EXHIBIT 10.29
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into as
of July 17, 2001 (the "Effective Date") by and between EXELIXIS, INC., a
Delaware corporation having its principal place of business at 000 Xxxxxx Xxx,
X.X. Xxx 000, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (including, its
subsidiaries, the "Company"), and XXXXXXX-XXXXX SQUIBB COMPANY, a Delaware
corporation having its principal place of business at Xxxxx 000 xxx Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxx, XX 00000 ("Purchaser"). The Company and Purchaser are
sometimes referred to herein individually as a "Party" and collectively as the
"Parties."
RECITALS
WHEREAS, the Company and Purchaser have entered into an arrangement to
collaborate in certain business and technology matters pursuant to which they
are parties to a Cancer Collaboration Agreement and a License Agreement, each
dated of even date herewith (such Cancer Collaboration Agreement and such
License Agreement, together with all ancillary documents thereto and hereto, are
hereinafter collectively referred to as the "Transaction Documents") and desire
to further this relationship through the purchase of an equity investment in the
Company by Purchaser; and
WHEREAS, Purchaser and the Company have each determined that it is in the
best interests of their respective stockholders for Purchaser to purchase from
the Company newly issued shares of common stock, par value $.001 per share, of
the Company (the "Common Stock"), at a 100% premium to market with an aggregate
purchase price of approximately Twenty Million Dollars ($20,000,000) upon the
Closing (as defined in Section 2.1(a)).
AGREEMENT
NOW THEREFORE, the parties agree as follows:
1. AUTHORIZATION AND SALE OF SHARES
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1.1 AUTHORIZATION. The Company has authorized the issuance and sale of the
Shares pursuant to the terms and conditions hereof.
1.2 ISSUANCE AND SALE. Subject to the terms and conditions hereof, on the
Closing Date, the Company will issue and sell to Purchaser, and Purchaser will
purchase from the Company the number of shares of Common Stock (rounded down to
the nearest whole number) (the "Shares") equal to the number derived by dividing
(a) Twenty Million Dollars ($20,000,000) by (b) (i) the average closing price
for the Common Stock for the fifteen (15) trading day period commencing on the
twentieth (20th) trading day prior to and including the Closing Date (as defined
in Section 2.1(a)), as reported on the Nasdaq Stock Market (the "ACP"),
multiplied by (ii) two (such purchase being hereinafter referred to as the
"Purchase"). The purchase price per Share shall be the ACP multiplied by two.
$20,000,000
Thus, Shares = ----------------
(ACP * 2)
For example, if the ACP during the applicable period was $17.00, the number of
shares purchased pursuant to this Agreement would be:
$20,000,000
Sample shares = ---------------
($17 * 2)
or, 588,235.29, which rounds down to 588,235 Shares at an aggregate purchase
price of $19,999,990.00 (i.e., 588,235 x $34).
2. CLOSINGS; DELIVERY
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2.1 CLOSING.
(A) CLOSING DATE. The closing of the purchase and sale of the Shares
(the "Closing") shall be held at 10:00 a.m. California time on the Effective
Date (the "Closing Date"), or at such other time or date as the Company and
Purchaser may agree in writing.
(B) LOCATION. The Closing shall be held at the Company's principal
offices, 000 Xxxxxx Xxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx or at such other place
as the Company and Purchaser may agree in writing.
2.2 DELIVERY. Subject to the terms and conditions of this Agreement, at the
Closing the Company will deliver to Purchaser a copy of correspondence from the
Company to the Company's stock transfer agent dated no later than the Closing
Date, which directs the Company's transfer agent to prepare and deliver a stock
certificate representing the Shares as soon as possible, and shall take such
further actions as are necessary to cause the stock certificate representing the
Shares to be delivered to Purchaser as soon as practicable following the
Closing. The purchase price as determined pursuant to Section 1.2 hereof shall
be paid by wire transfer in immediately available funds to the following
account:
Xxxxxxx Xxxxxx Xxxx, Xxxxx Xxxxx, XX
ABA Routing: 000-000-000
Acct Number: 33001-60643
FBO: Exelixis, Inc.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company hereby represents and warrants to Purchaser as follows:
3.1 CORPORATE ORGANIZATION AND AUTHORITY. The Company:
(A) is a corporation duly organized, validly existing, authorized to
exercise all its corporate powers, rights and privileges, and in good standing
in the State of Delaware;
(B) has the corporate power and authority to own, lease and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted; and
(C) is qualified as a foreign corporation and in good standing in the
State of California and in all other jurisdictions in which such qualification
is required; provided, however, that the Company need not be qualified in a
jurisdiction in which its failure to qualify would not have a Material Adverse
Effect. When used in connection with the Company, the term "Material Adverse
Effect" means any change or event that is or is reasonably likely to be
materially adverse to the financial condition or operations of the Company.
3.2 AUTHORIZATION. All necessary corporate action on the part of the
Company for the execution, delivery and performance of all obligations under
this Agreement, for the consummation of the transactions contemplated hereby and
for the issuance and delivery of the Shares has been taken, and this Agreement
constitutes a valid and legally binding obligation of the Company enforceable in
accordance with its terms.
