Common Stock Purchase and Asset Contribution Agreement between Axys Advanced Technologies, Inc. and Axys Pharmaceuticals, Inc.
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Summary
Axys Advanced Technologies, Inc. and Axys Pharmaceuticals, Inc. entered into an agreement on November 17, 1999, where Axys Pharmaceuticals agreed to transfer certain assets to Axys Advanced Technologies in exchange for 9,999,900 shares of common stock. The assets are listed in an attached exhibit. The shares are issued for investment purposes and are subject to restrictions on resale. The contributed assets are transferred "as is," with no warranties. The agreement is governed by California law and includes standard provisions regarding successors, counterparts, and further actions.
EX-10.5 5 0005.txt EX-10.5 1 EXHIBIT 10.5 AXYS ADVANCED TECHNOLOGIES, INC. COMMON STOCK PURCHASE AND ASSET CONTRIBUTION AGREEMENT This Common Stock Purchase and Asset Contribution Agreement (the "Agreement") is made as of November 17, 1999, by and among Axys Advanced Technologies, Inc., a Delaware corporation (the "Company") and Axys Pharmaceuticals, Inc. ("Purchaser"). 1. AUTHORIZATION AND SALE OF SHARES. 1.1 AUTHORIZATION. The Company has authorized the issuance and sale to Purchaser of nine million nine hundred ninety-nine thousand nine hundred (9,999,900) shares of its Common Stock (the "Shares"). 1.2 SALE. Subject to the terms and conditions hereof, the Company hereby agrees to issue and sell to Purchaser, and Purchaser hereby agrees to purchase from the Company, the Shares free and clear of all liens, encumbrances and charges in exchange for the assets set forth on the attached EXHIBIT A (the "Contributed Assets"). 1.3 CLOSING. The closing of the sale of purchase of the Shares under this Agreement shall be held on November 17, 1999, at the offices of Cooley Godward LLP, Palo Alto, California, or at such other time and place as the Company and Purchaser may agree. 1.4 DELIVERY. At the closing and upon full payment of the purchase price of the Shares, the Company will deliver to the Purchaser a certificate representing the Shares, dated the date of the Closing. Upon the Company's reasonable request, Purchaser will provide the Company with such additional documentation as the Company may require confirming the transfer of the Contributed Assets to the Company on and as of the Closing. 2. REPRESENTATIONS OF THE PURCHASER. Purchaser hereby represents and warrants to the Company as follows: 2 (a) Purchaser is acquiring the Shares for Purchaser's own account, not as nominee or agent, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the 1933 Act. (b) Purchaser understands that (i) the Shares have not been registered under the 1933 Act by reason of a specific exemption therefrom, that they must be held by Purchaser indefinitely, and that Purchaser must, therefore, bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the 1933 Act or is exempt from such registration; (ii) each certificate representing the Shares will be endorsed with the following legend: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED" and (iii) the Company will instruct any transfer agent not to register the transfer of any of the Shares unless the conditions specified in the foregoing legend are satisfied. (c) Purchaser has been furnished with all the information necessary to make an informed investment decision. Purchaser has been given access to such information relating to the Company as Purchaser has requested. (d) By reason of Purchaser's business or financial experience, Purchaser has the capacity to make the decision referred to in subsection (c) above. 3. DISCLAIMER OF WARRANTIES. The Company understands and acknowledges that the Contributed Assets transferred by Axys to AAT under this agreement are transferred "AS IS" and "WHERE IS" and that there are no warranties, express, implied, or statutory, regarding the Contributed Assets, including any warranties of merchantability, fitness for a particular purpose, title, and noninfringement of third party rights. AAT acknowledges that it has relied on no warranties with respect to the Contributed Assets. 2 3 4. MISCELLANEOUS. 4.1 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing the Company's principal place of business. 4.2 SURVIVAL. The representations, warranties, covenants, and agreements made herein shall survive any investigation made by Purchaser and the closing of the transaction contemplated hereby. 4.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto. 4.4 ENTIRE AGREEMENT. This Agreement constitutes the full and entire understanding and agreement among the parties with regard to the subject matter hereof. 4.5 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 4.6 FURTHER ACTION. Each party shall, without further consideration, take such further action and execute and deliver such further documents as may be reasonably requested by the other party in order to carry out the provisions and purposes of this Agreement. 3 4 The foregoing Agreement is hereby executed as of the date first above written. AXYS ADVANCED TECHNOLOGIES, INC. /s/ ROBERT REED ------------------------------------- ROBERT REED President AXYS PHARMACEUTICALS, INC. /s/ WILLIAM J. NEWELL ------------------------------------- WILLIAM J. NEWELL Senior Vice President 4 5 EXHIBIT A ASSETS TO BE CONTRIBUTED BY AXYS PHARMACEUTICALS, INC. See attached list 5 6 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 1
7 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 2
8 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 3
9 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 4
10 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 5
11 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 6
12 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 7
13 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 8
14 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 9
15 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 10
16 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 11
17 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 12
18 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 13
19 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 14
20 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 15
21 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 16
22 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 17
23 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 18
24 AM260 Date 7/99 Time 16:19 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 200 Axys Pharmaceuticals, Inc. LJ USD 11/30/1999 Page 19
25 AM260 Date /14/99 Time 13:55 Asset Report Book INTERNAL USD From 01/01/1998 Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 1 SCHEDULE 2
26 AM260 Date /14/99 Time 13:55 Asset Report Book INTERNAL USD From 01/01/1998 Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 2
27 AM260 Date /14/99 Time 13:55 Asset Report Book INTERNAL USD From 01/01/1998 Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 3
28 AM260 Date /14/99 Time 13:55 Asset Report Book INTERNAL USD From 01/01/1998 Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 4
29 AM260 Date: 29/99 JOB SUBMISSION PARAMETERS Time: 16:27 User Name : ederlita Job Name : COMBI-BSLI Step Nbr : 1 =========================================================================== Selection Options Book, Preliminary Close: INTERNAL N No In Service Date: - 12311999 Company -or- Company Group: 100 Location: Division: Type: Property: All Category: All Disposals: N No - --------------------------------------------------------------------------- Additional Options Fully Depreciated: Y Yes Simulated: N No Tax Exempt: N No Used: N No Asset: -or- List: Tag: Asset Group: BSLI - --------------------------------------------------------------------------- Output Options Location: N No Category: N No Division: N No Property: N No Type/Sub: N No In-Service: N No Asset Group: N No Asset: Y Yes Attribute: Page Break: N No - --------------------------------------------------------------------------- 30 AM260 Date 9/99 Time 16:28 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 1
31 AM260 Date 9/99 Time 16:28 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 2
32 AM260 Date 9/99 Time 16:28 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 3
33 AM260 Date 9/99 Time 16:28 Asset Report Book INTERNAL USD From ___________ Thru 12/31/1999 Company: 100 Axys Pharmaceuticals, Inc. SSF USD 11/30/1999 Page 4