Exhibit 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of
the 7th day of May, 1999, by and between SangStat Medical Corporation, a
Delaware corporation ("SangStat") and Xxxxxx Laboratories, an Illinois
corporation ("Abbott").
WHEREAS, SangStat and Abbott have agreed to enter into a Right
of First Refusal Agreement, a Call Option Agreement, a Registration Rights
Agreement, and a Co-Promotion Agreement, all of even date herewith (collectively
the "Alliance Agreements"); and
WHEREAS, subject to the terms and conditions of this Agreement
and on the basis of the representations and warranties set forth herein,
SangStat and Abbott have agreed to the purchase and sale of shares of SangStat's
common stock $.001 par value (the "Common Stock").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF INITIAL SHARES. Subject to the terms
and conditions of this Agreement and on the basis of the representations and
warranties set forth herein, SangStat shall issue and sell to Xxxxxx and Xxxxxx
shall purchase from SangStat, at the Initial Share Closing provided for in
SECTION 1.3, shares of SangStat's Common Stock (the "Initial Shares") having an
aggregate value of Seven Million Dollars ($7,000,000).
1.1 PRICE PER INITIAL SHARE. The price per share to be
paid by Abbott for each of the Initial Shares (the "Price per Initial Share")
shall be equal to the average of the closing prices, as quoted on the Nasdaq
National Market, on each of the twenty (20) trading days preceding the day on
which this Agreement is signed.
1.2 NUMBER OF INITIAL SHARES. On the day before the
Initial Share Closing, SangStat shall determine the number of Initial Shares
to be issued, purchased, and sold pursuant to this Agreement by dividing:
(a) Seven Million Dollars ($7,000,000) by
(b) the Price per Initial Share
and then rounding down to the nearest whole number the number obtained by that
division.
1.3 INITIAL SHARE CLOSING. The closing of the purchase
and sale of the Initial Shares (the "Initial Share Closing") shall be held at
the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP,
000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on May 10, 1999, at
10:00 a.m., or at such other time and place upon which SangStat and Abbott
shall agree.
1.4 DELIVERY. At the Initial Share Closing, SangStat
will issue a certificate to Abbott registered in Xxxxxx'x name representing
the number of Initial Shares being purchased by Abbott against payment to
SangStat of Seven Million Dollars ($7,000,000). The purchase price shall be
paid to SangStat by wire transfer to the bank account of SangStat:
Name of Bank: State Street Bank
Name of Account: SangStat Medical Corporation
Account No. 00000000
ABA# 000000000
2. PURCHASE AND SALE OF OPTION SHARES. At the sole discretion
of SangStat, but subject to the terms and conditions of this Agreement and on
the basis of the representations and warranties set forth herein, SangStat shall
issue and sell to Xxxxxx and Xxxxxx shall purchase from SangStat, at the Option
Share Closing provided for in SECTION 2.4, shares of SangStat's Common Stock
(the "Option Shares") having the aggregate value described in SECTION 2.3.
2.1 NOTICE OF PURCHASE AND SALE OF OPTION SHARES. On or
before the ninetieth (90th) day following the signing of this Agreement,
SangStat shall notify Abbott in writing as to whether or not the issuance,
sale, and purchase of the Option Shares shall take place.
2.2 PRICE PER OPTION SHARE. The price per share to be
paid by Abbott for each of the Option Shares (the "Price per Option Share")
shall be equal to the lesser of:
(a) $19.99 or
(b) the average of the closing prices, as quoted on
the Nasdaq National Market, on each of the twenty (20) trading days
immediately preceding the day which is ninety (90) days after the signing of
this Agreement.
For example, if this Agreement is signed on April 30, 1999, then the day
which is 90 days after the day on which it is signed will be July 29,1999 and
the Price per Option Share will be the lesser of (a) $19.99 or (b) the
average of the closing prices, as quoted on the Nasdaq National Market, on
each of the twenty (20) trading days immediately preceding July 29, 1999.