3.3 VALIDITY OF SHARES. The Shares, when issued, sold and delivered in
accordance with the terms and for the consideration set forth in this Agreement,
shall be duly and validly issued and outstanding, fully paid, nonassessable, and
free and clear of all pledges, liens, encumbrances and restrictions other than
the restrictions on transfer set forth in Section 4.3.
3.4 NO CONFLICTS; REQUIRED FILINGS.
(A) The business and operations of the Company have been and are being
conducted in accordance with all applicable laws, rules and regulations of all
governmental authorities, except for such violations of applicable laws, rules
and regulations which would not, individually or in the aggregate, have a
Material Adverse Effect. The Company is not in violation of its Certificate of
Incorporation or Bylaws nor in violation of, or in default under, any lien,
indenture, mortgage, lease, agreement, instrument, commitment or arrangement,
except for such defaults which would not, individually or in the aggregate, have
a Material Adverse Effect, or subject to any restriction which would prohibit
the Company from entering into or performing its obligations under this
Agreement.
(B) The execution, delivery and performance of this Agreement by the
Company will not result in any violation of, be in conflict with, or constitute
a default under, with or without the passage of time (assuming no changes in
currently existing laws) or the giving of notice of (i) any provision of the
Company's Certificate of Incorporation or Bylaws as effective on the date hereof
and on the Closing Date; (ii) any provision of any judgment, decree or order to
which the Company is a party or by which it is bound; (iii) any material
contract, obligation or commitment to which the Company is a party or by which
it is bound; or (iv) to the Company's knowledge, any statute, rule or
governmental regulation applicable to the Company.
(C) The execution, delivery and performance of this Agreement by the
Company does not and will not require any consent, approval, authorization or
permit of, or filing with or without notification to, any governmental or
regulatory authority, United States or foreign, except (i) for applicable
requirements, if any, of the Securities and Exchange Act of 1934, as amended,
including the rules and regulations promulgated thereunder (the "Exchange Act"),
or securities laws of the various states of the United States (the "Blue Sky
Laws"), and (ii) where failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or delay consummation of the transactions contemplated under this
Agreement, or otherwise prevent the Company from performing its obligations
under this Agreement, and would not individually or in the aggregate, have a
Material Adverse Effect.
3.5 SEC FILINGS; FINANCIAL STATEMENTS.
(A) The Company has filed all forms, reports and documents required to
be filed by it with the Securities and Exchange Commission (the "SEC") since
April 11, 2000 and has heretofore made available to Purchaser, in the form filed
with the SEC, its (i) Annual Report on Form 10-K, as amended, for the period
ended December 31, 2000, (ii) Quarterly Report on Form 10-Q for the period ended
Xxxxx 00, 0000, (xxx) proxy statement for the annual meeting of stockholders
held on May 22, 2001, (vi) Registration Statement on Form S-3 filed June 1,
2001, and (vii) Current Reports on Form 8-K filed on May 15, 2001. The Company
has filed additional reports with the SEC that may be accessed at xxx.xxx.xxx.
The forms, reports and other documents referred to in this subsection 3.5(a) are
referred to collectively as the "SEC Reports." The SEC Reports (A) were prepared
in accordance with the requirements of the Exchange Act, and (B) did not at the
time they were filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Furthermore, the SEC Reports, when read as a whole, as
updated by the Company's press releases and as of the date hereof, do not
contain any untrue statements of a material fact and do not omit to state a
material fact necessary to make the statements therein, not misleading. The
Company is eligible to register the offer and resale of the Shares by Purchaser
on a Registration Statement on Form S-3 or a successor form.
(B) Each of the financial statements (including, in each case, any
notes thereto) contained in the SEC Reports (collectively, the "Financial
Statements") was prepared (i) in the case of Quarterly Reports on Form 10-Q, in
accordance with United States generally accepted accounting principles as
promulgated under Regulation S-X by the SEC, with such principles applied on a
consistent basis throughout the periods indicated, and (ii) in the case of the
Annual Report on Form 10-K, in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated and comply in all material respects with the rules and regulations of
the SEC, including without limitation Regulation S-X. The Financial Statements
comply in all material respects with applicable accounting requirements, and
each fairly presented the financial position, results of operations and changes
in the financial position of the Company as of the respective dates thereof and
for the respective periods indicated therein.
3.6 PRIVATE OFFERING. Neither the Company nor anyone acting on its behalf
has offered any of the Shares or any similar securities for issuance or sale to,
or solicited any offer to acquire any of the same from, anyone so as to make the
issuance and sale of the Shares subject to the registration requirements of
Section 5 of the Securities Act of 1933, as amended, including the rules and
regulations promulgated thereunder (the "Securities Act").
3.7 CHANGES. Except as set forth in the SEC Reports and as described
in the Schedule of Exceptions attached hereto, the Company has not, to the
extent material to the Company (i) incurred any debts, obligations or
liabilities, absolute, accrued or contingent, whether due or to become due,
other than in the ordinary course of business other than the convertible loan in
principal amount of $30 million issued to Protein Design Labs, Inc. on May 22,
2001, (ii) mortgaged, pledged or subjected to lien, charge, security interest or
other encumbrance any of its assets, tangible or intangible, other than pursuant
to certain equipment financing arrangements disclosed in its SEC Reports, (iii)
waived any debt owed to the Company, (iv) satisfied or discharged any lien,
claim or encumbrance or paid any obligation other than in the ordinary course of
business, (v) declared, set aside or paid any dividends or other distribution
with respect to the capital stock of the Company, (vi) changed any material
contract or arrangement by which the Company or any of its assets is bound,
(vii) sold, assigned or transferred any of its patents, trademarks, copyrights,
trade secrets or other intangible assets, or (viii) entered into any transaction
other than in the usual and ordinary course of business. Other than as may be
set forth in the SEC Reports, there has been no material adverse change in the
financial condition or business, assets or properties, liabilities or operating
results of the Company since the date of the financial statements contained in
the SEC Reports other than normal recurring operating losses, and there has not
occurred any loss, destruction or damage affecting the business, properties,
prospects or financial condition of the Company, whether or not insured, which
has or may have a Material Adverse Effect. For purposes of this Section 3.7
only, the term "material" shall mean a single transaction or event, or a group
of related transactions or events, involving debts, obligations, liabilities or
assets with a cost or value in excess of $1 million, or cumulative transactions
and events involving debts, obligations, liabilities and assets with a
cumulative total value or cost in excess of $5 million, with respect to those
items covered by this Section 3.7.
3.8 LITIGATION. Other than as described in the SEC Reports, there are no
legal actions, suits, arbitrations or other legal, administrative or
governmental proceedings pending or, to the Company's knowledge, threatened
against the Company or its properties, assets or business, and neither the
Company nor any of its officers is aware of any facts which might result in or
form the basis for any such action, suit or other proceeding, in each case
which, if adversely determined, would, individually or in the aggregate, affect
the execution and delivery of this Agreement or the performance by the Company
of its obligations hereunder, or have a Material Adverse Effect. The Company is
not in default with respect to any judgment, order or decree of any court or any
governmental agency or instrumentality, which default would have a Material
Adverse Effect.
3.9 CAPITAL STOCK. At May 31, 2001, the authorized capital stock of
the Company consisted of 100,000,000 shares of Common Stock, of which 48,533,903
shares were outstanding, and 10,000,000 shares of preferred stock, $.001 par
value per share, of which no shares were outstanding. As of May 31, 2001,
8,007,229 shares of Common Stock were reserved for issuance under the Company's
stock option and purchase plans, 621,068 shares were reserved for issuance in
connection with the Agritope 1997 Stock Award Plan and up to 929,478 shares were
reserved for issuance in connection with the Share Exchange and Assignment
Agreement by and among the Company and the stock and option holders of Artemis
Pharmaceuticals GmbH. Except as set forth in the SEC Reports (including
outstanding offer letters or commitments to issue Common Stock options under
existing employee benefits plans), there are no options, warrants, conversion
privileges, preemptive rights, or other rights or agreements issued or binding
on the Company for the purchase or acquisition of any shares of its capital
stock other than an aggregate of 496,220 shares of Common Stock reserved for
issuance pursuant to outstanding warrants. Except for shares of capital stock
issued pursuant to employee benefit plans, (a) no shares of capital stock of the
Company have been issued following May 31, 2001, and (b) all of the outstanding
shares of the Company's capital stock are validly issued, fully paid and
nonassessable and were issued in compliance with all applicable federal and
state securities laws. Except as set forth in the SEC Reports, the Company has
not agreed to register the sale of any of its securities under the Securities
Act, and there are no outstanding subscriptions, options, warrants, calls,
contracts, demands, commitments, conversion rights or other agreements or
arrangements of any character or nature whatever under which the Company is or
may be obligated to issue its Common Stock, preferred stock or warrants or
options to purchase Common Stock or preferred stock. Except as set forth in the
SEC Reports, no holder of any security of the Company is entitled to any rights
of first refusal, preemptive or similar rights to purchase any securities of the
Company (including, without limitation, the Shares).
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER; RESTRICTIONS ON TRANSFER OF
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THE SHARES
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4.1 REPRESENTATIONS AND WARRANTIES. Purchaser hereby represents and
warrants to the Company as follows:
(A) CORPORATE ORGANIZATION AND AUTHORITY. Purchaser is a corporation
duly organized, validly existing, authorized to exercise all its corporate
powers, rights and privileges, and in good standing under the laws of the state
of Delaware.
(B) AUTHORIZATION. Purchaser has taken all necessary corporate action
necessary for the execution, delivery and performance of all obligations under
this Agreement and the consummation of the transactions contemplated hereby and
upon execution and delivery, this Agreement constitutes a valid and legally
binding obligation of Purchaser enforceable in accordance with its terms.
(C) INVESTMENT ONLY. This Agreement is made with Purchaser in reliance
upon its representations to the Company, which by Purchaser's execution of this
Agreement Purchaser hereby confirms, that the Shares to be received by Purchaser
will be acquired for investment for Purchaser's own account, not as a nominee or
agent, and not with a view to the sale or distribution of any part thereof, and
that Purchaser has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement, Purchaser
further represents that it has no contract, undertaking, agreement, or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person, with respect to any of the Shares.
(D) EXPERIENCE. Purchaser represents that it: (i) has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of its prospective investment in the Shares; (ii) has
received all the information it has requested from the Company and considers
necessary or appropriate for deciding whether to purchase the Shares; (iii) has
had the opportunity to discuss the Company's business management, and financial
affairs with its management, (iv) has the ability to bear the economic risks of
its prospective investment; and (v) is able, without materially impairing its
financial condition, to hold the Shares for an indefinite period of time and to
suffer a complete loss on its investment.
(E) ACCREDITED PURCHASER. Purchaser presently qualifies, and will as
of the Closing Date qualify, as an "accredited investor" within the meaning of
Regulation D of the rules and regulations promulgated under the Securities Act.
4.2 NO REGISTRATION. Purchaser understands that the offering of the Shares
pursuant to this Agreement will not be registered under the Securities Act on
the grounds that the offering and sale of securities contemplated by this
Agreement are exempt from registration pursuant to Section 4(2) of the
Securities Act, and that the Company's reliance upon such exemption is
predicated upon Purchaser's representations set forth in this Agreement.
4.3 LIMITATIONS ON TRANSFERABILITY. Purchaser covenants that in no event
will it dispose of any of the Shares (other than pursuant to Rule 144
promulgated by the SEC under the Securities Act ("Rule 144") or any similar or
analogous rule) unless and until (a) Purchaser shall have notified the Company
of the proposed disposition, and (b) if requested by the Company, Purchaser
shall have furnished the Company with an opinion of counsel satisfactory in form
and substance to the Company and the Company's counsel, in the reasonable
exercise of their judgment, to the effect that (i) such disposition will not
require registration under the Securities Act and (ii) appropriate action
necessary for compliance with the Securities Act and any applicable state,
local, or foreign law has been taken.
4.4 LEGEND. Each certificate representing the Shares shall be endorsed with
substantially the following legends:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, THE TRANSFER IS MADE IN COMPLIANCE WITH RULE 144
PROMULGATED UNDER SUCH ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER OR
ASSIGNMENT IS EXEMPT FROM THE REGISTRATION AND DELIVERY REQUIREMENTS OF
SUCH ACT. THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A
LOCK-UP AGREEMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED PRIOR TO
JULY 17, 2002 WITHOUT THE PRIOR WRITTEN CONSENT OF THE ISSUER. The Company
need not register a transfer of any Shares and may instruct its transfer
agent not to register the transfer of the Shares, unless the conditions
specified in the foregoing legends are satisfied.
5. CONDITIONS TO CLOSING
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5.1 CONDITIONS TO PURCHASE OBLIGATIONS OF PURCHASER. The obligation of
Purchaser to consummate the Purchase is subject to the satisfaction or
Purchaser's waiver, on or prior to the Closing Date, of each of the following
conditions:
(A) The Company shall have received an opinion of Xxxxxx Godward LLP,
dated the Closing Date, in substantially the form attached hereto as Exhibit A.
(B) The Company and Purchaser shall have obtained all consents
(including all governmental or regulatory consents, approvals or authorizations
required in connection with the valid execution and delivery of this Agreement),
permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Purchase under this Agreement.
(C) No federal or state governmental authority or other agency or
commission or court of competent jurisdiction shall have enacted, issued,
promulgated, enforced, or entered any law, rule, regulation, executive order,
decree, injunction or other order which is then in effect and has the effect of
making illegal the purchase of, or payment for, the Shares by Purchaser or
otherwise preventing the consummation of any of the transactions contemplated
under this Agreement.
(D) There shall be no temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation of
the Purchase issued by any court which remains in effect, no litigation seeking
the issuance of such an order or injunction and no claims or actions threatened
or pending which have a reasonably likely prospect of resulting in such order or
injunction preventing the consummation of the Purchase.
(E) The Company and Purchaser shall have executed and delivered the
Transaction Documents.
5.2 CONDITIONS TO PURCHASE OBLIGATIONS OF THE COMPANY. The obligations of
the Company to sell and issue the Shares is subject to the satisfaction or the
Company's waiver, on or prior to the Closing Date, of each of the following
conditions:
(A) Purchaser's representations and warranties contained in this
Agreement are true and correct as of the Closing Date as though made on and as
of that date.
(B) The Company and Purchaser shall have obtained all consents
(including all governmental or regulatory consents, approvals or authorizations
required in connection with the valid execution and delivery of this Agreement),
permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Purchase under this Agreement.
(C) No state governmental authority or other agency or commission or
state court of competent jurisdiction shall have enacted, issued, promulgated,
enforced, or entered any law, rule, regulation, executive order, decree,
injunction or other order which is then in effect and has the effect of making
illegal the purchase of, or payment for, the Shares by Purchaser or otherwise
preventing the consummation of any of the transactions contemplated under this
Agreement.
(D) The Company and Purchaser shall have executed and delivered the
Transaction Documents.
6. ADDITIONAL AGREEMENTS; LOCKUP
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6.1 REGISTRATION REQUIREMENTS.
(A) REGISTRATION OF THE SHARES.
(I) Using its diligent best efforts, and as soon as
reasonably practicable after the Closing Date (but in no event later than
forty-five (45) days after the Closing Date), the Company shall file with the
SEC a Registration Statement on Form S-3 covering the Shares (the "Registration
Statement"), and shall secure the effectiveness of the Registration Statement as
soon as reasonably practicable thereafter.
