EXHIBIT 4.1
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the
_____ day of _______, 199_ by and between GENSIA, INC., a Delaware corporation
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(the "Company"), and ____________, an (the
"Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Common Stock. Subject to the terms and
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conditions of this Agreement, Investor hereby purchases and the Company hereby
sells and issues to Investor ____________ shares (the "Original Shares") of
the Company's Common Stock for the purchase price of $4.00 per share (such per
share purchase price is hereinafter referred to as the "Original Per Share
Purchase Price") for an aggregate price of $________ (the "Original Aggregate
Purchase Price").
1.2 Closing. The purchase and sale of the Common Stock shall take
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place at the offices of the Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, at 10 A.M., on the date hereof, or at such other time and place as
the Company and Investor mutually agree upon, verbally or in writing (which time
and place are designated as the "Closing"). At the Closing the Company shall
deliver to Investor a certificate representing the Common Stock which such
Investor is purchasing against delivery to the Company by such Investor of a
bank wire in same day funds or check in the amount of the Original Aggregate
Purchase Price therefor payable to the Company's order.
1.3 Adjustment to Original Shares. If subsequent to the date hereof
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and prior to the consummation or termination of the Stock Exchange Agreement
between the Company and Rakepoll Finance N.V. dated as of November 12, 1996, as
amended, (the "Relevant Time Period"), the Company issues additional shares of
Common Stock at a per share price less than the Original Per Share Purchase
Price, or securities convertible into Common Stock at a conversion price less
than the Original Per Share Purchase Price (other than pursuant to the exercise
or conversion of securities outstanding on the date hereof or pursuant to the
Company's existing stock plans) (such per share price or conversion price being
hereinafter referred to as the "New Per Share Price"), then in connection with
the first such transaction the Company will issue to Investor an additional
number of shares of Common Stock (the "Additional Shares") equal to (a) the
Original Aggregate Purchase Price divided by the New Per Share Price minus (b)
the number of Original Shares. In the event that after the issuance of
Additional Shares, but before
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the end of the Relevant Time Period, the Company issues Common Stock at a per
share price less than the New Per Share Price or convertible securities at a
conversion price less than the New Per Share Price (other than pursuant to the
exercise or conversion of securities outstanding on the date hereof or pursuant
to the Company's stock plans), then a calculation shall be made in accordance
with the preceding sentence, substituting the sum of the number of Original
Shares plus the number of Additional Shares in clause (b) above. Such number of
shares shall then be issued to Investor.
1.4 Definitions.
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(a) The following terms, as used herein, have the following meanings:
"Closing Date" means the date of the Closing.
"Common Stock" means the Common Stock, par value $0.01 per share of
the Company, together with the associated preferred stock purchase rights
established pursuant to the Rights Agreement dated March 9, 1992 between the
Company and ChaseMellon Shareholder Services L.L.C. as rights agent (the
"Rights").
"Material Adverse Effect" means a material adverse effect on the
condition (financial or otherwise), business, assets, results of operations of a
corporation and its subsidiaries taken as a whole.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"Person" shall mean an individual, corporation, partnership, trust,
business trust, association, joint stock company, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
"Purchased Shares" means the Original Shares and any Additional
Shares.
2. Representations and Warranties of the Company. The Company hereby
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represents and warrants to Investor that:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted. The Company is duly qualified to
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transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a Material Adverse Effect.
2.2 Capitalization. The authorized capital of the Company consists
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of:
(i) Preferred Stock. 5,000,000 shares of Preferred Stock, of which
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1,840,000 shares have been designated $3.75 Convertible Exchangeable Preferred
Stock, par value $.01 per share (the "Convertible Preferred Stock"), and 100,000
shares have been designated Series I Participating Preferred Stock, par value
$.01 per share (the "Participating Preferred Stock"). There are 1,600,000
shares of Convertible Preferred Stock and no shares of Participating Preferred
Stock issued and outstanding.
