EXHIBIT 2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of July 10,
2003, is entered into by and among Estate of Xxxxxx X. Xxxx (the "Estate"), RCM
Financial Services, L.P., a Delaware limited partnership ("Financial Services"),
and Cogene Biotech Ventures, L.P., a Delaware limited partnership ("Cogene
Biotech" and, together with Financial Services, the "Purchasers").
WITNESSETH:
WHEREAS, the Estate wishes to sell to the Purchasers 4,300,000 shares
(the "Shares") of common stock, par value $.001 per share, of Lexicon Genetics
Incorporated, a Delaware corporation ("Lexicon"), that the Estate owns of
record;
WHEREAS, the Purchasers wish to purchase the Shares from the Estate in
accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Estate and the Purchasers hereby covenant and agree as
follows:
SECTION 1. PURCHASE AND SALE OF SHARES.
(a) Subject to the terms and conditions set forth herein, the Estate
hereby sells to Financial Services, and Financial Services hereby purchases from
the Estate, 3,440,000 of the Shares, and, in consideration for such Shares,
Financial Services shall pay to the Estate (i) on the date hereof, in
immediately available funds by wire transfer to a bank account designated in
writing by the Estate, cash in the amount of $3,268,000 and (ii) on the fifth
business day following the effectiveness of the registration statement (the
"Demand Registration Statement") to be filed by Lexicon at the request of the
Purchasers pursuant to Section 2.1 of the Amended and Restated Registration
Rights Agreement dated as of May 7, 1998 (the "Registration Rights Agreement"),
among Lexicon and the persons named therein, in immediately available funds by
wire transfer to a bank account designated in writing by the Estate, cash in the
amount of $13,072,000.
(b) Subject to the terms and conditions set forth herein, the Estate
hereby sells to Cogene Biotech, and Cogene Biotech hereby purchases from the
Estate, 860,000 of the Shares, and, in consideration for such Shares, Cogene
Biotech shall pay to the Estate (i) on the date hereof, in immediately available
funds by wire transfer to a bank account designated in writing by the Estate,
cash in the amount of $817,000 and (ii) on the fifth business day following the
effectiveness of the Demand Registration Statement, in immediately available
funds by wire transfer to a bank account designated in writing by the Estate,
cash in the amount of $3,268,000.
(c) The closing of the sale and purchase of the Shares hereunder (the
"Closing") is being held at the offices of the Purchasers at 0000 Xxxx Xxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000.
(d) At the Closing, the Estate shall deliver to Financial Services a
stock certificate representing 3,440,000 of the Shares, together with stock
powers and signature guarantees in form and substance satisfactory to Financial
Services. The Estate shall pay all stamp and other transfer taxes, if any, that
may be payable in respect of the sale and delivery of such Shares.
(e) At the Closing, the Estate shall deliver to Cogene Biotech a stock
certificate representing 860,000 of the Shares, together with stock powers and
signature guarantees in form and substance satisfactory to Cogene Biotech. The
Estate shall pay all stamp and other transfer taxes, if any, that may be payable
in respect of the sale and delivery of such Shares.