(II) Subject to Section 6.1(c), the Company shall be
obligated to maintain the effectiveness of the Registration Statement until the
earlier of (A) the sale of all of the Shares or (B) the time all otherwise
unsold Shares may be sold pursuant to Rule 144(k).
(III) If the Company is unable to cause the Registration
Statement to become effective prior to the first anniversary of the Effective
Date, the Company shall, if Purchaser so requests in writing not later than
ninety (90) days after the expiration of such one year period, purchase from
Purchaser the Shares for a purchase price equal to the purchase price for the
Shares. Such purchase shall be effected not later than fifteen (15) days after
the Company's receipt of Purchaser's request therefor.
(B) REGISTRATION EXPENSES. The Company shall pay all Registration
Expenses (as defined below) in connection with any registration, qualification
or compliance hereunder, and Purchaser shall pay all Selling Expenses (as
defined below) that relate to the Shares of Purchaser to be registered.
"Registration Expenses" shall mean all expenses, except for Selling Expenses,
incurred by the Company in complying with the registration provisions herein
described, including, without limitation, all registration, qualification,
compliance and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and
accounting fees (including the expense of any special audits incident to or
required by any such registration). "Selling Expenses" shall mean all fees of
counsel for the Purchaser, selling commissions, underwriting fees and stock
transfer taxes applicable to the Shares.
(C) REGISTRATION SUSPENSION. The Company shall, upon (A) the issuance
by the SEC of a stop order suspending the effectiveness of the Registration
Statement or the initiation of proceedings with respect to the Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence
of any event or the existence of any fact (a "Material Event") as a result of
which the Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or the related
prospectus (the "Prospectus") shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Registration
Statement and the Prospectus,
(I) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary pursuant to
applicable law, a post-effective amendment to the Registration Statement or a
supplement to the Prospectus or any document incorporated therein by reference
or file any other required document that would be incorporated by reference into
the Registration Statement and Prospectus so that the Registration Statement
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Shares being sold thereunder, and, in the
case of a post-effective amendment to the Registration Statement, subject to the
next sentence, use its reasonable efforts to cause it to be declared effective
as promptly as is practicable, and
(II) give notice to Purchaser that the availability of the
Registration Statement is suspended (a "Deferral Notice") and, upon receipt of
any Deferral Notice, Purchaser agrees not to sell any Shares pursuant to the
Registration Statement until such Purchaser's receipt of copies of the
supplemented or amended prospectus provided for in clause (i) above, or until it
is advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus. The Company will use all
reasonable efforts to ensure that the use of the Prospectus may be resumed (x)
in the case of clause (A) and (B) above, as promptly as is practicable, and (y)
in the case of clause (C) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be prejudicial to or
contrary to the interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter. The Company shall be
entitled to exercise its right under this Section 6.1(d) to suspend the
availability of the Registration Statement or any Prospectus no more than three
(3) times in any twelve-month period, and any such period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall not exceed thirty (30) days. The period of any such
Deferral Period shall be added to the period of time the Company has agreed to
keep the Registration Statement effective. The Company shall use all
commercially reasonable efforts to limit the duration and number of any Deferral
Periods. Purchaser hereby agrees that upon receipt of any Deferral Notice from
the Company, Purchaser shall, and shall cause each of its officers, directors,
employees, affiliates, advisors, agents and representatives to, keep
confidential all nonpublic information set forth in such notice including the
existence or terms of such Deferral Notice.
(D) REGISTRATION PROCEDURES. In the case of any registration effected
by the Company pursuant to this Section 6.1, the Company will use all
commercially reasonable efforts:
(I) to respond promptly to any comments of the SEC relating
to the Registration Statement, and to prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Registration Statement;
(II) to furnish such number of Registration Statements and
other documents incident thereto, including any amendment of or supplement to
the Registration Statement or prospectus, as any holder of securities covered by
the Registration Statement may reasonably request to facilitate the public sale
or other disposition of all or any of the Shares;
(III) list the class of Company stock in which the Shares are
included on the Nasdaq National Market.
(IV) to file the documents required of the Company and
otherwise use all commercially reasonable efforts to maintain requisite blue sky
clearance in (A) all U.S. jurisdictions in which any of the Shares are
originally sold and (B) all other states specified in writing by Purchaser;
provided, however, that, as to clause (B), the Company shall not be required to
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qualify to do business in any state in which it is not now so qualified or has
not so consented except as may be required by the Securities Act; and
(V) to keep Purchaser advised in writing as to the filing and
completion of each registration, qualification and compliance.
(VI) to advise Purchaser promptly at any time when the
prospectus (including any supplements thereto) contained in the Registration
Statement then in effect under this Section 6.1 includes an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(E) INDEMNIFICATION.