(ii) Common Stock. 75,000,000 shares of Common Stock, of which
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36,950,792 shares were issued and outstanding as of September 30, 1996. The
Company has entered into a Stock Exchange Agreement, dated as of November 12,
1996 (the "Stock Exchange Agreement"), with Rakepoll Finance N.V. which, among
other things, provides for the Company to issue 29,500,000 shares of Common
Stock to Rakepoll Finance N.V. The consummation of the transactions
contemplated by the Stock Exchange Agreement, including the issuance of shares
of Common Stock to Rakepoll Finance N.V., is subject to the satisfaction of
certain conditions, including shareholder and regulatory approval.
2.3 Authorization. All corporate action on the part of the Company,
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its officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of this Agreement, (ii) the performance of all
obligations of the Company hereunder and (iii) the authorization, issuance (or
reservation for issuance) and delivery of the Common Stock being sold hereunder,
to the extent that the foregoing requires performance on or prior to the
Closing, has been taken and this Agreement constitutes the valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
2.4 Valid Issuance of Purchased Shares. The Original Shares have
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been, and when and if issued the Additional Shares will be, duly and validly
issued and fully paid and non assessable and, based in part upon the
representations of the Investor in this Agreement, issued in compliance with all
applicable federal and state securities laws.
3. Representations and Warranties of Investor. This Agreement is
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made with Investor in reliance upon the Investor's representation and warranties
to the Company, which by such Investor's execution of this Agreement the
Investor hereby confirms, that:
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3.1 Organization and Existence. Investor is a ___________________
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validly existing and in good standing under the laws of and has all
corporate powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted, except for those licenses, authorizations, permits, consents and
approvals the absence of which would not, individually or in the aggregate, have
a Material Adverse Effect.
3.2 Corporate Authorization. This execution, delivery and
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performance by Investor of this Agreement are within the corporate powers of
Investor and have been duly authorized by all necessary partnership action on
the part of Investor. This Agreement constitutes the valid and legally binding
obligation of Investor, enforceable against Investor in accordance with its
terms.
3.3 Purchase Entirely for Own Account. All Purchased Shares to be
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received by Investor will be acquired for investment for Investor's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, Investor further represents that Investor does not have any
contract, un dertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Purchased Shares.
3.4 Restricted Securities. Investor understands that the Purchased
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Shares are characterized as "restricted securi ties" under the federal
securities laws inasmuch as they are being or will be acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may only be resold without registration
under the 1933 Act in certain limited circumstances. In this connection
Investor represents that it is familiar with Securities and Exchange Commission
("SEC") Rule 144, as presently in effect, and understands the resale limitations
imposed thereby and by the 1933 Act.
3.5 Legends. It is understood that the certificates evidencing the
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Purchased Shares may bear one or all of the following legends:
(a) "These securities have not been registered under the Securities
Act of 1933. They may not be sold, offered for sale, pledged or hypothecated in
the absence of a registration statement in effect with respect to the securities
under such Act or an opinion of counsel satisfactory to the Company that such
registration is not required or unless sold pursuant to Rule 144 of such Act."
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(b) If required by the authorities of any state in connection with
the issuance or sale of the Common Stock, the legend required by such state
authority.
4. Registration Rights. The Company covenants and agrees as
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follows:
4.1 Certain Additional Definitions.
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Prospectus" shall mean the prospectus included in any Registration
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Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration
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effected by preparing and filing a registration statement or similar document in
compliance with the 1933 Act, and such registration statement or document
becoming effective under the 1933 Act.
"Registrable Securities" shall mean (i) the Purchased Shares; (ii)
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any Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Purchased Shares; and (iii) any Common Stock issued pursuant to Section 4.2(a).