(f) If on or before December 31, 2003 (such date, as it may be extended
by written agreement of the Purchasers and the Estate, the "Termination Date")
the Demand Registration Statement is not declared effective by the Securities
and Exchange Commission, on the third business day occurring after the
Termination Date (such day, or such other day as may be agreed upon by the
Purchasers and the Estate, the "Subsequent Closing Date"), (i) the Estate shall
pay to Financial Services, in immediately available funds by wire transfer to a
bank account designated in writing by Financial Services, cash in the amount of
$3,268,000, (ii) Financial Services shall deliver to the Estate a stock
certificate representing 3,440,000 of the Shares, together with stock powers and
signature guarantees in form and substance satisfactory to the Estate, (iii)
Financial Services' payment obligation to the Estate under Section 1(a)(ii)
hereof shall terminate, (iv) the Estate shall pay to Cogene Biotech, in
immediately available funds by wire transfer to a bank account designated in
writing by Cogene Biotech, cash in the amount of $817,000, (v) Cogene Biotech
shall deliver to the Estate a stock certificate representing 860,000 of the
Shares, together with stock powers and signature guarantees in the form and
substance satisfactory to the Estate, (vi) Cogene Biotech's payment obligation
to the Estate under Section 1(b)(ii) hereof shall terminate, (vii) the
Purchasers shall assign and transfer to the Estate the rights transferred to
them under Section 4(a), (viii) the Estate shall assume the obligations of the
Purchasers under the Registration Rights Agreement, and (ix) the Purchasers and
the Estate shall comply with the notice and assumption requirements of Section 9
of the Registration Rights Agreement. The Purchasers shall pay all stamp and
other transfer taxes, if any, that may be payable in respect of the sale and
delivery of such shares to the Estate on the Subsequent Closing Date.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE ESTATE. The Estate represents
and warrants to the Purchasers as follows:
(a) The Estate and each executor of the Estate (i) have all requisite
power to execute, deliver and perform this Agreement and (ii) have taken all
necessary action to authorize the execution, delivery and performance of this
Agreement.
(b) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, violate, conflict
with or constitute a default under (i) any agreement, indenture or other
instrument to which the Estate is a party or by which the Estate or its assets
may be bound, (ii) the terms of any trust, plan of distribution or other similar
document or agreement relating to the Estate or (iii) any law, regulation,
order, arbitration, award, judgment or decree applicable to the Estate.
(c) The Estate has, and will convey to the Purchasers at the Closing,
good and valid title to the Shares, free and clear of any liens, claims,
security interests, encumbrances or voting agreements except restrictions on
transfer arising under applicable securities laws and the Estate's rights under
Section 1(f).
(d) There are no actions, suits, proceedings, arbitrations or
investigations pending or, to the best knowledge of the Estate and each executor
of the Estate, threatened in any court or before any governmental agency or
instrumentality or arbitration panel or otherwise against or by the Estate or
either executor of the Estate that seek to or could restrain, prohibit, rescind
or declare unlawful, or result in substantial damages in respect of, this
Agreement or the performance hereof by the Estate or either executor of the
Estate (including, without limitation, the delivery of the Shares).
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
represents and warrants to the Estate as follows:
(a) Such Purchaser (i) is a limited partnership, validly existing and
in good standing under the laws of the State of Delaware, (ii) has all requisite
power to execute, deliver and perform this Agreement and (iii) has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement.
(b) The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate, conflict
with or constitute a default under (i) such Purchaser's organizational
documents, (ii) any agreement, indenture or other instrument to which such
Purchaser is a party or by which such Purchaser or its assets may be bound or
(ii) any law, regulation, order, arbitration, award, judgment or decree
applicable to such Purchaser.
(c) There are no actions, suits, proceedings, arbitrations or
investigations pending or, to such Purchaser's best knowledge, threatened in any
court or before any governmental agency or instrumentality or arbitration panel
or otherwise against or by such Purchaser that seek to or could restrain,
prohibit, rescind or declare unlawful, or result in substantial damages in
respect of, this Agreement or the performance hereof by such Purchaser
(including, without limitation, the purchase of the Shares).
(d) Such Purchaser will convey to the Estate on the Subsequent Closing
Date (if it occurs) good and valid title to the Shares to be transferred by such
Purchaser to the Estate pursuant to Section 1(f), free and clear of any liens,
claims, security interests, encumbrances or voting agreements except
restrictions on transfer under applicable securities laws.
SECTION 4. OTHER AGREEMENTS.
(a) Contemporaneously with the Closing and in accordance with the
provisions of Section 9 of the Registration Rights Agreement, the Estate shall
assign and transfer to the Purchasers the Estate's rights to cause Lexicon to
register the Shares under the Registration Rights Agreement and shall provide
the written notice thereof to Lexicon.
