EXHIBIT 1
LEUKOSITE, INC.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of June 22, 1999 by and
between (i) LEUKOSITE, INC., a Delaware corporation with its principal office at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), (ii) Perseus
Capital LLC, a Delaware limited liability company, with its principal office at
0000 X X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000 (the "Purchaser") and (iii) any
permitted assignee pursuant to Section 10.9(a) hereof.
WHEREAS, the Company desires to issue and sell to the Purchaser, and
the Purchaser desires to purchase from the Company, an aggregate of 1,030,928
shares (the "Shares") of the authorized but unissued shares of common stock,
$.01 par value per share, of the Company (the "Common Stock"), at an aggregate
purchase price of $10,000,000, all upon the terms and subject to the conditions
set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Affiliate" of a party means any corporation or other
business entity controlled by, controlling or under common control with, such
party. For this purpose "control" shall include direct or indirect beneficial
ownership of more than fifty percent (50%) of the voting power or economic
interest in such corporation or other business entity.
(b) "Closing" shall have the meaning set forth in Section 2.2
of this Agreement.
(c) "Closing Date" means the date of the Closing.
(d) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and all of the rules and regulations promulgated thereunder.
(e) "Person" (whether or not capitalized) shall mean an
individual, partnership, limited liability company, corporation, association,
trust, joint venture, unincorporated organization, and any government,
governmental department or agency or political subdivision thereof.
(f) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, between the Company
and the Purchaser, in the form attached hereto as Exhibit A.
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(g) "SEC" shall mean the Securities and Exchange Commission.
(h) "Securities" shall mean the Shares, any shares of Common
Stock of the Company, any securities convertible into, exercisable for or
exchangeable for shares of Common Stock or preferred stock of the Company, or
any direct or indirect beneficial ownership in any rights, warrants or options
to acquire, or in any securities convertible into or exchangeable for, any
securities (voting or non-voting) of the Company.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
(j) "Voting Securities" shall mean any Securities which
entitle the holder thereof to vote (whether at a meeting of stockholders, by
written consent without a meeting or otherwise), directly or indirectly, alone
or in concert with others on any matters for which the holder of such Securities
is entitled to vote thereon.
2. Purchase and Sale of Shares.
2.1 Purchase and Sale. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to issue and sell to
the Purchaser, and the Purchaser hereby agrees to purchase from the Company, at
the Closing, the Shares at a purchase price of $9.70 per share. The aggregate
purchase price payable by the Purchaser to the Company for all of the Shares
shall be $10,000,000.
2.2 Closing. The closing of the transactions contemplated
under this Agreement (the "Closing") shall take place at the Boston offices of
Xxxxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 on such date
and at such time as may be agreed upon between the Purchaser and the Company;
provided, that the Closing Date shall be no earlier than the date on which the
Company consummates its proposed acquisition (the "ProScript Acquisition") of
ProScript, Inc., a Delaware corporation ("ProScript"), and no later than the
date which is one (1) business day after the Company consummates the ProScript
Acquisition. At the Closing, the Company shall deliver to the Purchaser a single
stock certificate, registered in the name of the Purchaser, representing the
number of shares of Common Stock purchased by the Purchaser, against payment of
the purchase price therefor by wire transfer of immediately available funds to
such account or accounts as the Company shall designate in writing.
2.3 Perseus-Xxxxx Management, LLC Fee. At the Closing, subject
to and upon the terms and conditions set forth in this Agreement, the Company
shall pay to Perseus, LLC, a Delaware limited liability company, a fee in an
aggregate amount equal to $200,000, by wire transfer of immediately available
funds to such account or accounts as Perseus, LLC shall designate in writing.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
3.1 Incorporation. 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 each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a material
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adverse effect upon the Company. The Company has all requisite corporate power
and authority to carry on its business as now conducted and to carry out the
transactions contemplated hereby.
3.2 Capitalization. The authorized capital stock of the
Company consists of (i) 25,000,000 shares of Common Stock, of which 12,918,306
shares were outstanding as of June 16, 1999, and (ii) 5,000,000 shares of
preferred stock, of which no shares are outstanding on the date hereof. Except
as set forth in Schedule 3.2 hereto, there are no existing options, warrants,
calls, preemptive (or similar) rights, subscriptions or other rights,
agreements, arrangements or commitments of any character obligating the Company
to issue, transfer or sell, or cause to be issued, transferred or sold, any
shares of the capital stock of the Company or other equity interests in the
Company or any securities convertible into or exchangeable for such shares of
capital stock or other equity interests, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of its capital stock or other equity interests.
3.3 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered by
the Company, each of this Agreement and the Registration Rights Agreement shall
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such may be limited
by bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally and by general equitable principles, and except as the same may
be limited by the indemnification obligations of the Company under the
Registration Rights Agreement. The Company has all requisite corporate power to
enter into this Agreement and the Registration Rights Agreement and to carry out
and perform its obligations under the terms of this Agreement and the
Registration Rights Agreement.
3.4 Valid Issuance of the Shares. The Shares will, upon
issuance pursuant to the terms hereof, be duly authorized and validly issued,
fully paid and nonassessable and not subject to any encumbrances, preemptive
rights or any other similar contractual rights of the stockholders of the
Company or others.
