EXHIBIT 10.4
JENNER TECHNOLOGIES
NOTE PURCHASE AGREEMENT
This Agreement is made as of May 6, 1996 between Jenner Technologies, a
California corporation (the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Investor").
1. The Note.
1.1 The Notes. The Investor agrees, on the terms and
conditions specified in this Agreement, to lend to the Company $3,000,0000 at
the Closing (as defined below). The Investor's loan shall be evidenced by a
secured promissory note ("Note") dated as of the date of the Closing in the form
of Exhibit A. The Note shall not be convertible into any shares of the Company's
capital stock.
1.2 Place and Date of Closing. The closing of the purchase and
sale of the Note (the "Closing") will be held at the offices of Wilson, Sonsini,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ at 10:00 a.m. on
May 6, 1996, or at such other time and place as the Company and the Investor
shall mutually agree (the "Closing Date").
1.3 Delivery. At the Closing, the Company shall deliver the
Note to the Investor, and the Investor shall deliver to the Company the
principal amount thereof by check or wire transfer.
2. Representations and Warranties of the Company.
2.1 Organization and Standing. The Company is a corporation
duly organized and validly existing under, and by virtue of, the laws of
California and is in good standing under such laws. The Company has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as presently conducted. The Company is qualified to do
business as a foreign corporation in each jurisdiction in which the failure to
be so qualified would have materially adverse impact on the business or
financial condition of the Company taken as a whole.
2.2 Corporate Power and Authorization. The Company has all
requisite legal and corporate power to execute and deliver this Agreement and
the Note, and to sell and issue the Note to the Investor pursuant to this
Agreement. All corporate action on the part of the Company, its directors and
shareholders necessary for the sale and issuance of the Note has been taken or
will be taken prior to the Closing. Each of the Agreement and the Note, when
executed and delivered by the Company, shall constitute a valid, binding and
enforceable obligation of the Company, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
relating to or affecting the enforcement of creditor's rights and to the
availability of the remedy of specific performance. The execution and delivery
of this Agreement and the Note will not violate, conflict with or result in a
material breach of (i) the Company's Articles of Incorporation, as amended
through the Closing Date; (ii) the Company's Bylaws; (iii) any judgment, order
or decree of any court or arbitrator to which the Company is a party; or (iv)
any contract, undertaking, indenture or other agreement or instrument by which
the Company is now bound or to which it is now a party. The Company is not
subject to any judgment, order or decree of any court or arbitrator. Except for
notices required or permitted to be filed with certain state and federal
securities commissions, which
notices the Company agrees to file on a timely basis, the execution and delivery
of the Note by the Company to the Investor will not require any governmental
consent or approval.
3. Representations, Warranties of the Investors and Restrictions
on Transfer Imposed by the Securities Act of 1933.
3.1 Representations and Warranties of the Investor. The
Investor represents and warrants to the Company as follows:
(a) All action on the part of the Investor for the
authorization, execution, delivery and performance by the Investor of this
Agreement has been taken, and this Agreement constitutes a valid and binding
obligation of the Investor, enforceable in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditor's rights and the
availability of the remedy of specific performance.
(b) The Investor is experienced in evaluating and
investing in new companies and companies with limited operating histories such
as the Company.
(c) The Investor is acquiring the Note for investment for
its own account and not with a view to, or for resale in connection with, any
distribution. The Investor understands that the Note has not been registered
under the Securities Act of 1933, as amended (the "Act") by reason of a specific
exemption from the registration provisions of the Act which depends upon, among
other things, the bona fide nature of the investment intent as expressed herein.
(d) The Investor acknowledges that the Note must be held
indefinitely unless subsequently registered under the Act or an exemption from
such registration is available. The Investor is aware of the provisions of Rule
144 promulgated under the Act which permits limited resale of securities
purchased in a private placement subject to the satisfaction of certain
conditions, including, in case the Investor has held the securities for less
than three years or is an affiliate of the Company, among other things: the
availability of certain current public information about the Company, the resale
occurring not less than two years after a party has purchased and paid for the
securities to be sold, the sale being through a "broker's transaction" or in
transactions directly with a "market maker," and the number of shares being sold
during any three-month period not exceeding specified limitations.
(e) The Investor understands that no public market now
exists for any of the securities issued by the Company and that it is unlikely
that a public market will ever exist for the Note.
(f) The Investor is a sophisticated investor with such
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of a prospective investment in the Note and
who is capable of bearing the economic risks of such
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investment. The Investor is an accredited investor within the meaning of
Regulation D promulgated by the Securities and Exchange Commission pursuant to
the Act.
(g) In taking any action or performing any role relative
to arranging the proposed investment, the Investor has acted solely in the
Investor's own interest. Neither the Investor nor any of his agents or employees
has acted as an agent of the Company, or as an issuer, underwriter, broker,
dealer or investment advisor relative to the Note.
3.2 Legends. The instrument representing the Note shall be
endorsed with the following legend (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT
AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
The Company need not record a transfer of the Note unless the
conditions specified in the foregoing legends are satisfied. The Company may
also instruct its transfer agent not to record the transfer of the Note unless
the conditions specified in the foregoing legends are satisfied.
3.3 Removal of Legends and Transfer Restrictions. The legend
relating to the Act endorsed on a certificate pursuant to paragraph 3.2 of this
Agreement and the stop transfer instructions with respect thereto shall be
removed and the Company shall issue a certificate without such legend to the
holder thereof if the securities represented by such certificate are registered
under the Act and a prospectus meeting the requirements of Section 10 of the Act
is available or if such holder provides to the Company an opinion of counsel for
such holder reasonably satisfactory to the Company, or a no-action letter or
interpretive opinion of the staff of the Securities and Exchange Commission (the
"Commission") to the effect that a public sale, transfer or assignment of the
Note may be made without registration and without compliance with any
restriction such as Rule 144.
