PURCHASE AGREEMENT
EXHIBIT
10.1
This
Purchase Agreement (“Agreement”) is made and entered into as of June 23, 2008,
between ________________ (the “Seller”) and Kirkfield, L.L.C. (the
“Buyer”).
WHEREAS,
the Seller is willing to sell to the Buyer, and the Buyer is willing to purchase
from the Seller, __________________ (_________) shares of Common Stock (the
“Shares”) and a warrant entitling the Seller or its assigns to purchase
________________ (_________) shares (“Warrant” and together with the Shares,
“Securities”) of Halozyme Therapeutics, Inc., a Delaware corporation (the
“Company”), currently held by the Seller.
ACCORDINGLY,
THE PARTIES AGREE AS FOLLOWS:
1. Sale of
Securities. The Seller hereby agrees to sell to the Buyer, and
the Buyer hereby agrees to purchase from the Seller, all of the Securities on
the Closing Date. For purposes of this Agreement, “Closing Date”
shall mean such date as soon as practicable after the date hereof but in no
event later than three (3) business days after the date hereof on which all of
the conditions to transfer of the Securities have been satisfied.
2. Purchase
Price. The purchase price for the Shares is
____________________ Dollars ($___________) and for the Warrant is
___________________ Dollars ($_______) resulting in an aggregate purchase price
of __________________________ Dollars ($_______) (the “Purchase Price”) for the
Securities. The Purchase Price shall be paid from the Buyer to the
Seller on the Closing Date in immediately available funds against delivery by
the Seller to the Buyer of (i) a certificate or certificates representing the
Shares registered in the name of the Buyer or, if not so registered, accompanied
by stock powers in form sufficient to permit transfer of the Shares into the
name of the Buyer on the books of the stock transfer agent of the Company and
(ii) the original Warrant accompanied by a Certificate of Transfer evidencing
the assignment of the Warrant to the Buyer in accordance with the terms of the
Warrant.
3. Representations and
Warranties of the Seller. The Seller represents and warrants
to the Buyer as follows:
(a) Organization of
Seller. Seller is a corporation duly formed and validly
existing under the laws of ______________.
(b) Shares. The
Seller is the lawful owner of the Shares, and the Seller has the full power and
authority to sell the Shares, free and clear of any liens or encumbrances
whatsoever. All of the Shares have been validly issued and are fully
paid and nonassessable; and no person has any present or future right
(conditional, preemptive or otherwise) to acquire any of the
Shares. Upon delivery of such Shares and payment therefor pursuant
hereto, good and valid title to all such Shares free and clear of all liens or
encumbrances whatsoever, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands will be transferred to Buyer, and such
Shares shall be validly issued, fully paid and nonassessable.
(c) Warrants. The
Seller is the lawful owner of the Warrant, and the Seller has the full power and
authority to sell the Warrant, free and clear of any liens or encumbrances
whatsoever. The Warrant has been validly issued and upon payment in
full of the Warrant Price (as defined in the Warrant) all of the shares issuable
upon exercise of the Warrant (the “Underlying Shares”) will be validly issued,
fully paid and nonassessable; and no person has any present or future right
(conditional, preemptive or otherwise) to acquire the Warrant or any of the
Underlying Shares. Upon delivery of such Warrant and payment therefor
pursuant hereto, good and valid title to such Warrant free and clear of all
liens or encumbrances whatsoever, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands will be transferred to
Buyer.
(d) No Breach or
Conflict. The sale of the Securities contemplated by this
Agreement does not conflict with, or result in a breach of, or a default under,
or give rise to a right of acceleration under, any agreement or instrument to
which the Seller is a party.
(e) Enforceability. Upon
the execution and delivery of this Agreement, this Agreement will be a valid and
binding obligation of Seller, enforceable in accordance with its terms, except
(a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors’ rights,
(b) general principles of equity that restrict the availability of equitable
remedies, and (c) to the extent that the enforceability of any indemnification
provisions hereof may be limited by applicable laws.
(f) Consent. No
consent of any other person, and no notice to, filing or registration with, or
consent, approval or authorization of, any court or governmental authority,
regulatory or self-regulatory agency or any other third party is necessary or is
required to be made or obtained by Seller, in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby, except as may be required under the state securities laws of the
jurisdiction in which the Buyer is resident.
(g) Litigation. There
is no litigation, arbitration proceeding, governmental investigation, citation
or action of any kind pending or, to the knowledge of Seller, proposed or
threatened that seeks restraint, prohibition, damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby or that otherwise might impair the Securities.
(h) Fees and Expenses of Brokers
and Others. Seller is not committed to any liability for any
brokers’ or finders’ fees or any similar fees in connection with the
transactions contemplated hereby, and Seller has not retained any broker or
other intermediary to act on its behalf in connection with the transactions
contemplated by this Agreement.
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(i) Consultation with
Advisors. Seller has consulted with such legal, accounting,
tax and financial advisors as he deems necessary or appropriate concerning the
terms and conditions of the sale of the Securities, including the tax
consequences thereof.
(j) Truth and Completeness of
Representations and Warranties. None of the information
contained in the representations and warranties of the Seller set forth in this
Agreement contains any untrue statement of a material fact or omits or will omit
to state a material fact necessary to make the statements contained herein or
therein not misleading. Seller is not aware of any nonpublic
information concerning the Company that would be material to Buyer’s decision to
purchase the Securities.
