Exhibit 10.2


 


SECURITIES
SALE AGREEMENT


 


This
SECURITIES SALE AGREEMENT (this “Agreement”) is made and entered into as
of July 14, 2008, by and between DYAX CORP., a Delaware corporation (the “Company”),
and DOMPÉ INTERNATIONAL, S.A. (the “Purchaser”).


 


RECITALS


 


WHEREAS,
the Company desires to issue and sell to the Purchaser, and the Purchaser
desires to acquire from the Company, 2,008,032 shares (the “Shares”) of
Common Stock, par value $0.01 per share, of the Company (the “Common Stock”),
at a price of $4.98 per share for an aggregate purchase price of $9,999,999.36
(the “Purchase Price), on the terms and conditions set forth in this
Agreement;


 


WHEREAS,
the Company and the Purchaser are executing and delivering this Agreement in
reliance upon an exemption from securities registration under the Securities
Act of 1933, as amended (the “Securities Act”).


 


NOW,
THEREFORE, in consideration of the foregoing, the mutual promises hereinafter
set forth, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


1.                                      AGREEMENT TO PURCHASE AND
SELL STOCK.


 


(a)                                  Authorization.  The
Company’s Board of Directors has authorized the issuance and sale of the Shares
(the “Purchased Securities”), pursuant to the terms and conditions of
this Agreement.


 


(b)                                 Agreement to Purchase and Sell Securities. 
Subject to the terms and conditions of this Agreement, the Purchaser
agrees to purchase, and the Company agrees to sell and issue to the Purchaser,
the Shares.  The aggregate purchase price
for the Shares shall be $9,999,999.36, or $4.98 per share.


 


2.                                      CLOSING.


 


The purchase and sale of the
Purchased Securities shall take place at the offices of the Company, 300
Technology Square, Cambridge, Massachusetts 02139, at 10:00 a.m. Boston
time, on July 17, 2008, or at such other time and place as the Company and
the Purchaser mutually agree upon (which time and place are referred to in this
Agreement as the “Closing”).  At
the Closing, the Company shall provide an irrevocable instruction to its
transfer agent to issue to the Purchaser, against delivery by the Purchaser of
the Purchase Price in immediately available funds by wire transfer, a stock
certificate (the “Certificate”) registered in the name of the Purchaser
(or in such nominee name as designated by the Purchaser), representing the
Shares.  Closing documents may be
delivered by facsimile with original signature pages sent by overnight
courier.  The date of the Closing is
referred to herein as the Closing Date.


 

















 


3.                                      REPRESENTATIONS AND
WARRANTIES OF THE COMPANY.


 


The Company hereby
represents and warrants to the Purchaser that:


 


(a)                                  Organization Good Standing and Qualification.  The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. 
and has all corporate power and authority required to (i) carry on
its business as presently conducted and (ii) enter into this Agreement and
the other agreements, instruments and documents contemplated hereby, and to
consummate the transactions contemplated hereby and thereby.  The Company is qualified to do business and
is in good standing in the Commonwealth of Massachusetts.


 


(b)                                 Capitalization.  The
authorized capital stock of the Company consists of 125,000,000 shares of
Common Stock and 1,000,000 shares of Preferred Stock, par value $0.01 per share
(the “Preferred Stock”).  At March 31,
2008, the issued and outstanding capital stock of the Company consisted of (A) 60,522,258
shares of Common Stock and (B) no shares of Preferred Stock.  No shares of capital stock have been issued
by the Company March 31, 2008 to the date hereof except for additional
shares of Common Stock issued upon exercise of stock options that were
outstanding on March 31, 2008.


 


(c)                                  Due Authorization.  All
corporate actions on the part of the Company necessary for the authorization,
execution, delivery of, and the performance of the obligations of the Company
under this Agreement and the authorization, issuance, reservation for issuance
and delivery of the Purchased Securities have been taken, no further consent or
authorization of the Company or the Board of Directors or its stockholders is
required, and this Agreement constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.


