Exhibit 10.3
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PREFERRED STOCK PURCHASE AGREEMENT
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NEOGENESIS DRUG DISCOVERY INC.
Up to $30,000,000 of Series D Convertible Preferred Stock
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Dated December 27, 2000
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
TABLE OF CONTENTS
PAGE
ARTICLE 1. PURCHASE AND SALE OF SERIES D PREFERRED STOCK..........................................................1
1.1 Authorization............................................................................1
1.2 Closing .................................................................................1
1.3 Use of Proceeds..........................................................................2
ARTICLE 2. THE COMPANY'S REPRESENTATIONS AND WARRANTIES...........................................................2
2.1 Incorporation, Standing and Qualification of the Company.................................2
2.2 Subsidiaries.............................................................................2
2.3 Corporate Power and Authority............................................................2
2.4 Certificate of Incorporation and By-Laws.................................................3
2.5 Litigation; Compliance with Laws; Bankruptcy.............................................3
2.6 Burdensome and Conflicting Agreements; Violations of Certificates of Incorporation
Provisions.............................................................................4
2.7 Material Agreements......................................................................4
2.8 Governmental Approvals...................................................................4
2.9 Tax Returns and Payments.................................................................5
2.10 Issuance Taxes...........................................................................5
2.11 ERISA....................................................................................5
2.12 Title to Assets..........................................................................5
2.13 Intellectual Property Rights.............................................................5
2.14 Proprietary Information of Third Parties.................................................6
2.15 Capitalization; Status of Capital Stock..................................................6
2.16 Financial Statements.....................................................................8
2.17 Securities Laws..........................................................................8
2.18 Insurance................................................................................9
2.19 Registration Rights......................................................................9
2.20 No Broker................................................................................9
2.21 Transactions with Affiliates.............................................................9
2.22 Employees................................................................................9
2.23 Labor Relations..........................................................................9
2.24 Assumptions or Guaranties of Indebtedness of other Persons...............................9
2.25 Loans and Advances......................................................................10
2.26 Disclosure..............................................................................10
2.27 Books and Records.......................................................................10
2.28 Foreign Corrupt Practices Act...........................................................11
2.29 U.S. Real Property Holding Corporation..................................................11
2.30 Environmental Matters...................................................................11
2.31 Absence of Certain Developments.........................................................12
2.32 Operating Company Status................................................................13
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
ii
ARTICLE 3. THE PURCHASERS' REPRESENTATIONS AND WARRANTIES....................................................13
3.1 Investment Representations..............................................................13
3.2 Access to Information...................................................................14
3.3 Accredited Investor Status..............................................................14
3.4 Transfer Restrictions Imposed By Securities Laws........................................14
ARTICLE 4. CLOSING CONDITIONS....................................................................................14
4.1 Conditions to the Purchasers' Obligations...............................................14
4.2 Conditions to the Company's Obligations.................................................16
ARTICLE 5. INDEMNIFICATION.......................................................................................16
5.1 Company Indemnification.................................................................16
5.2 Purchasers' Indemnification.............................................................17
ARTICLE 6. DEFINITIONS...........................................................................................17
6.1 Definitions.............................................................................17
6.2 Accounting Principles...................................................................19
6.3 "Directly or Indirectly"................................................................20
ARTICLE 7. MISCELLANEOUS.........................................................................................20
7.1 Notices.................................................................................20
7.2 Entire Agreement........................................................................21
7.3 Modifications and Amendments............................................................21
7.4 Waivers and Consents....................................................................21
7.5 Binding Effect, Assignment..............................................................21
7.6 Governing Law...........................................................................21
7.7 Severability............................................................................21
7.8 Interpretation..........................................................................22
7.9 Headings and Captions...................................................................22
7.10 No Waiver of Rights, Powers and Remedies................................................22
7.11 Reliance................................................................................22
7.12 Survival................................................................................22
7.13 Further Assurances......................................................................22
7.14 Costs, Expenses, and Taxes..............................................................23
7.15 Counterparts............................................................................23
7.16 Use of Definitions; Gender..............................................................23
7.17 Jurisdiction and Service of Process.....................................................23
7.18 Publicity...............................................................................23
7.19 Brokers or Finders......................................................................23
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
iii
EXHIBITS
EXHIBIT A Purchasers
EXHIBIT B Second Amended and Restated Certificate of Incorporation
EXHIBIT C-1 Form of Invention and Non-Disclosure Agreement
EXHIBIT C-2 Form of Non-Competition and Non-Solicitation Agreement
EXHIBIT D Form of Opinion of Company Counsel
EXHIBIT E Form of Investor Rights Agreement
EXHIBIT F Form of Right of First Refusal, Co-Sale and Waiver Agreement
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
iv
SCHEDULES
SCHEDULE 2.1 Foreign Qualifications
SCHEDULE 2.7 Material Agreements
SCHEDULE 2.12 Title to Assets
SCHEDULE 2.13 Intellectual Property Rights
SCHEDULE 2.15 Capitalization
SCHEDULE 2.16 Listed Liabilities
SCHEDULE 2.19 Registration Rights
SCHEDULE 2.21 Transactions with Affiliates
SCHEDULE 2.22 Employees
SCHEDULE 2.25 Loans and Advances
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
PREFERRED STOCK PURCHASE AGREEMENT
THIS
PREFERRED STOCK PURCHASE AGREEMENT (this "AGREEMENT") is
made as of December 27, 2000 by and among NeoGenesis Drug Discovery, Inc., a
corporation organized under the laws of Delaware (the "COMPANY") and the Persons
listed on EXHIBIT A hereto (individually, a "PURCHASER" and collectively, the
"PURCHASERS").
WHEREAS, the Company desires to issue and sell to the
Purchasers and the Purchasers desire to acquire on the terms and subject to the
conditions set forth in this Agreement up to an aggregate amount of Four Million
Six Hundred Twenty Three Thousand Four Hundred Eighty-Seven (4,623,487) shares
of the Company's Series D Convertible Preferred Stock, par value $0.001 per
share (the "SERIES D PREFERRED STOCK"); and
WHEREAS, the Company has sold (i) 1,250,000 shares of Series A
Convertible Preferred Stock, par value $0.001 per share (the "SERIES A PREFERRED
STOCK"; the holders of the Series A Preferred Stock being referred to herein as
the "SERIES A PURCHASERS"); (ii) 530,205 shares of Series B Convertible
Preferred Stock, par value $0.001 per share (the "SERIES B PREFERRED STOCK"; the
holders of the Series B Preferred Stock being referred to herein as the "SERIES
B PURCHASERS"); and (iii) 4,241,055 shares of Series C Convertible Preferred
Stock, par value $0.001 per share (the "SERIES C PREFERRED STOCK"; the holders
of the Series C Preferred Stock being referred to herein as the "SERIES C
PURCHASERS").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, the parties hereto agree as
follows:
ARTICLE 1.
PURCHASE AND SALE OF SERIES D PREFERRED STOCK
1.1. AUTHORIZATION OF SERIES D PREFERRED STOCK. The Company has, or before
the Closing (as hereinafter defined) will have, authorized the issuance and sale
of up to Four Million Six Hundred Twenty Three Thousand Four Hundred
Eighty-Seven (4,623,487) shares (the "SHARES") of its Series D Preferred Stock,
having the rights, restrictions, privileges and preferences as set forth in the
Second Amended and Restated Certificate of Incorporation attached to this
Agreement as EXHIBIT B.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
1.2. CLOSING. Subject to the terms and conditions set forth in this
Agreement, and in reliance on the representations and warranties set forth in
this Agreement, the Company agrees to issue and sell to the Purchasers at the
Closing (as hereinafter defined) and the Purchasers, severally but not jointly,
agree to purchase from the Company, that number of Shares set forth opposite
their respective names on EXHIBIT A under the caption "NUMBER OF SERIES D
SHARES" at a purchase price per Share of Four Dollars and Ninety-Seven and
Forty-Six One-Hundredths Cents ($4.9746). The total purchase price of the Shares
being acquired by each Purchaser is set forth opposite such Purchaser's name on
EXHIBIT A. The closing of the purchase and sale of the Shares (the "CLOSING")
shall take place at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 on December 27, 2000 (the "CLOSING DATE") or
at such time and date thereafter as the Purchasers and the Company may agree. At
the Closing, the Company will deliver to each Purchaser certificates for the
number of Shares being purchased by such Purchaser registered in such
Purchaser's name (or its nominee), against delivery of a check or checks payable
to the order of the Company, or a transfer of funds to the account of the
Company by wire transfer, representing the purchase price set forth opposite
each such Purchaser's name on EXHIBIT A.
