Exhibit 10.1
FORM OF PURCHASE AGREEMENT
Genelabs Technologies, Inc.
505 Penobscot Drive
Redwood City, California 94063
Attention: Chief Executive Officer
Ladies and Gentlemen:
Each of the undersigned investors (each individually, an
"Investor" and collectively, the "Investors"), severally and not jointly,
hereby confirms its agreement with you as follows:
1. This Purchase Agreement (with Annex I attached hereto, the
"Agreement") is entered into as of July __, 2002, by and among Genelabs
Technologies, Inc. (the "Company"), a California corporation, and each of
the Investors.
2. The Company has authorized the sale and issuance of up to
3,220,729 shares (the "Shares") of its Common Stock, no par value (the
"Common Stock"), subject to adjustment by the Company's Board of Directors,
to certain investors pursuant to the Agreement (the "Offering"). The
Offering has been registered under the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to the Company's Registration Statement on
Form S-3 (No. 333-34630) as amended (the "Registration Statement").
3. Subject to the terms and conditions of the Agreement, the
Company agrees to issue and sell to Investors and Investors agree to
purchase from the Company up to an aggregate of 3,220,729 Shares, in such
specific amounts as are set forth beside each Investor's name on the
signature page attached hereto, for a purchase price of $2.05 per share, or
an aggregate purchase price of $6,602,494, pursuant to the Terms and
Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference and made a part of the Agreement as if
fully set forth herein. Each Investor acknowledges that there is no minimum
offering amount. Certificates representing the Shares purchased by the
Investors will not be issued to the Investors; instead, such Shares will be
credited to each Investor using customary book-entry procedures.
4. Each Investor represents that, except as set forth below: (a)
it has had no position, office or other material relationship within the
past three (3) years with the Company or persons known to it to be
affiliates of the Company; and (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right
to acquire or vote) any securities of the Company.
Exceptions:
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(If no exceptions, write "none." If left blank, response will be deemed
"none.")
5. Each Investor hereby confirms receipt of the Prospectus
Supplement, dated July __, 2002, and the Base Prospectus, dated July 3,
2000 (collectively, the "Prospectus"), of the Company distributed by email
to each Investor accompanied herewith. Each Investor confirms that it had
full access to the Prospectus and was fully able to read, review, download
and print it. Each Investor acknowledges that it will be required to bear
the cost, if any, of printing the Prospectus.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Please confirm that the foregoing correctly sets forth the
agreement between us by signing in the space provided below for that
purpose.
AGREED AND ACCEPTED:
Genelabs Technologies, Inc., Name of Investor:
a California corporation
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By: _______________________________ By: _____________________________
Name: _____________________________ Name: ___________________________
Title: ______________________________ Title: __________________________
Address: ________________________
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Tax ID No.: _____________________
Contact Name: ___________________
Telephone: ______________________
Name in which book-entry should
be made (if different):
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Number of Shares to be purchased:
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[SIGNATURE PAGE TO BE REPRODUCED FOR EACH INVESTOR]
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
Capitalized terms used but not otherwise defined in this Annex I
shall have the meanings ascribed to them in the Agreement to which this
Annex I is attached.
1. Authorization and Sale of Shares. The Company has authorized
the sale of up to 3,220,729 Shares. The Company reserves the right to
increase or decrease this number.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 Upon the terms and subject to the conditions hereinafter set
forth, at the Closing (as defined in Section 3), the Company will sell to
each Investor, and each Investor will purchase from the Company, the number
of Shares set forth beside each such Investor's name on the signature page
to the Agreement.
2.2 The Company may enter into agreements similar to the Agreement
with certain other investors (the "Other Investors") and may complete sales
of Shares to them. (The Investors and the Other Investors are hereinafter
sometimes collectively referred to as the "Investors", and the Agreement
and the stock purchase agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the "Agreements".)
3. Delivery of the Shares at Closing. The completion of the
purchase and sale of the Shares (the "Closing") shall occur on July __,
2002 (the "Closing Date"), at 10:00 a.m. P.D.T., at the offices of Skadden,
Arps, Slate, Meagher & Flom LLP, 525 University Avenue, Suite 1100, Palo
Alto, California 94301. At the Closing, the Company shall deliver to each
Investor, using customary book-entry procedures, the number of Shares set
forth beside each such Investor's name on the signature page to the
Agreement, and each Investor shall deliver to the Company, by wire transfer
of immediately available funds the full amount of the purchase price for
the Shares being purchased.
The Company's obligation to issue and sell the Shares to the
Investors shall be subject to the following conditions, any one or more of
which may be waived by the Company: (a) completion of the purchases and
sales of Shares under the Agreement that may be executed with the Other
Investors; and (b) the accuracy of the representations and warranties made
by the Investors and the fulfillment of those undertakings of the Investors
to be fulfilled prior to the Closing.
4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, each of the
Investors, severally and not jointly, as follows:
4.1 Organization and Standing. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has full corporate
power and authority to own or lease its properties and conduct its business
presently conducted, and is duly qualified as a foreign corporation and in
good standing in all jurisdictions in which the character of the property
owned or leased or the nature of the business transacted by it makes
qualification necessary (except where the failure to be so qualified would
not have a material adverse effect on the business, properties, financial
condition or results or operations of the Company).