2.3 NUMBER OF OPTION SHARES. On the day before the
Option Share Closing, SangStat shall determine the number of Option Shares to
be issued, purchased, and sold pursuant to this Agreement by dividing:
(a) Seven Million Dollars ($7,000,000) by
(b) the Price per Option Share
and then rounding down to the nearest whole number the number obtained by that
division. In no event, however, shall the number of Option Shares to be issued,
purchased, and sold pursuant to this SECTION 2.3, together with the Initial
Shares, cause Abbott, or any of its affiliates, to be deemed to be an Acquiring
Person, as such term is defined in the Stockholders Rights Plan, dated as of
August 14, 1995, between SangStat and The First National Bank of Boston, as
Rights Agent (the "Rights Plan"). Accordingly, in the event that the quotient
that is obtained by implementing the foregoing formula results in the issuance
of a number of Option Shares that, together with the Initial Shares, would cause
Abbott, or any of its affiliates, to be deemed to be an Acquiring Person, then
the numerator shall be reduced to the largest number that is less than Seven
Million Dollars ($7,000,000) that when divided by the Price per Option Share and
rounded down to the nearest whole number would result in a number of Option
Shares that, together with the Initial Shares, represents a number that is less
than fifteen percent (15%) of the total number of shares of the Common Stock
outstanding immediately after the Option Share Closing.
2.4 OPTION SHARE CLOSING. The closing of the purchase
and sale of the Option Shares (the "Option Share Closing") shall be held at
the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP,
000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on August 6, 1999, at
10:00 a.m., or at such other time and place upon which SangStat and Abbott
shall agree.
2.5 DELIVERY. At the Option Share Closing, SangStat will
issue a certificate to Abbott registered in Xxxxxx'x name representing the
number of Option Shares being purchased by Abbott against payment to SangStat
of Seven Million Dollars ($7,000,000). The purchase price shall be paid to
SangStat by wire transfer to the bank account of SangStat:
Name of Bank: State Street Bank
Name of Account: SangStat Medical Corporation
Account No. 00000000
ABA# 000000000
3. REPRESENTATIONS AND WARRANTIES OF SANGSTAT. Except as set
forth in the Schedule of Exceptions attached hereto as EXHIBIT - SECTION 3
(SCHEDULE OF EXCEPTIONS) specifically identifying the relevant subsection of
this Agreement, SangStat hereby represents, warrants, and covenants to Abbott
that:
3.1 AUTHORITY.
(a) SangStat has full legal right power and
authority to execute and deliver this Agreement and each of the Alliance
Agreements and to consummate the transactions contemplated hereby and thereby.
(b) All corporate action on the part of SangStat,
its officers, directors and stockholders necessary for the execution and
delivery of, and the consummation of the transactions contemplated by this
Agreement and the Alliance Agreements and the performance of all obligations
of SangStat hereunder and thereunder have been taken.
(c) This Agreement and each of the Alliance
Agreements, upon
execution and delivery by SangStat and, assuming the due and proper execution
and delivery by Abbott, constitute legal, valid and binding obligations of
SangStat, enforceable in accordance with their respective terms, except as
may be limited by: (i) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the enforcement of
creditors rights generally, (ii) the effect of rules of law governing the
availability of equitable remedies, and (iii) the enforceability of the
indemnity obligations of SECTION 1.7 of the Registration Rights Agreement.
(d) The making and performance of the Agreement and
the Alliance Agreements by SangStat and the consummation of the transactions
contemplated by the Agreement and the Alliance Agreements will not violate
any provision of the organizational documents of SangStat or any of its
subsidiaries and will not result in the creation of any lien, charge,
security interest or encumbrance upon any assets of SangStat pursuant to the
terms or provisions of, and will not conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or the passage
of time or both, a default under any agreement, mortgage, deed of trust,
lease, franchise, licence, indenture, permit or other instrument to which
SangStat or any of its subsidiaries is a partner or by which SangStat or any
of its subsidiaries or any of their respective properties may be bound or
affected and in each case which have a material adverse affect on the
condition (financial or otherwise), properties, business, prospects, or
results of operations of SangStat and its subsidiaries taken as a whole (a
"Material Adverse Effect") or, to SangStat's knowledge, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or
any regulatory body, administrative agency or other governmental body
applicable to SangStat or any of its subsidiaries or any of their respective
properties.
3.2 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
(a) SangStat and each of its subsidiaries, has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with full power and
authority (corporate and other) to own and lease its properties and conduct
its businesses as presently conducted and as proposed to be conducted.