1.3. USE OF PROCEEDS. The Company agrees to use the net proceeds from the
sale of the Shares solely: (i) for working capital; (ii) to fund costs of
organizational development; and (iii) as otherwise approved by the Company's
Board of Directors.
ARTICLE 2.
THE COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce the Purchasers to enter into this Agreement
and to consummate the transactions contemplated hereby, the Company represents
and warrants as of the date hereof and as of the Closing as follows:
2.1 INCORPORATION, STANDING AND QUALIFICATION OF THE COMPANY. The Company
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of organization. The Company has requisite power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted and as proposed to be conducted. The Company is
qualified as a foreign corporation and in good standing in the states listed on
SCHEDULE 2, except for such jurisdiction where the failure to do so qualify
would not have a material adverse impact on the Company. Except as set forth on
SCHEDULE 2.1, the nature of the Company's business and the ownership or lease of
its property do not require it to become qualified as a foreign corporation in
any other state or jurisdiction.
2.2 SUBSIDIARIES. The Company does not (i) own of record or beneficially,
directly or indirectly, (A) any shares of capital stock of any other corporation
or (B) any participating interest in any partnership, joint venture or other
non-corporate business enterprise, or (ii) control, directly or indirectly, any
other entity.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
2
2.3 CORPORATE POWER AND AUTHORITY. The Company has the requisite power
and authority to execute and deliver this Agreement, the Shares, and the other
agreements and certificates contemplated hereby to which it is a party,
including the Investor Rights Agreement and the Right of First Refusal and
Co-Sale Agreement (collectively, the "RELATED AGREEMENTS"), to perform its
obligations hereunder and thereunder and to engage in the transactions
contemplated hereby and thereby. The Company has taken all requisite corporate
action to make all the provisions of this Agreement, the Shares and the Related
Agreements the valid and enforceable obligations they purport to be. This
Agreement is, and upon the execution and delivery thereof, the Shares and each
of the Related Agreements will be, legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to laws of general
application from time to time in effect that have an affect on creditors' rights
and the exercise of judicial discretion in accordance with general equitable
principles.
2.4 CERTIFICATE OF INCORPORATION AND BY-LAWS. The Company has made
available to each of the Purchasers true, correct and complete copies of its
Second Amended and Restated Certificate of Incorporation and By-Laws, and all
amendments to and restatements of each as of the date hereof. Prior to the
Closing, the Company shall have properly filed amendments to the Second Amended
and Restated Certificate of Incorporation to permit the Company to fulfill its
obligations under this Agreement.
2.5 LITIGATION; COMPLIANCE WITH LAWS; BANKRUPTCY.
(a) LITIGATION. There is no action, suit, claim, litigation,
proceeding, investigation, arbitration or governmental inquiry, at law or in
equity, or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or arbitration involving private parties (collectively, a "PROCEEDING")
pending or, to the best knowledge of the Company, threatened against the Company
or affecting any of its properties or assets, or, to the best knowledge of the
Company, against any officer, employee, consultant or holder of any of the
capital stock of the Company relating to the Company or its business, nor, to
the best knowledge of the Company, has there occurred any event nor does there
exist any condition on the basis of which it is reasonably likely that any such
Proceeding might properly be instituted. There are no Proceedings pending or, to
the Company's knowledge, threatened (or any basis therefor known to the Company)
which might call into question the validity of this Agreement, any of the
Shares, any of the Related Agreements or any action taken or to be taken
pursuant hereto or thereto. There is no Proceeding by the Company pending or
threatened against others.
(b) COMPLIANCE WITH LAWS. The Company has complied with, and is not
in violation of or in default (with due notice or lapse of time or both) with
respect to, all laws, governmental rules, governmental regulations, governmental
orders, judgments, decrees, writs, injunctions and awards of any arbitration,
court or governmental authority applicable to it and its business, operations,
properties, assets, products and services, the violation or default of which
would have a material adverse impact on the Company, and the Company has all
necessary permits, licenses and other authorizations required to conduct its
business as currently conducted and as proposed to be conducted. There is no
existing law, governmental rule, governmental regulation or governmental order
applicable to or binding upon the Company, and the Company is not aware of any
proposed law, governmental rule, governmental regulation or governmental order,
whether Federal or state, which would prohibit or materially restrict the
Company from, or otherwise materially adversely affect the Company in,
conducting its business in any jurisdiction in which it is now conducting
business or has proposed to conduct business.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
3
(c) BANKRUPTCY. The Company has not admitted in writing its inability
to pay its debts generally as they become due, filed or consented to the filing
against it of a petition in bankruptcy or a petition to take advantage of any
insolvency act, made an assignment for the benefit of creditors, consented to
the appointment of a receiver for itself or for the whole or any substantial
part of its property, or had a petition in bankruptcy filed against it, been
adjudicated a bankrupt, or filed a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other law or statute of the
United States of America or any other jurisdiction.
2.6 BURDENSOME AND CONFLICTING AGREEMENTS; VIOLATIONS OF CERTIFICATE OF
INCORPORATION PROVISIONS. The Company is not bound by any agreement or
instrument or subject to any Certificate of Incorporation or other corporate
restriction which materially and adversely affects the business, properties,
operations, condition or prospects, financial or otherwise of the Company. The
Company is not in violation or default (with due notice or lapse of time or
both) of its Certificate of Incorporation, By-laws or other corporate
restriction, or of any agreement or instrument to which it is a party or by
which it or any of its assets is bound, except for violations or defaults of any
agreement or instrument other than the Certificate of Incorporation or By-laws,
which, individually or in the aggregate, would not materially adversely affect
the business, properties, operations or condition, financial or otherwise, of
the Company. Neither the authorization, execution, delivery and performance of
this Agreement or the Related Agreements, nor the sale, issuance and delivery of
the Shares, nor the consummation of the transactions herein and therein
contemplated, nor the fulfillment of or compliance with the terms hereof and
thereof, will conflict with or result in a breach or default (with due notice or
lapse of time or both) of any of the terms of the Certificate of Incorporation
or By-laws or any other corporate restriction, or of any statute, law, rule or
regulation, or of any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of any agreement or instrument,
which is applicable to the Company or by which the Company or any of its assets
is bound, or constitute a default (with due notice or lapse of time or both)
thereunder, or result in the creation or imposition of any Lien upon any of the
assets of the Company.
2.7 MATERIAL AGREEMENTS. Except as set forth in SCHEDULE 2.7, the Company
is not a party to any material written or oral contract, instrument, agreement,
commitment, obligation, plan or arrangement, or any other material agreement
which involve obligations of, or payments to, the Company in excess of $50,000
or which are otherwise strategic or scientific in nature (the "MATERIAL
AGREEMENTS"). Each of the Material Agreements is in full force and effect with
no default (without regard to notice or lapse of time or both) by the Company
or, to the best knowledge of the Company, by any other party thereto. There is
no threatened default or material failure of performance or observance of any
obligations or conditions contained in the Material Agreements by the Company,
or, to the best knowledge of the Company, by any other party thereto, and none
of the foregoing parties nor the Company has provided any notice of default or
of its intention to terminate these agreements.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
4
2.8 GOVERNMENTAL APPROVALS. Subject to the accuracy of the
representations and warranties of the Purchasers set forth in Article 3, no
registration or filing with, or consent or approval of or other action by, any
Federal, state or other governmental agency or instrumentality, domestic or
foreign, under laws and regulations thereof as now in effect is or will be
necessary for the valid execution, delivery and performance by the Company of
this Agreement, or any of the Related Agreements, the issuance, sale and
delivery of the Shares and the Conversion Shares, other than (i) filings
pursuant to federal and state securities laws (all of which filings have been
made by the Company or will be made within the period of time required by such
state securities laws) in connection with the sale of the Shares and (ii) with
respect to the Investor Rights Agreement, the registration of the shares covered
thereby with the Commission and filings pursuant to state securities laws, and
any other registration or filing, or consent or approval or other action as a
result of or associated with any purchase or sale of securities in accordance
therewith.
