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EXHIBIT 2.5
STRUCTURAL PROTEOMICS, INC.
STOCK PURCHASE AGREEMENT
MAY 5, 2000
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made on the 5th day of
May, 2000 by and among Richard Fine and Boris Klebansky (the "Founders"),
Structural Proteomics, Inc., a New Jersey corporation ("SP"), and Discovery
Partners International, Inc., a California corporation ("DPI").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. EXCHANGE.
1.1 Sale and Issuance of Common Stock.
(a) Subject to the terms and conditions of this Agreement, DPI
agrees to purchase at the Closing and SP agrees to sell and issue to DPI at the
Closing 1,000,000 shares of newly issued common stock of SP ("Common Stock"),
for a purchase price of $1,000,000 cash (the "New Shares").
(b) Subject to the terms and conditions of this Agreement, DPI
agrees to purchase at the Closing and Richard Fine agrees to sell to DPI at the
Closing 600,000 shares of outstanding Common Stock (the "Fine Shares") for a
total purchase price of 75,000 shares of DPI common stock ("DPI Stock").
(c) Subject to the terms and conditions of this Agreement, DPI
agrees to purchase at the Closing and Boris Klebansky agrees to sell to DPI at
the Closing 600,000 shares of outstanding Common Stock (the "Klebansky Shares")
for a total purchase price of 75,000 share of DPI Stock.
(d) The New Shares, the Fine Shares and the Klebansky Shares are
hereinafter referenced to collectively as the "Shares."
1.2 Closing. The issuance, purchase and sale of the Shares shall take
place at the offices of Brobeck, Phleger & Harrison LLP, 12390 El Camino Real,
San Diego, California, at 10:00 a.m. on May 5, 2000, or at such other time and
place as SP, the Founders and DPI shall mutually agree upon orally or in writing
(the "Closing").
2. REPRESENTATIONS AND WARRANTIES OF SP AND THE FOUNDERS. The Founders and SP
hereby jointly and severally represent and warrant and covenant to DPI that:
2.1 Organization, Good Standing and Qualification. SP is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey, has all requisite corporate power and authority to own and
operate its properties and assets and to carry on its business as now conducted
and as proposed to be conducted, to execute and deliver this Agreement and the
Rights Agreement attached as Exhibit A hereto (the "Rights Agreement"), to issue
and sell the New Shares hereunder, and to carry out the provisions of this
Agreement and the Rights Agreement.
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2.2 Capitalization and Voting Rights. The authorized capital of SP
consists, and will consist immediately prior to the Closing, of 3,000,000 shares
of Common Stock, of which 1,933,333 shares are and will then be issued and
outstanding.
(a) The outstanding shares of Common Stock are owned by the
shareholders and in the numbers specified in Schedule 2.2 attached hereto.
(b) The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were issued in
compliance with all applicable state and federal laws concerning the issuance of
securities.
(c) Except for the rights provided in the Rights Agreement, there
are not outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from SP or
either Founder of any shares of SP capital stock. Neither of the Founders nor SP
is a party or subject to any agreement or understanding, and there is no
agreement or understanding between any persons and/or entities, which affects or
relates to the voting or giving of written consents with respect to any security
or by a director of SP.
2.3 Authorization. All corporate action on the part of SP, its officers,
directors and shareholders necessary for the authorization, execution and
delivery of this Agreement and the Rights Agreement, the performance of all
obligations of SP hereunder and thereunder, and the authorization, sale and
issuance of the Common Stock being sold hereunder has been taken. This Agreement
and the Rights Agreement constitute valid and legally binding obligations of the
Founders and SP, enforceable in accordance with their respective terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
2.4 Valid Issuance of Common Stock. The Common Stock that is being
purchased by DPI hereunder, when issued, sold and delivered in accordance with
the terms of this Agreement for the consideration expressed herein, will be duly
and validly issued, fully paid, and nonassessable and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement and the Rights Agreement and under applicable state and federal
securities laws and will be issued in compliance with all applicable state and
federal laws concerning the issuance of securities.