SangStat and each of its subsidiaries, is duly qualified to do business and
in good standing as a foreign corporation in each jurisdiction in which the
ownership or leasing of properties or the conduct of its business requires
such qualification, except for jurisdictions in which the failure to so
qualify would not have a Material Adverse Effect; and no proceeding has been
instituted in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail such power and authority or qualification.
(b) Except as set forth on EXHIBIT - SECTION 3
(SCHEDULE OF EXCEPTIONS), SangStat has no direct or indirect loans to any
partnership, corporation, joint venture, business association, or other
entity.
(c) SangStat has delivered to Xxxxxx complete and
correct copies of the Certificate of Incorporation and Bylaws, or similar
charter documents, of SangStat and of each of its Significant Subsidiaries
[as such term is defined in Rule 405 of the Securities Act of 1933, as
amended (the "Securities Act")] that is incorporated in a jurisdiction in the
United States, in each case as amended to the date hereof, and will furnish to
Abbott true and correct copies of any amendments thereto throughout the term of
this Agreement.
(d) Except as set forth on EXHIBIT - SECTION 3
(SCHEDULE OF EXCEPTIONS), SangStat has no Significant Subsidiaries or
affiliated companies and does not otherwise own or control, directly or
indirectly, any equity interest in any partnership, corporation, joint
venture, association, or entity. The term "subsidiary" means any corporation
more than fifty percent (50%) of whose total equity interest is, directly or
indirectly, owned by that person. The term "affiliate" when used to indicate
a relationship with a specified person, shall mean a person that directly, or
indirectly through one or more intermediaries, control, or is controlled by,
or is under common control with, such specified person.
3.3 CAPITALIZATION.
(a) The authorized capital stock of SangStat
consists of 25,000,000 shares of Common Stock $0.001 par value and 5,000,000
shares of Preferred Stock, $$0.001 par value.
(b) As of May 3, 1999, there were 16,393,110 shares
of Common Stock issued and outstanding and no shares of Preferred Stock
issued and outstanding. All such issued an outstanding shares have been duly
authorized and validly issued and are fully paid and non-assessable and no
issued and outstanding shares are subject to preemptive rights created by
statute, the Certificate of Incorporation or Bylaws, or any agreement to
which SangStat is a party or by which SangStat may be bound.
(c) All outstanding shares of SangStat's capital
stock have been issued in compliance with applicable federal and state
securities laws.
(d) SangStat has reserved for issuance 3,392,200
shares of Common Stock (and has requested the approval of its shareholders to
increase the number of such reserved shares to 3,892,200) pursuant to
SangStat's 1993 Stock Option Plan, of which, at April 1, 1999, options to
purchase 2,427,844 shares were outstanding and 565,017 shares (not including
the 500,000 additional shares referred to above) remain available for
issuance pursuant to options that may be granted under that plan.
(e) SangStat has reserved for issuance 500,000
shares of Preferred Stock pursuant to the Shareholder Rights Plan, dated as
of August 14, 1995, between SangStat and First National Bank of Boston.
(f) Except as set forth on EXHIBIT - SECTION 3
(SCHEDULE OF EXCEPTIONS), there are no other options, warrants, conversion
privileges or other contractual rights presently outstanding or in existence
to purchase or otherwise acquire any authorized but unissued shares of
SangStat's capital stock or other
securities or the capital stock or other securities of any subsidiary of
SangStat.
3.4 VALID ISSUANCE OF COMMON STOCK. Both the Initial
Shares and the Option Shares have been duly authorized and, when issued,
delivered, and paid for in the manner set forth in this Agreement, will be
duly authorized, validly issued, fully paid and nonassessable, and (assuming
that Abbott is a BONA FIDE purchaser for value within the meaning of Section
8-302 of the Uniform Commercial Code) Abbott shall have good and marketable
title to both the Initial Shares and the Option Shares free of any liens or
restrictions (unless created by Abbott), other than the restrictions
expressly set forth in this Agreement or the Alliance Agreements or under
applicable state and federal securities laws. No preemptive rights or other
rights to subscribe for or purchase exist with respect to the issuance and
sale of either the Initial Shares and the Option Shares by SangStat pursuant
to this Agreement.
3.5 GOVERNMENTAL CONSENTS. Other than compliance
with the Securities Act and such filings as may be required to be made with
the National Association of Securities Dealers, no consent, approval order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal state or local governmental authority on the part of
SangStat is required in connection with the consummation of the transactions
contemplated by this Agreement.
