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Exhibit 10.25(b)
SERIES E CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
by and between
LeukoSite, Inc.,
the Corporation,
and
Xxxxxx-Xxxxxxx Company,
the Investor
January 3, 1996
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SERIES E CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES E CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT,
dated this 3rd day of January 1996, is entered into by and between LEUKOSITE,
INC., a Delaware corporation (the "Corporation"), and XXXXXX-XXXXXXX COMPANY, a
Delaware corporation (the "Investor").
WHEREAS, the Corporation and the Investor are parties to the R&D
Agreement (as defined in Section 1 below);
WHEREAS, the R&D Agreement contemplates that, from time to time
and subject to certain conditions precedent set forth in the R&D Agreement, the
Corporation shall sell and issue to the Investor, and the Investor shall
purchase from the Corporation, shares of the Corporation's capital stock, all
upon the terms set forth in the R&D Agreement; and
WHEREAS, the Corporation and the Investor desire to enter into
this Agreement for purposes of implementing the purchase and sale of shares of
the Corporation's Series E Convertible Preferred Stock, $.0001 par value per
share, and for purposes of implementing certain future issuances of common
stock, $.0001 par value per share, of the Corporation, said purchase and sale
and said future issuances being contemplated and provided for in the R&D
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows.
SECTION 1. DEFINITIONS. The following terms as used herein shall
have the following meanings:
"AGREEMENT" and "THIS AGREEMENT" shall mean this
Series E Convertible Preferred Stock Purchase Agreement, dated as
of January 3, 1996, by and between the Corporation and the
Investor.
"BY-LAWS" shall mean the By-Laws of the Corporation
as in effect on the date hereof, a copy of which is attached
hereto as Exhibit A.
"EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended.
"PERSON" shall mean an individual, partnership,
corporation, association, trust, joint venture, unincorporated
organization, and any
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government, governmental department or agency or political
subdivision thereof.
"R&D AGREEMENT" shall mean the Research,
Development and Marketing Agreement between the Corporation and
the Investor, dated as of September 30, 1994, as amended from
time to time. Attached hereto as Exhibit B is a copy of such
Research, Development and Marketing Agreement, as heretofore
amended.
"RESTATED CERTIFICATE OF INCORPORATION" shall mean
the Restated Certificate of Incorporation filed with the
Secretary of State of Delaware on January 2, 1996, a copy of
which is attached hereto as Exhibit C.
"SECURITIES" shall mean, collectively, the Series E
Shares (as defined in Section 2.1 hereof) and the Conversion
Shares (as defined in Section 2.2 hereof).
"SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
"SERIES A COMMON STOCK" shall mean the Series A
Common Stock, $.0001 par value per share, of the Corporation.
"SERIES A PREFERRED STOCK" shall mean the Series A
Convertible Preferred Stock, $.0001 par value per share, of the
Corporation.
"SERIES B PREFERRED STOCK" shall mean the Series B
Convertible Preferred Stock, $.0001 par value per share, of the
Corporation.
"SERIES C PREFERRED STOCK" shall mean the Series C
Convertible Preferred Stock, $.0001 par value per share, of the
Corporation.
"SERIES D PREFERRED STOCK" shall mean the Series D
Convertible Preferred Stock, $.0001 par value per share, of the
Corporation.
"STAGE 2 RESEARCH PLAN" shall have the meaning
provided therefor in Section 1.4(b) of the R&D Agreement.
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"STOCKHOLDERS' AGREEMENT" shall mean the
Stockholders' Agreement, dated November 5, 1993, among the
Corporation, those investors listed on Schedule 1 thereto, and
the Founders (as defined therein), as amended from time to time.
SECTION 2. THE SERIES E CONVERTIBLE PREFERRED STOCK.
2.1. Series E Convertible Preferred Stock. Prior to the First
Closing Date (as defined in Section 3.1 hereof), the Corporation will have duly
authorized (i) the issuance and sale to the Investor, at the First Closing (as
defined in Section 3.1 hereof), of an aggregate of 625,000 shares (the "Initial
Series E Shares") of the Corporation's Series E Convertible Preferred Stock, par
value $.0001 per share (the "Series E Preferred Stock"), at a purchase price per
share of $4.00, and (ii) the issuance and sale to the Investor, at the Second
Closing (as defined in Section 3.2 hereof), of an additional 625,000 shares (the
"Additional Series E Shares") of Series E Preferred Stock, at a purchase price
per share of $4.00. For purposes of this Agreement, the term "Series E Shares"
shall mean the Initial Series E Shares and the Additional Series E Shares,
collectively. The Series E Shares shall have the powers, preferences, rights and
other terms and conditions applicable to shares of Series E Preferred Stock, as
set forth in Article III, Part E, of the Restated Certificate of Incorporation.
2.2. Conversion Shares. Prior to the First Closing Date, the
Corporation will have duly authorized and reserved, and covenants to continue to
reserve, free of preemptive rights and other preferential rights, a sufficient
number of its authorized but unissued shares of common stock, $.0001 par value
per share ("Common Stock"), to satisfy the rights of conversion of the Investor.
For purposes of this Agreement, (i) any shares of Common Stock issuable upon
conversion of the Initial Series E Shares, and such shares when issued, are
sometimes herein referred to as the "Initial Conversion Shares," (ii) any shares
of Common Stock issuable upon conversion of the Additional Series E Shares, and
such shares when issued, are sometimes herein referred to as the "Additional
Conversion Shares", and (iii) the Initial Conversion Shares and the Additional
Conversion Shares are sometimes herein referred to, collectively, as the
"Conversion Shares."
