EXHIBIT 7.7
PUT AGREEMENT
This Put Agreement, dated as of November 24, 1999 (the "Agreement"), is
made between Nexell Therapeutics Inc., a Delaware corporation ("the Company"),
and Xxxxxx International Inc., a Delaware corporation ("Xxxxxx").
Whereas, in connection with that certain Securities Agreement dated of even
date herewith between the Company and the signatories thereto, and in
consideration of the repayment by the Company of those certain convertible
subordinated debentures currently held by Xxxxxx, Xxxxxx desires to grant a Put
Right in connection with the Series B Preferred purchased at the Private
Placement Closing (as described below).
Now, Therefore, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties agree as follows:
Section 1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act;
provided, however, that Baxter shall not be considered an Affiliate of the
Company and the Company shall not be considered an Affiliate of Baxter for
purposes of this Agreement.
"Common Stock" shall mean the Common Stock of the Company, $.001 par value.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time.
"Liens" shall mean all security interests, mortgages, liens, claims,
pledges, charges, voting agreements or other encumbrances of any nature
whatsoever.
"Material Adverse Effect" shall mean a material adverse effect on the
business, assets, liabilities, results of operations or financial condition of
the Company and its subsidiaries taken as a whole or the ability of the Company
to perform its obligations under this Agreement of the Put Rights or to
consummate the transactions contemplated hereby or thereby.
"Person" shall mean an individual, partnership, corporation, limited
liability company, association, joint venture, trust or unincorporated
organization, government or agency or political subdivision thereof or other
entity.
"Placement Agent" shall mean a registered broker-dealer appointed to effect
the Private Placement.
"Private Placement" shall have the meaning provided in Section 2 below.
"Private Placement Closing" shall mean the closing of the Private
Placement.
"Private Placement Closing Date" shall mean the date on which the Private
Placement Closing occurs.
"Private Placement Memorandum" shall have the definition ascribed to it in
Paragraph 4 of the Closing Certificate attached as Exhibit D to the Securities
Agreement.
"Put Right" shall mean a right in the form of Exhibit A hereto.
"Preferred Stock" shall mean the Preferred Stock of the Company, $.001 par
value.
"Purchase Price" shall mean the price paid for each share of Series B
Preferred by the purchasers at the Private Placement Closing.
"Put Stock" shall mean the capital stock of the Company that Baxter is
required to purchase upon exercise of the Put Right. Initially, the Put Stock
shall be the share of Series B Preferred Stock issued in connection with the Put
Right. The Put Stock may be adjusted from time to time, as required, for any of
the events set forth in Section 10.1 of this Agreement.
"Rules and Regulations" shall mean the rules and regulations promulgated by
the SEC under the Securities Act and the Exchange Act.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time.
"Securities Agreement" shall mean the Securities Agreement dated of even
date herewith between the Company and the purchasers named in Schedule 1
thereto.
"Series B Preferred" shall mean the shares of Series B Preferred Stock of
the Company, $.001 par value.
"Side Letter" shall mean the letter agreement between the Company and
Baxter in substantially the form of Exhibit B hereto.
"Subsidiary" has the meaning set forth in Rule 12b-2 under the Exchange
Act.
"Warrants" shall mean the Class A Warrants and Class B Warrants issued by
the Company pursuant to the Securities Agreement.
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SECTION 2. PRIVATE PLACEMENT.
The Company shall use its reasonable best efforts to effect a private
placement with the purchasers named in the Securities Agreement (the "Private
Placement") of $63,000,000 of Series B Preferred, the Put Rights and the
Warrants in a transaction exempt from the registration requirements of the
Securities Act.
SECTION 3. PUT RIGHTS.
At the Private Placement Closing, Baxter agrees to issue one Put Right as a
component of each Series B Preferred purchased at the Private Placement Closing.
In connection with the inclusion of the Put Rights in the Private Placement, the
Company may include in the Private Placement Memorandum such information
relating to Xxxxxx as may be included in publicly available reports which have
been filed by Baxter with the SEC pursuant to the Securities Act or the Exchange
Act.
SECTION 4. PRIVATE PLACEMENT PROCEDURES.
In connection with the Private Placement the Company shall:
4.1 prepare a Private Placement Memorandum, together with such
amendments and supplements thereto as may be necessary to comply in all material
respects with the provisions of the Securities Act, the Exchange Act, the Rules
and Regulations, any state blue sky or securities law or other federal or state
law with respect to the sale or other disposition of the Series B Preferred, Put
Rights and Warrants. Such Private Placement Memorandum shall include only such
references to the Put Rights and to Baxter and its obligations thereunder as
shall be approved by Baxter;
4.2 use its best efforts to perfect exemptions for the Series B
Preferred, Put Rights and Warrants covered by the Private Placement Memorandum
under the Securities Act and all applicable Rules and Regulations and such other
securities or blue sky laws of such jurisdictions as shall be necessary in order
to effect the Private Placement, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein any general
consent to service of process;
4.3 deliver to Baxter an opinion of independent counsel to the Company,
which opinion shall be addressed to Baxter or upon which Baxter is entitled to
rely and which shall be in form and substance satisfactory to Baxter in its
reasonable judgment, to the effect that the Private Placement is exempt from the
registration requirements of the Securities Act and all applicable Rules and
Regulations and such other securities or blue sky laws of all applicable
jurisdictions;
4.4 enter into and perform its obligations under an agreement, in usual
and customary form, with the Placement Agent and under the Securities Agreement,
including, without limitation, to deliver to the purchasers in the Securities
Agreement an opinion of counsel to the Company in the usual and customary form
for the Private Placement;
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4.5 notify Baxter, at any time when a Private Placement Memorandum is
required to be delivered under applicable law, of the happening of any event of
which it has knowledge as a result of which the Private Placement Memorandum, as
then in effect, contains 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,
and to suspend all offers and sales of the Series B Preferred, Put Rights and
Warrants immediately until such misstatement or omission has been corrected; and
4.6 make available to the Placement Agent, and authorize the Placement
Agent on behalf of the Company to make available to each offeree, prior to the
sale of Series B Preferred and Put Rights to such offeree, the opportunity to
ask questions of and receive answers from representatives of the Company, and
the opportunity to obtain additional information, with respect to the Company
and the terms and conditions of the Private Placement in order to permit such
offeree to verify the accuracy of the information contained in the Private
Placement Memorandum and of any other information referred to herein.
SECTION 5. INDEMNIFICATION.
5.1 Indemnity by Company. To the extent permitted by law, the Company
will indemnify and hold harmless Baxter, the officers and directors of Baxter,
each underwriter (as defined in the Securities Act) or placement agent, and each
Person, if any, who controls (within the meaning of the Securities Act or
Exchange Act) Baxter or any such underwriter or placement agent, against any
breaches by the Company of its representations and warranties and against any
losses, claims, damages, liabilities or expenses (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, liabilities and
expenses (or actions in respect thereof) arise out of or are based upon any of
the following statements, omissions or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum, (ii) the omission or alleged
omission to state in the Private Placement Memorandum a material fact required
to be stated therein, or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iii) any
violation or alleged violation of the Securities Act, the Exchange Act, any
state blue sky or securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state blue sky or securities law in
connection with the Private Placement. The Company will reimburse Baxter, each
officer or director of Baxter, each such underwriter or placement agent, and
each person, if any, who controls (within the meaning of the Securities Act or
Exchange Act) Baxter or any such underwriter or placement agent for any
reasonable or other expenses incurred by them (including reasonable fees and
disbursements of counsel) in connection with investigating or defending any such
loss, claim, damage, liability, expense or action; provided, however, that the
Company shall not be liable to Baxter, the officers or directors of Baxter, each
such underwriter or placement agent, or any Person who controls (within the
meaning of the Securities Act or Exchange Act) Baxter or any such underwriter or
placement agent in any such case for any such loss, claim, damage, liability,
expense or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with the Private Placement
Memorandum by Baxter or any Affiliate, officer, director or controlling Person
of Baxter.
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5.2 Indemnity by Baxter. To the extent permitted by law, Xxxxxx will
indemnify the Company, its directors and officers and each Person who controls
the Company (within the meaning of the Securities Act or Exchange Act) against
any losses, claims, damages, liabilities and expenses resulting from any
breaches by Baxter of its representations and warranties hereunder or Violation,
but only to the extent that such Violation is contained in or results from any
information so furnished in writing by Baxter specifically for use in the
Private Placement Memorandum. Notwithstanding anything to the contrary contained
herein, Baxter shall have no obligation to indemnify under this Section 5.2 to
the extent that it has corrected information and provided that corrected
information to the Company and the Placement Agent for use in a revised Private
Placement Memorandum and a Violation based upon the earlier incorrect
information occurs following such time.
5.3 Notice; Right to Defend. Promptly after receipt by an indemnified
party under this Section 5 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
5, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
if the indemnifying party agrees in writing that it will be responsible for any
costs, expenses, judgments, damages and losses incurred by the indemnified party
with respect to such claim, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action shall relieve such indemnifying party of any liability to the
indemnified party under this Section 5 only if and to the extent that such
failure is prejudicial to its ability to defend such action, and the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party other than under this
Section 5.
5.4 Contribution. If the indemnification provided for in this Section 5
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative benefits received
by the indemnifying party on the one hand and of the indemnified party on the
other hand in connection with the Private Placement or, if such allocation is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other hand in connection with the statements or omissions which
resulted in such loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and the indemnified party shall be determined by reference to, among other
things, whether the 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
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indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
5.5 Survival of Indemnity. The indemnification and contribution provided
by this Section 5 shall be a continuing right to indemnification and
contribution and shall survive the Private Placement Closing and the expiration
or termination of this Agreement or of the Put Rights.
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANT OF THE COMPANY.
The Company represents and warrants to Baxter that:
6.1 The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is qualified to do
business in every jurisdiction in which the failure to be so qualified would
have a Material Adverse Effect. The Company has all requisite corporate power
and authority and all material licenses, permits and authorizations necessary to
own and operate its properties, to carry on its businesses as now conducted and
presently proposed to be conducted and to carry out the transactions
contemplated by this Agreement.
6.2 The Private Placement Memorandum (i) does not, at the time delivered
to any offeree or at the time of the Private Placement Closing, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading and (ii)
complies in all material respects with all applicable provisions of the
Securities Act and the Exchange Act and the Rules and Regulations, and
applicable state blue sky or securities laws. Notwithstanding the foregoing, the
Company makes no representation or warranty with respect to any information
provided in writing by Baxter or the Placement Agent specifically for use in the
Private Placement Memorandum;
6.3 The Placement Agent will be furnished with copies of the Private
Placement Memorandum in the quantities requested;
6.4 No action directed to, or which could reasonably be expected to
result in, preventing or suspending the use of the Private Placement Memorandum
has been taken or is pending or, to the knowledge of the Company, threatened by
the SEC or any state regulatory authority.
6.5 The financial statements of the Company, together with the notes
thereto, included in the Private Placement Memorandum present fairly the
financial position of the Company as of the dates thereof and the results of
operations and changes in financial position of the Company for the periods
covered thereby, and have been prepared in conformity with generally accepted
accounting principles consistently applied, except as otherwise stated therein.
6.6 The Company has an authorized capitalization as set forth in the
Securities Agreement, and, after giving effect to the issuance and sale of the
Series B Preferred, Put Rights
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and Warrants, will have on the Private Placement Closing Date the adjusted
authorized capitalization as set forth in the Securities Agreement. The correct
number of issued and outstanding shares of Common Stock and Preferred Stock of
the Company as of November 24, 1999 is set forth in the Securities Agreement,
and all such shares of Common Stock and Preferred Stock have been duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of or subject to any preemptive rights. As of November 24,
1999, there is no outstanding option, warrant or other right calling for the
issuance of, and no commitment, plan or arrangement to issue, any shares of
capital stock of the Company or any security convertible into or exchangeable
for capital stock of the Company other than as set forth in the Private
Placement Memorandum or the Securities Agreement.
6.7 The Series B Preferred will be, as of the Private Placement Closing
Date, duly and validly authorized, and when issued and delivered to the
purchasers in the Private Placement against payment therefor, will be duly and
validly issued, fully paid and nonassessable. The issuance of the Series B
Preferred is not subject to any preemptive rights. The descriptions of the
Series B Preferred and any other securities of the Company in the Securities
Agreement conform in all material respects to the rights set forth in the
instruments defining the same, and the certificates used to evidence the shares
of Series B Preferred will be in due and proper form. All actions of the Company
in connection with the offer and sale of the outstanding capital stock of the
Company have been, and the offer and sale of the Series B Preferred and Put
Rights will be, effected in compliance in all material respects with applicable
law. Upon payment and delivery in accordance herewith, each of the purchasers in
the Private Placement will receive good, valid and marketable title to its
respective Series B Preferred, free and clear of all Liens.
6.8 The Company has taken all corporate action necessary for it to
execute, deliver and perform this Agreement, and the Company has full corporate
power and authority to enter into this Agreement and perform its obligations
hereunder. This Agreement is the valid and legally binding agreement of the
Company enforceable in accordance with its terms, except as rights to
indemnification may be unenforceable insofar as they relate to violations of
state or federal securities laws and except as enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally or by equitable principles.
