STOCK PURCHASE AGREEMENT
Stock Purchase Agreement (this "Agreement"), dated as of May 15, 2002,
among Deltagen, Inc., a Delaware corporation (the "Company"); and the investors
listed on Exhibit A attached hereto (each a "Purchaser" and together the
"Purchasers").
R E C I T A L S:
Whereas, the Company desires to issue and sell to the Purchasers, and each
Purchaser desires to purchase from the Company, that number of shares of Common
Stock (as defined below) set forth opposite each such Purchaser's name on
Exhibit A attached hereto at a purchase price of $4.57 per share.
A G R E E M E N T:
In consideration of the foregoing premises and the mutual covenants
contained herein, the sufficiency of which is hereby specifically acknowledged,
the parties hereby agree as follows:
SECTION 1 PURCHASE AND SALE OF COMMON STOCK
1.1 Purchase and Sale.
(a) Purchase and Sale. Subject to the terms and conditions set forth
in this Agreement, each Purchaser agrees to purchase at the Closing (as defined
below) and the Company agrees to sell and issue to each Purchaser at the Closing
that number of shares of Common Stock set forth opposite each such Purchaser's
name on Exhibit A attached hereto (collectively, the "Offered Securities").
(b) Time and Place of Closing. The closing of the purchase and sale of
the Offered Securities (the "Closing") shall take place on the later of (i) May
23, 2002 and (ii) one (1) business day after the satisfaction of the closing
condition set forth in Section 5.2 (the "Closing Date"), but in no event later
than June 5, 2002 unless otherwise agreed by the parties hereto. The Closing
shall be held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
1.2 Closing Delivery. On the Closing Date, subject to the terms and
conditions hereof:
(a) Each Purchaser, severally and not jointly, shall pay the
applicable amount set forth opposite each such Purchaser's name on Exhibit A
attached hereto by wire transfer of immediately available U.S. funds to an
account designated in writing by the Company, and shall also execute and deliver
to Company a receipt evidencing the receipt of the share certificate
representing the Offered Securities purchased by such Purchaser; and
(b) The Company shall execute and deliver to each Purchaser: (i) a
share certificate representing the Offered Securities purchased by such
Purchaser, and (ii) a customary certificate from the secretary of the Company
satisfactory to such Purchaser.
SECTION 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth on
the Company Disclosure Schedule, the Company represents and warrants as of the
date hereof to each Purchaser that:
2.1 The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware, with
requisite corporate power and authority to own its properties and conduct its
business as presently conducted. The Company and each of its Subsidiaries (as
defined below) are duly qualified to do business as a foreign corporation in
good standing in each jurisdiction in which their ownership or lease of property
or the conduct of their businesses require such qualification, except where the
failure to be so qualified would not have a material adverse effect on
transactions contemplated by this Agreement or the condition (financial or
other), business, properties or results of operations of the Company and its
Subsidiaries, taken as a whole (hereinafter, a "Material Adverse Effect"). The
Company has furnished representatives of the Purchasers with correct and
complete copies of the charter and by-laws of the Company, both as amended and
currently in effect.
2.2 Except as set forth in the SEC Documents, the Company does not
presently own, directly or indirectly, a majority of the stock or other equity
interests in any entity (each, a "Subsidiary"). Each Subsidiary of the Company
has been duly incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its business as presently
conducted. All of the issued and outstanding capital stock of each Subsidiary of
the Company has been duly authorized and validly issued and is fully paid and
non-assessable and is owned of record by the Company, free and clear of any
lien, charge, security interest, encumbrance or claim (collectively, "Liens"),
except that six (6) shares of Deltagen Europe, S.A. are held by individuals to
satisfy the requirements of local law; the Company has the right to repurchase
each such share for one euro ((euro)1).
2.3 The authorized capital stock of the Company consists of: (i) seventy
five million (75,000,000) shares of common stock, par value $0.001 per share
("Common Stock") and (ii) five million (5,000,000) shares of preferred stock. As
of March 31, 2002, 35,267,997 shares of Common Stock have been issued and are
outstanding and no shares of Preferred Stock are issued and outstanding. There
are no other outstanding shares of capital stock or voting securities of the
Company other than shares of Common Stock issued after March 31, 2002 under the
Company's 2000 Employee Stock Purchase Plan (the "ESPP") or upon the exercise of
options issued under the Company's 1998 Stock Incentive Plan, 2000 Stock
Incentive Plan, or the Arcaris, Inc. 1997 Equity Incentive Plan or subject to
outstanding non-qualified stock options otherwise assumed from Arcaris, Inc.
(issued under Arcaris, Inc.'s former name, Ventana Genetics, Inc.). All
outstanding shares of the Company have been duly authorized, validly issued,
fully paid and are non-assessable and free of any liens or encumbrances created
by the Company and are not subject to preemptive rights. As of the close of
business on March 31, 2002, the Company has reserved an aggregate of 8,853,607
shares of Common Stock for issuance to employees, directors and independent
contractors upon exercise of outstanding options to acquire shares of Common
Stock issued under the Company stock option plans, an aggregate of 472,142
shares of Common Stock for issuance upon exercise of outstanding warrants, up to
547,467 additional shares of Common Stock were reserved for issuance to the
former stockholders of Arcaris, Inc. upon the satisfaction of certain
milestones, up to an additional 1,449,275 shares of Common Stock
reserved for issuance to the former stockholders of XenoPharm, Inc. upon the
satisfaction of certain milestones. Other than as contemplated by this Agreement
or under the ESPP, and except as described in this Section 2.3, there are no
other options, warrants, calls, rights, commitments, preemptive rights, rights
of first refusal or other rights or agreements to which the Company is a party
or by which it is bound obligating the Company to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Company or obligating the
Company to grant, extend or enter into any such option, warrant, call, right,
commitment or agreement.
2.4 The Offered Securities, and all outstanding shares of capital stock of
the Company have been duly authorized; all outstanding shares of capital stock
of the Company are, and, when the Offered Securities have been delivered and
paid for in accordance with this Agreement on the Closing Date, will have been
validly issued, fully paid and non-assessable. None of the Offered Securities
are or will be subject to any preemptive right or any right of refusal.
2.5 No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance and
sale of the Offered Securities by the Company, except for the filing of a Form D
with the Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act"), and such as may be required under
state securities laws and except for (i) the consent of Sprout Venture Capital,
L.P., Sprout CEO Fund, L.P., DLJ Capital Corporation, DLJ ESC II, L.P., Sprout
Capital VIII, L.P. and Stipa Investments, L.P. with respect to the granting of
registration rights pursuant to Section 6, which has been obtained and (ii) the
execution of an amendment between the Company and ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company
with respect to the Registration Rights Agreement dated February 16, 2002
between Company and ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company. Assuming the accuracy of the
information provided to The Nasdaq Stock Market, Inc. with respect to the
imputed ownership of ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the continued validity of the
Voting Trust Agreement dated October 2, 2001 of the Sprout entities ownership of
the Company's common stock, no approval of Deltagen's stockholders is required
pursuant to NASD Rule 4350(i).