3.5 Financial Statements. The Company has furnished to the
Purchaser its audited Statements of Income, Stockholders' Equity and Cash Flows
for each of the fiscal years ended December 31, 1997 and 1998, its audited
Consolidated Balance Sheet as of December 31, 1998, its unaudited Statements of
Income, Stockholders' Equity and Cash Flows for the period from January 1, 1999
to March 31, 1999, and its unaudited Balance Sheet as of March 31, 1999. All
such financial statements are hereinafter referred to collectively as the
"Financial Statements". The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved, and fairly present, in all material respects,
the financial position of the Company and the results of its operations as of
the date and for the periods indicated thereon, except that the unaudited
financial statements referred to above may not be in accordance with generally
accepted accounting principles because of the absence of footnotes normally
contained therein and are subject to normal year-end audit adjustments which,
individually and in the aggregate, will not be material. Since March 31, 1999,
there has been no material adverse change (actual or threatened) in the assets,
liabilities (contingent or other), affairs, operations, prospects or condition
(financial or other) of the Company.
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3.6 SEC Documents. The Company has furnished to the Purchaser,
a true and complete copy of the Company's Annual Report on Form 10-K for the
year ended December 31, 1998 (the "Annual Report"), the Company's Quarterly
Report on Form 10-Q for the three months ended March 31, 1999, and any other
statement, report, registration statement (other than registration statements on
Form S-8) or definitive proxy statement filed by the Company with the SEC during
the period commencing March 31, 1999 and ending on the date hereof. The Company
will, promptly upon the filing thereof, also furnish to the Purchaser all
statements, reports (including, without limitation, Quarterly Reports on Form
10-Q and Current Reports on Form 8-K), registration statements and definitive
proxy statements filed by the Company with the SEC during the period commencing
on the date hereof and ending on the Closing Date (all such materials required
to be furnished to the Purchaser pursuant to this sentence or pursuant to the
next preceding sentence of this Section 3.6 being called, collectively, the "SEC
Documents"). As of their respective filing dates, the SEC Documents complied in
all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading, as of
their respective filing dates.
3.7 Consents. Except for (i) the filing and effectiveness of
any registration required to be filed by the Company under the Securities Act in
connection with the exercise by the Purchaser of its rights under the
Registration Rights Agreement and (ii) any required state "blue sky" law filings
in connection with the transactions contemplated under such registration
statement, all consents, approvals, orders and authorizations required on the
part of the Company in connection with the execution, delivery or performance of
this Agreement and the Registration Rights Agreement and the consummation of the
transactions contemplated herein and therein have been obtained and will be
effective as of the Closing Date.
3.8 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or By-laws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulation, applicable to the Company or its properties or
assets.
3.9 Brokers or Finders. The Company has not dealt with any
broker or finder in connection with the transactions contemplated by this
Agreement, and the Company has not incurred, and shall not incur, directly or
indirectly, any liability for any brokerage or finders' fees or agents
commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
3.10 Nasdaq National Market. The Common Stock is listed on the
Nasdaq National Market System, and there are no proceedings to revoke or suspend
such listing.
3.11 Absence of Litigation. There is no pending (or to the
best of the Company's knowledge, threatened) action, suit, proceeding or
investigation against the Company or any of its direct or indirect subsidiaries.
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3.12 No Undisclosed Liabilities. Other than as disclosed on
the Financial Statements delivered to Purchaser, since March 31, 1999, the
Company has incurred no material liabilities or obligations, fixed or
contingent, matured or unmatured or otherwise, except for liabilities or
obligations that, individually or in the aggregate, do not or would not have a
material adverse effect on the financial condition or business of the Company
and its subsidiaries other than (a) liabilities and obligations arising in the
ordinary course of business and (b) other liabilities disclosed in the schedules
to this Agreement.
3.13 Contracts. All contracts, agreements and instruments
required to be filed as an exhibit to the Annual Report are legal, valid,
binding and in full force and effect and, to the knowledge of the Company, are
enforceable by the Company in accordance with their respective terms, subject to
(a) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, (b) rules of law governing specific performance, injunctive
relief or other equitable remedies, and (c) actions or omissions of Persons
other than the Company, provided, however, that the Company has no knowledge of
any material actions or omissions by such other Persons. Except as disclosed in
the Annual Report and other than contracts or agreements relating exclusively to
the Company's pre-clinical and clinical development and manufacturing
activities, the Company has not granted rights to manufacture, produce,
assemble, license, market or sell its products to any other person and is not
bound by any contract or agreement that materially restricts the Company's
exclusive right to develop, manufacture, assemble, distribute or sell its
products.
3.14 Subsidiaries; Joint Ventures. The Company has no
subsidiaries other than LeukoSite (U.K.) Limited, a company organized under the
laws of England and Wales, and CytoMed, Inc., a Delaware corporation, each of
which are wholly-owned subsidiaries of the Company, and does not otherwise own
or control, directly or indirectly, any other Person, other than L&I Partners
L.P., a Delaware limited partnership. Except as described in the Annual Report
(including the Joint Venture Agreement (as defined below) as incorporated by
reference thereto), the Company is not a participant in any joint venture,
partnership, or similar arrangement material to its business. The Company is a
party to a joint venture agreement (the "Joint Venture Agreement") with Ilex
Oncology, Inc ("Ilex"). In the Company's judgement, and in the context of the
Joint Venture Agreement, the Company's commercial working relationship with Ilex
is satisfactory and, to the knowledge of the Company, (i) Ilex has not within
the last twelve months threatened to cancel or otherwise terminate the Joint
Venture Agreement with the Company in accordance with its terms, (ii) Ilex has
not notified the Company of Ilex's intention to materially modify or amend the
terms of the Joint Venture Agreement, and (iii) the consummation of the
transactions contemplated by this Agreement and the Registration Rights
Agreement will not materially adversely affect the relationship of the Company
with Ilex.
3.15 Taxes. Each of the Company and any subsidiary of the
Company has filed (or has had filed on its behalf) or will timely file or will
cause to be timely filed, all material Tax Returns (as defined below) required
by applicable law to be filed by it prior to or as of the date of the Closing,
and such Tax Returns are, or will be at the time of filing, true, correct and
complete in all material respects. Each of the Company and any subsidiary of the
Company has paid (or has had paid on its behalf) or, where payment is not yet
due, has established (or has had established on its behalf and for its sole
benefit and recourse) or will establish or cause to be established in accordance
with generally accepted accounting principles on or before the date of the
Closing an adequate accrual for the payment of, all material Taxes (as defined
below) due with respect to any period ending prior to or as of the date of the
Closing. "Taxes" shall mean any and all taxes, charges, fees, levies or other
assessments, including income, gross receipts,
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excise, real or personal property, sales, withholding, social security,
retirement, unemployment, occupation, use, goods and services, license, value
added, capital, net worth, payroll, profits, franchise, transfer and recording
taxes, fees and charges, and any other taxes, assessment or similar charges
imposed by the Internal Revenue Service or any taxing authority (whether state,
county, local or foreign) (each, a "Taxing Authority"), including any interest,
fines, penalties or additional amounts attributable to or imposed upon any such
taxes or other assessments. "Tax Return" shall mean any report, return,
document, declaration or other information or filing required to be supplied to
any Taxing Authority, including information returns, any documents with respect
to accompanying payments of estimated Taxes, or with respect to or accompanying
requests for extensions of time in which to file any such return, report,
document, declaration or other information. There are no claims or assessments
pending against the Company or any subsidiary of the Company for any material
alleged deficiency in any Tax, and neither the Company nor any subsidiary of the
Company has been notified in writing of any material proposed Tax claims or
assessments against the Company or any subsidiary of the Company. To the
Company's knowledge, no Tax Return of the Company or any subsidiary of the
Company is or has been the subject of an examination by a Taxing Authority. Each
of the Company and any subsidiary of the Company has withheld from each payment
made to any of its past or present employees, officers and directors, and any
other person, the amount of all material Taxes and other deductions required to
be withheld therefrom and paid the same to the proper Taxing Authority within
the time required by law.
3.16 Pricing. The Company has not granted to, or agreed to
give, HealthCare Ventures V, L.P. (or any other entity through which it chooses
to invest in the Company) ("HealthCare"), in connection with the sale of shares
of Common Stock by the Company to HealthCare pursuant to that certain Stock
Purchase Agreement, dated of even date herewith, the right to purchase such
shares of Common Stock on economic terms better than the economic terms granted
by the Company to the Purchaser hereunder.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company as follows:
4.1 Authorization. All action on the part of the Purchaser
and, if applicable, its officers, directors, managers, members, shareholders
and/or partners necessary for the authorization, execution, delivery and
performance of this Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated herein and therein has been taken.
When executed and delivered, each of this Agreement and the Registration Rights
Agreement will constitute the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as such may be limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors' rights generally and by general equitable principles.
The Purchaser has all requisite power and authority to enter into each of this
Agreement and the Registration Rights Agreement and to carry out and perform its
obligations under the terms of this Agreement and the Registration Rights
Agreement.
4.2 Purchase Entirely for Own Account. The Purchaser is
acquiring the Shares for its own account for investment and not for resale or
with a view to distribution thereof in violation of the Securities Act.
4.3 Investor Status; Etc. The Purchaser certifies and
represents to the Company that it is an "Accredited Investor" as defined in Rule
501 of Regulation D promulgated under the Securities Act and was not organized
for the purpose of acquiring any of the Shares.
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The Purchaser's financial condition is such that it is able to bear the risk of
holding the Shares for an indefinite period of time and the risk of loss of its
entire investment. The Purchaser has been afforded the opportunity to ask
questions of and receive answers from the management of the Company concerning
this investment and has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's stage of development
so as to be able to evaluate the risks and merits of its investment in the
Company.
4.4 Shares Not Registered. The Purchaser understands that the
Shares have not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue to be held
by the Purchaser unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration. The Purchaser understands
that the exemptions from registration afforded by Rule 144 (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 may afford
the basis for sales only in limited amounts.
4.5 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Purchaser and the consummation of
the transactions contemplated hereby and thereby will not conflict with or
result in any violation of or default by the Purchaser (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the organizational documents of the Purchaser
or (ii) any agreement or instrument, permit, franchise, license, judgment,
order, statute, law, ordinance, rule or regulations, applicable to the Purchaser
or its respective properties or assets.
4.6 Brokers. The Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 Consents. All consents, approvals, orders and
authorizations required on the part of the Purchaser in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
Closing Date.
4.8 Investment Representations.
The Purchaser represents and warrants to the Company that: (i)
it is a Delaware limited liability company, (ii) each of its constituent members
is an "accredited investor" as such term is defined in Rule 501(a) promulgated
under the Securities Act, (iii) its principal office is located in Washington,
DC, and (iv) the principal office of its general partner is located in
Washington, DC.
4.9 Purchaser and Affiliates. The total number of shares of
Common Stock currently owned by the Purchaser and all Affiliates of the
Purchaser is, in the aggregate, 416,667. There are no other Affiliates of the
Purchaser that own Common Stock or other securities of the Company.
5. Conditions Precedent.
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5.1. Conditions to the Obligation of the Purchaser to
Consummate the Closing. The obligation of the Purchaser to consummate the
Closing and to purchase and pay for the Shares is subject to the satisfaction of
the following conditions precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
(b) The Registration Rights Agreement shall have been executed
and delivered by the Company.
(c) There shall have been no material adverse change (actual
or threatened) in the assets, liabilities (contingent or other), affairs,
operations, or condition (financial or other) of the Company prior to the
Closing Date; and the Company shall have performed all obligations and
conditions herein required to be performed or observed by the Company on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by the
Purchaser shall not be prohibited by any law or governmental order or
regulation. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby shall have been duly obtained or made
and shall be in full force and effect.
(f) All instruments and corporate proceedings of the Company
in connection with the transactions contemplated by this Agreement to be
consummated at the Closing shall be satisfactory in form and substance to the
Purchaser, and the Purchaser shall have received copies (executed or certified,
as may be appropriate) of all documents which the Purchaser may have reasonably
requested in connection with such transactions.
(g) The Purchaser shall have received from Xxxxxxx Xxxx LLP,
counsel to the Company, an opinion addressed to it, dated the Closing Date and
substantially in the form of Exhibit B hereto.
(h) The Purchaser shall have received true, complete and
correct copies of the final material agreement(s) between the Company and
ProScript relating to the ProScript Acquisition and the ProScript Acquisition
shall have been consummated.
(i) The Purchaser shall have received a certificate from the
Company, in form and substance satisfactory to the Purchaser, dated the Closing
Date and signed by a secretary or an assistant secretary of the Company,
certifying (i) that attached copies of the Restated Certificate of Incorporation
(the "Charter"), the Amended and Restated By-Laws (the "By-Laws") and
resolutions of the Board of Directors of the Company approving this Agreement,
the Registration Rights Agreement and the transactions contemplated hereby and
thereby, are all true, complete and correct and remain in full force and effect
as of the Closing Date, and (ii) as to
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the incumbency and specimen signature of each officer of the Company executing
this Agreement, the Registration Rights Agreement and any other document
delivered in connection herewith on behalf of the Company.
(j) The Purchaser shall have received a certificate from the
Company, in form and substance satisfactory to the Purchaser, dated the Closing
Date and signed by the Company's chief financial officer, certifying that (i)
the representations and warranties of the Company contained in Section 3 hereof
are true and correct in all material respects on the Closing Date and (ii) the
Company has performed and complied with in all material respects all of the
agreements and conditions set forth or contemplated herein that are required to
be performed or complied with by the Company on or before the Closing Date.
5.2. Conditions to the Obligation of the Company to Consummate
the Closing. The obligation of the Company to consummate the Closing and to
issue and sell the Shares to the Purchaser at the Closing is subject to the
satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of the
Purchaser shall be true and correct in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
(b) The Registration Rights Agreement shall have been executed
and delivered by the Purchaser.
(c) The Purchaser shall have performed all obligations and
conditions herein required to be performed or observed by the Purchaser on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of any other person with respect to any of the transactions
contemplated hereby shall have been duly obtained or made and shall be in full
force and effect.
(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company, and the
Company 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.
(g) The Company shall have received a certificate from the
Purchaser, in form and substance satisfactory to the Company, dated the Closing
Date and signed by an authorized person in the name, and on behalf, of the
Purchaser, certifying that (i) the representations and warranties of the
Purchaser contained in Section 4 hereof are true and correct in all material
respects on the Closing Date and (ii) the Purchaser has performed and complied
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with in all material respects all of the agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by the
Purchaser on or before the Closing Date.
(h) Evidence reasonably satisfactory to the Company that any
assignee (other than the Joint Fund (as defined below)) to whom the Purchaser
transfers rights under Section 7.4 hereof (pursuant to Section 10.9(a) hereof),
any such transfer having been made, is an entity which is intended to qualify as
a "venture capital operating company" under the Department of Labor plan asset
regulation.
6. Standstill Obligations.
(a) The Purchaser hereby agrees with the Company and covenants
that, so long as it or any of its Affiliates is the record or beneficial owner
of any Securities, neither it nor its Affiliates will directly or indirectly,
without the prior written consent of the Company, in any manner:
(i) acquire, offer or propose to acquire, solicit an
offer to sell or agree to acquire, directly or indirectly, alone or in concert
with others, by purchase or otherwise, any direct or indirect "beneficial
ownership" (such term, for purposes of this Agreement, shall have the meaning
provided therefor under the rules and regulations promulgated by the SEC under
Section 13(d) of the Exchange Act) in any Securities, such that the aggregate
ownership (whether direct or indirect, of record or beneficial) of the Purchaser
(and all permitted assignees) and the Affiliates of the Purchaser (and all
Affiliates of the permitted assignees) in the Company shall increase, after the
Closing Date, beyond an additional three percent (3%) of the total number of
outstanding shares of Common Stock on a fully diluted basis as of the Closing
Date (provided, however, that, notwithstanding the foregoing provisions of this
clause (i), the Purchaser may acquire the Shares pursuant to, and in accordance
with, the provisions of this Agreement);
(ii) make, or in any way participate in, directly or
indirectly, alone or in concert with others, any "solicitation" of "proxies" or
"consents" (as such terms are used in the proxy rules of the SEC promulgated
pursuant to Section 14 of the Exchange Act) to vote for the election or removal
of directors of the Company;
(iii) otherwise act, directly or indirectly, alone or
in concert with others, to seek to propose to any of the Company's stockholders
any merger, business combination, restructuring, recapitalization or other
transaction to or with the Company that, in each case, would involve or result
in a Change of Control (as defined below) of the Company; or
(iv) otherwise seek, directly or indirectly, alone or
in concert with others, to nominate any person for election as a director of the
Company who is not nominated by the then incumbent directors of the Company.
(b) None of the Purchaser and any Affiliate of the Purchaser
shall form, become a member of, or otherwise participate in any way in, any
"group" (as such term is defined under the rules and regulations promulgated by
the SEC under Section 13(d) of the Exchange Act) that engages in any of the
activities that are prohibited under Section 6(a) hereof.
