Exhibit 10.1
COMMON STOCK PURCHASE
AGREEMENT
T HIS C OMMON S TOCK P URCHASE A GREEMENT (the “ Agreement ”) is made
and entered into as of October 2, 2009 (the “
Effective Date ”) by and between S
ANGAMO B IO S CIENCES , I NC ., a
Delaware corporation having its principal place of business at
Point Richmond Tech Center, 501 Canal Boulevard, Suite A100,
Richmond, California 94804 (“ Sangamo ”), and
S IGMA
-A LDRICH C ORPORATION , a
Delaware corporation having its principal place of business at 3050
Spruce Street, St. Louis, Missouri 63103 (“ Sigma
”). Sangamo and Sigma are sometimes referred to herein
individually as a “Party” and collectively as the
“Parties.”
W HEREAS , Sigma and Sangamo are party to that certain
License Agreement effective as of July 10, 2007 as previously
amended on November 9, 2007, September 25, 2009, and
October 2, 2009 (the “ License Agreement
”);
W HEREAS , pursuant to Section 1.44 of the Third
Amendment to the License Agreement, Sangamo desires to issue, and
Sigma desires to acquire, such number of shares of common stock of
Sangamo as herein described, on the terms and conditions
hereinafter set forth.
N OW ,
T HEREFORE
, I T I S A GREED between the Parties as follows:
ARTICLE 1
Definitions
1.1 “ Basic Prospectus ” means
the basic prospectus included in the Registration
Statement.
1.2 “ Closing ” has the meaning
set forth in Section 2.2.
1.3 “ Business Day ” means any
day except Saturday, Sunday, any day which shall be a federal legal
holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by
law or other governmental action to close.
1.4 “ Common Stock ” means the
common stock, par value $0.01 per share, of Sangamo.
1.5 “ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
1.6 “ Governmental Authority ”
means any United States, state, local or foreign governmental
entity or municipality or subdivision thereof or any authority,
department, commission, board, bureau, agency, court or
instrumentality.
1.7 “ Knowledge of Sangamo ”
means the actual knowledge of the individuals listed on Schedule
1.7.
1.8 “ Prospectus ” means the
Prospectus Supplement together with the Basic
Prospectus.
1.9 “ Prospectus Supplement ”
means the supplement to the Basic Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and
delivered by Sangamo to Sigma in connection with the
Closing.
1.10 “ Registration Statement ”
means the registration statement on Form S-3 (File
No. 333-157732), as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of
the Securities Act, including all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference
therein.
1.11 “ SEC ” or “
Commission ” means the United States Securities and
Exchange Commission.
1.12 “ Securities Act ” means the
Securities Act of 1933, as amended.
1.13 “ Shares ” has the meaning
set forth in Section 2.1.
1.14 “ Subsidiary ” has the
meaning set forth in Section 3.7.
ARTICLE 2
P URCHASE AND S ALE OF S TOCK
2.1 Purchase and Sale.
At the Closing, Sangamo hereby
agrees to sell and Sigma hereby agrees to purchase 636,133 shares
of Common Stock (the “ Shares ”) at a purchase
price of $ 7.86 per share (based upon the average of closing
prices for the 30 trading days immediately prior to the date of
this Agreement) for an aggregate purchase price of
$5,000,005.38.
2.2 Closing.
Payment of the purchase price for,
and delivery of, the Shares shall be made no later than the third
Business Day after the date of this Agreement (the “
Closing ”) at the offices of Morgan, Lewis &
Bockius LLP, securities counsel for Sangamo, located at One Market
Street, San Francisco, California, or at such other time and date
determined by mutual agreement between Sangamo and Sigma,
provided that the Closing shall occur no later than the
third Business Day after the date hereof. All such actions taken at
the Closing shall be deemed to have occurred simultaneously. At the
Closing, Sangamo shall deliver to Sigma a certificate representing
the Shares being purchased by Sigma pursuant to this Agreement
against payment of the purchase price therefor by wire transfer to
a bank account designated by Sangamo.
2.
ARTICLE 3
R EPRESENTATIONS , W ARRANTIES AND C OVENANTS OF S ANGAMO
Sangamo represents and warrants to,
and covenants and agrees with, Sigma as of the date hereof and as
of the date of Closing, as follows:
3.1 Filing and Effectiveness of
Registration Statement . Sangamo has prepared and filed, in conformity
with the requirements of the Securities Act of 1933, as amended
(the “ Securities Act ”), and the published
rules and regulations thereunder (the “ Rules and
Regulations ”) adopted by the Commission, a registration
statement on Form S-3 (No. 333-157732), relating to the Shares and
the offering thereof from time to time in accordance with Rule 415
of the Rules and Regulations, and such amendments thereof as may
have been required to date. The Registration Statement has
heretofore become effective under the Securities Act. No stop order
preventing or suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceedings for
such purpose pursuant to Section 8A of the Securities Act
against Sangamo have been instituted or are pending or, to
Sangamo’s knowledge, are contemplated or threatened by the
Commission, and any request received by the Company on the part of
the Commission for additional information has been complied with.