2.6 This Agreement has been duly authorized, executed and delivered by the
Company. All corporate action on the part of the Company and its stockholders,
directors and officers necessary for the authorization, execution and delivery
of this Agreement, the performance of all the Company's obligations hereunder
and for the authorization, issuance or reservation for issuance, sale and
delivery of the Offered Securities has been taken. This Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies,
and (iii) the limitations imposed by applicable federal or state securities laws
on the indemnification provisions contained in this Agreement.
2.7 The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities will not conflict with, or result in
a breach or violation of (i) any of the terms and provisions of the charter or
bylaws of the Company or any of its Subsidiaries, (ii)
any statute, rule, regulation or order of any governmental agency or body, any
court, domestic or foreign, or any self-regulatory organization having
jurisdiction over the Company or any Subsidiary of the Company or any of their
respective properties, or (iii) any of the terms and provisions of, or
constitute a default (with or without notice or lapse of time) under, or give to
any third party a right of termination, amendment, acceleration or cancellation
(with or without notice or lapse of time) of, any agreement or instrument to
which the Company or any such Subsidiary is a party or by which the Company or
any such Subsidiary is bound or to which any of the properties of the Company or
any such Subsidiary is subject (except where such breaches, violations or
defaults individually or in the aggregate would not have a Material Adverse
Effect). The Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement.
2.8 The Company and its Subsidiaries have good and marketable title to all
real properties and all other properties and assets owned by them that are
material to the operation of the Company's business, in each case free from
Liens and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and the Company and
its Subsidiaries hold all leased real and personal property that are material to
the operation of the Company's business under valid and enforceable leases with
no exceptions that would materially interfere with the use made or to be made
thereof by them.
2.9 The Company and its Subsidiaries possess all certificates,
authorizations and permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and to own, lease,
license and use their respective properties in the manner so owned, leased,
licensed and used, except to the extent that the failure to so possess would not
individually or in the aggregate have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit that, if determined adversely to the Company or any of
its Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect.
2.10 There are no pending legal, governmental or administrative actions,
suits or proceedings against or affecting the Company, any of its Subsidiaries
or any of their respective properties or any director, officer or employee
(related to any such person's services as a director, officer or employee of the
Company) that, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect, or could materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise material in
the context of the sale of the Offered Securities and, to the Company's
knowledge, no such actions, suits or proceedings are threatened or contemplated.
The Company has not initiated and has no plan to initiate any action, suit or
proceeding that, if decided adversely to the Company, could, individually or in
the aggregate, result in a Material Adverse Effect.
2.11 No material labor dispute exists or, to the knowledge of the Company,
is imminent with respect to any of the employees of the Company.
2.12 Neither the Company nor any of its Subsidiaries (i) is in default
under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of
time could reasonably be expected to result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a
claim that it is in default under or that it is in violation of, any agreement
or instrument to which it is a party or by which it or any of its properties is
bound, (ii) is in violation of any order of any court, arbitrator, governmental
body or self-regulatory organization, or (iii) is in violation of any statute,
rule or regulation of any governmental authority or self-regulatory
organization, including without limitation all foreign, federal, state and local
laws relating to taxes, environmental protection, occupational health and
safety, product quality and safety and employment and labor matters, except in
each case as would not, individually or in the aggregate, reasonably be expected
to have or result in a Material Adverse Effect.
2.13 The Company and its Subsidiaries maintain insurance as set forth in
Section 2.13 of the Company Disclosure Schedule. The Company has no reason to
believe that such insurance is not sufficient against such losses and risks and
not in such amounts as are reasonably customary in the businesses in which the
Company and the Subsidiaries are engaged.
2.14 Except as filed under the SEC Documents, neither Company nor any of
its Subsidiaries is a party to any material contract, as such contracts are
defined in Reg. ss. 601(a)(10) of Regulation S-K under the Securities Act (each
such contract, a "Company Contract"). Each Company Contract is valid, binding
and in full force and effect and is enforceable by Company or its Subsidiaries
in accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting
creditors' rights generally and to general equitable principles and except to
the extent that the failure of a Company Contract to be valid, binding and in
full force and effect would not be reasonably likely to have a Material Adverse
Effect. As of the date hereof, no party to any such Company Contract has
notified Company or any of its Subsidiaries that it intends to terminate such
Company Contract. Company or one of its Subsidiaries has performed, in all
respects, all obligations required to be performed by it to date under the
Company Contracts and Company is not (with or without the lapse of time or the
giving of notice, or both) in breach or default in any respect thereunder and,
to the knowledge of Company, no other party to any of the Company Contracts, as
of the date hereof, is (with or without the lapse of time or the giving of
notice, or both) in breach or default in any respect thereunder, except to the
extent that such breach or default would not be reasonably likely to have a
Material Adverse Effect.
2.15 The Company has made available to representatives of the Purchasers
all registration statements, proxy statements and other statements, reports,
schedules, forms and other documents filed by the Company with the SEC since
August 3, 2000, including copies of all the exhibits referenced therein (the
"SEC Documents"). All statements, reports, schedules, forms and other documents
required to have been filed by the Company with the SEC since August 3, 2000
have been so timely filed. As of their respective dates (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such amendment or superseding filing): (i) each of the SEC Documents complied in
all material respects with the applicable requirements of the Securities Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the
case may be, and the rules and regulations thereunder; and (ii) 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 in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2.16 Except as set forth in the SEC Documents, none of the officers or
directors of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with the
Company or any Subsidiary (other than customary transactions involving
reasonable amounts for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
2.17 The financial statements included in the SEC Documents present fairly
the financial position of the Company and its consolidated Subsidiaries as of
the dates shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis (except as may be indicated in the audit report or notes to
such financial statements or, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC, and except that the unaudited financial statements may
not have contained footnotes and were subject to normal and recurring year-end
adjustments which were not, or are not reasonably expected to be, individually
or in the aggregate, material in amount), and complied as to form in all
material respects with the published rules and regulations of the SEC applicable
thereto at the time of filing.
2.18 The Company and its Subsidiaries own or possess, or can acquire on
reasonable terms that would not individually or in the aggregate have a Material
Adverse Effect, sufficient legal rights to all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable propriety or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property Rights") necessary to conduct their respective businesses
as now operated by them and as currently proposed to be operated by them. To the
Company's knowledge, the methods, products, services, works, technologies,
systems and processes employed by the Company and its Subsidiaries to conduct
their business do not infringe upon or misappropriate any Intellectual Property
Rights of any person or entity anywhere in the world, except for Intellectual
Property Rights which the Company or its Subsidiaries can acquire on reasonable
terms that would not individually or in the aggregate have a Material Adverse
Effect. To the Company's knowledge, no claims or written notice (i) challenging
the validity, effectiveness or ownership by Company or its Subsidiaries of any
of the Intellectual Property Rights of the Company or any of its Subsidiaries,
or (ii) to the effect that the use, distribution, licensing, sublicensing, sale
or any other exercise of rights in any product, service, work, technology or
process as now used or offered or proposed for use, licensing, sublicensing,
sale or other manner of commercial exploitation by Company infringes or will
infringe on any Intellectual Property Rights of any person or entity have been
asserted or, to the knowledge of the Company or any of its Subsidiaries, are
threatened by any person or entity, nor are there, to the knowledge of the
Company or any of its Subsidiaries, any valid grounds for any bona fide claim of
any such kind except as can be cured by the Company or its Subsidiaries by
procurement of Intellectual Property Rights which the Company or its
Subsidiaries can acquire on reasonable terms that would not individually or in
the aggregate have a Material Adverse Effect. There has been no material default
(nor does any set of circumstances exist that will cause such a default) with
respect to any license granting Intellectual Property Rights to the Company or
any of its Subsidiaries. To the knowledge of the Company, no employee or third
party is or has been infringing or using without authorization any Intellectual
Property Rights of the Company or any of its Subsidiaries. The Company and each
of its Subsidiaries uses and has used, commercially reasonable efforts to
maintain the confidentiality of its trade secrets.