3.6 OFFERING. Subject in part to the truth and accuracy
of Xxxxxx'x representations set forth in SECTION 4 of this Agreement, the
offer, sale and issuance of the Common Stock as contemplated by this
Agreement are exempt from the registration requirements of the Securities
Act, and neither SangStat nor any authorized agent acting on its behalf will
take any action hereafter that would cause the loss of such exemption.
3.7 LITIGATION. Other than as disclosed in Item 3 -
Legal Proceedings of SangStat's Annual Report on Securities and Exchange
Commission Form 10-K for the year ended December 31, 1998 (the "Form 10-K")
or EXHIBIT - SECTION 3 (SCHEDULE OF EXCEPTIONS), there are no legal or
governmental actions, suits or proceedings pending or, to SangStat's
knowledge, threatened to which SangStat or any of its subsidiaries is or may
be a party or of which property owned or leased by SangStat or any of its
subsidiaries is or may be the subject, which actions, suits or proceedings
might, individually or in the aggregate, prevent or adversely affect the
transactions contemplated by this Agreement or result in a Material Adverse
Effect. SangStat is not a party or subject to the provisions of any material
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body. There are no material legal
or governmental actions, suits or proceedings pending or, to SangStat's
knowledge, threatened against any executive officers or directors of SangStat.
3.8 DISCLOSURE. SangStat has provided Abbott with all
the information that Abbott has requested for deciding whether to purchase
the Common Stock. Neither this Agreement, nor any other statements or
certificates made or delivered in connection herewith or therewith contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein or therein not misleading.
3.9 CHANGES. Since December 31, 1998, except as
otherwise disclosed in the Form 10-K:
(a) SangStat has not incurred any material
liabilities or obligations, indirect, direct or contingent, or entered into
any material verbal or written agreement or other transaction which is not in
the ordinary course of business;
(b) SangStat has not sustained any material loss or
interference with its business or properties from fire, flood, windstorm,
accident or other calamity, whether or not covered by insurance;
(c) SangStat has not paid or declared any
dividends or other distributions with respect to its capital stock and
SangStat is not in default in the payment of principal or interest on any
outstanding debt obligations;
(d) there has not been any change in the capital
stock or, other than in the ordinary course of business, indebtedness
material to SangStat; and
(e) there has not been any event, change or
development resulting in or which may reasonably be expected to result in a
Material Adverse Event.
3.10 SEC DOCUMENTS.
(a) SangStat has filed in a timely manner each
statement, annual, quarterly and other report, registration statement and
definitive proxy statement required to be filed (other than preliminary
material) by SangStat with the United States Securities and Exchange
Commission since its initial public offering, (the "SEC Documents"). As of
their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act) as the case
may be, and, as of their respective filing dates, none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were
made, not misleading.
(b) As of their respective filing dates, the
audited consolidated financial statements and unaudited consolidated interim
financial statements of SangStat included in SangStat's SEC Documents fairly
present in all material respects in conformity with United States generally
accepted accounting principles applied on a consistent basis (except as may
be indicated in the notes thereto), the consolidated financial position of
SangStat as of the dates thereof and SangStat's consolidated results of
operations and cash flows for the periods then ended. Except as reflected or
reserved against in the consolidated balance sheet of SangStat at December
31, 1998, SangStat has no liabilities of any nature (whether accrued,
absolute,
contingent or otherwise), except for liabilities incurred in the ordinary
course of business since December 31, 1998 and liabilities which would not,
individually or in the aggregate, have a Material Adverse Effect.
(c) Since December 31, 1998, there have been no
events or transactions that would require adjustment to, or disclosure in,
the audited financial statements of SangStat for the period then ended in
order to keep them from being misleading.
3.11 RIGHTS PLAN. The execution of this Agreement and
the Alliance Agreements and the consummation of the transactions contemplated
hereby and thereby, will not cause any adverse consequence to Abbott or its
affiliates or SangStat as a consequence of the Rights Plan, including,
without limitation, the occurrence of the Distribution Date (as defined in
the Rights Plan), the occurrence of any adjustment to the Purchase Price (as
defined in the Rights Plan) or Abbott or any of its affiliates being deemed
to be an Acquiring Person (as defined in the Rights Plan).
3.12 USE OF PROCEEDS. SangStat will use the proceeds
from the sale of the Initial Shares and the Option Shares for research and
development and for working capital.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXX.
