EXHIBIT 10.17
STOCK PURCHASE AGREEMENT
This Agreement is made by and between Tularik Inc., a California
corporation (the "Company"), and the 1987 Xxxxxxx Family Trust ("Purchaser").
1. Purchase of Shares. Purchaser agrees to purchase from the Company,
and the Company agrees to sell to Purchaser, three hundred thousand (300,000)
shares of the Company's common stock (the "Stock") for Seventy-Five Cents
($0.75) per share.
The shares of Stock which are acquired by Purchaser under this Stock
Purchase Agreement are subject to repurchase by the Company until the date on
which they vest. The unvested shares will be held in escrow under the attached
Joint Escrow Instructions until they are no longer subject to repurchase by the
Company. The Company's Purchase Option (as herein defined) is described in
Section 3 of this Agreement.
2. Closing. The closing under this Agreement (the "Closing") will occur
at the offices of the Company on the date of this Agreement or at such other
time and place as the parties both agree upon in writing.
At the Closing, Purchaser will deliver the following documents:
(i) three (3) signed stock assignments in the form of Exhibit B,
with date and number of shares left blank;
(ii) executed joint escrow instructions in the form of Exhibit C; and
(iii) the Two Hundred Twenty-Five Thousand Dollars ($225,000.00)
purchase price in cash for three hundred thousand (300,000) shares of stock.
At the Closing or as soon thereafter as is practical, the Company will
deliver to the Escrow Agent (as defined in Section 10 below) share certificates
for all of the Stock that is to be subject to the Purchase Option (as defined in
Section 3 below), and will deliver share certificates to Purchaser for all of
the Stock, if any, that is not to be subject to the Purchase Option.
3. Company's Purchase Option. In accordance with the provisions of
Section 408(b) of the California General Corporation Law, the Stock to be
purchased by Purchaser under this Agreement shall be subject to the following
option ("Purchase Option"):
(a) If Xxxxxx X. Xxxxxxx ("Xx. Xxxxxxx") ceases to be a member of the
Board of Directors or an officer of the Company or any parent or subsidiary
corporation of the Company ("Related Company"), the Company will have the right
at any time within sixty (60) days after Xx. Xxxxxxx'x resignation or
termination as a director or an officer of the Company and all Related Companies
to purchase from Purchaser all unvested shares, at the price per share paid by
Purchaser under this Agreement. The number of shares of Stock which are subject
to the Company's Purchase Option will be determined by reference to the vesting
schedule in the form of Exhibit A.
(b) In addition, if at any time during the term of the Purchase
Option, there occurs: (i) a dissolution or liquidation of the Company; (ii) a
merger or consolidation involving the Company in which the Company is not the
surviving corporation; (iii) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately before the merger are converted by virtue of the merger into other
property, whether in the form of other securities, cash or otherwise; or (iv)
any other capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are transferred from shareholders of the
Company to other shareholders of the Company, then: (x) if there is no successor
to the Company, the Company will have the right to exercise its Purchase Option
to the same extent as if Xx. Xxxxxxx'x service with the Company (and all Related
Companies) had ceased on the date preceding the date of closing of the event or
transaction described above or (y) the Purchase Option may be assigned to any
successor of the Company, and the Purchase Option will apply if Xx. Xxxxxxx
ceases for any reason to be a director or an officer of the successor. In that
case, references in this Agreement to the "Company" will refer to the successor.
(c) The Company is entitled to pay for any shares purchased under its
Purchase Option at the Company's option in cash, by offset against any
indebtedness owing to the Company by Xx. Xxxxxxx, or a combination of both.
(d) This Agreement is not an employment contract and nothing in this
Agreement creates in any way whatsoever any obligation on the part of Xx.
Xxxxxxx to continue in the employ of or service to the Company, or of the
Company to continue Xx. Xxxxxxx in the employ of or service to the Company.
4. Exercise of Company's Purchase Option. The Company's Purchase Option
may be exercised by giving written notice of exercise delivered or mailed as
provided in Section 16. Upon providing of notice and payment of the purchase
price, the Company will become the legal and beneficial owner of the Stock being
purchased and of all rights and interests in the Stock.
5. Changes in Company's Securities. If during the term of the Purchase
Option there is any stock dividend or liquidating dividend or distribution of
cash and/or property, stock split or other change in the character or amount of
any of the outstanding securities of the Company, then, any and all new,
substituted or additional securities or other property to which Purchaser is
entitled by reason of Purchaser's ownership of Stock will be immediately subject
to the Purchase Option with the same force and effect as the shares of Stock
already subject to the Purchase Option. While the total Option Price will
remain the same after each such event, the Option Price per share of Stock upon
exercise of the Purchase Option will be appropriately adjusted.
6. Legends. All certificates representing any shares of Stock of the
Company subject to the provisions of this Agreement will have legends endorsed
on them in substantially the following form:
(i) "The shares represented by this certificate are subject to an
option set forth in an agreement between the corporation and the registered
holder, or such holder's
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predecessor in interest, a copy of which is on file at the principal office of
this corporation. Any transfer or attempted transfer of any shares subject to
such option is void without the prior express written consent of the issuer of
these shares."
(ii) "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 an effective registration statement as to the securities under
said Act or an opinion of counsel satisfactory to the corporation that such
registration is not required."
(iii) Any legend required to be placed on the share certificates by
the California Commissioner of Corporations.
7. Purchaser Representations. Purchaser acknowledges that Purchaser is
aware that the Stock to be issued to Purchaser by the Company under this
Agreement has not been registered under the Securities Act of 1933, as amended
(the "Act"), on the basis that no distribution or public offering of the Stock
is to be effected, and in this connection acknowledges that the Company is
relying on the following representations. Purchaser warrants and represents
that it is acquiring the Stock for investment for its own account and not with a
view to or for sale in connection with any distribution of the Stock or with any
present intention of distributing or selling the Stock, and Purchaser does not
presently have reason to anticipate any change in circumstances or any
particular occasion or event that would cause Purchaser to sell the Stock.
Purchaser recognizes that the Stock must be held indefinitely unless it is
subsequently registered under the Act or an exemption from registration is
available and, further, recognizes that the Company is under no obligation to
register the Stock or to comply with any exemption from such registration.
8. Restricted Securities. Purchaser is aware that the Stock is treated
as "restricted securities" within the meaning of Rule 144 issued by the
Securities and Exchange Commission under the Act and that the Stock may not be
sold under Rule 144 adopted under the Act unless certain conditions are met and
until Purchaser has held the Stock for at least two (2) years, or such shorter
period specified in Rule 144. Among the conditions for use of Rule 144 is the
availability of specified current public information about the Company.
Purchaser recognizes that the Company presently has no plans to make such
information available to the public.
9. Requirements for Disposition of Stock. Whether or not the Company's
Purchase Option is exercised or has lapsed, Purchaser further agrees not to make
any disposition of any of the Stock until:
(a) At that time there is in effect a registration statement under the
Act covering the proposed disposition and the disposition is made in accordance
with the registration statement; or
(b) (i) Purchaser has notified the Company of the proposed disposition
and furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) Purchaser has given the Company
an opinion of counsel, satisfactory to the Company, to the effect that the
disposition will not require registration of the Stock under the Act.
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10. Escrow. Purchaser agrees, at the Closing (or as soon thereafter as is
practical), to deliver to and deposit with (or have the Company deliver on
Purchaser's behalf) the Secretary of the Company ("Escrow Agent"), as Escrow
Agent in this transaction, three (3) signed stock assignments with date and
number of shares left blank in the form attached to this Agreement as Exhibit B,
together with stock certificate(s) representing all of the Stock subject to the
Purchase Option. These documents are to be held by the Escrow Agent under the
Joint Escrow Instructions of the Company and Purchaser (Exhibit C attached to
this Agreement). These instructions shall also be delivered to the Escrow Agent
at the Closing (or as soon thereafter as is practical).
11. Restrictions on Transfer. Purchaser will not sell or transfer any of
the Stock subject to the Company's Purchase Option as long as the Stock is
subject to the Purchase Option.
12. Company's Shareholder Records. The Company will not be required (i)
to transfer on its books any shares of Stock of the Company which are sold or
transferred in violation of any of the provisions of this Agreement or (ii) to
provide stock ownership rights and privileges to any transferee to whom shares
have been so transferred.