2.9 TAX RETURNS AND PAYMENTS. The Company has accurately prepared and
timely filed all required tax returns and reports (other than those not required
to be filed by applicable law or regulation) and has paid, or adequately
provided for the payment of, all taxes, assessments and other governmental
charges imposed upon it or upon any of its assets, income or franchises, other
than any such charges that are currently payable without penalty or interest,
including, without limitation, all taxes which the Company is obligated to
withhold from amounts owing to employees, creditors and third parties. Adequate
reserves have been established for all taxes accrued but not yet payable. The
Federal income tax returns of the Company have never been audited by the
Internal Revenue Service or other taxing authority, domestic or foreign. No
deficiency assessment with respect to or proposed adjustment of the Company's
Federal, state, county or local taxes, domestic or foreign, is pending or, to
the Company's knowledge threatened. There is no tax lien, whether imposed by any
Federal, state, county or local taxing authority, outstanding against the
assets, properties or business of the Company.
2.10 ISSUANCE TAXES. All taxes imposed by law in connection with the
issuance, sale and delivery of the Shares have been fully paid, and all laws
imposing such taxes have been fully complied with.
2.11 ERISA. The Company does not make nor has it any present intention of
making any contributions to any employee pension benefit plans for its employees
which are or would be subject to the Employee Retirement Income Security Act of
1974, as amended.
2.12 TITLE TO ASSETS. The Company has good and marketable title in fee to
its real property and good and merchantable title to all of its assets free of
any Liens except (i) mechanics liens not material to the Company or any property
to which such liens relate or liens for current taxes not yet due and payable,
and (ii) those encumbrances listed on SCHEDULE 2.12 hereto. The Company enjoys
peaceful and undisturbed possession under all leases (both capital and operating
leases) under which it is operating, and all said leases are valid and
subsisting and in full force and effect.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
5
2.13 INTELLECTUAL PROPERTY RIGHTS. The Company owns or has a valid right
to use the Intellectual Property Rights being used and proposed to be used to
conduct its business (i) as now conducted and (ii) as now proposed to be
conducted. A complete list of licenses, contract rights and registrations of
such Intellectual Property Rights is attached hereto as SCHEDULE 2.13. The
conduct of the Company's business as now operated and as now proposed to be
operated does not conflict with or infringe upon the Intellectual Property
Rights of others. Except as specified on SCHEDULE 2.13, the Company has no
obligation to compensate any Person for the use of any such Intellectual
Property Rights and the Company has not granted to or assigned to any Person any
license or other right to use any of the Intellectual Property Rights of the
Company or otherwise licensed from others the Intellectual Property Rights of
third parties, whether requiring the payment of royalties or not.
The Company has taken all reasonable measures to protect and preserve the
security, confidentiality and value of its Intellectual Property Rights,
including its trade secrets and other confidential information. All employees
and consultants of the Company have executed the Company's standard form of
Invention and Non-Disclosure Agreement in the form attached hereto as EXHIBIT
C-1 and the Company's standard form of Non-Competition and Non-Solicitation
Agreement in the form of EXHIBIT C-2. To the Company's best knowledge, all trade
secrets and other confidential information of the Company are presently valid
and protectable and are not part of the public domain or knowledge, nor have
they been used, divulged or appropriated for the benefit of any Person other
than the Company or otherwise to the detriment of the Company. The Company is
the exclusive owner of all rights, titles and interests in its Intellectual
Property Rights purported to be owned by the Company, the exclusive licensee of
all rights, titles and interests in Intellectual Property purported to be
exclusively licensed to the Company and a licensee of all rights, titles and
interests in Intellectual Property purported to be licensed to the Company on a
non-exclusive basis, and all such Intellectual Property Rights are valid and in
full force and effect. Neither the Company nor any of its officers, employees or
consultants has received notice of, and there are no claims pending or, to the
Company's best knowledge, threatened that the Intellectual Property Rights owned
or licensed by the Company or the use or ownership thereof by the Company
infringes, violates or conflicts with any such right of any third party or are
invalid or unenforceable.
2.14 PROPRIETARY INFORMATION OF THIRD PARTIES. To the Company's best
knowledge, no third party has claimed or, to the reasonable knowledge of the
Company, has reason to claim that any Person employed by or affiliated with the
Company has (a) violated or may be violating any of the terms or conditions of
his or her employment, non-competition, nondisclosure or inventions agreement
with such third party, (b) disclosed or may be disclosing or utilized or may be
utilizing any trade secret or proprietary information or documentation of such
third party or (c) interfered or may be interfering in the employment
relationship between such third party and any of its present or former
employees. No third party has requested information from the Company which
suggests that such a claim might be contemplated. To the reasonable knowledge of
the Company, no Person employed by or affiliated with the Company has employed
or proposes to employ any trade secret or any information or documentation
proprietary to any former employer, and to the reasonable knowledge of the
Company no Person employed by or affiliated with the Company has violated any
confidential relationship which such Person may have had with any third party,
in connection with the development, manufacture or sale of any product or
proposed product or the development or sale of any service or proposed service
of the Company, and the Company has no reason to believe there will be any such
employment or violation. To the Company's best knowledge, none of the execution
or delivery of this Agreement or any of the Related Agreements, or the carrying
on of the business of the Company as officers, employees or agents by any
officer, director or key employee of the Company, or the conduct or proposed
conduct of the business of the Company, will conflict with or result in a breach
of the terms, conditions or provisions of or constitute a default under any
non-competition, non-disclosure or inventions agreement under which any such
Person is obligated.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
6
2.15 CAPITALIZATION; STATUS OF CAPITAL STOCK. The Company has a total
authorized capitalization consisting of Thirty One Million Three Hundred Thirty
Three Thousand One Hundred Fourteen (31,333,114) shares, of which (i) Twenty
Million Four Hundred Ninety One Thousand Five Hundred Fifty Seven (20,491,557)
shares are designated as Common Stock, and (ii) Ten Million Eight Hundred Forty
One Thousand Five Hundred Fifty Seven (10,841,557) shares are designated as
preferred stock, $.001 par value per share, of which (A) One Million Two Hundred
Fifty Thousand (1,250,000) are designated Series A Convertible Preferred Stock,
(B) Five Hundred Thirty Thousand Two Hundred Five (530,205) are designated
Series B Convertible Preferred Stock, (C) Four Million Four Hundred Thirty Seven
Thousand Eight Hundred Sixty Five (4,437,865) are designated Series C
Convertible Preferred Stock and (D) Four Million Six Hundred Twenty Three
Thousand Four Hundred Eighty Seven (4,623,487) are designated Series D
Convertible Preferred Stock. Immediately prior to the Closing, the issued and
outstanding capital stock of the Company shall consist of 5,053,875 shares of
Common Stock, 1,250,000 shares of Series A Convertible Preferred Stock, 530,205
shares of Series B Convertible Preferred Stock and 4,241,055 shares of Series C
Convertible Preferred Stock. All the outstanding shares of capital stock of the
Company have been duly authorized, are validly issued and are fully paid and
non-assessable and no personal liability will attach to the ownership thereof. A
complete list of the capital stock of the Company which has been previously
issued and the names in which such capital stock is registered on the stock
transfer book of the Company is set forth in SCHEDULE 2.15. As of immediately
prior to the Closing, the designations, powers, preferences, rights,
qualifications, limitations and restrictions in respect of the authorized
capital stock of the Company will be as set forth in the Company's Certificate
of Incorporation, and, all such designations, powers, preferences, rights,
qualifications, limitations and restrictions will be valid, binding and
enforceable and in accordance with all applicable laws. The Shares, when issued