 


(d)                                 Valid Issuance of Purchased Securities.


 


(i)                                     Purchased Securities.  The
Purchased Securities will be, upon payment therefor by the Purchaser in
accordance with this Agreement, duly authorized, validly issued, fully paid and
non-assessable, and free from all liens, charges and preemptive rights
or other similar rights of stockholders of the Company.


 


(ii)                                  Compliance with Securities Laws. 
Subject to the accuracy of the representations made by the Purchaser in Section 4
hereof, the Purchased Securities will be issued to the Purchaser in compliance
with applicable exemptions from the registration and prospectus delivery
requirements of the Securities Act.


 


(e)                                  Non-Contravention.  The
execution, delivery and performance of this Agreement by the Company, and the
consummation by the Company of the transactions contemplated hereby (including
issuance of the Purchased Securities), do not (i) contravene or conflict
with the Certificate of Incorporation or Bylaws of the Company; (ii) conflict
with or constitute a violation in any material respect of any provision of any
federal, state, local or foreign law, rule, regulation, order or decree
applicable to the Company or by which any property or asset of the Company is
bound or affected; or (iii) conflict with or 


 


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constitute a default (or an event that with notice or lapse of time or
both would become a default), or result in the creation or imposition of any
lien, claim or encumbrance on any assets of the Company, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both), under any contract to which the Company is a
party or any permit, license or similar right relating to the Company or by
which the Company or its property or assets may be bound or affected, in the
case of this clause (iii) which would reasonably be expected to have a
material adverse effect on the Company’s financial condition or results of
operations.


 


(f)                                    Filings, Consents and Approvals.  The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other person or
entity in connection with the execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated
hereby.


 


(g)                                 SEC Documents.  The
Company has timely filed all
reports, schedules, forms, statements, exhibits and other documents required to
be filed by it with the Securities and Exchange Commission (the “SEC” )
pursuant to the reporting requirements of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the “Exchange
Act”) for the twelve (12) months preceding the date hereof (all of the
foregoing filed prior to or on the date hereof, and all exhibits included
therein and financial statements and schedules thereto and documents
incorporated by reference therein, being referred to in this Agreement
collectively as the “SEC Documents” and individually as a “SEC
Document”).  Each of the SEC
Documents, as it may have been subsequently amended by filings made by the
Company with the SEC prior to the date hereof, complied in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to such SEC Document
as of the date of filing.  None of the
SEC Documents, as of the date of filing and as it may have been subsequently
amended by filings made by the Company with the SEC prior to the date hereof,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The financial statements included in the SEC
Documents have been prepared in accordance with accounting principles generally
accepted in the United States, consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes, may be condensed or
summary statements or may conform to the SEC’s rules and instructions for
Reports on Form 10-Q) and fairly present in all material respects the
consolidated financial position of the Company as of the dates thereof and the
consolidated results of its operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal and recurring
year-end audit adjustments).  All
material agreements that were required to be filed as exhibits to the SEC
Documents under Item 601 of Regulation S-K (collectively, the “Material
Agreements”) to which the Company is a party, or the 


 


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property or assets of the Company or are
subject, have been filed as exhibits to the SEC Documents.  All Material Agreements are valid and
enforceable against the Company in accordance with their respective terms.  The Company is not in breach of or default
under any of the Material Agreements, and to the Company’s knowledge, no other
party to a Material Agreement is in breach of or default under such Material
Agreement, except in each case, for such breaches or defaults as would not
reasonably be expected to have a material adverse effect on the Company’s
financial condition or results of operations. 
The Company has not received a notice of termination of any of the
Material Agreements.


 


(h)                                 Litigation.  As of the date hereof, there is no action,
suit, proceeding or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to the
Company’s knowledge, threatened against the Company that if determined
adversely to the Company would reasonably be expected to have a material
adverse effect on the Company’s financial condition or results of operations
..  There has not been, and to the
knowledge of the Company, there is not pending, any investigation by the SEC
involving the Company or any current or former director or officer of the
Company.  The Company has not received
any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the Exchange Act or the Securities Act
and, to the Company’s knowledge, the SEC has not issued any such order.


 


4.                                      REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER.


 


The Purchaser hereby
represents and warrants to the Company that:


 


(a)                                  Organization Good Standing and Qualification.  The
Purchaser has the requisite corporate power and authority required to enter into
this Agreement and to consummate the transactions contemplated hereby.


 


(b)                                 Authorization.  The
execution of this Agreement has been duly authorized by all necessary corporate
action on the part of the Purchaser. 
This Agreement constitutes the Purchaser’s legal, valid and binding
obligation, enforceable in accordance with its terms.


 


(c)                                  Purchase for own Account.  The
Purchased Securities are being acquired for investment for the Purchaser’s own
account, not as a nominee or agent, and not with a view to the public resale or
distribution thereof within the meaning of the Securities Act.  The Purchaser represents that it has not been
formed for the specific purpose of acquiring the Purchased Securities.


 


(d)                                 Investment Experience.  The
Purchaser has experience as an investor in securities of companies and
acknowledges that it can bear the economic risk of its investment in the
Purchased Securities and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of this
investment in the Purchased Securities.


 


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(e)                                  Accredited Investor Status.  The
Purchaser is an “accredited investor” within the meaning of Regulation D
promulgated under the Securities Act.


 


(f)                                    Receipt of Information.  The
Purchaser has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the issuance and sale of the
Purchased Securities and the business, properties, and financial condition of
the Company.  The Purchaser is aware that
the Company is currently engaged in various clinical development programs, the
most advanced of which is developing DX-88 for the treatment of hereditary angioedema
(“HAE”) and that the Company estimates that it will be announcing
results of its current clinical trial of DX-88 for HAE in the quarter ending June 30,
2008.  In purchasing the Purchased
Securities under this Agreement, the Purchaser has not relied upon any
statement or other information from the Company with respect to the prospects
for the results of such clinical trial, nor has the Purchaser been informed of
any such results.  Although the Company
has estimated that if the results are positive it expects to obtain regulatory
approval of DX-88 for HAE in the United States at the end of 2008 (followed by
approval in the European Union), the Purchaser acknowledges that there is no
guarantee that any such approval will occur in accordance with those
expectations and that such approvals may never be obtained for DX-88 for HAE or
for any other indication.


 


5.                                      COVENANTS OF THE PURCHASER.


 


(a)                                  Restricted Securities. The Purchaser understands that the
Purchased Securities have not been registered under the Securities Act and
Purchaser agrees that, in addition to the restrictions set forth in Section 5(c) below,
it will not sell, assign, or transfer any of the Purchased Securities unless (i) pursuant
to an effective registration statement under the Securities Act, (ii) the
Purchaser provides the Company with evidence reasonably satisfactory to the
Company (which may include an opinion of counsel in form and substance
reasonably satisfactory to the Company) to the effect that a sale, assignment
or transfer of the Purchased Securities may be made without registration under
the Securities Act and the transferee agrees to be bound by the terms and
conditions of this Agreement, or (iii) pursuant to Rule 144
promulgated under the Securities Act (“Rule 144”).


 


(b)                                 Legends.  The Purchaser agrees that the
Certificate for the Purchased Securities shall bear the following legend:


 


“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS 


 


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EVIDENCED BY EVIDENCE REASONABLY ACCEPTABLE TO THE
COMPANY TO SUCH EFFECT.”