13. Rights as Shareholder. Subject to the provisions of sections 11 and
12 above during the term of this Agreement, Purchaser will have all rights and
privileges of a shareholder of the Company with respect to the Stock.
14. Commissioner's Rules. Purchaser acknowledges receipt of a copy of
Section 260.141.11 of Title 10 of the California Administrative Code, which is
attached to this Agreement as Exhibit D.
15. Further Agreements. The parties agree to execute any further
documents and to take any other action reasonably necessary to carry out the
intent of this Agreement.
16. Notices. Any notice required under this Agreement will be in writing
and will be considered to have been given to the other party upon personal
delivery or upon deposit in any United States Post Office Box, by registered or
certified mail with postage and fees prepaid, addressed to the other party to
this Agreement at the address shown below the party's signature or at such other
address as each party may designate by ten (10) days' advance written notice to
the other party.
17. Binding Agreements. This Agreement shall bind and inure to the
benefit of the successors and assigns of the Company and, subject to the
restrictions on transfer set forth in this Agreement, inure to the benefit of
and be binding upon Purchaser, his or her heirs, executors, administrators,
successors, and assigns.
18. Assignment of Company's Purchase Option. The Company's Purchase
Option is assignable by the Company at any time or from time to time, in whole
or in part. Should the right of repurchase be assigned by the Company, the
assignee shall pay to the Company cash equal to the excess, if any, of the
Option Price over the Stock's Fair Market Value (as defined in the Plan).
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19. Headings. Section headings in this Agreement are inserted for
convenience of reference only. They constitute no part of this Agreement.
In Witness Whereof, the parties hereto have executed this Agreement as of
the 20th day of June, 1996.
Tularik Inc.
By /s/ Xxxxx X. Xxxxxxx
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Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
1987 Xxxxxxx Family Trust
By /s/ Xxxxxx X. Xxxxxxx
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Address:
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Attachments:
Exhibit A Vesting Schedule
Exhibit B Assignment Separate from Certificate
Exhibit C Joint Escrow Instructions
Exhibit D Cal. Admin. Code, Title 10, Section 260.141.11
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FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement (the "First
Amendment") is made and entered into as of August __, 1996, by and between
Tularik, Inc., a California corporation (the "Company"), and the 1987 Xxxxxxx
Family Trust (the "Purchaser").
Whereas, the parties hereto have previously entered into that certain
Stock Purchase Agreement dated June 20, 1996 (the "Purchase
Agreement"); and
Whereas, the parties hereto desire to amend the Purchase Agreement.
Now, Therefore, in consideration of the foregoing premises and the
mutual covenants and conditions herein, the parties hereby agree as
follows:
SECTION 1. DELETED AND SUBSTITUTED SECTION.
Section 3(b) of the Purchase Agreement is hereby deleted in its
entirety, and the following new Section 3(b) is substituted in its place:
"(b) If at any time during the term of the Purchase Option, there
occurs:
(i) a dissolution or liquidation of the Company; (ii) a transaction in
which the Company directly or indirectly sells, conveys, transfers or
leases all or substantially all of its properties and assets to any
person, entity or group (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended); (iii) a
merger or consolidation involving the Company in which neither the
Company nor an entity that was wholly owned by the Company immediately
prior to such merger or consolidation is the surviving corporation;
(iv) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock outstanding
immediately before the merger are converted by virtue of the merger
into other property, whether in the form of other securities, cash or
otherwise; or (v) any transaction or series of related transactions as
a result of which the holders of capital stock of the Company
immediately prior to the transaction or series of related
transactions: (a) hold less than fifty percent (50%) of the aggregate
economic interest of the Company and (b) have combined voting power to
designate less than fifty percent (50%) of the members of the
Company's Board of Directors, then, the Company's Purchase Option
shall terminate."
SECTION 2. OTHER PROVISIONS
All other provisions of the Purchase Agreement shall continue in full
force and effect without amendment.
1.
In Witness Whereof, the parties hereto have executed this First
Amendment effective as of the date and year set forth above.
TULARIK INC. 1987 XXXXXXX FAMILY TRUST
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Title:
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2.