2.19 Neither the Company nor any of its Subsidiaries is subject to
regulation by the U.S. Food and Drug Administration ("FDA") under the Federal
Food, Drug and Cosmetic Act and the Regulations thereunder ("FDCA"). The Company
has not received any written notices or correspondence from the FDA or any other
governmental authority requiring the termination, suspension or material
modification of any tests or evaluations conducted on behalf of the Company or
any of its Subsidiaries.
2.20 The Company has not, in the 12 months preceding the date hereof,
received notice from The Nasdaq National Market to the effect that the Company
is not in compliance with the listing or maintenance requirements thereof. The
Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and maintenance
requirements. The issuance and sale of the securities hereunder does not
contravene the rules and regulations of The Nasdaq National Market.
2.21 The Company and its Subsidiaries have timely made or filed all
federal, state and foreign income and all other tax returns, reports and
declarations required by any jurisdiction to which they are subject (unless and
only to the extent that the Company and its Subsidiaries have set aside on their
respective or consolidated books provisions reasonably adequate for the payment
of all unpaid and unreported taxes) and have timely paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith, and have set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. To the knowledge
of the Company and it Subsidiaries, there are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company or the Subsidiaries know of no basis for any such claim.
Neither the Company nor any of its Subsidiaries has executed a waiver with
respect to the statute of limitations relating to the assessment or collection
of any foreign, federal, state or local tax. None of the Company's or the
Subsidiaries' tax returns is presently being audited by any taxing authority.
2.22 Neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act) (an "Affiliate") of the Company has,
directly, or through any agent, (a) sold, offered for sale, solicited any offers
to buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sales of the Offered
Securities in a manner that would require the registration under the Securities
Act of the Offered Securities; or (b) offered, solicited offers to buy or sold
the Offered Securities in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act; and the Company will not engage in any of the actions
described in subsections (a) and (b) of this paragraph.
2.23 Subject to the accuracy of each of the Purchaser's representations
herein, it is not necessary in connection with the offer, sale and delivery of
the Offered Securities to the several Purchasers in the manner contemplated by
this Agreement to register the Offered Securities under the Securities Act.
2.24 Except as disclosed in the SEC Documents, since December 31, 2001, (i)
there has been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected
in the Company's financial statements pursuant to GAAP or required to be
disclosed in filings made with the SEC, (iii) the Company has not altered its
method of accounting or the identity of its auditors, (iv) the Company has not
declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock, and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing
Company stock option plans. Except as disclosed in the SEC Documents, since
December 31, 2001 no material off-balance sheet liabilities not required to be
reflected in the Company's financial statements pursuant to GAAP or required to
be disclosed in filings made with the SEC which would individually or in the
aggregate have a Material Adverse Effect have been incurred. No material default
exists with respect to or under any obligations of the Company or any Subsidiary
to repay money borrowed (including, without limitation, all notes payable and
drafts accepted representing extensions of credit, all obligations under letters
of credit, all obligations evidenced by bonds, debentures, notes or other
similar instruments and all obligations upon which interest charges are
customarily paid) and all contractual obligations (whether absolute or
contingent) of such entity to repurchase goods sold and distributed or any
instrument or agreement relating thereto and no event or circumstance exists
with respect thereto that (with notice or the lapse of time or both) could give
rise to such a default.
2.25 The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
2.26 The Company satisfies the requirements for use of Form S-3 for
registration of the resale of the Offered Securities as contemplated herein. To
the knowledge of the Company, there exist no facts or circumstances that could
reasonably be expected to prohibit or delay the preparation or initial filing of
the Registration Statement.
2.27 The issuance of the Offered Securities does not constitute an
anti-dilution event for any existing security holders of the Company, pursuant
to which such security holders would be entitled to additional securities or a
reduction in the applicable conversion price or exercise price of any securities
due to any issuance proposed to be conducted hereunder.
2.28 The Company has not granted or agreed to grant any person or entity
any rights (including "piggy-back" registration rights) to require the Company
to file a registration statement under the Securities Act with respect to any
securities, or to include such securities with the Offered Securities in any
registration statement, except for such as have been satisfied or waived.
2.29 All information provided to the Purchasers in connection with the
transactions contemplated hereby, or contained in this Agreement and the SEC
documents with respect to the business, operations, assets, results of
operations and financial condition of the Company, and the transactions
contemplated by this Agreement, are true and complete in all material respects
and do not omit to state any material fact or facts necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby, severally and not jointly, represents and warrants to the Company, as of
the date hereof, as follows:
3.1 Such Purchaser is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all requisite
corporate or partnership power and authority to consummate the transactions
contemplated hereby
3.2 Such Purchaser has full corporate or partnership power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the legal, valid and binding obligation of such
Purchaser, enforceable against such Purchaser in accordance with its terms,
subject to (a) laws of general application relating to bankruptcy, insolvency
and the relief of debtors, (b) rules of law governing specific performance,
injunctive relief and other equitable remedies, and (c) the limitations imposed
by applicable federal or state securities laws on the indemnification provisions
contained in this Agreement.
3.3 Investment Representations.
(a) Such Purchaser is sophisticated in transactions of this type and
capable of evaluating the merits and risks of the transactions described herein
and has the capacity to protect its own interests. Such Purchaser has not been
formed solely for the purpose of entering into the transactions described herein
and is acquiring the Offered Securities for investment for its own account, not
as a nominee or agent, and not with the view to, or for resale, distribution
thereof, in whole or in part.
(b) Such Purchaser has not and does not presently intend to enter into
any contract, undertaking, agreement or arrangement with any person or entity to
sell, transfer or pledge the Offered Securities, other than to an affiliate,
partner or former partner of such Purchaser in compliance with the Securities
Act.
(c) Such Purchaser acknowledges its understanding that the Company
intends to sell the Offered Securities pursuant to a private placement exempt
from registration under the Securities Act. In furtherance thereof, such
Purchaser represents and warrants that it is an "accredited investor" as that
term is defined in Rule 501 of Regulation D under the Securities
Act, has the financial ability to bear the economic risk of its investment and
has adequate means for providing for its current needs and personal
contingencies.
(d) Such Purchaser agrees that it shall not sell or otherwise transfer
any of the Offered Securities unless (i) pursuant to registration under the
Securities Act, (ii) pursuant to Rule 144 (or any successor rule) under the
Securities Act, (iii) to an affiliate, partner or former partner of such
Purchaser in compliance with the Securities Act, or (iv) pursuant to an opinion
of counsel reasonably satisfactory to the Company that no violation of the
Securities Act will be involved in such transfer. Such Purchaser fully
understands that none of the Offered Securities have been registered under the
Securities Act or under the securities laws of any applicable state or other
jurisdiction and, therefore, cannot be resold, pledged, assigned or otherwise
disposed of unless subsequently registered under the Securities Act and under
the applicable securities laws of such states or jurisdictions or an exemption
from such registration is available. Such Purchaser understands the lack of
liquidity and restrictions on transfer of the Offered Securities and that this
investment is suitable only for a person or entity of adequate financial means
that has no need for immediate liquidity of this investment and that can afford
a total loss of its investment.
3.4 There is no legal, administrative, arbitration or other action or
proceeding or governmental investigation pending, or to the knowledge of such
Purchaser threatened, against such Purchaser that challenges the validity or
performance of this Agreement or which, if successful, could hinder or prevent
such Purchaser from performing its obligations hereunder.
SECTION 4 CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The several
obligations of each Purchaser to purchase and pay for the Offered Securities on
the Closing Date will be subject to the satisfaction, or waiver by each
Purchaser, of each of the conditions below:
4.1 The representations and warranties of the Company herein must be
correct and complete on the Closing Date and the Company must have performed all
of its obligations hereunder required to be performed prior to the Closing Date.
4.2 Each Purchaser must have received a customary opinion, dated the
Closing Date, from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company,
substantially in the form attached hereto as Exhibit 4.2.
4.3 Each Purchaser must have received a certificate, dated the Closing
Date, of an officer of the Company in which such officer shall state that: the
representations and warranties of the Company in Section 2 of this Agreement are
correct as of such date; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and there has been no Material Adverse Change
since the date of this Agreement.
4.4 The business, assets, financial condition and operations of the Company
shall be substantially as represented to the Purchasers and no change shall have
occurred that, in the reasonable good faith judgment of the Purchasers, is or
could have a Material Adverse Effect, provided, however, that no change
constituting or related solely to (i) the economy or financial markets of the
United States of America in general, (ii) any change, effect or development that
is
primarily caused by conditions generally affecting the industry in which the
Company conducts its business, or (iii) any change that is primarily caused by
the announcement or pendency of this Agreement or the transactions contemplated
hereby, shall be deemed to be or have a Material Adverse Effect for the purposes
of this Section.
4.5 The Company shall have paid the expenses of Purchasers' counsel not
exceeding thirty-five thousand dollars ($35,000.00).
4.6 Satisfaction of any notice period required by Nasdaq and receipt of any
necessary waivers from Nasdaq.
SECTION 5 CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell the Offered Securities on the Closing Date to a Purchaser will
be subject to the satisfaction, or waiver by the Company, of each of the
conditions below:
5.1 The representations and warranties of such Purchaser herein must be
correct and complete on the Closing Date and such Purchaser must have performed
all of its obligations hereunder required to be performed prior to the Closing
Date.
5.2 Satisfaction of any notice period required by Nasdaq and receipt of any
necessary waivers from Nasdaq.
SECTION 6 REGISTRATION OF THE REGISTRABLE SECURITIES; COMPLIANCE WITH THE
SECURITIES ACT.
6.1 Registration Procedures. The Company is obligated to do the following:
(a) No later than ten business days after the Closing Date (the
"Filing Deadline"), the Company shall prepare and file with the SEC one or more
registration statements (collectively, the "Registration Statement") on Form S-3
(unless the Company is not then eligible to register for resale on Form S-3, in
which case on another appropriate form) in order to register with the SEC the
resale by the Purchasers, from time to time, of the Offered Securities and any
Common Stock issued as (or issuable upon the conversion of exercise of any
warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Offered Securities (collectively, the "Registrable Securities") through Nasdaq
or the facilities of any national securities exchange on which the Company's
Common Stock is then traded, or in privately negotiated transactions. Unless
otherwise directed by the Purchasers, the Registration Statement shall contain
the Plan of Distribution attached hereto as Exhibit B. The Company shall use its
best efforts to cause the Registration Statement to be declared effective as
soon thereafter as possible, but in any event prior to 90 days after Closing
(the "Effectiveness Deadline").
(b) Not less than five trading days prior to the filing of a
Registration Statement or any prospectus contained in a Registration Statement
(a "Prospectus") or any amendment or supplement thereto, the Company shall, (i)
furnish to the Purchasers for their review copies of all such documents proposed
to be filed (including documents incorporated or deemed incorporated by
reference), (ii) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as the Purchasers
shall deem reasonably
necessary and (iii) notify each Purchaser in writing of the information the
Company requires from each such Purchaser to be included in such Registration
Statement.
(c) The Company shall (i) prepare and file with the SEC (x) such
amendments and supplements to each Registration Statement and the Prospectus
used in connection therewith, and (y) such other filings required by the SEC,
and (ii) take such other actions, in each case as may be necessary to keep the
Registration Statement continuously effective and so that such Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and so that such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, until the earlier
of (A) the date that the Purchasers have completed the distribution related to
the Registrable Securities, or (B) such time that all Registrable Securities
then held by the Purchasers can be sold without compliance with the registration
requirements of the Securities Act pursuant to Rule 144(k) under the Securities
Act (the "Effectiveness Period"). The Company shall not, during such period,
voluntarily take any action that would result in the Purchasers not being able
to offer and sell Registrable Securities during that period, unless such action
is taken by the Company in good faith in compliance with Section 6.2(d) below.
(d) Furnish to the Purchasers with respect to the Registrable
Securities registered under the Registration Statement such number of copies of
the Registration Statement, Prospectuses (including supplemental prospectuses)
and preliminary versions of the Prospectus filed with the SEC ("Preliminary
Prospectuses") in conformity with the requirements of the Securities Act and
such other documents as the Purchasers may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Registrable
Securities by the Purchasers.
(e) Notify the Purchasers as promptly as reasonably possible and (if
requested by any such Person) confirm such notice in writing no later than one
trading day following the day (i) (A) when the SEC notifies the Company whether
there will be a "review" of a Registration Statement and whenever the SEC
comments in writing on such Registration Statement (the Company shall provide
true and complete copies thereof and all written responses thereto to each of
the Purchasers); and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the SEC for amendments or supplements to a Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement covering
any or all of the Registrable Securities or the initiation of any proceedings
for that purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; and (v) of the
occurrence of any event or passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement,
such Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and so that such Prospectus will
not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(f) File documents required of the Company for normal blue sky
clearance in states reasonably specified in writing by the Purchasers prior to
the effectiveness of the Registration Statement, provided, however, that the
Company shall not be required to qualify to do business or consent to service of
process in any jurisdiction in which it is not now so qualified or has not so
consented.
(g) Use its best efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption therefrom) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(h) Cooperate with the Purchasers to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be delivered
to any transferee pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the Purchasers
may reasonably request.
(i) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Purchaser
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(j) In the event of any underwritten public offering, furnish, on the
date that such Registrable Securities are delivered to the underwriters for
sale, if such securities are being sold through underwriters, (i) an opinion,
dated as of such date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and (ii) a letter, dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters.