Xxxxxx hereby represents, warrants and covenants to SangStat that:
4.1 AUTHORIZATION. Abbott has full power and authority
to execute and deliver, and to consummate the transactions contemplated by
the Initial Share Closing, the Option Shares Closing, and this Agreement. All
corporate action on the part of Abbott necessary for (i) the execution and
delivery of, and the consummation of the transactions contemplated by, this
Agreement, and (ii) as of the Initial Share Closing and the Option Shares
Closing, the performance of all obligations of Abbott under this Agreement,
has been taken. This Agreement and each of the Alliance Agreements, upon
execution and delivery by Abbott and assuming the due and proper execution
and delivery by SangStat, constitutes a legal, valid and binding obligation
of Abbott, enforceable in accordance with its terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization or other laws of
general application relating to or affecting the enforcement of creditors
rights generally, and (ii) the effect of rules of law governing the
availability of equitable remedies.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is
made with Abbott in reliance upon Xxxxxx'x representation to SangStat, which
by Xxxxxx'x execution of this Agreement Abbott hereby confirms, that the
shares to be received by Abbott will be acquired for investment for Xxxxxx'x
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that Abbott has no present intention of
selling, granting any participation in, or otherwise distributing the same.
By executing this Agreement, Abbott further represents that, other than the
Call Option Agreement, Abbott does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of
the shares.
4.3 GOVERNMENTAL CONSENTS. Other than compliance with
the Securities Act, the Securities Exchange Act, and such filings as may be
required to be made with the Securities and Exchange Commission or the
National Association of Securities Dealers, no consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local governmental
authority on the part of Abbott is required in connection with the
consummation of the transactions contemplated by this Agreement.
4.4 NO CONSENT. No consent, approval, waiver or other
action by any entity under any material contract, agreement, indenture,
lease, instrument or other document to which Abbott is a party or by which it
is bound is required or necessary for the execution, delivery and performance
of, or the consummation of the transactions contemplated by, this Agreement
by Abbott.
4.5 DISCLOSURE OF INFORMATION. Abbott believes it has
received all the information it considers necessary or appropriate for
deciding whether to purchase the Initial Shares and the Option Shares. Abbott
further represents that it has had an opportunity to ask questions and
receive answers from SangStat regarding the terms and conditions of the
offering of the Initial Shares and the Option Shares and the business,
properties, prospects and financial condition of SangStat. The foregoing,
however, does not limit or modify the representations and warranties of
SangStat in SECTION 3 of this Agreement or the right of Abbott to rely
thereon.
4.6 INVESTMENT EXPERIENCE. Abbott is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Initial
Shares and the Option Shares. Abbott has not been organized for the purpose
of acquiring either the Initial Shares or the Option Shares.
4.7 RESTRICTED SECURITIES. Abbott understands that the
Common Stock it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from
SangStat in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act, only in certain limited circumstances.
In this connection, Abbott represents that it is familiar with Securities and
Exchange Commission Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
4.8 LEGENDS. Each certificate or instrument representing
Initial Shares or Option Shares shall bear legends in substantially the
following forms:
(a) "THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND ARE "RESTRICTED SECURITIES" AS
DEFINED IN RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (II) IN
COMPLIANCE WITH RULE 144, OR (III) PURSUANT TO AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH
REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SUCH SALE, OFFER OR
DISTRIBUTION".
(b) Any other legends required by California law or
other applicable blue sky or state securities laws.
Except as provided in the Registration Rights Agreement, SangStat need not
register a transfer of any Initial Shares or Option Shares, and may also
instruct its transfer agent not to register a transfer of any such shares,
unless the conditions specified in the foregoing legends are satisfied to the
extent applicable.
4.9 ACCREDITED INVESTOR. Abbott is an "accredited
investor" within the meaning of Securities and Exchange Commission Rule 501
of Regulation D, as presently in effect.