2.5 Purchase Entirely for Own Account. The DPI Stock will be acquired
for investment for the Founders' respective own accounts, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and neither of the Founders has any present intention of selling, granting any
participation in or otherwise distributing the same. Neither of the Founders has
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the DPI Stock.
2.6 Investment Experience. Each of the Founders is able to fend for
himself, can bear the economic risk of his investment, and has such knowledge
and experience in financial or
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business matters that he is capable of evaluating the merits and risks of the
investment in the DPI Stock.
2.7 Restricted Securities. Each of the Founders understands that the DPI
Stock he is purchasing is characterized as "restricted securities" under the
federal securities laws inasmuch as such DPI Stock is being acquired from DPI in
a transaction not involving a public offering and that under such laws and
applicable regulations such DPI Stock may be resold without registration under
the Securities Act of 1933, as amended (the "Act") only in certain limited
circumstances. In the absence of an effective registration statement covering
the DPI Stock or an available exemption from registration under the Act, the DPI
Stock must be held indefinitely. In this connection, each of the Founders
represents that he is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act, including
without limitation the Rule 144 condition that current information about DPI be
available to the public. Such information is not now available and DPI gives no
assurance that it will make such information available.
2.8 Legends. It is understood that the certificates evidencing the DPI
Stock may bear the following legend:
"These securities have not been registered under the Securities Act
of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or unless sold pursuant to Rule 144 of such Act
or unless another exemption from such Act is available."
2.9 Disclosure. Taking into account all disclosures which SP and the
Founders have made to DPI, such disclosures do not (and as of the Closing will
not) contain any misstatement of a material fact or contain any omission of a
material fact which makes materially misleading the statements which were made.
3. REPRESENTATIONS AND WARRANTIES OF DPI. DPI hereby represents, warrants and
covenants to SP and the Founders that:
3.1 Authorization. It has full power and authority to enter into this
Agreement and the Rights Agreement, and each such agreement constitutes its
valid and legally binding obligation, enforceable in accordance with the
respective terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
3.2 Purchase Entirely for Own Account. The Shares will be acquired for
investment for DPI's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and DPI has no present
intention of selling, granting any participation in or otherwise distributing
the same. DPI does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Shares.
3.3 Investment Experience. DPI is able to fend for itself, can bear the
economic risk of its investment, and has such knowledge and experience in
financial or business matters that it
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is capable of evaluating the merits and risks of the investment in the Shares.
DPI has not been organized for the purpose of acquiring the Shares.
3.4 Accredited Investor. DPI is an "accredited investor" within the
meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation D,
as presently in effect.
3.5 Restricted Securities. DPI understands that the Shares it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from SP or the Founders in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without registration under
the Act only in certain limited circumstances. In the absence of an effective
registration statement covering the Shares or an available exemption from
registration under the Act, the Shares must be held indefinitely. In this
connection, DPI represents that it is familiar with SEC Rule 144, as presently
in effect, and understands the resale limitations imposed thereby and by the
Act, including without limitation the Rule 144 condition that current
information about SP be available to the public. Such information is not now
available and SP has no present plans to make such information available.
3.6 Disclosure. Taking into account all written disclosures which DPI
has made to the Founders, such disclosures do not (and as of the Closing will
not) contain any misstatement of a material fact or contain any omission of a
material fact which makes materially misleading the statements which were made.
3.7 Legends. It is understood that the certificates evidencing the
Shares may bear the following legend:
"These securities have not been registered under the Securities Act
of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or unless sold pursuant to Rule 144 of such Act
or unless another exemption from such Act is available."
4. CALIFORNIA COMMISSIONER OF CORPORATIONS.
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES THAT ARE THE
SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
5. CONDITIONS OF DPI'S OBLIGATIONS AT CLOSING. DPI's obligations under
subsection 1.1 of this Agreement are subject to the fulfillment on or before the
Closing of each of the following conditions, the waiver of which shall not be
effective against DPI unless DPI consents in writing thereto:
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5.1 Representations and Warranties. The representations and warranties
of SP and the Founders contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of the Closing.
