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EXHIBIT 10.64
AMENDMENT NO. ONE
TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NUMBER ONE TO STOCK PURCHASE AGREEMENT ("AMENDMENT") is
entered into effective December 28, 1998, between Genentech, Inc. ("GENENTECH")
and Connetics Corporation ("CONNETICS"). Terms not otherwise defined in this
Amendment shall have the meanings as defined in the Stock Agreement (except to
the extent modified by this Amendment).
B A C K G R O U N D
A. The parties have previously entered into a Stock Purchase Agreement
effective May 5, 1998 (the "STOCK AGREEMENT"), together with a License
Agreement of even date (the "LICENSE AGREEMENT").
B. Pursuant to Section 8.1 of the License Agreement, and the terms of the
Stock Agreement, Connetics agreed to issue additional stock to
Genentech if certain conditions were not met by December 28, 1998, and
the parties anticipate that those conditions will not be met by that
date.
C. The parties desire to amend the Stock Agreement effective as of the
date first written above, on the terms [set] forth in this Amendment,
and simultaneously with a corresponding Amendment Number One to the
License Agreement.
NOW THEREFORE, the parties agree as follows:
A G R E E M E N T
1. Section 2.1(b) of the Stock Agreement is hereby amended to read in its
entirety as follows:
(b) Potential Second Issuance. If on the Notification Date or (if
later) the Second Closing Date (each as defined below), the aggregate
market value of the Original Issuance Shares (based on the Second
Issuance Price, as defined below) is less than $4,000,000, then
Connetics shall issue to Genentech on the Second Closing Date that
number of additional shares of its Common Stock (the "SECOND ISSUANCE
SHARES") equal to the lesser of: (i) the number of shares necessary to
increase the aggregate market value of the Original Issuance Shares
(based on the Second Issuance Price) and the Second Issuance Shares
(based on the Second Issuance Price) to $4,000,000; or (ii) the number
of shares (rounded to the nearest whole number) necessary to increase
the aggregate number of shares of Connetics Common Stock held by
Genentech (exclusive of any shares that Genentech has purchased from
parties other than Connetics) to 9.9% of Connetics' total outstanding
shares of Common Stock as of the close of business on the Notification
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Date or (if later) the Second Closing Date. The "SECOND ISSUANCE PRICE"
for purposes of this Agreement is based upon the average daily closing
price per share for Connetics' Common Stock as reported on the Nasdaq
Stock Market for the ten (10) trading days immediately preceding (but
not including) either the Notification Date or the Second Closing Date
(as defined below) as the case may be. Such issuance shall be referred
to hereinafter as the "SECOND ISSUANCE." Connetics shall have the
right, at any time after the date of this Amendment and before December
12, 1999, to trigger the Second Issuance by notifying Genentech in
writing of its intent to do so, and the date that Connetics notifies
Genentech is referred to as the "NOTIFICATION DATE."
2. Sections 2.2(b) and (c) of the Stock Agreement are hereby amended to
read in their entirety as follows:
(b) Second Closing Date. The closing of the issuance of the
Second Issuance Shares (the "SECOND CLOSING"), if any, shall be held,
following the satisfaction or waiver of the conditions set forth in
Sections 6.3 and 6.4 of this Agreement, at 10:00 a.m. Pacific Standard
time (i) three (3) days after the Notification Date, or (ii) on
December 15, 1999, or (iii) at such other time or date as Connetics and
Genentech may agree orally or in writing (in any case, referred to as
the "SECOND CLOSING DATE").
(c) Location. The Second Closing, if any, shall be held at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or at such other place as Connetics and Genentech may
agree orally or in writing.
3. Section 3.1 of the Stock Agreement is hereby amended to read in its
entirety as follows:
3.1 Form S-3 Registration. Connetics will use its best efforts
to prepare and file within fifteen (15) days after the date of this
Amendment a registration statement on Form S-3 that contemplates a
distribution of the portion of Registrable Securities comprised of the
Original Issuance Shares, on a delayed or continuous basis pursuant to
Rule 415 under the 1933 Act and any related qualification or compliance
with respect to all of the Registrable Securities. No later than the
Second Closing Date, unless otherwise requested by Genentech, Connetics
will use its best efforts to prepare, file, and have declared effective
a registration statement on Form S-3 that contemplates a distribution
of the portion of Registrable Securities comprised of the Second
Issuance Shares, on a delayed or continuous basis pursuant to Rule 415
under the 1933 Act and any related qualification or compliance with
respect to all of the Registrable Securities; provided, however, that
Connetics shall not be obligated to effect any such registration,
qualification or compliance if Connetics furnishes to Genentech a
certificate signed by the President of Connetics stating that in the
good faith judgment of Connetics' Board of Directors, it would be
seriously detrimental to Connetics and its stockholders for such Form
S-3 Registration to be effected at such time, in which event Connetics
shall have the right to defer the filing or effectiveness of the Form
S-3 registrations [sic] statement for a period of time deemed necessary
by Connetics, but in any event not to exceed 60 days. If Form S-3 is
not available for such offering by reason of any act or omission of
Connetics, Connetics shall prepare and file by the Second Closing Date
a registration statement on Form S-1 for the same purposes and subject
to the same conditions set forth in this paragraph.
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4. The remainder of the Stock Agreement will continue in full force and
effect as though fully set forth in this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment Number One to Stock
Agreement as of the date first written above.
Genentech, Inc. Connetics Corporation
By: /s/ ▇.▇. ▇▇▇▇▇ km By: /s/ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Operating Officer President and Chief Executive
Officer
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