4.10 MARKET STAND-OFF. Xxxxxx agrees that from the date
hereof through December 31, 2001, it shall not directly or indirectly sell,
make any short sale of, loan, hypothecate, pledge, offer, grant or sell any
option or other contract for the purchase of, purchase any option or other
contract for the sale of, or otherwise dispose of or transfer, or agree to
engage in any of the foregoing transactions with respect to, any of the
Initial Shares or any of the Option Shares (the "Market Stand-Off") without
the prior written consent of SangStat. In the event of the declaration of a
stock dividend, a spin-off, a stock split, an adjustment in conversion ratio,
a recapitalization or a similar transaction affecting SangStat's outstanding
securities without receipt of consideration, any new, substituted or
additional securities which are by reason of such transaction distributed
with respect to any Initial Shares or Option Shares subject to the Market
Stand-Off, or into which such shares thereby become convertible, shall
immediately be subject to the Market Stand-Off. In order to enforce the
Market Stand-Off, SangStat may impose stop-transfer instructions with respect
to the Initial Shares and the Option Shares until the end of the Market
Stand-Off. This SECTION 4.10 shall not, however, prevent Abbott from
acquiring additional shares of, or securities convertible into or exercisable
for any shares of, any class of capital stock of SangStat.
5. CONDITIONS OF XXXXXX'X OBLIGATIONS AT CLOSING. Xxxxxx'x
obligation to purchase the Initial Shares at the Initial Share Closing and its
obligation to purchase the Option Shares at the Option Share Closing are subject
to fulfillment, on or prior to the Initial Share Closing with respect to the
Initial Shares and the Option Share Closing with respect to the Option Shares,
of each of the following conditions unless waived by Abbott.
5.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of SangStat contained in SECTION 3 and in each of the Alliance
Agreements shall be true and correct when made and at the closing with the
same effect as though such representations and warranties had been made on
and as of the date of the closing.
5.2 PERFORMANCE. SangStat shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or
before the closing.
5.3 QUALIFICATIONS. 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
issuance and sale of the shares pursuant to this Agreement shall be duly
obtained and effective as of the closing.
5.4 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the closing
and all documents incident thereto shall be reasonably satisfactory in form
and substance to Abbott, and it shall have received all such counterpart
original and certified or other copies of such documents as it may reasonably
request.
5.5 ALLIANCE AGREEMENTS. The parties shall have entered
into each of the Alliance Agreements and the Alliance Agreements remain in
full force and effect.
5.6 OPINION OF COUNSEL TO SANGSTAT. Purchaser shall have
received from Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP,
counsel to SangStat, an opinion addressed to it, dated as of the date of the
closing and in substantially the form of EXHIBIT 5.6.
5.7 NO ORDER PENDING. There shall not then be in effect
any order enjoining or restraining the transactions contemplated by this
Agreement or the Alliance Agreements.
5.8 COMPLIANCE CERTIFICATE. SangStat shall have
delivered to Abbott a certificate, in substantially the form of EXHIBIT 5.8,
executed on behalf of SangStat by the President of SangStat, dated as of the
date of the closing and certifying to the fulfillment of the conditions
specified in SECTION 5.1.
6. CONDITIONS OF SANGSTAT'S OBLIGATIONS AT CLOSING.
SangStat's obligation to issue and sell the Initial Shares at the Initial
Share Closing and its obligation to issue and sell the Option Shares at the
Option Share Closing are subject to fulfillment, on or prior to the Initial
Share Closing with respect to the Initial Shares and the Option Share Closing
with respect to the Option Shares, of each of the following conditions unless
waived by SangStat.
6.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Abbott contained in SECTION 4 and in each of the Alliance
Agreements shall be true and correct when made and at the closing with the
same effect as though such representations and warranties had been made on
and as of the date of the closing.
6.2 PAYMENT OF PURCHASE PRICE. Abbott shall have
delivered the purchase price.
6.3 QUALIFICATIONS. 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
issuance and sale of the Initial Shares and the Option Shares pursuant to
this Agreement shall be duly obtained and effective as of the closing for
those shares.
6.4 ALLIANCE AGREEMENTS. The parties shall have entered
into each of the Alliance Agreements and the Alliance Agreements remain in
full force and effect.
6.5 OPINION OF COUNSEL TO ABBOTT. SangStat shall have
received from Xxxx X. Xxxxx, counsel to Abbott, an opinion addressed to it,
dated as of the date of the closing and certifying, in substantially the form
of EXHIBIT 6.5.
6.6 NO ORDER PENDING. There shall not then be in effect
any order enjoining or restraining the transactions contemplated by this
Agreement or the Alliance Agreements.