SECTION 3. SALE AND PURCHASE OF STOCK.
3.1. Sale and Purchase of the Initial Series E Shares. Subject to
compliance with all of the terms and conditions hereof and in reliance on the
representations, warranties and covenants set forth or referred to herein, the
Corporation shall issue and sell to the Investor, and the Investor shall
purchase from the Corporation, all of the Initial Series E Shares at a purchase
price per share equal to $4.00. The aggregate purchase price for all of the
Initial Series E
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Shares shall be $2,500,000. The closing of the sale and purchase of the Initial
Series E Shares (the "First Closing") will occur on January 3, 1996 at such
place and time as may be mutually agreed upon by the Investor and the
Corporation. The date of the First Closing is herein called the "First Closing
Date". At the First Closing, the Corporation shall, unless otherwise requested,
deliver to the Investor a single certificate evidencing the Initial Series E
Shares, against payment of the aggregate purchase price therefor by bank or
certified check or wire transfer of immediately available funds to such account
or accounts as the Corporation shall designate in writing.
3.2. Sale and Purchase of the Additional Series E Shares. Subject
to compliance with all of the terms and conditions hereof and in reliance on the
representations, warranties and covenants set forth or referred to herein, the
Corporation shall issue and sell to the Investor, and the Investor shall
purchase from the Corporation, all of the Additional Series E Shares at a
purchase price per share equal to $4.00. The aggregate purchase price for all of
the Additional Series E Shares shall be $2,500,000. The closing of the sale and
purchase of the Additional Series E Shares (the "Second Closing") will occur on
such date as the parties shall mutually agree but in no event later than the
date (the "Required Second Closing Date") that the Investor is required to
purchase the Additional Series E Shares pursuant to Section 1.4(b) of the R&D
Agreement. The date of the Second Closing is herein called the "Second Closing
Date". The Second Closing shall be held at such place and time on the Second
Closing Date as shall be mutually agreed upon by the Investor and the
Corporation. At the Second Closing, the Corporation shall, unless otherwise
requested, deliver to the Investor a single certificate evidencing the
Additional Series E Shares, against payment of the aggregate purchase price
therefor by bank or certified check or wire transfer of immediately available
funds to such account or accounts as the Corporation shall designate in writing.
The First Closing and the Second Closing are referred to herein, collectively,
as the "Closings" and each individually is sometimes referred to herein as a
"Closing." If the Second Closing shall not have occurred or been consummated on
or prior to the Required Second Closing Date, the provisions of this Section 3.2
shall terminate and be of no further force or effect whatsoever and neither the
Corporation nor the Investor shall have any further rights or obligations under
this Section 3.2; provided, however, that, if the failure to consummate the
Second Closing shall be due to the breach by either the Corporation or the
Investor of any covenant or agreement set forth in this Agreement or due to any
failure or inaccuracy of any representation or warranty made by the Corporation
or the Investor, then, notwithstanding any such termination of this Section 3.2,
the breaching party shall be and remain liable to the non-breaching party for
such breach, failure or inaccuracy.
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3.3. Issuance of Common Stock.
(a) If the Corporation completes an initial public offering of
Common Stock for its own account at a public offering price per share of less
than $4.00 (subject to adjustment from and after the date hereof upon each stock
dividend, stock split, reverse stock split or other similar event), taking into
account the fair market value of any warrants or other rights issued as units
with the Common Stock sold in any such initial public offering, the Investor
will be issued additional Common Stock, promptly after the initial public
offering is completed, at no cost to the Investor, in an amount sufficient to
make the Investor's average price per share of capital stock of the Company
purchased by the Investor pursuant to this Agreement and then owned by the
Investor equal to the public offering price per share of the Common Stock issued
in such initial public offering.
(b) The rights of the Investor pursuant to Section 3.3(a) hereof
shall be transferable to a subsequent purchaser for value (a "Purchaser") if
such Purchaser buys the Series E Shares at a purchase price per share less than
$4.00 (subject to adjustment from and after the date hereof upon each stock
dividend, stock split, reverse stock split or other similar event). Except to
the extent otherwise provided in the first sentence of this Section 3.3(b), the
rights of the Investor under Section 3.3(a) hereof shall not be transferable or
assignable in any way (including by operation of law) or to any Person
(including any purchaser, transferee or pledgee of the Series E Shares). Upon
any actual or purported sale, transfer, assignment or gift of the Series E
Shares (other than as provided in the first sentence of this Section 3.3(b)) or
of any of the Investor's rights thereunder, the provisions of Section 3.3(a)
hereof and the Investor's rights thereunder shall immediately terminate and be
of no further force or effect.