5.2 Performance. SP and the Founders shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it and them on or before the
Closing.
5.3 Rights Agreement. SP, the Founders, Arnold Hagler and DPI shall have
entered into the Rights Agreement in substantially the form as attached
Exhibit A.
5.4 Qualifications. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
DPI Stock pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
6. CONDITIONS OF SP'S AND THE FOUNDERS' OBLIGATIONS AT CLOSING. The
obligations of SP and the Founders to DPI under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
DPI:
6.1 Representations and Warranties. DPI's representations and warranties
contained in Section 3 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the Closing.
6.2 Payment of Purchase Price. DPI shall have delivered the purchase
price specified in Section 1.1 hereunder.
6.3 Qualifications. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
6.4 Rights Agreement. SP, the Founders, Arnold Hagler and DPI shall have
entered into the Rights Agreement in substantially the form as attached Exhibit
A.
7. TAX PAYMENT LOANS. DPI agrees to lend $208,000 to each of the Founders
($416,000 total) on June 14, 2000, against delivery of secured promissory notes
in customary form, with the following substantive terms: 8% simple interest per
annum, all principal and interest due in one lump sum on December 14, 2001,
secured by pledges of all of the respective Founders' DPI Stock and SP Common
Stock.
8. MISCELLANEOUS.
8.1 Survival. The warranties, representations and covenants of SP, the
Founders and DPI contained in or made pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the Closing and shall in no way
be affected by any investigation of the subject matter thereof made by or on
behalf of DPI, the Founders or SP.
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8.2 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any Shares or DPI Stock).
Nothing in this Agreement, express or implied, is intended to confer upon any
party, other than the parties hereto or their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
8.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.5 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(iii) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid; or (iv) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the address
as set forth on the signature page hereof or at such other address as such party
may designate by ten days advance written notice to the other party hereto.
8.6 Finder's Fee. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. DPI agrees to indemnify and to hold harmless SP and the Founders
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which DPI or any of its officers, partners, employees or
representatives is responsible. SP and the Founders jointly and severally agree
to indemnify and hold harmless DPI from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Founders
or SP or any of its officers, employees or representatives is responsible.
8.7 Expenses. SP and DPI and the Founders shall each be responsible for
its/their own costs and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement. If any action at law or
in equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
8.8 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of SP and the Founders and DPI. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding, each
future holder of all such securities and DPI, SP and the Founders.
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8.9 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.10 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
8.11 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 and the same instrument.
8.12 Cooperation. Each party shall strive to enable the closing
conditions set forth herein to be satisfied.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
STRUCTURAL PROTEOMICS, INC.
By: /s/ Arnold T. Hagler
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President
Address: P.O. Box 12067 La Jolla, CA 92039
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Fax:
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E-mail: [email protected]
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DISCOVERY PARTNERS INTERNATIONAL, INC.
By: /s/ Jack Fitzpatrick
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Its: CFO
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Address: 9640 Towne Centre Drive
San Diego, CA 92121
Fax: 858-455-8088
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E-mail: [email protected]
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FOUNDERS
/s/ Richard Fine
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Richard Fine
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Address: 420 Bedford Road
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Ridgewood, NJ 07450
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Fax: 201-444-2490
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E-mail: [email protected]
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/s/ Boris Klebanshy
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Boris Klebansky
Address: 4 Adele Av.
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Demaiest NJ 07627
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Fax: 201-784-2042
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E-mail: [email protected]
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[SIGNATURE PAGE TO ST0CK PURCHASE AGREEMENT]
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SCHEDULE 2.2
SHAREHOLDER LIST
Richard Fine 886,000 shares of Common Stock
Boris Klebansky 886,000 shares of Common Stock
Arnold Hagler 161,333 shares of Common Stock
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EXHIBIT A
RIGHTS AGREEMENT
Filed as Exhibit 10.14 to this Registration Statement.