6.7 COMPLIANCE CERTIFICATE. The Purchaser shall have
delivered to SangStat a certificate, in substantially the form of EXHIBIT
6.7, executed on behalf of the Purchaser by an officer of the Purchaser,
dated as of the date of the closing and certifying to the fulfillment of the
conditions specified in SECTION 6.1.
7. MISCELLANEOUS.
7.1 SURVIVAL OF WARRANTIES. The warranties,
representations and covenants of SangStat and Abbott contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the closings and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of Abbott or
SangStat.
7.2 ASSIGNMENT: SUCCESSORS AND ASSIGNS. No provision of
this Agreement may be assigned without the prior written consent of the other
party hereto. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties (including transferees of
any of the Initial Shares or Option Shares). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
7.3 GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of Delaware without regard to
conflicts of law principles.
7.4 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.5 TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
7.6 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be sent by
personal delivery, facsimile, overnight courier or mailed by certified or
registered mail, postage prepaid, return receipt requested, to the facsimile
number or address as follows:
SangStat: SangStat Medical Corporation
0000 Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer and
General Counsel
with a copy (which will not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx, LLP,
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Abbott: Xxxxxx X. Xxxxxxx, D-309 AP30
Senior Vice President, Pharmaceutical Operations
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which will not constitute notice) to:
Xxxxx X. Xxxxx, D-32L AP6D
Divisional Vice President,
Domestic Legal Operations
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this SECTION 7.6. Such notices or other
communications shall be deemed delivered upon receipt, in the case of overnight
delivery, personal delivery or facsimile transmission (as evidenced by the
confirmation thereof), or 2 days after deposit in the mails (as
determined by reference to the postmark).
7.7 FINDER'S FEE.
(a) Each party represents that it neither is nor
will be obligated for any finders' fee or commission in connection with this
transaction. Abbott agrees to indemnify and hold harmless SangStat from any
liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which such Abbott or any of its officers, partners, employees
or representatives is responsible.
(b) SangStat agrees to indemnify and hold harmless
Abbott from any liability for any commission or compensation in the nature of
a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which SangStat or any of its officers,
employees or representatives is responsible.
7.8 EXPENSES. Irrespective of whether either of the
closings is effected, each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance
of this Agreement.
7.9 ALTERNATIVE DISPUTE RESOLUTION. The parties agree to
effectuate all reasonable efforts to resolve in an amicable manner any and
all disputes between them in connection with this Agreement. The parties
agree that any dispute that arises in connection with this Agreement, which
cannot be amicably resolved informally shall be finally settled as set forth
in the Alternative Dispute Resolution provisions of EXHIBIT E to the
Co-Promotion Agreement between Abbott and Sangstat dated as of May 7, 1999.
7.10 AMENDMENTS AND WAIVERS. 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 and either retroactively or
prospectively) only with the written consent of SangStat and Abbott. Any
amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement at
the time outstanding (including securities into which such securities are
convertible), each future holder of all such securities and SangStat.
7.11 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
7.12 ENTIRE AGREEMENT. This Agreement, the Alliance
Agreements, and the documents referred to herein and therein constitute the
entire agreement among the parties and no party shall be liable or bound to
any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
7.13 FURTHER ASSURANCES. SangStat and Abbott shall do
and perform or cause to be performed all such further acts and things and
shall execute and deliver all such other agreements, certificates,
instruments or documents as the other party may reasonably request from time
to time in order to carry out the intent and purposes of this Agreement and
the consummation of the transactions contemplated by the Agreement. Neither
SangStat nor Abbott
shall voluntarily undertake any course of action inconsistent with the
satisfaction of the requirements applicable to them as set forth in this
Agreement, and each shall promptly do all such acts and take all such
measures as may be appropriate to enable them to perform as early as
practicable their obligations under this Agreement.
7.14 NO THIRD PARTY RIGHTS. Nothing in this Agreement
shall create or be deemed to create any rights in any person or entity not a
party to his Agreement.
7.15 MUTUAL DRAFTING. This Agreement is the joint
product of SangStat and Abbott and each provision of the Agreement has been
subject to consultation, negotiation and agreement of SangStat and Abbott and
their respective legal counsel and advisers and any rule of construction that
a document shall be interpreted or construed against the drafting party shall
not apply.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
SangStat Medical Corporation
By:
Title:
Xxxxxx Laboratories
By:
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Title:
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