3.4 Satisfaction of Purchase Obligations. The purchase and sale
of the Initial Series E Shares by the parties hereto at the First Closing will
satisfy each party's respective obligations under Section 2 of the First
Amendment dated as of July 1, 1995 to the R&D Agreement. The purchase and sale
of the Additional Series E Shares by the parties hereto at the Second Closing
will satisfy each party's respective obligations under Section 1.4(b) of the R&D
Agreement, as amended by Section 1.4(e) of the R&D Agreement, with respect to
the purchase and sale of capital stock of the Company.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
hereby represents and warrants to the Investor as follows:
4.1. Organization, Standing, Power, Qualification. The
Corporation is a duly organized and validly existing corporation in good
standing under the laws of the State of Delaware with corporate power and
authority adequate for (a) the
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execution and delivery of this Agreement and the performance of its obligations
under this Agreement and R&D Agreement and (b) the carrying on of its business
as presently conducted by it. The Corporation is duly qualified and in good
standing as a foreign corporation in The Commonwealth of Massachusetts and does
not own or lease property or engage in any activity in any other jurisdiction
which would require its qualification in such jurisdiction and in which the
failure to be so qualified would have a material adverse effect on the financial
or other business condition of the Corporation.
4.2. Capitalization.
(a) As more fully described in the capitalization table set forth
in Schedule 4.2 attached hereto, the authorized capital stock of the Corporation
immediately following the First Closing shall consist of:
(i) 22,058,656 shares of Common Stock, of
which:
(1) 4,266,757 shall be validly issued
and outstanding, fully paid and nonassessable;
(2) 15,743,149 shares shall have been
duly reserved for issuance upon conversion of
outstanding shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred
Stock and of shares of Series A Preferred Stock
issuable upon exercise of outstanding warrants
issued to Comdisco, Inc. ("Comdisco") and an
outstanding stock option granted to Xxxxxxx
Xxxxxxxxx; and
(3) 1,923,735 shares (the "Option
Shares") shall have been duly reserved for issuance
pursuant to outstanding options under the
Corporation's 1993 Stock Option Plan, as amended
(the "Plan"), and 125,015 shares have been duly
reserved for issuance pursuant to options that may
be granted in the future under the Plan.
(ii) 15,743,149 shares of preferred stock, $.0001
par value per share, 10,345,000 shares of which shall have been
designated as Series A Preferred Stock (with 10,000,000 of such
10,345,000 shares of Series A Preferred Stock to be validly
issued and outstanding shares, fully paid and nonassessable),
1,666,667 shares of which shall have been designated as Series B
Preferred Stock and shall be validly issued and outstanding and
fully paid and nonassessable, 1,000,000 shares of which shall
have been designated as Series C Preferred Stock and shall be
validly issued and outstanding fully paid and nonassessable,
1,481,482 shares of which shall have been designated as Series D
Preferred Stock and shall be validly issued and
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outstanding and fully paid and nonassessable, and 1,250,000
shares of which shall have been designated as Series E Preferred
Stock (with 625,000 of such 1,250,000 shares of Series E
Preferred Stock to be validly issued and outstanding shares and,
pursuant to the terms of this Agreement, fully paid and
nonassessable).
(b) Except as set forth on Schedule 4.2 hereto, there are no
outstanding warrants or options for the purchase from the Corporation of any
shares of its capital stock.
4.3. Governing Documents. The Restated Certificate of
Incorporation and By-Laws are true, complete and correct as of the date hereof.
4.4. Financial Information. Included in Schedule 4.4 attached
hereto is the Corporation's unaudited Balance Sheet dated November 30, 1995 and
the Corporation's unaudited Statements of Operations, Stockholders' Equity and
Cash Flows for the period from January 1, 1995 to November 30, 1995
(collectively, the "Unaudited Financial Statements"). The Unaudited Financial
Statements have been prepared in accordance with generally accepted accounting
principles (except for a lack of footnotes and subject to year-end audit
adjustments) and fairly present, in all material respects, the Corporation's
financial condition as at, and results of operations for the period ended on,
such date. Since November 30, 1995, there has been no material adverse change in
the business, operations, assets, prospects or condition (financial or
otherwise) of the Corporation.
4.5. Enforceability of Agreements. The Board of Directors and
stockholders of the Corporation have duly taken all action necessary to
authorize the execution and delivery of this Agreement and the performance of
this Agreement and the R&D Agreement. This Agreement has been duly executed and
delivered by the Corporation, and each of this Agreement and the R&D Agreement
constitutes the valid and binding agreement of the Corporation, enforceable
against the Corporation in accordance with its terms, except to the extent
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and by the discretionary nature
of equitable remedies.
4.6. No Violation; No Defaults. Neither the execution and
delivery of this Agreement nor the consummation of any transaction contemplated
hereby or under the R&D Agreement, including, without limitation, the issuance
and sale of the Series E Shares as provided herein, has constituted or resulted
in or will constitute or result in a breach of the provisions of any mortgage,
lease, license or other instrument, contract or agreement to which the
Corporation is a party or by which it is bound, or the charter or By-Laws of the
Corporation or the violation of any judgment, decree, law or governmental or
administrative order, rule or regulation.
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The Corporation is not in default under any provision of its Restated
Certificate of Incorporation or By-Laws, or under any provision of any mortgage,
lease, license or other instrument, contract or agreement to which it is a party
or by which it is bound or of any law, ordinance, approval, rule or regulation
or any terms of any applicable order, judgment or decree of any court,
arbitrator or governmental or administrative authority which, singly or in the
aggregate, may have a material adverse effect on the business, operations,
assets, prospects or condition (financial or otherwise) of the Corporation.
4.7. Brokers' Fees. There are no brokers', finders', or similar
fees due from the Corporation in respect of the transactions contemplated by
this Agreement or the R&D Agreement.