Sangamo meets the requirements for use of Form S-3 under the
Securities Act and has complied with the requirements of Rule 415
with respect to the Registration Statement.
3.2 Compliance with Securities
Act Requirements . The
Registration Statement complied when it became effective, complies
as of the date hereof and, as amended or supplemented, and at all
times during which a prospectus is required by the Securities Act
to be delivered (whether physically or through compliance with Rule
172 under the Securities Act or any similar rule) in connection
with any sale of Shares, will comply, in all material respects,
with the requirements of the Securities Act and the Rules and
Regulations; the Registration Statement, when it became effective,
did not 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 therein not misleading, provided , that
Sangamo makes no representations or warranty in this paragraph with
respect to statements in or omissions from the Registration
Statement in reliance upon, and in conformity with, written
information furnished to Sangamo by Sigma or its counsel
specifically for inclusion therein.
3.3 Contents of Prospectus;
Filing and Delivery of Prospectus Supplement
. The Prospectus complied, as of the
date that it is filed with the Commission, and complies as of the
date hereof, in all material respects, with the requirements of the
Securities Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Securities Act); the
Prospectus, on the date of such Prospectus and at Closing, did not
and will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, provided , that Sangamo makes no
representations or warranty in this paragraph with respect to
statements in or omissions from the Prospectus in reliance upon,
and in conformity with, written information furnished to Sangamo by
Sigma or its counsel specifically for inclusion therein. Sangamo
will prepare, file and deliver to Sigma, in conformity with the
requirements of the Securities Act and the Rules and Regulations
promulgated thereunder, the Prospectus Supplement.
3.4 Incorporated
Documents . Each of the
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, at the time such document was filed
with the Commission or at the time such document became effective,
as applicable, complied, in all material respects, with the
requirements of the Exchange Act and did not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
3.
3.5 Not an Ineligible
Issuer . (1) At the
time of the filing of the Registration Statement and (2) at
Closing, Sangamo was not and is not an “ineligible
issuer,” as defined in Rule 405 (“ Rule 405
”) under the Securities Act.
3.6 Due Incorporation
. Sangamo has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with the corporate power and
authority to own its properties and to conduct its business as
currently being conducted and as described in the Registration
Statement and the Prospectus and is duly qualified to transact
business and is in good standing as a foreign corporation in each
other jurisdiction in which its ownership or leasing of property or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing or have
such power or authority (i) would not have, individually or in
the aggregate, a material adverse effect upon, the general affairs,
business, operations, prospects, properties, financial condition,
or results of operations of Sangamo and its Subsidiaries (as
defined below), taken as a whole, or (ii) impair in any
material respect the power or ability of Sangamo to perform its
obligations under this Agreement or to consummate any transactions
contemplated by this Agreement (any such effect as described in
clauses (i) or (ii), a “ Material Adverse Effect
”).
3.7 Subsidiaries
. Sangamo has no significant
subsidiaries (as such term is defined in Rule 1-02 of Regulation
S-X promulgated by the Commission) other than as set forth on
Schedule 3.7 hereto (each, a “ Subsidiary
” and collectively, the “ Subsidiaries ”).
Each Subsidiary has been duly organized and is validly existing as
a corporation or other legal entity in good standing (or the
foreign equivalent thereof) under the laws of its jurisdiction of
organization, with the corporate power and authority to own its
properties and to conduct its business as currently being conducted
and as described in the Registration Statement and the Prospectus.
All of the issued and outstanding capital stock (or similar equity
interests) of each Subsidiary has been duly authorized and validly
issued and is fully paid and nonasssessable and, except as
described in the Registration Statement and Prospectus, are owned
by Sangamo, directly or through subsidiaries, free from liens,
encumbrances and defects.
3.8 Due Authorization and
Enforceability . Sangamo
has the full right, power and authority to enter into this
Agreement and to perform and discharge its obligations hereunder;
this Agreement has been duly authorized, executed and delivered by
Sangamo, and constitutes a valid, legal and binding obligation of
Sangamo, enforceable against Sangamo in accordance with its terms,
except as rights to indemnity hereunder may be limited by federal
or state securities laws and except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and
subject to general principles of equity.
3.9 The Shares
. The issuance of the Shares has
been duly and validly authorized by Sangamo and, when issued,
delivered and paid for in accordance with the terms of this
Agreement, will have been duly and validly issued and will be fully
paid and nonassessable. Except as otherwise stated in the
Registration Statement and the Prospectus, there are no statutory
or contractual preemptive rights or other rights to subscribe for
or purchase or acquire any shares of Common Stock of Sangamo, which
have not been waived or complied with and will conform in all
material respects to the description thereof contained in the
Registration Statement and the Prospectus.
4.
3.10 Capitalization
. The information set forth under
the caption “Capitalization” in the Prospectus (and any
similar sections or information, if any, contained in the
Registration Statement) is fairly presented on a basis consistent
with Sangamo’s financial statements. The authorized capital
stock of Sangamo conforms as to legal matters to the description
thereof contained in the Prospectus under the caption
“Description of Common Stock” (and any similar sections
or information, if any, contained in the Registration Statement).
The issued and outstanding shares of capital stock of Sangamo have
been duly authorized and validly issued, are fully paid and
nonassessable, and have been issued in compliance with all federal
and state securities laws. None of the outstanding shares of Common
Stock was issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase
or acquire any securities of Sangamo. There are no authorized or
outstanding shares of capital stock, options, warrants, preemptive
rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable for, any
capital stock of Sangamo or any of its Subsidiaries other than
those described in the Prospectus and the Registration Statement.
The description of Sangamo’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights
granted thereunder, as described in the Registration Statement and
the Prospectus, accurately and fairly present the information
required to be shown with respect to such plans, arrangements,
options and rights.
3.11 No Conflict
. The execution, delivery and
performance by Sangamo of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with or
result in a breach or violation of, or constitute a default under
(nor constitute any event which with notice, lapse of time or both
would result in any breach or violation of or constitute a default
under), give rise to any right of termination or other right or the
cancellation or acceleration of any right or obligation or loss of
a benefit under, or give rise to the creation or imposition of any
lien, encumbrance, security interest, claim or charge upon any
property or assets of Sangamo or any Subsidiary pursuant to
(i) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Sangamo or any Subsidiary is
a party or by which any of them or any of their respective
properties may be bound or to which any of the property or assets
of Sangamo or any of its Subsidiaries is subject, (ii) result
in any violation of the provisions of the charter or by-laws of
Sangamo or any Subsidiary, or (iii) result in any violation of
any law, statute, rule, regulation, judgment, order or decree of
any court or governmental agency or body, domestic or foreign,
having jurisdiction over Sangamo or its Subsidiaries or any of
their properties or assets except, in the case of each of clauses
(i) and (iii) above, for any such conflict, breach,
violation, default, lien, charge or encumbrance that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.12 No Consents
Required . No approval,
authorization, consent or order of or filing, qualification or
registration with, any court or governmental agency or body,
foreign or domestic, which has not been made, obtained or taken and
is not in full force and effect, is required in connection with the
issuance and sale of the Shares under this Agreement other than
(i) as may be required under the Securities Act or the
Exchange Act, (ii) any necessary qualification of the Shares
under the securities or blue sky laws of the various jurisdictions,
or (iii) as may be required by Nasdaq Global Market in
connection with the listing of the Shares.
5.
3.13 Registration
Rights .
Except as otherwise described in the
Registration Statement and the Prospectus, there are no contracts,
agreements or understandings between Sangamo and any person
granting such person the right (other than rights which have been
waived in writing in connection with the transactions contemplated
by this Agreement or otherwise satisfied) to require Sangamo to
register any securities with the Commission.
3.14 Accountant
. Ernst & Young LLP, whose
reports on the audited consolidated financial statements of Sangamo
and the Subsidiaries are incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants with respect to Sangamo as required by the Securities
Act, and the applicable published rules and regulations
thereunder.
3.15 Financial
Statements . The
consolidated financial statements of Sangamo, together with the
related schedules and notes thereto, set forth or incorporated by
reference in the Registration Statement and the Prospectus, comply
in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and present
fairly in all material respects (i) the financial condition of
Sangamo and the Subsidiaries, taken as a whole, as of the dates
indicated and (ii) the consolidated results of operations,
stockholders’ equity and changes in cash flows of Sangamo and
the Subsidiaries, taken as a whole, for the periods therein
specified; and such financial statements and related schedules and
notes thereto have been prepared in conformity with United States
generally accepted accounting principles, consistently applied
throughout the periods involved (except as otherwise stated therein
and subject, in the case of unaudited financial statements, to the
absence of footnotes and normal year-end adjustments). There are no
other financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Registration Statement or the Prospectus.
3.16 Absence of Material
Changes .
Subsequent to the respective dates
as of which information is given in the Registration Statement and
the Prospectus, and except as may be otherwise stated or
incorporated by reference in the Registration Statement and the
Prospectus, there has not been (i) any change in the capital
stock of Sangamo (except for changes in the number of outstanding
shares of Common Stock of Sangamo due to the issuance of shares
upon the exercise or conversion of securities exercisable for, or
convertible into, shares of Common Stock outstanding on the date
hereof) or long-term debt of Sangamo or any of its Subsidiaries or
any dividend or distribution of any kind declared, set aside for
payment, paid or made by Sangamo on any class of capital stock;
(ii) any material adverse change, or, to the knowledge of
Sangamo, any development that would result in a material adverse
change in or affecting the general affairs, business, prospects,
properties, management, consolidated financial position,
stockholders’ equity or results of operations of Sangamo and
its Subsidiaries taken as a whole; (iii) neither Sangamo nor
any of its Subsidiaries have entered or will enter into any
transaction or agreement, not in the ordinary course of business,
that is material to Sangamo and its Subsidiaries taken as a whole
or incurred or will incur any liability or obligation, direct or
contingent, not in the ordinary course of business, that is
material to Sangamo and its Subsidiaries taken as a whole; and
(iv) neither Sangamo nor any of its Subsidiaries has sustained
or will sustain any material loss or interference with its business
from any force majeure,
6.
including fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action