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(c) Notwithstanding anything expressed or implied in this
Section 6 to the contrary, the Purchaser hereby agrees that it and its
Affiliates will take any and all steps reasonably requested by the Company in
writing (including, without limitation, granting proxies) to ensure that any and
all of Voting Securities beneficially owned by the Purchaser or any of the
Affiliates of the Purchaser are present or represented (whether in person or by
proxy) at each meeting of stockholders of the Company for the sole purpose of
establishing a valid quorum to transact business at such meeting.
(d) In the event that the Purchaser or any Affiliate of the
Purchaser breaches any of its obligations under this Section 6 and such breach
is not cured within ten (10) business days, then (i) the Company, in addition to
any other legal or equitable remedies which it may have, may enforce its rights
under this Section 6 by action for specific performance and (ii) to the extent
that such breach arises as a result of any vote cast or proxy given by the
Purchaser or any Affiliate of the Purchaser, in violation of the provisions of
this Section 6, such vote or proxy, as the case may be, shall be null and void
and the Company shall refuse to recognize and shall not give effect to such vote
or proxy.
(e) For purposes of this Section 6, "Change of Control" shall
mean any event, transaction or occurrence (whether alone or as a result of a
series of related events, transactions or occurrence) which either (i) results
in a change of beneficial ownership of the Company of greater than
twenty-percent (20%) or (ii) results in the Purchaser (and any permitted
assignee) and all Affiliates of the Purchaser (and all Affiliates of any
permitted assignee) owning or holding, whether beneficially or of record,
directly or indirectly, in the aggregate twenty percent (20%) or greater of the
Securities of the Company.
Notwithstanding Section 10.9(b) hereof, the obligations, covenants and
duties under this Section 6 shall not be assignable by the Purchaser.
7. Certain Covenants and Agreements.
7.1. Transfer of Securities. The Purchaser shall not sell,
assign, pledge, transfer or otherwise dispose or encumber any of the Shares,
except (i) pursuant to an effective registration statement under the Securities
Act, (ii) to an Affiliate (so long as such affiliate agrees to be bound by the
terms and provisions of this Agreement as if, and to the fullest extent as, the
Purchaser) or to the Joint Fund or the Xxxxx Entity pursuant to Section 10.9(a)
below, or (iii) pursuant to an available exemption from registration under the
Securities Act and applicable state securities laws and, if requested by the
Company, upon delivery by the Purchaser of either an opinion of counsel of the
Purchaser reasonably satisfactory to the Company to the effect that the proposed
transfer is exempt from registration under the Securities Act and applicable
state securities laws or a representation letter of the Purchaser reasonably
satisfactory to the Company setting forth a factual basis for concluding that
such proposed transfer is exempt from registration under the Securities Act and
applicable state securities laws. Any transfer or purported transfer of the
Shares in violation of this Section 7.1 shall be void. The Company shall not
register any transfer of the Shares in violation of this Section 7.1. The
Company may, and may instruct any transfer agent for the Company, to place such
stop transfer orders as may be required on the transfer books of the Company in
order to ensure compliance with the provisions of this Section 7.1.
7.2. Legends. To the extent applicable, each certificate or
other document evidencing any of the Shares shall be endorsed with the legend
set forth below, and the Purchaser
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covenants that, except to the extent such restrictions are waived by the
Company, it shall not transfer the shares represented by any such certificate
without complying with the restrictions on transfer described in this Agreement
and the legends endorsed on such certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD, ASSIGNED, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT
AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF EITHER AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED
TRANSFER IS EXEMPT FROM SAID ACT OR OF A REPRESENTATION LETTER SETTING
FORTH A FACTUAL BASIS FOR CONCLUDING THAT THE PROPOSED TRANSFER IS
EXEMPT FROM SAID ACT."
7.3 Publicity. From and after the date of this Agreement,
except to the extent required by applicable laws, rules, regulations or stock
exchange requirements, neither (i) the Company or any of its Affiliates nor (ii)
the Purchaser or any of its Affiliates shall, without the written consent of the
other, make any public announcement or issue any press release with respect to
the transactions contemplated by this Agreement. In no event will either (i) the
Company or any of its Affiliates or (ii) the Purchaser or any of its Affiliates
make any public announcement or issue any press release with respect to the
transactions contemplated by this Agreement without consulting with the other
party, to the extent feasible, as to the content of such public announcement or
press release.
7.4 Management Rights. Subject to the limitations set forth in
the last paragraph of this Section 7.4, from and after the Closing Date, if the
Purchaser (or other permitted assignee) is not represented on the Company's
Board of Directors and so long as the Purchaser (and any permitted assignee) and
any Affiliates of the Purchaser (and all Affiliates of any permitted assignee)
own or hold, in the aggregate, not less than 257,000 shares of the Common Stock
(subject to adjustment made for any stock dividend, split-up or subdivision or
any combination or reclassification affecting the Common Stock after the Closing
Date), then the Purchaser shall have the following rights:
(a) The Company shall provide the Purchaser with a
copy of any materials to be distributed or discussed at meetings of the Board of
Directors at the same time as provided to members of the Board of Directors,
except that the Purchaser may be excluded from access to any material or meeting
or portion thereof (i) if the Company believes, upon advice of counsel, that
such exclusion is reasonably necessary to preserve the attorney-client privilege
for matters with respect to which the loss of such privilege could be meaningful
for the Company's business, operations or prospects, or (ii) to protect highly
confidential or proprietary information, the disclosure of which conflicts with,
breaches or could cause a default under any agreement, contract, arrangement or
other legally binding obligation of the Company to a third party.
Notwithstanding the foregoing, if the Purchaser is excluded from access to any
material as a result of clause (ii) in the preceding sentence and the Purchaser
determines in any particular case that access to such material or meeting or
portion thereof may be important to its having appropriate management rights as
a "venture capital operating company" under the Department of Labor's plan asset
regulation, then the Purchaser shall have the right to request that the Company,
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and the Company shall be obligated to, use reasonable efforts to obtain the
consent or waiver of such third party to permit disclosure to, or permit
attendance by, the Purchaser hereunder.
(b) The Purchaser shall be entitled, from time to
time, to make proposals, recommendations and suggestions to the Company relating
to the business and affairs of the Company.
(c) The Purchaser shall be entitled, at the
Purchaser's expense and with reasonable prior notice to the Company, to discuss
the Company's business and affairs with its officers, directors and independent
accountants.
(d) The Purchaser shall be entitled, at all
reasonable times, in reasonable intervals and at the Purchaser's expense, to
examine such books, records, documents and other written information in the
possession of the Company relating to its affairs as the Purchaser may
reasonably request, provided that access to highly confidential or proprietary
information and facilities need not be provided to the Purchaser for the same
reasons set forth in subparagraph (a)(ii) above, subject to the last sentence of
subparagraph (a) above.
(e) The Company shall permit the Purchaser, at all
reasonable times, in reasonable intervals and at the Purchaser's expense, to
visit and inspect the Company's properties, provided that the Company shall not
be obligated to provide access to highly confidential or proprietary information
and properties for the same reasons set forth in subparagraph (a)(ii) above,
subject to the last sentence of subparagraph (a) above, and provided, further,
that such inspection by the Purchaser does not disrupt or cause a disruption in
the Company's ordinary course of business.
Notwithstanding Section 10.9(b) hereof, the rights contained
under this Section 7.4 shall not be assignable by the Purchaser (except to a
permitted assignee pursuant to Section 10.9(a) and provided that, such transfer
having been made, each such assignee is intended to qualify as "venture capital
operating company" under the Department of Labor plan asset regulation) and
shall automatically and without further action terminate at such time as the
Purchaser (and its permitted assignees) and the Affiliates of the Purchaser (and
all Affiliates of any permitted assignees) shall cease to own or hold, in the
aggregate, at least 257,000 shares of Common Stock (subject to adjustment made
for any stock dividend, split-up or subdivision or any combination or
reclassification affecting the Common Stock after the Closing Date) or shall
attempt to transfer such rights in violation of the foregoing prohibition. The
Purchaser (and any representative of the Purchaser) shall hold in confidence and
trust, and not use or disclose, any confidential information provided to or
learned by it (or him/her) in connection with the rights granted to the
Purchaser by the Company under this Section 7.4. The Purchaser shall execute and
deliver a confidentiality and non-disclosure agreement to the Company in the
event that the Purchaser is entitled to any of the rights set forth in this
Section 7.4, which agreement shall remain in effect for so long as the Purchaser
is entitled to, and for five (5) years after the Purchaser ceases to be entitled
to, any of the rights set forth in this Section 7.4.
7.5. Board Representative. During the six (6) month period
following the Closing Date, (a) the respective chief executive officers of the
Company and the Purchaser shall, in good faith, discuss the identities of
persons who shall be potential nominees (as a representative of the Purchaser)
for a seat on the Board of Directors of the Company, (b) after such discussions
in good faith the Purchaser shall, at its sole discretion, provide to the
Company a list of the names of three to five persons who shall be such potential
nominees and, (c) after such
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list shall have been provided by the Purchaser to the Company, the Company shall
select one (1) person from such list and such person's name shall be brought to
the next meeting of the full Board of the Company for consideration as a
potential member of the Board; provided, that in the event that such person
brought to the full Board is not approved as a member of the Board, then the
parties agree that they shall be obligated to repeat the process set forth
herein a second time. Notwithstanding Section 10.9(b) hereof, the rights
contained under this Section 7.5 shall not be assignable by the Purchaser
(except to a permitted assignee pursuant to Section 10.9(a)).
8. Termination.
8.1 Termination. Subject to Section 8.2, this Agreement may be
terminated at any time prior to the Closing as follows:
(a) by the Purchaser if there has been a material
breach by the Company of any representation, warranty, covenant or agreement of
the Company contained in this Agreement, which has not been cured by the Company
within 10 days after written notice from the Purchaser;
(b) by the Company if there has been a material
breach by the Purchaser of any representation, warranty, covenant or agreement
of the Purchaser contained in this Agreement, which has not been cured by the
Purchaser within 10 days after written notice from the Company;
(c) by the Company or the Purchaser, if the Closing
shall not have occurred on or before August 6, 1999; provided, however, that the
right to terminate this Agreement under this Section 8.1(c) shall not be
available to any party whose failure to fulfill any obligation or condition
under this Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or before such date;
(d) by the Company or the Purchaser if (i) there
shall be a final nonappealable order of a federal or state court in effect
preventing consummation of the transactions contemplated by this Agreement or
(ii) there shall be any action taken, or any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the transactions
contemplated by this Agreement by any governmental entity which would make
consummation of the transactions contemplated by this Agreement illegal;
provided, however, that the party seeking to terminate this Agreement must use
all reasonable efforts to remove such judgment, injunction, order or decree; or
(e) by mutual written consent of the Company and the
Purchaser.
8.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 8.1, this Agreement shall become void and of no effect with
no liability on the part of any party hereto, except that Sections 7.4
(Publicity), 8.2 (Effect of Termination), and 10 (Miscellaneous Provisions)
shall survive the termination hereof for a period of one year, and each party
hereto shall hold in confidence and trust, and not use or disclose to any third
parties, the terms and conditions of this Agreement and any confidential
information provided to or learned by such party in connection with the
negotiation, execution and delivery of this Agreement.
9. Indemnification.
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9.1 General.
(a) By the Company. The Company agrees to indemnify,
defend and hold harmless the Purchaser and its Affiliates and their respective
officers, directors, agents, employees, subsidiaries, partners, members and
controlling persons (collectively, the "Purchaser Indemnitees") to the fullest
extent permitted by law from and against any and all claims, losses,
liabilities, damages, deficiencies, judgements, assessments, fines, settlements,
costs or expenses (including interest, penalties and reasonable fees,
disbursements and other charges of counsel) (collectively, "Losses") based upon,
arising out of or otherwise in respect of any breach by the Company or its
Affiliates of any representation, warranty, covenant or agreement of the Company
contained in this Agreement.
(b) By the Purchaser. The Purchaser agrees to
indemnify, defend and hold harmless the Company and its Affiliates and their
respective officers, directors, agents, employees, subsidiaries, partners,
members and controlling persons (the "Company Indemnitees") to the fullest
extent permitted by law from and against any and all Losses based upon, arising
out of or otherwise in respect of any breach by the Purchaser or any Affiliate
of the Purchaser of any representation, warranty, covenant or agreement of the
Purchaser or any Affiliate of the Purchaser contained in this Agreement.
9.2 Claims
All claims for indemnification by a Company Indemnitee or a
Purchaser Indemnitee pursuant to this Section 9 shall be made as
follows:
(a) If a Company Indemnitee or a Purchaser Indemnitee has
incurred or suffered Losses for which it is entitled to indemnification
under this Section 9, such Company Indemnitee or Purchaser Indemnitee,
as the case may be, shall give prompt written notice of such claim (a
"Claim Notice") to the Purchaser or the Company, as applicable. Each
Claim Notice shall state the amount of claimed Losses (the "Claimed
Amount"), if known, and the basis for such claim.
(b) Within 20 days after delivery of a Claim Notice, the
indemnifying party under this Section 9 (the "Indemnifying Party")
shall provide to the Company Indemnitee or the Purchaser Indemnitee, as
the case may be (the "Indemnified Party"), a written response (the
"Response Notice") in which the Indemnifying Party shall: (i) agree
that all of the Claimed Amount is owed to the Indemnified Party, (ii)
agree that part, but not all, of the Claimed Amount (the "Agreed
Amount") is owed to the Indemnified Party, or (iii) contest that any of
the Claimed Amount is owed to the Indemnified Party. The Indemnifying
Party may contest the payment of all or a portion of the Claimed Amount
only based upon a good faith belief that all or such portion of the
Claimed Amount does not constitute Losses for which the Indemnified
Party is entitled to indemnification under this Section 9. If no
Response Notice is delivered by the Indemnifying Party within such
20-day period, the Indemnifying Party shall be deemed to have agreed
that all of the Claimed Amount is owed to the Indemnified Party.
(c) If the Indemnifying Party in the Response Notice agrees
(or is deemed to have agreed) that all of the Claimed Amount is owed to
the Indemnified Party, the Indemnifying Party shall owe to the
Indemnified Party an amount equal to the Claimed Amount to be paid in
the manner set forth in this Section 9. If the Indemnifying Party in
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the Response Notice agrees that part, but not all, of the Claimed
Amount is owed to the Indemnified Party, the Indemnifying Party shall
owe to the Indemnified Party an amount equal to the agreed amount set
forth in such Response Notice to be paid in the manner set forth in
this Section 9.
(d) No delay on the part of the Indemnified Party in notifying
the Indemnifying Party shall relieve the Indemnifying Party of any
liability or obligation hereunder except to the extent of any actual
damage, liability or prejudice caused by or arising out of such delay.
9.3. Payment of Claims. An Indemnifying Party shall make payment of
any portion of any Claimed Amount that such Indemnifying Party has agreed in a
Response Notice that it owes to an Indemnified Party or that such Indemnifying
Party is deemed to have agreed it owes to such Indemnifying Party, said payment
to be made within thirty (30) days after such Response Notice is delivered by
such Indemnifying Party or should have been delivered by such Indemnifying
Party, as the case may be.
9.4. Limitations.
(a) Time for Claims. No Indemnifying Party will be liable for
any Losses hereunder unless a written claim for indemnification is given by the
Indemnified Party to the Indemnifying Party on or prior to (i) with respect to a
breach of a representation or warranty, the expiration of such representation or
warranty, and (ii) with respect to a breach of a covenant or agreement
(including without limitation the covenants and agreements set forth in Sections
7.4, 7.5 and 6), one year after the expiration (in accordance with its terms and
conditions) of such covenant or agreement.
(b) Maximum Amount. No Indemnifying Party will be liable for
any Losses hereunder in excess of $10,000,000 with respect to claims for
breaches of representations and warranties.
9.5 Applicability; Exclusivity. Notwithstanding any term to the
contrary in this Section 9, the indemnification and contribution provisions of
the Registration Rights Agreement shall govern any claim made with respect to
registration statements filed pursuant thereto or sales made thereunder. The
parties hereby acknowledge and agree that the sole and exclusive remedies of the
parties hereto in respect of any and all claims relating to any breach or
purported breach of any representation, warranty, covenant or agreement that is
contained in this Agreement will be pursuant to the indemnification provisions
of this Section 9, except that all parties shall always retain the right to
pursue and obtain injunctive relief in addition to any other rights or remedies
hereunder.
10. Miscellaneous Provisions.
10.1 Rights Cumulative. Each and all of the various rights,
powers and remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
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10.2 Pronouns. All pronouns or any variation thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
10.3 Notices.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(c) All correspondence to the Purchaser shall be
addressed as follows:
Perseus Capital, LLC
The Army and Navy Club Building
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
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10.4 Captions. The captions and paragraph headings of this
Agreement are solely for the convenience of reference and shall not affect its
interpretation.
10.5 Severability. Should any part or provision of this
Agreement be held unenforceable or in conflict with the applicable laws or
regulations of any jurisdiction, the invalid or unenforceable part or provisions
shall be replaced with a provision which accomplishes, to the extent possible,
the original business purpose of such part or provision in a valid and
enforceable manner, and the remainder of this Agreement shall remain binding
upon the parties hereto.
10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal and substantive laws of the
Commonwealth of Massachusetts and without regard to any conflicts of laws
concepts which would apply the substantive law of some other jurisdiction.
10.7 Waiver. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or be construed as, a further or continuing waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
10.8 Expenses. Each party shall pay its own expenses in
connection with the preparation, execution and delivery of this Agreement and
the Registration Rights Agreement.
10.9 Assignment.
(a) Joint Fund and Xxxxx Entity. Subject to the limitations
contained below and in Sections 6, 7.4 and 7.5 hereof, the Purchaser may assign,
in whole or in part, the rights and obligations hereunder to either (i)
Perseus-Xxxxx BioPharmaceutical Fund, LP, a Delaware limited partnership (the
"Joint Fund"), or (ii) Xxxxx Fund Management LLC, a Delaware limited liability
company, or a controlled investment fund or affiliate thereof (the "Xxxxx
Entity"); provided, that the Purchaser may assign the rights and obligations
under Section 7.5 hereunder only in whole (and not in part) and only to the
Joint Fund. As conditions precedent to the Purchaser assigning the rights and
obligations hereunder pursuant to the foregoing sentence, such assignee (whether
the Joint Fund or the Xxxxx Entity) (a) shall agree to be bound by and become
subject to all of the rights, obligations, terms and conditions of this
Agreement applicable to, and to the same extent as the Purchaser, including
without limitation Sections 6 (Standstill), 7.4 (Management Rights) (to the
extent applicable), and 9.1 (Indemnification), (b) shall sign any and all
documents, agreements and certificates requested by the Company to effect such
agreement to be bound by the rights, obligations, terms and conditions of this
Agreement, including an assumption agreement and/or instrument of adherence
reasonable requested by the Company, and (c) shall certify that the
representations and warranties set forth in Section 4 hereof are true and
correct, as of the date of the assignment or transfer, as if made by such
assignee (except that with respect to Section 4.9, such representation and
warranty shall be modified so as to be true and correct as to such particular
assignee). In the event that the Purchaser assigns its rights and obligations
hereunder in accordance with this Section 10.9(a) in whole (and not in part) to
a permitted transferee, then the Purchaser shall continue to be bound only by
the covenants, obligations and agreements of the Purchaser and its Affiliates
contained in Sections 6 (Standstill) and 9.1 (Indemnification) (it being
understood that the Purchaser shall be obligated to indemnify the Company only
with respect to breaches by itself and its Affiliates and that such obligation
shall be several and not joint with respect to permitted transferees who shall
become "Purchasers" hereunder)).
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(b) General. The rights and obligations of any party hereto
shall inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of such party. Subject to paragraph (a) above
and the limitations set forth in Sections 6, 7.4 and 7.5 hereof, this Agreement
and the rights and duties of the Purchaser set forth herein may be freely
assigned or delegated, as the case may be, in whole or in part, by the Purchaser
to any person (other than the Joint Fund and the Xxxxx Entity which shall be
governed by Section 10.1(a) above) to whom the Purchaser may transfer any of the
Shares purchased or acquired by the Purchaser; provided that the transfer
complies with the terms of Sections 7.1 and 7.2 of this Agreement and the
assigning party shall promptly notify the Company in writing of such assignment
and shall remain liable (both directly and as guarantor) with respect to all
obligations so assigned. In the event of any assignment, the assignee shall
specifically assume and be bound by the provisions of the Agreement by executing
and agreeing to an assumption agreement and/or instrument of adherence
reasonably acceptable to the Company.
10.10 Survival. The respective representations and warranties
given by the parties hereto shall survive the Closing Date and the consummation
of the transactions contemplated herein for a period of one year, without regard
to any investigation made by any party. The respective covenants and agreements
agreed to by a party hereto shall survive the Closing Date and the consummation
of the transactions contemplated herein in accordance with their respective
terms and conditions.
10.11 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, negotiations, understandings, representations
and statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the parties hereto.
10.12 Amendments. Any amendment, supplement or modification of
or to any provision of this Agreement, any waiver of any provisions of this
Agreement shall be effective only if made or given in writing and signed by the
Company and the Purchaser.
10.13 No Third Party Rights. Except as contemplated by Section
9 hereof, this Agreement is intended solely for the benefit of the parties
hereto and is not intended to confer any benefits upon, or create any rights in
favor of, any Person (including, without limitation, any stockholder or debt
holder of the Company) other than the parties hereto.
10.14 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document. The parties hereto
confirm that any facsimile copy of another party's executed counterpart of this
Agreement (or its signature page thereof) will be deemed to be an executed
original thereof.
[signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement under seal as of the day and year first above written.
LEUKOSITE, INC.
By: /s/ Xxxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President, Corporate
Development and Chief Financial
Officer
PERSEUS CAPITAL LLC
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
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Exhibit A - Registration Rights Agreement
Exhibit B - Form of Company Counsel Legal Opinion
