EXHIBIT 10.3
SECURITIES PURCHASE AGREEMENT
between
MYRIAD GENETICS, INC.,
and
SCHERING BERLIN VENTURE CORPORATION
Dated as of October 15, 1999
SECURITIES PURCHASE AGREEMENT
THIS AGREEMENT, made as of October 15, 1999 (the "Effective Date"), is by
and between MYRIAD GENETICS, INC., a Delaware corporation with principal offices
at 320 Wakara Way, Salt Lake City, Utah (the "Company"), and SCHERING BERLIN
VENTURE CORPORATION, a Delaware corporation with offices at 340 Changebridge
Road, Pine Brook, New Jersey (the "Purchaser").
WHEREAS the Company and the Purchaser are discussing a potential business
collaboration in connection with which the parties hereto intend to enter into
this Securities Purchase Agreement and a Standstill Agreement substantially in
the form attached as Exhibit A hereto;
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Standstill Agreement and this Securities Purchase Agreement, the parties agree
as follows:
SECTION 1. Authorization of Sale of the Common Shares. The Company has
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authorized the issuance and sale to the Purchaser of that number of shares
(each, a "Common Share" and, collectively, the "Common Shares") of common stock,
$.01 par value per share ("Common Stock"), of the Company, as is equal to the
quotient obtained by dividing $5,000,000 by $16.50 (the "Common Stock Price"),
rounded to the next highest full Common Share.
SECTION 2. Agreement to Sell and Purchase the Shares. On the terms and
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subject to the conditions of this Securities Purchase Agreement, at the Closing
(as defined in Section 3 hereof), the Company will sell, transfer and deliver to
the Purchaser, and the Purchaser will buy from the Company the Common Shares, at
an aggregate purchase price of $5,000,000 (the "Common Purchase Price").
SECTION 3. Delivery of the Shares at the Closing. The completion of the
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purchase and sale of the Common Shares pursuant to this Stock Purchase Agreement
(the "Closing") shall occur on the Effective Date or such later time as shall be
agreed to by the Company and the Purchaser. At the Closing, the Company shall
issue and deliver to Purchaser a stock certificate representing the Common
Shares, such certificate to be registered in the name of the Purchaser. The
Company's obligation to close the transaction shall be subject to the following
conditions, any of which may be waived by the Company: (a) the receipt by the
Company of a certified or official bank check or wire transfer of funds in the
full amount of the Common Purchase Price for the Common Shares being purchased
hereunder; (b) the accuracy of the representations and warranties made by the
Purchaser herein as though such representations and warranties had been made on
and as of the Closing, and the fulfillment of those undertakings of the
Purchaser to be fulfilled prior to the Closing and the Company's receipt of a
Certificate of an authorized officer of the Purchaser certifying the same; (c)
the execution and delivery by the Purchaser of the Standstill Agreement; and (d)
no statute, law, ordinance, rule or regulation or injunction enacted, entered,
promulgated, enforced or issued by any Federal, state, local or foreign
government or any court of competent jurisdiction, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign (a "Governmental Entity"), or other legal restraint or prohibition
preventing the consummation of the transactions contemplated hereby being in
effect. The Purchaser's obligation to close the transaction shall be subject to
the fulfillment of the following conditions, any of which may be waived by the
Purchaser: (a) the accuracy of the representations and warranties made by the
Company herein as of the Closing as though such representations and warranties
had been made on and as of the Closing, the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof and the
fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing, and the Purchaser's receipt of a certificate executed by the President
of the Company certifying the same; (b) no statute, law, ordinance, rule or
regulation or injunction enacted, entered, promulgated, enforced or issued by
any Governmental Entity or other legal restraint or prohibition preventing the
consummation of the transactions contemplated hereby being in effect and (c)
there not being pending or threatened any suit, action or proceeding challenging
or seeking to restrain or prohibit the transactions contemplated by this
Securities Purchase Agreement or seeking to obtain from
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Purchaser in connection with the transactions contemplated by this Securities
Purchase Agreement any damages that are material in relation to Purchaser or
seeking to impose limitations on the ability of Purchaser to acquire or hold, or
exercise full rights of ownership of, the Common Shares, including the right to
vote the Common Shares on all matters properly presented to the stockholders of
the Company.
SECTION 4. Representations, Warranties and Covenants of the Company. The
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Company hereby represents and warrants to, and covenants with, the Purchaser as
follows:
4.1. Organization. Each of the Company and its wholly-owned
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subsidiaries, Myriad Pharmaceuticals, Inc., Myriad Genetic Laboratories, Inc.
and Myriad Financial, Inc. (the "Subsidiaries"), has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized. Each of the Company and the
Subsidiaries has full corporate power and authority and possesses all
governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease, operate and occupy its properties and to
conduct its business as presently conducted and is duly registered or qualified
to do business and in good standing in each jurisdiction in which it owns or
leases property or transacts business and where the failure to be so qualified
would have a material adverse effect upon the business, condition (financial or
other), properties, prospects or results of operations of the Company and the
Subsidiaries, taken together. The Company does not own, directly or indirectly,
any interest in any corporation, association, or other entity, other than the
Subsidiaries. The Company has delivered to Purchaser true and complete copies of
its certificate of incorporation and by-laws, in each case as amended through
the date of this Securities Purchase Agreement.