and delivered in accordance with the terms hereof, and the shares of Common
Stock when issued and delivered upon the conversion of the Shares (as adjusted
from time to time in accordance the Certificate of Incorporation, as amended,
the "CONVERSION SHARES"), will be duly authorized, validly issued, fully paid
and non-assessable and no personal liability will attach to the ownership
thereof and will be free and clear of all Liens or restrictions imposed by or
through the Company except as set forth in this Agreement and the Related
Agreements. The Conversion Shares have been duly reserved for issuance.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
7
Except for the Shares and as set forth on SCHEDULE 2.15, there are no
subscriptions, options, warrants or other rights (contingent or otherwise) to
purchase or otherwise acquire from the Company any shares of capital stock or
other securities of the Company authorized, issued or outstanding, nor is the
Company obligated in any other manner to issue shares of its capital stock,
subscriptions, warrants, options, convertible securities, or other such rights
or to distribute to holders of any of its equity securities any evidence of
Indebtedness or asset. As of the date hereof, 5,125,000 shares of Common Stock
are authorized for issuance pursuant to the Company's Stock Option Plan (the
"STOCK PLAN"), of which 4,112,750 options to purchase shares have been granted
on the date hereof, of which 3,583,875 are outstanding and unexercised and of
which 528,875 have been exercised into Common Stock. Except as set forth in
SCHEDULE 2.15, or contemplated by this Agreement or the Related Agreements, (i)
there are no restrictions on the transfer of shares of capital stock of the
Company other than those imposed by relevant state and Federal securities laws
and (ii) the Company is not aware of any agreements, understandings, proxies,
trusts or other collaborative arrangements concerning the voting, pledge or
purchase and sale of the capital stock of the Company. Except as set forth in
SCHEDULE 2.15 or the Related Agreements, no holder of any security of the
Company is entitled to preemptive, first refusal or similar statutory or
contractual rights, either arising pursuant to any agreement or instrument to
which the Company is a party, or which are otherwise binding upon the Company,
or to the best of the Company's knowledge, to which any other Person is a party.
Except as provided for in the Second Amended and Restated Certificate of
Incorporation or as set forth in the attached SCHEDULE 2.15, the Company has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any of its equity securities or any interest therein or to pay any dividend or
make any other distribution in respect thereof. The offer and sale of all
capital stock and other securities of the Company issued before the Closing,
assuming the truth and accuracy of the representations and warranties made by
the purchasers of such stock and other securities, complied with or were exempt
from all applicable Federal and state securities laws and no such stockholder
has a right of rescission or damages with respect thereto.
2.16 FINANCIAL STATEMENTS. Prior to the Closing, the Company has made
available to each Purchaser its audited financial statements for the years ended
December 31, 1998 and 1999 (the "AUDITED FINANCIAL STATEMENTS") and its
unaudited balance sheets for the quarter ended June 30, 2000 and September 30,
2000 (the "INTERIM FINANCIAL STATEMENTS" and, together with the Audited
Financial Statements, the "FINANCIAL STATEMENTS"). The Financial Statements have
been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis throughout the periods indicated,
except that the Interim Financial Statements are subject to normal year-end
adjustments (which are not expected to be material) and do not contain all
footnotes required by generally accepted accounting principles. The Financial
Statements fairly present the financial condition and operating results of the
Company as of the dates, and for the periods, indicated therein, subject to
normal year-end audit adjustments with respect to the Interim Financial
Statement which the Company does not expect to be material. Except as set forth
in the September Interim Financial Statement or SCHEDULE 2.16 hereto, the
Company has no material liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to the date
of last set of Financial Statements delivered to the Purchasers and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in the Financial Statements, which, in both cases, individually or in
the aggregate are not material to the financial condition or operating results
of the Company. Except as disclosed in the September Interim Financial Statement
or SCHEDULE 2.16 hereto, the Company has no indebtedness, liabilities, notes,
obligations (or series of related obligations), or commitments, of any nature,
absolute, accrued, contingent or otherwise, (hereafter referred to as the
"LISTED LIABILITIES") as of the date of this Agreement.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
8
2.17 SECURITIES LAWS. The Company has in all material respects complied
and will comply with all applicable Federal and state securities laws in
connection with the offer, issuance and sale of the Shares and Conversion Shares
hereunder. Neither the Company nor anyone authorized to act on its behalf has or
will sell, offer to sell or solicit offers to buy the Shares, Conversion Shares,
options or similar securities thereto, or solicit offers with respect thereto
from, or enter into any preliminary conversations or negotiations relating
thereto with, any Person, so as to bring the issuance and sale of the Shares,
Conversion Shares, options or similar securities under the registration
provisions of the Securities Act and applicable state securities laws
(including, without limitation, any offer, other issuance or sale of any
security of the Company under circumstances that might require the integration
of the offering of such security with the offering of the Shares or Conversion
Shares under the Securities Act or the rules and regulations thereunder).
2.18 INSURANCE. The Company carries insurance with financially sound and
reputable insurance companies or associations, in such amounts and covering such
risks as are adequate and customary for the type and scope of its property and
business, but in any event in amounts sufficient to prevent the Company from
becoming a co-insurer.
2.19 REGISTRATION RIGHTS. Other than pursuant to the terms of the Investor
Rights Agreement or as set forth on SCHEDULE 2.19 hereto, no Person has demand
or other rights to cause the Company to file any registration statement under
the Securities Act relating to any securities of the Company or any right to
participate in any such registration.
2.20 NO BROKER. The Company has no contract, arrangement or understanding
with any broker, finder, agent, financial advisor or other intermediary with
respect to the transactions contemplated by this Agreement.
2.21 TRANSACTIONS WITH AFFILIATES. Except as set forth in SCHEDULE 2.21,
neither the Company, nor to the Company's knowledge, any of the customers and
suppliers of the Company, is a party to or bound by any agreement with any
Affiliate of the Company. All of the agreements identified on SCHEDULE 2.21
hereto were entered into by the Company in good faith and, except as set forth
on SCHEDULE 2.21, are on terms no less favorable to the Company than those which
the Company could have obtained from non-Affiliates.
2.22 EMPLOYEES. Set forth in SCHEDULE 2.22 is a list of the names of all
employees of the Company, together with the title or job classification of each
such person. Except as set forth in SCHEDULE 2.22, none of such persons has an
employment agreement or understanding, whether oral or written, with the Company
which is not terminable on notice by the Company without cost or other liability
to the Company (except for the Company's requirement to meet certain insurance
benefit obligations under COBRA). Except as set forth in SCHEDULE 2.22, no
employee of the Company has advised the Company (orally or in writing) that he
or she intends to terminate employment with the Company. The Company has
complied in all material respects with all applicable laws, domestic and
foreign, relating to the employment of labor, including provisions relating to
wages, hours, equal opportunity, collective bargaining and the payment of Social
Security and other taxes, and with ERISA.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
9
2.23 LABOR RELATIONS. To the Company's knowledge, no labor union or any
representative thereof has made any attempt to organize or represent employees
of the Company. There are no unfair labor practice charges, pending trials with
respect to unfair labor practice charges, pending grievance proceedings or
adverse decisions of any labor relations board against the Company or relating
to the Company's employees or consultants. The Company is not in violation of
any applicable statute, law or regulation relating to occupational safety and
health. Furthermore, to the best knowledge of the Company, relations with
employees and consultants of the Company are good and there is no reason to
believe that any labor difficulties will arise in the foreseeable future.
