SUNESIS PHARMACEUTICALS, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this Agreement)
is entered into by and between Sunesis Pharmaceuticals, Inc., a Delaware
corporation (the Company) and Bristol-Myers Squibb Company, a Delaware
corporation (BMS), as of April 27, 2005.
WHEREAS, the Company and BMS have entered into that
certain License Agreement effective as of April 27, 2005 (the License
Agreement), pursuant to which the Company agreed to issue to BMS an
aggregate of 1,666,667 shares (the Shares) of the Companys Series C-2
Preferred Stock, par value $0.0001 per share (the Series C-2
Stock), in consideration of the grant by BMS to the Company of an
exclusive worldwide license to BMS-387032 and other CDK inhibitor
compounds covered under BMS patents.
NOW, THEREFORE, in consideration of the mutual
covenants and obligations set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and BMS agree as follows:
1. Purchase and
Sale of Preferred Stock.
1.1 The Company
has adopted and filed with the Secretary of State of the State of Delaware the
Eighth Amended and Restated Certificate of Incorporation in the form attached
hereto as Exhibit A (the Restated Certificate), and the Series C-2
Stock has the rights, preferences and privileges described in the Restated
1.2 The Company
has, or will have before the Closing, authorized the sale and issuance of the Shares
to BMS. Upon the terms and subject to
the conditions set forth in this Agreement, BMS agrees to purchase at the
Closing, and the Company agrees to sell and issue to BMS at the Closing the
Shares registered in the name of BMS at a purchase price of $4.80 per Share. The execution of the License Agreement, and
the granting of the exclusive License thereunder, shall constitute full payment
of the purchase price by BMS.
2.1 The purchase
and sale of the Shares shall take place at the offices of Latham &
Watkins LLP, 135 Commonwealth Drive, Menlo Park, California, at 10:00 a.m.,
on the date hereof, or at such other time and place as the parties shall agree
upon (which time and place are designated as the Closing).
2.2 At the Closing
of the sale of the Shares to BMS, the Company will deliver to BMS a certificate
registered in the name of BMS for the Shares in exchange for the execution of
the License Agreement, and the granting of the exclusive license thereunder.
3. The Companys
Representations and Warranties.
Except as set forth in the Schedule of Exceptions attached hereto
as Exhibit B, the Company represents and warrants to BMS as
and Standing; Restated Certificate and Bylaws. The Company is a corporation duly organized
and validly existing under, and by virtue of, the laws of the State of Delaware
and is in good standing under such laws.
The Company has requisite corporate power and authority to own, lease or
otherwise hold and to operate its properties and assets, and to carry on its
business as currently conducted and as proposed to be conducted. The Company is qualified to do business as a
foreign corporation in all jurisdictions in which the failure to be so
qualified would have a material adverse affect on the Companys business,
financial condition or results of operations.
Power. The Company will
have at the Closing all requisite legal and corporate power and authority to
execute and deliver this Agreement and the Amendment to the Eighth Amended and
Restated Investor Rights Agreement set forth as Exhibit C hereto
(as amended, the Investor Rights Agreement), to sell and issue the
Shares hereunder, to issue the Common Stock issuable upon conversion of the
Shares and to carry out and perform its obligations under the terms of the
Investor Rights Agreement.
3.3 Subsidiaries. The Company has no subsidiaries or affiliated
companies and does not otherwise own or control, directly or indirectly, any
equity interest in any corporation, association or business entity.
3.4 Capitalization. As of the Closing and immediately after
giving effect to the sale of any of the Shares pursuant to the terms of this
authorized capital stock of the Company will consist of:
shares of common stock, par value $0.0001 per share (the Common Stock), of which 5,989,999 shares will
be issued and outstanding and 7,349,017 shares will be issuable upon the
exercise of outstanding options and warrants to purchase Common Stock (Option
shares of Preferred Stock, par value $0.0001 per share, consisting of (1) 8,682,000
shares designated as Series A Preferred Stock, of which 8,467,500 shares
will be issued and outstanding and 42,755 shares will be reserved for issuance
upon exercise of outstanding warrants to purchase Series A Preferred Stock
(Series A Warrants), (2) 10,600,000 shares designated as Series B
Preferred Stock, of which 9,690,771 shares will be issued and outstanding and
77,506 shares will be reserved for issuance upon exercise of outstanding
warrants to purchase Series B Preferred Stock (Series B Warrants),
(3) 13,250,000 shares designated as Series C Preferred Stock, of
which 12,500,000 will be issued and outstanding and 489,750 shares reserved for
issuance upon exercise of outstanding warrants to purchase Series C Preferred
Stock (Series C Warrants), (4) 1,250,000 shares designated
as Series C-1 Preferred Stock, all of which will be issued and
outstanding and (5) 4,800,000 shares designated as Series C-2
Stock, 4,583,334 of which will be issued and outstanding.
(b) all issued
and outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been, or, when issued and
paid for in compliance with the provisions of this Agreement, will be issued in
compliance with all federal and state securities laws, and were not, or will not
be, issued in violation of or subject to any preemptive or similar rights; and
(c) except as
otherwise set forth in this Section 3.4 and the rights of first refusal set
forth in the Investor Rights Agreement, the Company will not have outstanding
any stock or other securities convertible into or exchangeable for any shares
of capital stock of the Company, any rights to subscribe for or to purchase or
any options for the purchase of, or any agreements providing for the issuance,
repurchase or redemption (contingent or otherwise) of any capital stock, or any
stock or securities convertible into or exchangeable for any capital stock of
the Company other than the Series A Warrants, Series B Warrants, Series C
Warrants and options and warrants to purchase the Option Stock.
All corporate action on the part of the Company, its officers, directors
and stockholders necessary for the authorization, execution, delivery and
performance of this Agreement and the Investor Rights Agreement by the Company,
the authorization, sale, issuance and delivery of the Shares and the
performance of all of the Companys obligations under this Agreement and the
Investor Rights Agreement has been taken or will be taken prior to the
Closing. This Agreement and the Investor
Rights Agreement, when executed and delivered by the Company, shall constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms. The Shares are duly
authorized and, when issued in compliance with the provisions of this
Agreement, will be validly issued and will be fully paid and
nonassessable. The shares of Common
Stock issuable upon conversion of the Shares in accordance with the Restated
Certificate will be duly authorized, validly issued, fully paid and non-assessable. The Shares of Series C-2 Stock
will have the rights, preferences and privileges described in the Restated
Certificate. The Shares will be free of
any liens or encumbrances other than any liens or encumbrances created by or
imposed upon the holder; provided, however, that the Shares may be subject to
restrictions on transfer under state and/or federal securities laws as set
Agreements and Actions.
The Company is not bound by or subject to (and none of its assets or
properties is bound by or subject to) any written or oral, express or implied,
contract, commitment or arrangement with any labor union, and no labor union
has requested or, to the knowledge of the Company, has sought to represent any of
the employees, representatives or agents of the Company. There is no strike or other labor dispute
involving the Company pending, or to the knowledge of the Company threatened,
that could have a material adverse effect on the assets, properties, financial
condition, operating results, or business of the Company, nor is the Company
aware of any labor organization activity involving its employees. The Company is not aware that any officer or
key employee, or that any group of key employees, intends to terminate their
employment with the Company, nor does the Company have a current intention to
terminate the employment of any of the foregoing. The employment by the Company of each
officer, and each employee of the Company is not party to any employment agreement
with the Company or, to the knowledge of the Company with any other person, and
is terminable at the will of the Company.
(a) Except for
agreements explicitly contemplated hereby, there are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, or any affiliate thereof nor are there agreements or
understandings between any person and/or entities, which affect or relate to
the voting or giving of written consents with respect to any security or by a
director of the Company.
(b) There are no
agreements, understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which the Company is a party or by which
it is bound which may involve (i) obligations (contingent or otherwise)
of, or payments to the Company in excess of, $50,000, or (ii) the license
of any patent, copyright, trade secret or other proprietary right to or from
the Company or (iii) provisions restricting or affecting the development,
manufacture or distribution of the Companys products or services or (iv) indemnification
by the Company with respect to infringements of proprietary rights.