4. Representations and
Warranties of the Buyer. The Buyer represents and warrants to
the Seller as follows:
(a) Organization of
Buyer. Buyer is a limited liability company duly formed and
validly existing under the laws of the Commonwealth of Virginia.
(b) Investment
Intent. The Buyer is acquiring the Securities for its own
account for investment, not for the interest of any other person, not for resale
to any other person and not with a view to or in connection with a sale or
distribution, as such term is defined in the Securities Act of 1933, as amended
(the “Securities Act”).
(c) Knowledge and
Experience. The Buyer is an “accredited investor” (as such
term is defined in Regulation D under the Securities Act), is knowledgeable and
experienced in businesses of the sort conducted by the Company.
(d) Investment
Risk. The Buyer understands that the Buyer may be required to
hold the Securities indefinitely due to the requirements of the Securities
Act. The Buyer is capable of evaluating the merits and risks involved
in the acquisition of the Securities and is capable of bearing the economic risk
of such investment.
(e) Resale. The
Buyer is aware that any resale inconsistent with the Securities Act may create
liability on its part and/or the part of the Seller, and agrees not to assign,
sell, pledge, transfer or otherwise dispose of or transfer any of the Securities
unless in compliance with the Securities Act and applicable state securities
laws.
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5. Closing. The
parties agree to take all such steps as soon as practicable after the date
hereof necessary to close the purchase of the Securities pursuant to the terms
set forth in this Agreement, including the execution of any additional documents
or agreements and the provision of any necessary instructions to the Company’s
transfer agent. The parties hereby acknowledge and agree that the
closing hereunder shall be conditioned upon each party’s respective
representations and warranties contained herein being true and correct as of the
Closing Date and undertake the obligation to provide the other party written
notice of any information that may cause such representations and warranties to
be untrue as of the Closing Date.
6. Indemnification.
(a) Seller’s
Indemnification. Seller hereby indemnifies and holds Buyer and
its directors, officers, members and affiliates (collectively, the “ Buyer
Indemnified Parties”) harmless from and against, and agrees to defend promptly
the Buyer Indemnified Parties from and reimburse the Buyer Indemnified Parties
for, any and all losses, liabilities, claims, damages (including incidental and
consequential damages), costs, expenses (including costs of investigation and
defense and reasonable attorneys’ fees) and obligations (hereinafter referred to
collectively as “Losses”) that the Indemnified Parties may at any time suffer or
incur, or become subject to, as a result of or in connection with: (i) any
material breach or inaccuracy of any of the representations and warranties made
by Seller in this Agreement or any other agreement or instrument delivered by
Seller pursuant to this Agreement; and (ii) any failure of Seller to carry out,
perform, satisfy and discharge any of its covenants, agreements, undertakings,
liabilities or obligations under this Agreement or under any of the agreements
and instruments delivered by Seller pursuant to this Agreement.
(b) Buyer’s
Indemnification. Buyer hereby indemnifies and holds Seller
harmless from and against, and agrees to defend promptly the Seller from and
reimburse the Seller for, any and all Losses that Seller may at any time suffer
or incur, or become subject to, as a result of or in connection with: (P)(i) any material breach
or inaccuracy of any of the representations and warranties made by Buyer in this
Agreement or any other agreement or instrument delivered by Buyer pursuant to
this Agreement; and (ii) any failure of Buyer to carry out, perform, satisfy and
discharge any of its covenants, agreements, undertakings, liabilities or
obligations under this Agreement or under any of the agreements and instruments
delivered by Buyer pursuant to this Agreement.
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7. Survival of Representations.
Warranties and Covenants. All agreements, representations,
warranties and covenants made by the parties in this Agreement shall survive the
closing of the purchase of the Securities hereunder for the full period of the
applicable statute of limitations.
8. Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the undersigned parties and their respective heirs, personal
representatives, successors and assigns.
9. Entire Agreement and
Amendments. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof, and no other agreement
with respect thereto, including any prior written or oral representation or
understanding of the parties, shall have any further force or
effect. The Buyer and the Seller each represents and warrants to the
other that, in entering this Agreement, he has relied on no statements,
representations, inducements or promises made by the other party except as are
expressly set forth in this Agreement. This Agreement may be modified
only by a subsequent writing signed by both parties to this
Agreement.
10. Notices. All
notices, consents, offers and other communications by and between Buyer and
Seller under this Agreement will be in writing and will be deemed to have been
received when personally delivered, one business day after the date of
transmittal if sent by reputable overnight courier service or five days after
mailing by certified mail, return receipt requested, to Buyer at 0000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxxxx, and to Seller at
_________________________________ or to such other address as each may specify
to the other in accordance with the provisions of this Section 10.
11. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
12. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia, without reference to
the choice of laws provisions thereof.
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above written.
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THE
BUYER:
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KIRKFIELD,
L.L.C.
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By:
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THIRD
SECURITY, LLC
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Its:
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Manager
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By:
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Manager,
Third Security, LLC
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THE
SELLER:
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By:
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Its:
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By:
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Name:
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Title:
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