4.2 Corporate Power; Authorization. The Company has all requisite
corporate power to, and has taken all requisite corporate action to,
execute and deliver the Agreement, to sell and issue the Shares and to
carry out and perform all of its obligations under the Agreement. The
Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting the enforcement of creditors' rights
generally and (b) as limited by equitable principles generally. The
execution and delivery of the Agreement does not, and the performance of
the Agreement and the compliance with the provisions hereof and the
issuance, sale and delivery of the Shares by the Company will not
materially conflict with, or result in a material breach or violation of
the terms, conditions or provisions of, or constitute a material default
under, or result in the creation or imposition of any material lien
pursuant to the terms of: (i) the Articles of Incorporation or Bylaws of
the Company, each as in effect as of the date hereof; (ii) any statute, law
or rule applicable to the Company or regulation or any state or federal
order, judgment or decree applicable to the Company; (iii) or any
indenture, mortgage, material lease or other material agreement or
instrument to which the Company or any of its properties is subject.
4.3 Issuance and Delivery of the Shares. The Shares, when issued
and paid for in compliance with the provisions of the Agreement, will be
validly issued, fully paid and nonassessable. The issuance and delivery of
the Shares is not subject to preemptive, co-sale, right of first refusal or
any other similar rights of the shareholders of the Company or any liens or
encumbrances.
4.4 SEC Documents; Financial Statement. The Company has filed in a
timely manner all documents that the Company has been required to file with
the Securities and Exchange Commission (the "SEC") under Sections 13, 14(a)
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), during the twelve (12) months preceding the date of the Agreement.
As of their respective filing dates, all documents filed by the Company
with the SEC (the "SEC Documents") complied in all material respects with
the requirements of the Exchange Act. The SEC Documents as of their
respective dates did not contain any untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances under
which they were made, not misleading. As of their respective dates, the
financial statements of the Company included in the SEC Documents complied
as to form in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC. Such financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except (i) as may be otherwise indicated in such financial
statement or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be
condensed or summary statements), and fairly present in all material
respects the financial position of the Company and its subsidiaries as of
the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
5. Representations, Warranties and Covenants of the Investors. The
Investors hereby make the following representations, warranties and
covenants, severally and not jointly:
5.1 Prospectus. Each Investor has received the Prospectus.
5.2 Foreign Laws. Each Investor, if outside the United States,
will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has
in its possession or distributes any offering material, in all cases at its
own expense.
5.3 Authority; Validity. (a) Each Investor has full right, power,
authority and capacity to enter into the Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of the Agreement; and (b)
such Agreement constitutes a valid and binding obligation of each Investor
enforceable against the Investor in accordance with its terms, 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).
5.4 Investment Intent. Each Investor is purchasing Shares only for
its own account as principal, for investment purposes only, and not with a
view to, or for, resale, distribution or fractionalization thereof, in
whole or in part, within the meaning of the Securities Act.
5.5 No Legal, Tax or Investment Advice. Each Investor understands
that nothing in the Agreement or any other materials presented to such
Investor in connection with the purchase and sale of the Shares constitutes
legal, tax or investment advice. Each Investor has consulted such legal,
tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of the Shares.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to the Agreement, all
covenants, agreements, representations and warranties made by the Company
and each Investor herein shall survive the execution of the Agreement, the
delivery to each Investor of the Shares being purchased and the payment
therefor.
7. Notices. All notices and other communications required or
permitted under the Agreement shall be effective upon receipt and shall be
in writing and may be delivered in person, by telecopy, overnight delivery
service or registered or certified United States mail, addressed to the
Company or each Investor, as the case may be, at their respective addresses
set forth in the Agreement, or at such other address as the Company or such
Investor shall have furnished to the other parties in writing. All notices
and other communications shall be effective upon the earlier of actual
receipt thereof by the person to whom notice is directed or (a) in the case
of notices and communications sent by personal delivery or telecopy, one
(1) business day after such notice or communication arrives at the
applicable address or was successfully sent to the applicable telecopy
number, (b) in the case of notices and communications sent by overnight
delivery service, at noon (local time) on the second business day following
the day such notice or communication was sent, and (c) in the case of
notices and communications sent by United States mail, seven (7) days after
such notice or communication shall have been deposited in the United States
mail.
8. Changes. The Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor
to which such change applies.
9. Headings. The headings of the various sections of the Agreement
have been inserted for convenience or reference only and shall not be
deemed to be part of the Agreement.
10. Severability. If any provision of the Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
11. Governing Law. The Agreement shall be governed in all respects
by and construed in accordance with the laws of the State of California
without any regard to conflicts of laws principles.
12. Entire Agreement. The Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof.
13. Expenses. The Company and each Investor shall bear its own
expenses incurred on its behalf with respect to the Agreement and the
transactions contemplated hereby, including fees of legal counsel.
14. Further Assurances. Each party to the Agreement shall do and
perform or cause to be done and performed all such further acts and things
and shall execute and deliver all such other agreements, certificates,
instruments and documents as the other party hereto may reasonably request
in order to carry out the intent and accomplish the purposes of the
Agreement and the consummation of the transactions contemplated hereby.
15. Successors and Assigns. The provisions hereof shall inure to
the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties to the Agreement.
Notwithstanding the foregoing, no Investor shall assign the Agreement
without the prior written consent of the Company.
16. Counterparts. The Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.