(c) The Company
has not (i) declared or paid any dividends, or authorized or made any
distribution upon or with respect to any class or series of its capital stock, (ii) made
any loans or advances to any person, other than ordinary advances for travel
expenses, or (iii) sold, exchanged or otherwise disposed of any of its
assets or rights, other than the sale of its inventory in the ordinary course
of business or (iv) incurred any indebtedness for money borrowed or
incurred any other liabilities individually in excess of $50,000 or collectively
in excess of $150,000.
(d) For the
purposes of subsections (b) and (c) above, all indebtedness,
liabilities, agreements, understandings, instruments, contracts and proposed
transactions involving the same person or entity (including persons or entities
the Company has reason to believe are affiliated therewith) shall be aggregated
for the purpose of meeting the individual minimum dollar amounts of such
(e) The Company
is not a party to and is not bound by any contract, agreement or instrument, or
subject to any restriction under its Restated Certificate or Bylaws, that
adversely affects its business as now conducted or as proposed to be conducted,
its properties or its financial condition.
(f) The Company
has not engaged in the past three months in any discussion (i) with any
representative of any corporation or corporations regarding the merger of the
Company with or into any such corporation or corporations, (ii) with any
representative of any corporation, partnership, association or other business
entity or any individual regarding the sale, conveyance or disposition of all
or substantially all of the assets of the Company or a transaction or series of
related transactions in which more than fifty percent of the voting power of
the Company would be disposed of, or (iii) regarding any other form of
liquidation, dissolution or winding up of the Company.
3.8 Title. The Company has good and marketable title to
its properties and assets and has good title to all its leasehold interests, in
each case subject to no mortgage, pledge, lien, lease, encumbrance or charge,
other than (i) the lien of current taxes not yet due and payable
and (ii) liens and encumbrances
which do not in any case materially detract from the value of the property
subject thereto or materially impair the operations of the Company, and which
have not arisen otherwise than in the ordinary course of business.
with Other Instruments.
The Company is not in violation or default of any term of its Restated
Certificate or Bylaws, or of any term or provision of any material mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment, order or
decree, and is not in violation of any statute, rule or regulation
applicable to the Company where such violation would have a material adverse
effect on the assets, properties, financial condition, operating results or
business of the Company. The execution,
delivery and performance of and compliance with the Agreement, and the issuance
of the Shares, has not resulted and will not result in any material violation
of, or conflict with, or constitute with or without the passage of time and the
giving of notice a material violation or default under, the Companys Restated
Certificate or Bylaws or any of its agreements having a value in excess of
$50,000, nor result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Company. To its knowledge, the Company has avoided
every condition, and has not performed any act, the occurrence of which would
result in the Companys loss of any material right granted under any material
license, distribution agreement or other agreement.
3.10 Litigation. There are no actions, suits, proceedings or
investigations pending against the Company or its properties before any court
or governmental agency (nor, to the Companys knowledge, is there any
reasonable basis therefor or threat thereof).
The foregoing includes, without limitation, actions pending or
threatened (or any reasonable basis therefor known to the Company) involving
the prior employment of any of the Companys employees or consultants, their
use in connection with the Companys business of any information or techniques
allegedly proprietary to any of their former employers or their obligations
under any agreement with their former employers. The Company is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality.
There is no action, suit, proceeding or investigation by the Company
currently pending or which the Company intends to initiate.
3.11 Employees. To the Companys knowledge, no employee or
consultant of the Company is in violation of any term of any employment
contract, patent disclosure agreement or any other contract or agreement
relating to the relationship of such employee with the Company or any other
party because of the nature of the business conducted or to be conducted by the
Rights; Voting Rights.
Except as set forth in the Investor Rights Agreement, the Company is not
under any contractual obligation to register any of its currently outstanding
securities or any of its securities that may hereafter be issued. To the Companys knowledge, no stockholders
of the Company have entered into any agreement with respect to the voting of
Consent, etc. No consent,
approval or authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required in connection
with the valid execution and delivery of this Agreement, or the offer, sale or
issuance of the Shares, or the consummation of any other transaction
except qualification (or taking such
action as may be necessary to secure an exemption from qualification, if
available) of the offer and sale of the Shares under the California Corporate
Securities Law of 1968, as amended, and applicable Blue Sky laws, which filings
and qualifications, if required, will be accomplished in a timely manner.
3.14 Offering. Subject to the accuracy of BMSs
representations in Section 4 hereof, the offer, sale and issuance of the Shares to be issued in conformity with
the terms of this Agreement and the issuance of the Common Stock to be
issued upon conversion of the Shares constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act of 1933, as
amended (the Securities Act), and in compliance with applicable state
3.15 Brokers or
Finders; Other Offers.
The Company has not incurred, and will not incur, directly or
indirectly, as a result of any action taken by the Company, any liability for
brokerage or finders fees or agents commissions or any similar charges in
connection with this Agreement.
3.16 Patents and
Trademarks. The Company
has sufficient title to and ownership
of or rights to or is in the process of acquiring the rights to all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
information, proprietary rights and processes necessary for its business as now
conducted and, to its knowledge, as proposed to be conducted. A true and complete list of such intellectual
property is set forth on Schedule 3.16 hereto (the Company IP). To the Companys knowledge, the Company IP
does not conflict with or infringe upon the rights of any other person or
entity. The Company has not entered into
any options, licenses, sublicenses or entered into any agreements of any kind
with respect to any of the intellectual property owned by, licensed to or
otherwise controlled by the Company and has not encumbered the intellectual property
of the Company in any way. The Company
has not received any communications alleging that the Company has violated or,
by conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. The Company is not aware that any of its
employees is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere
with the use of such employees best efforts to promote the interests of the
Company or that would conflict with the Companys business as now conducted or
as proposed to be conducted. Neither the
execution nor delivery of this Agreement or the Investor Rights Agreement, nor
the carrying on of the Companys business by the employees of the Company, nor
the conduct of the Companys business as proposed, will, to the Companys
knowledge, conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any contract, covenant or
instrument under which any of such employees are now obligated. The Company does not believe it will be necessary
to utilize any inventions of any of the Companys employees (or people it
currently intends to hire) made prior to their employment by the Company which
are not currently licensed to or owned by the Company.
to Related Parties. There are no obligations of the Company to
officers, directors, stockholders or employees of the Company other than (a) for
payment of salary for services rendered, (b) reimbursement for reasonable
expenses incurred on behalf of the
Company and (c) for other
standard employee benefits made generally available to employees. None of the officers, directors or
stockholders of the Company, or any members of their immediate families, are
indebted to the Company (other than in connection with purchases of the Companys
stock) or have any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has
a business relationship, or any firm or corporation which competes with the
Company, except that officers, directors and/or stockholders of the Company may
own stock in publicly traded companies which may compete with the Company. No officer, director or stockholder, or to
the Companys knowledge any member of their immediate families, is, directly or
indirectly, interested in any material contract with the Company (other than
such contracts as relate to any such persons ownership of capital stock or
other securities of the Company). The
Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
3.18 Disclosure. This Agreement and the Investor Rights
Agreement and all other certificates and documents delivered in connection
herewith, when taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein not misleading in light of the circumstances under
which they were made. The Company has
provided BMS with all the information BMS has requested for deciding whether to
purchase the Shares.
Benefit Plans. The Company
does not have any Employee Benefit Plan
as defined in the Employee Retirement Income Security Act of 1974.
3.20 Taxes. (a) The Company has paid all federal,
state, county, local, foreign and other taxes, including, without limitation,
income taxes, estimated taxes, excise taxes, sales taxes, use taxes, gross
receipts taxes, franchise taxes, employment and payroll related taxes, property
taxes and import duties, whether or not measured in whole or in part by net
income (hereinafter, Taxes or, individually, a Tax) which
have come due and are required to be paid by it through the date hereof, and
all deficiencies or other additions to Tax interest and penalties award by it
in connection with any such Taxes, other than Taxes being disputed by the
Company in good faith for which adequate reserves have been made in accordance
with United States generally accepted accounting principles (GAAP); (b) the
Company has timely filed or caused to be filed all returns for Taxes that it is
required to file on and through the date hereof (including all applicable extensions), and all such Tax
returns are accurate and complete in all material respects, (c) with
respect to all Tax returns of the Company, (i) there is no unassessed Tax
deficiency proposed or, to the knowledge of the Company, threatened against the
Company and (ii) no audit is in progress with respect to any return for
Taxes, no extension of time is in force with respect to any date on which any
return for Taxes was or is to be filed and no waiver or agreement is in force
for the extension of time for the assessment or payment of any Tax; (d) all
provisions for Tax liabilities of the Company with respect to the Financial
Statements (as defined below) have been made in accordance with GAAP
consistently applied, and all liabilities for Taxes of the Company attributable
to periods prior to or ending on the date hereof have been adequately provided
for on the Financial Statements; and (e) there are no liens for Taxes on
the assets of the Company.
Information and Inventions Agreements. Each employee, consultant and officer of the
Company has executed an agreement with the Company regarding
confidentiality and proprietary
information. The Company, after
reasonable investigation, is not aware that any of its employees or consultants
is in violation thereof, and the Company will use its reasonable best efforts
to prevent any such violation. All
consultants to or vendors of the Company with access to confidential
information of the Company are parties to a written agreement under which,
among other things, each such consultant or vendor is obligated to maintain the
confidentiality of confidential information of the Company. The Company is not aware that any of its
consultants or vendors is in violation thereof, and the Company will use its
reasonable best efforts to prevent any such violation.
3.22 Permits. The Company
has all franchises, permits, licenses and any similar authority necessary for
the conduct of its business as now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects, or financial condition of the
Company and believes, after reasonable investigation, that it can obtain,
without undue burden or expense, any similar authority for the conduct of its
business as planned to be conducted. The
Company is not in default in any material respect under any of such franchises,
permits, licenses or other similar authority.
Documents. The Restated
Certificate and Bylaws of the Company are in the form made available to
BMS. The copy of the minute books of the
Company made available to BMS, contains minutes of all meetings of directors
and stockholders and all actions by written consent without a meeting by the
directors and stockholders since the date of incorporation and reflects all
actions by the directors (and any committee of directors) and stockholders with
respect to all transactions referred to in such minutes accurately in all
Property Holding Corporation.
The Company is not a United States real property holding corporation
within the meaning of the Internal Revenue Code Section 897(c)(2) and
any regulations promulgated thereunder.
3.25 Insurance. The Company maintains with financially sound
and reputable insurers, insurance with respect to its properties and business
against such casualties and contingencies, of such types (including, without
limitation, errors and omissions coverage), on such terms and in such amounts
(including deductibles, co-insurance and self-insurance, if adequate reserves
are maintained with respect thereto) as are customary in the case of similarly
situated entities engaged in a similar business.
Statements. The Company
has made available to BMS its audited financial statements (including balance
sheet, income statement and statement of cash flows) for the years ended December 31,
2004, December 31, 2003 and December 31, 2002 (collectively, the Financial
Statements). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated. The Financial Statements fairly present the
financial condition and operating results of the Company as of the dates, and
for the periods, indicated therein.
Except as set forth in the Financial Statements, the Company has no
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31,
2004 and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted
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. The Company is not
and is not controlled by or affiliated with an investment company within the
meaning of the Investment Company Act of 1940, as amended.
and Warranties of BMS.
BMS represents and warrants to the Company as follows:
Agreement and the Investor Rights Agreement each constitute BMSs valid and
legally binding obligation, enforceable in accordance with its terms.
4.2 BMS is
purchasing the Shares for its own account for investment purposes only and not
with a view to, or for resale in connection with, any distribution thereof
for purposes of the Securities Act of 1933, as amended (the Securities Act). BMS understands that the Shares have not been
registered under the Securities Act or any applicable state securities laws by
reason of a specific exemption therefrom that depends upon, among other things,
the bona fide nature of the investment intent as expressed herein.
4.3 BMS has
discussed the Company and its plans, operations and financial condition with the Companys officers and has received
all such information as BMS deems necessary and appropriate to enable it
to evaluate the financial risk inherent in making an investment in the
Shares. BMS has received satisfactory
and complete information concerning the business and financial condition of the
Company in response to BMSs inquiries.
4.4 BMS realizes
that the purchase of the Shares will be a highly speculative investment. BMS is able, without impairing BMSs
financial condition, to hold the Shares for an indefinite period of time and to
suffer a complete loss of BMSs investment.
BMS recognizes that the Company has a limited financial and operating
history and the investment in the Company involves substantial risks. BMS understands all of the risks related to
the purchase of the Shares. By virtue of
BMSs experience in evaluating and investing in private placement transactions
of securities in companies similar to the Company, BMS is capable of evaluating
the merits and risks of BMSs investment in the Company and has the capacity to
protect BMSs own interests.
understands that the Shares must be held indefinitely unless subsequently
registered under the Securities Act or unless an exemption from registration is
otherwise available. Moreover, BMS
understands that the Company is under no obligation to register the Shares
except as otherwise provided in the Investor Rights Agreement. BMS is aware of Rule 144 promulgated
under the Securities Act, which permits limited resale of securities purchased
in a private placement subject to the satisfaction of certain conditions. BMS understands that the Shares will be
imprinted with a legend that prohibits the transfer of the Shares unless they
are registered or such registration is not required in the opinion of counsel
reasonably satisfactory to the Company.
represents that it is an accredited investor as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
understands that while management forecasts, if any, were made in good faith,
such forecasts may be inaccurate and operating results could differ
dramatically and materially from the results forecast by management.
to Closing of BMS.
BMSs obligations to purchase the Shares at the Closing are, at the
option of BMS, subject to (i) the execution and delivery of the License
Agreement by the Company, (ii) the execution and delivery by the Company,
BMS and the other parties thereto of the Investor Rights Agreement, (iii) the
satisfaction or waiver by the Company of all covenants, agreements, obligations
and conditions under the License Agreement that are required to be performed or
complied with by it on or before the effectiveness of such agreement, (iv) the
truthfulness of the Companys representations and warranties set forth in Section 3
hereof and (v) the receipt of an opinion from Latham & Watkins
LLP, special counsel to the Company, in substantially the form of Exhibit D.
to Closing of the Company.
The Companys obligations to issue and sell the Shares at the Closing
are, at the option of the Company, subject to (i) the execution and
delivery of the License Agreement by BMS, (ii) the execution and delivery
by the Company, BMS and the other parties thereto of the Investor Rights
Agreement, (iii) the satisfaction or waiver by BMS of all covenants,
agreements, obligations and conditions under the License Agreement that are
required to be performed or complied with by it on or before the effectiveness
of such agreement and (iv) the truthfulness of the BMSs representations
and warranties set forth in Section 4 hereof.
Law. This Agreement and
all acts and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in accordance with
the laws of the State of California, without giving effect to its principles of
conflicts of law or choice of law.
7.2 Survival. The representations and warranties contained
herein shall survive the execution and delivery of this Agreement and the sale
of the Shares.
and Assigns. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties as are permitted by this
Agreement. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
Agreement, the License Agreement and the Investor Rights Agreement embody the
entire understanding and agreement between BMS and the Company regarding the
subject matter hereto and thereto, and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof.
7.5 Counterparts. This Agreement may be executed in any number
of counterparts and signatures and may be delivered by facsimile, each of which
enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
7.6 Expenses. The Company and BMS shall each bear their own
legal and other expenses in connection with the transactions contemplated
etc. All notices and other
communications required or permitted hereunder shall be effective upon receipt
and shall be in writing and may be delivered in person, by telecopy, electronic
mail, overnight delivery service or U.S. mail, addressed (a) if to BMS, at
its address set forth on the signature page of this Agreement, or at such
other address as BMS shall have furnished the Company in writing, or (b) if
to the Company, at the address of its principal office, or at such other
address as the Company shall have furnished to BMS in writing.
Corporate Securities Law.
THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA
AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF
THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE
SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100,
25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED UNLESS THE
SALE IS SO EXEMPT.
7.9 Titles and
Subtitles. The titles of
the paragraphs and subparagraphs of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement.
and Waivers. Any term of
this Agreement may be amended or waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and BMS. Any
amendment or waiver effected in accordance with this Section 7.10 shall be
binding upon BMS and each transferee of the Shares (or the Common Stock
issuable upon conversion thereof), each future holder of all such securities,
and the Company.
7.11 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (a) such provision shall
be excluded from this Agreement, (b) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (c) the balance of
the Agreement shall be enforceable in accordance with its terms.
(Signature Page Follows)
The parties have executed this Stock Purchase
Agreement as of the date first written above.
/s/ Daniel N.
/s/ Tamar D.
Tamar D. Howson
Sr. VP Corporate
and Business Development
341 Oyster Point
345 Park Avenue
Francisco, CA 94080
New York, New
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
Exhibit A - Eighth Amended and Restated Certificate of Incorporation
Exhibit B - Schedule of Exceptions to Representations and
Exhibit C - Form of Amendment to Eighth Amended and Restated
Investor Rights Agreement
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
[See Exhibit 3.1 to this Registration Statement]
REPRESENTATIONS AND WARRANTIES
AMENDMENT TO EIGHTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
[See Exhibit 10.39 to this Registration Statement]
OPINION OF LATHAM & WATKINS LLP
1. The Company is a corporation under the
General Corporation Law of the State of Delaware, with corporate power and
authority to enter into the Documents and perform its obligations
thereunder. Based on certificates from
public officials, we confirm that the Company is validly existing and in good
standing under the laws of the State of Delaware and is qualified to do
business in the State of California.
2. The execution, delivery and performance
of the Documents have been duly authorized by all necessary corporate action of
the Company, and the Documents have been duly executed and delivered by the
3. Each of the Documents is a legally valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
4. The execution, delivery and performance
of the Documents by the Company and the issuance and sale of the Share pursuant
to the Stock Purchase Agreement on the date hereof do not:
(i) violate the Governing Documents; or
(ii) violate the DGCL or any federal statute, rule or
regulation applicable to the Company.
5. The Shares have been duly authorized by
all necessary corporate action of the Company, and, when issued and delivered against
payment therefor pursuant to the Stock Purchase Agreement, will be validly
issued, fully paid and nonassessable.
The shares of Common Stock issuable upon conversion of the Shares (the Conversion
Shares) have been duly and validly reserved and, when issued in compliance
with the provisions of the Governing Documents, will be validly issued, fully
paid and nonassessable. The issuance of
the Shares and the Conversion Shares is not subject to any preemptive rights
set forth in the Governing Documents or, to our knowledge and except as set
forth in the Schedule of Exceptions to the Purchase Agreement or except as
such that have been satisfied or waived, any rights of first refusal, options,
warrants, conversion rights, agreements or other rights for the purchase or
acquisition from the Company of any authorized but unissued shares of capital
stock of the Company.
6. Assuming the truthfulness of the
representations of the Purchaser set forth in the Purchase Agreement, the
Shares, upon issuance and delivery and payment therefor in the manner described
in the Purchase Agreement, will be issued in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended.
For purposes of the foregoing, (a) Documents
means this Agreement, the Investor Rights Agreement and the Amendment to Eighth
Amended and Restated Investor Rights
Agreement and (b) Governing Documents means the
Eighth Amended and Restated Certificate of Incorporation and the Amended Bylaws
of Sunesis. The opinion will be subject
to customary limitations and qualifications.