Exhibit 10.5
SUBSEQUENT PURCHASE AGREEMENT
AGREEMENT, dated this 5th day of November 1996, by and between SCRIPTGEN
Pharmaceuticals, Inc. (the "Company"), a Delaware corporation with its principal
place of business at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxxxxx
00000, and Lombard Odier & Cie (the "Purchaser"), a Swiss company with its
principal place of business at 00 xxx xx xx Xxxxxxxxxx, 0000 Xxxxxx,
Xxxxxxxxxxx.
WHEREAS, the Company desires to issue and sell, and the Purchaser desires
to purchase, 1,111,333 shares of the Series C Preferred Stock of the Company,
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
conditions herein contained, the parties hereto agree as follows:
1. Authorization and Sale of the Shares
1.1 Authorization of the Shares. The Company previously has
authorized the sale and issuance of 5,100,000 shares of its Series C Preferred
Stock, par value $.01 per share (the "Series C Preferred Stock"), such class of
stock having the rights, restrictions, privileges and preferences set forth in
the Amended and Restated Certificate of Incorporation of the Company (the
"Certificate of Incorporation"). Such prior authorization covers the 1,111,333
shares of Series C Preferred Stock being sold to the Purchaser hereunder (the
"Series C Preferred Shares"), with respect to which shares the Purchaser will be
considered a Subsequent Purchaser pursuant to and in accordance with Section
10.1 of the Series C Stock Purchase Agreement dated as of May 17, 1996 by and
among the Company and the persons listed on Exhibit 1 thereto (the "Original
Series C Agreement").
1.2 Closing. Subject to the terms and conditions of and in reliance
upon the representations and warranties and agreements contained in the Original
Series C Agreement, as modified herein, the Company will issue and sell to the
Purchaser, and the Purchaser will purchase, the Series C Preferred Shares. The
purchase and sale of the Series C Preferred Shares shall occur at a closing (the
"Closing") to be held (whether via facsimile or otherwise) at the offices of
Xxxxxx, XxXxxxxxx & Fish, LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, at a time and on a date to be agreed upon by the Company and the
Purchaser (the "Closing Date"). The Closing shall be considered both a
"Closing" and a "Subsequent Closing" as those terms are defined in the Original
Series C Agreement.
1.3 Delivery. At the Closing, the Company shall deliver to the
Purchaser a certificate evidencing the Series C Preferred Shares, registered on
the books of the Company in such names as the Purchaser requests, and the
Purchaser shall make payment to the Company in the amount of $2,000,399.40.
Such payment shall be made, at the option of the Purchaser, by check, wire
transfer or any combination thereof. Pursuant to Section 1.3 of the Original
Series C Agreement, at the Closing, the Purchaser shall deliver to the Company
an executed counterpart of the Original Series C Agreement.
1.4 Option. The Company hereby grants the Purchaser an option (the
"Option") to purchase up to 1,111,111 (but no less than 555,555) additional
shares of Series C Preferred Stock at a purchase price of $1.80 per share, such
option to be exercised by written notice given in accordance with Section 10.6
of the Original Series C Agreement and received by the Company on or prior to
December 31, 1996. Upon exercise of the Option, the Company shall increase the
number of authorized preferred stock by 900,000 shares, all of which shall be
designated Series C Preferred Stock.
2. Restated Representations and Warranties
and Schedule of Exceptions of the Company
The Company hereby modifies and restates the representations and warranties
and the Schedule of Exceptions contained in the Original Series C Agreement. As
so modified and restated, the representations and warranties contained herein,
and the Schedule of Exceptions attached hereto as Schedule 1, are true, complete
and correct as of the date hereof.
2.1 Organization and Standing: Articles and By-Laws. The Company is a
corporation duly organized and validly existing and in good standing under the
laws of its state of organization and is qualified to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification, except where the failure to so qualify
would not have a material adverse effect upon the business, operations or
prospects of the Company. The Company has the requisite corporate power to own
properties owned by it and to conduct business as now being conducted by it and
as contemplated by it and possesses all governmental and other permits, licenses
and other authorizations to own its properties as now owned and to conduct its
business as now conducted. The Company has furnished the Purchaser with true,
correct and complete copies of its Certificate of Incorporation, By-Laws and all
amendments to each to date.