(b) The Purchasers hereby assume the obligations of the Estate under
the Registration Rights Agreement as they relate to the Shares. The Purchasers
agree to provide to Lexicon, within five business days following the Estate's
compliance with Section 4(a) hereof, an assumption in writing of the obligations
of the Estate under the Registration Rights Agreement as they relate to the
Shares as provided in Section 9 of the Registration Rights Agreement, and a
written request that Lexicon effect a registration statement under the
Securities Act of 1993, as amended (the "Securities Act"), for the offer and
sale of all or a part of the Shares pursuant to Section 2.1 of the Registration
Rights Agreement.
SECTION 5. RESTRICTIONS ON DISPOSITION OF THE SHARES.
(a) Each Purchaser acknowledges that such Purchaser is acquiring its
portion of the Shares pursuant to this Agreement pursuant to a transaction
exempt from registration under the Securities Act. Each Purchaser represents and
warrants to the Estate and agrees with the Estate that the Shares acquired by
such Purchaser pursuant to this Agreement are being acquired by such Purchaser
for investment without any intention of such Purchaser making a distribution
thereof, any sale or other disposition thereof that would be in violation of the
Securities Act or any applicable state securities law, and that such Purchaser
will not dispose of any of the Shares acquired by such Purchaser pursuant to
this Agreement, except in compliance with all provisions of the Securities Act
and all other applicable laws regulating the sale of securities.
(b) Each Purchaser hereby acknowledges that (i) the Shares acquired by
such Purchaser pursuant to this Agreement are "restricted securities" as such
term is defined in and interpreted under Rule 144 of the Securities Act ("Rule
144") and (ii) such Purchaser may be acquiring the Shares acquired by such
Purchaser pursuant to this Agreement from an "affiliate" of Lexicon, as such
term is defined in Rule 144. Further transfers of the Shares may be subject to
restrictions pursuant to Rule 144, unless a registration statement with respect
to the Shares has been declared effective by the Securities and Exchange
Commission or an exemption from registration is available.
SECTION 6. MISCELLANEOUS.
(a) This Agreement may be amended or any provision hereof waived only
by written instrument duly executed by the parties hereto.
(b) All representations and warranties made by the parties hereto in
this Agreement shall survive the Closing.
(c) The parties hereto hereby acknowledge that in the event of a breach
by any of them of any material provision of this Agreement, the aggrieved party
may be without an adequate remedy at law. The parties therefore agree that in
the event of a breach of any material provision of this Agreement, the aggrieved
party may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this Agreement. By
seeking or obtaining any such relief, the aggrieved party will not be precluded
from seeking or obtaining any other relief to which it may be entitled in equity
or at law.
(d) This Agreement and the legal relations between the parties shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of law thereof.
(e) All notices, requests, demands or other communications required or
permitted by this Agreement shall be in writing and effective when received, and
delivery shall be made personally or by registered or certified mail, return
receipt requested, postage prepaid, or overnight courier or confirmed facsimile
transmission, addressed as follows:
(i) If to Financial Services:
0000 Xxxx Xxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: M. Xxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(ii) If to Cogene Biotech:
0000 Xxxx Xxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: M. Xxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(iii) If to the Estate of Xxxxxx X. Xxxx:
Eight Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Bracewell & Xxxxxxxxx, LLP
South Tower, Pennzoil Place
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx, Esq.
Fax: (000) 000-0000
(f) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent possible.
(g) This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. Neither party may assign its rights or
obligations hereunder without the prior written consent of the other party.
(h) This Agreement shall be binding upon and inure to the benefit of
each party hereto. Nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement, except as expressly
otherwise provided herein.
(i) The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(j) This Agreement may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
RCM FINANCIAL SERVICES, L.P.
BY: RCM FINANCIAL SERVICES GP, INC., ITS
GENERAL PARTNER
By: /s/ M. Xxxxxx Xxxxxxx
--------------------------------------
Name: M. Xxxxxx Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
COGENE BIOTECH VENTURES, L.P.
BY: COGENE BIOTECH VENTURES GP, LLC, ITS
GENERAL PARTNER
By: /s/ M. Xxxxxx Xxxxxxx
--------------------------------------
Name: M. Xxxxxx Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
ESTATE OF XXXXXX X. XXXX
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Independent Executor
-----------------------------------