4.8. Absence of Undisclosed Liabilities. Except as disclosed in
Schedule 4.8 hereto, in any of the other Schedules to this Agreement or in the
financial statements referred to in Section 4.4 hereof, or except for
liabilities or obligations arising in the ordinary course of business or created
pursuant to this Agreement or the R&D Agreement, to the best of the
Corporation's knowledge, the Corporation has no material liabilities (fixed or
contingent, including, without limitation, any liabilities for money borrowed or
any tax liabilities due or to become due).
4.9. Litigation. There is neither pending nor, to the
Corporation's knowledge, threatened any action, suit, proceeding or claim, or
any basis therefor or threat thereof, to which the Corporation is or may be
named as a party or its property is or may be subject or which calls into
question any of the transactions contemplated by this Agreement or the R&D
Agreement.
4.10. Consents. No consent, approval or authorization of, or
filing with, any governmental authority (other than (i) filings required to be
made under applicable federal or state securities laws and (ii) filings required
to be made with the United States Food and Drug Administration or other
governmental agency in order to obtain the necessary governmental licenses,
permits and approvals to manufacture, sell or otherwise commercialize any
products under or in connection with the R&D Agreement) is required in
connection with the Corporation's valid execution and delivery of this
Agreement, the Corporation's valid performance of this Agreement and the R&D
Agreement or the consummation of any transaction contemplated under this
Agreement or the R&D Agreement.
4.11. Trademarks, Licenses, Etc. The Corporation has or has the
right to use all patents, patent applications, trademarks, trademark rights,
trade names, trade name rights, copyrights, licenses, trade secrets, permits,
authorizations and other rights, as are necessary for the conduct of its
business, all of which are in full force and effect, and the Corporation, to the
best of its knowledge, is in substantial compliance with the foregoing without
any infringement of, adverse claim in respect
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of or known conflict with the valid rights of others which could affect or
impair in a material manner the business or assets or financial condition of the
Corporation. Annexed hereto as Schedule 4.11 is a schedule listing all patents,
patent applications, licenses, copyrights and similar intellectual property
rights of the Corporation. The Corporation has complied with all of its
obligations of confidentiality in respect of the claimed trade secrets or
proprietary information of others and knows of no violation of such obligations
of confidentiality as are owed to the Corporation. To the best of the
Corporation's knowledge, no employee, agent or consultant of the Corporation is
subject to confidentiality restrictions in favor of any third person the breach
of which could subject the Corporation to any material liability.
4.12. Subsidiaries; Title to Properties; Liens and Encumbrances;
Insurance. Except as set forth on Schedule 4.12 hereto, the Corporation has no
subsidiary and owns no security issued by or interest in any other corporation,
partnership or other organization. The Corporation has valid title to and
ownership of all the properties and assets purported to be owned by it, free
from all mortgages, pledges, liens, security interests, conditional sale
agreements, encumbrances or charges, except such as are described on Schedule
4.12 hereto and those which, singly or in the aggregate, would not have a
material adverse effect on the business, operation, assets, prospects or
condition (financial or otherwise) of the Corporation. The Corporation maintains
insurance of the kinds and in the amounts set forth on Schedule 4.12 hereto.
4.13. Environmental Compliance.
(a) The Corporation is not in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or regulation
pertaining to environmental matters, including without limitation those arising
under the Resource Conservation and Recovery Act ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"),
the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances
Control Act, or any state or local statute, regulation, ordinance, order or
decree relating to health, safety or the environment (hereinafter "Environmental
Laws"), which violation would have a material adverse effect on the environment
or the business, assets or financial condition of the Corporation.
(b) The Corporation has not received notice from any third
party, including without limitation any federal, state or local governmental
authority, (i) that the Corporation or any predecessor in interest has been
identified by the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986); (ii) that any
hazardous waste
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as defined by 42 U.S.C. Section 6903(5), any hazardous substances as defined by
42 U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42 U.S.C.
Section 9601(33) and any toxic substance, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or disposed of has
been found at any site at which a federal, state or local agency or other third
party has conducted or has ordered that the Corporation or any predecessor in
interest conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that any of them is or shall be a
named party to any claim, action, cause of action, complaint (contingent or
otherwise), or legal or administrative proceeding arising out of any third
party's incurrence of costs, expenses, losses or damages of any kind whatsoever
in connection with the release of Hazardous Substances.
(c) Except as set forth in Schedule 4.13 hereto: (i) no portion
of the Corporation's properties has been used for the handling, manufacturing,
processing, storage or disposal of Hazardous Substances except in accordance
with applicable Environmental Laws; (ii) in the course of any activities
conducted by the Corporation, no Hazardous Substances have been generated or are
being used on such properties except in accordance with applicable Environmental
Laws; (iii) there have been no releases (i.e. any past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping) or threatened releases of Hazardous Substances
on, upon, into or from the properties of the Corporation; and (iv) in addition,
any Hazardous Substances that have been generated on the properties of the
Corporation have been transported offsite only by carriers having an
identification number issued by the EPA and treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
applicable Environmental Laws, which transporters and facilities have been and
are, to the best of the Corporation's knowledge, operating in compliance with
such permits and applicable Environmental Laws.
4.14. Contracts. Except as set forth on Schedule 4.14 hereto, the
Corporation is not a party to or otherwise bound by any written or oral:
(a) agreement requiring the Corporation to make payments in
excess of $10,000 per year, which is not terminable on notice without
costs or other liability to the Corporation; and
(b) agreement for the employment of any officer, employee
or other person on a full-time or consulting basis.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The
Investor represents and warrants to the Corporation that:
5.1. Organization, Standing, Power. The Investor is a duly
organized and validly existing corporation in good standing under the laws of
the State of Delaware with corporate power and authority adequate for (a) the
execution and delivery of this Agreement and the performance of its obligations
under this Agreement and the R&D Agreement and (b) the carrying on of its
business as presently conducted by it. The Investor's principal office is
located in New Jersey.
