1
Exhibit 10.53
CHEMGENICS PHARMACEUTICALS, INC.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx 000
Xxxxxxxxx, XX 00000
MILLENNIUM PHARMACEUTICALS, INC.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
January 18, 1997
PerSeptive BioSystems, Inc.
000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Gentlemen:
ChemGenics Pharmaceuticals, Inc. ("ChemGenics") proposes to enter into an
Agreement and Plan of Merger substantially in the form of the draft dated
January 17, 1997 which was delivered to you (the "Merger Agreement") with
Millennium Pharmaceuticals, Inc., a Delaware corporation ("Millennium") and CPI
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Millennium ("CPI"), pursuant to which, among other things, CPI will be merged
with and into ChemGenics and ChemGenics will become a wholly-owned subsidiary of
Millennium (the "Merger"). Effective upon the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware (the "Effective
Time") shares of common stock $.001 par value, of ChemGenics ("ChemGenics Common
Stock") immediately prior to the Merger will be converted into the right to
receive shares ("Merger Shares") of Common Stock, $.001 par value of Millennium
("Millennium Common Stock") in accordance with the terms of the Merger
Agreement.
Reference is hereby made to:
i. the Warrant for the Purchase of Shares of Common Stock of
ChemGenics, registered in the name of PerSeptive BioSystems,
Inc. ("PBIO") and representing the right to purchase up to
4,896,335 shares of ChemGenics Common Stock, at an exercise
price of $5.00 per share (the "Warrant");
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ii. the Promissory Note dated December 18, 1996 made in favor of
PBIO by ChemGenics in the principal amount of $3,000,000 (the
"Note");
iii. the Master Agreement dated May 7, 1996 between ChemGenics and
PBIO, as amended by a Letter Agreement dated November 22, 1996
and as further amended by the Omnibus Amendment Agreement dated
December 18, 1996 (collectively, the "Master Agreement");
iv. the License Agreement dated as of June 28, 1996 by and among
ChemGenics, PBIO and PBIO's wholly-owned subsidiary, PerSeptive
Technologies II Corporation, a Delaware corporation ("PTC-II")
and Vestec Corporation, a Texas corporation which was
subsequently merged with and into PBIO (the "License
Agreement");
v. the Consulting and Interim Services Agreement dated June 28,
1996 by and between ChemGenics and PBIO, as amended by the
Omnibus Amendment Agreement (the "Consulting and Services
Agreement");
vi. the Standstill and Registration Rights Agreement dated as of
June 28, 1996 by and between ChemGenics and PBIO, as amended by
the Omnibus Amendment Agreement (the "Standstill and
Registration Agreement");
vii. the Confidentiality and Non-Competition Agreement dated as of
June 28, 1996 by and between ChemGenics and PBIO (the
"Confidentiality Agreement"); and
viii. the Sublease Agreement dated June 28, 1996 by and between
ChemGenics and PBIO (the "Sub-lease").
Now therefore, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the undersigned parties hereto agree as follows:
A. WARRANT
-------
1. The undersigned hereby acknowledge and agree that:
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i. at the Effective Time, PBIO shall surrender the Warrant to
ChemGenics and shall receive as consideration for such surrender
a payment by either Millennium or ChemGenics of $1,000,000 by
wire transfer;
ii. from the date hereof until the Effective Time, PBIO shall not
exercise its right under the Warrant to acquire shares of
ChemGenics Common Stock, to the extent such Warrant is presently
exercisable, or transfer, assign, pledge or hypothecate the
Warrant in any way;
iii. the provisions of Section 9 of the Warrant shall not apply to
the Merger described herein; and
iv. from and after the Effective Time, the Warrant shall be of no
further force and effect and shall be cancelled by ChemGenics.
B. NOTE
----
1. In accordance with Section 1 of the Note, PBIO hereby acknowledges that
upon the Merger the Note is payable in full and, accordingly, at the Effective
Time, PBIO shall surrender the Note to ChemGenics for cancellation and shall
receive from either Millennium or ChemGenics by wire transfer the sum of
$3,000,000 plus all accrued interest under the Note in full satisfaction and
discharge of ChemGenics' obligations under the Note.
