EXHIBIT 10.28
CONSENT AND AMENDMENT AGREEMENT
This Consent and Amendment Agreement (the "Agreement") is entered into
this 28th day of February, 1997 by and among Genomica Corporation, a Delaware
corporation (the "Company") and the undersigned holders of the Company's capital
stock (each a "Holder" and collectively, the "Holders").
WHEREAS, the Company and the Holders are parties to the following
agreements setting forth certain rights and obligations of such parties with
respect to the Company's capital stock and voting rights in respect thereof:
(i) that certain Registration Rights Agreement dated as of March
22, 1996 by and among the Company and Xxxxxx and Xxxxxx Group, Inc. ("Xxxxxx"),
Falcon Technology Partners, L.P. ("Falcon"), Cold Spring Harbor Laboratory
("CSH"), Xxxx Xxxxxxx ("Xxxxxxx"), Xxxxx X. Xxxxxxxx ("JRathmann"), Xxxxxxxx X.
Xxxxxxxx ("MRathmann"), Xxxxx X. Xxxxxxxx ("SRathmann") Xxxxx Xxxx Xxxxxxxx
("LRathmann") Xxxxxxx X. Xxxxxxxx ("RRathmann" and collectively with JRathmann,
MRathmann, SRathmann and LRathmann, the "Xxxxxxxx Family"), Xxxxxx X. Xxxx
("Xxxx"), Xxxxxxxxxx Xxxxx ("Xxxxx"), Xxxxxx Xxxxx ("Xxxxx") and Xxxxxx Xxxxxx
("Xxxxxx") (the "Registration Rights Agreement");
(ii) those certain Common Stock Acquisition Agreements, each
dated as of March 22, 1996 by and between the Company and each of Xxxxxx, CSH,
Xxxxxxx, the Xxxxxxxx Family, Marr, Salit, Xxxxx and Xxxxxx (the "Common Stock
Agreements");
(iii) those certain Founders Agreements, each dated as of March
22, 1996 by and between the Company and each of Marr, Salit, Xxxxx and Xxxxxx
(the "Founders Agreements"); and
(iv) those certain Stockholders Agreements, each dated as of
March 22, 1996 by had between the Company and each of CSH, Xxxxxxx, JRathmann,
MRathmann, SRathmann, LRathmann and RRathmann (the "Stockholders Agreements")
(each of the Registration Rights Agreement, the Common Stock Agreements, the
Founders Agreements and the Stockholders Agreements are hereinafter collectively
referred to as the "Operative Agreements"); and
WHEREAS, the Company desires to issue and sell from time to time
shares of its Preferred Stock, par value $.001 per share ("Preferred Stock"),
including but not limited to Shares of its Series A Convertible Preferred Stock
(the "Series A Preferred"); and
WHEREAS, each of the Holders acknowledge and agree that upon the
issuance and sale of such Series A Preferred, it is in the best interests of the
Company that the purchaser(s)
of such Series Preferred stock shall be bound by, and have all the rights and
benefits in and to, the Operative Agreements.
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows.
1. Any and all purchasers of Series A Preferred, and any
affiliate thereof, who agree to be bound by the terms thereof (including such
affiliates, "Subsequent Series A Purchasers") shall be bound by, shall have all
the rights and benefits in and to, the Registration Rights Agreement as if such
purchasers were a "Purchaser" of "Preferred Shares," as such terms are defined
in the Registration Rights Agreement on the date thereof
2. Any and all Subsequent Series A Purchasers who agree to be
bound by the terms thereof shall be bound by and shall have all the rights and
benefits in and to: (i) Sections 6, 7 and 9 through 19 of each of the Founders
Agreements; (ii) Sections 3 through 14 of the Stockholders Agreement by and
among the Company and JRathmann, MRathmann, SRathmann, LRathmann and RRathmann
(the "Xxxxxxxx Stockholders Agreement"); and (iii) Sections 2, 3 and 5 through
15 of each of the Stockholders Agreements between the Company and each of CSH
and Xxxxxxx (the "CSH Stockholders Agreements"); in each case as if such
purchasers were a "Purchaser" as such term is defined in such agreements on the
date thereof.
3. (a) Section 4(b)(3) of each of the Common Stock Agreements
is hereby amended by deleting such section in its entirety and replacing it with
the following two sections:
"(3) In the event that all of the Offered Shares are not elected to
be purchased by the holders Company's capital stock which have similar rights to
purchase the Offered Shares (including Purchaser, the "Similar Offerees"), no
later than the second business day after the expiration of the 20-day period
referred to in clause (2) above, the Company shall offer in writing (the "Second
Notice") to each Similar Offeree which offered to purchase Offered Shares an
option to purchase its Proportionate Share (as defined below) of the Offered
Shares not elected to be purchased by the Similar Offerees. Within five (5)
days after the receipt by Purchaser of the Second Notice or attempted delivery
during working hours to his address shown on the books of the Company (such date
is referred to as the "Second Receipt Date"), the Purchaser, by delivering a
written notice to the Company (the "Second Reply"), may elect to purchase, at
the price and on the terms specified in the original Notice, its Proportionate
Share of the Offered Shares. As used herein, "Proportionate Share" equals the
total number of Offered Shares not elected to be purchased by the Similar
Offerees multiplied by a fraction, the numerator of which is the number of
shares (on a fully-diluted basis) of Common Stock then held by Purchaser, and
the denominator of which is the sum of all shares (on a fully-diluted basis) of
Common Stock then held by all Similar Offerees delivering a Second Reply.