"Registration Statement" shall mean any registration statement of the
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Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
4.2 Registration. The Company will use its reasonable best efforts
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to effect a registration to permit the sale of the Registrable Securities as
described below, and pursuant thereto the Company will:
(a) prepare and file and use its reasonable best efforts to have
declared effective by March 31, 1997 by the SEC, a Registration Statement on
Form S-3 relating to resale of all of the shares of the Registrable Securities
and use its reasonable best efforts to cause such Registration Statement to
remain continuously effective for a period which will terminate
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when all Registrable Securities covered by such Registration Statements, as
amended from time to time, have been sold or when the Registrable Securities may
be sold under Rule 144(k) under the 1933 Act. If such Registration Statement is
not declared effective by the SEC by March 31, 1997 then on the first business
day thereafter the Company shall issue to Investor additional shares of Common
Stock equal to 2% of the shares of Common Stock previously issued to Investor
hereunder. If such Registration Statement has not been declared effective prior
to the end of any succeeding month then on the first business day thereafter the
Company shall issue to Investor shares of Common Stock equal to 1.5% of the
shares of Common Stock previously issued to Investor hereunder.
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement and the Prospectus as may be necessary
to keep such Registration Statement effective for the period specified in
Section 4.2(a) and to comply with the provisions of the 1933 Act and the 1934
Act with respect to the distribution of all Registrable Securities;
(c) notify the Investor, promptly, and confirm such notice in writing,
(i) when the Prospectus or any supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
for amendments or supplements to the Registration Statement or Prospectus or for
additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) furnish to the Investor, without charge, at least one copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all, upon a Investor's request, documents
incorporated therein by reference and all exhibits thereto (including those
incorporated by reference);
(f) deliver to the Investor, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as Investor may reasonably request in order to facilitate the
disposition of the Registrable Securities;
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(g) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or market on which similar
securities issued by the Company are then listed, and if the securities are not
so listed to use its reasonable best efforts promptly to cause all such
securities to be listed on either the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Stock Market;
(h) use reasonable best efforts to qualify or register the Registrable
Securities for sale under (or obtain exemptions from the application of) the
Blue Sky laws of such jurisdictions as are applicable. The Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not presently qualified
or where it would be subject to general service of process or taxation as a
foreign corpora tion in any jurisdiction where it is not now so subject.
(i) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act
and take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities hereunder.
Investor shall furnish to the Company such information regarding the
distribution of such securities as the Company may from time to time reasonably
request in writing.
If the Company delivers a certificate in writing to the Investor, to
the effect that a delay in the sale of Registrable Securities by the Investor
under the Registration Statement is necessary because a sale pursuant to such
Registration Statement in its then current form would reasonably be expected to
constitute a violation of the federal securities laws then the Investor shall
agree not to sell or otherwise transfer such Registrable Securities for the
period of time specified by the Company in its certificate. In no event shall
such delay exceed ten (10) business days; provided, however, that if, prior to
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the expiration of such ten (10) business day period, the Company delivers a
certificate in writing to the Investor to the effect that a further delay in
such sale beyond such ten (10) business day period is necessary because a sale
pursuant to such Registration Statement in its then current form would
reasonably be expected to constitute a violation of the federal securities laws,
the Company may refuse to permit the Investor to resell any Registrable
Securities pursuant to such Registration Statement for an additional period not
to exceed five (5) business days.
4.3 Registration Expenses. All expenses incident to the Company's
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performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees with respect to the filings required to
be made with the National Association of Securities Dealers, Inc., fees and
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expenses of compliance with the securities or Blue Sky laws, printing expenses,
messenger, telephone and delivery expenses, fees and disbursements of counsel
for the Company, fees and disbursements of all independent certified public
accountants of the Company, fees and expenses incurred in connection with the
listing of the securities, rating agency fees and the fees and expenses of any
person, including special experts, retained by the Company, will be borne by the
Company, regardless of whether the Registration Statement becomes effective;
provided, however, that the Company will not be required to pay discounts,
commissions or fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities or fees or disbursements of any counsel to the Investor.
4.4 Rule 144.
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The Company covenants that it will file the reports required to be
filed by it under the 1933 Act and the 1934 Act and it will take such further
action as the Investor may reasonably request, all to the extent required to
enable Investor to sell Registrable Securities without registration under the
1933 Act in reliance on the exemption provided by Rule 144 or Rule 144A under
the 1933 Act or any successor or similar rules or statues. Upon the request of
the Investor, the Company will deliver to the Investor a written statement as to
whether the Company has complied with such information and requirements.
