1
EXHIBIT 10.2
CYTEL CORPORATION
PREFERRED STOCK EXCHANGE AGREEMENT
JULY 1, 1999
2
TABLE OF CONTENTS
PAGE
----
1. Agreement To Issue and Exchange Stock........................................1
1.1 Authorization of Shares by Cytel.............................................1
1.2 Authorization of Exchange by ▇▇▇▇▇▇..........................................1
1.3 Issuance and Exchange........................................................1
2. Closing Date; Delivery.......................................................2
2.1 Closing......................................................................2
2.2 Delivery.....................................................................2
3. Representations And Warranties Of Cytel......................................2
3.1 Organization, Good Standing and Qualification................................2
3.2 Authorization; Due Execution.................................................2
3.3 Capitalization...............................................................2
3.4 Valid Issuance of Shares.....................................................3
3.5 Governmental Consents........................................................3
3.6 SEC Filings..................................................................3
3.7 No Conflict..................................................................4
3.8 Absence of Litigation........................................................4
3.9 Confidentiality..............................................................4
3.10 Resale Form S-3 Eligibility..................................................4
3.11 Bylaws.......................................................................5
4. Representations and Warranties of ▇▇▇▇▇▇.....................................5
4.1 Authorization; Due Execution.................................................5
4.2 Purchase Entirely for Own Account............................................5
4.3 Disclosure of Information....................................................5
4.4 Investment Experience........................................................5
4.5 Accredited Investor..........................................................5
4.6 Restricted Securities........................................................5
5. Conditions of ▇▇▇▇▇▇'▇ Obligations...........................................6
5.1 Representations and Warranties...............................................6
5.2 Performance..................................................................6
5.3 Delivery of Shares...........................................................6
5.4 Investor Rights Agreement....................................................6
5.5 Filing of Certificate of Designations........................................6
5.6 Common Stock Exchange Agreements.............................................7
5.7 Proceedings and Documents....................................................7
5.8 Legal Opinion................................................................7
6. Conditions of Cytel's Obligations............................................7
6.1 Representations and Warranties...............................................7
6.2 Performance..................................................................7
i.
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
6.3 Delivery of Shares...........................................................7
6.4 Investor Rights Agreement....................................................7
6.5 Proceedings and Documents....................................................7
7. Miscellaneous................................................................7
7.1 Successors and Assigns.......................................................7
7.2 Governing Law................................................................8
7.3 Counterparts.................................................................8
7.4 Titles and Subtitles.........................................................8
7.5 Assignment...................................................................8
7.6 Delays or Omissions..........................................................8
7.7 Notices......................................................................8
7.8 Finder's Fee.................................................................9
7.9 Expenses.....................................................................9
7.10 Amendments and Waivers.......................................................9
7.11 Severability................................................................10
7.12 Entire Agreement............................................................10
7.13 Further Assurances..........................................................10
7.14 Survival....................................................................10
ii.
4
PREFERRED STOCK EXCHANGE AGREEMENT
This PREFERRED STOCK EXCHANGE AGREEMENT (this "Agreement") is made as of
July 1, 1999 (the "Effective Date"), by and between CYTEL CORPORATION, a
Delaware corporation ("Cytel") and ▇.▇. ▇▇▇▇▇▇ & CO., a Delaware corporation
("▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇ owns all of the outstanding shares of Series B Preferred
Stock, par value $0.001 (the "Epimmune Series B"), and all of the outstanding
shares of Series B-1 Preferred Stock, par value $0.001 (the "Epimmune Series
B-1"), of Epimmune Inc., a Delaware corporation ("Epimmune"); and
WHEREAS, Cytel desires to (a) issue all the authorized shares of its
Series S Preferred Stock, par value $0.01 (the "Cytel Series S"), to ▇▇▇▇▇▇ in
exchange for the Epimmune Series B and (b) issue all the authorized shares of
its Series S-1 Convertible Preferred Stock, par value $0.01 (the "Cytel Series
S-1"), to ▇▇▇▇▇▇ in exchange for the Epimmune Series B-1, and ▇▇▇▇▇▇ desires to
exchange Epimmune Series B and Epimmune Series B-1 for the Cytel Series S and
Cytel Series S-1.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements contained herein, the parties hereto, intending
to be legally bound, do hereby agree as follows:
AGREEMENT
1. AGREEMENT TO ISSUE AND EXCHANGE STOCK.
1.1 AUTHORIZATION OF SHARES BY CYTEL. Cytel has duly
authorized (a) the issuance of the Cytel Series S and Cytel Series S-1 to ▇▇▇▇▇▇
and (b) the issuance of shares of Common Stock of Cytel to be issued upon any
conversion of the Cytel Series S and Cytel Series S-1 (the "Cytel Conversion
Shares"). The Cytel Series S and Cytel Series S-1 (collectively the "Shares")
shall have the rights, preferences, privileges and restrictions set forth in the
Certificate of Designations of Cytel, in the form attached hereto as Exhibit A
(the "Certificate of Designations").
1.2 AUTHORIZATION OF EXCHANGE BY ▇▇▇▇▇▇. On or prior to the
Closing, ▇▇▇▇▇▇ authorized (a) the exchange of its Epimmune Series B for Cytel
Series S and (b) the exchange of its Epimmune Series B-1 for Cytel Series S-1.
1.3 ISSUANCE AND EXCHANGE. Subject to the terms and
conditions hereof, at the Closing, (a) Cytel hereby agrees to (i) issue to
▇▇▇▇▇▇ all 859,666 shares of
5
Cytel Series S in exchange for all of the 1,032,149 shares of Epimmune Series B
owned by ▇▇▇▇▇▇ and (ii) issue to ▇▇▇▇▇▇ all 549,622 shares of Cytel Series S-1
in exchange for all of the 659,898 shares of Epimmune Series B-1 owned by
▇▇▇▇▇▇, and ▇▇▇▇▇▇ agrees to (i) exchange all of its Epimmune Series B for
859,666 shares of Cytel Series S and (ii) exchange all of its Epimmune Series
B-1 for 549,622 shares of Cytel Series S-1.
2. CLOSING DATE; DELIVERY.
2.1 CLOSING. Subject to the terms of Section 6, the closing
of the issuance and exchange of Cytel Series S and Cytel Series S-1 for Epimmune
Series B and Epimmune Series B-1, pursuant to Section 1.3 above (the "Closing")
shall be held on the date hereof. The closing shall take place at the offices of
▇▇▇▇▇▇ Godward LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
2.2 DELIVERY. At the Closing, subject to the terms and
conditions hereof, Cytel shall deliver to ▇▇▇▇▇▇ certificates dated the Closing
Date and representing the number of shares of Cytel Series S and Cytel Series
S-1 to be issued and exchanged at the Closing and ▇▇▇▇▇▇ shall deliver to Cytel
certificates, duly endorsed for transfer to Cytel, representing the Epimmune
Series B and Epimmune Series B-1 owned by ▇▇▇▇▇▇.
3. REPRESENTATIONS AND WARRANTIES OF CYTEL.
Except as set forth in the attached Schedule of Exceptions, Cytel hereby
represents and warrants to ▇▇▇▇▇▇ as of the date of this Agreement as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Cytel is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business. Cytel is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on its business or properties.
3.2 AUTHORIZATION; DUE EXECUTION. Cytel has the requisite
corporate power and authority to enter into this Agreement and the Investor
Rights Agreement substantially in the form attached hereto as Exhibit B (the
"Investor Rights Agreement") (this Agreement and the Investor Rights Agreement
are collectively referred to as the "Agreements") and to perform its obligations
under the terms of the Agreements and, has the requisite corporate power to
issue the Cytel Series S and Cytel Series S-1. All corporate action on the part
of Cytel, its officers and directors necessary for the authorization, execution
and delivery and performance of the Agreements has been taken. No approval or
authorization by the stockholders of Cytel is required for the consummation of
the transactions contemplated by the Agreements. Each of the
2
6
Agreements has been duly authorized, executed and delivered by Cytel, and, upon
due execution and delivery by ▇▇▇▇▇▇, will be a valid and binding agreement of
Cytel, enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by equitable principles.
3.3 CAPITALIZATION. The authorized capital stock of Cytel
consists of 75,000,000 shares of Common Stock, par value $0.01, and 10,000,000
shares of Preferred Stock, par value $0.01, of which 500,000 shares have been
designated Series A Preferred Stock, 659,898 shares have been designated Series
B Preferred Stock, 859,666 shares have been designated Series S Preferred Stock
and 549,622 shares have been designated Series S-1 Preferred Stock. As of the
close of business on the date of this Agreement, there were 4,997,343 shares of
Common Stock, no shares of Series A Preferred Stock and no shares of Series B
Preferred Stock issued and outstanding. Other than, as of the date of this
Agreement, (a) options to purchase 303,261 shares of Common Stock issued, and
529,508 shares of Common Stock available for future option grants, to certain
employees, officers, directors, consultants and advisors of Cytel, (b) 21,584
shares of Common Stock to be issued under Cytel's Employee Stock Purchase Plan,
(c) warrants to purchase 28,571 shares of Common Stock issued to certain
investors, (d) warrants to purchase 235,200 shares of Common Stock issued to
certain executive officers pursuant to their severance agreements and additional
warrants to purchase Common Stock that may be issued pursuant to such severance
agreements, (e) those shares of Common Stock to be issued under Cytel's Rights
Agreement, (f) 1,027,782 shares of Common Stock to be issued to certain
stockholders of Epimmune in exchange for the outstanding shares of Common Stock
of Epimmune, (g) 423,283 shares of Common Stock reserved for issuance upon the
exercise of outstanding options to purchase Common Stock of Epimmune that will
be assumed by Cytel and (h) the rights to purchase equity securities of Cytel
granted to ▇▇▇▇▇▇ under the Agreements, there are no subscriptions, options,
warrants, rights or agreements (contingent or otherwise), including without
limitation, conversion rights, preemptive rights, rights of first refusal or
other rights or agreements, providing for the issuance by Cytel of Common Stock
or other equity securities of Cytel. The Shares to be acquired by ▇▇▇▇▇▇ will
constitute as of the Closing (a) approximately 19.0% of the outstanding shares
of Common Stock of Cytel on an as-converted, otherwise undiluted basis, and (b)
approximately 15.7% of the outstanding Common Stock of Cytel on an as-converted,
fully diluted basis, assuming exercise of all outstanding rights, warrants and
options to acquire Common Stock.
3.4 VALID ISSUANCE OF SHARES. The Shares when issued and
delivered in accordance with the terms hereof for the consideration set forth
herein, will be duly and validly authorized and issued, fully paid and
nonassessable, free of all taxes, liens and
3
7
charges, and, based in part upon the representations of ▇▇▇▇▇▇ in this
Agreement, will be issued in compliance with all applicable federal and state
securities laws.
3.5 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of Cytel is required in connection with the consummation of the
transactions contemplated by the Agreements, except for notices required or
permitted to be filed with certain state and federal securities commissions
after the Closing, which notices will be filed on a timely basis.
3.6 SEC FILINGS. Cytel has timely filed all reports,
registration statements and other documents required to be filed by it (the "SEC
Filings") under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "Exchange Act"). The SEC Filings were prepared in accordance and
complied in all material respects with the applicable requirements of the
Securities Act or the Exchange Act, as the case may be. None of such forms,
reports and statements, including, without limitation, any financial statements,
exhibits and schedules included therein and documents incorporated therein by
reference, at the time filed, declared effective or mailed, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Except to the extent information contained in any of the SEC Filings
has been revised, corrected or superseded by a later filing of any such form,
report or document, none of the SEC Filings currently contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Except as
disclosed in the SEC Filings, since March 31, 1999, (i) there has been no
material adverse change in the condition, financial or otherwise, of Cytel and
its subsidiaries considered as a whole, or in the business, operations, or
prospects of Cytel and its subsidiaries considered as a whole, whether or not
arising in the ordinary course of business, and (ii) there has been no dividend
or distribution of any kind declared, paid or made by Cytel on any class of its
capital stock.
3.7 NO CONFLICT. The execution, delivery and performance by
Cytel of the Agreements do not and will not violate any provision of Cytel's
Certificate of Incorporation or By-laws, any provision of any order, writ,
judgment, injunction, decree, determination or award to which Cytel is a party
or by which it is bound, or to Cytel's knowledge, any law, rule or regulation
(including, without limitation, the rules and
4
8
regulations of the Securities and Exchange Commission (the "SEC") or any
regulatory commission of any jurisdiction) currently in effect having
applicability to Cytel.
3.8 ABSENCE OF LITIGATION. Except as disclosed in the SEC
Filings, there is no action, suit, proceeding or investigation (including any
such matter related to Cytel's intellectual property) pending or currently
threatened against Cytel or its properties before any court or governmental
agency, which would, singly or in the aggregate, have a material adverse effect
on Cytel's business, operations or assets, taken as a whole (nor, to the best of
Cytel's knowledge, is there any basis therefor). There is no action, suit,
proceeding or investigation which Cytel currently intends to initiate.
3.9 CONFIDENTIALITY. Cytel hereby represents, warrants and
covenants that it shall maintain in confidence, and shall not use or disclose
without prior written consent of ▇▇▇▇▇▇, the terms of this Agreement and any
information identified in writing as confidential that is furnished to it by
▇▇▇▇▇▇ in connection with this Agreement. This obligation of confidentiality
shall not apply, however, to any information (a) in the public domain through no
unauthorized act or failure to act by Cytel, (b) lawfully disclosed to Cytel by
a third party who possessed such information without any obligation of
confidentiality, (c) lawfully developed by Cytel independent of any disclosure
by Cytel as supported by ▇▇▇▇▇▇'▇ written records, or (d) required to be
disclosed pursuant to applicable law, regulation or order or requirement of a
court, administrative agency or other government body (including the securities
laws of any applicable jurisdiction). Cytel further covenants that it shall
return to ▇▇▇▇▇▇ all tangible materials containing such information upon request
by ▇▇▇▇▇▇. Cytel and ▇▇▇▇▇▇ acknowledge and agree that Cytel will be required to
disclose the issuance of the Shares contemplated by this Agreement pursuant to
applicable securities laws and regulations, including the filing of the
Agreements as required.
3.10 RESALE FORM S-3 ELIGIBILITY. Cytel is, and as of the
consummation of the transactions contemplated by the Agreements will be,
eligible to register Common Stock for resale on Form S-3 under the Securities
Act (or any form that the SEC deems to be a replacement therefor).
3.11 BYLAWS. The Bylaws of Cytel, in the form attached hereto
as Exhibit C, have been duly authorized and adopted by all necessary action on
the part of Cytel and its officers, directors and shareholders and are true and
complete and in full force and effect.
4. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇.
▇▇▇▇▇▇ hereby makes the following representations and warranties to
Cytel as of the date hereof and the Closing:
5
9
4.1 AUTHORIZATION; DUE EXECUTION. ▇▇▇▇▇▇ has the requisite
corporate power and authority to enter into the Agreements and to perform its
obligations under the terms of the Agreements and, has the requisite corporate
power to exchange the Epimmune Series B and Epimmune Series B-1 for the Shares.
All corporate action on the part of ▇▇▇▇▇▇, its officers, directors and
stockholder necessary for the authorization, execution and delivery and
performance of the Agreements has been taken. Each of the Agreements has been
duly authorized, executed and delivered by ▇▇▇▇▇▇, and, upon due execution and
delivery by Cytel, will be a valid and binding agreement of ▇▇▇▇▇▇, enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by equitable principles.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares to be
purchased by ▇▇▇▇▇▇ (including the underlying Cytel Conversion Shares) will be
acquired for investment for ▇▇▇▇▇▇'▇ own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and ▇▇▇▇▇▇
has no present intention of selling, granting any participation in, or otherwise
distributing the same (subject to the disposition of ▇▇▇▇▇▇'▇ property being at
all times within its control). By executing this Agreement, ▇▇▇▇▇▇ further
represents that ▇▇▇▇▇▇ does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the Shares (or the
underlying Cytel Conversion Shares).
4.3 DISCLOSURE OF INFORMATION. ▇▇▇▇▇▇ has received all the
information that it has requested and that it considers necessary or appropriate
for deciding whether to enter into this Agreement and to acquire the Shares.
▇▇▇▇▇▇ further represents that it has had an opportunity to ask questions and
receive answers from Cytel regarding the terms and conditions of the offering of
the Shares.
4.4 INVESTMENT EXPERIENCE. ▇▇▇▇▇▇ is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Shares.
▇▇▇▇▇▇ also represents it has not been organized solely for the purpose of
acquiring the Shares.
4.5 ACCREDITED INVESTOR. ▇▇▇▇▇▇ is an "accredited investor"
as such term is defined in Rule 501 of the General Rules and Regulations
prescribed by the SEC pursuant to the Securities Act of 1933, as amended (the
"Securities Act").
4.6 RESTRICTED SECURITIES. ▇▇▇▇▇▇ understands that (a) the
Shares (including the underlying Cytel Conversion Shares) have not been
registered under the
6
10
Securities Act by reason of a specific exemption therefrom, that such securities
must be held by it indefinitely and that ▇▇▇▇▇▇ must, therefore, bear the
economic risk of such investment indefinitely, unless in each case a subsequent
disposition thereof is registered under the Securities Act or is exempt from
such registration; (b) each certificate representing the Shares (including the
underlying Cytel Conversion Shares) will be endorsed with the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
and (c) Cytel will instruct any transfer agent not to register the transfer of
the Shares or the Cytel Conversion Shares (or any portion thereof) unless the
conditions specified in the foregoing legends are satisfied, until such time as
a transfer is made, pursuant to the terms of this Agreement, and in compliance
with Rule 144 or pursuant to a registration statement or, if the opinion of
counsel referred to above is to the further effect that such legend is not
required any longer in order to establish or enforce compliance with any
provisions of the Securities Act or this Agreement.
5. CONDITIONS OF ▇▇▇▇▇▇'▇ OBLIGATIONS.
The obligations of ▇▇▇▇▇▇ under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, any of
which may be waived by the Investor (and which conditions shall be deemed to
have been fulfilled or waived upon the occurrence of the Closing):
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Cytel contained in Section 3 shall be true and correct in all
material respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of said date.
5.2 PERFORMANCE. Cytel shall have performed and complied
with all agreements, obligations and conditions in this Agreement, if any, that
are required to be performed or complied with by it on or before the Closing.
5.3 DELIVERY OF SHARES. Cytel shall have tendered delivery
of the Shares specified in Section 1 at the Closing.
5.4 INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement
in substantially the form attached hereto as Exhibit B shall have been executed
and delivered by Cytel and Epimmune.
7
11
5.5 FILING OF CERTIFICATE OF DESIGNATIONS. The Certificate
of Designations in substantially the form attached hereto as Exhibit A which has
been filed with the Secretary of State of Delaware shall not have been amended.
5.6 COMMON STOCK EXCHANGE AGREEMENTS. The Common Stock
Exchange Agreements to be entered between Cytel and each of the holders of
Common Stock of Epimmune shall have been executed and delivered by the parties
thereto so that the Closing thereunder occurs simultaneously with the Closing.
5.7 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to ▇▇▇▇▇▇, and it shall have received all such counterpart original
and certified or other copies of such documents as it may reasonably request.
5.8 LEGAL OPINION. An opinion of counsel to Cytel in the
form attached hereto as Exhibit D shall have been delivered to ▇▇▇▇▇▇ at the
Closing.
6. CONDITIONS OF CYTEL'S OBLIGATIONS.
The obligations of Cytel under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by
▇▇▇▇▇▇, any of which may be waived by Cytel (and which conditions shall be
deemed to have been fulfilled or waived upon the occurrence of the Closing):
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of ▇▇▇▇▇▇ contained in Section 4 hereof shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of said date.
6.2 PERFORMANCE. ▇▇▇▇▇▇ shall have performed and complied
with all agreements, obligations and conditions in this Agreement, if any, that
are required to be performed or complied with by it on or before the Closing.
6.3 DELIVERY OF SHARES. ▇▇▇▇▇▇ shall have tendered delivery
of the Epimmune Series B and Epimmune Series B-1 specified in Section 1 at the
Closing.
6.4 INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement
in substantially the form attached hereto as Exhibit B shall have been executed
and delivered by ▇▇▇▇▇▇.
6.5 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents
8
12
incident thereto shall be reasonably satisfactory in form and substance to
Cytel, and it shall have received all such counterpart original and certified or
other copies of such documents as it may reasonably request.
7. MISCELLANEOUS.
7.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
heirs, personal representatives, successors and assigns of the parties. Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective heirs, personal
representatives, successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California, as applied to contracts
executed and performed entirely within the State of California, without regard
to conflicts of laws rules.
7.3 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.5 ASSIGNMENT. This Agreement may not be assigned or
otherwise transferred, nor, except as expressly provided hereunder, may any
right or obligations hereunder be assigned or transferred, by either party
without the written consent of the other party; provided, however, that either
Cytel or ▇▇▇▇▇▇ may, without such consent, assign this Agreement and its rights
and obligations hereunder (a) in connection with the transfer or sale of all or
substantially all of its business, if such assets include substantially all of
the assets relating to its performance of its respective obligations hereunder
or (b) in the event of its merger or consolidation with another company at any
time during the term of this Agreement. Any purported assignment in violation of
the preceding sentence shall be void. Any other permitted assignee shall also
assume all obligations of its assignor under this Agreement.
7.6 DELAYS OR OMISSIONS. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach, default or noncompliance by another party under the Agreements shall
impair any such right, power or remedy, nor shall it be construed to be a waiver
of any such breach, default or
9
13
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character of any breach,
default or noncompliance under the Agreements or any waiver on such party's part
of any provisions or conditions of the Agreements must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under the Agreements by law, or otherwise afforded to any
party, shall be cumulative and not alternative.
7.7 NOTICES. Any notice or report required or permitted to
be given or made under this Agreement by one of the parties hereto to the other
shall be in writing, delivered personally or by facsimile (and promptly
confirmed by personal delivery or courier) or courier, postage prepaid,
addressed to such other party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the addressor
and shall be effective upon receipt by the addressee.
Cytel: Cytel Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Cooley Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇: ▇.▇. ▇▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Global Business Development
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇.▇. ▇▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10
14
7.8 FINDER'S FEE. Each party represents that it neither is
nor will be obligated for any finders' fee or commission in connection with this
transaction. ▇▇▇▇▇▇ agrees to indemnify and hold harmless Cytel from any
liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which ▇▇▇▇▇▇ or any of its officers, partners, employees or
representatives is responsible. Cytel agrees to indemnify and hold harmless
▇▇▇▇▇▇ from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which Cytel or any of its officers, employees or
representatives is responsible.
7.9 EXPENSES. Irrespective of whether the Closing is
effected, each party shall bear its own costs with respect to the negotiation,
execution, delivery and performance of this Agreement.
7.10 AMENDMENTS AND WAIVERS. Except as specified in the
preambles of Sections 5 and 6, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of Cytel and ▇▇▇▇▇▇.
7.11 SEVERABILITY. If one or more provisions of this
Agreement is held to be unenforceable under applicable law, such provision shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
7.12 ENTIRE AGREEMENT. The Agreements constitute the entire
agreement between the parties hereto with regard to the subject matter hereof
and thereof and supersede all prior or contemporaneous agreements, negotiations,
understandings and representations, whether written or oral.
7.13 FURTHER ASSURANCES. Each party hereto agrees to do such
further actions and things, and to execute and deliver such additional
agreements and instruments, as either party may reasonably request of the other
to effectuate the transactions contemplated by this Agreement.
7.14 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by either party and
the closing of the transactions contemplated hereby.
11
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CYTEL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇, M.D.
--------------------------------------
Title Acting President
-----------------------------------
▇.▇. ▇▇▇▇▇▇ & CO.
By /s/ ▇. ▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title Chief Executive Officer
-----------------------------------
