event of a merger or other
reorganization in which the Company is not the surviving entity or to the
purchaser of all or substantially all of the Company's assets. 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.
7.4 ENTIRE AGREEMENT. This Agreement and the other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
7.5 SEVERABILITY OF THIS AGREEMENT. In case any provision of this
Agreement shall be invalid, illegal, or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable and to
retain as nearly as practicable the intent of the parties, and the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
7.6 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to the Purchaser, upon any breach
or default 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 or
default, or any acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character by the Purchaser of any breach or default under this
Agreement, or any waiver by the Purchaser of any provisions or conditions of
this Agreement must be in writing and shall be effective only to the extent
specifically set forth in writing and that all remedies, either under this
Agreement, or by law or otherwise afforded to the Purchaser, shall be cumulative
and not alternative.
7.8 PAYMENT OF FEES AND EXPENSES. The Company and the Purchaser each
shall bear its own expenses incurred on its behalf with respect to this
Agreement and the transactions contemplated thereby. If any action at law or in
equity is necessary to enforce the terms of this Agreement or the Certificate,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
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7.9 NOTICES. Any notice or report required in this Agreement or
permitted to be given shall be given in writing and by personal delivery or by
registered or certified airmail, postage prepaid, return receipt requested, or
by facsimile with confirmation of receipt, and shall be deemed to be given or
made upon personal delivery or when receipt is so confirmed, and addressed (i)
if to the Purchaser, at 6-8 ▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇,
or at such other address as such Purchaser shall have furnished to the Company
in writing, or (ii) if to any other holder of any Shares, at such address as
such holder shall have furnished the Company in writing, or, until any such
holder so furnishes an address to the Company, or (iii) if to the Company, one
copy should be sent to the Company at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, and addressed to the attention of the Corporate
Secretary, or at such other address as the Company shall have furnished to the
Purchaser.
7.10 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.
8.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first written above.
COMPANY: PURCHASER:
RIBOGENE, INC. DAINIPPON PHARMACEUTICAL CO., LTD.
By:_______________________________ By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: Takeshi Tomotake
Title: Chairman, President and Title: President
Chief Executive Officer
9.
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EXHIBITS INDEX
Exhibit A Certificate of Incorporation
Exhibit B Amendment No. 1 to the License Agreement
14
EXHIBIT A
CERTIFICATE OF INCORPORATION
15
EXHIBIT B
AMENDMENT NO. 1 TO LICENSE AGREEMENT