2.24 ASSUMPTIONS OR GUARANTIES OF INDEBTEDNESS OF OTHER PERSONS. The
Company has not assumed, Guaranteed, endorsed or otherwise become directly or
contingently liable on (including, without limitation, liability by way of
agreement, contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in any debtor or otherwise to assure any
creditor against loss) any Indebtedness of any other Person.
2.25 LOANS AND ADVANCES. The Company has not made any loan or advance to
any Person except as set forth on SCHEDULE 2.25 hereto, nor, is the Company
obligated or committed to make any such loan or advance.
2.26 DISCLOSURE. Neither this Agreement, nor any other agreement, document
or certificate delivered at the Closing by the Company or on behalf of the
Company by any of its officers or agents in connection with the transactions
contemplated hereby, including, without limitation, the Listed Liabilities,
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein and therein, in
light of the circumstances under which they were made, not misleading. There is
no fact which materially and adversely affects, or which in the future may (so
far as the Company can reasonably foresee) materially and adversely affect, the
business, properties, operations or condition, financial or otherwise, of the
Company (except for general economic conditions and climate which are beyond the
control of the Company), which has not been set forth in this Agreement,
including the Schedules and Exhibits hereto. Without limiting the foregoing, the
Company does not have knowledge that there exists, or that there is pending or
planned, any patent, invention, device, application or principle or any statute,
rule, law, regulation, standard or code which would materially adversely affect
the business, operations, Intellectual Property Rights, or financial condition
of the Company.
2.27 BOOKS AND RECORDS. The books of account, ledgers, order books,
records and documents of the Company accurately and completely reflect all
material information relating to the business of the Company, the nature,
acquisition, maintenance, location and collection of the assets of the Company,
and the nature of all transactions giving rise to the obligations or accounts
receivable of the Company.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
10
2.28 FOREIGN CORRUPT PRACTICES ACT. The Company is not engaged, nor has
any officer, director, employee or agent of the Company engaged, in any act or
practice which would constitute a violation of the Foreign Corrupt Practices Act
of 1977, or any rules or regulations promulgated thereunder. There is not now,
and there never has been, any employment by the Company, or beneficial ownership
in the Company by, any governmental or political official in any country in the
world.
2.29 U.S. REAL PROPERTY HOLDING CORPORATION. The Company is not now nor
has ever been a "United States real property holding corporation", as defined in
Section 897(c)(2) of the Code and Section 1.897-2(b) of the Regulations
promulgated by the Internal Revenue Service.
2.30 ENVIRONMENTAL MATTERS.
(a) The Company is in compliance with all limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any Applicable Environmental Laws, or in any plan,
order, decree, judgment, notice or demand letter issued, entered, promulgated or
approved thereunder, except to the extent that noncompliance would not have a
material adverse effect on the Company. For purposes of this Agreement, the term
"Applicable Environmental Laws" shall mean Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 9601 ET. SEQ. ("CERCLA");
Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 ET. SEQ.
("RCRA"); Federal Water Pollution Control Act, 33 U.S.C. 1251 ET. SEQ.; and
Clean Air Act, 42 U.S.C. 7401 ET. SEQ. and any similar provisions of state or
local law in any jurisdictions where the properties of the Company are located,
and the regulations thereunder, and any other local, state and or federal laws
or regulations, whether currently in existence or hereafter enacted that govern.
(b) The Company is not aware of, nor has the Company received notice of,
any past present or future events, conditions, circumstances, activities,
practices, incidents, actions or plans which may interfere with or prevent
continued compliance, or which may give rise to any common law or legal
liability, or otherwise form the basis of any claim, action, suit, proceeding,
hearing or investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling, or the
emission, discharge, release or threatened release into the environment, of any
pollutant, contaminant, or hazardous or toxic material or waste.
(c) To the best knowledge of the Company, without having made any
independent investigation, no Hazardous Material has been incorporated in, used
on, stored on or under, released from, treated on, transported to or from, or
disposed of on or from any property owned or leased by the Company such that,
under Applicable Environmental Laws (i) any such Hazardous Material would be
required to be removed, cleaned-up or remediated before the property could be
altered, renovated, demolished or transferred, or (ii) the owner or lessee of
the property could be subjected to liability for the removal, clean-up or
remediation of such Hazardous Material; and the Company has not received any
notification from any governmental bodies or other third parties relating to
Hazardous Material on or affecting any property owned or leased by the Company
or relating to any potential or known liability under Applicable Environmental
Laws arising from the ownership or leasing of any property. For purposes of this
Agreement, "Hazardous Material" shall mean any substance which as of the date of
this Agreement shall be identified as "hazardous" or "toxic" or otherwise
regulated under CERCLA or RCRA or which has been or shall be determined at any
tine by any agency or court to be a hazardous or toxic substance under
Applicable Environmental Law. The term "Hazardous Material" shall also include,
without limitation, raw materials, building components, the products of any
manufacturing or other activities on the properties, wastes, petroleum, and
source, special nuclear or by-product material as defined by the Atomic Energy
Act of 1954,42 U.S.C. Sections 3011 ET. SEQ., as amended.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
11
(d) To the best of the Company's knowledge and belief, without having any
independent investigation, the property owned or leased by the Company does not
contain: (i) asbestos in any form; (ii) urea formaldehyde foam insulation; (iii)
transformers or other equipment which contain dialectic fluid containing levels
of polychlorinated biphenyls; (iv) radon; or (v) except for chemicals, materials
and substances used in the ordinary course of the Company's business, any other
chemical, material or substance, the exposure to which is prohibited, limited or
regulated by a federal, state or local government agency, authority or body, or
which, even if not so regulated, to the best of the Company's knowledge and
belief after reasonable investigation, may or could pose a hazard to the health
and safety of the occupants of the property or the owners or occupants of
property adjacent to or in the vicinity of the property owned or leased by the
Company.
2.31 ABSENCE OF CERTAIN DEVELOPMENTS. Except as provided in any disclosure
schedule or exhibit attached hereto, since December 31, 1999, the Company has
not:
(a) issued any stock, bonds or other corporate securities or any rights,
options or warrants with respect thereto;
(b) borrowed any amount or incurred or become subject to any liabilities
(absolute or contingent) except current liabilities incurred in the
ordinary course of business;
(c) discharged or satisfied any Lien or encumbrance or paid any
obligation or liability (absolute or contingent), other than current
liabilities paid in the ordinary course of business;
(d) declared or made any payment or distribution of cash or other
property to stockholders with respect to its stock, or purchased or
redeemed, or made any agreements to purchase or redeem, any shares of
its capital stock;
(e) mortgaged or pledged any of its assets, tangible or intangible, or
subjected them to any Liens, except Liens for current property taxes
not yet due and payable;
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
12
(f) sold, assigned or transferred any other tangible assets, or cancelled
any debts or claims;
(g) sold, assigned or transferred any patents, patent rights, trademarks,
trade names, copyrights, trade secrets or other intangible assets or
other Intellectual Property Rights, or disclosed any proprietary or
confidential information to any Person not associated with the
Company, unless such Person, prior to such disclosure executed and
delivered a non-disclosure agreement in favor of the Company;
(h) suffered any substantial casualty losses or waived any rights of
material value, whether or not in the ordinary course of business or
covered by insurance, or otherwise suffered any material adverse
effect to the Company's business or financial condition;
(i) suffered any labor trouble, or any event or condition of any
character, materially adversely affecting the business or plans of
the Company; or
(j) entered into any other transaction other than in the ordinary course
of business, or entered into any other material transaction, whether
or not in the ordinary course of business.
2.32 OPERATING COMPANY STATUS. The Company is an entity that is primarily
engaged, directly or through a majority owned subsidiary or subsidiaries, in the
production or sale of a product or service other than the investment of capital
such that the Company meets the requirements for qualification as an "operating
company" as set forth in Title 29 of the Code of Federal Regulations at Reg.
Section 2510.3-101 (c)(l).
ARTICLE 3.