4.2. Due Authorization. The Company has all requisite corporate power
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and authority to execute, deliver and perform its obligations under this
Securities Purchase Agreement, and the execution and delivery of this Securities
Purchase Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action. The Company has
duly executed and delivered this Securities
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Purchase Agreement and this Securities Purchase Agreement constitutes a legal,
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as (i) rights to indemnity and contribution
may be limited by state, federal or foreign laws or the public policy underlying
such laws, (ii) enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally, and (iii) enforceability may be subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4.3. Non-Contravention. The execution and delivery of this Securities
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Purchase Agreement, the issuance and sale of the Common Shares to be sold by the
Company hereunder, the fulfillment of the terms of this Securities Purchase
Agreement and the consummation of the transactions contemplated hereby will not
conflict with, result in a breach or constitute a violation of, or default (with
the passage of time or otherwise) under or result in the creation or imposition
of any lien, charge, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or the
Subsidiaries or an acceleration of indebtedness pursuant to (i) the charter, by-
laws or other organizational documents of the Company or the Subsidiaries (ii)
the terms of any obligation, agreement, bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or any other
agreement or instrument to which any of the Company or the Subsidiaries is a
party or by which any of them is bound or to which any of the property or assets
of the Company or the Subsidiaries is subject, or (iii) any statute, law, rule,
administrative regulation, ordinance, judgement, decree or order applicable to
the Company or the Subsidiaries of any court, or governmental body, regulatory
body, administrative agency, arbitrator or other authority having jurisdiction
over the Company or the Subsidiaries or any of its or their properties. No
consent, approval, authorization or other order of, or registration,
qualification or filing with, any court, regulatory body, administrative agency,
or other governmental body is required to be made or obtained by or on behalf of
the Company for the valid issuance and sale of the Common Shares to be sold
pursuant to this Securities Purchase Agreement or in connection with the
execution, delivery and performance of this Securities Purchase Agreement or the
consummation of the transaction contemplated hereby, other than such as have
been made or obtained.
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4.4. No Material Adverse Change. Subsequent to the date of the most
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recent Quarterly Report on Form 10-Q filed by the Company with the Securities
and Exchange Commission, the Company and the Subsidiaries taken together have
not incurred any material liabilities or obligations, direct or contingent,
other than in the ordinary course of business, and there has not been any
material adverse change in their consolidated condition (financial or other),
earnings, results of operations, business, prospects, properties, key personnel
or capitalization.
4.5 Capitalization. As of June 30, 1999, the Company had a total
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authorized capitalization consisting of (i) 15,000,000 shares of common stock,
$0.01 par value per share of which 9,428,732 shares were outstanding, and (ii)
5,000,000 shares of preferred stock, $.01 par value per share, of which no
shares were outstanding. As of such date, there were outstanding options to
acquire a total of 1,954,791 shares of Common Stock and outstanding warrants to
acquire a total of 26,243 shares of Common Stock. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable. The Common Shares have been duly authorized and, when
issued and paid for pursuant to the terms of this Securities Purchase Agreement,
will be validly issued, fully paid and nonassessable.
4.6 Disclosure. No representation or warranty of the Company
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contained in this Securities Purchase Agreement, and no statement contained in
any document or certificate furnished by or on behalf of the Company to
Purchaser pursuant to this Securities Purchase Agreement contains, or will
contain any untrue statement of a material fact, or omits, or will omit to state
any material fact necessary in order to make the statements contained herein, in
light of the circumstances under which they were made, not misleading or
necessary in order to fully and fairly provide the information required to be
provided in any such document or certificate.
4.7 Private Offering. None of the Company, its affiliates and its
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representatives has issued, sold or offered any security of the Company to any
person under circumstances that would cause the sale of the Common Shares, as
contemplated by this Securities Purchase Agreement, to be subject to the
registration requirement of the Securities Act
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of 1933, as amended (the "Securities Act"), or applicable state securities laws.
None of the Company, its affiliates and its representatives will offer the
Common Shares or any part thereof or any similar securities for issuance or sale
to, or solicit any offer to acquire any of the same from, anyone so as to make
the issuance and sale of the Common Shares subject to the registration
requirements of Section 5 of the Securities Act or applicable state securities
laws. Assuming the representations of the Purchaser contained in Section 5.1 are
true and correct, the sale and delivery of the Common Shares hereunder are
exempt from the registration and prospectus delivery requirements of the
Securities Act or applicable state securities laws.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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5.1. Securities Act Exemption. The Purchaser represents and warrants
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to, and covenants with, the Company, as of the date hereof and as of the Closing
Date, that (i) the Purchaser is an "accredited investor" as defined in
Regulation D under the Securities Act, and also is knowledgeable and experienced
in making investments in private placement transactions such as the purchase of
the Common Shares; (ii) the Purchaser is acquiring the Common Shares for its own
account for investment and with no present intention of distributing any of such
Common Shares, and no arrangement or understanding exists with any other person
regarding the distribution of any of such Common Shares (these representations
and warranties not limiting the Purchaser's right to sell pursuant to an
effective registration statement registering the Common Shares for resale or
pursuant to any other means of sale legally available), (iii) the Purchaser will
not, directly or indirectly, voluntarily offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Common Shares except in compliance with
the Securities Act, applicable state securities laws and the respective rules
and regulations promulgated thereunder; and (iv) the Purchaser has had an
opportunity to ask questions of and receive answers from the management of the
Company regarding the Company, its business and the offering of the Common
Shares.
5.2. Due Authorization. The Purchaser further represents and warrants
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to, and covenants with, the Company that (i) the Purchaser has all requisite
power and authority to
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execute, deliver and perform this Securities Purchase Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Securities
Purchase Agreement and (ii) upon the execution and the delivery hereof, this
Securities Purchase Agreement shall constitute a valid and binding obligation of
the Purchaser enforceable in accordance with its terms, except as rights to
indemnity and contribution may be limited by state, federal or foreign laws or
the public policy underlying such laws, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally, and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3. Restrictions on Transfer. The Purchaser acknowledges and
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understands that the Common Shares have not been registered under the Securities
Act and applicable state securities laws and, therefore, cannot be sold unless
subsequently registered under the Securities Act or an exemption from such
registration is available. The certificate representing the Common Shares issued
to the Purchaser will bear a legend in substantially the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT AND APPLICABLE STATE LAW OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED. THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO THE PROVISIONS OF A SECURITIES PURCHASE AGREEMENT DATED AS
OF OCTOBER 15, 1999.
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The Purchaser agrees that any sale, transfer, pledge, hypothecation or
other disposition of the Common Shares shall be made in compliance with such
legends.
5.4. Lock-up. If (i) during the Registration Period (as hereafter
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defined), the Company shall file a registration statement with the SEC under the
Securities Act (other than in connection with the registration of securities
issuable pursuant to an employee stock option, stock purchase or similar plan or
pursuant to a merger, exchange offer or a transaction of the type specified in
Rule 145 under the Securities Act) with respect to the Common Stock or
securities convertible into, or exchangeable or exercisable for, Common Stock
and (ii) with reasonable prior notice, the Company (in the case of a non-
underwritten offering by the Company pursuant to such registration statement)
advises the Purchaser in writing that a public sale or distribution of Common
Shares would materially adversely affect such offering or the underwriter (in
the case of an underwritten offering by the Company pursuant to such
registration statement) advises the Company in writing (in which case the
Company shall notify the Purchaser) that a public sale or distribution of Common
Shares would adversely impact such offering, then the Purchaser agrees that it
shall, if so requested by the Company, enter into an agreement providing that it
shall not, to the extent not inconsistent with applicable law, effect any public
sale or distribution of Common Shares, including sales under Rule 144 of the
Securities Act, or any securities convertible into or exercisable for Common
Shares until the earliest of (A) 90 days from the effective date of such
registration statement, (B) the abandonment of such offering, and (C) if such
offering is an underwritten offering, the termination in whole or in part of any
"holdback" period obtained by the underwriter in such offering from the Company
in connection therewith.
SECTION 6. Survival of Representations, Warranties and Agreements;
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Indemnification.
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6.1 Survival of Representations, Warranties and Agreements. Notwithstanding
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any investigation made by any party to this Securities Purchase Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein shall survive the execution hereof, the delivery to the
Purchaser of the Common Shares being
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purchased, and the payment therefor. The provisions of Sections 6.2, 6.3, 7.6,
and 14 shall survive the termination or cancellation of this Securities Purchase
Agreement.
6.2 Indemnification by the Company. The Company hereby agrees to defend,
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indemnify and hold the Purchaser, its Affiliates, and their respective officers,
directors, employees and agents (collectively, the "Purchaser Indemnitees")
harmless from and against any damages, liabilities, losses and expenses
(including reasonable attorneys' fees and expenses) suffered or incurred by the
Purchaser Indemnitees as a result of or based upon any material breach of any
representation, warranty or agreement of the Company in this Securities Purchase
Agreement, or by reason of any claim, action or proceeding asserted or arising
out of a breach of any such representation, warranty or agreement. Affiliate
means, with respect to any specified person, any other person that directly or
indirectly, through one or more intermediates, controls, is controlled by or is
under common control with, such specified person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by and "under common control with"), as used with respect to any
person, means the direct or indirect possession of the power to direct or cause
the direction of the management or policies of such person, whether through the
ownership of voting securities, by contract or otherwise.
6.3 Indemnification by the Purchaser. The Purchaser hereby agrees to
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defend, indemnify and hold the Company and its Affiliates and their respective
officers, directors, employees and agents (collectively, the "Company
Indemnitees") harmless from and against any damages, liabilities, losses and
expenses (including reasonable attorneys' fees and expenses) which are suffered
or incurred by the Company Indemnitees as a result of or based upon any material
breach of any representation, warranty or agreement of the Purchaser in this
Securities Purchase Agreement, or by reason of any claim, action or proceeding
asserted or arising out of a breach of any such representation, warranty or
agreement.
SECTION 7. Registration of the Shares; Compliance with the Securities Act.
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7.1 "Piggyback" Registration. If at any time the Company shall
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initiate a
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registration under the Securities Act of any of its Common Stock or securities
convertible into or exercisable for shares of Common Stock for its own account,
other than securities to be issued solely (i) in connection with any acquisition
of any entity or business, (ii) upon the exercise of stock options, or (iii)
pursuant to employee benefit plans (including registrations on Form S-8 or Form
S-4 or their then equivalents), it shall send to the Purchaser prompt written
notice of such determination (which notice shall include the anticipated date of
the initial sale of securities in such offering (the "Sale Date") and the number
of shares of Common Stock proposed to be included in such registration) at least
30 days prior to the Sale Date and, if within fifteen (15) days after the giving
of such notice, the Purchaser shall so request in a writing received by the
Company, the Company shall include in such registration statement the number of
Common Shares that the Purchaser requests to be registered therein; except that,
if in connection with any underwritten public offering of Common Stock by the
Company, the underwriter shall advise the Company in writing that, in the
judgment of the underwriter, the number of shares of Common Stock requested to
be included in such offering would materially adversely affect its ability to
effect such offering, then the number of Common Shares to be included in such
registration statement shall be limited to the extent necessary to effect such
offering as determined by the underwriter (which may be the complete exclusion
of such Common Shares); provided, however, that such limitation shall be
proportionate to the limitation applied to any other holders of Common Stock
with "piggyback" registration rights who request the inclusion of shares in the
registration statement based on the number of shares of Common Stock requested
to be included. The Purchaser may elect to withdraw from participation in a
registration pursuant to this Section 7.1 by written notice to the Company no
later than the seventh day prior to the effective date of such registration
statement. The Company will use commercially reasonable efforts to maintain the
effectiveness of any registration statement under which any of the Common Shares
are being offered pursuant to this Section 7.1 until the earlier to occur of (a)
the completion of the distribution pursuant to such registration statement or
(b) thirty (30) days after the effectiveness of such registration statement.
7.2 Demand Registrations. (a) Subject to the provisions of this
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Section 7.2, the Purchaser shall have the right, upon written demand given to
the Company (the "Demand
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Notice") to request the Company to register its Common Shares (a "Demand
Registration") under and in accordance with the provisions of the Securities Act
by filing and having declared effective a registration statement (a "Demand
Registration Statement"), covering the Common Shares held by it.
(b) Within 45 days of receipt of a Demand Notice, the Company shall
file with the SEC a registration statement on the appropriate form for the
registration and sale (which shall be a short form registration if possible), in
accordance with the intended method or methods of distribution, of the total
number of Common Shares specified by the Purchaser in such Demand Notice.
(c) The Company shall use its reasonable best efforts to cause such
Demand Registration Statement to be declared effective by the SEC and to keep
such Demand Registration Statement continuously effective throughout the
Registration Period. As used herein, "Registration Period" shall mean with
respect to a Demand Registration Statement a period commencing on the effective
date of such Demand Registration Statement and ending on the earlier of the (i)
first day on which all Common Shares included in such Demand Registration
Statement have been sold as described therein and (ii) the 180th day after the
effective date.
(d) In connection with any Demand Registration in which other holders
of Common Stock elect to include shares of Common Stock in such Demand
Registration pursuant to registration rights granted by the Company to such
holders (such holders being collectively referred to with the Purchaser as the
"Selling Securityholders"), such election shall only be valid if such holders
agree to pay a pro rata share of all the costs and expenses incurred in
connection with such Demand Registration. In the event that such Demand
Registration involves an underwritten offering and the managing underwriter or
underwriters participating in such offering (collectively, the "Underwriter")
shall advise the Company and the Selling Securityholders in writing that, in the
judgment of the Underwriter, the number of shares of Common Stock requested to
be included in such offering would materially adversely affect its ability to
effect such offering, then the Company will include in such offering, to the
extent of the number of
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shares of Common Stock that can be sold in such offering: first, Common Shares
requested to be sold by the Purchaser and second, all other Common Stock
proposed to be registered by the Selling Securityholders other than the
Purchaser. No securities other than shares of Common Stock shall be included in
such Demand Registration Statement without the written consent of the Purchaser.
(e) Notwithstanding the foregoing, the Company shall be entitled to
postpone, for a period of not more than 90 days after receipt of a Demand
Notice, the filing of any Demand Registration Statement otherwise required to be
prepared and filed by it pursuant to Section 7.2(a) hereof if, at the time the
Company receives a Demand Notice, the Board of Directors of the Company
determines in its reasonable judgment that such registration and offering would
interfere with any material financing, acquisition, corporate reorganization or
other material transaction or development involving the Company and promptly
gives the Purchaser written notice of such determination; provided that (i) upon
such postponement by the Company, the Company shall be required to file such
Demand Registration Statement as soon as practicable after the Board of
Directors of the Company shall determine, in its reasonable business judgment,
that such registration and offering will not interfere with the aforesaid
material financing, acquisition, corporate reorganization or other material
transaction or development involving the Company and (ii) no more than one such
postponement shall occur in any 360 day period.
(f) The Purchaser may, at any time prior to the Effective Date of such
Demand Registration, revoke such demand by providing written notice to the
Company. In such event, the Purchaser shall reimburse the Company for its
out-of-pocket expenses incurred in the preparation, filing and processing of
the Demand Registration.
7.3 Notice During Effectiveness of Registration Statements. The
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Company will promptly notify the Purchaser and each underwriter under any
registration statement under which any of the Common Shares are being offered
pursuant to Section 7.1 or 7.2 hereof, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
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prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a 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. The Purchaser agrees
upon receipt of such notice forthwith to cease making offers and sales of Common
Shares pursuant to such registration statement or deliveries of the prospectus
contained therein for any purpose until the Company has prepared and furnished
such amendment or supplement to the prospectus as may be necessary so that, as
thereafter delivered to a purchaser of Common Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing. The Purchaser
further agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in this Section 7.3, the Purchaser
will, if requested by the Company, deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in the Purchaser's
possession of the prospectus current at the time of receipt of such notice from
the Company.
7.4 Expenses of Registration. All costs and expenses incurred in
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connection with any registration pursuant to Section 7.1, including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel for the Company, and expenses of any special
audits of the Company's financial statements incidental to or required by such
registration shall be paid by the Company; provided, however, that the Company
shall have no obligation to pay any stock transfer taxes, underwriters' fees,
discounts or commissions with respect to the sale of the Common Shares, or the
fees and expenses of any counsel or advisor to the Purchaser. All costs and
expenses incurred in connection with any registration pursuant to Section 7.2,
including, without limitation, all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company, and
expenses of any special audits of the Company's financial statements incidental
to or required by such registration shall be paid by the Purchaser; provided,
however, that the Purchaser shall have no obligation to pay any stock transfer
taxes, underwriters' fees, discounts or commissions with respect to the sale of
Common Stock offered by persons other than the Purchaser.
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7.5 Registration Procedures. Whenever the Purchaser has requested
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that any Common Shares be included or registered in a Company registration
statement pursuant to this Section 7, the Company will use commercially
reasonable efforts to effect the registration and sale of such Common Shares
upon the terms and conditions hereof, and in connection with any such request,
the Company will:
(a) prepare and file with the SEC, and furnish to the Purchaser
and its counsel prior to the filing thereof, a copy of such
registration statement (including any preliminary prospectus contained
therein), and each amendment (including post-effective amendments)
thereto and each amendment or supplement, if any, to the prospectus
included therein and shall reflect in each such document, when so
filed with the SEC, such comments as the Purchaser reasonably may
propose;
(b) use its best efforts to ensure that (i) such registration
statement and any amendment thereto and such prospectus forming part
thereof and any amendment or supplement thereto complies as to form in
all material respects with the Securities Act, (ii) such registration
statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements contained therein not misleading and (iii) any
prospectus forming part of such registration statement, and any
amendment or supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in light
of the circumstances under which they were made, not misleading;
provided, however, that the Company shall have no liability under
clauses (ii) or (iii) of this paragraph (b) with respect to any such
untrue statement or omission made therein in reliance upon and
conformity with information furnished to the Company by or on behalf
of the Purchaser for inclusion therein;
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(c) use its best efforts to register or qualify or cooperate
with Purchaser and its counsel in connection with the registration or
qualification of such Common Shares under the securities or blue sky
laws of such jurisdictions as the Purchaser, may reasonably request
and do any and all other acts and things which may be reasonably
necessary or advisable to enable the Purchaser to consummate the
disposition in such jurisdictions of the Common Shares; provided, that
the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this paragraph (b), or (ii) take any action that
would subject it to the service of process in suits other than
relating to the sale of the Common Shares or any violation of state
securities laws in any jurisdiction where it is not now so subject;
(d) use its best efforts to cause the Common Shares covered by
such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the Purchaser or the underwriter or underwriters, if any, to
consummate the disposition of such Common Shares subject to the
proviso contained in paragraph (c) above;
(e) promptly advise the Purchaser and, if requested by the
Purchaser, promptly confirm such advice in writing:
(i) when such registration statement or prospectus and any
amendment or supplement thereto has been filed with the SEC
and when such registration statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to
such registration statement or the prospectus included
therein or for additional information;
-15-
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such registration statement or the
initiation or threat of any actions or proceeding for that
purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption
from qualification of the Common Shares included in such
registration statement for sale in any jurisdiction or the
initiation or threatening of any action or proceeding for
such purpose; and
(v) of the happening of any event that requires the amendment or
supplementation of such registration statement or prospectus
(or documents incorporated or deemed to be incorporated
therein by reference) so that, as of such date, the
statements therein are not misleading and do not contain any
untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements contained therein (in the case of the
prospectus, in light of the circumstances under which they
were made) not misleading;
(f) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
the lifting of any suspension of the qualification or exemption from
qualification of any common Shares for sale in any jurisdiction in the
United States, at the earliest possible time;
(g) furnish to the Purchaser and its counsel and the underwriter, if
any, and its counsel, without charge, a conformed copy of such
registration statement and any and all post-effective amendments
thereto, including financial statements and schedules, and all
exhibits thereto (including those incorporated therein by reference);
-16-
(h) deliver to the Purchaser, without charge, as many copies of the
prospectus included in such registration statement and any amendment
or supplement thereto as the Purchaser shall reasonably request; and
subject to Section 9.9 hereof, the Company consents to the use of the
prospectus or any amendment or supplement thereto by the Purchaser in
connection with the offering and sale of the Common Shares covered by
the prospectus or any amendment or supplement thereto;
(i) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions (including
obtaining customary opinions of counsel for the Company) as are
reasonably required in order to expedite or facilitate the disposition
of such Common Shares;
(j) to the extent customary for an offering of the type registered by
such registration statement, use its best efforts to obtain a comfort
letter from the Company's independent public accountants in customary
form and covering matters of the type customarily covered by comfort
letters with respect to such type of offering;
(k) otherwise comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as
soon as reasonably practicable, an earnings statement covering a
period of 12 months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 thereunder.
(l) cause all such Common Shares to be listed on each securities
exchange or quotation system on which similar securities issued by the
Company are then listed;
(m) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") and in
the performance of
-17-
any due diligence investigation that is required in accordance with
the rules and regulations of the NASD;
(n) cooperate with the Purchaser to facilitate the timely preparation
and delivery of certificates representing Common Shares to be sold
pursuant to such registration statement in such denominations and
registered in such names as the Purchaser may reasonably request at
least two business days prior to such sales;
(o) at any time and from time to time upon the occurrence of any event
contemplated by paragraph 7.5 (e) (v) above, the Company shall use its
reasonable best efforts to prepare and file with the SEC as soon as
reasonably practicable a post-effective amendment to such registration
statement or an amendment or supplement to the related prospectus or
file any other required document so that, as thereafter delivered to
purchasers of the Common Shares offered thereby, the prospectus will
not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements contained therein
(in the case of the prospectus, in the light of the circumstances
under which they were made) not misleading; and
(p) the Company shall make reasonably available for inspection during
normal business hours by the Purchaser and any attorney, accountant or
other agent retained by the Purchaser (collectively, the
"Inspectors"), all financial and other records and other information,
pertinent cooperate documents and properties of any of the Company and
its Subsidiaries and Affiliates (collectively, the "Records"), as
shall be reasonably necessary to enable the Inspectors to exercise
their due diligence responsibility; provided, however, that the
Records that the Company determines, in good faith, to be confidential
and which it notifies any Inspectors are confidential shall not be
disclosed to any Inspector unless such Inspector signs a
confidentiality agreement reasonably satisfactory to the Company.
-18-
The Company may require the Purchaser to furnish to the Company such
information regarding the distribution of the Common Shares as the Company may
from time to time reasonably request in writing that is required for inclusion
in any registration statement.
7.6 Indemnification.
---------------
(a) Indemnification by the Company. In connection with any
------------------------------
registration statement in which the Purchaser's Common Shares are included
pursuant hereto, the Company will indemnify and hold harmless the Purchaser,
together with each of the Purchaser's officers, directors, employees, agents and
partners, and each underwriter of the Common Shares, if any, and each person who
controls the Purchaser or any underwriter within the meaning of the Exchange Act
or the Securities Act, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement or prospectus or an amendment thereof or
supplement thereto, or arising out of or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such person for any legal and other expenses reasonably incurred in connection
with investigating, defending or settling any such claim, loss, damage,
liability or action, provided that the Company will not be liable, in any such
case to the extent that any such claim, loss, damage or liability arises out of
or is based on any untrue statement or omission (or alleged untrue statement or
omission) made therein in reliance upon and in conformity with written
information furnished to the Company by the Purchaser or underwriter
specifically for use therein. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Indemnification by the Purchaser. The Purchaser will, if any of
--------------------------------
its Common Shares are included in a registration pursuant hereto, indemnify the
Company, each of its directors, and each of its officers who signs the
registration statement, if any, of the Common Shares covered by such
registration statement, and each person who controls the Company and
-19-
any underwriter within the meaning of the Securities Act, against all claims,
losses, expenses, damages and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement or prospectus or
any amendment thereof or supplement thereto, or arising out of or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such person for any legal and other expenses reasonably
incurred in connection with investigating, defending or settling any such claim,
loss, damage, liability or action, in each case to the extent, but only to the
extent, that such untrue statement or omission (or alleged untrue statement or
omission) is made in such registration statement or prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with written
information relating to the Purchaser furnished to the Company by the Purchaser
specifically for use therein.
(c) Contribution. In the event that the indemnity provided in
------------
Paragraph (a) o (b) of this Section 7.6 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and the Purchaser
will contribute to the aggregate losses, claims, damages or liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which they may be subject (after
contribution from others) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Purchaser on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. Relative fault shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Purchaser on the other, and
each party's relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission; provided, however,
that, in any such case, (a) the Purchaser will not be required to contribute any
amount in excess of the public offering price of all Common Shares offered by it
pursuant to such registration statement and (b) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was
-20-
not guilty of such fraudulent misrepresentation. The Company and the Purchaser
agree that it would not be just and equitable if contributions were determined
by pro rata allocation or any other method of allocation that does not take
account of the equitable considerations referenced above.
(d) Indemnification Procedures. Each party entitled to indemnification
--------------------------
under this Section 7.6 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party who shall conduct the defense of such claim or litigation
shall be approved by the Indemnified Party (which approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless and to the extent it did
not otherwise learn of such claim and such failure resulted in the forfeiture by
the Indemnifying Party of substantial rights and defenses. Notwithstanding the
Indemnifying Party's election to appoint counsel to represent the Indemnified
Party in an action, the Indemnified Party shall have the right to employ
separate counsel (including local counsel), and the Indemnifying Party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the Indemnifying Party to represent the Indemnified
Party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified Party shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, (iii) the Indemnifying Party shall not have
employed counsel satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of the institution of
such action or (iv) the Indemnifying Party shall authorize the Indemnified Party
to employ separate counsel at the expense of the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the prior written consent of each Indemnified Party,
-21-
compromise, consent to entry of any judgment or enter into any settlement which
does not include an unconditional release of each Indemnified Party from all
liability in respect of such claim or litigation.
7.7 Transferability of Registration Rights. The registration rights
--------------------------------------
granted hereunder may be transferred by the Purchaser (a) with the prior written
consent of the Company, (b) without the prior written consent of the company to
any Affiliate of the Purchaser, or (c) without the prior written consent of the
Company in connection with transfers of a material portion of the Common shares
or Preferred Shares to not more than two (2) transferees; provided, however,
that each transferee of registration rights hereunder shall be subject to the
same obligations as the Purchaser, and provided, further, that if any of such
transferees are Affiliates of the Purchaser, one entity (which may be the
Purchaser) shall be designated by the Purchaser to act on behalf of the
Purchaser and such Affiliates to give and receive all notices and other
communications pursuant to this Section 7.
SECTION 8. Rule 144 Reporting
------------------
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Common Shares to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act;
(c) furnish to any holder of Common Shares forthwith upon
request a written statement by the Company as to its compliance with
the reporting
-22-
requirements of Rule 144 and of the Securities Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company
as such holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing such holder to sell any
Common Shares without registration; and
(d) take such action as the Purchaser may reasonably request, to
the extent required from time to time to enable Purchaser to sell
Common Shares without registration under the Securities Act within the
limitations of the exemption provided by Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
SECTION 9. No Fee. The parties hereto hereby represent that there are no
------
brokers or finders entitled to compensation in connection with the transactions
contemplated hereby.
SECTION 10. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid:
if to the Company, to:
Myriad Genetics, Inc.
320 Wakara Way
Salt Lake City, Utah 84108
Fax: (801) 584-3640
Attention: President
and
Attention: General Counsel
-23-
with a copy to:
Jonathan L. Kravetz, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Fax: (617) 542-2241
if to the Purchaser, to:
Schering Berlin Venture Corporation
340 Changebridge Road
Montville, NJ 07045-1000
Attention: General Counsel
Fax: (973) 276-2000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telecopy or facsimile transmission, at the time that receipt
thereof has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight courier, on the next business day following the day such
notice is delivered to the courier service, or (iv) if sent by registered or
certified mail, on the 5th business day following the day such mailing is made.
SECTION 11. Changes. Any term of this Securities Purchase Agreement may be
-------
amended or compliance therewith waived only with the written consent of the
parties hereto.
SECTION 12. Assignment. Subject to Section 7.8 hereof, the rights and
----------
obligations under this Securities Purchase Agreement may not be assigned by any
party hereto without the prior written consent of the other party; provided,
however, that the Purchaser may, without such prior written consent of the
Company, assign its rights and obligations hereunder to an Affiliate.
SECTION 13. Benefit. All statements, representations, warranties,
-------
covenants and agreements in this Securities Purchase Agreement shall be binding
on, and inure to the benefit of,
-24-
the respective parties hereto and their respective successors and permitted
assigns. Nothing herein shall be construed to create any rights or obligations
except among the parties hereto, and no person or entity shall be regarded as a
third-party beneficiary of this Securities Purchase Agreement, except as
expressly provided in Section 7.6.
SECTION 14. Expenses. Subject to Section 7.4 hereof, each of the parties
--------
hereto shall pay its own fees and expenses (including the fees of any attorneys,
accountants, appraisers or others engaged by such party) in connection with this
Securities Purchase Agreement, the Standstill Agreement and the transactions
contemplated hereby and thereby whether or not the transactions contemplated
hereby or thereby are consummated.
SECTION 15. Headings. The headings of the various sections of this
--------
Securities Purchase Agreement have been inserted for convenience of reference
only and shall not be deemed to be part hereof.
SECTION 16. Severability. In case any provision contained in this
------------
Securities Purchase Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
SECTION 17. Governing Law. This Securities Purchase Agreement shall be
-------------
governed by and construed in accordance with (a) the internal laws of the State
of Delaware without giving effect to principles of conflicts of law, and (b)
with respect to Section 8 hereof, United States federal law.
SECTION 18. Counterparts. This Securities Purchase Agreement may be
------------
executed in counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
-25-
IN WITNESS WHEREOF, the parties hereto have duly executed this Securities
Purchase Agreement as of this 15th day of October, 1999.
SCHERING BERLIN VENTURE CORPORATION
By: /s/ John Nicholson
-------------------------
Name: John Nicholson
Title: Treasurer
MYRIAD GENETICS, INC.
By: /s/ Peter D. Meldrum
-------------------------
Peter D. Meldrum
President and Chief Executive Officer
-26-
EXHIBIT A
---------
MYRIAD GENETICS, INC.
STANDSTILL AGREEMENT
THIS AGREEMENT, dated as of October 15, 1999, is between SCHERING BERLIN
VENTURE CORPORATION, a Delaware corporation having a place of business at 340
Changebridge Road, Pine Brook, New Jersey (the "Purchaser"), and MYRIAD
GENETICS, INC., a Delaware corporation having a place of business at 320 Wakara
Way, Salt Lake City, Utah (the "Company").
WITNESSETH:
WHEREAS on the date hereof, the Purchaser is acquiring 303,030 shares (the
"Shares") of common stock, $.01 par value per share ("Common Stock") of the
Company pursuant to the terms of a Securities Purchase Agreement dated as of the
date hereof (the "Securities Purchase Agreement"); and
WHEREAS the execution and delivery of this Agreement by the Purchaser is a
condition precedent to the Company's obligations under the Securities Purchase
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties,
intending to be legally bound hereby, agree as follows:
ARTICLE I
Representations and Warranties
------------------------------
Section 1.01 The Purchaser hereby represents and warrants to the Company
as follows:
(a) The Purchaser has full legal right, power and authority to
enter into and perform this Agreement. The execution and delivery of this
Agreement by the Purchaser and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on behalf of the Purchaser. This Agreement is a valid and binding obligation of
the Purchaser enforceable against it in accordance with its terms, except that
such enforcement may be subject to (i) bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and contracting parties' rights generally
and (ii) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(b) Neither the execution and delivery of this Agreement by the
Purchaser nor the consummation by it of the transactions contemplated hereby
conflicts with or constitutes a material violation of or default under the
charter, by-laws or other constituent document of the Purchaser, any statute,
law, regulation, order or decree applicable to the Purchaser, or any material
contract, commitment, agreement, arrangement or restriction of any kind to which
the Purchaser is a party or by which it is bound.
Section 1.02 The Company hereby represents and warrants to the Purchaser
as follows:
(a) The Company has full legal right, power and authority to enter
into and perform this Agreement. The execution and delivery of this Agreement by
the Company and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on behalf of the
Company. This Agreement is a valid and binding obligation of the Company
enforceable against it in accordance with its terms, except that such
enforcement may be subject to (i) bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and
contracting parties' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(b) Neither the execution and delivery of this Agreement by the
Company nor the consummation by it of the transactions contemplated hereby
conflicts with or constitutes a material violation of or default under the
charter, by-laws or other constituent document of the Company, any statute, law,
regulation, order or decree applicable to the Company, or any material contract,
commitment, agreement, arrangement or restriction of any kind to which the
Company is a party or by which it is bound.
ARTICLE II
Limitations and Restrictions
----------------------------
Section 2.01 Definitions. As used in this Agreement:
-----------
(a) "Affiliate" shall mean any entity controlling, controlled by or
under common control with the Purchaser, and "control" shall mean ownership of
more than 50% of the stock entitled to vote for directors, or the authority to
act as general partner of a partnership or managing member of an LLC, or such
other relationship which constitutes actual control to the extent necessary to
prevent any action prohibited hereunder;
(b) "group" shall have the meaning with which such term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
(c) "person" shall have the meaning with which such term is used in
Section 13(d)(3) under the Exchange Act and under Section 2(2) of the Securities
Act of 1933, as amended (the "Securities Act").