4.5 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 4:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor, any underwriter (as defined in the Act) for the
Investor, any officer, director, partner or agent thereof, and each person, if
any, who controls the Investor or underwriter within the meaning of the 1933 Act
or the 1934 Act against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the 1933 Act, the 1934 Act or
other United States federal or state securities law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of or
are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act or other United States
federal or state securities law, or any rule or regulation
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promulgated under the 1933 Act, the 1934 Act or other United States federal or
state securities law; and the Company will pay to the Investor, underwriter or
controlling person any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action as incurred; provided, however, that the indemnity
agreement contained in this subsection 4.5(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by the Investor, underwriter or controlling person.
(b) To the extent permitted by law, the Investor will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the 1933 Act, any underwriter, any officer, director,
partner or agent thereof and any controlling person of any such underwriter,
against any losses, claims, damages, or liabilities (joint or several) to which
any of the foregoing persons may become subject, under the 1933 Act, the 1934
Act or other United States federal or state securities law insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by the Investor expressly for use in connection
with such registration; and the Investor will pay any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 4.5(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 4.5(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Investor, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 4.5(b) exceed the proceeds (net of underwriting discounts
and commissions) from the offering received by the Investor.
(c) After receipt by an indemnified party under this Section 4.5 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 4.5, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires,
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jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified parties
which may be represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 4.5, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.5.
(d) If the indemnification provided for in this Section 4.5 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations;
provided, however, that, in any such case, (A) the Investor will not be required
to contribute any amount in excess of the proceeds (net of underwriting
discounts and commissions) received by the Investor from all Registrable
Securities offered and sold by the Investor pursuant to the registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the Violation relates to information supplied by the indemnifying party
or by the indemnified party and the parties' relative intent, knowledge, access
to information, and opportunity to correct or prevent such statement or
omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
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with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and the Investor under this Section
4.5 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 4, and otherwise.
4.6 Other Registration Participants. The Company agrees that from
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and after January 22, 1997 it will not grant to any person any piggyback or
other participation rights in the Registration Statement referenced in Section
4.2(a) hereof. The foregoing shall not be deemed to prevent the Company from
granting such rights with respect to any registration statement that does not
cover the Registrable Securities.
5. Miscellaneous.
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5.1 Successors and Assigns. The terms and conditions of this
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Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
5.2 Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California (irrespective of its choice of law
principles).
5.3 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.4 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.5 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effective upon personal delivery to the party to be notified, or if sent by
telex or telecopier, upon receipt of the correct answerback, or upon deposit
with the United States Post Office, by registered or certified mail, or upon
deposit with an overnight air courier, in each case postage prepaid and
addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days' advance written notice to
the other party:
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If to the Company:
Gensia, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Pillsbury Madison & Sutro LLP
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investor:
________________________
________________________
________________________
________________________
________________________
5.6 Finders' Fee. Each party represents that it neither is nor will
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be obligated for any finders' fee or com mission in connection with this
transaction. Investor agrees to indemnify and hold harmless the Company from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Investor or any of its officers, partners, employees or
representatives is responsible.
The Company agrees to indemnify and hold harmless Investor from any
liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
5.7 Expenses. The Company and the Investor shall pay their
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respective costs and expenses incurred with respect to the negotiation,
execution, delivery and performance of this Agreement. If any action at law or
in equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
5.8 Amendments and Waivers. Any term of this Agreement may be
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amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
Any
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amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any securities purchased under this Agreement at the time
outstanding, each future holder of all such securities, and the Company.
5.9 Severability. If any provision of this Agreement is held to be
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unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
5.10 Entire Agreement. This Agreement, and the Confidentiality
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Agreement dated _________ between the parties hereto, constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof. No representation, inducement, promise, understanding, condition or
warranty not set forth herein or therein has been made or relied upon by either
party hereto. Neither this Agreement nor any provision hereof is intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
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date first above written.
GENSIA, INC.
By
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Title
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By
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Title
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