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Title: |
Common Stock Purchase Agreement |
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Entities: |
Lynx Therapeutics, Inc.; Cooley Godward LLP; Takara Bio Inc. |
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Date: |
2003 |
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Size: |
Preview shows 13KB of 32KB total |
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Price: |
$36 |
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ID: |
#279309 |
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COMMON STOCK PURCHASE AGREEMENT
between
LYNX THERAPEUTICS, INC.,
a Delaware corporation
and
TAKARA BIO INC.,
a Japanese corporation
----------------
Dated as of December 26, 2002
----------------
================================================================================
{PAGE}
{TABLE}
{S} {C} {C}
SECTION 1. SALE AND ISSUANCE OF SHARES................................................................. 1
1.1 Sale and Issuance of Shares................................................................. 1
1.2 Payment of Purchase Price................................................................... 1
1.3 Transfer Taxes.............................................................................. 1
SECTION 2. CLOSING; DELIVERY........................................................................... 2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY................................................... 2
3.1 Organization, Good Standing and Qualification............................................... 2
3.2 Authorization............................................................................... 2
3.3 Valid Issuance of Securities................................................................ 2
3.4 Legal Proceedings and Orders................................................................ 2
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER................................................. 3
4.1 Authorization............................................................................... 3
4.2 Purchase Entirely for Own Account........................................................... 3
4.3 Disclosure of Information................................................................... 3
4.4 Restricted Securities....................................................................... 3
4.5 No Public Market............................................................................ 4
4.6 Legends..................................................................................... 4
4.7 Accredited Investor......................................................................... 4
SECTION 5. CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER TO CLOSE.................................... 4
5.1 Accuracy of Representations and Warranties.................................................. 4
5.2 Performance................................................................................. 4
5.3 Shares Available............................................................................ 4
SECTION 6. CONDITIONS TO OBLIGATION OF COMPANY TO CLOSE................................................ 4
6.1 Accuracy of Representations and Warranties.................................................. 5
6.2 Performance................................................................................. 5
6.3 No Restraints............................................................................... 5
SECTION 7. MISCELLANEOUS PROVISIONS.................................................................... 5
7.1 Time of Essence............................................................................. 5
7.2 Further Actions............................................................................. 5
7.3 Publicity................................................................................... 5
7.4 Governing Law............................................................................... 5
7.5 Venue and Jurisdiction...................................................................... 5
7.6 Notices..................................................................................... 5
{/TABLE}
A-1
{PAGE}
{TABLE}
{S} {C} {C}
7.7 Fees and Expenses........................................................................... 6
7.8 Attorneys' Fees............................................................................. 6
7.9 Table of Contents and Headings.............................................................. 6
7.10 Successors and Assigns...................................................................... 6
7.11 Severability................................................................................ 6
7.12 Entire Agreement............................................................................ 6
7.13 Waiver...................................................................................... 6
7.14 Amendments.................................................................................. 6
7.15 Corporate Securities Law.................................................................... 7
7.16 Confidentiality............................................................................. 7
7.17 Interpretation of Agreement................................................................. 7
{/TABLE}
A-2
{PAGE}
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is entered into
as of December 26, 2002, by and between TAKARA BIO INC., a Japanese corporation
having its principal office at SETA 3-4-1, Otsu, Shiga, 520-2193 JAPAN
("Purchaser"), and LYNX THERAPEUTICS, INC., a Delaware corporation, having its
principal office at 25861 Industrial Blvd., Hayward, California, USA (the
"Company").
RECITALS
WHEREAS, Company and Purchaser have entered into that certain
Collaboration Agreement effective as of the 1st day of October, 2000, as amended
in that Amendment No. 1 to Collaboration Agreement, dated December 19, 2002 (the
"Collaboration Agreement"), for the right to use the Company's proprietary
technologies to manufacture, distribute and sell microarrays worldwide and to
provide Megasort(TM) and MPSS(TM) services to customers in Japan, China and
Korea;
WHEREAS, the Company has authorized the sale and issuance of up to two
million forty thousand eight hundred sixteen (2,040,816) shares of its common
stock to Purchaser in a private placement; and
WHEREAS, in connection with the Collaboration Agreement, the Company
desires to issue and sell such shares of its common stock to Purchaser, and
Purchaser desires to purchase such shares of Company's common stock on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
following mutual promises and covenants, the parties hereto agree as follows:
AGREEMENT
SECTION 1. SALE AND ISSUANCE OF STOCK
1.1 SALE AND ISSUANCE OF COMMON STOCK. Subject to the terms and
conditions set forth in this Agreement and the Collaboration Agreement, on the
Closing Date (as defined below), the Company agrees to sell and issue to
Purchaser, and Purchaser agrees to purchase, the number of shares of the
Company's common stock (the "Shares") determined by dividing the applicable One
Million U.S. Dollars ($1,000,000) ("Purchase Price") by the current market price
per share of the Company's common stock. The "current market price per share"
shall be the average for ten (10) trading days immediately prior to December 26,
2002 of the average of the daily high and the daily low, as reported on the
Nasdaq National Market or other nationally-recognized primary market on which
the Company's common stock is traded.
1.2 PAYMENT OF PURCHASE PRICE. The Purchase Price is payable by
Purchaser to the Company on the Closing Date by wire transfer of immediately
available funds to an account or
1
{PAGE}
accounts to be designated by the Company, or by bank certified or cashier's
check made payable to the Company.
1.3 TRANSFER TAXES. Any transfer taxes, stamp duties, filing fees,
registration fees, recordation expenses, escrow fees or other similar taxes,
fees, charges or expenses incurred by the Company, Purchaser or any other party
in connection with the purchase or in connection with any of the other
transactions contemplated by this Agreement shall be borne and paid exclusively
by the party incurring such expenses.
SECTION 2. CLOSING; DELIVERY.
The consummation of the transaction contemplated by this Agreement (the
"Closing") shall be held on the date hereof ("Closing Date"). The Closing shall
be held at the offices of Cooley Godward LLP, 3175 Hanover Street, Palo Alto,
California 94306-2155 or at such other time or place as Purchaser and the
Company may mutually agree. At the Closing, the Company shall cause to be issued
to Purchaser a stock certificate, in the name of Purchaser, representing the
Shares being purchased against receipt of the payment of the Purchase Price. The
Company shall deliver such stock certificate to Purchaser at the Closing or
promptly thereafter.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY.
The Company hereby represents, warrants and covenants to Purchaser as
follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as presently proposed to
be conducted. The Company is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on its business or properties.
3.2 AUTHORIZATION. All corporate action on the part of Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
Company hereunder and the authorization, issuance and delivery of the Shares has
been taken or will be taken prior to the Closing, and this Agreement, when
executed and delivered will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general application
affecting enforcement of creditors' rights generally, as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
3.3 VALID ISSUANCE OF COMMON STOCK. The Shares that are being
purchased by Purchaser hereunder, when issued, sold and delivered in accordance
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