 


The Purchaser may request that the Company remove, and the
Company agrees to authorize the removal of any legend from the Purchased
Securities (i) following any sale of the Purchased Securities pursuant to
an effective registration statement or Rule 144, or (ii) in connection with a proposed sale of any of the
Purchased Securities that would be eligible for sale under Rule 144.  Following the time a legend is no longer
required for the Purchased Securities hereunder, the Company will, no later
than thirty (30) business days following the delivery by the Purchaser to the
Company or the Company’s transfer agent of a legended certificate representing
such Purchased Shares, deliver or cause to be delivered to such Purchaser a
certificate representing such Purchased Shares that is free from all
restrictive and other legends. If unlegended certificates are not delivered to
such Purchaser within such thirty (30) business day period, the Company shall
pay such Purchaser liquidated damages in an amount equal to 1.0% of the
aggregate Purchase Price of the Purchased Shares evidenced by such certificate
for each 30-day period (or portion thereof) beyond such thirty (30) business
days that the unlegended certificates have not been so delivered.


 


(c)                                  Lockup Agreement.  The
Purchaser agrees that for a period beginning on the date hereof and ending on
the date that is six (6) months after the Closing Date, the Purchaser will
not (except, subject to the restrictions on transfer described in Section 5(a),
to an affiliate of the Purchaser who agrees in writing to be bound by the terms
of this Agreement) sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to
dispose of, directly or indirectly, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act and the rules and regulations of
the SEC promulgated thereunder with respect to, any shares of capital stock or
the Company or any securities convertible into or exercisable or exchangeable
for such capital stock, or publicly announce an intention to effect any such
transaction.


 


(d)                                 Material Non-Public Information.  The
Purchaser acknowledges that (i) the federal and state securities laws of
the United States of America prohibit any person who has material, non-public
information about a company from purchasing or selling securities of such a
company or from communicating such information to any other person under circumstances
in which it is reasonably foreseeable that such person is likely to purchase or
sell such securities and (ii) Purchaser has received material non-public
information about the Company pursuant to a confidentiality agreement between
the Company and the Purchaser.


 


6.                                      MISCELLANEOUS.


 


(a)                                  Successors and Assigns.  The
terms and conditions of this Agreement will inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
parties.  The Company shall not assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser.  The Purchaser
may assign its rights under this Agreement to any person to whom the Purchaser
assigns or transfers any Purchased Securities, provided that such transferee
agrees in writing to be bound by 


 


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the terms and provisions of this Agreement, and such transfer is in
compliance with the terms and provisions of this Agreement and permitted by
federal and state securities laws of the United States of America.


 


(b)                                 Governing Law.  This
Agreement will be governed by and construed and enforced under the internal
laws of the State of Delaware, without reference to principles of conflict of
laws or choice of laws.  EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 


(c)                                  Survival.  The representations,
warranties and covenants of the Company and the Purchaser contained in Sections
3 and 4 of this Agreement shall survive the Closing.


 


(d)                                 Counterparts.  This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.


 


(e)                                  Headings.  The headings and captions used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.


 


(f)                                    Amendments and Waivers.  This
Agreement may be amended and the observance of any term of this Agreement may
be waived only with the written consent of the Company and the Purchaser.


 


(g)                                 Severability.  If
any provision of this Agreement is held to be unenforceable under applicable
law, such provision will be excluded from this Agreement and the balance of the
Agreement will be interpreted as if such provision were so excluded and will be
enforceable in accordance with its terms.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Securities Sale
Agreement as of the date and year first above written.


 


	
   

  	
  DYAX CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ivana Magovcevic-Liebisch

  
	
   

  	
  Name:

  	
  Ivana
  Magovcevic-Liebisch, Ph.D., JD

  
	
   

  	
  Title:

  	
  Executive Vice President of Administration and

  
	
   

  	
   

  	
  General Counsel

  
				



 


 


	
   

  	
  DOMPÉ INTERNATIONAL, S.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eugenio Aringhieri

  
	
   

  	
   

  	
  Name:
  

  	
  Eugenio
  Aringhieri

  
	
   

  	
   

  	
  Title: 

  	
  Chief Executive Officer