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SUBSCRIPTION AGREEMENT
dated as of February 8, 2000
by and among
XOMA LTD.
and
THE BUYERS NAMED HEREIN
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TABLE OF CONTENTS
Page
1. DEFINITIONS..........................................................1
2. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE...............................3
(a) Subscription.........................................................3
(b) Form of Payment......................................................3
(c) Method of Payment....................................................3
3. BUYERS' REPRESENTATIONS, WARRANTIES, ETC.............................3
(a) Purchase for Investment..............................................4
(b) Accredited Investor..................................................4
(c) Reoffers and Resales.................................................4
(d) Company Reliance.....................................................4
(e) Information Provided.................................................4
(f) Absence of Approvals.................................................4
(g) Subscription Agreement...............................................4
(h) Approvals............................................................5
(i) Absence of Brokers, Finders, Etc.....................................5
4. COMPANY REPRESENTATIONS, WARRANTIES, ETC.............................5
(a) Organization and Authority...........................................5
(b) Capitalization.......................................................6
(c) Concerning the Shares and the Common Shares..........................6
(d) Subscription Agreement; Registration Rights Agreement................6
(e) Non-contravention....................................................7
(f) Approvals............................................................7
(g) Information Provided.................................................7
(h) Absence of Certain Changes...........................................8
(i) Absence of Certain Proceedings.......................................8
(j) SEC Filings..........................................................8
(k) Absence of Brokers, Finders, Etc.....................................8
(l) No Solicitation......................................................9
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Page
5. CERTAIN COVENANTS AND ACKNOWLEDGMENTS................................9
(a) Transfer Restrictions................................................9
(b) Restrictive Legend..................................................10
(c) Form D 10
(d) Authorization for Trading...........................................10
(e) Use of Proceeds.....................................................10
(f) Blue Sky Laws.......................................................11
(g) Expenses 11
6. CLOSING DATE........................................................11
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL AND ISSUE............11
8. CONDITIONS TO THE BUYERS' OBLIGATIONS TO PURCHASE...................12
9. MISCELLANEOUS.......................................................13
(a) Governing Law.......................................................13
(b) Counterparts........................................................13
(c) Headings, etc.......................................................13
(d) Severability........................................................13
(e) Amendments..........................................................13
(f) Waivers 13
(g) Notices 13
(h) Assignment..........................................................14
(i) Survival of Representations and Warranties..........................14
(j) Entire Agreement....................................................14
(k) Further Assurances..................................................14
(l) Public Statements, Press Releases, Etc..............................14
(m) Rights of Certain Canadian Purchasers...............................14
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Schedule A Buyers
ANNEXES
Annex I Form of Registration Rights Agreement
Annex II Form of Opinion of Xxxxxx Xxxxxx & Xxxxxxx to be Delivered on Closing
Date
Annex III Form of Opinion of General Counsel of the Company to be Delivered on
Closing Date
Annex IV Form of Opinion of Xxxxxxx Xxxx & Xxxxxxx to be Delivered on Closing
Date
Annex V Form of Opinion of Xxxxx Xxxx LLP to be Delivered on Closing Date
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT, dated as of February 8, 2000 (this
"Agreement"), by and among XOMA LTD., a Bermuda company (the "Company"), with an
office located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and the
buyers listed on Schedule A hereto (each a "Buyer" and collectively the
"Buyers").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, upon the terms and subject to the conditions of this Agreement,
the Buyers wish to purchase Common Shares (such capitalized term and all other
capitalized terms used in this Agreement having the respective meanings provided
in Section 1) and the Company wishes to sell Common Shares to the Buyers as
provided in this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the terms "Agreement," "Buyers" and
"Company" shall have the respective meanings assigned to such terms in the
introductory paragraph of this Agreement; provided, however, that, when
referring to a time or period before January 1, 1999, or when the context so
requires, the term "Company" shall refer to Xoma Corporation, a Delaware
corporation and the predecessor of XOMA Ltd.
(b) All the agreements or instruments herein defined shall mean such
agreements or instruments as the same may from time to time be supplemented or
amended or the terms thereof waived or modified to the extent permitted by, and
in accordance with, the terms thereof and of this Agreement.