C. MASTER AGREEMENT
----------------
1. The undersigned hereby confirm and acknowledge that any remaining
executory provisions of the Master Agreement shall continue in full force and
effect after the Merger except as follows:
i. PBIO's right of first refusal set forth in Section 5.06 shall
terminate as of the Effective Time;
ii. the post-closing covenants set forth in Sections 8.02, 8.03 and
8.04, having been superseded by the Consulting and Service
Agreement, the Sublease Agreement and the Standstill and
Registration Agreement, and Section 8.06 will terminate as of
the Effective Time;
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iii. Section 10.05 is deleted in its entirety and a new Section 10.05
is inserted in lieu thereof which shall read as follows:
"10.05 ASSIGNMENT. Neither this Agreement nor any right
hereunder, may be assigned by any of the parties hereto
without the prior written consent of the other parties;
PROVIDED, HOWEVER that ChemGenics may, upon written notice
to PerSeptive, assign this Agreement to any Control
Affiliate (as such term is defined in the License
Agreement, as amended) which agrees to be bound by the
terms of this Master Agreement and any other applicable
agreement."
iv. Notwithstanding Section 10.15 of the Agreement, all of the
representations and warranties set forth in the Agreement shall
terminate as of the Effective Time; and
v. Provisions of the Master Agreement which pertain to specific
provisions included in subsequent agreements executed by the
applicable parties (such as, by way of example, Section 1.01(B)
of the Master Agreement) shall be terminated or modified to the
extent terminated or modified in such subsequent agreements.
D. LICENSE AGREEMENT
-----------------
1. The undersigned hereby acknowledge and confirm that the License
Agreement will remain in full force and effect after the Merger except as
follows:
i. Section 2.1.1 is amended such that a new Section 2.1.1(d) is
added which reads as follows:
"(d) Upon written notice to PerSeptive, ChemGenics will
have the right to grant sublicenses under the licenses
granted pursuant to Section 2.1.1(a) and Section 2.1.1(b)
above to any direct or indirect 100% parent or direct or
indirect wholly-owned subsidiary of ChemGenics or its
parent (a "Control Affiliate") which agrees in writing with
PerSeptive to be bound by the Non-Competition Agreement, as
amended (as defined in the Master Agreement); PROVIDED THAT
any sublicense granted by ChemGenics under this Agreement
shall be subject and
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subordinate to, and consistent with, the terms and
conditions of this Agreement.
ii. Section 2.1.2 is deleted in its entirety and a new Section 2.1.2
is inserted in lieu thereof which reads as follows:
"2.1.2. RESTRICTIONS ON FUTURE LICENSES. Except for the
licenses and rights granted by Section 2.1.1 hereof,
PerSeptive reserves the exclusive (against ChemGenics and
all other Persons) worldwide right to develop and use, and
to license to any Person and authorize future sublicenses
with respect to, the Associated Technology and the
PerSeptive Patent Rights and to develop, make, have made,
use, offer to sell, sell and import products and/or provide
services utilizing or Covered By the Licensed Technology
within or outside of the Field."
iii. Section 2.1.3 of the License Agreement is amended such that the
words "other than Section 2.1.2 hereof" shall be deleted from
the sixth line on page 4 of the License Agreement, and the words
"and 2.1.2" shall be deleted from the second to last line.
iv. Section 14 is deleted in its entirety and a new Section 14 is
inserted in lieu thereof which shall read as follows:
"14. SUCCESSORS AND ASSIGNS.
The terms and provisions of this agreement shall inure
to the benefit of, and be binding upon, PerSeptive,
ChemGenics, and their respective successors and assigns,
subject to the terms of Section 9.4 hereof and the
remainder of this Section 14; PROVIDED, HOWEVER, ChemGenics
may not assign or otherwise transfer this Agreement and any
of its rights and interests, or delegate any of its
obligations hereunder, except to a Control Affiliate, which
Control Affiliate agrees in writing to be bound by this
Agreement and the Non-Competition Agreement as amended (as
defined in the Master Agreement). In the event that either
Party shall consolidate or merge with another Person (other
than an acquisition by such Party of another Person where
the
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stockholders of such Party (or any subsidiary thereof)
after such transaction directly or indirectly own at least
a majority of the voting stock of the combined or acquired
Person and, in the case of ChemGenics, other than a Person
which is a Control Affiliate of ChemGenics); or convey,
sell or lease to another Person (other than, in the case of
ChemGenics, a Person which is a Control Affiliate) all or
substantially all of the stock, assets or business of such
Party and its subsidiaries, taken as a whole, or if there
shall be a Change of Control of such Party (other than, in
the case of ChemGenics, a Change in Control involving only
ChemGenics and a Control Affiliate of ChemGenics), then (i)
if such transaction is negotiated by such Party, such Party
shall give the other Party written notice identifying the
acquiring person and the material terms of the transaction
at least thirty (30) days prior to the closing thereof and
(ii) the Parties shall negotiate in good faith to determine
whether any changes shall be appropriate in this Agreement
and/or in the consideration due to PerSeptive for the
licenses granted herein as a result of the proposed
transaction and the changed relationship of the Parties
resulting therefrom, subject to PerSeptive's right to
terminate the licenses granted herein pursuant to Section
9.4 hereof. If the Parties are unable to agree that any
such changes should be made prior to the closing of the
proposed transaction, then the licenses granted herein
shall continue unaffected thereby upon the consummation of
the transaction, subject to PerSeptive's right to terminate
such licenses pursuant to Section 9.4. Any attempt to
assign or delegate any portion of this Agreement in
violation of this Section 14 shall be null and void.
Subject to the foregoing, any reference to PerSeptive and
ChemGenics hereunder shall be deemed to include the
permitted successors thereto and assigns thereof."
2. PBIO and PTC hereby acknowledge and confirm that Millennium does not
constitute a "PerSeptive Competitor", as such term is defined in the License
Agreement.
3. PBIO and PTC hereby waive their rights to thirty (30) days' prior
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written notice of the identity of the acquiror and the material terms of the
Merger as set forth in Section 14 of the License Agreement.
4. PBIO and PTC hereby consent to the Merger and acknowledge and agree that
the Merger does not constitute an assignment or transfer of the License
Agreement by ChemGenics.
5. The undersigned hereby agree that as soon as practicable after the
Effective Time they will negotiate to amend the License Agreement to allow
ChemGenics to also grant sublicenses under, or assign, the License Agreement to
Affiliates (as such term is defined in the License Agreement), under terms and
conditions that accommodate PerSeptive's business interests.
E. CONSULTING AND SERVICES AGREEMENT
---------------------------------
1. PBIO hereby acknowledges and agrees that the consummation of the Merger
shall not constitute an assignment of the Consulting and Services Agreement by
ChemGenics and that on or after the Effective Date, the Consulting and Services
Agreement shall remain in full force and effect.
2. The sixth paragraph of Section 4 of the Consulting and Services
Agreement is hereby deleted and a new paragraph is inserted in lieu thereof
which reads as follows:
"Without PBIO's express written consent, no Equipment loaned to
ChemGenics pursuant to this Agreement shall be furnished to any Partner or
any other third party, or otherwise removed from ChemGenics' facility,
unless it has been purchased or leased from ChemGenics for fair
consideration as described above, provided that nothing contained herein
shall prevent ChemGenics form utilizing such Equipment in the ordinary
course of its business with any Partner, and FURTHER PROVIDED, that
ChemGenics may, without PBIO's express written consent, furnish Equipment
to any corporation, or unincorporated organization or other entity that
directly or indirectly controls, is controlled by or is under common
control with ChemGenics."
3. PBIO hereby waives any rights to thirty (30) days' prior notice of the
identity of the acquiror and the material terms of the Merger as set forth in
Section 10(c) of the Consulting and Services Agreement.
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4. PBIO hereby acknowledges that, pursuant to the terms of the Merger
Agreement, from and after the Effective Date, each one share of ChemGenics
Common Stock held of record by PBIO immediately prior to the Effective Date
shall be converted into the right to receive such number of shares of Millennium
Common Stock as is determined pursuant to the terms of the Merger Agreement (the
"Merger Shares"). The Merger Shares shall continue to be subject to the
repurchase option set forth in Section 5 of the Consulting and Services
Agreement and, furthermore, Section 5 be and hereby is amended such that it
reads in its entirety as follows:
"5. CERTAIN CONSEQUENCES OF NONCOMPLIANCE. In the event PBIO does not
provide the Equipment and Supplies required by Sections 3 and 4 of this
Agreement, or the Consulting Services required by Section 2 of this
Agreement, ChemGenics shall provide written notice of such failure to PBIO.
If PBIO fails to cure such failure within thirty (30) days following
receipt of the first such notice, twenty (20) days following receipt of the
second such notice or ten (10) days following receipt of any further
notice, or if such failure is not curable in such period PBIO fails to
commence to cure same within such period and thereafter diligently continue
to prosecute such cure and in any event fails to cure such failure within
an additional twenty (20) days, Millennium Pharmaceuticals , Inc. (the
parent corporation of ChemGenics) ("Millennium") shall have the option for
a period of ninety (90) days following the termination of the grace period
following such notice to purchase from PBIO and PBIO shall be obligated to
sell to Millennium at an aggregate price of $1.00, all or any part of the
number of the Earnout Shares (the "Shares") set forth below (the
"Repurchase Option").
Date of Default* Number of Shares**
--------------- ----------------
July 1, 1996 - June 30, 1997 662,500
July 1, 1997 - June 30, 1998 441,667
July 1, 1998 - June 30, 1999 220,833
Thereafter 0
* The applicable number of shares shall be determined by the period in
which the date of default, set forth in the relevant default notice,
occurs.
** ChemGenics has entered into an Agreement and Plan of Merger dated
January __, 1997 (the "Merger Agreement") with Millennium and a
wholly-owned subsidiary of Millennium pursuant to which ChemGenics
will become a wholly-owned subsidiary of Millennium (the "Merger").
Effective upon the filing of the Certificate of Merger with the
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Secretary of State of the State of Delaware (the "Effective Time")
shares of common stock $.001 par value, of ChemGenics ("ChemGenics
Common Stock") immediately prior to the Merger will be converted into
the right to receive shares of Common Stock, $.001 par value of
Millennium ("Millennium Common Stock") in accordance with the terms of
the Merger Agreement. The Earnout Shares in the foregoing table
consist of shares of ChemGenics Common Stock. Upon the occurrence of
the Effective Time, the number of Earnout Shares listed in such table
shall be replaced by the number of shares of Millennium Common Stock
received by ChemGenics in the Merger, calculated in accordance with
the Exchange Ratio (as such term is defined in the Merger Agreement)
set forth in the Merger Agreement.
In the event Millennium shall be entitled to and shall elect to
exercise the Repurchase Option, it shall give PBIO written notice
specifying the number of Shares which Millennium elects to purchase and
specifying a date for closing hereunder, which date shall be not more than
thirty (30) calendar days after the giving of such notice. The closing
shall take place at Millennium's principal offices or such other location
in the greater Boston, Massachusetts areas as Millennium may reasonably
designate in such notice. At the closing, PBIO shall deliver the Shares
being purchased against the simultaneous delivery of the purchase price by
Millennium.
If PBIO notifies Millennium that it disagrees with Millennium's
assertion that there is a default, and notifies Millennium of the same
within fifteen (15) calendar days after PBIO's receipt of notice thereof,
the matter will be referred to and determined by arbitration pursuant to
Section 10.8 of the Master Agreement.
In the event that PBIO fails to deliver the Shares as required by this
Agreement, Millennium may elect (a) to establish a segregated account to
receive the payment of the repurchase price, such account to be turned over
to PBIO upon delivery of the certificates representing such Shares, and (b)
immediately to take such action as is appropriate to transfer record title
of such Shares from PBIO to Millennium and to treat PBIO and such Shares in
all respects as if delivery of the certificates representing such Shares
had been made as required by this Agreement. PBIO hereby irrevocably grants
Millennium a power of attorney for the purpose of effectuating the
foregoing.
If Millennium shall pay a stock dividend or declare a stock split on
or with respect to any of its Common Stock, or otherwise distribute
securities of
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Millennium to the holders of its Common Stock, the number of shares of
stock or other securities of Millennium issued with respect to the Shares
then subject to the Repurchase Option shall be added to the Shares then
subject to the Repurchase Option without any change in the aggregate
purchase price. If Millennium shall distribute to its stockholders shares
of stock of another corporation, the shares of stock of such other
corporation distributed with respect to the Shares then subject to the
Repurchase Option shall be added to the Shares covered by the Repurchase
Option without any change in the aggregate purchase price.
If the outstanding shares of Millennium Common Stock shall be
subdivided into a greater number of shares or combined into a smaller
number of shares, or in the event of a reclassification of the outstanding
shares of Common Stock of Millennium, or if Millennium shall be a part to
any capital reorganization, there shall be substituted for the Shares then
covered by the Repurchase Option such amount and kind of securities as are
issued in such subdivision, combination, reclassification, or capital
reorganization in respect of the Shares subject to the Repurchase Option
immediately prior thereto, without any change in the aggregate purchase
price."
F. STANDSTILL AND REGISTRATION AGREEMENT
-------------------------------------
1. The undersigned hereby acknowledge that the Standstill and Registration
Agreement shall remain in full force and effect, PROVIDED, HOWEVER, that
Sections 2.02 and 2.03 and Article III shall be deleted in their entirety.
G. CONFIDENTIALITY AGREEMENT
-------------------------
1. The undersigned hereby agree that the Merger does not constitute an
assignment of the Confidentiality Agreement and that such Confidentiality
Agreement shall remain in full force and effect, PROVIDED, HOWEVER, that
Sections 1 and 2 shall be deleted from the Confidentiality Agreement in their
entirety.
H. SUBLEASE
--------
1. In accordance with Article 12 of the Sublease, PBIO hereby consents to
the Merger, to the extent that the Merger constitutes as "assignment" under the
provisions of Article 12.
2. PBIO agrees to use its best efforts to obtain any consents or waivers of
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the Overlandlord (as defined in the Sublease) to the extent required to
accommodate the change and control of ChemGenics resulting from the Merger.
3. Upon and subject to the occurrence of the Effective Time, the
undersigned agree to negotiate in good faith any such amendments or
modifications of the Sublease which the parties may deem appropriate to account
for the Merger.
I. APPROVAL OF MERGER
------------------
1. PBIO agrees to (a) vote (or consent by written action) as to all shares
of ChemGenics Common Stock that are beneficially owned by the undersigned, or as
to which the undersigned has voting authority, in favor of the adoption of the
Merger Agreement and the approval of the Merger and (b) otherwise use the
undersigned's best effort to assure that the Merger Agreement is adopted and the
Merger is approved by the requisite vote (or written consent) of stockholders of
ChemGenics, in each case subject to the satisfaction of the other conditions
precedent to ChemGenics' obligation to consummate the Merger.
J. "ACCREDITED INVESTOR" REPRESENTATION
------------------------------------
1. PBIO represents that it is an "accredited investor" as defined in Rule
501 of Regulation D of the Securities and Exchange Commission. PBIO agrees to
execute and deliver such documents and instruments (including an Investor
Questionnaire) and to make such representations as shall be reasonably requested
by Millennium to ensure that the issuance and delivery of the Merger Shares in
connection with the Merger is exempt from the registration requirements of the
Securities Act of 1933, as amended.
K. LOCK-UP AGREEMENT
-----------------
1. PBIO agrees that, with respect to (i) 100% of the Merger Shares issued
and delivered to it pursuant to the Merger for the period commencing on the
Effective Time and ending on the date that the Registration Statement on Form
S-3 to be filed by Millennium is effective with respect to the sale of the
Merger Shares (the "Date of Effectiveness"), (ii) as to 50% of such Merger
Shares with respect to the period commencing on the Date of the Effectiveness
and ending on July 31, 1997, and (iii) as to 25% of such Merger Shares with
respect to the period commencing on August 1, 1997 and ending on September 30,
1997, PBIO shall not sell, exchange, transfer, assign, pledge, dispose of or
engage in any other transaction with respect to the foregoing amounts of the
Merger Shares, including a transaction or arrangement that reduces the risk of
loss by short sale, hedging or otherwise.
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L. TAX REPRESENTATIONS
-------------------
1. PBIO shall make customary, reasonable and appropriate representations to
tax counsel to Millennium and ChemGenics to enable such firms to render opinions
as to the tax-free nature of the Merger.
M. MISCELLANEOUS
-------------
1. From and after the Effective Date, notices required to be given to
ChemGenics under any of the agreements set forth herein shall be sent to:
ChemGenics Pharmaceuticals, Inc.
c/o Millennium Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
2. To the extent that the amendment or modification of any agreement
hereunder amends or modifies the terms and conditions of any other agreement
hereunder, such other agreement shall be deemed to be so amended or modified.
3. The undersigned hereby agree that, if the Effective Time does not occur
by August 31, 1997 or if the Merger Agreement shall be terminated in accordance
with the provisions of Section 6.1 thereof, then this Letter Agreement shall
terminate and be of no further force or effect and all obligations of the
undersigned hereunder shall become null and void.
4. This Letter Agreement shall be governed by and construed in accordance
with the internal law (and not the law of conflicts) of the State of Delaware.
5. This Letter Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Letter Agreement
as of the date first written above.
CHEMGENICS PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Title: President
PERSEPTIVE BIOSYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Title: President
MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Title: President
PERSEPTIVE TECHNOLOGIES II
CORPORATION
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Title: President