THE PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser severally, but not jointly, represents and
warrants to the Company solely as to itself as follows:
3.1 INVESTMENT REPRESENTATIONS. The Purchaser's present intention is to
acquire the Shares to be acquired by it for its own account and the Shares are
being and will be acquired by it for the purpose of investment and not with a
view to distribution or resale thereof. The acquisition by the Purchaser of the
Shares acquired by it shall constitute a confirmation of this representation by
such Purchaser. The Purchaser further represents that it understands and agrees
that, except as otherwise provided in the Related Agreements, all certificates
evidencing any of the Shares or Conversion Shares, whether upon initial issuance
or upon any transfer thereof, shall bear a legend, prominently stamped or
printed thereon, reading substantially as follows:
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
13
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 or any other securities laws. These
securities have been acquired for investment and not with a view to
distribution or resale. Such securities may not be offered for sale, sold,
delivered after sale, transferred, pledged or hypothecated in the absence
of an effective registration statement covering such securities under the
Securities Act of 1933 and any other applicable securities laws, unless the
holder shall have obtained an opinion of counsel reasonably satisfactory to
the corporation that such registration is not required."
3.2 ACCESS TO INFORMATION. The Purchaser acknowledges that such
Purchaser, during the course of this transaction and prior to the purchase of
any Shares, has had the opportunity to ask questions of and receive answers from
representatives of the Company concerning the terms and conditions of the
offering of the Shares, and to obtain additional information, documents, records
and books relative to the Company, its business, and an investment in the
Company.
3.3 ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited investor"
as that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act.
3.4 TRANSFER RESTRICTIONS IMPOSED BY SECURITIES LAWS. The Purchaser
understands that none of the Shares and Conversion Shares have been registered
under the Securities Act or any other applicable securities laws, and,
therefore, cannot be resold unless they are subsequently registered under the
Securities Act and other applicable securities laws or unless an exemption from
such registration is available. The Purchaser agrees not to resell or otherwise
dispose of all or any part of the Shares purchased by it or the Conversion
Shares, except as permitted by law, including, without limitation, any
regulations under the Securities Act and other applicable securities laws; the
Company does not have any present intention and is under no obligation to
register the Shares or Conversion Shares under the Securities Act and other
applicable securities laws, except as provided in the Related Agreements.
ARTICLE 4.
CLOSING CONDITIONS
4.1 CONDITIONS TO THE PURCHASERS' OBLIGATIONS. Each Purchaser's
obligation to purchase and pay for the Shares to be purchased by it at the
Closing is subject to the complete satisfaction by the Company, on or before
such Closing, of the following conditions:
(a) OPINION OF COMPANY'S COUNSEL. Each Purchaser shall each have received
from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company, an opinion, dated the
date of the Closing Date, in the form set forth in EXHIBIT D hereto
with respect to the Closing.
(b) REPRESENTATIONS AND WARRANTIES; OFFICER'S CERTIFICATE. The Company's
representations and warranties contained in Article 2 shall be true
and correct on and as of the date of the Closing with the same effect
as if made on and as of the date of the Closing. All agreements and
conditions to be performed or satisfied by the Company hereunder on
or before the date of the Closing shall have been duly performed or
satisfied. The Company shall have delivered to each Purchaser a
certificate, dated the date of the Closing and signed by the
President of the Company, to such effect.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
14
(c) CONSENTS AND APPROVALS. The Company shall have delivered to each
Purchaser a certificate, dated the date of the Closing and signed by
the President of the Company, listing any consents, waivers,
approvals, authorizations, registrations, filings and notifications
of the character referred to in Section 2.6 or 2.8 which are
necessary, to which shall be attached evidence, satisfactory to each
Purchaser, that the same have been obtained or made and are in full
force and effect, or stating that none is necessary.
(d) CERTIFICATE OF INCORPORATION OF THE COMPANY. The Purchasers and their
counsel shall have received a copy of the charter documents of the
Company thereof, including the Second Amended and Restated
Certificate of Incorporation and By-Laws amended as necessary to
permit the Company to fulfill its obligations under this Agreement
and certified as of a recent date by the Delaware Secretary of State.
(e) CLOSING DOCUMENTS. The Purchasers and their counsel shall have
received such certificates as to the good standing of the Company and
certificates of officers of the Company as counsel to the Purchasers
may reasonably request.
(f) PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings and
all documents incident to the transactions contemplated by this
Agreement and the other agreements contemplated hereby, including the
Related Agreements, shall be satisfactory in form and substance to
each Purchaser and its counsel, and each Purchaser and its counsel
shall have received copies of all documents and records relating
thereto.
(g) INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement, which shall
be in the form attached hereto as EXHIBIT E, shall have become
effective in accordance with its terms.
(h) RIGHT OF FIRST REFUSAL, CO-SALE AND WAIVER. The Right of First
Refusal, Co-Sale and Waiver Agreement, which shall be in the form
attached hereto as EXHIBIT F, shall have become effective in
accordance with its terms.
(i) SERIES D CONVERTIBLE PREFERRED STOCK. Each Purchaser shall have
received a stock certificate evidencing its ownership of the Shares
in the amounts set forth in EXHIBIT A hereof, which Shares have been
duly authorized and issued by the Company.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
15
(j) COMPANY CERTIFIED RESOLUTIONS. At the Closing, the Purchasers shall
have received certified corporate resolutions adopted by the Board of
Directors or the stockholders of the Company authorizing the
execution, delivery and performance of this Agreement and any other
document or instrument executed in connection therewith, and the
issuance, sale and delivery of the Shares and the Conversion Shares.
(k) BLUE SKY. All consents, permits, approvals, qualifications and/or
registrations required to be obtained or effected under any
applicable securities or "Blue Sky" laws of any jurisdiction shall
have been obtained or effected.
4.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS. The Company's obligation to
issue the Shares to the Purchasers at the Closing is subject to the satisfaction
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
each Purchaser contained in Article 3 shall be true, correct and
complete in all material respects on and as of the date of the
Closing with the same force and effect as if they had been made on
and as of the date of the Closing.
(b) PAYMENT OF PURCHASE PRICE. Each Purchaser shall have - delivered to
the Company and the Company shall have received payment in full of
the purchase price relating to the number of Shares to be purchased
by such Purchaser at the Closing.
ARTICLE 5.
INDEMNIFICATION
5.1 COMPANY INDEMNIFICATION. The Company shall indemnify, defend and hold
each Purchaser and its officers, directors, partners, employees and agents and
each other Person which controls (within the meaning of the Securities Act) such
Purchaser or any of its partners harmless against all liability, loss or damage,
together with all reasonable costs and expenses related thereto (including legal
and accounting fees and expenses), arising from, relating to, or connected with
(i) the untruth, inaccuracy or breach of any representations, warranties or
covenants made by the Company and contained herein or in the Related Agreements
or (ii) the use, generation, storage, release, threatened release, discharge,
disposal or presence of Hazardous Materials on, under or about any properties
owned or leased by the Company by any Person during the period that the Company
was the legal or equitable owner of any properties owned or leased by the
Company or which occurred prior to such time and was otherwise actually known
by, or should have been known by, the Company. The obligation of the Company to
indemnify each Purchaser and its of officers, directors, partners, employees and
agents and each other Person which controls (within the meaning of the
Securities Act) such Purchaser or any of its partners shall specifically cover
and include, without limitation, all fines and penalties imposed by federal,
state or local authorities, costs of removing or neutralizing the Hazardous
Materials, injury to the property adjoining any properties owned or leased by
the Company, injury to persons living or working on or about any properties
owned or leased by the Company or adjoining or otherwise affecting property, and
all other indirect or consequential damages incurred by each Purchaser and its
officers, directors, partners, employees and agents and each other Person which
controls (within the meaning of the Securities Act) such Purchaser or any of its
partners.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
16
5.2 PURCHASERS' INDEMNIFICATION. Each of the Purchasers, severally but
not jointly, shall indemnify, defend and hold the Company and its officers,
directors, employees and agents and each other Person which controls (within
the meaning of the Securities Act) the Company harmless against all liability,
loss or damage, together with all reasonable costs and expenses related
thereto (including legal and accounting fees and expenses), arising from,
relating to, or connected with the untruth, inaccuracy or breach of any
representations or warranties of such Purchaser contained herein or in the
Related Agreements. Notwithstanding the preceding sentence, the aggregate
amount that may be recovered from any Purchaser by the Company or its of
officers, directors, employees, agents or other controlling Persons under this
Section 5.2 shall be limited to the total purchase price paid hereunder by
such Purchaser for the Series D Preferred Stock.
