Memorialization Agreement between Ciphergen Biosystems, Inc. and Quest Diagnostics Incorporated

Contract Categories: Business Finance › Purchase Agreements
Summary

Ciphergen Biosystems, Inc. and Quest Diagnostics Incorporated entered into this agreement to clarify the terms of a previous Stock Purchase Agreement and related Warrant. The agreement specifies that Quest Diagnostics cannot exercise its warrant to acquire shares if doing so would result in owning more than 19.9% of Ciphergen's outstanding common stock, unless it sells enough shares to stay below this threshold. This clarification overrides any conflicting terms in the original agreements. The agreement is governed by Delaware law.

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EX-10.40 6 f33878orexv10w40.htm EXHIBIT 10.40 exv10w40  

Exhibit 10.40
MEMORIALIZATION AGREEMENT
     This Memorialization Agreement is entered into as of this 12th day of January, 2006, between Ciphergen Biosystems, Inc., a Delaware corporation (the “Company”), and Quest Diagnostics Incorporated (the “Purchaser”) (each a “Party” and together the “Parties”).
RECITALS
     1. The Company and the Purchaser have previously entered into a Stock Purchase Agreement dated as of July 22, 2005 (the “Purchase Agreement”) providing for the sale to the Purchaser of 6,225,000 shares of Common Stock (the “Common Stock”) of the Company and the issuance to the Purchaser of a Warrant (the “Warrant”) to purchase additional 2,200,000 shares of Common Stock (the “Warrant Shares”).
     2. The Company and the Purchaser now wish to clarify their original intent with regard to the terms of the Purchase Agreement and the Warrant.
     NOW, THEREFORE, the Parties agree as follows:
     1. The Warrant may not be exercised for a number of shares that would result in the Purchaser, after the issuance of any Warrant Shares, owning more than 19.9% of the number of shares of the Company’s Common Stock outstanding as of the date of such exercise; provided that Purchaser may, prior to or concurrently with the issuance of any Warrant Shares, sell such number of shares of Common Stock that, after giving effect to the issuance of the Warrant Shares and such sale, Purchaser would not own more than 19.9% of the shares of the Common Stock.
     2. The foregoing shall constitute the agreement of the Parties notwithstanding any language contained in the Purchase Agreement or the Warrant which may be construed to the contrary.
     3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
     IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the day and year first written above.
         
CIPHERGEN BIOSYSTEMS, INC.    
 
        
By:
  /s/ Gail S. Page
 
    
Name:
  Gail S. Page    
Title:
  President & CEO    
 
        
QUEST DIAGNOSTICS INCORPORATED    
 
        
By:
  /s/ Catherine T. Doherty    
 
       
Name:
  Catherine T. Doherty    
Title:
  VP, Office of the Chairman