2.2 Corporate Power. The Company has all requisite corporate power to
enter into this Agreement, and will have at the Closing Date all requisite
corporate power to sell the Series C Preferred Shares and to carry out and
perform its obligations under the terms of this Agreement.
2.3 Subsidiaries. The Company has no subsidiaries and does not own of
record or beneficially any capital stock or equity interest or investment in any
corporation, association or business entity.
2.4 Capitalization. Immediately prior to the Closing, the Company's
authorized capital stock will consist of (a) 30,000,000 shares of Common Stock,
$.01 par value ("Common Stock"), of which (i) 3,447,152 shares will be issued
and outstanding immediately prior to the Closing, (ii) 6,403,325 shares have
been reserved for issuance upon conversion of the outstanding shares of the
Company's Series A Preferred Stock, $.01 par value (the "Series A Preferred
Stock"), (iii) 153,000 shares are set aside for issuance upon the exercise of
warrants and other stock purchase rights for Series A Preferred Stock and the
conversion thereof into
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Common Stock, (iv) 6,579,086 shares have been reserved for issuance upon
conversion of the outstanding shares of the Company's Series B Preferred Stock,
$.01 par value (the "Series B Preferred Stock," and together with the Series A
Preferred Stock and the Series C Preferred Stock, the "Preferred Stock"), (v)
1,634,733 shares have been reserved for issuance upon conversion of those shares
of Series C Preferred Stock issued to the Initial Purchasers pursuant to the
Original Series C Agreement, (vi) 55,555 shares are set aside for issuance upon
the exercise of warrants and other stock purchase rights for Series C Preferred
Stock and the conversion thereof into Common Stock, (vii) 617,407 shares have
been reserved for issuance upon conversion of the Series C Preferred Shares to
be issued to the Purchaser hereunder, (viii) 617,283 shares have been reserved
for issuance upon the conversion of Series C Preferred Stock issuable to the
Purchaser pursuant to the option described in Section 1.4 hereunder, (ix)
1,280,100 shares are set aside for issuance upon exercise of outstanding stock
options and other stock purchase rights, (x) 1,543,784 shares are issued and
outstanding, subject to forfeiture, pursuant to restricted stock agreements
between the Company and certain of its employees and consultants, and (xi)
1,103,002 shares are held by the Company in its treasury and (b) 21,500,000
shares of Preferred Stock, (1) 6,700,000 shares of which have been designated
Series A Preferred Stock, of which 6,403,325 shares are outstanding as of the
Closing, (2) 9,700,000 shares of which have been designated Series B Preferred
Stock, of which 6,579,086 shares are outstanding as of the Closing, and (3)
5,100,000 shares of which have been designated Series C Preferred Stock, of
which 2,942,521 shares will be outstanding prior to the Closing and 4,053,854
shares will be outstanding after consummation of the transactions contemplated
hereby. All the aforesaid issued and outstanding shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Common Stock have
been duly authorized and validly issued, fully paid and are nonassessable, and
owned of record and beneficially by the stockholders of the Company and in the
amounts set forth in the Schedule of Exceptions, and has been offered, issued,
sold and delivered by the Company in compliance with applicable Federal and
state securities laws. The Schedule of Exceptions sets forth a complete and
accurate list of all holders of the capital stock of the Company, including
options and warrants to purchase shares of the Company's capital stock, and the
class and number of shares, or shares issuable upon exercise, as the case may
be, held by each such holder. There are no outstanding preemptive, conversion
or other rights or agreements granted or issued by or binding on the Company for
the purchase or acquisition of, or with respect to, any shares of its capital
stock. No stockholder has granted the Company options or other rights to
purchase any shares of capital stock of the Company from such stockholder.
Neither the offer, issuance or sale of the Series C Preferred Shares nor the
consummation of any transaction contemplated hereby will result in a change in
the price or number of any securities of the Company outstanding at the Closing
under anti-dilution provisions contained in or affecting any such securities.
The Company holds no shares of its Preferred Stock in its treasury.
2.5 Authorization. All corporate action on the part of the Company,
its directors and stockholders necessary for the authorization, execution,
delivery and performance by the Company of this Agreement, and the consummation
of the transactions contemplated herein, and for the authorization, issuance and
delivery of the Series C Preferred Shares and the shares of Common Stock
issuable upon conversion of the Series C Preferred Shares, has been taken or
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will be taken prior to the Closing. This Agreement constitutes the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms. The execution, delivery and performance by the
Company of this Agreement and compliance herewith and the issuance and sale of
the Series C Preferred Shares and the issuance of Common Stock upon conversion
of the Series C Preferred Shares will not (a) result in any violation of, and
will not conflict with, or result in a breach of any of the terms of, or
constitute a default under, the Company's Certificate of Incorporation or
By-Laws, both as amended, any mortgage, indenture, agreement, instrument,
judgment, decree, order, rule or regulation or other restriction to which the
Company is a party or by which it, or any of its assets, is bound, or any
provision of state or Federal law to which the Company is subject, or (b) result
in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
the properties or assets of the Company pursuant to any such term or (c) result
in the suspension, revocation, impairment, forfeiture or non-renewal of any
permit, license, authorization or approval applicable to the Company's
operations or any of its assets or properties. The Series C Preferred Shares,
when issued in compliance with the provisions of this Agreement: (i) will be
duly authorized, validly issued, fully paid and nonassessable; (ii) will be free
of any liens or encumbrances; and (iii) will have the rights, privileges and
preferences as set forth in the Certificate of Incorporation. The shares of
Common Stock issuable upon conversion of the Series C Preferred Shares have been
duly and validly reserved and are not subject to any preemptive rights or rights
of first refusal and, upon issuance, will be duly authorized, validly issued,
fully paid and nonassessable.
2.6 Financial Information. Attached hereto as Exhibits 2.6A and
2.6B, respectively, are true copies of: (a) the audited balance sheet of the
Company as at December 31, 1995, together with audited statements of operations,
shareholders' equity and cash flows of the Company for the year then ended
(collectively, the "Audited Financial Statements"); and (b) the unaudited
balance sheet of the Company as at September 30, 1996 (the "Balance Sheet"),
together with unaudited statements of operations and cash flows of the Company
for the 9-month period then ended (collectively, the "Unaudited Financial
Statements," and together with the Audited Financial Statements, the "Financial
Statements"). Each of the Financial Statements presents fairly the financial
position and results of operations of the Company at the dates and for the
periods to which they relate, in accordance with generally accepted accounting
principles consistently applied throughout and across the periods involved
(except as may otherwise be disclosed in the Financial Statements) and show all
liabilities of the Company required to be recorded thereon in accordance with
generally accepted accounting principles as at the dates thereof, subject, in
the case of the Unaudited Financial Statements, to normal year-end adjustments.
The Company has no material liabilities (fixed or contingent, including without
limitation any tax liabilities due or to become due) which are not fully
reflected or provided for on the Balance Sheet. The Company does not know of
any such material liability of any nature, direct or indirect, contingent or
otherwise, or in any amount not adequately reflected or reserved against in the
Balance Sheet.
2.7 Absence of Certain Changes. At all times since December 31, 1995
up to and including the Closing, there has not been any event or condition of
any character which has
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materially adversely affected the Company's business, operations or financial
condition, including but not limited to:
(a) Any material adverse change in the condition, operating results,
assets, liabilities or business of the Company from that shown on the
Financial Statements;
(b) Any damage, destruction or loss of any of the properties or assets of the
Company (whether or not covered by insurance) materially adversely affecting
the assets, properties, financial condition, operating results, prospects,
business or plans of the Company;
(c) Any waiver by the Company of a valuable right or of a debt owed to
it;
(d) Any material change or material amendments to a contract or
arrangement by which the Company or any of its assets or properties is bound
or subject;
(e) Any declaration, setting aside or payment or other distribution in
respect of any of the Company's capital stock, or any direct or indirect
redemption, purchase or other acquisition of any of such stock by the
Company; or
(f) Any labor trouble.
2.8 Taxes. The Company has filed or will file within the time
prescribed by law (including extensions of time approved by the appropriate
taxing authority) all tax returns and reports required to be filed with the
United States Internal Revenue Service and with The Commonwealth of
Massachusetts and the State of Delaware and (except to the extent that the
failure to file would not have a material adverse effect on the condition or
operations of the Company) with all other jurisdictions where such filing is
required by law; and the Company has paid, or has made adequate provision in
the Financial Statements for the payment of, all taxes, interest, penalties,
assessments or deficiencies (i) shown to be due or claimed to be due on or in
respect of such tax returns and reports or (ii) on the income, profits,
property or business of the Company. The Company knows of (i) no other tax
returns or reports which are required to be filed which have not been so
filed and (ii) no unpaid assessment for additional taxes for any fiscal
period or any basis therefor. The Company's Federal income tax returns have
not been audited by the Internal Revenue Service.
2.9 Outstanding Debt. Except as reflected on the Balance Sheet,
the Company has no outstanding indebtedness for borrowed money and is not a
guarantor or otherwise contingently liable for any indebtedness for borrowed
money (including, without limitation, liability by way of agreement,
contingent or otherwise, to purchase, provide funds for payment, supply funds
or otherwise invest in any debtor or otherwise to insure any creditor against
loss). There exists no default under the provisions of any instrument
evidencing any such indebtedness or otherwise or of any agreement relating
thereto, including, without limitation, those included or referred to in the
Schedule of Exceptions and on the Balance Sheet. No officer, director or
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stockholder of the Company or any of his, her or its relatives or affiliates is
indebted to the Company in an amount in excess of $5,000 per person or entity.
2.10 Contracts; Insurance. Except as disclosed in the Schedule of
Exceptions, the Company has no currently existing contract, obligation,
agreement, plan, arrangement, commitment or the like (whether written or oral)
of any material nature (involving more than $10,000 in any year or $50,000 over
the life of such contract, obligation, agreement, plan, arrangement, or
commitment, either individually or in the aggregate if such contracts,
obligations, agreements, plans, arrangements or commitments are of a similar
nature or with the same party) including without limitation the following:
(a) Employment, bonus or consulting agreements, pension, profit sharing,
deferred compensation, stock bonus, retirement, stock option, stock purchase,
phantom stock or similar plans, including agreements evidencing rights to
purchase securities of the Company and agreements among stockholders and the
Company;
(b) Loans or other agreements, notes, indentures, or instruments
relating to or evidencing indebtedness for borrowed money, or mortgaging,
pledging or granting or creating a lien or security interest or other
encumbrance on any of the Company's property or any agreement or instrument
evidencing any guaranty by the Company of payment for performance by any
other person;
(c) Agreements with dealers, sales representatives, brokers or other
distributors, jobbers, advertisers or sales agencies;
(d) Agreements with any labor union or collective bargaining
organization or other labor agreements;
(e) Any contract or series of contracts with the same person for the
furnishing or purchase of machinery, equipment, goods or services, including,
without limitation, agreements with processors and subcontractors;
(f) Any indenture, agreement, or other document (including private
placement brochures) relating to the sale or repurchase of shares of the
Company's capital stock;
(g) Any joint venture contract or arrangement or other agreement
involving a sharing of profits or expenses to which the Company is a party;
(h) Agreements expressly limiting the freedom of the Company to compete
in any line of business or in any geographic area or with any person;
(i) Agreements providing for the disposition of the business, assets or
shares of the Company, agreements of merger or consolidation to which the
Company is a party or letters of intent with respect to the foregoing;
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(j) Letters of intent or agreements with respect to the acquisition of the
business, assets or shares of any other business;
(k) Insurance policies;
(l) Assignments, licenses or other agreements with respect to any
intangible property (including, without limitation, any patent, trademark,
trade name, copyright, know-how, trade secret, proprietary right or
confidential information); or
(m) Any other contract, instrument, commitment, plan, agreement or
arrangement, a copy of which would be required to be filed with the
Securities and Exchange Commission (the "Commission") as an exhibit to a
registration statement on Form S-1 if the Company were registering securities
under the Securities Act of 1933, as amended (the "Securities Act").
The Company has complied with all the material provisions of all said
contracts, obligations, agreements, plans, arrangements and commitments and
there does not exist any event of default with respect to the Company under
any such agreement or any event which, after notice or lapse of time or both,
would constitute an event of default with respect to the Company under such
agreement. There is no action, suit, proceeding or investigation pending or,
to the best of the Company's knowledge and belief, threatened against the
Company before any court or before any governmental or administrative agency
for the renegotiation of or any other adjustment of any such agreement.
2.11 Litigation and Bankruptcy Proceedings.
(a) There is neither pending nor, to the best of the Company's knowledge and
belief, threatened any action, suit, proceeding or claim or, to the best of the
Company's knowledge, any basis therefor, whether or not purportedly on behalf of
the Company, to which the Company is or may be named as a party or to which its
property is or may be subject or to which any officer, key employee or principal
stockholder of the Company is subject, and (i) in which an unfavorable outcome,
ruling or finding in any such matter or for all such matters taken as a whole
might have a material adverse effect on the condition, financial or otherwise,
prospects or operations of the Company, or (ii) in which a third party seeks
damages from the Company based on the Company's previous use of the name
"ScripTech;" and the Company has no knowledge of any unasserted claim, the
assertion of which is likely and which, if asserted, will seek damages, an
injunction or other legal, equitable, monetary or nonmonetary relief, which
claim individually or collectively with other such unasserted claims if granted
would have a material adverse effect on the condition, financial or otherwise,
business or operations of the Company.
(b) 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 to take advantage of any
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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, 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 similar law or
statute of the United States of America or any other jurisdiction.
2.12 Consents. Subject in part to the continuing truth and accuracy
of the representations set forth in Sections 3.8 and 3.9 of the Original Series
C Agreement, no consent, approval, qualification, order or authorization of, or
filing with, any governmental authority, including the Secretary of State of the
State of Delaware, is required in connection with the Company's valid execution,
delivery or performance of this Agreement, or the offer, sale or issuance of the
Series C Preferred Shares by the Company, the issuance of Common Stock upon the
conversion of the Series C Preferred Shares or the consummation of any other
transaction contemplated on the part of the Company hereby, except for such
filings as will have been made prior to the Closing.
2.13 Title to Properties; Liens and Encumbrances; Leases. The Company
owns no real property. The Company has good and marketable title to and a valid
and indefeasible ownership interest in all the property and assets owned by it,
free from all mortgages, pledges, liens, security interests, conditional sale
agreements, encumbrances or charges.
Set forth on the Schedule of Exceptions is a correct and complete list of
all leases under which the Company is a lessee. The Company enjoys peaceful and
undisturbed possession under all such leases, all of such leases are valid and
subsisting and the Company is not in default under any of such leases in any
material respect.
2.14 Business of the Company. There is no pending or, to the best of
the Company's knowledge and belief, threatened claim or litigation against or
affecting the Company contesting its right to perform any of the services
presently conducted or proposed to be conducted by the Company or to produce,
manufacture, sell or use any product, process, method, substance, part or other
material presently produced, manufactured, sold or used or planned to be
produced, manufactured, sold or used by the Company in connection with the
business and operations of the Company. The Company has no knowledge or belief
that (i) there exists, or 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 condition,
financial or otherwise, operations or prospects of the Company; or (ii) there is
any other factor (other than fire, flood, accident, act of war or civil
commotion, or any other cause or event beyond the control of the Company) which
materially adversely affects the condition, financial or otherwise, business or
the operations of the Company.
2.15 Permits, Franchises, Licenses, Trademarks, Patents and Other
Rights. The Company has, or when required will have, all permits, licenses and
other similar authority necessary in any material respect for the conduct of its
business as now being conducted by it and as planned to be conducted by it, and
the Company is not in default under any of such
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permits, licenses or other similar authority. The Schedule of Exceptions
includes a list of all patents owned by or licensed to the Company. The Company
possesses (whether as a licensee or otherwise) all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, copyrights, trade
secrets, information, proprietary rights and processes necessary to conduct its
business in any material respect as now being conducted and as planned to be
conducted without, to the best of the Company's knowledge and belief, conflict
with, or infringement upon, any valid rights of others, and with respect to such
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, copyrights, trade secrets, information, proprietary rights and processes
has not received any notice of infringement upon or conflict with the rights of
others.
Except as disclosed in the Schedule of Exceptions, there are no outstanding
options, licenses or agreements of any kind relating to the foregoing, and no
stockholder, director, officer or employee of the Company has any interest in
any such patents, patent rights, trademarks, trademark rights, trade names,
trade name rights, copyrights, trade secrets, information, proprietary rights
and processes.
2.16 Issuance Taxes. All taxes imposed by law in connection with the
issuance, sale and delivery of the Series C Preferred Shares shall have been
fully paid, and all laws imposing such taxes shall have been fully complied with
in all material respects prior to the Closing.
2.17 Offering. Subject in part to the continuing truth and accuracy
of the Purchaser's representations set forth in the Original Series C Agreement,
the offer, sale and issuance of the Series C Preferred Shares and the issuance
of Common Stock upon conversion of the Series C Preferred Shares as contemplated
by this Agreement are exempt from the registration requirements of the
Securities Act, and from the registration or qualification requirements of the
laws of any applicable jurisdiction, and neither the Company nor anyone acting
on its behalf will take any action hereafter that would cause the loss of such
exemption.
2.18 Compliance with Other Instruments. The Company is not in
violation of any term of its Certificate of Incorporation or By-Laws, as
amended. The Company is not in violation of any term of any mortgage,
indenture, contract, agreement, instrument, judgment, decree, order, statute,
rule or regulation to which the Company is subject and a violation of which
would have a material adverse effect on the condition, financial or otherwise,
operations or prospects of the Company.
2.19 Employees. To the best of the Company's knowledge and belief, no
employee or consultant of the Company is, or is now expected to be, in violation
of any term of any employment contract, patent, disclosure agreement,
non-competition agreement, proprietary information and inventions agreement or
any other contract or agreement or any restrictive covenant or any other common
law obligation to a former employer relating to the right of any such employee
to be employed by the Company because of the nature of the business conducted or
to be conducted by the Company or to the use of trade secrets or proprietary
information of others, and the employment of the Company's employees does not
subject the Company or any
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Purchaser to any liability to a third party. There is neither pending nor, to
the best of the Company's knowledge and belief, threatened, any actions, suits,
proceedings or claims, or, to its knowledge, any basis therefor or threat
thereof with respect to any contract, agreement, covenant or obligation referred
to in the preceding sentence. The Company does not have any collective
bargaining agreement covering any of its employees.
To the best of the Company's knowledge and belief, after due inquiry,
neither Xxxxx X. Xxx nor Xxxxxxx X. Xxxxx, nor any Ph.D.-qualified employee nor
any officer of the Company has any present intention of terminating his
employment or consulting arrangement with the Company, and the Company has no
present intention of terminating such employment or consulting arrangement.
2.20 Employee Benefit Plan Obligations. Except as otherwise disclosed
in the Schedule of Exceptions, the Company does not have any collective
bargaining, labor, profit sharing, pension, retirement, stock option, incentive,
benefit or other similar contract, plan or arrangement. The Company does not
sponsor, nor is it obligated to contribute to, any employee benefit plan (as
such term is defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")).
2.21 Environmental Matters; Hazardous Waste. Except as otherwise
disclosed in the Schedule of Exceptions, there have been no past and there are
no existing violations of Federal, state or local laws or regulations relating
to environmental protection or to the storage or disposal of hazardous waste
(including, but not limited to, asbestos, polychlorinated biphenyls and
petroleum products) relating to the Company or any of its businesses or
operations or assets. No inspection or investigation by the Environmental
Protection Agency or OSHA, or any other federal, state or local agency, has
resulted in a letter demanding cleanup of hazardous substances or waste,
citation, complaint or notice of violation, pursuant to any law, rule,
regulation, ordinance, judgment, decree, order, injunction or decision of any
court or governmental authority in regard to the Company or any of its
businesses or operations or any of its assets and no such citation, complaint,
notice or demand letter is pending or, to the best of the Company's knowledge
and belief, threatened.
To the best of the Company's knowledge and belief, there is no condition or
state of affairs existing on or about any real property owned, leased, operated
or used by the Company or any real property previously owned, leased, operated
or used by the Company (but only to the extent that such condition or state of
affairs existed on the date the Company ceased to own, lease, operate or use
such real property or was attributable to the Company's ownership, leasing,
operation or use of such real property) that would now or in the immediate
future require a closure under the provisions of the Resource, Conservation and
Recovery Act, or remedial or other action under the provisions of the Resource,
Conservation and Recovery Act or the Comprehensive Environmental Response,
Compensation and Liability Act, or the regulations promulgated under such acts,
or that would constitute a nuisance or violation of any environmental
legislation or regulation under the law of the state in which such property is
located.
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2.22 Ability to Comply; Burdensome Restrictions. The Company has the
ability and is presently in a position, legally and otherwise, to comply with
the terms of and perform all its obligations under this Agreement; and the
Company has no present knowledge of or any present reason to believe that the
Company will not have such ability and be in such a position for so long as any
shares of Series C Preferred Stock are outstanding.
The Company is neither presently obligated under any contract or agreement
nor subject to any corporate restriction which (i) materially and adversely
affects, or may, in the reasonable opinion of the Company, be expected to
materially and adversely affect, its business, properties, assets or condition
(financial or otherwise) or (ii) will legally or contractually restrict or
impair the ability of the Company to pay any dividends on or make other
distributions with respect to the Series C Preferred Shares pursuant to the
provisions of the Certificate of Incorporation.
2.23 Material Relationships. Except for investments held by entities
affiliated with Xxxxx Xxxxxxxx or Xxxxx Xxxxxxxx, to the best of the Company's
knowledge and belief, none of the officers, directors or key persons of the
Company, or their respective spouses or relatives, owns directly or indirectly,
individually or collectively, a material interest in any entity which is a
competitor, customer or supplier of (or has any existing contractual
relationship with) the Company. For purposes of this Section 2.23, there may be
disregarded any purely passive economic interest which arises solely from the
ownership of less than a 2% equity interest in any such entity.
2.24 Registration Rights. Except as provided in the Original Series C
Agreement, the Company is not under any obligation to register any of its
currently outstanding securities or any of its securities which may hereafter be
issued.
2.25 Brokers' and Finders' Fees. The Company has retained no broker
or finder in connection with the transactions contemplated by this Agreement and
has no liability for any commission or compensation in the nature of an agent's
fee to any broker or finder or any other person. The Company will indemnify the
Purchaser for any such commission or compensation for which the Purchaser may be
held liable.
2.26 Untrue Statements and Omissions. This Section 2 does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
Except as otherwise modified herein, the transactions contemplated between
the parties hereto shall be governed in their entirety by the terms and
conditions of the Original Series C Agreement. By signing below, the Purchaser
(i) represents and warrants that the representations and warranties made in
Section 3 of the Original Series C Agreement remain true, complete and correct
with respect to the Purchaser as of the date hereof, and (ii) acknowledges that
the Company is relying on the same in executing this Agreement and consummating
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of the
day and year first above written.
SCRIPTGEN PHARMACEUTICALS, INC.
By: /s/
--------------------------------
Name:
Title:
LOMBARD ODIER & CIE
By: /s/
--------------------------------
Name:
Title:
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