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"(4) During the ninety- (90-) day period following the period
required in clause (3) above, the Company may sell up to the number of shares of
equity securities not elected to be purchased as provided in clauses (2) and (3)
above, at the price specified in the Notice or at a higher price on
substantially the same terms or less favorable terms to the purchasers thereof."
(b) If shares of the Company's equity securities are offered
pursuant to Article Fourth, Section C.6. of the Company's Certificate of
Incorporation ("Offered Securities") to holders of the Series A Preferred and
less than all of such Shares are purchased by such holders, then no later than
the second business day after the expiration of the 10-day period referred to in
Article Fourth, Section C.6(b) of the Company's Certificate of Incorporation,
the Company shall offer in writing (the "Second Notice") to each person who has
similar rights to purchase the Offered Securities (including the holders of
Series A Preferred and Subsequent Series A Holders, the "Similar Offerees")
which offered to purchase Offered Securities, an option to purchase its
Proportionate Share (as defined below) of the Offered Securities which were not
elected to be purchased by the holders of Series A Preferred. Within five (5)
days after the receipt by each of the Similar Offerees of the Second Notice or
attempted delivery during working hours to his/her/its address shown on the
books of the Company (such date is referred to as the "Second Receipt Date"),
each Similar Offeree, by delivering a written notice to the Company (the "Second
Reply"), may elect to purchase, at the price and on the terms specified in the
original Notice, its Proportionate Share of the Offered Securities. As used
herein, "Proportionate Share" equals the total number of Offered Securities not
elected to be purchased by the holders of the Series A Preferred multiplied by a
fraction, the numerator of which is the number of shares (on a fully-diluted
basis) of Common Stock then held by such Similar Offeree, and the denominator of
which is the sum of all shares (on a fully-diluted basis) of Common Stock then
held by all Similar Offerees delivering a Second Reply.
(c) If shares of the Company's equity securities are offered
pursuant to Section 4(b) of the Common Stock Agreements (as amended hereby)
("Secondary Offered Securities ") to holders of the Company's Common Stock and
less than all of such shares are purchased by such holders, then no later than
the second business day after the expiration of the 5-day period referred to in
Section 4(b)(3) of the Common Stock Agreements (as amended hereby), the Company
shall offer in writing (the "Third Notice") to the holders of Series A Preferred
and Subsequent Series A Holders (the "Secondary Offerees), an option to purchase
its Secondary Proportionate Share (as defined below) of the Secondary Offered
Securities which were not elected to be purchased by such holders of Common
Stock. Within five (5) days after the receipt each of the Secondary Offerees of
the Third Notice or attempted delivery during working hours to his/her address
shown on the books of the Company (such date is referred to as the "Third
Receipt Date"), each Similar Offeree, by delivering a written notice to the
Company (the "Third Reply"), may elect to purchase, at the price and on the
terms specified in the Third Notice, its Secondary Proportionate Share of the
Secondary Offered Securities. As used herein, "Secondary Proportionate Share"
equals the total number of Secondary Offered Securities not
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elected to be purchased by the holders of the Common Stock multiplied by a
fraction, the numerator of which is the number of shares (on a fully-diluted
basis) of Series A Preferred then held by such Secondary Offeree, and the
denominator of which is the sum of all shares (on a fully-diluted basis) of
Series A Preferred then held by all Secondary Offerees delivering a Third Reply.
4. Section 9(A) of each of the Founders Agreements, Section
4(A) of the Xxxxxxxx Stockholders Agreement and Section 5(A) of each of the CSH
Stockholders Agreements are hereby amended by deleting the following clauses:
"(A) the Corporation's Board of Directors has adopted a resolution of
the Board of Directors approving the sale of the Corporation to any person (such
person, the "Acquiring Entity"), whether by merger, consolidation, sale of all
or substantially all of the Corporation's assets or sale of all of the
outstanding capital stock (such sale, an "Approved Sale")..."
and replacing them with the following:
"(A) Subject to Article Fourth, Section C.5. of the Company's
Restated Certificate of Incorporation, if the Corporation's Board of Directors,
including a majority of the directors elected solely by the holders of the
Company's Series A Convertible Preferred Stock, has adopted a resolution of the
Board of Directors approving the sale of the Corporation to any person (such
person, the "Acquiring Entity"), whether by merger, consolidation, sale of all
or substantially all of the Corporation's assets or sale of all of the
outstanding capital stock and pursuant to the Corporation's Certificate of
Incorporation, a sufficient number shares have approved such transaction (such
sale, an "Approved Sale")..."
5. Except as specifically provided herein, each of the
Operative Documents shall remain in full force and effect.
6. The Company agrees that it shall not sell any Series A
Preferred to any person who does not agree to be bound by the terms of the
Operative Documents.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date above written.
GENOMICA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President
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FALCON TECHNOLOGY PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
General Partner
XXXXXX & XXXXXX GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx Xx.
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Xxxxx X. Xxxxxxx Xx.
COLD SPRING HARBOR LABORATORY
By: /s/ G. Xxxxxx Xxxxxx
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G. Xxxxxx Xxxxxx
Administrative Director
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxx Xxxxxxxx
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Xxxxx Xxxx Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
/s/ Xxxxxxxxxx Xxxxx
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Xxxxxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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