Section 2.02 Restrictions on Certain Actions by the Purchaser. Except (i)
------------------------------------------------
with the written consent of the Company (which shall not be unreasonably
withheld) or (ii) by way of stock dividends or other distributions or offerings
made available to the holders generally of securities of the Company held by the
Purchaser, the Purchaser agrees that during the term of this Agreement, it will
not, nor will any of its Affiliates:
(a) acquire, announce an intention to acquire, offer or propose to
acquire, solicit an offer to sell or agree to acquire, by purchase, by gift or
otherwise, any shares of Common Stock or other securities of the Company with
general voting rights, or any other Company securities convertible into,
exchangeable for or exercisable for Common Stock or other voting securities of
the Company (all such securities, collectively, "Voting Securities"); provided
that this Section 2.02(a) shall not apply unless and until the Purchaser
(together with its Affiliates) has acquired beneficial ownership (as such term
is used under Section 13(d) of the Exchange Act) of at least two percent (2%) of
the Common Stock of the Company;
(b) participate in the formation of any person or group, or join
with any person or group, which owns or seeks to acquire beneficial ownership of
Voting Securities, for the purpose of acquiring Voting Securities;
(c) solicit or participate in any "solicitation" of "proxies" (as
such terms are defined or used in Regulation 14A under the Exchange Act, these
terms to have such meaning throughout this Agreement) with respect to the
Company;
(d) deposit any Voting Securities in a voting trust or subject them
to a voting agreement or other agreement or arrangement with respect to the
voting of such Voting Securities other than this Agreement;
(e) otherwise act, alone or in concert with others, to seek to
control the management, Board of Directors or policies of the Company or make
any public announcement or proposal with respect to any form of business
combination or other extraordinary transaction with the Company or any
restructuring, recapitalization, similar transaction or other transaction not in
the ordinary course of business with respect to the Company which could result
in a change of control or publicly disclose an intent, purpose, plan or proposal
with respect to the Company that would violate the provisions of this Section
2.02, or assist, participate in, facilitate or solicit any effort or attempt by
any person to do so or seek to do any of the foregoing;
Provided, however, that nothing in this Section 2.02 shall prohibit
the Purchaser or its Affiliates from proposing collaborative research agreements
or license agreements with the Company.
Section 2.03 Employee Benefit Plans. For the avoidance of doubt, it is
----------------------
hereby agreed that the restrictions contained in Section 2.02 shall not apply to
any pension plan or other employee benefit plan of the Purchaser or its
Affiliates which is administered by an independent trustee or trustees.
Section 2.04 Freedom to Vote. Nothing contained herein shall prevent the
---------------
Purchaser or any of its Affiliates from voting any equity securities owned by
them in their sole discretion, and to that extent, seeking to influence the
policies or affairs of the Company, the membership of the Board of Directors of
the Company or any other matter.
ARTICLE III
Miscellaneous
-------------
Section 3.01 Interpretation. For all purposes of this Agreement, the term
--------------
Common Stock shall include any securities of the Company entitled to vote
generally for the election of directors of the Company which securities the
holders of the Common Stock shall have received or as a matter of right be
entitled to receive as a result of (i) any capital reorganization or
reclassification of the capital stock of the Company or, (ii) any consolidation,
merger or share exchange of the Company with another corporation in which the
Company survives after such transaction; provided, however, that nothing in this
Agreement shall preclude the Purchaser or its Affiliates from acquiring or being
entitled to acquire Common Stock in exchange for or in respect of their
securities of the Company in any such transaction.
Section 3.02 Enforcement. (a) The Purchaser acknowledges and agrees that
-----------
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise breached
and that monetary damages would be an inadequate remedy therefor. Accordingly,
the Company will be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically its provisions in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which the Company may be entitled at law or in
equity.
(b) No failure or delay on the part of the Company in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
Section 3.03 Entire Agreement. This Agreement, together with the
----------------
applicable provisions of the Securities Purchase Agreement, constitute the
entire understanding of the parties with respect to the transactions
contemplated hereby. This Agreement may be amended only by an agreement in
writing executed by all the parties.
Section 3.04 Severability. If any provision of this Agreement is held by a
------------
court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of the
parties that they would have executed the remaining provisions without including
any that may be declared unenforceable.
Section 3.05 Headings. Descriptive headings are for convenience only and
--------
will not control or affect the meaning or construction of any provision of this
Agreement.
Section 3.06 Counterparts. This Agreement may be executed in one or more
------------
counterparts, and each such executed counterpart will be an original instrument.
Section 3.07 Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid:
if to the Company: Myriad Genetics, Inc.
320 Wakara Way
Salt Lake City, Utah 84108
Attention: President
Fax: (801) 584-3640
and
Attention: General Counsel
with a copy to: Jonathan L. Kravetz, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Fax: (617) 542-2241
if to the Purchaser: Schering Berlin Venture Corporation
340 Changebridge Road
Montville, NJ 07045-1000
Attention: General Counsel
Fax: (973) 276-2000
or to such other address or telecopy number as any party may, from time to time,
designate in a written notice given in a like manner. Notice by telecopy shall
be deemed delivered at the time that receipt thereof has been acknowledged by
electronic confirmation or otherwise.
Section 3.08 Successors and Assigns. This Agreement shall bind the
----------------------
successors and assigns of the parties, and inure to the benefit of any successor
or assign of any of the parties; provided, however, that no party may assign
this Agreement without the other party's prior written consent, and provided,
further, that this Agreement shall not be binding upon any purchaser of the
Shares from the Purchaser or an Affiliate of the Purchaser in a transaction
effected on a public trading market or pursuant to a public offering.
Section 3.09 Governing Law. This Agreement will be governed by and
-------------
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to the conflict of laws principles thereof.
Section 3.10 Termination. This Agreement shall terminate one (1) year
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following the Effective Date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
SCHERING BERLIN VENTURE CORPORATION.
By: /s/ John Nicholson
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Name: John Nicholson
Title: Treasurer
MYRIAD GENETICS, INC.
By: /s/ Peter D. Meldrum
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Peter D. Meldrum
President and CEO