ARTICLE 6.
DEFINITIONS
6.1 DEFINITIONS. Except as otherwise defined in this Agreement or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below whenever used in this Agreement:
"AFFILIATE" has the meaning ascribed to that term in Rule 12b-2 under the
Exchange Act, or any successor rule.
"CLOSING" shall have the meaning assigned to that term in Section 1.2 of
this Agreement.
"CLOSING DATE" shall have the meaning assigned to that term in Section 1.2
of this Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission and any
successor agency of the Federal government administering the Securities Act and
the Exchange Act.
"CONVERSION SHARES" shall have the meaning assigned to that term in Section
2.15 of this Agreement.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
17
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and any similar or successor Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"GUARANTEE" shall mean any obligation, contingent or otherwise, of any
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness of any other Person in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or to purchase (or to advance or supply funds for
the purchase of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring the owner
of such Indebtedness of the payment of such Indebtedness, or (iii) to maintain
working capital, equity capital or other financial statement condition of the
primary obligor so as to enable the primary obligor to pay such Indebtedness;
PROVIDED, HOWEVER, that the term "Guarantee" shall not include endorsements for
collection or deposit, in either case, in the ordinary course of business.
"INDEBTEDNESS" shall mean, with respect to any Person, (i) all obligations
of such Person for borrowed money, or with respect to deposits or advances of
any kind (other than deposits, advances or excess payments accepted in
connection with the sale by such Person of products or services in the ordinary
course of business), (ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (iii) all obligations of such Person
upon which interest charges are customarily paid (other than obligations
accepted in connection with the purchase by such Person of products or services
in the ordinary course of business), (iv) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person, (v) all obligations of such Person issued or assumed
as the deferred purchase price of property or services (other than accounts
payable to suppliers incurred in the ordinary course of business and paid when
due), (vi) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien or security interest on property owned or acquired by such Person
whether or not the obligations secured thereby have been assumed, (vii) all
obligations of such Person under leases required to be accounted for as capital
leases under generally accepted accounting principles, and (viii) all Guarantees
of such Person.
"INTELLECTUAL PROPERTY RIGHTS" shall mean any and all, whether domestic or
foreign, patents, patent applications, patent rights, trade secrets,
confidential business information, formula, biological or chemical processes,
compounds, cell lines, fungi, yeast, laboratory notebooks, algorithms,
copyrights, mask works, claims of infringement against third parties, licenses,
permits, license rights to or of technologies (other than commercially available
off-the-self software purchased or licensed for less than a total cost of
$100,000 in the aggregate), contract rights with employees, consultants or third
parties, tradenames, trademarks, trademark applications, trademark rights,
inventions and discoveries, and other such rights generally classified as
intangible, intellectual property assets in accordance with generally accepted
accounting principles.
"INVESTMENT" shall mean, with respect to any Person, any loan, advance or
extension of credit (other than in connection with the sale by such Person of
products or services in the ordinary course of business) by such Person to, and
any Guarantee or other contingent liability with respect to the capital stock.
Indebtedness or other obligations of, and any contributions to the capital of,
any other Person, as well as any ownership, purchase or other acquisition by
such Person of any interest in any capital stock or other securities of any such
other Person as well as any transfer or sale (other than in connection with the
sale by such Person of products or services in the ordinary course of business)
of property by such Person to any other Person other than upon full payment, in
cash, of not less than the agreed sale price or the fair value of such property,
whichever is higher.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
18
"LIEN" shall mean: (i) any interest in property (whether real, personal or
mixed and whether tangible or intangible) which secures an obligation owed to,
or a claim by, a Person other than the owner of such property, whether such
interest is based on the common law, statute or contract, including, without
limitation, any such interest arising from a lease, mortgage, charge, pledge,
security agreement, conditional sale, trust receipt or deposit in trust, or
arising from a consignment of bailment given for security purposes (other than a
trust receipt or deposit given in the ordinary course of business which does not
secure any obligation for borrowed money), (ii) any encumbrance upon such
property which does not secure such an obligation, and (iii) any exception to or
defect in the title to or ownership interest in such property, including,
without limitation, reservations, rights of entry, possibilities of reverter,
encroachments, easements, rights of way, restrictive covenants, licenses and
PROFITS A PRENDRE. For purposes of this Agreement, any Person shall be deemed to
be the owner of the leasehold or other interest in any property which it has
acquired or holds subject to a lease and the owner of any property which it has
acquired or holds subject to a conditional sale agreement or other similar
arrangement pursuant to which title to the property has been retained by or
vested in some other Person for security purposes.
"PERSON" shall include any individual, a corporation, an association, a
partnership, a trust or estate, a government and any agency or political
subdivision thereof, or any other entity.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and any
similar or successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"STOCK PLAN" shall have the meaning assigned to that term in Section 2.15
of this Agreement.
"SUBSIDIARY" or "SUBSIDIARIES" shall mean any corporation, partnership,
trust or other entity of which the Company and/or any of its other Subsidiaries
directly or indirectly owns at the time a majority of the outstanding shares of
any class of equity security of such corporation, partnership, trust or other
entity.
6.2 ACCOUNTING PRINCIPLES. The character or amount of any asset,
liability, capital account or reserve and of any item of income or expense
required to be determined pursuant to this Agreement, and any consolidation or
other accounting computation required to be made pursuant to this Agreement, and
the construction of any definition in this Agreement containing a financial
term, shall be determined or made, as the case may be, in accordance with
generally accepted accounting principles, to the extent applicable, unless such
principles are inconsistent with the express requirements of this Agreement.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
19
6.3 "DIRECTLY OR INDIRECTLY". If any provision in this Agreement refers
to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
ARTICLE 7.
MISCELLANEOUS
7.1 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by certified mail, return receipt requested, postage prepaid.
If to a Purchaser: To its address set forth on EXHIBIT A;
With a copy, in the case ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP
of a notice to OrbiMed ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Advisors LLC, to: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇-▇▇▇-▇▇▇▇ (Telephone)
▇▇▇-▇▇▇-▇▇▇▇ (Fax)
If to the Company: NeoGenesis Drug Discovery, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, CFO
▇▇▇-▇▇▇-▇▇▇▇ (Telephone)
▇▇▇-▇▇▇-▇▇▇▇ (Fax)
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III, Esq.
▇▇▇-▇▇▇-▇▇▇▇ (Telephone)
▇▇▇-▇▇▇-▇▇▇▇ (Fax)
All notices, requests, consents and other communications hereunder shall be
deemed to have been given (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above, (ii) if made
by telecopy or facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next business day (or if sent overseas, on the second business
day) following the day such notice is delivered to the courier service, or (iv)
if sent by registered or certified mail, on the 5th business day (or if sent
overseas, on the 10th business day) following the day such mailing is made.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
20
7.2 ENTIRE AGREEMENT. This Agreement, together with the Exhibits and
Schedules hereto, and the other agreements executed and delivered herewith
embody the entire agreement and understanding between the Purchasers and the
Company, and supersede all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not set forth in this Agreement, including the
Exhibits and Schedules hereto, shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
7.3 MODIFICATIONS AND AMENDMENTS. This Agreement may not be changed,
modified or discharged orally, nor may any waivers or consents be given orally
hereunder, and every such change, modification, discharge, waiver or consent
shall be in writing and signed by the Person against which enforcement thereof
is sought.
7.4 WAIVERS AND CONSENTS. Any waiver or consent hereunder shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent. Notwithstanding
the consummation of the transactions contemplated hereby, no Purchaser waives or
relinquishes any right it may have or may acquire against the Company or any of
its Affiliates or agents in connection with the acquisition of Series D
Preferred Stock by such Purchaser, or the ownership thereof. All such rights
shall remain unimpaired by the execution of this Agreement and the consummation
of the transactions contemplated hereby.
7.5 BINDING EFFECT, ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Company, and the Purchasers and their respective
heirs, successors (including, without limitation, by sale or transfer of all or
substantially all assets, merger or consolidation) and assigns, except that the
Company shall not have the right to delegate its obligations hereunder or to
assign its rights hereunder or any interest herein except by a consent complying
with Section 7.3 above.
7.6 GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of
New York, without giving effect to the conflict of law
principles thereof.
7.7 SEVERABILITY. In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in fall force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
21
7.8 INTERPRETATION. The parties hereto acknowledge and agree that: (i)
each party and its counsel, if so represented, reviewed and negotiated the
terms and provisions of this Agreement excluding Schedules and Exhibits and
have contributed to its revision; and (ii) the rule of construction to the
effect that any ambiguities are resolved against the drafting party shall not
be employed in the interpretation of this Agreement.
7.9 HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
7.10 NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement, and
no course of dealing between the parties hereto, shall operate as a waiver of
any such right, power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
7.11 RELIANCE. The parties hereto agree that, notwithstanding any access
to information by any party or any right of a party to this Agreement to
investigate the affairs of any other party to this Agreement, the party having
such access and right to investigate shall have the right to rely fully upon
the representations and warranties of the other party expressly contained in
this Agreement and on the accuracy of any Schedule, Exhibit or other document
attached hereto or referred to herein or delivered by such other party or
pursuant to this Agreement. Each of the Purchasers acknowledges that, based on
information provided by the Company, it has made its own analysis and decisions
regarding the transactions contemplated hereby and that it is not relying on
any of the other Purchasers in executing this Agreement or consummating the
transactions contemplated hereby.
7.12 SURVIVAL. All representations and warranties made by the parties
hereto in this Agreement or in any other agreement, certificate or instrument
provided for or contemplated hereby, shall survive (i) the execution and
delivery hereof, (ii) any investigations made by or on behalf of the parties and
(iii) the Closing and shall remain in full force and effect thereafter so long
as any shares of Series D Preferred Stock remain outstanding.
7.13 FURTHER ASSURANCES. From and after the date of this Agreement, upon
the request of any Purchaser or the Company, the Company and the Purchasers
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
22
7.14 COSTS, EXPENSES AND TAXES. As a condition precedent to the Closing,
the Company agrees to pay at the Closing in connection with the preparation,
execution and delivery of this Agreement and the Related Agreements, the legal
fees of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP, special counsel for the Purchasers, not to
exceed $35,000 (unless any increase thereto is agreed to by the Company), plus
the expenses of such counsel. In addition, the Company shall pay its own
expenses in connection with the preparation, execution and delivery of this
Agreement and the Related Agreements and to pay any and all stamp, or other
similar taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement, the issuance of the Shares and the
other instruments and documents to be delivered hereunder or thereunder, and
agrees to save the Purchasers harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
expenses and taxes. In the event that any of the Purchasers shall retain an
attorney or attorneys to collect, enforce, protect, maintain, preserve or
foreclose its interests with respect to this Agreement or the Related Agreements
or to protect the rights of any holder or holders with respect thereto, the
Company shall pay all of the reasonable costs and reasonable expenses of such
collection, enforcement or protection, including, without limitation, reasonable
attorneys' fees, and such Purchaser may take judgment for all such amounts.
7.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7.16 USE OF DEFINITIONS; GENDER. Any definitions used herein defined in
the plural shall be deemed to include the singular as the context may require
and any definitions used herein defined in the singular shall be deemed to
include the plural as the context may require. Wherever reference is made
herein to the male, female or neuter genders, such reference shall be deemed to
include any of the other genders as the context may require.
7.17 JURISDICTION AND SERVICE OF PROCESS. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the State of
New
York or of the United States of America for the District of
New York. By
execution and delivery of this Agreement, each of the parties hereto accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to the party at its address set forth in Section 7.1 hereof.
7.18 PUBLICITY. No party shall issue any press releases or otherwise make
any public statement with respect to the transactions contemplated by this
Agreement without the prior written consent of the other party, except as may be
required by law.
7.19 BROKERS OR FINDERS. The Company represents and warrants to each of
the Purchasers, and each of the Purchasers, as to itself, represents and
warrants to the Company, that no person or entity has or will have, as a result
of the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the Company or the Purchasers for any commission, fee or
other compensation as a finder or broker because of any act or omission by the
Company or the Purchasers or by any agent of the Company of the Purchasers.
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
23
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed by their duly authorized
representatives, as of the date first written above.
NEOGENESIS DRUG DISCOVERY, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
Title: President
Counterpart Signature Pages Begin on Next Page
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
24
COUNTERPART SIGNATURE PAGE FOR PURCHASERS
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO
------------------------------------
Printed Name of Purchaser
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, GENERAL PARTNER
------------------------------------------
Signature of Purchaser
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Printed Name of Purchaser
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Signature of Purchaser
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
25
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
FINSBURY WORLDWIDE PHARMACEUTICAL TRUST PLC
---------------------------------------------
Printed Name of Purchaser
By: OrbiMed Advisors, LLC, its Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
PW JUNIPER CROSSOVER FUND, L.L.C.
-------------------------------------------
Printed Name of Purchaser
By: OrbiMed Advisors, Inc., its Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
26
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
CADUCEUS PRIVATE INVESTMENTS, LP
---------------------------------
Printed Name of Purchaser
By: OrbiMed Capital, LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
ORBIMED ASSOCIATES, LLC
-------------------------
Printed Name of Purchaser
By: OrbiMed Advisors, LLC, its Managing Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
27
The undersigned hereby agrees to become a party to that certain
Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
FORT WASHINGTON PRIVATE EQUITY INVESTORS II, L.P.
By: Fort Washington Capital Partners, LLC, General Partner
BY: FORT WASHINGTON INVESTMENT ADVISORS, INC., MANAGING MEMBER
Printed Name of Purchaser
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By: /S/ ▇▇▇▇ ▇'▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Director of Private Equity
The undersigned hereby agrees to become a party to that certain Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
FORT WASHINGTON PRIVATE EQUITY INVESTORS III, L.P.
By: Fort Washington Capital Partners, LLC, General Partner
BY: FORT WASHINGTON INVESTMENT ADVISORS, INC., MANAGING MEMBER
Printed Name of Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Director of Private Equity
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
28
The undersigned hereby agrees to become a party to that certain Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇ ▇▇▇▇▇▇▇ M.D.
------------------------------------
Printed Name of Purchaser
/s/ ▇▇▇ ▇▇▇▇▇▇▇ M.D.
------------------------------------------
Signature of Purchaser
The undersigned hereby agrees to become a party to that certain Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------------
Printed Name of Purchaser
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------------
Signature of Purchaser
The undersigned hereby agrees to become a party to that certain Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------------
Printed Name of Purchaser
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------------
Signature of Purchaser
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
29
The undersigned hereby agrees to become a party to that certain Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Printed Name of Purchaser
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Signature of Purchaser
The undersigned hereby agrees to become a party to that certain Preferred
Stock Purchase Agreement dated as of December 27, 2000 (the "AGREEMENT") among
NeoGenesis Drug Discovery, Inc. (the "COMPANY") and others set forth on the
signature pages thereto. From and after the undersigned's execution and delivery
and the Company's acceptance of this Counterpart Signature Page, the undersigned
shall be a party to the Agreement and the shares of Common Stock purchased by
the undersigned shall be deemed to be "Shares" for all purposes of the
Agreement.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Printed Name of Purchaser
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Signature of Purchaser
* = CONFIDENTIAL TREATMENT REQUESTED: MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION.
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