(c) The following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Action" means an action, suit, proceeding, inquiry or investigation before
or by any court, public board or body, arbitrator or governmental agency.
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the subject Person; for purposes
of this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Closing Date" means the date and time of the issuance and sale of the
Shares.
"Common Shares" means the Common Shares, U.S. $.0005 par value, together
with the related Preference Share Purchase Rights.
"Permitted Transferee" means any Person (1) who is an "accredited investor"
as defined in Regulation D under the Securities Act ("Regulation D") and who is
designated a non-resident of Bermuda for Bermuda Exchange Control purposes, (2)
who is to be assigned rights under this Agreement and the Registration Rights
Agreement and (3) who is either (A) an Affiliate of the beneficial owner of the
Shares to be transferred or (B) a Person as to whom the Company shall have
consented to such transfer and assignment, such consent not to be unreasonably
withheld (it being understood that a proposed assignment by a Buyer to a
competitor or potential competitor of the Company or a Person which the Company
determines in good faith is accumulating or is likely to accumulate ownership of
Common Shares for hostile or unfriendly purposes may constitute a basis for
withholding such consent); provided, that no such consent shall be required in
the event of any transfer of Shares in compliance with Rule 144 under the
Securities Act.
"Person" means an individual, partnership, corporation, limited liability
company, trust, incorporated organization, unincorporated association or joint
stock company.
"Preference Share Purchase Rights" means the Preference Share Purchase
Rights issued or issuable pursuant to the Amended and Restated Shareholder
Rights Agreement, dated as of October 27, 1993 and amended and restated as of
December 31, 1998, by and between the Company and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent.
"Purchase Price" means $5.00 per share.
"Registration Rights Agreement" means the Registration Rights Agreement to
be entered into between the Company and the Buyers in the form attached hereto
as Annex I.
"SEC Reports" means (1) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 (the "1998 10-K"), (2) the Company's
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, June 30
and September 30, 1999, (3) the Company's definitive proxy statement for its
special meeting of stockholders dated November 30, 1998, (4) the Company's
Current Reports on Form 8-K dated January 6, 1999, January 29, 1999 (as amended
by Amendment Xx. 0 xxxxxxx xx Xxxx 0-X/X), Xxxx 0, 0000 (xx amended by Amendment
No. 1 thereto on Form 8-K/A), July 26, 1999, September 27, 1999 and January 25,
2000 (as amended by Amendment No. 1 thereto on Form 8-K/A) and (5) the Company's
definitive proxy statement for its 1999 Annual Meeting of Shareholders, in each
case as filed with the Securities and Exchange Commission ("SEC").
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"Shares" means 6,145,000 Common Shares.
"Trading Day" means a day on whichever of (w) the national securities
exchange, (x) the Nasdaq National Market, (y) the Nasdaq SmallCap Market or (z)
such other securities market, which at the time constitutes the principal
securities market for the Common Shares, is open for general trading of
securities; provided, however, that if there shall be no principal securities
market for the Common Shares, "Trading Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in The City of New York are
authorized or required by law or executive order to remain closed.
2. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE.
(a) Subscription. In consideration of the representations, warranties,
covenants and agreements contained in this Agreement, each of the Buyers hereby
agrees to purchase from the Company the number of Shares set forth opposite such
Buyer's name on Schedule A hereto, and the Company hereby agrees to issue and
sell to each of the Buyers the number of Shares set forth opposite such Buyer's
name on Schedule A hereto at the Purchase Price per share, upon the terms and
conditions of this Agreement.
(b) Form of Payment. On the Closing Date, each of the Buyers shall pay an
amount equal to the Purchase Price multiplied by the number of Shares set forth
opposite such Buyer's name on Schedule A hereto by delivering immediately
available funds in United States Dollars to the Company in exchange for delivery
by the Company of a certificate for the number of Shares set forth opposite such
Buyer's name on Schedule A hereto, issued in the name of such Buyer.
(c) Method of Payment. Payment for the Shares shall be made by wire
transfer of funds to:
Xxxxx Fargo Bank, NA
ABA #: 000000000
WFB Acct#: 4296 914674
Payable To: XOMA Ltd.
3. BUYERS' REPRESENTATIONS, WARRANTIES, ETC.
Each of the Buyers represents, warrants and covenants to the Company,
severally and not jointly, as follows:
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(a) Purchase for Investment. Such Buyer is purchasing the Shares for its
own account for investment only and not with a view towards the public sale or
distribution thereof;
(b) Accredited Investor. Such Buyer is an "accredited investor" as that
term is defined in Rule 501 of the General Rules and Regulations under the
Securities Act of 1933 (the "1933 Act") by reason of Rule 501(a);
(c) Reoffers and Resales. All subsequent offers and sales of the Shares by
such Buyer shall be made pursuant to registration of the Shares under the 1933
Act or pursuant to an exemption from registration;
(d) Company Reliance. Such Buyer understands that the Shares are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and each Buyer's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of each Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of such Buyer to acquire the
Shares;
(e) Information Provided. Such Buyer and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Shares which
have been requested by such Buyer; such Buyer and its advisors, if any, have
been afforded the opportunity to ask questions of the Company and have received
satisfactory answers to any such inquiries; without limiting the generality of
the foregoing, such Buyer has had the opportunity to obtain and to review the
SEC Reports; and such Buyer understands that its investment in the Shares
involves a high degree of risk;
(f) Absence of Approvals. Such Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Shares;
(g) Subscription Agreement. Such Buyer has all requisite power and
authority, corporate or otherwise, to execute, deliver and perform its
obligations under this Agreement and the other agreements executed or to be
executed by such Buyer in connection herewith and to consummate the transactions
contemplated hereby and thereby; this Agreement has been duly and validly
authorized, executed and delivered on behalf of such Buyer and is a valid and
binding agreement of such Buyer enforceable in accordance with its terms,
subject as to enforce-
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ability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally;
(h) Approvals. If such Buyer's principal executive offices are located
outside the United States, the purchase of the Shares by such Buyer pursuant to
this Agreement does not require any governmental or regulatory approval, consent
or filing on the part of such Buyer or, to the knowledge of such Buyer, on the
part of the Company, under the securities or similar laws of the jurisdiction in
which such Buyer's principal executive offices are located; and
(i) Absence of Brokers, Finders, Etc. No broker, finder or similar Person
is entitled to any commission, fee or other compensation by reason of the
transactions contemplated by this Agreement other than Xxxxxxx and S.
Bleichroeder, Inc. and Sutro & Co. Incorporated (together the "Placement
Agents"), and any such Buyer who enters into such arrangement with such Person
shall pay, and indemnify and hold harmless the Company from, any claim made
against the Company by any other Persons not referred to in such disclosure for
any such commission, fee or other compensation which is ultimately determined by
a final nonappealable decision of a court of competent jurisdiction to be the
obligation of such Buyer and not of the Company.
4. COMPANY REPRESENTATIONS, WARRANTIES, ETC.
The Company represents, warrants and covenants to each Buyer that:
(a) Organization and Authority. The Company is a company duly organized and
validly existing under the laws of Bermuda, and has all requisite power and
authority to (i) own, lease and operate its properties and to carry on its
business as described in the SEC Reports, and (ii) to execute, deliver and
perform its obligations under this Agreement, the Registration Rights Agreement
and the other agreements to be executed and delivered by the Company in
connection herewith, and to consummate the transactions contemplated hereby and
thereby. The Company is duly qualified to do business as a foreign corporation
and is in good standing in all jurisdictions wherein such qualification is
necessary and where failure so to qualify could reasonably be expected to have a
material adverse effect on the business, properties, operations, condition
(financial or other) or results of operations of the Company. The Company has no
subsidiaries or equity investment in any Person other than XOMA Limited, a
United Kingdom company, XOMA (US) LLC, a Delaware limited liability company,
XOMA (Bermuda) Ltd., a Bermuda company, XOMA Technology Ltd., a Bermuda company
and XOMA Ireland Limited, an Irish company, all of which are wholly-owned by the
Company.
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(b) Capitalization. The authorized capital stock of the Company consists of
(a) 135,000,000 Common Shares of which 58,336,056 Common Shares were outstanding
on February 4, 2000, all of which are fully paid and nonassessable; and (b)
1,000,000 preference shares, U.S. $.05 par value, of which as of February 4,
2000 (i) 650,000 shares are designated Series A Preference Shares, none of which
are outstanding, and (ii) 7,500 shares are designated Series B Preference
Shares, none of which are outstanding. On the Closing Date (x) there will be no
material increase from February 4, 2000 in the number of Common Shares
outstanding and (y) no issuances of preference shares will have occurred since
February 4, 2000. As of February 4, 2000, the Company had outstanding options,
warrants and similar rights entitling the holders to purchase 6,169,927 Common
Shares. On the Closing Date, the Company will issue warrants to issue 250,000
Common Shares to the Placement Agents. Other than as set forth in the preceding
two sentences, the Company does not have outstanding any securities (or
obligations to issue any such securities) convertible into, exchangeable for or
otherwise entitling the holders thereof to acquire Common Shares, except as
disclosed in the SEC Reports. The Company has duly reserved from its authorized
and unissued Common Shares the full number of shares required for (a) all
options, warrants, convertible securities and other rights to acquire Common
Shares which are outstanding and (b) all Common Shares and options and other
rights to acquire Common Shares which may be issued or granted under the stock
option and similar plans which have been adopted by the Company. No holder of
any of the Company's securities has any rights, "demand," "piggy-back" or
otherwise, to have such securities registered by reason of the intention to
file, filing or effectiveness of the Registration Statement required to be filed
by the Company pursuant to Section 2 of the Registration Rights Agreement (the
"Registration Statement").
(c) Concerning the Shares and the Common Shares. The Shares have been duly
authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and non-assessable. There are no
preemptive or similar rights of any shareholder of the Company or any other
Person to acquire any of the Shares. The Company has duly reserved a sufficient
number of Common Shares for issuance of the Shares, and such shares shall remain
so reserved. The Common Shares are listed for trading on the Nasdaq National
Market.
(d) Subscription Agreement; Registration Rights Agreement. This Agreement,
the Registration Rights Agreement and the other agreements and instruments
contemplated hereby and thereby have been duly and validly authorized by the
Company, this Agreement has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery hereof and thereof by the
Buyers, this Agreement is, and the Registration Rights Agreement and such other
agreements, when executed and delivered by the Company, will be, valid and
binding obligations of the Company en-
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forceable against it in accordance with their respective terms, subject as to
enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally and except that rights to indemnity and contribution may be limited by
public policy.
(e) Non-contravention. The execution and delivery by the Company of this
Agreement and the other documents contemplated by this Agreement and the
consummation by the Company of the issuance of the Shares as contemplated by
this Agreement, and the other transactions contemplated by this Agreement and
the Registration Rights Agreement do not and will not, with or without the
giving of notice or the lapse of time, or both (i) result in any violation of
any terms of the Memorandum of Continuance or Bye-Laws of the Company, (ii)
conflict with or result in a breach by the Company of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company pursuant to, any indenture, mortgage, deed
of trust or other material agreement or instrument to which the Company is a
party or by which the Company or any of its properties or assets is bound or
affected, or (iii) (assuming the representations and warranties of the Buyers in
Section 3 hereof and the Placement Agents in their representation letters dated
the date hereof are true and accurate) violate or contravene any applicable law,
rule or regulation or any applicable decree, judgment or order of any court,
federal, state or other regulatory body, administrative agency or other
governmental body of the United States or Bermuda having jurisdiction over the
Company or any of its properties or assets, which conflict, breach, violation or
default could reasonably be expected to have a material adverse effect on the
validity or enforceability of this Agreement, the Registration Rights Agreement
or the issuance of the Shares or the transactions contemplated by this
Agreement.
(f) Approvals. Assuming the representations and warranties of the Buyers in
Section 3 hereof and of the Placement Agents in their representation letters
dated the date hereof are true and accurate, no authorization, approval or
consent of, or filing with, any court, governmental body or regulatory agency is
required to be obtained or made by the Company for (1) the execution, delivery
and performance by the Company of this Agreement, the Registration Rights
Agreement and the other agreements and instruments contemplated hereby and
thereby and (2) the issuance and sale of the Shares as contemplated by this
Agreement, other than (w) the listing of the Shares on the Nasdaq National
Market, (x) registration of the resale of the Shares under the 1933 Act as
contemplated by the Registration Rights Agreement, (y) as may be required under
applicable state securities or "blue sky" laws and (z) filing of one or more
Forms D with respect to the Shares as required under Regulation D.
(g) Information Provided. The written information provided by or on behalf
of the Company to the Buyers in connection with the transactions contemplated by
this Agreement, including, without limitation, the written information referred
to in Section 3(e) of this Agreement, does not con-
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tain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, it being understood
that, for purposes of this Section 4(g), any statement contained in such
information shall be deemed to be modified or superseded for purposes of this
Section 4(g) to the extent that a statement in any document included in such
information which was prepared or filed with the SEC on a later date modifies or
replaces such statement, whether or not such later prepared or filed statement
so states. The Company has not filed any reports with the SEC under the
Securities Exchange Act of 1934 (the "1934 Act") since December 31, 1998 other
than the SEC Reports.
(h) Absence of Certain Changes. Except as disclosed in the SEC Reports,
since September 30, 1999, there has been no material adverse change in the
business, properties, operations, condition (financial or other) or results of
operations of the Company. Except as and to the extent disclosed, reflected or
reserved against in the financial statements of the Company and the notes
thereto included in the SEC Reports, to the knowledge of the Company, the
Company has no material liabilities, debts or obligations, whether accrued,
absolute, contingent or otherwise. Subsequent to September 30, 1999, to the
knowledge of the Company, the Company has not incurred any liabilities, debts or
obligations of any nature whatsoever which are individually or in the aggregate
material to the Company, other than those incurred in the ordinary course of its
business or disclosed in the SEC Reports.
(i) Absence of Certain Proceedings. Except as described in the SEC Reports
and except for applications and proceedings relating to regulatory approval of
new drugs or the granting of patents, there is no Action pending or, to the
knowledge of the Company, threatened against the Company, in any such case
wherein an unfavorable decision, ruling or finding would have a material adverse
effect on the business, properties, condition (financial or other) or results of
operations of the Company or the transactions contemplated by this Agreement or
any of the documents contemplated hereby or which would adversely affect the
validity or enforceability of, or the authority or ability of the Company to
perform its obligations under, this Agreement or any of such other documents.
(j) SEC Filings. The Company has timely filed all required forms, reports
and other documents required to be filed with the SEC under the 1934 Act since
January 1, 1999. All of such forms, reports and other documents complied as to
form, when filed, in all material respects, with all applicable requirements of
the 1934 Act.
(k) Absence of Brokers, Finders, Etc. No broker, finder or similar Person
is entitled to any commission, fee or other compensation by reason of the
transactions contemplated by this Agreement other than the Placement Agents, and
the Company shall pay, and indemnify and hold harmless the Buyers from, any
claim made against the Buyers by the entity or entities re-
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ferred to in such disclosure and any other Person for any such commission, fee
or other compensation.
(l) No Solicitation. No form of general solicitation or general advertising
was used by the Company or, to its knowledge, any other Person acting on behalf
of the Company, in respect of or in connection with the offer and sale of the
Shares. Neither the Company nor, to its knowledge, any Person acting on behalf
of the Company has, either directly or indirectly, sold or offered for sale to
any Person any of the Shares, and neither the Company nor any person authorized
to act on its behalf will sell or offer for sale any Common Shares or solicit
any offers to buy any Common Shares, so as thereby to cause the issuance or sale
of any of the Shares to be in violation of Section 5 of the 1933 Act.
5. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
(a) Transfer Restrictions. The Company and the Buyers acknowledge and agree
that (1) except as provided in the Registration Rights Agreement with respect to
the resale of the Shares, the Shares have not been and are not being registered
for resale under the 1933 Act, and the Shares may not be transferred unless (A)
subsequently registered for resale thereunder or (B) (i) transferred to a
Permitted Transferee and (ii) the Buyer desiring such transfer shall have
delivered to the Company (x) in the event of any resale of the Shares to be made
in reliance on Rule 144 promulgated under the 1933 Act, documentation (including
a transferor's representation letter and a broker's representation letter)
reasonably satisfactory in form, scope and substance to the Company
substantiating the reliance on Rule 144 (which documentation may relate to all
Shares covered by a filed Form 144); provided, however, that in the event that
the same Buyer desires to make more than two filings on Form 144 (or revise the
number of shares on a previously filed Form 144 more than one time) in any one
fiscal quarter, such Buyer shall be required to deliver an opinion complying
with the following clause (y); or (y) in the event of any other resale of
Shares, an opinion, reasonably satisfactory in form, scope and substance to the
Company, of counsel reasonably satisfactory to the Company (which shall include,
but not be limited to, counsel who represented the Buyers or the Placement
Agents in connection with the negotiation and execution of this Agreement) to
the effect that the Shares to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; (2) any resale of the Shares
made in reliance on Rule 144 promulgated under the 1933 Act may be made only in
accordance with the terms of Rule 144 and further, if Rule 144 is not
applicable, any such resale of Shares under circumstances in which the seller,
or the person through whom the sale is made, may be deemed to be an underwriter,
as that term is used in the 1933 Act, may require compliance with some other
exemption under the 1933 Act or the rules and regulations of the SEC thereunder;
and (3) neither the Company nor any other Person is under any obligation to
register the Shares (other than registration of the resale
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of the Shares pursuant to the Registration Rights Agreement) under the 1933 Act
or to comply with the terms and conditions of any exemption thereunder (other
than pursuant to Section 5(d) hereof and pursuant to the Registration Rights
Agreement).
(b) Restrictive Legend.
(1) The Buyers acknowledge and agree that until such time as the Shares
have been registered for resale under the 1933 Act as contemplated by the
Registration Rights Agreement, the certificates for the Shares may bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for the Shares):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
acquired for investment and may not be resold, transferred or assigned
in the absence of an effective registration statement for the
securities under the Securities Act of 1933, as amended, or, in the
event of any resale in reliance on Rule 144 under the Securities Act of
1933, as amended, certain documentation showing compliance with such
rule or, in certain events, an opinion of counsel that registration is
not required under said Act.
(2) Once the Registration Statement has been declared effective, thereafter
(i) upon request of a Buyer the Company will promptly (but in no event later
than three Trading Days after receipt of such Buyer's legended certificates by
the Company) substitute certificates without restrictive legend for certificates
for any Shares issued prior to the date such Registration Statement is declared
effective by the SEC which bear such restrictive legend and remove any
stop-transfer restriction relating thereto and (ii) the Company shall not place
any restrictive legend on certificates for any Shares issued or impose any
stop-transfer restriction thereon.
(c) Form D. The Company agrees to file a Form D with respect to the Shares
as required under Regulation D and to provide a copy thereof to each Buyer
promptly after such filing. Each Buyer agrees to cooperate with the Company in
connection with such filing and, upon request of the Company, to provide all
information relating to such Buyer reasonably required for such filing.
(d) Authorization for Trading. Within five days after the Closing Date, the
Company shall file a notification for listing of additional shares with the
Nasdaq National Market relating to the Shares and shall provide evidence of such
filing to the Buyer.
(e) Use of Proceeds. The proceeds of sale of the Shares will be used for
general working capital purposes and in the operation of the Company's business.
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(f) Blue Sky Laws. On or before the Closing Date, the Company shall take
such action as and to the extent it shall be necessary or required to qualify,
or to obtain an exemption for, the Shares for sale to each Buyer pursuant to
this Agreement under such of the securities or "blue sky" laws of jurisdictions
as shall be applicable to the sale of the Shares pursuant to this Agreement. The
Company shall furnish copies of all filings, applications, orders and grants or
confirmations of exemptions relating to such securities or "blue sky" laws on or
prior to the Closing Date.
(g) Expenses. Each of the parties hereto shall pay all of their own costs
and expenses, including any and all legal and accounting fees, incident to the
negotiation, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby whether or not such transactions shall be
consummated.
6. CLOSING DATE.
Subject to the satisfaction or waiver of the conditions set forth in
Sections 7 and 8, the Closing Date shall be 12:00 noon, New York City time, on
February 11, 2000, or such other mutually agreed day and time. The closing of
the sale of the Shares shall occur on the Closing Date at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL AND ISSUE.
Each Buyer understands that the Company's obligation to sell the Shares to
the each Buyer pursuant to this Agreement on the Closing Date is conditioned
upon the satisfaction of the following conditions precedent on or before the
Closing Date (any or all of which may be waived by the Company in its sole
discretion):
(a) The receipt and acceptance by the Company of this Agreement and the
Registration Rights Agreement in the form attached hereto as Annex I as
evidenced by execution of this Agreement and the Registration Rights Agreement
by the Company and delivery of executed counterparts of this Agreement and the
Registration Rights Agreement to each Buyer or its legal counsel;
(b) The accuracy on the Closing Date of the representations and warranties
of each Buyer contained in this Agreement as if made on the Closing Date and the
performance by each Buyer on or before the Closing Date of all covenants and
agreements of each Buyer required to be performed on or before the Closing Date;
and
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(c) On the Closing Date, no legal action, suit or proceeding shall be
pending or threatened which seeks to restrain or prohibit the transactions
contemplated by this Agreement.
8. CONDITIONS TO THE BUYERS' OBLIGATIONS TO PURCHASE.
The Company understands that each Buyer's obligation to purchase the Shares
from the Company pursuant to this Agreement on the Closing Date is conditioned
upon the satisfaction of the following conditions precedent on or before the
Closing Date (any or all of which may be waived by such Buyer in its sole
discretion):
(a) The receipt and acceptance by each of the Buyers of this Agreement and
the Registration Rights Agreement in the form attached hereto as Annex I as
evidenced by execution of this Agreement and the Registration Rights Agreement
by the Buyers and delivery of executed counterparts of this Agreement and the
Registration Rights Agreement to the Company or its legal counsel;
(b) The accuracy on the Closing Date of the representations and warranties
of the Company contained in this Agreement as if made on the Closing Date 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 receipt by such Buyer of a certificate, dated the Closing Date, of the
Chief Executive Officer or the Chief Financial Officer of the Company confirming
such matters;
(c) The receipt by such Buyer of a certificate, dated the Closing Date, of
the Secretary of the Company certifying (1) the Memorandum of Continuance and
Bye-Laws of the Company as in effect on the Closing Date, and (2) all
resolutions of the Board of Directors (and committees thereof) of the Company
relating to this Agreement and the transactions contemplated hereby;
(d) Receipt by such Buyer on the Closing Date of (i) an opinion of Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Company, dated the Closing Date, to the effect
set forth in Annex II attached hereto, (ii) an opinion of Xxxxxxxxxxx X.
Xxxxxxxx, Esq., the General Counsel of the Company, dated the Closing Date, to
the effect set forth in Annex III attached hereto, (iii) an opinion of Xxxxxxx
Xxxx & Xxxxxxx, Bermuda counsel to the Company, dated the Closing Date, to the
effect set forth in Annex IV attached hereto and (iv) an opinion of Xxxxx Xxxx
LLP, Arizona counsel to the Company, dated the Closing Date, to the effect set
forth in Annex V attached hereto; and
(e) On the Closing Date, no legal action, suit or proceeding shall be
pending or threatened which seeks to restrain or prohibit the transactions
contemplated by this Agreement.
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9. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California.
(b) Counterparts. This Agreement may be executed in counterparts and by the
parties hereto on separate counterparts, all of which together shall constitute
one and the same instrument. A facsimile transmission of this Agreement bearing
a signature on behalf of a party hereto shall be legal and binding on such
party.
(c) Headings, etc. The headings, captions and footers of this Agreement are
for convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
(e) Amendments. No amendment, modification, waiver, discharge or
termination of any provision of this Agreement nor consent to any departure by
the Buyers or the Company therefrom shall in any event be effective unless the
same shall be in writing and signed by the party to be charged with enforcement,
and then shall be effective only in the specific instance and for the purpose
for which given.
(f) Waivers. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, or any course of dealings between the parties, shall not operate as a
waiver thereof or an amendment hereof.
(g) Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be delivered personally (which shall include telephone
line facsimile transmission with answer back confirmation) or by courier and
shall be effective upon receipt, if delivered personally or by courier, in the
case of the Company addressed to the Company at its address shown in the
introductory paragraph of this Agreement, Attention: Legal Department (telephone
line facsimile transmission number (000) 000-0000), with a copy to Xxxxxx Xxxxxx
& Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxxx X. Xxxxxxxx,
Esq. (telephone line facsimile transmission number: (000) 000-0000) or, in the
case of each of the Buyers, at its address or telephone line facsimile
transmission number shown on the signature pages to this Agreement or such other
address or telephone line facsimile transmission number
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as a party shall have provided by notice to the other party in accordance with
this provision.
(h) Assignment. Prior to the Closing Date, none of the parties may assign
its rights and obligations under this Agreement. Any transfer of the Shares by
the Buyers after the Closing Date shall be made in accordance with Section 5(a).
After the Closing Date, each Buyer shall have the right to assign its rights and
obligations under this Agreement to Permitted Transferees in connection with any
transfer of such Buyer's rights under the Registration Rights Agreement in
compliance with the provisions of Section 7(e) of the Registration Rights
Agreement by notice of such assignment to the Company.
(i) Survival of Representations and Warranties. The respective
representations, warranties, covenants and agreements of the Buyers and the
Company contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall survive the delivery of payment
for the Shares and shall remain in full force and effect regardless of any
investigation made by or on behalf of them or any Person controlling or advising
any of them.
(j) Entire Agreement. This Agreement and its Schedules and Annexes set
forth the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings,
whether written or oral, with respect thereto.
(k) Further Assurances. Each party to this Agreement will perform any and
all acts and execute any and all documents as may be necessary and proper under
the circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its provisions.
(l) Public Statements, Press Releases, Etc. The Company and the Buyers
shall have the right to approve before issuance any press releases or any other
public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior
approval of the Buyers, to make any press release or other public disclosure
with respect to such transactions as is required by applicable law and
regulations (although the Buyers shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its release and
shall be provided with a copy thereof).
(m) Rights of Certain Canadian Purchasers. In the event that the offering
memorandum delivered to a Buyer resident in Ontario or Quebec before the
issuance of Shares to such subscriber contains an untrue statement of a material
fact or omits to state a material fact that is re-
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quired to be stated or that is necessary in order to make any statement therein
not misleading in light of the circumstances in which it was made (herein called
a "misrepresentation"), and it was a misrepresentation at the time of purchase
of the Shares, such Buyer shall have, subject as hereinafter in this paragraph
provided, a right, exercisable on written notice given not more than 180 days
subsequent to the date on which payment is made for the Shares, either of action
for damages or, alternatively, of rescission against the Company while still the
owner of the Shares, provided that:
(i) the Company shall not be held liable under this paragraph if such
Buyer purchased the Shares with knowledge of the misrepresentation;
(ii) in an action for damages, the Company is not liable for all or any
portion of such damages that it proves do not represent the
depreciation in value of the Shares as a result of the
misrepresentation relied upon; and
(iii) in no case shall the amount recoverable hereunder exceed the price at
which the Shares were sold to such Buyer.
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IN WITNESS WHEREOF, this Agreement has been duly executed by each of the
Buyers and the Company by their respective officers or other representatives
thereunto duly authorized as of the date first set forth above.
XOMA LTD.
By:
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
Date:
---------------------------------------
---------------------------------------
Name of Investor
By:
-----------------------------------------
Name:
Title:
Date:
---------------------------------------
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