(I) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless Purchaser (and its officers, directors, employees,
affiliates and agents), from and against any and all losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) to which
any of them may become subject (under the Securities Act or otherwise) with
respect to any registration, qualification or compliance under this Section 6.1
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of, or are based upon (i) any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, in any registration statement (on the effective date
thereof), prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or (ii) any violation by the Company
of any applicable rule or regulation under the Securities Act relating to any
action or inaction required of the Company in connection with such registration,
qualification or compliance, or (iii) any failure by the Company to fulfill any
undertaking included in the registration statement or related documents or to
fulfill any of its obligations under Section 6.1 hereof. The Company will, as
incurred, reimburse the indemnified parties herein for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such claims, actions or proceedings in respect thereof; provided, however,
-------- -------
that the Company shall not be liable in any such case to the extent that such
loss, claim, damage, liability or expense arises out of, or is based upon (A)
any untrue statement or omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in any registration
statement (on the effective date thereof), prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, made
in reliance upon and in conformity with written information furnished to the
Company by Purchaser specifically for use in preparation of such document, or
(B) an untrue statement or omission in any prospectus that is corrected in any
subsequent prospectus, or supplement or amendment thereto, that was delivered to
Purchaser prior to the sale or sales from which a loss or liability arose.
(II) INDEMNIFICATION BY PURCHASER. Purchaser agrees to
indemnify and hold harmless the Company (and its officers, directors, employees,
affiliates and agents), from and against any losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) to which
any of them may become subject (under the Securities Act or otherwise) with
respect to any registration, qualification or compliance under this Section 6.1
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of, or are based upon (A) any untrue
statement or omission of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, in any registration statement (on the effective
date thereof), prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
Purchaser specifically for use in preparation of such document; provided,
--------
however, that Purchaser shall not be liable in any such case for any (i) untrue
-------
statement or omission in any registration statement, prospectus or other such
document which statement has been corrected, in writing, by Purchaser and
delivered to the Company ten (10) days before the sale from which such loss
occurred, (B) an untrue statement or omission in any prospectus delivered by
Purchaser that is corrected in any subsequent prospectus, or supplement or
amendment thereto, and delivered to Purchaser prior to the sale or sales from
which a loss or liability arose, or (C) any failure by Purchaser to fulfill any
of its obligations under Section 6.1 hereof. Purchaser will, as incurred,
reimburse the indemnified parties herein for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
claims, actions or proceedings in respect thereof.
(III) INDEMNIFICATION PROCEDURE. Promptly after receipt by
any indemnified party of a notice of a claim or the beginning of any action in
respect of which indemnity is to be sought against an indemnifying party
pursuant to this Section 6.1, such indemnified party shall notify the
indemnifying party in writing of such claim or of the commencement of such
action, and, subject to the provisions hereinafter stated, in case any such
action shall have been brought against an indemnified party and the indemnifying
party shall have been notified thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it shall wish, to assume the
defense of such action, with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to such indemnified party of the
indemnifying party's election to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof; provided, however, that if there exists or shall exist a conflict of
-------- -------
interest that would make it inappropriate in the reasonable judgment of the
indemnified party for the same counsel to represent both the indemnified party
and such indemnifying party or any affiliate or associate thereof, the
indemnified party shall be entitled to retain its own counsel at the expense of
such indemnifying party. Failure of any indemnifying party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under this Section 6.1(e). No indemnifying party, in the defense of any such
claim or action, except with the consent of each indemnified party, shall
consent to entry of any judgment or enter into any settlement.
(IV) OTHER LIABILITY. The obligations of the Company and
Purchaser under this Section 6.1 shall be in addition to any liability which the
Company and Purchaser may otherwise have.
6.2 FILINGS. The Company covenants and agrees to use all commercially
reasonable efforts to: (i) make and keep public information available, as those
terms are understood and defined in Rule 144, until the date on which the Shares
may be sold pursuant to Rule 144(k) (or any successor rule); and (ii) file with
the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and Exchange Act.
6.3 OTHER ACTIONS. Upon the terms and subject to the conditions
hereof, each of the Parties hereto shall in good faith, use commercially
reasonable efforts to take, or cause to be taken, all appropriate action, and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the transaction
contemplated under this Agreement, including, without limitation, using
commercially reasonable efforts to obtain all licenses, permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and parties to contracts with the Company as are necessary for the execution,
delivery and performance of this Agreement. The Company covenants and agrees to
use its best efforts to aid in the removal of all restrictive legends affixed to
stock certificates representing the Shares on an expedited basis in accordance
with applicable law, including without limitation: (i) upon the request of
Purchaser, causing the Company's counsel to render (at the Company's cost) an
opinion of counsel required to be delivered by Purchaser pursuant to Section 4.3
of this Agreement; and (ii) providing such information as requested by the
Company's registrar or transfer company.
6.4 LOCKUP. Purchaser agrees that for a period of twelve months following
the Closing Date, Purchaser and its affiliated entities shall not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any Shares held by Purchaser or grant any option or other
rights to any person to acquire any Shares without the prior written consent of
the Company; provided, however, this Section 6.4 will terminate and be of no
force and effect (a) in the event the Company is in default under this
Agreement, or (b) effective upon a Change in Control of the Company. A "Change
in Control" of the Company shall be deemed to occur if the Company sells,
conveys or otherwise disposes of all or substantially all of its property or
business, or merges or consolidates with any other corporation or business
entity (other than a wholly-owned subsidiary of the Company) or effects any
other transaction or series of transactions in which (I) the members of the
Board of Directors of the Company prior to the transaction or series of
transactions constituting the putative Change in Control event do not constitute
a majority of the members of the Board of Directors of the enterprise following
completion of the transaction or series of transactions constituting the
putative Change in Control event; and (II) the stockholders of the Company
immediately prior thereto own less than a majority of the outstanding voting
securities of the Company (or its successor or parent) immediately thereafter.