6.9 KPMG LLP, whose reports on the audited financial statements of the
Company have been included in the Private Placement Memorandum, are independent
public accountants with respect to the Company, within the meaning of the Rules
and Regulations.
6.10 The Company has not, within six months of the date hereof, directly
or indirectly, sold or offered, or attempted to offer or dispose of, any equity
or debt securities or substantially similar securities of the Company to, or
solicited offers to buy any thereof from, or otherwise approached or negotiated
in respect thereof with, any offeree in such manner as to require the
registration of the Series B Preferred and Put Rights under the Securities Act.
6.11 Based in part on the representations made by the purchasers in the
Securities Agreement, the offer and sale of the Series B Preferred, Put Rights
and Warrants in the Securities
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Agreement are exempt from the registration requirements of the Securities Act
and all applicable Rules and Regulations and such other securities or blue sky
laws of all applicable jurisdictions.
6.12 The sale of the Series B Preferred and Warrants by the Company
hereunder and the performance of the transactions contemplated hereby is not
prohibited by any applicable law, administrative or governmental rule or
regulation or order of a court of competent jurisdiction. No action, suit or
proceeding exists or, to the Company's knowledge, is threatened that would
prevent, restrain or condition in any material respect the issuance of the
Series B Preferred and Put Rights by the Company and Baxter in the Private
Placement, and no condition or event exists or has occurred that would have a
Material Adverse Effect.
6.13 The representations and warranties made by the Company in the
Securities Agreement are hereby made to Xxxxxx as if set forth herein.
In addition, the Company makes the following covenant:
6.14 In the event that Baxter purchases the Put Stock, or Baxter sells or
causes to be sold the Put Stock to a third party because Baxter is prohibited
from purchasing or owning such stock, due to any law, rule, regulation, order or
ruling of any court or governmental entity having jurisdiction over Baxter, the
Company agrees to extend to Baxter or to such third parties, as the case may be,
the same rights extended to the original holders of the Subject Securities under
the Registration Rights Agreement between the Company and the signatories
thereto dated of even date herewith.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF BAXTER.
7.1 Baxter represents and warrants that the information provided in
writing by Baxter specifically for use in the Private Placement Memorandum, as
updated by Baxter from time to time, does not, at the time it is furnished to
the Company for use in the Private Placement Memorandum or at the time of the
Private Placement Closing, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. Except as specifically set forth in the previous
sentence, Baxter makes no representation or warranty with respect to the Private
Placement Memorandum.
7.2 Baxter further represents and warrants to the Company as follows:
7.2.1 This Put Agreement has been duly authorized, executed and
delivered by Baxter and constitutes the valid and legally binding obligation of
Baxter enforceable against it in accordance with its terms.
7.2.2 The execution, delivery and performance of this Put Agreement
and the purchase by Baxter of the Put Stock upon the exercise by the Holder of
the Put Right in accordance with the terms of the Put Right Certificate will not
violate or constitute a default under any term of the charter or by-laws of
Baxter or any term of any agreement, document, instrument, judgment, decree,
order, law, statute, rule or regulation applicable to Baxter or any of its
properties and assets.
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7.2.3 Other than any notification that may be required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), in connection with the purchase by Baxter of the Put Stock, no consent,
approval or authorization of, or declaration or filing with, or other action by,
any Person (including, without limitation, any governmental authority) is
required, in any such case that is applicable to Xxxxxx, as of the date hereof
as a condition precedent to the valid execution, delivery and performance by
Baxter of this Put Agreement and/or the purchase by Baxter of the Put Stock upon
the exercise by the Holder in accordance with the terms of the Put Right
Certificate. In the event that any notification is required under the HSR Act in
connection with the purchase by Baxter of the Put Stock, or in the event any
other consent, approval or authorization of, or declaration or filing with, or
other action by, any person (including, without limitation, any governmental
authority) is required after the date hereof as a condition precedent to the
performance by Baxter of this Put Agreement and/or the purchase by Baxter of the
Put Stock upon the exercise of the Put Rights, then the parties shall perform
their respective obligations as set forth in Section 11(e) of the Put Right
Certificates.
SECTION 8. CONDITIONS.
8.1 Conditions to Xxxxxx'x Obligation to Issue Put Rights. The
obligation of Baxter to issue the Put Rights at the Private Placement Closing
Date shall be subject to the satisfaction (or waiver in writing by Baxter) on or
prior to the Private Placement Closing of the following conditions.
8.1.1 Representations and Warranties; Covenants. The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects as of the Private Placement Closing
Date, and there shall be no breach or failure to perform any of the covenants
and agreements of the Company contained in this Agreement which has not been
cured on or prior to the Private Placement Closing Date.
8.1.2 No Material Adverse Change. Subsequent to the date of the
most recent financial statements in the Private Placement Memorandum and except
as set forth in the Private Placement Memorandum, the Company's filings with the
SEC or the Securities Agreement, there has been no material adverse change in
the business, assets, liabilities, results of operations or financial condition
of the Company or the ability of the Company to perform its obligations under
this Agreement or to consummate the transactions contemplated hereby or thereby.
8.1.3 Validity of Private Placement. The Company shall not have
taken or failed to take any action, at any time at or prior to Private Placement
Closing Date, which conflicts or could reasonably be expected to conflict with,
or otherwise makes unavailable, the exemption for the offering and sale of the
Series B Preferred, Put Rights and Warrants from the registration provisions of
the Securities Act, or from any applicable state securities or blue sky laws,
rules and regulations. The issuance and sale of the Series B Preferred, Put
Rights and Warrants in the Private Placement shall be legally permitted under
applicable blue sky or state securities laws.
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8.1.4 Closing Documents. The Company shall have delivered to Baxter
the following documents:
(a) a certificate signed by the Chief Executive Officer,
President or the Chief Financial Officer, dated the Closing Date, certifying the
Purchase Price and certifying that the conditions specified in Sections 8.1.1
and 8.1.2 have been satisfied;
(b) certified copies of resolutions duly adopted by the
Company's Board of Directors authorizing: (A) the execution, delivery and
performance of this Agreement; and (B) the Private Placement;
(c) a reliance letter from outside counsel to the Company
permitting Baxter to rely on the opinion given on the Closing Date to the
purchasers under the Securities Agreement;
(d) the Side Letter executed by the Company; and
(e) such other documents relating to the transactions
contemplated by this Agreement as Baxter or its counsel may reasonably request.
8.2 Conditions to the Company's Obligation to Effect the Private
Placement. The obligation of the Company to effect the Private Placement shall
be subject to the satisfaction (or waiver in writing by the Company) on or prior
to the Private Placement Closing Date of the following conditions.
8.2.1 Representations and Warranties; Covenants. The
representations and warranties of Baxter contained in this Agreement shall be
true and correct in all material respects as of the Private Placement Closing
Date and there shall be no breach or failure to perform any of the covenants and
agreements of Baxter contained in this Agreement which has not been cured on or
prior to the Private Placement Closing Date.
8.2.2 Compliance with Law; No Litigation or Other Adverse Effect.
Subject to the provisions of Section 11 (e) of the Put Right Certificates, the
issuance of the Put Rights by Baxter hereunder and the performance by Baxter of
the transactions contemplated hereby shall not be prohibited by any applicable
law, administrative or governmental rule or regulation or order of a court of
competent jurisdiction. No action, suit or proceeding shall exist or be
threatened, to the knowledge of Baxter, that would prevent, restrain or
condition in any material respect the issuance of the Put Rights by Baxter in
the Private Placement, and no condition or event shall exist or occur that would
have a material adverse effect on the ability of Baxter to consummate the
transactions contemplated hereby.
8.2.3 Closing Documents. Baxter shall have delivered to the Company
a certificate signed by an officer of the Company, dated the Closing Date,
certifying that the conditions specified in Sections 8.2.1 and 8.2.2 have been
satisfied.
8.2.4 Side Letter. Baxter shall have delivered to the Company the
Side Letter executed by Baxter.
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SECTION 9. TERMINATION.
This Agreement may be terminated:
9.1 by mutual written consent of Baxter and the Company; or
9.2 automatically, without any action by Baxter or the Company, if the
Private Placement Closing has not occurred by November 30, 1999.
SECTION 10. GENERAL.
10.1 Adjustments for Stock Splits, Consolidations, Etc. The initial
designation of Put Stock, the Purchase Price and the Put Purchase Price are
based on the Series B Preferred as constituted as of the date of this Agreement.
If the Company shall at any time after the date of this Agreement (i) declare a
dividend on Series B Preferred (or any other Put Stock) payable in shares of its
capital stock, (ii) subdivide the outstanding Series B Preferred (or any other
Put Stock), (iii) combine the outstanding Series B Preferred (or any other Put
Stock) into a smaller number of shares of Series B Preferred (or any other Put
Stock) or (iv) issue any shares of its capital stock in a reclassification of
the Series B Preferred (or any other Put Stock) (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), the Purchase Price and Put
Purchase Price in effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock subject to such Put Rights on such
date, shall be proportionately adjusted so that upon exercise by the holders of
the Put Rights (the "Holders") Baxter shall be entitled to receive the aggregate
number and kind of shares of capital stock upon payment of the Put Purchase
Price which, if such Put Rights had been exercised immediately prior to such
date and at a time when the Series B Preferred (or other Put Stock, as the case
may be) transfer books of the Company were open, Baxter would have owned upon
such exercise and payment and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification.
Not later than 10 business days prior to the record date of any such
dividend or the effective date for any such subdivision, combination or
reclassification, the Company shall send to Baxter a certificate signed by its
Chief Financial Officer setting forth in reasonable detail a description of such
dividend, subdivision, combination or reclassification and all adjustments to be
made pursuant to this Section 9 to the Purchase Price and Put Purchase Price and
the number and kinds of capital stock subject to the Put Rights. The adjustments
set forth in such certificate shall be binding on the Company, Baxter and the
Holders unless, within 30 days following receipt of such certificate, either
Baxter or Holders representing not less than 66-2/3% in interest of the Put
Stock shall notify the Company and each of the Holders or Baxter, as applicable,
of its or their disagreement with such adjustments, in which event such
adjustment will be determined (at the expense of the Company) by a firm of
independent certified public accountants of recognized national standing
selected by the Company and reasonably satisfactory to Baxter and the Holders of
more than 75% in interest of the Put Stock at the time outstanding and shall be
set forth in a separate report from such accountants delivered promptly to the
Company, the Holders and Baxter following the determination by such accountants.
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10.2 Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
10.3 Assignment. Neither party hereto may assign or transfer this
Agreement without the prior written consent of the other party hereto; provided,
however, that either party hereto may assign this Agreement to any Person with
or into which such party may merge or consolidate or to whom all or
substantially all of its assets or businesses may be sold and that Baxter may
assign this Agreement to any wholly-owned subsidiary of Baxter, provided that
Baxter remains liable for its obligations hereunder.
10.4 Entire Agreement. This Agreement and the Put Right Certificates
evidencing the Put Rights set forth the entire understanding of the parties
hereto with respect to the subject matter hereof and thereof and supersede all
prior agreements, written and oral, among the parties hereto as to such subject
matter.
10.5 Waiver. The waiver by either party hereto of any breach of any
provision of this Agreement shall not constitute or operate as a waiver of any
other breach of such provision or of any other provision hereof, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof.
10.6 Expenses. Except as expressly provided in this Agreement and subject
to any rights based on a breach of this Agreement, each party hereto shall bear
its own costs and expenses incident hereto.
10.7 Amendments. This Agreement may not be amended, nor may any provision
hereof be modified or waived, except by an instrument in writing duly signed by
both parties hereto.
10.8 Notices. All notices and other communications required or permitted
to be given hereunder shall be deemed sufficiently given if sent by certified
mail, postage prepaid, return receipt requested, by facsimile transmission (with
receipt confirmed) or by air courier service (with receipt confirmed), addressed
as follows:
If to the Company:
Nexell Therapeutics, Inc.
0 Xxxxxx
Xxxxxx, XX 00000-0000
Attention: President
Facsimile: (000) 000-0000
12
with a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxx
Facsimile: (000) 000-0000
If to Baxter:
Xxxxxx International Inc.
One Xxxxxx Parkway
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Treasurer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx International Inc.
One Xxxxxx Parkway
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
or at such other address as it may have furnished in writing to the other party
hereto.
10.9 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
substituted for the provision at issue a valid and enforceable provision as
similar as possible to the provision at issue.
10.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without reference to the
principles of conflict of laws thereof.
10.11 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning, interpretation, enforceability
or validity of this Agreement.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same document.
* * *
13
In Witness Whereof, the Company and Baxter have each caused this Agreement
to be executed by their duly authorized officers as of the date first written
above.
Nexell Therapeutics Inc.
By: __________________________________
Name: ________________________________
Title: _______________________________
Xxxxxx International Inc.
By: __________________________________
Name: ________________________________
Title: _______________________________
14
EXHIBIT A
FORM OF PUT RIGHT CERTIFICATE
EXHIBIT B
FORM OF SIDE LETTER