(k) Cause all such Registrable Securities registered pursuant hereto
to be listed on Nasdaq and each other securities exchange on which similar
securities issued by the Company are then listed.
(l) The Company understands that each of the Purchasers disclaims
being an underwriter, but any Purchasers being deemed an underwriter by the SEC
shall not relieve the Company of any obligations it has hereunder.
6.2 Transfer of Shares After Registration; Suspension; Damages.
(a) Each Purchaser, severally and not jointly, agrees (i) that it will
not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or
grant any right with respect to the
Registrable Securities or otherwise take an action that would constitute a sale
within the meaning of the Securities Act, other than transactions exempt from
the registration requirements of the Securities Act, except as contemplated in
the Registration Statement referred to in Section 6.1 and as described below,
(ii) that it shall be a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Purchaser that such Purchaser shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be required to effect the registration of such
Registrable Securities, (iii) that it shall execute such documents in connection
with such registration, that are customary for resale registration statements,
as the Company may reasonably request, (iv) to cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of any Registration Statement hereunder, unless such Purchaser has
notified the Company in writing of such Purchaser's election to exclude all of
such Purchaser's Registrable Securities from such Registration Statement and (v)
that it will promptly notify the Company of any changes in the information set
forth in the Registration Statement regarding the Purchaser or its plan of
distribution. Any delay of a Purchaser in taking the actions set forth in
clauses (ii), (iii), (iv) and (v) of this Section 6.2(a) shall be deemed a
"Purchaser Delay" for purposes of this Agreement.
(b) The Company shall: (i) prepare and file from time to time with the
SEC a post-effective amendment to the Registration Statement or a supplement to
the related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and so that, as thereafter delivered
to purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (ii) provide the Purchaser copies of any documents filed
pursuant to Section 6.2(b)(i); and (iii) upon request, inform each Purchaser who
so requests that the Company has complied with its obligations in Section
6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the
Registration Statement which has not yet been declared effective, the Company
will notify the Purchaser to that effect, will use its reasonable efforts to
secure the effectiveness of such post-effective amendment as promptly as
possible and will promptly notify the Purchaser pursuant to Section 6.2(b)(i)
hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event: (i) of any request
by the SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose; or (iv) of any event or circumstance which
necessitates the making of any changes in the Registration Statement or
Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; then the Company shall
promptly deliver a certificate in writing to the Purchaser (the "Suspension
Notice") to the effect of the foregoing and, upon receipt of such Suspension
Notice, the Purchaser will refrain from selling any Registrable Securities
pursuant to the Registration Statement (a "Suspension") until the Purchaser's
receipt of copies of a supplemented or amended Prospectus prepared and filed by
the Company, or until it is advised in writing by the Company that the current
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in any such Prospectus. In the event of any Suspension, the Company will use its
best efforts to cause the use of the Prospectus so suspended to be resumed as
soon as reasonably practicable but in any event within forty-five (45) days
after delivery of a Suspension Notice to Purchasers. In addition to and without
limiting any other remedies (including, without limitation, at law or at equity)
available to the Purchaser, the Purchaser shall be entitled to specific
performance in the event that the Company fails to comply with the provisions of
this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 6.2, the
Purchasers shall not be prohibited from selling Registrable Securities under the
Registration Statement as a result of Suspensions on more than three occasions
of not more than forty-five (45) days each and not more than ninety (90) days in
the aggregate in any twelve month period.
(e) Provided that a Suspension in accordance with paragraphs (c) and
(d) of this Section 6.2 is not then in effect a Purchaser may sell Registrable
Securities under the Registration Statement, provided that it arranges for
delivery of a current Prospectus to the transferee of such Registrable
Securities. Upon receipt of a request therefor, the Company will provide an
adequate number of current Prospectuses to the Purchaser and to any other
parties requiring such Prospectuses.
(f) In the event of a sale of Registrable Securities by a Purchaser,
unless such requirement is waived by the Company in writing, such Purchaser
shall deliver to the Company's transfer agent, with a copy to the Company, a
Certificate of Subsequent Sale substantially in the form attached hereto as
Exhibit C, so that the shares may be properly transferred.
(g) Liquidated Damages. If (i) a Registration Statement covering all
of the Registrable Securities (a) is not filed with the SEC on or prior to the
Filing Deadline or (b) has not been declared effective by the SEC on or prior to
the Effectiveness Deadline, or (ii) a Registration Statement ceases to be
effective as to, or ceases to be available to the Purchasers with respect to,
all Registrable Securities to which it is required to relate at any time prior
to the expiration of the Effectiveness Period other than during the continuance
and for the enumerated time periods of any Suspension in accordance with
paragraphs (c) and (d) of this Section 6.2 (any such event, a "Registration
Default"), then the Company shall pay each Purchaser liquidated damages in an
amount equal to one percent (1.0%) of the aggregate purchase price paid by such
Purchaser for the Registrable Securities available for sale under the
Registration
Statement at the time of the Registration Default per calendar month, including
a pro rata portion thereof for any partial calendar month, that such
Registration Default continues ("Liquidated Damages"); provided, however, that
no Purchaser shall be entitled to Liquidated Damages with respect to any
Registrable Securities previously sold or then eligible to be sold within a
three (3) month period without compliance with the registration requirements of
the Securities Act under Rule 144 of the Securities Act. The Company shall not
in any event be required to pay Liquidated Damages for more than one
Registration Default at any given time, and upon cure of a Registration Default
(by the filing or the declaration of effectiveness of the Registration
Statement, as applicable) such Liquidated Damages shall cease to accrue. All
accrued Liquidated Damages shall be paid in cash to the Purchasers entitled
thereto, in proportion to the aggregate number of Registrable Securities
beneficially owned by each such Purchaser. Notwithstanding anything in the
foregoing to the contrary, all periods in clauses (i) - (ii) shall be tolled to
the extent of any delays caused solely by any Purchaser Delay.
6.3 Expenses of Registration. Except as specifically provided herein, all
expenses incurred by the Company in complying with Section 6 hereof, including,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and expenses of one counsel to the
Purchasers (which shall be in addition to any fees pursuant to Sections 4.5 and
7), blue sky fees and expenses, fees and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company) (collectively, the "Registration Expenses") shall be borne by the
Company. All underwriting discounts and selling commissions applicable to a sale
incurred in connection with any registrations hereunder shall be borne by the
holders of the securities so registered pro rata on the basis of the number of
shares so sold.
6.4 Delay of Registration; Furnishing Information. The Purchasers shall
furnish to the Company such information regarding themselves, the Registrable
Securities held by them and the intended method of disposition of such
securities as shall be required to effect the registration of their Registrable
Securities. Furthermore, each Purchaser, severally and not jointly, agrees to
promptly notify the Company of any changes in the information set forth in a
registration statement regarding such Purchaser or its plan of distribution set
forth in such registration statement.
6.5 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 6.
(a) The Company will indemnify and hold harmless each Purchaser, the
partners, officers and directors of each Purchaser, any underwriter (as defined
in the Securities Act) for such Purchaser and each person, if any, who controls
such Purchaser or underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will pay as incurred to each such Purchaser, partner, officer, director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 6.6 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, unless such settlement (x) includes an
unconditional release of the Company from all liability on any claims that are
the subject matter of such action, and (y) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of the
Company; provided, further, that the Company shall not be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for inclusion in such
Registration Statement, prospectus, amendment or supplement by such Purchaser,
partner, officer, director, underwriter or controlling person of such Purchaser;
provided, further, that this indemnification agreement will be in addition to
any liability which the Company may otherwise have to the Purchasers.
(b) Each Purchaser will, if Registrable Securities held by such
Purchaser are included in the securities as to which such Registration
Statement, prospectus, amendment or supplement is being filed, severally and not
jointly, indemnify and hold harmless the Company, each of its directors, its
officers and each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter and any other Purchaser selling securities
under such registration statement or any of such other Purchaser's partners,
directors or officers or any person who controls such Purchaser, against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, controlling person, underwriter or other such
Purchaser, or partner, director, officer or controlling person of such other
Purchaser may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Purchaser under an
instrument duly executed by such Purchaser and stated to be specifically for use
in connection with such Registration Statement, prospectus, amendment or
supplement; and each such Purchaser will pay as incurred any legal or other
expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or other person registering shares under such
registration, or partner, officer, director or controlling person of such other
person registering shares under such Registration Statement in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 6.5 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Purchaser, which
consent shall not be unreasonably withheld, unless such settlement (x) includes
an unconditional release of such Purchaser from all liability on any claims that
are the subject matter of such action, and (y) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of such Purchaser; provided, further, that in no event
shall any indemnity under this Section 6.5 exceed the dollar amount of the
proceeds to be received by such Purchaser from the sale of such Purchaser's
Registrable Securities pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6.5 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 6.5, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the indemnified party under this Section 6.5, unless and to the
extent that such failure is materially prejudicial to the indemnifying party's
ability to defend such action, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 6.5.
(d) If the indemnification provided for in this Section 6.5 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the sale of the Registrable Securities
pursuant to the Registration Statement, or (ii) if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits but also the relative fault of the indemnifying party
or parties on the one hand and the indemnified party on the other in connection
with the Violation(s) that resulted in such loss, claim, damage or liability, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by a court
of law by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, that in no event
shall any contribution by a Purchaser hereunder exceed the dollar amount of the
proceeds to be received by such Purchaser from the sale of such Purchaser's
Registrable Securities pursuant to the Registration Statement.
(e) The obligations of the Company and the Purchasers under this
Section 6.6 shall survive completion of any offering of Registrable Securities
in a Registration Statement and the termination of this Agreement.
6.6 Agreement to Furnish Information. In connection with an underwritten
registration in which such Purchaser is participating, each Purchaser agrees to
execute and deliver such other agreements as may be reasonably requested by the
Company or the underwriter. In addition, if requested by the Company or the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Purchaser shall provide such information related to such Purchaser
as may be required by the Company or such representative in connection with the
completion of any public offering of the Company's securities pursuant to a
registration statement filed under the Securities Act.
6.7 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 6 may be assigned (but
only with the related obligations) by a Purchaser, provided (i) each transfer to
each transferee or designee involve either (X) all shares of Offered Securities
held by such Purchaser, (Y) not less than four hundred thousand (400,000) shares
of Common Stock, or (Z) an affiliate, partner or former partner of such
Purchaser, (ii) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee, (iii) such transferee or assignee agrees in writing to assume the
obligations of this Section 6 and Sections 8 through 14 of this Agreement and
(iv) such assignment shall be effective only if immediately following such
transfer the further disposition of such shares by the transferee or assignee is
restricted under the Securities Act.
6.8 Rule 144 Reporting. With a view to making available to the Purchasers
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act; and
(c) So long as a Purchaser owns any Registrable Securities, furnish to
such Purchaser forthwith upon request: a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Purchaser may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
6.9 S-3 Eligibility. The Company will use its best efforts to meet the
requirements for the use of Form S-3 for registration of the resale by the
Purchasers of the Registrable Securities. The Company will use its best efforts
to file all reports required to be filed by the
Company with the SEC in a timely manner and take all other necessary action so
as to maintain such eligibility for the use of Form S-3.
6.10 Termination of Registration Rights. The Company's obligations pursuant
to this Section 6 shall terminate with respect to each Purchaser severally upon
the earlier of (a) the date that any Purchaser has completed the distribution
related to such Purchaser's Registrable Securities, or (b) the second
anniversary of the Closing Date, with respect to any Purchaser who may at such
date sell all of such Purchaser's Registrable Securities under Rule 144(k) (or
any successor rule) under the Securities Act. Following a termination of the
Company's obligations pursuant to the preceding sentence with respect to a
Purchaser, any Offered Securities held by such Purchaser shall not be deemed to
be "Registrable Securities" thereafter, and the obligations of such Purchaser
pursuant to this Section 6 shall also terminate.
6.11 Amendment of Registration Rights. Provisions of this Section 6 may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Purchasers who then hold two-thirds ( 2/3) of
the Registrable Securities. Any amendment or waiver effected in accordance with
this Section 6.11 shall be binding upon each Purchaser and the Company. No such
amendment shall be effective to the extent that it applies to less than all of
the holders of the Registrable Securities.
SECTION 7 EXPENSES. Except as set forth in Sections 4.5 and 6.3, the Company, on
the one hand, and each Purchaser, on the other hand, are each responsible for
its own expenses associated with the purchases and sales of the Offered
Securities pursuant to the terms of this Agreement; provided, that the Company
will pay, on the Closing Date, the reasonable legal fees and expenses of one
legal counsel to the Purchasers.
SECTION 8 COVENANTS OF THE PURCHASERS.
8.1 Confidentiality of Records. Each Purchaser agrees to use, and to use
its best efforts to insure that it and its authorized representatives use, the
same degree of care as such person uses to protect its own confidential
information to keep confidential any information furnished to it which the
Company identifies as being confidential or proprietary, including any
information previously delivered under any confidentiality or nondisclosure
agreement entered into in connection with this transaction, except that such
person may disclose such proprietary or confidential information to any partner,
subsidiary or parent of such person for the purpose of evaluating its investment
in the Company as long as such partner, subsidiary or parent is advised of the
confidentiality provisions of this Section 8.1; provided, however, information
shall not be deemed to be confidential if (i) it is within the public domain or
has been publicly disclosed, or enters into the public domain or is publicly
disclosed through no fault of such Purchaser; (ii) was in the unrestricted
possession of such Purchaser prior to its receipt from the Company; or (iii) is
received from a third party not under an obligation of confidentiality with
respect thereto. Notwithstanding the above, a Purchaser shall not be in
violation of this Section 8.1 with regard to a disclosure that was in response
to a valid order by a court or other governmental body or as required by law or
regulation, provided that such Purchaser provides the Company with prior written
notice of such disclosure in order to permit the Company to seek confidential
treatment or other appropriate remedy of such confidential information; provided
that, in the event that
such confidential treatment or other remedy is not requested or obtained, the
Purchaser shall furnish only that part of the confidential information that is
legally required and shall exercise its reasonable best efforts to ensure that
the confidential information so obtained is accorded treatment as confidential
property.
8.2 Prohibition on Use of Insider Information. Each Purchaser understands
that federal and state securities laws prohibit trading in the Company's
securities while such Purchaser is in the possession of "material nonpublic
information" concerning the Company and/or its affiliates. Each Purchaser
represents that it has been advised by its counsel of such laws and the
consequences of breaking such laws.
SECTION 9 EXEMPTION FROM REGISTRATION; LEGEND. The Offered Securities will be
issued under an exemption or exemptions from registration under the Securities
Act, and are also subject to certain rights and obligations set forth herein.
Accordingly, the certificates evidencing the Offered Securities shall, upon
issuance, contain a legend substantially in the form as follows (it being
understood that such legend shall not be deemed to modify the agreed right of
each Purchaser to transfer securities to an affiliate, partner or former partner
of such Purchaser in compliance with the Securities Act, without provision of an
opinion or other contractual restriction, as contemplated pursuant to Section
3.3(d) hereof):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE
SECURITIES LAWS AND NO INTEREST HEREIN MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES SHALL BE EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR (2) SUCH SECURITIES ARE TRANSFERRED PURSUANT TO RULE 144
PROMULGATED UNDER THE ACT (OR ANY SUCCESSOR RULE) OR (3) THE ISSUER OF
THESE SECURITIES SHALL HAVE RECEIVED AN OPINION OF COUNSEL FOR THE HOLDER
OF THESE SECURITIES SATISFACTORY TO THE ISSUER THAT NO VIOLATION OF THE ACT
OR SIMILAR STATE SECURITIES LAWS WILL BE INVOLVED IN SUCH TRANSFER.
SECTION 10 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within domestic United
States by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express (or comparable
service) or facsimile, and shall be deemed given (i) if delivered by first-class
registered or certified mail domestic, three business days after so mailed, (ii)
if delivered by nationally recognized overnight carrier, one (1) business day
after so mailed, (iii) if delivered by International Federal Express (or
comparable service), two (2) business days after so mailed, (iv) if delivered by
facsimile, upon electric confirmation of receipt and shall be delivered as
addressed as follows:
(a) if to the Company, to:
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) with a copy mailed to:
General Counsel at above address
(c) with a copy mailed to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to a Purchaser, at its address on a Signature Page hereto, or
at such other address or addresses as may have been furnished to the Company in
writing.
SECTION 11 AMENDMENT AND WAIVER.
11.1 Except as set forth in Section 6.11 or otherwise expressly provided,
this Agreement may be amended or modified only upon the written consent of the
Company and Purchasers.
11.2 Except as otherwise expressly provided herein, (i) rights arising
under this Agreement may only be waived in writing by the party entitled to such
right and (ii) obligations under this Agreement may only be waived by the party
to whose benefit the obligations runs.
SECTION 12 SUCCESSORS. Except as set forth in Section 6.7, this Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and no other person will have any right or obligation
hereunder.
SECTION 13 ENTIRE AGREEMENT. This Agreement and the documents and instruments
and other agreements delivered pursuant hereto, including (i) the exhibits and
schedules and (ii) that certain letter dated as of the date hereof delivered by
the Company to Alta BioPharma Partners II, L.P., constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, including any confidentiality or
non-disclosure agreement entered into in connection with this transaction.
SECTION 14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 15 APPLICABLE LAW AND VENUE. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, without
regard to principles of conflicts of laws.
[Signature Pages Follow]
IN WITNESS WHEREOF, this Agreement is entered into by the undersigned
parties as of the date first written above.
DELTAGEN, INC.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
ACQUA WELLINGTON OPPORTUNITY I LIMITED
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
▇. ▇▇▇▇ PRICE SMALL-CAP VALUE FUND, INC.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
Castle Creek Healthcare Partners, LLC
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
Kodiak Capital, L.P.
By: ____________________, Its General Partner
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
Kodiak Capital Offshore, Ltd.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ Exempt Trust
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇
By:
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
By:
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Tang Family Trust
By: Bermuda Trust Co. Ltd. as Trustee
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇ Family Trust
By: Bermuda Trust (New Zealand) as Trustee
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
TANG FUND
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
ALTA BIOPHARMA PARTNERS II, L.P.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
ALTA EMBARCADERO BIOPHARMA PARTNERS II, LLC
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CLSP, L.P.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CLSP II, L.P.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CLSP SBS-I, L.P.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CLSP SBS-II, L.P.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CLSP OVERSEAS, LTD.
By:
-------------------------------------------
Name:
------------------------------------
Title:
----------------------------------
SPROUT VENTURE CAPITAL, L.P.
By: DLJ Capital Corporation, Its General Partner
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Managing Director
SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation, Its General Partner
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Managing Director
DLJ CAPITAL CORPORATION
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Managing Director
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation.,
Its General Partner
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Attorney In Fact
SPROUT CAPITAL, VIII, L.P.
By: DLJ Capital Corporation, Its Managing
General Partner
By:
------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇
Managing Director
EXHIBIT B
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares of common stock from time to
time. When we use the term "selling stockholders" in this prospectus, it
includes donees, distributees, pledgees and other transferees who are selling
shares received after the date of this prospectus from a selling stockholder
whose name appears in "Selling Stockholders". If we are notified by a selling
stockholder that a donee, distributee, pledgee or other transferee intends to
sell more than 500 shares, we will file a supplement to the prospectus if
required by law. The selling stockholders will act independently of us in making
decisions regarding the timing, manner and size of each sale. The selling
stockholders may make these sales on the Nasdaq National Market or otherwise, at
prices and terms that are then-prevailing or at prices related to the
then-current market price, at fixed prices or in privately negotiated
transactions. The selling stockholders may use one or more of the following
methods to sell the shares of common stock:
o a block trade in which a selling stockholder's broker or dealer will
attempt to sell the shares as agent, but may position and resell all
or a portion of the block as a principal to facilitate the
transaction;
o a broker or dealer may purchase the common stock as a principal and
then resell the common stock for its own account pursuant to this
prospectus;
o an exchange or over-the-counter distribution in accordance with the
rules of the applicable exchange or Nasdaq;
o a pledge to secure debt and other obligations; and
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
these transactions, broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with the selling stockholders.
The selling stockholders also may sell shares short and redeliver the shares to
close out short positions. The selling stockholders may enter into option or
other transactions with broker-dealers that require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer the shares under this prospectus. The selling stockholders also may
loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
loaned shares, or upon a default the broker-dealer may sell the pledged shares
under this prospectus.
In effecting sales, broker-dealers engaged by the selling stockholders
may arrange for other broker-dealers to participate in the resales. To the
extent required, this Prospectus will be amended and supplemented from time to
time to describe a specific plan of distribution.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker- dealers
or agents may also receive
compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principal, or both. Compensation
as to a particular broker-dealer might be in excess of customary commissions and
will be in amounts to be negotiated in connection with the sale. Broker-dealers
or agents and any other participating broker-dealers or the selling stockholders
may be deemed to be "underwriters" within the meaning of section 2(a)(11) of the
Securities Act in connection with sales of the shares. Accordingly, any such
commission, discount or concession received by them and any profit on the resale
of the shares purchased by them may be deemed to be underwriting discounts or
concessions under the Securities Act. Because selling stockholders may be deemed
"underwriters" within the meaning of section 2(a)(11) of the Securities Act, the
selling stockholders will be subject to the prospectus delivery requirements of
the Securities Act.
Any shares covered by this prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sale of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. We have agreed to
indemnify the selling stockholders against certain liabilities in connection
with their offering of the shares, including liabilities arising under the
Securities Act.
EXHIBIT C
DELTAGEN, INC.
CERTIFICATE OF SUBSEQUENT SALE
Deltagen, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
RE: Sale of Shares of Common Stock of Deltagen, Inc. (the "Company")
pursuant to the Company's Prospectus dated _______________, 2002 (the
"Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of
shares of Common Stock of the Company included in the table of Selling
Stockholders in the Prospectus, that the undersigned has sold the Shares
pursuant to the Prospectus and in a manner described under the caption "Plan of
Distribution" in the Prospectus and that such sale complies with all applicable
securities laws, including, without limitation, the Prospectus delivery
requirements of the Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner):
Record Holder (e.g., if held in name of nominee):
----------------------
Restricted Stock Certificate No.(s):
-----------------------------------
Number of Shares Sold:
-------------------------------------------------
Date of Sale:
----------------------------------------------------------
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Dated: Very truly yours,
-----------------
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
cc: Investor Relations
Deltagen, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT 4.2
OPINION OF COMPANY COUNSEL
(1) The Company is a corporation duly incorporated, validly existing, and
in good standing under the laws of the State of Delaware. Deltagen Proteomics,
Inc. is qualified to do business in Utah.
(2) Each of Deltagen Proteomics, Inc. and XenoPharm, Inc. is a corporation
duly incorporated, validly existing, and in good standing under the laws of the
State of Delaware. Deltagen Research Laboratories, L.L.C. is a limited liability
company duly formed, validly existing, and in good standing under the laws of
the State of Delaware. Each of Deltagen, Deltagen Research Laboratories, L.L.C.
and XenoPharm, Inc. is qualified to do business in California.
(3) The Company has full corporate power and corporate authority to enter
into, perform, and consummate the transactions contemplated by the Agreement.
(4) The Agreement has been duly authorized by all necessary corporate
action on the part of Company, has been duly executed and delivered by Company
and is a legal, valid, and binding obligation of Company, enforceable against
Company in accordance with its terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting creditors' rights, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.
(5) The execution, delivery, and performance of the Agreement by Company
and the consummation by Company of the transactions to be consummated at Closing
do not and will not (a) conflict with or violate the certificate of
incorporation or bylaws of Company, (b) violate or contravene any governmental
statute, rule or regulation applicable to the Company or any order, writ,
judgment, injunction, decree, determination or award which has been entered
against the Company and of which such counsel is aware or (c) result in the
breach of or a default under any of the agreements listed on Annex A attached
hereto.
(6) The execution, delivery and performance of the Agreement by Company and
the consummation of the transactions contemplated thereby by Company to be
consummated at the Closing do not and will not require Company to obtain any
consent, approval, authorization, license, waiver, qualification, order or
permit of, or require the Company to make any filing with or notification to,
any governmental or regulatory authority, domestic or foreign, except (a) for
compliance with applicable requirements, if any, of the Securities Act, the
Exchange Act, state securities laws and (b) any filings, registrations and
qualifications which if not made, would not be expected to have a material
adverse effect on the assets, financial condition or operations of the Company.
(7) To such counsel's knowledge, there is no action, proceeding or
investigation pending before any court or governmental agency or threatened in
writing against the Company that questions the validity of the Agreement.
(8) The Shares have been duly authorized by all necessary corporate
proceedings on the part of Company and will be, when issued in accordance with
the terms of the Agreement, validly issued, fully paid and non-assessable. To
such counsel's knowledge, the Shares are free of preemptive or similar rights
restricting the transfer of the Shares (other than those existing pursuant to
the Agreement or under state or federal securities laws) or entitling any person
to acquire any Shares of the Company.
(9) The offer, sale and issuance of the Shares to be issued in accordance
with the Agreement are exempt from the registration requirements of Section 5 of
the Securities Act of 1933, as amended, and from the qualification requirements
of the California Securities Law of 1968, as amended.
(10) After giving effect to the Company's sale of the Shares and the
application of the net proceeds therefrom on the date hereof, the Company is not
an "investment company" as such term is defined in the Investment Company Act of
1940, as amended.
ANNEX A
List of Material Contracts
Purchase Agreement with ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company dated February 8, 2002
Amendment to Purchase Agreement with ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company dated
February 14, 2002
Agreement and Plan of Merger and Reorganization with Arcaris, Inc. dated
July 24, 2001
Agreement and Plan of Merger and Reorganization with XenoPharm, Inc. dated
January 15, 2002
Investors' Rights Agreement dated May 27, 1999
Investors' Rights Agreement dated January 21, 2000
Common Stock Purchase Agreement with ▇▇▇▇▇▇▇▇ Family Trust dated
October 10, 2001
Registration Rights Agreement dated February 16, 2002
1998 Stock Incentive Plan
2000 Stock Incentive Plan
2000 Employee Stock Purchase Plan
Agreement with University of Edinburgh*
Lease Agreement for ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Addendum to Lease Agreement
First Amendment to Lease Agreement
Lease Agreement for ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Ph.D.
Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
Agreement with ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Agreement with ▇▇▇▇▇ ▇▇▇▇▇, Ph.D.
Series B Preferred Stock Warrant issued to Silicon Valley Bank
Series B Preferred Stock Warrant issued to LMSI
Agreement with IGBMC
Promissory Note between Deltagen and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Ph.D.
Promissory Note between Deltagen and ▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
Agreement with Roche Biosciences, Inc. dated October 2, 1998*
Agreement with Pfizer, Inc. dated December 22, 1998*
Agreement with Schering-Plough dated December 16, 1999*
Agreement with Merck dated December 21, 1999*
Agreement with Glaxo dated June 27, 2000*
Collaboration Agreement with Glaxo dated June 27, 2000*
Agreement with Affymetrix, Inc. dated July 12, 2000*
Series C Preferred Stock Warrant issued to IGBMC
Lease Agreements for 1210 and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Agreement with Pfizer, Inc. dated July 1, 2000*
Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇
Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------
* Opinion relating to this contract will be delivered by the Company's General
Counsel.
Lease Agreement for ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Sublease Agreement for ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Consent to Sublease Agreement for ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Agreement with Hyseq, Inc. dated October 9, 2001*
Lease Purchase Agreement dated August 29, 2001
Loan Agreement dated ▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Agreement dated August 29, 2001
Research Subscription Agreement with Merck & Co., Inc. dated February 8, 2002*
Promissory Note between Deltagen and ▇▇▇▇▇▇▇▇▇ ▇▇▇ dated April 16, 2001
Promissory Note between Deltagen and ▇▇▇▇▇ ▇▇▇▇▇ dated April 16, 2001
Lease Agreement for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------
* Opinion relating to this contract will be delivered by the Company's General
Counsel