4. Miscellaneous.
4.1 General. This Agreement shall be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California. This Agreement and all attached exhibits represent the entire
agreement between the Company and the Investor with respect to the subject
matter herein and therein and supersedes any and all prior oral and written
discussions and agreements. This Agreement and the Note may only be waived,
modified or amended in writing signed by both the Company and the Investor.
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4.2 Notices. Any notice, demand or request required or permitted under
this Agreement or the Note shall be given in writing and shall be deemed given
upon (i) personal delivery to the party to be notified, (ii) transmittal by
facsimile, telecopy or electronic mail, or (iii) deposit with an overnight
delivery service or with the United States Post Office, by first-class,
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address of such party set forth at the end of this Agreement, or
such other address as a party may request by notifying the other in writing.
4.3 Tax Matters. The Investor understands that the Investor (and not
the Company) shall be responsible for the Investor's own federal, state, local
or foreign tax liability and any of the Investor's other tax consequences that
may arise as a result of the transactions contemplated by this Agreement. The
Investor shall rely solely on the determinations of the Investor's own tax
advisors or his own determinations, and not on any statements or representations
by the Company or any of its agents, with regard to all such tax matters.
4.4 California 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
THE 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.
4.5 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
JENNER TECHNOLOGIES
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:CEO
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 10 Monte Sol
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
JENNER TECHNOLOGIES
SECURED PROMISSORY NOTE
$3,000,000.00 Danville, California
May 6, 1996
FOR VALUE RECEIVED, JENNER TECHNOLOGIES, a California corporation (the
"Company") hereby absolutely and unconditionally promises to pay to ▇▇▇▇▇▇
▇▇▇▇▇▇ (the "Lender"), or order, the principal amount of Three Million and
No/100 Dollars ($3,000,000.00), together with simple interest on such principal
amount at the rate of 10% per annum.
This Note is issued pursuant to the terms of a Note Purchase Agreement
(the "Note Purchase Agreement") dated the date hereof between the Company and
the Lender.
1. Repayments and Prepayments.
(a) All principal and accrued interest under this Note shall
be due and payable on May 6, 1999.
(b) The Company may prepay this Note at any time, either in
whole or in part, without premium or penalty and without the prior consent of
the Lender.
(c) All payments received under this Note shall be applied
first to accrued interest on the date of payment and then to the outstanding
principal balance of this Note.
2. Security. The full and timely payment of the principal of and
interest on this Note is secured by the pledge by the Company to the Lender of
all shares of capital stock and rights to acquire capital stock of TherAtid,
Incorporated, a California corporation, now held or hereinafter acquired by the
Company, pursuant to the terms of the Stock Pledge Agreement dated as of the
date hereof (the "Stock Pledge Agreement") between the Company, as pledgor, and
the Lender, as pledgee. Reference is made to the Stock Pledge Agreement for a
more detailed description of the collateral which secures this Note and the
rights of the Lender in respect of such collateral.
3. Events of Default; Acceleration.
(a) The principal amount of this Note is subject to prepayment
in whole or in part upon the occurrence and during the continuance of any of the
following events (each, an "Event of Default"): (i) failure to pay any amount
owing by the Company hereunder when due and payable, or (ii) the initiation of
any bankruptcy, insolvency, moratorium, receivership or reorganization by or
against the Company, or a general assignment of assets by the Company for the
benefit of creditors. Upon the occurrence of any Event of Default, the entire
unpaid principal balance of this Note and all of the unpaid interest accrued
thereon shall be immediately due and payable.
(b) No remedy herein conferred upon the Lender is intended to
be exclusive of any other remedy and each and every remedy shall be cumulative
and in addition to every other remedy hereunder now or hereafter existing at law
or in equity or otherwise.
4. Notices.
(a) All notices or other communications required or permitted
to be given hereunder shall be delivered as provided in the Note Purchase
Agreement.
5. Miscellaneous.
(a) This Note may only be waived, modified or amended in
writing signed by both the Company and the Investor.
(b) No failure or delay by the Lender to exercise any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other right, power or
privilege. The provisions of this Note are severable and if any one provision
hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such invalidity or unenforceability shall affect only such
provision in such jurisdiction. This Note expresses the entire understanding of
the parties with respect to the transactions contemplated hereby. The Company
and every endorser and guarantor of this Note regardless of the time, order or
place of signing hereby waives presentment, demand, protest and notice of every
kind, and assents to any extension or postponement of the time for payment or
any other indulgence, to any substitution, exchange or release of collateral,
and to the addition or release of any other party or person primarily or
secondarily liable.
(c) If Lender retains an attorney for collection of this Note,
or if any suit or proceeding is brought for the recovery of all, or any part of,
or for protection of the indebtedness respected by this Note Agreement, then the
Company agrees to pay on demand all costs and expenses of the suit or
proceeding, or any appeal thereof, incurred by the Lender, including without
limitation, reasonable attorneys' fees.
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(d) This Note shall for all purposes be governed by, and
construed in accordance with the laws of the State of California (without
reference to conflict of laws).
(e) This Note shall be binding upon the Company's successors
and assigns, and shall inure to the benefit of the Lender's successors and
assigns.
IN WITNESS WHEREOF, the Company has caused this Note to be executed by
its duly authorized officer to take effect as of the date first hereinabove
written.
JENNER TECHNOLOGIES
By:
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Title:
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