5.2. Enforceability of Agreements. The Investor has duly taken
all corporate action necessary to authorize the execution and delivery of this
Agreement and the performance of this Agreement and the R&D Agreement. This
Agreement has been duly executed and delivered by the Investor, and each of this
Agreement and the R&D Agreement constitutes the valid and binding agreement of
the Investor, enforceable against the Investor in accordance with its terms,
except to the extent enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting the enforcement of creditors' rights and by
the discretionary nature of equitable remedies.
5.3. Consents. No consent, approval or authorization of, or
filing with, any governmental authority (other than (i) filings required to be
made under applicable federal or state securities laws and (ii) filings required
to be made with the United States Food and Drug Administration or other
governmental agency in order to obtain the necessary governmental licenses,
permits and approvals to manufacture, sell or otherwise commercialize any
products under or in connection with the R&D Agreement) is required in
connection with the Investor's valid execution and delivery of this Agreement,
the Investor's valid performance of this Agreement and the R&D Agreement or the
consummation of any transaction contemplated under this Agreement or the R&D
Agreement.
5.4. Investment Representations.
(a) It is acquiring the Initial Series E Shares and, in the event
it should acquire the Additional Series E Shares or Conversion Shares upon
conversion of any of the Series E Shares, it will be acquiring such Additional
Series E Shares and/or any such Conversion Shares, as the case may be, for its
own account, for investment and not with a view to the distribution thereof
within the meaning of the Securities Act.
(b) It is an "accredited investor" as such term is defined in
Rule 501 (a) promulgated under the Securities Act.
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(c) It further understands that the exemptions from registration
afforded by Rule 144 and Rule 144A (the provisions of which are known to it)
promulgated under the Securities Act depend on the satisfaction of various
conditions, and that, if applicable, Rule 144 and Rule 144A may afford the basis
for sales only in limited amounts.
(d) It has such knowledge and experience in business and
financial matters and with respect to investments in securities of
privately-held companies so as to enable it to understand and evaluate the risks
of the Investor's investment in the Series E Shares and the Conversion Shares
and form an investment decision with respect thereto. It has been afforded the
opportunity during the course of negotiating the transactions contemplated by
this Agreement to ask questions of, and to secure such information from, the
Corporation and its officers and directors as it deems necessary to evaluate the
merits of entering into such transactions.
(e) The Investor has adequate net worth and means of providing
for its current needs to sustain a complete loss of its investment in the
Corporation.
(f) Its total assets exceed $5,000,000 and it was not formed for
the specific purpose of acquiring the Series E Shares.
5.5. Brokers. It has not retained, utilized or been represented
by any broker or finder in connection with the transactions contemplated by this
Agreement or the R&D Agreement.
SECTION 6. CONDITIONS PRECEDENT.
6.1. Conditions to the Obligation of the Investor to Consummate
each Closing. The obligation of the Investor to consummate each Closing and to
purchase the Series E Shares to be purchased by the Investor at such Closing is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties contained herein of the Corporation shall be true and correct in all
material respects on and as of the applicable Closing Date with the same force
and effect as though made on and as of such Closing Date, both before and after
giving effect to the sale of the Initial Series E Shares or the Additional
Series E Shares, as the case may be.
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(b) Compliance with Agreement. The Corporation shall have
performed and complied with all of its obligations under this Agreement to be
performed or complied with by it prior to or at such Closing.
(c) Closing Certificate. The Corporation shall have executed and
delivered to the Investor at and as of such Closing a certificate, in form and
substance satisfactory to the Investor, certifying that the conditions specified
in each of Sections 6.1(a) and 6.1(b) hereof have been satisfied.
(d) Filing of Restated Certificate of Incorporation. The Restated
Certificate of Incorporation shall have been duly executed, shall have been
filed with and accepted by the Secretary of State of Delaware and shall have
become effective on or prior to the First Closing Date.
(e) Legal Opinion. The Investor shall have received a legal
opinion from Xxxxxxx, Xxxx & Xxxxx, counsel for the Corporation, addressed to
the Investor and dated the applicable Closing Date, in substantially the form
attached hereto as Exhibit D
(f) Proper Proceedings. All instruments and corporate proceedings
in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Investor, and the Investor shall have
received counterpart originals, or certified or other copies of all documents,
including without limitation records of corporate or other proceedings, which it
may have reasonably requested in connection therewith.
6.2. Conditions to the Obligation of the Corporation to Consummate each
Closing. The obligation of the Corporation to consummate each Closing and to
issue and sell the Series E Shares to be sold by the Corporation at such Closing
is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties contained herein of the Investor shall be true and correct in all
material respects on and as of the applicable Closing Date with the same force
and effect as though made on and as of such Closing Date, both before and after
giving effect to the sale of the Initial Series E Shares or the Additional
Series E Shares, as the case may be.
(b) Compliance with Agreement. The Investor shall have performed
and complied with all of its obligations under this Agreement to be performed or
complied with by it prior to or at such Closing.
(c) Closing Certificate. The Investor shall have executed and
delivered to the Corporation at and as of such Closing a certificate, in form
and substance
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satisfactory to the Corporation, certifying that the conditions
specified in each of Sections 6.2(a) and 6.2(b) hereof have been satisfied.
(d) Proper Proceedings. All instruments and corporate proceedings
in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Corporation, and the Corporation shall
have received counterpart originals, or certified or other copies of all
documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6.3. Conditions to the Respective Obligations of the Corporation and
the Investor to Consummate the Second Closing. The obligation of the Corporation
to consummate the Second Closing and to issue and sell the Additional Series E
Shares to the Investor, and the obligation of the Investor to consummate the
Second Closing and to purchase the Additional Series E Shares from the
Corporation, are subject to the satisfaction of any and all conditions precedent
thereto set forth in Section 1.4(b) of the R&D Agreement (it being the
understanding of the parties that each party's respective obligation under this
Agreement to consummate the Second Closing and the purchase and sale of the
Additional Series E Shares is contingent on such party being legally obligated
on the Second Closing Date to consummate the purchase or sale, as the case may
be, of the Additional Series E Shares pursuant to Section 1.4(b) of the R&D
Agreement).
SECTION 7. REGISTRATION RIGHTS.
7.1. "Piggyback" Registration. In the event that, at any time or from
time to time during the period commencing immediately after the closing of the
Corporation's initial public offering of Common Stock and ending on the
Registration Rights Termination Date (as defined below), the Corporation
proposes to register any of its Common Stock under the Securities Act, whether
as a result of an offering of Common Stock for the account of the Company or any
selling stockholder (other than pursuant to a registration statement on Form S-4
or Form S-8 or similar or successor forms), the Corporation shall, each such
time, give to the Investor written notice of its intent to do so. Upon the
written request of the Investor given within 30 days after the giving of any
such notice by the Corporation, the Corporation shall use its best efforts to
cause to be included in such registration such number of the Conversion Shares
as the Investor shall have specified in its notice to the Corporation (the
"Requested Conversion Shares"); provided that (i) the Requested Conversion
Shares are equal to at least fifty percent (50%) of the total number of
Conversion Shares then outstanding, (ii) the Investor agrees to sell the
Requested Conversion Shares in the same manner and on the same terms and
conditions as the other shares of Common Stock which the Corporation proposes to
register, and (iii) if the registration is to include shares of Common Stock to
be sold for the account of the Corporation, the proposed
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managing underwriter does not advise the Corporation that in its opinion the
inclusion of the Requested Conversion Shares (without any reduction in the
number of shares to be sold for the account of the Corporation) is likely to
affect adversely the success of the offering or the price the Corporation would
receive for any shares of Common Stock offered by it pursuant thereto, in which
case the rights of the Investor shall be as provided in Section 7.2 below. For
purposes hereof, the term "Registration Rights Termination Date" shall mean the
date upon which the Investor may dispose of shares of Common Stock pursuant to
Rule 144 promulgated under the Securities Act.
7.2. Underwriting Requirements; Reduction of Shares to be
Included in a Registration. In connection with any offering involving an
underwriting of shares of Common Stock, the Corporation shall not be required
under Section 7.1 hereof or otherwise to include any of the Requested Conversion
Shares therein unless the Investor accepts and agrees to the terms of the
underwriting as agreed upon between the Corporation and the underwriters
selected by the Corporation, and then only in such quantity as (without any
reduction in the numbers of shares to be sold for the account of the
Corporation, if any) will not, in the opinion of the underwriters, jeopardize
the success of the offering or the price the Corporation would receive for any
shares of Common Stock offered by it, if any, pursuant to the offering. If the
total number of shares of Common Stock which all selling stockholders of the
Corporation (including, without limitation, the Investor) desire to be included
in any offering exceeds the number of shares which the underwriters believe to
be compatible with the success of the offering or the price the Corporation
would receive for any shares of Common Stock offered by it, if any, pursuant to
the offering, the Corporation shall only be required to include in the offering
so many of the shares of Common Stock of the selling shareholders (including,
without limitation, the Investor) as the underwriters believe will not (without
any reduction in the number of shares to be sold for the account of the
Corporation, if any) jeopardize the success of the offering or the price the
Corporation would receive for any shares of Common Stock offered by it, if any,
pursuant to the offering (the selling shareholders' shares so included to be
apportioned pro rata among the selling shareholders according to the total
number of shares of Common Stock owned by said selling shareholders, or in such
other proportions as shall mutually be agreed to by such selling shareholders),
provided that no such reduction shall be made with respect to any securities
offered for the account of the Corporation.
7.3. Furnish Information. It shall be a condition precedent to
the obligations of the Corporation to take any action pursuant to this Section 7
that the Investor shall furnish to the Corporation such information regarding
the Investor and the shares of Common Stock held by the Investor as the
Corporation shall reasonably request and as shall be required in order to effect
any such registration by the Corporation.
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7.4. Expenses of Registration. All expenses incurred in
connection with a registration pursuant to this Section 7 (excluding
underwriting commissions and discounts and counsel fees of the Investor or of
any other selling shareholders of the Corporation), including without limitation
all registration and qualification fees, printing, and fees and disbursements of
counsel for the Corporation, shall be borne by the Corporation; provided,
however, that the Corporation shall not be required to pay for Blue Sky
registration or qualification expenses in connection with states in which the
Corporation is not registering or qualifying its original issue shares.
