1
Exhibit 10.25(a)
SERIES C CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
by and among
LeukoSite, Inc.,
the Corporation,
and
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company
the Investor
November 8, 1994
2
SERIES C CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES C CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT, dated
this 8th day of November 1994, is entered into by and between LEUKOSITE, INC., a
Delaware corporation (the "Corporation"), and ▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY, a Delaware
corporation (the "Investor").
WHEREAS, the Corporation and the Investor have entered into that
certain Research, Development and Marketing Agreement, dated as of September 30,
1994, whereby the Corporation and the Investor entered into a collaborative
effort to share expertise and to develop new expertise in the field of MCP-1
inhibitors.
WHEREAS, the Corporation and the Investor desire to provide for the
issuance of shares of the Corporation's Series C Convertible Preferred Stock,
$.0001 par value per share, and for certain future issuances of capital stock of
the Corporation, as more specifically set forth herein.
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 C
Convertible Preferred Stock Purchase Agreement, dated as of November 8,
1994, 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
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,
3
- 2 -
dated as of September 30, 1994, a copy of which is attached hereto as
Exhibit B.
"RESTATED CERTIFICATE OF INCORPORATION" shall mean the
Restated Certificate of Incorporation filed with the Secretary of State
of Delaware on November 7, 1994, a copy of which is attached hereto as
Exhibit C.
"SECURITIES" shall mean, collectively, the Series C 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.
"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 C CONVERTIBLE PREFERRED STOCK.
2.1. Series C Convertible Preferred Stock. Prior to the Closing Date
(as defined in Section 3 hereof), the Corporation will have duly authorized the
issuance and sale to the Investor of an aggregate of 1,000,000 shares (the
"Series C Shares") of its Series C Convertible Preferred Stock, par value $.0001
per share (the "Series C Preferred Stock"), at a purchase price per share of
$3.00. The Series C Shares shall have the powers, preferences, rights and other
terms and conditions applicable to shares of Series C Preferred Stock, as set
forth in Article III, Part C, of the Restated Certificate of Incorporation.
2.2. Conversion Shares. Prior to the Closing Date, the Corporation will
have authorized and reserved, and covenants to continue to reserve, free of
4
- 3 -
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. Any
shares of Common Stock issuable upon conversion of the Series C Shares, and such
shares when issued, are sometimes herein referred to as the "Conversion Shares."
SECTION 3. SALE AND PURCHASE OF STOCK.
3.1. Sale and Purchase of the Series C 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 Series C Shares at a purchase price
per share equal to $3.00. The aggregate purchase price for all of the Series C
Shares shall be $3,000,000. The closing of the sale and purchase of the Series C
Shares (the "Closing") will occur on November 8, 1994 at such place and time as
may be mutually agreed upon by the Investor and the Corporation. The date of the
Closing is herein called the "Closing Date". At the Closing, the Corporation
shall, unless otherwise requested, deliver to the Investor a single certificate
evidencing the Series C 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. Issuance of Additional Shares.
(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
$3.00 (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 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 3.2(a) hereof shall
be transferable to a subsequent purchaser for value (a "Purchaser") if such
Purchaser buys the Series C Shares at a purchase price per share less than $3.00
(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 3.2(b), the rights of
the Investor under Section 3.2(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)
5
- 4 -
of the Series C Shares. Upon any actual or purported sale, transfer, assignment
or gift of the Series C Shares (other than as provided in the first sentence of
this Section 3.2(b)) or of any of the Investor's rights thereunder, the
provisions of Section 3.2(a) hereof and the Investor's rights thereunder shall
immediately terminate and be of no further force and effect.
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
execution and delivery of this Agreement and the R&D Agreement and the
performance of its obligations hereunder and thereunder 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. 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 Closing shall consist of:
(a) 21,971,667 shares of Common Stock, of which:
(i) 500,000 shall be validly issued and outstanding,
fully paid and nonassessable;
(ii) 16,311,667 shares shall have been duly reserved
for issuance upon conversion of outstanding shares of Series A
Common Stock, Series A Preferred Stock, Series B Preferred
Stock and Series C 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(iii) 1,745,000 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 115,000 shares have been duly
reserved for issuance pursuant to options that may be granted
in the future under the Plan; and
6
- 5 -
(iv) 3,300,000 shares shall have been designated as
Series A Common Stock and all of which shall be validly issued
and outstanding and fully paid and nonassessable.
(b) 13,011,667 shares of preferred stock, $.0001 par value per
share, 10,345,000 of which shall have been designated as Series A Preferred
Stock, 10,000,000 shares of which shall be validly issued and outstanding and
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, and 1,000,000 shares of which
shall have been designated as Series C Preferred Stock and shall be issued and
outstanding and, pursuant to the terms of this Agreement, fully paid and
nonassessable.
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 June 30, 1994 and the
Corporation's unaudited Statements of Operations, Stockholders' Equity and Cash
Flows for the period from January 1, 1994 to June 30, 1994 (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 June 30,
1994, 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, delivery and performance of this Agreement and the R&D
Agreement. This Agreement and the R&D Agreement have been duly executed and
delivered by the Corporation and constitute the valid and binding agreements of
the Corporation, enforceable against the Corporation in accordance with their
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.
7
- 6 -
4.6. No Violation; No Defaults. Neither the execution and delivery of
this Agreement or the R&D Agreement nor the consummation of any transaction
contemplated hereby or thereby, including, without limitation, the issuance and
sale of the Series C 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. 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 or in the financial statements referred to in Section 4.4
hereof, or arising in the ordinary course of business and for obligations
created pursuant to this Agreement or the R&D Agreement, as of the Closing Date,
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 filings required to be made under
applicable federal or state securities laws) is required in connection with the
Corporation's valid execution, delivery or performance of this Agreement or 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
8
- 7 -
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 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 ("▇▇▇▇"), 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)
9
- 8 -
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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any hazardous
waste 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. Section9601(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.
10
- 9 -
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 R&D Agreement and the performance of its
obligations hereunder and thereunder 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, delivery and performance
of this Agreement and the R&D Agreement. This Agreement and the R&D Agreement
have been duly executed and delivered by the Investor and constitute the valid
and binding agreements of the Investor, enforceable against the Investor in
accordance with their 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 filings required to be made under
applicable federal or state securities laws) is required in connection with the
Corporation's valid execution, delivery or performance of this Agreement or 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 Series C Shares and, in the event it
should acquire Conversion Shares upon conversion of the Series C Shares, it will
be acquiring such Conversion Shares, 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.
(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 may afford the basis for
sales only in limited amounts.
11
- 10 -
(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 C 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 C 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. The obligation of
the Investor to purchase and pay for the Series C Shares 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 Closing Date with the same force and effect
as though made on and as of the Closing Date, both before and after giving
effect to the sale of the Series C Shares.
(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 the Closing.
(c) Closing Certificate. The Corporation shall have executed
and delivered to the Investor at and as of the 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) R&D Agreement. A counterpart of the R&D Agreement shall
have been validly executed and delivered by the Corporation.
12
- 11 -
(e) Filing of Restated Certificate of Incorporation. The
Restated Certificate of Incorporation shall have been duly executed and shall
have been filed with and accepted by the Secretary of State of Delaware and
shall be effective.
(f) Legal Opinion. The Investor shall have received a legal
opinion from ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, counsel for the Corporation, addressed to
the Investor and dated the Closing Date, in substantially the form attached
hereto as Exhibit D
(g) Proper Proceedings. All instruments and corporate
proceedings in connection with the transactions contemplated by this Agreement
and the R&D 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. The obligation of
the Corporation to issue and sell the Series C Shares to the Investor 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 Closing Date with the same force and effect
as though made on and as of the Closing Date, both before and after giving
effect to the sale of the Series C Shares.
(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 the Closing.
(c) Closing Certificate. The Investor shall have executed and
delivered to the Corporation at and as of the Closing a certificate, in form and
substance 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) R&D Agreement. A counterpart of the R&D Agreement shall
have been validly executed and delivered by the Investor.
(e) Proper Proceedings. All instruments and corporate
proceedings in connection with the transactions contemplated by this Agreement
and the R&D 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
13
- 12 -
all documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
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, 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 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
14
- 13 -
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.
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.
15
- 14 -
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 conforming 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.
8.2. Legend. Each certificate representing any of the Series C 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 C CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT DATED
AS OF NOVEMBER 8, 1994, 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 delivered effective
16
- 15 -
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 C 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 C 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 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.
17
- 16 -
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 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
18
- 17 -
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 the Closing for a
period of two (2) years; provided, however, that the representations and
warranties set forth in Section 4.13 hereof shall survive the 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.
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.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
19
- 18 -
(ii) if to the Investor, to:
Senior Vice President,
Research and Development
▇▇▇▇▇-▇▇▇▇▇ Pharmaceutical Research
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Vice President and General Counsel
▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 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 and the R&D Agreement set
forth the entire understanding of the parties hereto with respect to the
transactions contemplated hereby and thereby. 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 or thereof. 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
20
- 19 -
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 3.2(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 C
Convertible Preferred Stock Purchase Agreement as of the date first above
written.
LEUKOSITE, INC.
By:_______________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY
By:_______________________________________
Name:
Title:
