Exhibit
10.51
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
This Offshore Securities Subscription Agreement
("Agreement") is
executed in reliance upon the transaction exemption afforded by
Regulation S
("Regulation S") as promulgated by the Securities and Exchange
Commission
("SEC"), under the Securities Act of 1933, as amended ("1933 Act").
This Agreement has been executed by the undersigned in
connection with
the private placement of up to U.S. $9,000,000 in principal amount
of 4%
Convertible Subordinated Debentures due November ___, 1998
(hereinafter referred
to as the "Debentures") of Xoma Corporation, a corporation
organized and
existing under the laws of the State of Delaware, U.S.A., NASDAQ
National Market
Symbol "XOMA" (hereinafter referred to as the "COMPANY"). The
Debentures being
purchased pursuant to this Agreement ("Purchaser's Debentures")
have not been
registered under the 1933 Act and may not be offered or sold in the
United
States or to U.S. persons, other than distributors (as such terms
are defined in
Regulation S), unless the Debentures are registered under the 1933
Act, or an
exemption from the registration provisions of the 1933 Act is
available. The
terms on which the Debentures may be converted into common stock
(the "Shares")
and the other terms of the Debentures are set forth in the form of
Debenture
annexed hereto as ANNEX I. This subscription and, if accepted by
the COMPANY,
the offer and sale of Debentures and the Shares issuable upon
conversion thereof
(collectively the "Securities"), are being made in reliance upon
the provisions
of Regulation S ("Regulation S") under the 0000 Xxx.
The undersigned
NAME: ----------------------------------------------------
ADDRESS: ----------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
if applicable, a [Corporation][Partnership][Trust] organized under
the laws
of __________, a non USA jurisdiction (hereinafter referred to as
the
"PURCHASER")
hereby represents and warrants to, and agrees with, the COMPANY as
follows:
1. AGREEMENT TO SUBSCRIBE.
a. SUBSCRIPTION AMOUNT. The undersigned hereby
subscribes for U.S. $______________ in principal amount of
Debentures.
b. FORM OF PAYMENT. The PURCHASER shall pay the purchase price
for the Purchaser's Debentures by delivering good funds in
United States Dollars to the escrow agent identified in the
Joint Escrow Instructions attached hereto as ANNEX II (the
"Escrow Agent"). Promptly following notice by the Escrow
Agent
of receipt of payment from the PURCHASER of the
subscription
price for the Purchaser's Debentures, the COMPANY shall
determine whether to accept such subscription and, if so
accepted, shall deliver one or more certificates for the
Purchaser's Debentures to the Escrow Agent. Delivery of
such
funds to the COMPANY by the Escrow Agent shall be made
against
delivery by the COMPANY of one or more Debentures in
accordance with this Agreement. By signing this Agreement,
the
PURCHASER and the COMPANY each agrees to all of the terms
and
conditions of, and becomes a party to, the Joint Escrow
Instructions attached hereto as ANNEX II, all of the
provisions of which are incorporated herein by this
reference
as if set forth in full.
c. METHOD OF PAYMENT. Payment of the purchase price for the
Purchaser's
Debentures shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For Further Credit to A/C# 105-0036843
for credit to the account of Xxxxxxx & Xxxxxx,
Attorneys
Escrow Account: Master Escrow Account
Not later than five (5) business days after acceptance and
execution of this Agreement by the COMPANY, the PURCHASER
shall deposit with the Escrow Agent the aggregate
subscription
price for the Purchaser's Debentures.
2. SUBSCRIBER REPRESENTATIONS; ACCESS TO INFORMATION;
INDEPENDENT
INVESTIGATION.
a. OFFSHORE TRANSACTION. PURCHASER represents and warrants
to COMPANY
as follows:
(i) PURCHASER is not a U.S. person as that term is
defined under
Regulation S.
2
(ii) PURCHASER is outside the United States
as of the date of the execution and delivery
of this Agreement.
(iii) PURCHASER is purchasing the
Purchaser's Debentures for its own account
and not on behalf of any U.S. person, and
PURCHASER is the sole beneficial owner of
the Purchaser's Debentures, and has not
pre-arranged any sale with purchasers in the
United States.
(iv) PURCHASER represents and warrants and
hereby agrees that all offers and sales of
the Debentures prior to the expiration of a
period commencing on the date of the receipt
of funds by the COMPANY and ending 40 days
thereafter shall only be made in compliance
with the safe harbor contained in Regulation
S, pursuant to the registration provisions
under the 1933 Act or pursuant to an
exemption from registration, and all offers
and sales after the expiration of the 40-day
period shall be made only pursuant to such
registration or to such exemption from
registration.
(v) PURCHASER acknowledges that the purchase
of the Debentures involves a high degree of
risk, is aware of the risks and further
acknowledges that it can bear the economic
risk of the purchase of the Purchaser's
Debentures, including the total loss of its
investment.
(vi) PURCHASER understands that the
Debentures are being offered and sold to it
in reliance on specific exemptions from the
registration requirements of U.S. securities
laws and that the COMPANY is relying upon
the truth and accuracy of the
representations, warranties, agreements,
acknowledgements and understandings of
PURCHASER set forth herein in order to
determine the applicability of such
exemptions and the suitability of PURCHASER
to acquire the Purchaser's Debentures.
(vii) PURCHASER is sufficiently experienced
in financial and business matters to be
capable of evaluating the merits and risks
of its investments, and to make an informed
decision relating thereto.
(viii) In evaluating its investment,
PURCHASER has consulted its own investment
and/or legal and/or tax advisors.
(ix) PURCHASER understands that in the view
of the SEC the statutory basis for the
exemption claimed for this transaction would
not be present if the offering of
Debentures, although in technical compliance
with Regulation S, is part of a plan or
scheme to evade the registration provisions
of the 1933 Act. PURCHASER is
3
acquiring the Purchaser's Debentures for
investment purposes and has no present
intention to sell the Debentures in the
United States or to a U.S. Person or for the
account or benefit of a U.S. Person either
now or after the expiration of the
Restricted Period.
(x) PURCHASER is not an underwriter of, or dealer in,
the
Securities, and PURCHASER is not participating,
pursuant to a
contractual agreement, in the distribution of the
Securities.
(xi) During the Restricted Period (as
hereinafter defined), neither PURCHASER nor
any of its affiliates will, directly or
indirectly, maintain any short position in
the securities of the COMPANY.
b. CURRENT PUBLIC INFORMATION. PURCHASER acknowledges
that PURCHASER
has been furnished with or has acquired copies of the
COMPANY'S
most recent Annual Report on the Form 10-K filed with
the SEC and
the Forms 10-Q and 8-K filed thereafter (collectively
the "SEC
Filings").
c. INDEPENDENT INVESTIGATION; ACCESS. PURCHASER
acknowledges that PURCHASER, in making the decision
to purchase the Debentures subscribed for, has relied
upon independent investigations made by it and its
representatives, if any, and PURCHASER and such
representatives, if any, have, prior to any sale to
it, been given access and the opportunity to examine
all material publicly available, books and records of
the COMPANY, all material contracts and documents
relating to this offering and an opportunity to ask
questions of, and to receive answers from the COMPANY
or any person acting on its behalf concerning the
terms and conditions of this offering. PURCHASER and
its advisors, if any, have been furnished with access
to all publicly available materials relating to the
business, finances and operation of the COMPANY and
materials relating to the offer and sale of the
Debentures which have been requested. PURCHASER and
its advisors, if any, have received complete and
satisfactory answers to any such inquiries.
d. NO GOVERNMENT RECOMMENDATION OR APPROVAL. PURCHASER
understands
that no federal or state agency has passed on or made
any
recommendation or endorsement of the Securities.
e. ENTITY PURCHASERS. If PURCHASER is a partnership,
corporation or
trust, the person executing this Agreement on its behalf
represents
and warrants that:
4
(i) He or she has made due inquiry to determine the
truthfulness
of the representations and warranties made
pursuant to this
Agreement.
