Exhibit 7(d)
CONTINGENT PURCHASE AGREEMENT
THIS CONTINGENT PURCHASE AGREEMENT is made as of the 4th day of June,
1996, by and between Biotechvest L.P. ("Seller") and Forward III Associates,
L.L.C. ("Buyer").
WHEREAS, Seller and Buyer are the general partners of Forward Ventures
Vanguard Fund, a California general partnership (the "Partnership"), pursuant to
that certain Forward Ventures Vanguard Fund General Partnership Agreement dated
as of June 4, 1996 (the "Partnership Agreement");
WHEREAS, Seller and Buyer intend to cause the Partnership to purchase
securities of Triangle, Inc., a Delaware corporation (the "Company");
WHEREAS, in consideration of Buyer's creating an investment opportunity in
the Company, Seller wishes to sell to Buyer, and Buyer wishes to purchase from
Seller, up 49.99% of Seller's Partnership Percentage in the Partnership; and
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:.
1. Purchase and Sale of Partnership Percentage. Buyer shall purchase from
Seller, and Seller shall sell to Buyer, up to 49.99% of Seller's Partnership
Percentage in the Partnership (the "Purchased Percentage"), subject to
adjustment as set forth hereafter, for an aggregate purchase price equal to
$1,249,750 (the "Purchase Price"). Upon the Exercise Date, the Purchased
Percentage shall be adjusted to equal the quotient (a percentage) obtained by
dividing (x) $1,249,750 by (y) the sum of (A) $25,000 plus (B) the product of
(i) $25,000 times (ii) fifteen percent (15%) (the "Initial Interest Rate") times
(iii) a fraction, the numerator of which is the number of days from the date of
this Agreement to the Exercise Date (as defined below) and the denominator of
which is 365. Subject to Section 2, Buyer and Seller shall perform their
purchase and sale obligations under this Section 1 on or prior to December 31,
1996; provided, however, that the obligations of Buyer hereunder shall terminate
and shall be of no further force and effect if, using commercially reasonable
efforts, Forward III Associates, L.L.C., or its affiliates, shall fail to form a
new venture capital fund on or before December 31, 1996, with minimum aggregate
capital commitments of $5,000,000 (a "Qualifying Fund"). If the Partnership
dissolves or if the assets of the Partnership are otherwise distributed prior to
the exercise of Buyer's purchase right, then Buyer's right to purchase the
Purchase Percentage shall apply to the assets so distributed to Seller with
respect to the Purchased Percentage. All capitalized terms not defined herein
have the meaning assigned to them in the Partnership Agreement.
1.1 Interest Rate Adjustment. The Initial Interest Rate shall be reduced
to ten percent (10%) upon the first closing of a Qualifying Fund. If the Initial
Interest Rate is so reduced, it shall be increased thereafter on November 1,
1996, to twelve and one-half percent (12.5%) unless the Buyer or its affiliates
shall, on or prior to such date, purchase from Seller that portion of the
Purchase Percentage purchasable by $250,000 of the Purchase Price. If the
Initial Interest Rate is so adjusted, the Initial Interest Rate shall be
calculated using a weighted average interest rate based on the number of days
each such applicable interest rate was in effect. The Buyer may purchase the
Purchase Percentage at any time during the period of this Agreement without
penalty.
2. Term. The purchase rights represented by this Agreement are exercisable
by Buyer at any time from, and until the first anniversary, of the date hereof.
The exercise date shall be the date Seller receives written notice from Buyer of
its decision to purchase the Purchased Percentage (the "Exercise Date"). The
transfer of the Purchased Percentage shall be effected by execution of an
amendment to the Partnership Agreement restating the Partnership Percentages and
the Capital
Contributions of the General Partners to reflect the transfer of the Purchased
Percentage from Seller to Buyer. Each General Partner hereby expressly agrees,
notwithstanding any term of the Partnership Agreement, to the transfer of the
Purchased Percentage on the terms hereof.
3. Closing. The purchase and sale of the Purchased Percentage shall take
place at the offices of Forward III Associates, L.L.C., at 10:00 A.M. on the
date that is three (3) business days following Buyer's written notice to Seller
that Buyer is purchasing the Purchased Percentage hereunder, or at such other
time and place as Seller and Buyer shall mutually agree. At the Closing, Seller
and Buyer will execute an amendment to the Partnership Agreement restating the
Partnership Percentages and the Capital Contributions of the General Partners to
reflect the transfer of the Purchased Percentage hereunder, against payment by
Buyer to Seller of the Purchase Price applicable thereto by check or wire
transfer, or any combination thereof.
4. Representations and Warranties of Buyer. This Agreement is made in
reliance upon Buyer's representation, which by executing this Agreement Buyer
hereby makes, that (i) Buyer's interest in the Partnership is to be acquired for
investment, and not with a view to the sale or distribution of any part thereof,
and that Buyer has no present intention of selling, granting participation in,
or otherwise distributing the same, except to its affiliates, (ii) Buyer
understands that its interest in the Partnership has not been registered under
the Securities Act and that any transfer or other disposition of the interest
may not be made without registration under the Securities Act of 1933, as
amended (the "Securities Act"), or pursuant to an applicable exemption
therefrom; and (iii) that Buyer is an accredited investor as that term is
defined in Regulation D promulgated by the Securities and Exchange Commission.
4.1 No Reliance on Seller's Representations.. Except as expressly set
forth herein, Buyer has not relied on representations of Seller in making its
investment decision to purchase the Purchased Percentage and has obtained all
information with respect to the Company from the Company. Buyer acknowledges
that Seller is not acting hereunder on behalf of the Company or otherwise as a
broker, dealer, distributor, underwriter or seller of the Purchased Percentage
or shares of the Company's capital stock, for purposes of federal or state
securities laws.
5. Closing Conditions of Seller. The obligations of Seller hereunder are
subject to the condition that the representations and warranties of Buyer
contained in Section 4 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the Closing.
6. Additional Covenants of Buyer. Buyer agrees not to make any disposition
of its rights or obligations under this Agreement other than to its affiliates
without the prior written consent of Seller, which consent shall not be
unreasonably withheld. Buyer agrees not to make any disposition of its rights or
obligations under this Agreement or of the Securities unless and until the
transferee has agreed in writing for the benefit of Seller to be bound by this
Agreement.
7. Indemnification. Buyer agrees to hold Seller harmless against and to
indemnify, out of the assets of Buyer only, Seller (the 'Indemnified Person") to
the fullest extent permitted by law and to save and hold it harmless from and in
respect of all claims, actions, and demands, fees or expenses (including
reasonable attorneys' fees) and any losses or damages in connection with or
resulting from any claim, action, or demand against the Indemnified Person,
including amounts paid in settlement or compromise (if recommended by attorneys
for Buyer) of any such claim, action or demand, with respect to the Purchased
Percentage only, asserting that the execution of this Agreement, or the offer or
sale or purchase of the Purchased Percentage hereunder, violate federal or state
securities laws.
8. Miscellaneous.
8.1 Survival of Warranties. The warranties, representations and covenants
of Buyer contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing.
8.2 Successors and Assigns. Except as otherwise provided herein, 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 (including transferees
of any Securities). 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.
8.3 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.6 Notices. Unless other-wise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
8.7 Amendments and Waivers. Any term of this Agreement may be 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 parties hereto. Any 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 (including
securities into which such securities are convertible), each future holder of
all such securities, and Seller.
8.8 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.9 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BUYER:
FORWARD III ASSOCIATES, L.L.C.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Member
Address: 00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
SELLER:
BIOTECHVEST L.P.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Vice President
Biotechvest II, Inc., General Partner
Address: 000 X. Xxxxxx Xxxxx
Xxxxx 0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