7. MISCELLANEOUS
-------------
7.1 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
Agreement between the parties hereto with respect to the within subject matter
and supersedes all previous Agreements, whether written or oral. This Agreement
shall not be changed or modified orally, but only by an instrument in writing
signed by both parties.
7.2 GOVERNING LAW; CHOICE OF LAW. This Agreement and the validity,
performance, construction and effect of this Agreement shall be governed in all
respects by the laws of the State of Delaware, with the exception of its
provisions governing the conflict of laws.
7.3 ASSIGNMENT. This Agreement may not be assigned by either Party without
the prior written consent of the other, except that the Company may assign this
Agreement to a party which acquires all or substantially all of the Company's
business, whether by merger, sale of assets or otherwise. A merger,
consolidation or other reorganization shall be deemed to constitute an
assignment.
7.4 NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing, shall specifically refer to this Agreement and
shall be deemed to have been sufficiently given for all purposes if mailed by
first class certified or registered mail, postage prepaid, express delivery
service or personally delivered. Unless otherwise specified in writing, the
mailing addresses of the Parties shall be as described below.
For Exelixis: Exelixis, Inc.
000 Xxxxxx Xxx
X.X. Xxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
With a copy to: Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
For BMS: Xxxxxxx-Xxxxx Squibb Company
X.X. Xxx 0000
Xxxxx 000 and Province Line Road
Princeton, NJ 08543-4000
Attention: Vice President and Senior Counsel,
Pharmaceutical Research Institute and
Worldwide Business Development
Facsimile No. (000) 000-0000
With a copy to: Xxxx Xxxxx LLP
Princeton Xxxxxxxxx Village
000 Xxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx III
Facsimile No. (000) 000-0000
7.5 WAIVER. The failure of either Party to assert a right hereunder or to
insist upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other Party. None of the terms,
covenants and conditions of this Agreement can be waived except by the written
consent of the Party waiving compliance.
7.6 FINDER'S FEES.
(A) The Company (i) represents and warrants that it has retained no
investment bankers, finders or brokers in connection with the transactions
contemplated by this Agreement and (ii) hereby agrees to indemnify and to hold
Purchaser harmless of and from any costs, expenses or liability for any
commission or compensation in the nature of a finder's fee to any investment
banker, finder, broker or other person or firm (including legal fees and other
costs and expense of defending against such liability or asserted liability) for
which it, or any of its employees or representatives, are responsible.
(B) Purchaser (i) represents and warrants that it has retained no
investment bankers, finders or brokers in connection with the transactions
contemplated by this Agreement and (ii) hereby agrees to indemnify and hold the
Company harmless of and from any costs, expenses or liability for any commission
or compensation in the nature of a finder's fee to any investment banker,
finder, broker or other person or firm (including legal fees and other costs and
expense of defending against such liability or asserted liability) for which it,
or any of its employees or representatives, are responsible.
7.7 EXPENSES. The Company and Purchaser shall each bear its respective
expenses and legal fees incurred with respect to this Agreement and the
transaction contemplated hereby.
7.8 HEADINGS. The captions used herein are inserted for convenience of
reference only and shall not be construed to create obligations, benefits, or
limitations.
7.9 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall be regarded as one and the same instrument. Execution
and delivery of this Agreement by exchange of facsimile copies bearing the
facsimile signature of a Party hereto shall constitute a valid and binding
execution and delivery of this Agreement by such Party. Such facsimile copies
shall constitute enforceable original documents.
7.10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein shall survive the execution and delivery of this
Agreement, any investigation at any time made by or on behalf of Purchaser, and
the sale and purchase of the Shares and payment therefor until the earlier of
(a) the resale of any Shares issued pursuant to this Agreement, or (b) the first
anniversary of the Effective Date.
7.11 SEVERABILITY. If any provision of this Agreement is declared invalid
by a court of last resort or by any court from the decision of which an appeal
is not taken within the time provided by law, then and in such event, this
Agreement will be deemed to have been terminated only as to the portion thereof
which relates to the provision invalidated by that decision, but this Agreement,
in all other respects will remain in force; provided, however, that if the
provision so invalidated is essential to this Agreement as a whole, then the
Parties shall negotiate in good faith to amend the terms hereof as nearly as
practical to carry out the original intent of the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives as of the date first written above.
Company: Purchaser:
Exelixis, Inc. Xxxxxxx-Xxxxx Squibb Company
By: By:
----------------------------- ------------------------------
Title: Title:
-------------------------- ---------------------------
By:
------------------------------
Title:
---------------------------
Section 3.7 Schedule of Exceptions
The Company regularly enters into negotiations for and discussions regarding
collaborative arrangements, an acquisition or merger or other similar
transactions, which negotiations and discussions may include terms involving the
sale, assignment or transfer of the Company's patents, trademarks, copyrights,
trade secrets or other intangible assets, and may further include discussions
regarding a sale or transfer of substantial portions of its assets, properties
or business.
EXHIBIT A
FORM OF COOLEY GODWARD LLP OPINION
COOLEY GODWARD LLP
Broomfield, CO
ATTORNEYS AT LAW 720 566-4000
Five Palo Alto Square Denver, CO
3000 El Camino Real 000 000-0000
Xxxx Xxxx, XX
00000-0000 Xxxxxxxx, XX
Main 650 843-5000 425 893-7700
Menlo Park, CA
XXXXXX X. XXXXX 000 000-0000
000 000-0000
xxxxxxx@xxxxxx.xxx
July [___], 0000
Xxxxxxx-Xxxxx Xxxxxx Company
Xxxxx 000 xxx Xxxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
RE: EXELIXIS, INC. PRIVATE PLACEMENT
Ladies and Gentlemen:
We have acted as counsel for Exelixis, Inc., a Delaware corporation (the
"Company"), in connection with the issuance and sale to you of an aggregate of
[__________] shares (the "Shares") of the Company's common stock, par value
$.001 per share (the "Common Stock"), under the Stock Purchase Agreement, dated
as of the date hereof (the "Purchase Agreement"), by and between the Company and
you (the "Purchaser"). We are rendering this opinion pursuant to Section [___]
of the Purchase Agreement. Except as otherwise defined herein, capitalized
terms used but not defined herein have the respective meanings given to them in
the Purchase Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in, and made
pursuant to, the Purchase Agreement by the various parties thereto, and have
examined and relied upon the originals or copies of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinions expressed below.
As to certain factual matters, we have relied upon certificates of officers of
the Company and have not sought to independently verify such matters. Where we
render an opinion "to the best of our knowledge" or concerning an item "known to
us" or our opinion otherwise refers to "our knowledge," it is based solely upon
(i) an inquiry of attorneys within this firm who perform legal services for the
Company; (ii) review of certificates executed by an officer of the Company
covering such matters; and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents (except the due authorization, execution and delivery
by the Company of the Purchase Agreement) where authorization, execution and
delivery are prerequisites to the effectiveness of such documents. We have also
assumed: that all individuals executing and delivering documents in their
individual capacities had the legal capacity to so execute and deliver; that the
Purchase Agreement is an obligation binding upon you; that you have received all
documents that you were to receive under the Purchase Agreement; if you are a
corporation or other entity, that you have filed any required California
franchise tax or income tax returns and have paid any required California
franchise or income taxes; and that there are no extrinsic agreements or
understandings among the parties to the Purchase Agreement that would modify or
interpret the terms thereof or the respective rights or obligations of the
parties thereunder.
We express no opinion herein concerning any laws other than the laws of the
State of California, the General Corporation Law of the State of Delaware and
the federal securities laws of the United States. We express no opinion as to
whether the laws of any particular jurisdiction apply, and no opinion that the
laws of any jurisdiction other than those identified above are applicable to the
subject matter hereof. We are not rendering any opinion as to compliance with
any antifraud law, rule or regulation relating to securities or the sale or
issuance thereof.
With regard to our opinion in paragraph 1 below, we have relied solely on (i) a
certificate of an officer of the Company as to the states in which the Company
owns or leases property or otherwise has any assets, employees or
representatives authorized to bind it by contract and (ii) an examination of
certificates of good standing or documents of similar import issued by the
jurisdictions indicated in such officer's certificate; we have made no further
investigation.
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to transact business and is in good standing in California
and, to the best of our knowledge, in each United States jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company.
2. The Company has the corporate power and authority to own or lease its
property and to conduct its business as currently conducted and as
described in the SEC Reports, and to enter into the Purchase Agreement,
issue the Shares and to carry out and perform its obligations under the
Purchase Agreement.
3. The Purchase Agreement has been duly authorized, executed and delivered by,
and is a legal, valid and binding agreement of, the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity and except as rights to indemnification and contribution in
Section [__] thereof may be limited under applicable law.
4. The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of the Purchase Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or, to our knowledge, similar rights.
5. The execution and delivery of the Purchase Agreement by the Company and the
filing of the Registration Statement pursuant to the Purchase Agreement
(assuming such filing occurs at the time of Closing) will not result in any
violation of, be in conflict with, or constitute a default under, with or
without the passage of time (assuming no changes in currently existing
laws) or the giving of notice of (i) any provision of the Company's
Certificate of Incorporation or Bylaws; (ii) any provision of any judgment,
decree or order to which the Company is a party or by which it is bound and
of which we have knowledge; or (iii) any material contract, obligation or
commitment to which the Company is a party and which has been filed by the
Company as an exhibit to the SEC Reports.
6. Other than as described in the SEC Reports, to the best of our knowledge,
there are no legal actions, suits, arbitrations or other legal,
administrative or governmental proceedings pending or threatened against
the Company or its properties, assets or business, which, if adversely
determined, would, individually or in the aggregate, affect the execution
and delivery of the Purchase Agreement or have a material adverse effect on
the Company.
7. Based upon the representations, warranties and agreements of the Purchaser
in Section [4] of the Purchase Agreement, the offer and sale of the Shares
to the Purchaser under the Purchase Agreement are exempt from the
registration requirements of the Securities Act.
These opinions are limited to the matters expressly stated herein and are
rendered solely for your benefit and may not be quoted or relied upon for any
other purpose or by any other person, firm or entity without our prior written
consent.
Very truly yours,
Xxxxxx Godward llp
Xxxxxx X. Xxxxx