(ii) He or she is duly authorized (if the
undersigned is a trust, by the trust
agreement) to make this investment and to
enter into and execute this Agreement on
behalf of such entity.
3. COMPANY REPRESENTATIONS.
a. REPORTING COMPANY STATUS. The COMPANY is a
reporting issuer as defined by Rule 902 of Regulation
S. The COMPANY is in full compliance, to the extent
applicable, with all reporting obligations under
either Section 12(b), 12(g) or 15(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The COMPANY has registered its
common stock pursuant to Section 12 of the Exchange
Act and the common stock trades on NASDAQ.
b. OFFSHORE TRANSACTION. The COMPANY has not offered these
securities
to any person in the United States or to any U.S. person
as that
term is defined in Regulation S.
c. NO DIRECTED SELLING EFFORTS. In regard to this
transaction, the COMPANY has not conducted any
"direct selling efforts" as that term is defined in
Rule 902 of Regulation S nor has the COMPANY
conducted any general solicitation relating to the
offer and sale of the within securities to persons
resident within the United States or elsewhere.
d. TERMS OF DEBENTURES. The COMPANY will issue the
Debentures in
accordance with the terms of the form of Debenture
contained in
ANNEX I attached hereto.
e. LEGALITY. The COMPANY has the requisite corporate power
and
authority to enter into this Agreement and to sell and
deliver the
Debentures; this Agreement and the issuance of the
Debentures have
been duly and validly authorized by all necessary
corporate action
by the COMPANY; this Agreement has been duly and validly
executed
and delivered by and on behalf of the COMPANY, and is a
valid
and binding agreement of the COMPANY, enforceable
against it in
accordance with its terms, except as enforceability may
be limited
by general equitable principles, bankruptcy, insolvency,
fraudulent
conveyance, reorganization, moratorium or other laws
affecting
creditors rights generally.
5
f. NON-CONTRAVENTION. The execution and delivery of
this Agreement and the issuance of the Debentures,
and the consummation of the transactions contemplated
by this Agreement by the COMPANY do not and will not
conflict with or result in a breach by the COMPANY of
any of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation or
by-laws of the COMPANY, or any material indenture,
mortgage, deed of trust, or other material agreement
or instrument to which the COMPANY is a party or by
which it or any of its properties or assets are bound
or (assuming that the representations and warranties
of the PURCHASER in Section 2 hereof, and the
representations and warranties of the distributor to
the COMPANY, are true and correct) any existing
applicable U.S. law, rule, or regulation or any
applicable decrees, judgment or order of any U.S.
court, federal or state regulatory body,
administrative agency or other U.S. governmental body
having jurisdiction over the COMPANY or any of its
properties or assets, the conflict, breach, violation
or default of or under which would have a material
adverse effect on the COMPANY'S business or financial
condition.
g. FILINGS. The COMPANY undertakes and agrees to make all
necessary
filings in connection with the sale of the Debentures as
required
by United States laws and regulations or by the rules of
any
domestic securities exchange or trading market.
h. ABSENCE OF CERTAIN CHANGES. Since June 30, 1995, there
has been no
material adverse development in the assets, liabilities,
business,
properties, operations, financial condition or results
of operations
of the COMPANY, except as disclosed in the SEC filings.
4. EXPIRATION OF RESTRICTED PERIOD.
a. Promptly following the delivery by PURCHASER of the
subscription price in accordance with Section 1(c) hereof, the
COMPANY will
determine whether to accept such subscription and, if so accepted,
will prepare
and issue one or more Debentures registered in such name or names
as specified
by PURCHASER and cause the same to be delivered to the Escrow
Agent. The
COMPANY'S transfer agent will be instructed to issue one or more
certificates
for the Shares without restrictive legend upon conversion of the
Purchaser's
Debentures in accordance with this Agreement, registered in the
name of the
holder of Purchaser's Debentures who converts any Purchaser's
Debentures or its
nominee and in such denominations to be specified by the such
holder in
connection with such conversion. The COMPANY warrants that no
restriction or
instruction (other than these instructions and a "stop transfer"
restriction on
the COMPANY'S Debenture Register relating to the Debentures until
the end of the
forty (40) day Restricted Period applicable under Regulation S)
will be imposed
by the COMPANY or given by the COMPANY to its transfer agent for
the Shares and
that the Purchaser's Debentures and the Shares issuable upon
conversion thereof
shall otherwise be freely
6
transferable on the books and records of the COMPANY as and to the
extent
provided in this Agreement. Nothing in this Section shall affect in
any way
PURCHASER'S obligations and agreement to comply with all applicable
securities
laws and PURCHASER'S representations and warranties set forth
herein.
b. In connection with the exercise of conversion rights
relating to the Debentures, if the Debentures and the Shares have
not been
registered under the 1933 Act prior to such conversion, PURCHASER
or any
subsequent holder of the Debentures shall, in addition to any other
requirement
imposed by the terms of the Debentures, be required to complete,
sign and
furnish to the COMPANY a conversion certificate in the form
attached as Exhibit
1 to ANNEX I hereto. PURCHASER acknowledges that the COMPANY is
under no
obligation to register the Debentures or the Shares issuable upon
conversion
thereof under the 1933 Act.
c. If, solely as a result of the COMPANY'S wrongful refusal
to
honor PURCHASER'S instruction, or wrongful refusal or failure to
transfer or
issue the Shares, PURCHASER incurs any loss (other than any
consequential,
indirect, incidental or special damages), the COMPANY shall
reimburse PURCHASER
for such loss unless PURCHASER shall have breached any of its
representations,
warranties or covenants set forth in this Agreement, or otherwise
taken or
omitted to take actions, which actions or omissions constitute
gross negligence,
bad faith or willful misconduct.
5. EXEMPTION; RELIANCE ON REPRESENTATION. PURCHASER understands
that
the offer and sale of the Debentures is not being registered under
the 1933 Act.
The COMPANY is relying on the rules governing offers and sales made
outside the
United States pursuant to Regulation S. Rules 901 through 904 of
Regulation S
govern this transaction.
6. CLOSING DATE AND ESCROW AGENT. The date of the issuance of
the
Purchaser's Debentures and the sale of the Purchaser's Debentures
as evidenced
by receipt by the COMPANY of PURCHASER'S purchase funds (the
"Closing Date")
shall be no later than ten (10) business days after execution
hereof by all
parties or such other mutually agreed to time. PURCHASER shall,
within five (5)
business days after acceptance and execution of this Agreement by
the COMPANY,
deliver the necessary funds as indicated in Paragraph 1 to the
Escrow Agent.
Purchaser's Debentures will be delivered to the Escrow Agent at the
instructions
of the COMPANY. PURCHASER agrees that the Escrow Agent has no
liability as a
result of any fraudulent or unlawful conduct of any other party,
and agrees to
hold the Escrow Agent harmless.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. PURCHASER
understands
that COMPANY'S obligation to sell the Purchaser's Debentures is
conditioned
upon:
a. The receipt and acceptance by the COMPANY of this
Agreement as
evidenced by execution of this Agreement by the
President or any
Vice President of the COMPANY. The acceptance of funds
by the
7
COMPANY shall be deemed to be constructive acceptance of
this
Agreement;
b. Delivery to the Escrow Agent by PURCHASER of good funds
as payment
in full for the purchase of the Purchaser's Debentures;
and
c. The accuracy on the Closing Date of the
representations and warranties of PURCHASER contained
in this Agreement and the performance by PURCHASER on
or before the Closing Date of all covenants and
agreements of PURCHASER required to be performed on
or before the Closing Date.
8. CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE. The
COMPANY
understands that PURCHASER'S obligation to purchase the
Purchaser's
Debentures is conditioned upon:
a. Acceptance by PURCHASER of an Agreement for the sale of
Purchaser's
Debentures;
b. Delivery of Purchaser's Debentures to Escrow Agent as
herein set
forth;
c. The accuracy on the Closing Date of the representations
and
warranties of the COMPANY contained in this Agreement and
the
performance by the COMPANY on or before the Closing Date
of all
covenants and agreements of the COMPANY required to be
performed on
or before the Closing Date; and
d. Delivery to the Escrow Agent of an opinion of counsel
for the
COMPANY, dated the Closing Date and addressed to
PURCHASER, in the
form attached hereto as ANNEX III.
9. GOVERNING LAW. This Agreement shall be governed by and
construed under
the laws of the State of New York without giving effect to
principles governing
the conflicts of laws. A facsimile transmission of this signed
Agreement shall
be legal and binding on all parties hereto.
10. NOTICES. Any notice required or permitted hereunder shall
be given
in writing (unless otherwise specified herein) and shall be deemed
effectively
given upon personal delivery or three business days after deposit
in the United
States Postal Service, by registered or certified mail with postage
and fees
prepaid, addressed to each of the other parties thereunto entitled
at the
following addresses, or at such other addresses as a party may
designate by ten
days advance written notice to each of the other parties hereto.
8
COMPANY: Xoma Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
ATT: General Counsel
PURCHASER: At the address set forth on the first page of
this Agreement.
ESCROW AGENT: Xxxxxxx & Xxxxxx, Esqs.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
9
SIGNATURE(S) FOR INDIVIDUAL SUBSCRIBER(S)
IN WITNESS WHEREOF, the undersigned represents that the
foregoing
statements are true and correct and that he, she or they have
executed this
Offshore Securities Subscription Agreement this ------ day of
--------------,
1995.
-----------------------------------
--------------------------------
Printed Name Signature
-----------------------------------
--------------------------------
Printed Name Signature
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the
following
statements are true and correct and that it has caused this
Offshore Securities
Subscription Agreement to be duly executed on its behalf this
-------- day of
-------------------, 1995.
-------------------------------------
Printed Name of Subscriber
By: ---------------------------------
(Signature of Authorized Person)
-------------------------------------
Printed Name and Title
Accepted this ---------- day of the month of -------------------,
199---.
XOMA CORPORATION
By: ------------------------------------------
Title: -----------------------------------
10
All correspondence and delivery of certificates and
confirmations
should be addressed to the above named person and sent by the
COMPANY to his
----- business ----- home address (check one).
Capacity of Subscriber (check one):
Individual ----------
Corporation ----------
Partnership ----------
Other ----------
(please specify)
Ownership of Debentures (check one):
Individual ----------
Joint Tenants, with right of survivorship ----------*
Tenants in Common ----------*
Tenants in Entirety ----------*
Community Property ----------*
Country of Citizenship: ----------------------------------------
Country of incorporation or formation:
------------------------------
* If you are purchasing Debentures with only your spouse as
co-owner,
both you and your spouse must sign the signature page. If any
co-owner
is not your spouse, all co-owners must sign the signature
page.
Name of PURCHASER Representative, if any:
------------------------------
Address:
------------------------------
------------------------------
Telephone:
------------------------------
11
FULL NAME AND ADDRESS OF PURCHASER FOR REGISTRATION PURPOSES:
NAME:
----------------------------------------------
ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TEL. NO.
----------------------------------------------
FAX. NO.
----------------------------------------------
CONTACT NAME:
----------------------------------------------
DELIVERY INSTRUCTIONS (IF DIFFERENT FROM REGISTRATION NAME):
NAME:
----------------------------------------------
ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TEL. NO.
----------------------------------------------
FAX. NO.
----------------------------------------------
CONTACT NAME:
----------------------------------------------
SPECIAL
INSTRUCTIONS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
12