7.5 Underwriter's Lock-Up. In consideration of the registration
rights granted by the Corporation pursuant to this Section 7, the Investor
agrees that, at the request of the managing underwriter of any underwritten
public offering of Common Stock, the Investor shall not sell, assign, gift,
pledge or otherwise transfer, or exercise any registration rights with respect
to, any shares of Common Stock at any time during the period of 180 days
following the closing of any such underwritten public offering. The foregoing
restriction on the Investor's exercise of registration rights during any such
180 day period shall be applicable only to the extent that no other person shall
exercise registration rights in respect of equity securities of the Company
during such 180 day period.
SECTION 8. RESTRICTIONS ON TRANSFER.
8.1. General Restriction. None of the Securities shall be sold,
transferred, assigned, pledged, hypothecated or otherwise disposed of by any
Person unless and until such Securities proposed to be sold, transferred,
assigned, pledged, hypothecated or otherwise disposed of are so disposed of (A)
pursuant to and in conformity with (i) an effective registration statement filed
with the Securities and Exchange Commission pursuant to the Securities Act or
(ii) any then available exemption from the registration requirements of the
Securities Act, (B) pursuant to and in conformity with any applicable state
securities or blue sky laws, and (C) pursuant and in conformity with the
provisions of this Section 8 (including, without limitation, this Section 8.1
and Section 8.3 hereof), to the extent applicable. Any transfer or purported
transfer in violation of this Section 8, including, without limitation, this
Section 8.1 and Section 8.3 hereof, shall be null and void. The Corporation may
make a notation on its records or give instructions to any transfer agents of
the Securities in order to implement the restrictions on transfer set forth in
this Section 8. The Corporation shall not incur any liability for any delay in
recognizing any transfer of Securities if the Corporation reasonably believes
that such transfer may have been or would be in violation of the provisions of
the Securities Act, applicable blue sky laws or this Agreement.
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8.2.. Legend. Each certificate representing any of the Series E Shares
or Conversion Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY ARE SO REGISTERED OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. THE SHARES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER
AND THE VOTING PROVISIONS SET FORTH IN A CERTAIN SERIES E
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT DATED AS OF
JANUARY 3, 1996, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF LEUKOSITE, INC."
8.3. Right of Transfer. Subject to the provisions of Section 8.1
hereof, the Investor may transfer Securities to any Person, provided that any
such Person shall, as a condition precedent to such transfer, agree in writing
to become bound by all of the terms and provisions of this Section 8 and Section
9 hereof. The foregoing proviso of this Section 8.3 shall not be applicable with
respect to Securities that are transferred pursuant to a registration statement
that has been declared effective under the Securities Act or pursuant to Rule
144 promulgated under the Securities Act.
SECTION 9. VOTING AGREEMENT. The Investor hereby agrees that it shall
vote all shares of Series E Preferred Stock and any other shares of voting stock
of the Corporation owned of record or beneficially (or controlled as to voting
rights) by the Investor in favor of any Board member nominations or removals
pursuant to, and in accordance with, all of the terms, provisions and conditions
of Section 5 of the Stockholders' Agreement to the same extent as if the
Investor were a party to the Stockholders' Agreement. Without limiting the
generality of any of the provisions of Section 5 of the Stockholders' Agreement,
the provisions of this Section 9 shall terminate upon the closing of the
Company's initial public offering.
SECTION 10. FINANCIAL REPORTS. Until such time as the Corporation has a
class of its equity securities registered under the Exchange Act and is required
to file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act,
the Corporation shall furnish to the Investor (so long as the Investor is the
record owner of any of the Series E Shares) with the financial information
described below:
(a) Within 45 days after the end of each quarterly accounting
period, unaudited financial statements for such quarterly accounting period,
which
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shall include an income statement and a statement of cash flow for such
quarter and a balance sheet as of the last day thereof.
(b) Within 90 days after the end of each fiscal year of the
Corporation, audited financial statements of the Corporation, which shall
include an income statement and a statement of cash flow for such fiscal year
and a balance sheet as of the last day thereof, each prepared in accordance with
generally accepted accounting principles consistently applied, and accompanied
by the report of such independent certified public accountants as shall have
been approved by the Corporation's Board of Directors.
SECTION 11. INDEMNIFICATION.
11.1. Indemnification by the Corporation. The Corporation hereby agrees
to indemnify, defend and hold the Investor (and its directors, officers,
employees, agents and affiliates) harmless from and with respect to any and all
claims, liabilities, losses, damages, costs and expenses (including, without
limitation, the reasonable fees and disbursements of counsel) related to or
arising out of, directly or indirectly, any untruth, inaccuracy, failure or
breach by the Corporation of any representation or warranty, covenant,
obligation or undertaking made by the Corporation in this Agreement.
11.2. Indemnification by the Investor. The Investor hereby agrees to
indemnify, defend and hold the Corporation (and its directors, officers,
employees, agents and affiliates) harmless from and with respect to any and all
claims, liabilities, losses, damages, costs and expenses (including, without
limitation, the reasonable fees and disbursements of counsel) related to or
arising out of, directly or indirectly, any untruth, inaccuracy, failure or
breach by the Investor of any representation or warranty, covenant, obligation
or undertaking made by the Investor in this Agreement.
11.3. Indemnification Procedures. Either party seeking indemnification
hereunder (the "Indemnified Party") shall promptly notify the other party hereto
obligated to provide indemnification hereunder (the "Indemnifying Party") of any
action, suit, proceeding, demand, breach or claim (each, a "Claim") with respect
to which the Indemnified Party claims indemnification hereunder, provided that
failure of the Indemnified Party to give such notice shall not relieve any
Indemnifying Party of its obligations under this Section 11 except to the
extent, if at all, that such Indemnifying Party shall have been prejudiced
thereby. If such Claim relates to any action, suit, proceeding or demand
instituted against the Indemnified Party by a third party (a "Third Party
Claim"), upon receipt of such notice from the Indemnified Party, the
Indemnifying Party shall be entitled to participate in the defense of such Third
Party Claim, and if and only if each of the following conditions is satisfied,
the Indemnifying Party may assume the defense of
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such Third Party Claim, and, in the case of such an assumption, the Indemnifying
Party shall have the authority to negotiate, compromise and settle such Third
Party Claim:
(a) the Indemnifying Party confirms in writing that it is
obligated hereunder to indemnify the Indemnified Party with respect to such
Third Party Claim; and
(b) the Indemnified Party does not give the Indemnifying Party
written notice that it has determined, in the exercise of its reasonable
discretion, that matters of corporate or management policy or a conflict of
interest make separate representation by the Indemnified Party's own counsel
advisable.
The Indemnified Party shall retain the right to employ its own counsel and to
participate in the defense of any Third Party Claim, the defense of which has
been assumed by the Indemnifying Party pursuant hereto, but the Indemnified
Party shall bear and shall be solely responsible for its own costs and expenses
in connection with such participation.
11.4. Notice and Payment of Claims. In the event of any Claims
under Section 11.1 or 11.2 hereof, the Indemnified Party shall advise the
Indemnifying Party in writing of the amount and circumstances surrounding such
Claim. Subject to the Indemnifying Party's right pursuant to Section 11.3 hereof
to defend, negotiate, compromise and settle a Third Party Claim, the amount of
any Claim shall be paid by the Indemnifying Party forthwith on demand. If the
Indemnifying Party fails to pay any such Claim forthwith on demand, the
Indemnified Party may (i) proceed directly against the Indemnifying Party to
recover the amount of such Claim or (ii) set off the amount of such Claim
against amounts owed by the Indemnified Party to the Indemnifying Party. With
respect to liquidated Claims, if within thirty days of receiving notice of any
such Claim the Indemnifying Party has not contested such Claim in writing, the
Indemnifying Party shall be deemed to have accepted the validity of such Claim
and the Indemnifying Party's obligation to indemnify the Indemnified Party with
respect to such Claim pursuant to this Section 11.
SECTION 12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth herein shall survive each Closing for a
period of two (2) years; provided, however, that the representations and
warranties set forth in Section 4.13 hereof shall survive each Closing
indefinitely. All covenants contained herein shall survive indefinitely until,
by their respective terms, they are no longer operative. Anything disclosed in
any Schedule hereto shall be deemed disclosed in all other Schedules hereto.
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SECTION 13. NOTICES. All notices and other communications
pursuant to this Agreement shall be in writing, either delivered in hand or sent
by first-class mail, postage prepaid, or sent by telex, telecopier, facsimile
machine or telegraph, addressed as follows:
(i) if to the Corporation, to
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
with a copy to:
Xxxxxxx, Xxxx & Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
(ii) if to the Investor, to:
Senior Vice President,
Research and Development
Xxxxx-Xxxxx Pharmaceutical Research
Xxxxxx-Xxxxxxx Company
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
with a copy to:
Vice President and General Counsel
Xxxxxx-Xxxxxxx Company
000 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Any notice or other communication pursuant to this Agreement
shall be deemed to have been duly given or made and to have become effective (i)
when delivered in hand to the party to which it was directed, (ii) if sent by
telex, telecopier, facsimile machine or telegraph and properly addressed in
accordance with the foregoing provisions of this Section 13, when received by
the addressee, or (iii) if sent by first-class mail, postage prepaid, and
properly addressed in
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accordance with the foregoing provisions of this Section 13, (A) when received
by the addressee, or (B) on the third business day following the day of dispatch
thereof, whichever of (A) or (B) shall be the earlier.
SECTION 14. AMENDMENTS AND WAIVERS. None of the terms or
provisions contained in this Agreement may be amended, modified, supplemented,
waived or terminated unless the Corporation and the Investor shall execute an
instrument in writing agreeing or consenting to such amendment, modification,
supplement, waiver or termination.
SECTION 15. MISCELLANEOUS. This Agreement sets forth the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby. The invalidity or unenforceability of any term or provision
hereof or thereof shall not affect the validity or enforceability of any other
term or provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement is intended to take effect as a sealed instrument and may be executed
in any number of counterparts which together shall constitute one instrument and
shall be governed by and construed in accordance with the domestic substantive
laws of the Commonwealth of Massachusetts without giving effect to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other state, and shall bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Except to the extent otherwise provided in Section 3.3(b) hereof, this
Agreement and the rights and obligations hereunder of either party hereto may
not be assigned, transferred or delegated without the prior written consent of
the other party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Series
E Convertible Preferred Stock Purchase Agreement as of the date first above
written.
LEUKOSITE, INC.
By:
-----------------------------------
Xxxxxxxxxxx X. Xxxxxxxxx, President
XXXXXX-XXXXXXX COMPANY
By:
-----------------------------------
Name:
Title:
