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EXHIBIT 10.20(b)
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH
MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
WARRANT AGREEMENT
To Purchase Shares of Series A Convertible Preferred Stock of
LEUKOSITE, INC.
Dated as of December 13, 1993 (the "Effective Date")
WHEREAS, LeukoSite, Inc., a Delaware corporation (the "Company"), has
entered into a Master Lease Agreement dated as of December 13, 1993, Equipment
Schedules No. VL-1 and VL-2, and related Schedules (the "Leases") with Comdisco,
Inc., a Delaware corporation (the "Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Leases, the right to purchase shares of its Series A Convertible
Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Leases and in consideration of the mutual covenants and
agreements contained herein, the Company and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
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(a) The Company hereby grants to the Warrantholder pursuant to Equipment
Schedule VL-1, and the Warrantholder is entitled, upon the terms and subject to
the conditions hereinafter set forth, to subscribe to and purchase, from the
Company, 90,000 fully paid and non-assessable shares of the Company's Series A
Convertible Preferred Stock ("Preferred Stock") at a purchase price of $1.00 per
share (the "Exercise Price"). The number and kind of such shares and the
Exercise Price are subject to adjustment as provided in Sections 3 and 8 hereof.
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(b) The Company hereby grants to the Warrantholder pursuant to Equipment
Schedule VL-2, and the Warrantholder is entitled, upon the terms and subject to
the conditions hereinafter set forth, to subscribe to and purchase, from the
Company, 75,000 fully paid and non-assessable shares of the Company's Preferred
Stock at a purchase price equal to the Exercise Price. The number and kind of
such shares and the Exercise Price are subject to adjustment as provided below
in this Section 1 and in Sections 3 and 8 hereof.
If the Company notifies the Warrantholder in writing by June 30, 1994 that
it does not intend to utilize all or any portion of the financing as set forth
in Equipment Schedule VL-2 (including, without limitation, on account of the
Company's intention to transfer any portion of unused financing under Equipment
Schedule VL-2 to Equipment Schedule VL-1), then the number of shares of the
Company's Preferred Stock which the Warrantholder shall be entitled to purchase
hereunder shall be reduced by subtracting that number of shares obtained by
dividing (i) the product of (x) the unused portion of Equipment Schedule VL-2
and (y) 10%, by the then applicable Exercise Price; PROVIDED, HOWEVER, that if
the Company uses any portion of Equipment Schedule VL-2, the number of shares of
Preferred Stock purchasable by the Warrantholder pursuant to Section 1 (b)
hereof shall in any event be at least equal to twenty-five percent (25%) of the
number of shares of Preferred Stock purchasable by the Warrantholder pursuant to
said Section 1 (b) on the date hereof. In the event the Company does not utilize
any portion of the financing set forth under Equipment Schedule VL-2
Warrantholder agrees that there will be no shares purchasable or fees due as
provided for under Section l(b) of this Warrant Agreement. In addition, in the
event the Company exercises their option to apply any unused portion of
financing available under Equipment Schedule VL-2 to Equipment Schedule VL-1,
the Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe for and purchase, from the Company that number of fully paid and
non-assessable shares of the Company's Preferred Stock obtained by dividing (i)
the product of (x) the dollar amount of any unused portion of financing
transferred from Equipment Schedule VL-2 to Equipment Schedule VL-1 and (y) 9%,
by (ii) $1.00.
2. TERM OF THE WARRANT AGREEMENT.
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Except as otherwise provided for herein, the term of this Warrant Agreement
and the right to purchase Preferred Stock as granted herein shall commence on
the Effective Date and shall be exercisable for a period ending on the earlier
of (i) the tenth anniversary of the Effective Date, or
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(ii) the fifth anniversary of the closing of the Company's initial public
offering. The Warrantholder agrees to a ninety (90) day lockup period from the
effective date of the Company's initial public offering and, if requested by the
underwriter, will agree to an additional ninety (90) day lockup period for a
maximum lockup of one hundred eighty (180) days.
3. EXERCISE OF THE PURCHASE RIGHTS.
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The purchase rights set forth in this Warrant Agreement are exercisable by
the Warrantholder, at any time, or from time to time, prior to the expiration of
the term set forth in Section 2 above, for all or any part of the shares of
Preferred Stock (but not for a fraction of a share); PROVIDED, HOWEVER, that in
no event shall the Warrantholder be entitled to exercise its purchase rights
under Section 1 (b) hereof until June 30, 1994. In the event, however, that
pursuant to the Company's Certificate of Incorporation, as amended, an event
causing mandatory conversion of the Company's Preferred Stock shall have
occurred, then this Warrant Agreement shall be exercisable for the number of
shares of Common Stock of the Company into which the number of shares of
Preferred Stock purchasable pursuant to this Warrant Agreement would have been
so converted had the Warrantholder exercised his purchase rights hereunder in
full immediately prior to such mandatory conversion (and, in such event, any
reference to "Preferred Stock" in this Warrant Agreement shall be deemed, when
the context requires, to be a reference to "Common Stock"). The Warrantholder
shall exercise his purchase rights hereunder by tendering to the Company at its
principal office a notice of exercise in the form attached hereto as Exhibit I
(the "Notice of Exercise"), duly completed and executed. Promptly upon receipt
of the Notice of Exercise and the payment of the aggregate Exercise Price for
the number of shares of Preferred Stock being purchased (said payment to be made
in accordance with the terms set forth below), and in no event later than
twenty-one (21) days thereafter, the Company shall issue to the Warrantholder a
certificate for the number of shares of Preferred Stock purchased and shall
execute the Notice of Exercise indicating the number of shares which remain
subject to future purchases, if any.
The aggregate Exercise Price may be paid at the Warrantholder's election
either (i) by cash or check, or (ii) by surrender of Warrants ("Net Issuance")
as determined below. If the Warrantholder elects the Net Issuance method, the
Company will issue Preferred Stock in accordance with the following formula:
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X = Y (A-B)
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A
Where: X = the number of shares of Preferred Stock to be issued to the
Warrantholder.
Y = the number of shares of Preferred Stock requested to be
exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Preferred Stock.
B = the Exercise Price.
As used herein, the current fair market value of the Preferred Stock shall
mean, with respect to each share of Preferred Stock, the fair market value
thereof as determined (in good faith) by the Board of Directors of the Company.
In the event that this Warrant Agreement shall, at any time, become exercisable
for Common Stock pursuant to, and in accordance with, the provisions of the
first paragraph of this Section 3, then, the current fair market value of Common
Stock shall mean, with respect to each share of Common Stock:
(i) if the exercise is in connection with an initial public offering, and
if the Company's Registration Statement relating to such public offering
has been declared effective by the SEC, then the initial "Price to Public"
specified in the final prospectus with respect to the offering;
(ii) if this Warrant Agreement is exercised after, and not in connection
with the Company's initial public offering, and:
(a) if traded on a securities exchange, the fair market value shall be
deemed to be the average of the closing prices over a twenty-one (21)
day period ending three days before the day the current fair market
value of the securities is being determined; or
(b) if actively traded over-the-counter, the fair market value shall
be deemed to be the average of the closing bid and asked prices quoted
on the NASDAQ system (or similar system) over the twenty-one (21) day
period ending three days before the day the current fair market value
of the securities is being determined;
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(iii) if at any time the Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market, the
current fair market value of Common Stock shall be the highest price per
share which the Company could obtain from a willing buyer (not a current
employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by its Board of
Directors, unless the Company shall become subject to a merger, acquisition
or other consolidation pursuant to which the Company is not the surviving
party, in which case the fair market value of Common Stock shall be deemed
to be the value received by the holders of the Company's Preferred Stock on
a common equivalent basis pursuant to such merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant Agreement representing the remaining number of
shares purchasable hereunder. All other terms and conditions of such amended
Warrant Agreement shall be identical to those contained herein, including, but
not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
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(a) AUTHORIZATION AND RESERVATION OF SHARES. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of its Preferred Stock to provide for the exercise
of the rights to purchase Preferred Stock as provided for herein.
(b) REGISTRATION OR LISTING. If any shares of Preferred Stock required to
be reserved hereunder require registration with or approval of any governmental
authority under any Federal or State law (other than any registration under the
1933 Act, as then in effect, or any similar Federal statute then enforced, or
any state securities law), or listing on any domestic securities exchange,
before such shares may be issued, the Company will, at its expense and as
expeditiously as possible, use its best efforts to cause such shares to be duly
registered, listed or approved for listing on such domestic securities exchange,
as the case may be.
5. NO FRACTIONAL SHARES OR SCRIP.
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No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant Agreement, but in lieu of such
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fractional shares the Company shall make a cash payment therefor upon the basis
of the Exercise Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
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This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise of
the Warrant Agreement.
7. WARRANTHOLDER REGISTRY.
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The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
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In addition to any adjustment, pursuant to Section 3 hereof, to the number
and kind of shares purchasable hereunder, the Exercise Price and the number and
kind of shares purchasable hereunder are subject to adjustment, as follows:
(a) MERGER AND SALE OF ASSETS. If at any time there shall be a capital
reorganization of the shares of the Company's stock (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation when the Company is not the surviving corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person shall be effected in such a way that holders of Preferred Stock shall be
entitled to receive securities with respect to or in exchange for Preferred
Stock (hereinafter referred to as a "Merger Event"), then, as a part of such
Merger Event, lawful provision shall be made so that the Warrantholder shall
thereafter be entitled to purchase and receive, upon exercise of this Warrant
Agreement, the number of shares of preferred stock or other securities of the
successor corporation resulting from such Merger Event, equivalent in value to
that which would have been issuable if Warrantholder had exercised this Warrant
Agreement immediately prior to the Merger Event. In any such case, appropriate
adjustment (as determined in good faith by the Company's Board of Directors)
shall be made in the application of the provisions of this Warrant Agreement
with respect to the rights and interest of the Warrantholder after the Merger
Event to the end that the provisions of this Warrant Agreement (including
adjustments of the Exercise Price and number of shares purchasable upon exercise
of this Warrant Agreement) shall be applicable to the greatest extent possible.
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(b) RECLASSIFICATION OF SHARES. If the Company at any time shall, by
combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the securities as to which purchase rights under this
Warrant Agreement exist into the same or a different number of securities of any
other class or classes, this Warrant Agreement shall thereafter represent the
right to acquire such number and kind of securities as would have been issuable
as the result of such change with respect to the securities which were subject
to the purchase rights under this Warrant Agreement immediately prior to such
combination, reclassification, exchange, subdivision or other change.
(c) SUBDIVISION OR COMBINATION OF SHARES. If the Company at any time shall
combine or subdivide its Preferred Stock, (i) the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination, and (ii) the number of shares of
Preferred Stock purchasable hereunder shall be proportionately increased in the
case of a subdivision, or proportionately decreased in the case of a
combination.
(d) STOCK DIVIDENDS. If the Company at any time shall pay a dividend
payable in, or make any other distribution (except any distribution specifically
provided for in the foregoing subsections (a) or (b)) of the Company's Preferred
Stock, then the Exercise Price shall be adjusted, from and after the record date
of such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction (i)
the numerator of which shall be the total number of all shares of the Company's
Preferred Stock outstanding immediately prior to such dividend or distribution,
and (ii) the denominator of which shall be the total number of all shares of the
Company's Preferred Stock outstanding immediately after such dividend or
distribution. The Warrantholder shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares of Preferred
Stock (calculated to the nearest whole share) obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of Preferred Stock issuable upon the exercise hereof immediately prior to
such adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
(e) ANTIDILUTION RIGHTS. Any shares of Preferred Stock purchased upon
exercise of the Warrantholder's rights hereunder shall be entitled to additional
antidilution rights as set forth in the Company's Certificate of Incorporation,
as amended. A true and complete copy of the Company's
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Certificate of Incorporation, as amended through the Effective Date, is attached
hereto as Exhibit III (the "Charter"). The Company shall promptly provide the
Warrantholder with any restatement, amendment, modification or waiver of the
Charter.
(f) NOTICE OF ADJUSTMENTS. If: (i) the Company shall declare any dividend
or distribution upon its stock, whether in cash, property, stock or other
securities; (ii) the Company shall offer for subscription pro rata to the
holders of any class of its Preferred or other convertible stock any additional
shares of stock of any class or other rights; (iii) there shall be any Merger
Event; or (iv) there shall be any voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in connection with each such
event, the Company shall send to the Warrantholder: (A) at least twenty (20)
days' prior written notice of the date on which the books of the Company shall
close or a record shall be taken for such dividend, distribution, subscription
rights (specifying the date on which the holders of Preferred Stock shall be
entitled thereto) or for determining rights to vote in respect of such Merger
Event, dissolution, liquidation or winding up; and (B) in the case of any such
Merger Event, dissolution, liquidation or winding up, at least twenty (20) days'
prior written notice of the date when the same shall take place (and specifying
the date on which the holders of Preferred Stock shall be entitled to exchange
their Preferred Stock for securities or other property deliverable upon such
Merger Event, dissolution, liquidation or winding up). In the case of a public
offering, the Company shall give Warrantholder at least twenty (20) days written
notice prior to the effective date thereof.
Each such written notice shall set forth, in reasonable detail, (i) the
event requiring the adjustment, (ii) the amount of the adjustment, (iii) the
method by which such adjustment was calculated, (iv) the adjusted Exercise
Price, and (v) the number of shares subject to purchase hereunder after giving
effect to such adjustment, and shall be given in accordance with Section 12(e)
hereof.
(g) TIMELY NOTICE. Failure to timely provide such notice required by
subsection (f) above shall entitle Warrantholder to retain the benefit of the
applicable notice period notwithstanding anything to the contrary contained in
any insufficient notice received by Warrantholder. The notice period shall begin
on the date such notice is given in accordance with Section 12(e) hereof.
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9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
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(a) RESERVATION OF PREFERRED STOCK. The Preferred Stock issuable upon
exercise of the Warrantholder's rights has been duly and validly reserved and,
when issued in accordance with the provisions of this Warrant Agreement, will be
validly issued, fully paid and non-assessable, and will be free of any taxes,
liens, charges or encumbrances of any nature whatsoever; provided, however, that
the Preferred Stock issuable pursuant to this Warrant Agreement may be subject
to restrictions on transfer under state and/or Federal securities laws. The
Company has made available to the Warrantholder true, correct and complete
copies of its Charter and Bylaws, as amended, and minutes of all Board of
Directors (including all committees of the Board of Directors, if any) and
Shareholder meetings from October 31, 1993 through November 30, 1993. The
issuance of certificates for shares of Preferred Stock upon exercise of the
Warrant Agreement shall be made without charge to the Warrantholder for any
issuance tax in respect thereof, or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Preferred
Stock. The Company shall not be required to pay any tax which may be payable in
respect of any transfer involved and the issuance and delivery of any
certificate in a name other than that of the Warrantholder.
(b) DUE AUTHORITY. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
shares of Preferred Stock, have been duly authorized by all necessary corporate
action on the part of the Company, and the Leases and this Warrant Agreement are
not inconsistent with the Company's Charter or Bylaws, do not contravene any law
or governmental rule, regulation or order applicable to it, do not and will not
contravene any material provision of, or constitute a material default under,
any material indenture, mortgage, contract or other instrument to which it is a
party or by which it is bound, and the Leases and this Warrant Agreement
constitute legal, valid and binding agreements of the Company, enforceable in
accordance with their respective terms; except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application relating to or affecting enforcement of
creditors' rights and the application of equitable principles in any action,
legal or equitable, and except as rights to indemnity or contribution may be
limited by applicable law.
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(c) CONSENTS AND APPROVALS. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement.
(d) ISSUED SECURITIES. All issued and outstanding shares of Common Stock,
Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All outstanding shares
of Common Stock, Preferred Stock and any other securities were issued in full
compliance with all Federal and state securities laws. In addition:
(i) The authorized capital of the Company consists of (A) 18,420,000
shares of Common Stock, of which (1) 3,300,000 have been designated as
shares of Series A Common Stock, all of which are issued and outstanding,
and (2) 15,120,000 have been designated as shares of Common Stock, of which
500,000 are issued and outstanding, and (B) 10,135,000 shares of preferred
stock, all of which have been designated as shares of Series A Convertible
Preferred Stock, and 5,000,000 of which are issued and outstanding, an
additional 5,000,000 have been reserved for issuance to certain venture
capital investors of the Company and 135,000 are issuable upon exercise of
an outstanding stock option.
(ii) The Company has reserved (A) 1,185,000 shares of Common Stock for
issuance under its 1993 Stock Option Plan, under which 1,054,500 options
are outstanding at an average price of approximately $.11 per share. Except
for the foregoing options and for an outstanding stock option exercisable
for 135,000 shares of the Company's Preferred Stock, there are no other
options, warrants, conversion privileges or other rights presently
outstanding to purchase or otherwise acquire any authorized but unissued
shares of the Company's capital stock or other securities of the Company.
(e) INSURANCE. The Company has in full force and effect insurance policies,
with extended coverage, insuring the Company and its property and business
against such losses and risks, and in such amounts, as are customary for
corporations engaged in a similar business and similarly situated and as
otherwise may be required pursuant to the terms of any other contract or
agreement.
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(f) OTHER COMMITMENTS TO REGISTER SECURITIES. Except as set forth in that
certain Stockholders' Agreement, dated as of November 5, 1993, among the Company
and certain stockholders of the Company, the Company is not, pursuant to the
terms of any other agreement currently in existence, under any obligation to
register under the 1933 Act any of its presently outstanding securities or any
of its securities which may hereafter be issued.
(g) EXEMPT TRANSACTION. Subject to the accuracy of the Warrantholder's
representations in section 10 hereof, the issuance of the Preferred Stock upon
exercise of this Warrant Agreement will constitute a transaction exempt from (i)
the registration requirements of Section 5 of the 1933 Act, in reliance upon
Section 4(2) thereof, and (ii) the qualification requirements of any applicable
State securities laws.
(h) COMPLIANCE WITH RULE 144. At the written request of the Warrantholder,
who proposes to sell Preferred Stock issuable upon the exercise of the Warrant
Agreement in compliance with Rule 144 promulgated by the Securities and Exchange
Commission, the Company shall furnish to the Warrantholder, within ten days
after receipt of such request, a written statement confirming the Company's
compliance with the filing requirements of the Securities and Exchange
Commission as set forth in such Rule, as such Rule may be amended from time to
time.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
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This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) INVESTMENT PURPOSE. The right to acquire Preferred Stock or the
Preferred Stock issuable upon exercise of the Warrantholder's rights contained
herein will be acquired for investment and not with a view to the sale or
distribution of any part thereof, and the Warrantholder has no present intention
of selling or engaging in any public distribution of the same except pursuant to
a registration or exemption.
(b) PRIVATE ISSUE. The Warrantholder understands (i) that the Preferred
Stock issuable upon exercise of this Warrant Agreement is not registered under
the 1933 Act or qualified under applicable state securities laws on the ground
that the issuance contemplated by this Warrant Agreement will be exempt from the
registration and qualifications requirements thereof, and (ii) that the
Company's reliance
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on such exemption is predicated on the representations set forth in this Section
10.
(c) DISPOSITION OF WARRANTHOLDER'S RIGHTS. In no event will the
Warrantholder make a disposition of any of its rights to acquire Preferred Stock
or Preferred Stock issuable upon exercise of such rights unless and until (i) it
shall have notified the Company of the proposed disposition, and (ii) if
requested by the Company, it shall have furnished the Company with an opinion of
counsel (which counsel shall be outside counsel to the Warrantholder)
satisfactory to the Company and its counsel to the effect that (A) appropriate
action necessary for compliance with the 1933 Act has been taken, or (B) an
exemption from the registration requirements of the 1933 Act is available.
Notwithstanding the foregoing, the restrictions imposed upon the transferability
of any of its rights to acquire Preferred Stock or Preferred Stock issuable on
the exercise of such rights do not apply to transfers from the beneficial owner
of any of the aforementioned securities to its nominee or from such nominee to
its beneficial owner, and shall terminate as to any particular share of
Preferred Stock when (1) such security shall have been effectively registered
under the 1933 Act and sold by the holder thereof in accordance with such
registration or (2) such security shall have been sold without registration in
compliance with Rule 144 under the 1933 Act, or (3) a letter shall have been
issued to the Warrantholder at its request by the staff of the Securities and
Exchange Commission or a ruling shall have been issued to the Warrantholder at
its request by such Commission stating that no action shall be recommended by
such staff or taken by such Commission, as the case may be, if such security is
transferred without registration under the 1933 Act in accordance with the
conditions set forth in such letter or ruling and such letter or ruling
specifies that no subsequent restrictions on transfer are required. Whenever the
restrictions imposed hereunder shall terminate, as hereinabove provided, the
Warrantholder or holder of a share of Preferred Stock then outstanding as to
which such restrictions have terminated shall be entitled to receive from the
Company, without expense to such holder, one or more new certificates for the
Warrant Agreement or for such shares of Preferred Stock not bearing any
restrictive legend.
(d) FINANCIAL RISK; ACCREDITED INVESTOR STATUS. The Warrantholder has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment, and has the ability to bear
the economic risks of its investment. The Warrantholder is an accredited
investor as such term is defined in Rule 501(a) of the 1933 Act.
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(e) RISK OF NO REGISTRATION. The Warrantholder understands that if the
Company does not register with the Securities and Exchange Commission pursuant
to Section 12 of the 1933 Act, or file reports pursuant to Section 15(d), of the
Securities Exchange Act of 1934 (the "1934 Act"), or if a registration statement
covering the securities under the 1933 Act is not in effect when it desires to
sell (i) the rights to purchase Preferred Stock pursuant to this Warrant
Agreement, or (ii) the Preferred Stock issuable upon exercise of the right to
purchase, it may be required to hold such securities for an indefinite period.
The Warrantholder also understands that any sale of its rights of the
Warrantholder to purchase Preferred Stock or Preferred Stock which might be made
by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
11. TRANSFERS.
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Subject to the terms and conditions contained in Section 10 hereof, this
Warrant Agreement and all rights hereunder are transferable in whole or in part
by the Warrantholder and any successor transferee, provided, however, in no
event shall the number of transfers of the rights and interests in all of the
Warrant Agreements exceed three (3) transfers. The transfer shall be recorded on
the books of the Company upon receipt by the Company of a notice of transfer in
the form attached hereto as Exhibit II (the "Transfer Notice"), at its principal
offices and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer.
12. MISCELLANEOUS.
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(a) EFFECTIVE DATE. The provisions of this Warrant Agreement shall be
construed and shall be given effect in all respects as if it had been executed
and delivered by the Company on the date hereof. This Warrant Agreement shall be
binding upon the parties hereto and their respective successors and assigns.
(b) ATTORNEY'S FEES. In any litigation, arbitration or court proceeding
between the Company and the Warrantholder relating hereto, the prevailing party
shall be entitled to attorneys' fees and expenses and all costs of proceedings
incurred in enforcing this Warrant Agreement.
(c) GOVERNING LAW. This Warrant Agreement shall be governed by and
construed for all purposes under and in accordance with the laws of the State of
Delaware.
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(d) COUNTERPARTS. This Warrant Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) NOTICE. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, facsimile
transmission (provided that the original is sent by personal delivery, overnight
mail, or mail as hereinafter set forth), delivery by overnight mail, or seven
(7) days after deposit in the United States mail, by registered or certified
mail, addressed (i) to the Warrantholder at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, attention: Xxxxx Xxxx, Venture Leasing Director, cc: Legal
Department, (and/or, if by facsimile, (000) 000-0000) and (ii) to the Company at
000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, attn: Xxxxxx Xxxxxxxx,
Controller (and/or if by facsimile, (000) 000-0000), or at such other address as
any such party may subsequently designate by written notice to the other party.
(f) REMEDIES. In the event of any default hereunder, the non-defaulting
party may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including but not limited to an action for damages as a
result of any such default, and/or an action for specific performance for any
default where Warrantholder will not have an adequate remedy at law and where
damages will not be readily ascertainable. The Company expressly agrees that it
shall not oppose an application by the Warrantholder or any other person
entitled to the benefit of this Agreement requiring specific performance of any
or all provisions hereof or enjoining the Company from continuing to commit any
such breach of this Agreement.
(g) NO IMPAIRMENT OF RIGHTS. The Company will not, by amendment of its
Charter or through any other means, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant Agreement, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of
all such actions as may be necessary or appropriate in order to protect the
rights of the Warrantholder against impairment.
(h) SURVIVAL. The representations, warranties, covenants and conditions of
the respective parties contained herein or made pursuant to this Warrant
Agreement shall survive the execution and delivery of this Warrant Agreement.
15
-15-
(i) SEVERABILITY. In the event any one or more of the provisions of this
Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(j) AMENDMENTS. Any provision of this Warrant Agreement may be amended by a
written instrument signed by the Company and by the Warrantholder.
(k) ADDITIONAL DOCUMENTS. The Company, upon execution of this Warrant
Agreement, shall provide the Warrantholder with certified resolutions with
respect to the representations, warranties and covenants set forth in
Subparagraphs (a) through (d), (f) and (g) of Section 9 above. If the purchase
price for the Leases referenced in the preamble of this Warrant Agreement
exceeds $1,000,000, the Company will also provide Warrantholder with an opinion
from the Company's counsel with respect to those same representations warranties
and covenants. The Company shall also supply such other documents as the
Warrantholder may from time to time reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be executed by its officers thereunto duly authorized as of the Effective
Date.
Company: LEUKOSITE, INC.
By: /s/ XXXXXXXXXXX X. XXXXXXXXX
--------------------------------------------
Title: CEO AND CHAIRMAN
----------------------------------------
Warrantholder: COMDISCO, INC.
By: /s/ XXXX X. XXXXXX
--------------------------------------------
Title: ASSISTANT VICE PRESIDENT/VENTURE LEASE
----------------------------------------
16
EXHIBIT I
NOTICE OF EXERCISE
To:
--------------------------------------
(1) The undersigned Warrantholder hereby elects to purchase _______ shares of
the Preferred Stock of LeukoSite, Inc., pursuant to the terms of the
Warrant Agreement dated the 30th day of August, 1993 (the "Warrant
Agreement") between LeukoSite, Inc. and the Warrantholder, and tenders
herewith payment of the purchase price for such shares in full, together
with all applicable transfer taxes, if any.
(2) In exercising its rights to purchase the Preferred Stock of LeukoSite,
Inc., the undersigned hereby confirms and acknowledges the investment
representations and warranties made in Section 10 of the Warrant Agreement.
(3) Please issue a certificate or certificates representing said shares of
Preferred Stock in the name of the undersigned or in such other name as is
specified below.
-----------------------------------------
(Name)
-----------------------------------------
(Address)
Warrantholder: COMDISCO, INC.
By:
--------------------------------------
Title:
-----------------------------------
Date:
------------------------------------
17
ACKNOWLEDGMENT OF EXERCISE
The undersigned ______________________________, hereby acknowledges receipt of
the "Notice of Exercise" from Comdisco, Inc., to purchase ___ shares of the
Preferred Stock of LeukoSite, Inc., pursuant to the terms of the Warrant
Agreement, and further acknowledges that _______ shares remain subject to
purchase under the terms of the Warrant Agreement.
Company:
By:
-----------------------------------
Title:
--------------------------------
Date:
---------------------------------
18
EXHIBIT II
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form
and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to
--------------------------------------------------------------------------------
(Please Print)
whose address is
---------------------------------------------------------------
--------------------------------------------------------------------------------
Dated
--------------------------------------------------
Holder's Signature
-------------------------------------
Holder's Address
---------------------------------------
--------------------------------------------------------
Signature Guaranteed:
-----------------------------------------------------------
NOTE: The signature to this Transfer Notice must correspond with the name as
it appears on the face of the Warrant Agreement, without alteration or
enlargement or any change whatever. Officers of corporations and those
acting in a fiduciary or other representative capacity should file
proper evidence of authority to assign the foregoing Warrant
Agreement.
