EXHIBIT 4.1
DATED 2005
OSI PHARMACEUTICALS, INC. (1)
AND
'FIRST-NAME' 'SURNAME' (2)
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DEED OF SHARE EXCHANGE RELATING TO THE
SHARES OF PROSIDION LIMITED
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TABLE OF CONTENTS
Definitions and Interpretation..............................
1 1
Exchange of Shares..........................................
2 2
Representations.............................................
3 2
Completion..................................................
4 4
Further Assurance...........................................
5 5
Invalidity..................................................
6 5
Non-Assignment..............................................
7 5
Notices.....................................................
8 5
Third Party Rights..........................................
9 6
Variation...................................................
10 6
Waiver......................................................
11 6
Entire Agreement............................................
12 6
Counterparts................................................
13 6
Governing Law...............................................
14 6
DEED OF SHARE EXCHANGE
THIS DEED is made the day of 2005
BETWEEN:
(1) OSI PHARMACEUTICALS, INC., a company incorporated under the laws of the
state of Delaware, USA and having its registered office at 00 Xxxxx Xxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx, 00000, XXX (the "PARENT COMPANY"); and
(2) 'FIRST-NAME' 'SURNAME' of 'Address-1', 'Address-2', 'Address-3',
'Address-4' 'Address-5' (the "MEMBER"),
(each a "PARTY" and collectively the "PARTIES").
RECITALS:
(A) WHEREAS Prosidion Limited was incorporated under the laws of
England
and Wales on 25 November 2002 (registered number 4600121) and has an authorised
share capital of 2,000 pound divided into 14,000,000 Preferred Ordinary Shares
of 0.0001 Pound each ("PREFERRED ORDINARY SHARES"); 4,000,000 A Ordinary Shares
of 0.0001 Pound each ("A ORDINARY SHARES"); and 2,000,000 B Ordinary Shares of
0.0001 ("B ORDINARY SHARES") each.
(B) WHEREAS 'FounderIIBIIShares' B Ordinary Shares (the "SHARES") have been
issued and allotted to the Member.
(C) WHEREAS the Member is the legal and beneficial owner of the Shares.
(D) WHEREAS the Parent Company has proposed to acquire all of the Shares
from the Member in exchange for common stock, par value $0.01 per share of the
Parent Company ("PARENT COMPANY STOCK").
(E) WHEREAS the Member and the Parent Company have agreed to the exchange
of the Shares in return for the issue of Parent Company Stock on the terms and
conditions set out in this Deed.
(F) WHEREAS, the offer and issuance of the Consideration Stock, as defined
below, by the Parent Company is made pursuant to Regulation S under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
NOW IT IS AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed, subject to any express contrary indication:
(a) words importing the singular shall include the plural and vice
versa;
(b) any reference to this Deed or any other agreement or document
shall be construed as a reference to that agreement or document as it may
have been, or may from time to time be, amended, varied, novated, replaced
or supplemented;
(c) any reference to a statute or enactment shall be construed as a
reference to such statute as it may have been, or may from time to time be,
amended or re-enacted and any subordinate legislation made or thing done,
or may from time to time be done, under the statute or enactment provided
that, as between the parties, no such amendment or modification shall apply
for the purposes of this Deed to the extent that it would impose any new or
extended obligation, liability or restriction on, or otherwise adversely
affect the rights of, any party; and
(d) any reference to any English legal term for any action, remedy,
method of judicial proceeding, legal document, legal status, court,
official, or any legal concept or thing shall in respect of any
jurisdiction (other than England) be deemed to include what most nearly
approximates in that jurisdiction to the English legal term.
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1.2 All headings in this Deed are for ease of reference only and shall not
affect the interpretation of this Deed.
1.3 Capitalised terms used in the Recitals and this Deed shall, unless the
context otherwise requires, have the meaning set out in the Articles of
Association of the Company.
2 EXCHANGE OF SHARES
2.1 EXCHANGE RATIO
For the purposes of this Deed the Parent Company and the Member agree that
the Shares shall be exchanged for Parent Company Stock on the basis of the
following exchange ratio (the "EXCHANGE RATIO"):
For each Share: 0.29685 shares of Parent Company Stock
2.2 NO FRACTIONAL SHARES
No certificates representing fractional shares of the Parent Company Stock
shall be issued, and such fractional share interests will not entitle the Member
to vote or to any other rights of a stockholder of the Parent Company. With
respect to any fractional share interest to which the Member is entitled, the
Member shall be paid an amount in cash equal to the product obtained by
multiplying (i) such fractional share interest to which the Member would
otherwise be entitled by (ii) $53.90.
2.3 EXCHANGE OF SHARES
At Completion, in consideration for the Parent Company issuing to the
Member the 'OSIPIIShares' shares of Parent Company Stock (the "Consideration
Stock"), the Member as legal and beneficial owner shall transfer its Shares to
the Parent Company with full title guarantee free from any lien, claim, charge,
security interest, mortgage, pledge, easement, conditional sale or other title
retention agreement, defect in title, rights of third parties, restrictive
covenant or other restrictions of any kind (each an "ENCUMBRANCE").
3 REPRESENTATIONS AND COVENANTS
3.1 The Member represents and warrants to the Parent Company at the date
hereof that:
(a) he/she is the legal and beneficial owner of the Shares;
(b) there is no Encumbrance on, over or affecting any of the Shares;
(c) no agreement to create an Encumbrance has been entered into and no
claim has been made by any person (natural or otherwise) that it is
entitled to any such Encumbrance; and
(d) he/she has full power and authority to enter into and exercise its
rights and perform its obligations under this Deed and all other documents
to be executed by him/her at Completion;
(e) his/her obligations under this Deed are valid and binding subject
to applicable law.
3.2 In respect of U.S. securities laws, the Member represents and warrants
to the Parent Company at the date hereof that:
(a) the Member is not a "U.S." person as defined in Regulation S under
the Securities Act, (i.e., the Member is not resident in the United
States);
(b) the Member is not acquiring the Consideration Stock for the
account or benefit of any other person;
(c) the Member received a copy of this Deed from the Parent Company
while the Member was outside of the United States and, when signed, will
have signed this Deed and delivered a signed copy of this Deed to the
Parent Company while the Member was outside of the United States;
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(d) the Member (i) has been granted the opportunity to ask questions
of, and receive answers from, representatives of the Parent Company
concerning the terms and conditions of the exchange and (ii) has requested,
received, reviewed and considered all information that he/she has deemed
relevant in making an informed decision to acquire the Consideration Stock;
(e) the Member has been advised of and understands the risks of an
investment in the Consideration Stock;
(f) the Member acknowledges that the acquisition of the Consideration
Stock has not been registered under the Securities Act or registered or
qualified under any U.S. state securities law in reliance on specific
exemptions therefrom, which exemptions depend upon, among other things, the
Member's representations and covenants as expressed in this Deed;
(g) the Member has been informed and understands that the
Consideration Stock may not be sold except (i) pursuant to a registration
statement, (ii) pursuant to an exemption from registration, or (iii) in
compliance with Rule 144 of the Securities Act (and is therefore subject to
the holding requirements of Rule 144 of the Securities Act);
(h) the Member has not undertaken any activities in the United States
for the purpose of conditioning the market in the United States for the
resale of the Consideration Stock by the Member or any other person
acquiring securities of the Parent Company; and
(i) the Member has no direct or indirect affiliation or association
with any member of the National Association of Securities Dealers, Inc. in
the United States (the "NASD").
3.3 In respect of U.S. securities laws, the Member covenants with the
Parent Company that:
(a) The Member will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of or solicit any offers to buy any of the
Consideration Stock except in compliance with the Securities Act and
applicable state securities laws. In furtherance thereof, the Member will
not make any disposition of the Consideration Stock except (i) pursuant to
a registration statement under the Securities Act covering such proposed
disposition, (ii) upon prior notice to the Parent Company and, if
reasonably requested by the Parent Company, delivery to the Parent Company
of an opinion of counsel, reasonably satisfactory to the Parent Company,
that such disposition will not require registration under the Securities
Act, or (iii) in compliance with Rule 144 under the Securities Act.
(b) The Member acknowledges and agrees that no action has been or is
intended to be taken in any jurisdiction outside the United States by the
Parent Company that would permit an offering of the Consideration Stock or
possession or distribution of offering materials in connection with the
issuance of the Consideration Stock, in any jurisdiction outside the United
States where legal action by the Parent Company for that purpose is
required. The Member outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which
he/she purchases, offers, sells or delivers Consideration Stock or has in
its possession or distributes any offering material, in all cases at
his/her own expense.
(c) The Member has been advised that he/she may not engage in any
hedging transactions with regard to the Consideration Stock unless
conducted in compliance with the Securities Act. However, the Member agrees
that pursuant to the Parent Company's "Statement of Company Policy on
Securities Trades by Company Personnel and Directors," he/she will not
engage in any hedging transactions in the Consideration Stock or other
securities of the Parent Company.
(d) The Member understands and acknowledges that certificates
evidencing the Consideration Stock shall bear one or all of the following
legends or a similar legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
may not be transferred without (i) an opinion of counsel satisfactory to
the corporation that such transfer may lawfully be made without
registration under such Act or qualification under applicable state
securities laws; or (ii) such registration or
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qualification. Hedging transactions involving the shares represented by
this certificate may not be conducted unless in compliance with the
Act."
If required by the authorities of any state in the United States in
connection with the issuance of sale of the Consideration Stock, the
legend required by such state authority.
Any purchaser of the Consideration Stock pursuant to an effective
registration statement under the Securities Act will be entitled to receive
a certificate bearing no restrictive legend.
4 COMPLETION
4.1 Completion shall take place at the offices of Prosidion Limited,
Xxxxxxxxxx Xxxx, Xxxxxx, XX0 0XX on April 14, 2005 (the "COMPLETION"). At
Completion, the Member shall deliver to the Parent Company:
(a) duly executed transfers of his/her Shares in favour of the Parent
Company together with all share certificates relating to the Shares or, in
the absence of which, an indemnity letter relating to loss of such share
certificate; and
(b) any other documents which may be required to vest in the Parent
Company the full legal and beneficial ownership of the Shares and enable
the Parent Company to procure them to be registered in its name or as it
may direct.
4.2 At Completion the Member IRREVOCABLY AND UNCONDITIONALLY APPOINTS the
Parent Company and each of Xxxxx Xxxxxxx of 00 Xxxxxxx Xxxxx, Xxxx Xxxxxxx, XX
00000, XXX, Xxx Xxx Xxxxxxxx of 00 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000, XXX
and Xxxxxxx Xxxx of 000 Xxxx 00xx Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, XX 00000,
XXX, each acting severally (each an "ATTORNEY") to be the true and lawful
Attorney of the Member, with full power to appoint substitutes, pending
registration of the Parent Company as the legal owner of the Shares and in
his/her name or otherwise on his/her behalf as the Attorney sees fit to execute
notices, instruments of proxy or other documents which may fall to be executed
or signed by the Member and exercise and perform any of the acts and things to
be done and performed by the Member in connection with the legal and beneficial
ownership of all or any of the Shares held by the Member as if the Attorney were
the legal and beneficial owner of such Shares and in particular but without
limitation the Attorney is appointed to:
(a) attend any General Meeting (Annual and/or Extraordinary) of the
Company and to represent the Member and vote on the Member's behalf and in
his/her name;
(b) exercise in the Member's name and on his/her behalf, all rights
and privileges attached to his/her Shares including but not limited to the
right to requisition the convening of an Extraordinary General Meeting;
(c) to receive, in the Member's name and on his/her behalf, any notice
or document which the Member is entitled to receive solely by virtue of
being the registered holder of the Shares including the right to receive
all benefits and entitlements which attach to the Shares from the date of
Completion. For the avoidance of doubt this paragraph (c) does not cover
Consideration Stock to be issued to the Member pursuant to his/her
agreement with the Parent Company relating to the exchange of the Shares;
and
(d) execute and do (or procure the execution and giving of) such
documents, acts and things as in the opinion of the Attorney is desirable
and in such manner as the Attorney thinks fit as if the Attorney were the
absolute legal and beneficial owner thereof.
4.3 The power of attorney granted in Clause 4.2 shall expire on the date on
which the Parent Company is registered as the holder of the Shares in the
register of members of the Company.
4.4 The Member undertakes to ratify everything which the Attorney shall do
or purport to do in good faith by virtue of the powers granted by the power of
attorney granted in Clause 4.2.
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4.5 Within seven days of the Parent Company receiving the documents
referred to in Clause 4.1 from the Member, it shall issue the Consideration
Stock to the Member and shall procure that the Member is registered as a
stockholder in the Parent Company in respect of his/her Consideration Stock.
(a) If the Member fails or refuses to accept delivery of Consideration
Stock then it shall be set aside by the Parent Company. Such setting aside
shall be deemed, for all purposes of this Clause 4, to be a payment to the
Member and all the Member's rights as a member of the Company shall cease
as from the Completion Date and the Parent Company shall be discharged, on
such setting aside, from all obligations in respect of the same. The Parent
Company shall not be responsible for the safe custody of the Consideration
Stock so set aside (which shall be held by the Parent Company for a maximum
period of 12 years, after which period the Parent Company shall be entitled
to cancel the Consideration Stock in full).
(b) A receipt by the Member of stock certificates relating to his/her
Consideration Stock due on exchange of his/her Shares shall constitute an
absolute discharge to the Parent Company for all its obligations relating
thereto.
4.6 The Parent Company undertakes to file with U.S. Securities and Exchange
Commission a registration statement with respect to the resale of the Parent
Company Stock and have such registration statement declared effective according
to the terms set forth in Annex A to this Deed.
5 FURTHER ASSURANCE
Each Member shall, at the expense of the Parent Company, do or procure to
be done all such further acts and things and execute or procure the execution of
all such other documents as the Parent Company may from time to time reasonably
require for the purpose of giving to the Parent Company the full benefit of all
the provisions of this Deed.
6 INVALIDITY
If any provision of this Deed is held to be invalid or unenforceable, then
such provision shall (so far as it is invalid or unenforceable) be given no
effect and shall be deemed not to be included in this Deed but without
invalidating any of the remaining provisions of this Deed. The parties shall
then use all reasonable endeavours to replace the invalid or unenforceable
provision by a valid provision the effect of which is as close as possible to
the intended effect of the invalid or unenforceable provision.
7 NON-ASSIGNMENT
No party shall, without the consent of the others, be entitled to assign
the benefit or burden of this Deed in whole or in part with the exception of the
assignment rights set forth in Annex A to this Deed.
8 NOTICES
8.1 Any notice to be given under this Deed shall be in writing and shall be
delivered personally or sent by pre-paid international courier to the addressee
at the address set out on the face of this Deed or such other address as may be
notified from time to time. A notice so addressed shall be deemed to have been
received:
(a) if personally delivered, at the time of delivery; and
(b) if sent by international courier, two days after the date of
delivery of the notice to the international courier by the sender.
8.2 For the avoidance of doubt, notice given under this Deed shall not be
validly served if sent by electronic mail.
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9 THIRD PARTY RIGHTS
The parties do not intend that any term of this Deed shall be enforceable
pursuant to the Contracts (Rights of Third Parties) Xxx 0000 by any person who
is not a party to this Deed.
10 VARIATION
No variation of any of the terms of this Deed (or of any other documents
referred to herein) shall be valid unless it is in writing and signed by or on
behalf of each of the parties hereto. The expression "variation" shall include
any variation, supplement, deletion or replacement however effected.
11 WAIVER
11.1 Any delay by the parties in exercising, or failure to exercise, any
right or remedy under this Deed shall not constitute a waiver of the right or
remedy or a waiver of any other rights or remedies and no single or partial
exercise of any rights or remedy under this Deed or otherwise shall prevent any
further exercise of the right or remedy or the exercise of any other right or
remedy.
11.2 The rights and remedies of the parties under this Deed are cumulative
and not exclusive of any rights or remedies provided by law.
12 ENTIRE AGREEMENT
This Deed, together with documents described in or expressed to be entered
into in connection with this Deed, constitutes the entire agreement between the
parties with respect to all matters referred to herein and supersede all prior
written or oral discussions, representations, negotiations and agreements among
them regarding such subject matter. Each party confirms that the terms of this
Deed are fair and reasonable.
13 COUNTERPARTS
This Deed may be executed in as many counterparts (including facsimile
counterparts) as may be required. It shall not be necessary that the signatures
of, or on behalf of, each party, or that the signatures of all persons required
to bind any party, appear on each counterpart; but it shall be sufficient that
the signature of, or on behalf of, each party, or that the signatures of the
persons required to bind any party, appear on one or more of the counterparts.
All counterparts shall collectively constitute a single Deed. It shall not be
necessary in making proof of this Deed to produce or account for more than a
number of counterparts containing the respective signatures of, or on behalf of,
all of the parties hereto.
14 GOVERNING LAW
14.1 This Deed shall be governed by and construed in accordance with the
laws of
England and Wales.
14.2 In relation to any legal action or proceedings arising out of or in
connection with this Deed ("PROCEEDINGS"), each of the parties irrevocably
submits to the non-exclusive jurisdiction of the English courts and waives any
objection to Proceedings in such courts on the grounds of venue or on the
grounds that Proceedings have been brought in an inappropriate forum.
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IN WITNESS WHEREOF the parties hereto have duly executed this agreement as
a deed with the intent that it is delivered as such on the day and year first
above written.
EXECUTED AS A DEED )
BY )
OSI PHARMACEUTICALS, INC. )
ACTING BY A DULY AUTHORISED )
REPRESENTATIVE AND IN ACCORDANCE )
WITH THE LAWS OF THE JURISDICTION OF )
ITS INCORPORATION AND ARTICLES OF )
ASSOCIATION/BY-LAWS )
)
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EXECUTED AS A DEED BY 'FIRST -- NAME' 'SURNAME'
SIGNED:
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BY:
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IN THE PRESENCE OF:
Witness's Signature:
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Witness's Name:
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Witness's Address:
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ANNEX "A"
TERMS AND CONDITIONS FOR RESALE REGISTRATION
1 DEFINITIONS.
In addition to those terms defined in the agreement, for the purposes of
this Annex A, the following terms shall have the meanings set forth here:
1.1 "Affiliate" shall mean, with respect to any Person, any other
Person which directly or indirectly controls, is controlled by, or is under
common control with, such Person.
1.2 "Closing Date" shall mean the date of Completion.
1.3 "Common Stock" shall mean the Parent Company Stock as defined in
Recital D of the Deed.
1.4 "Company" shall mean the Parent Company as defined in the preamble
of the Deed.
1.5 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
1.6 "Investor" shall mean the Member as defined in the preamble of the
Deed.
1.7 "Nasdaq National Market" shall mean The Nasdaq Stock Market, Inc.
National Market.
1.8 "Person" shall mean an individual, corporation, partnership,
trust, business trust, association, joint stock company, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization,
governmental authority or any other form of entity not specifically listed
herein.
1.9 "Registration Statement" shall mean a registration statement filed
pursuant to Section 2.1(a) of this Annex A.
1.10 "SEC" shall mean the United States Securities and Exchange
Commission.
1.11 "Shares" shall mean the Consideration Stock as defined in Clause
2.1 of the Deed.
1.12 "Suspension" shall have the meaning set forth in Section 2.2(c)
of this Annex A.
1.13 "Suspension Notice" shall have the meaning set forth in Section
2.2(c) of this Annex A.
2 REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
2.1 Registration Procedures and Expenses. The Company shall:
(a) subject to prompt receipt of necessary information from the
Investor after prompt request from the Company to the Investor to provide
such information, use commercially reasonable efforts to prepare and file
with the SEC, as soon as practicable after the Closing Date of the
transactions contemplated in the Deed, a shelf registration statement (the
"Registration Statement") to enable the resale of the Shares by the
Investor from time to time on a delayed or continuous basis pursuant to
Rule 415 of the Securities Act through the automated quotation system of
the Nasdaq National Market or such other market as may be the principal
market on which the Company's Common Stock is sold, or any other manner
reasonably requested by the Investor, including privately-negotiated
transactions;
(b) use commercially reasonable efforts, subject to receipt of
necessary information from the Investor after prompt request from the
Company to the Investor to provide such information, to cause the
Registration Statement to become effective as soon as practicable after the
Registration Statement is filed by the Company;
(c) use commercially reasonable efforts to prepare and file with the
SEC such amendments and supplements to the Registration Statement and the
prospectus used in connection therewith as may be
8
necessary to keep the Registration Statement current and effective until
the later of (i) two years after the Closing Date or (ii) the date on which
all of the Shares may be sold pursuant to Rule 144 of the Securities Act
without regard to any volume limitations;
(d) furnish to the Investor such number of copies of the Registration
Statement, prospectuses and preliminary prospectuses in conformity with the
requirements of the Securities Act and such other documents as the Investor
may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Investor; provided, however,
that the obligation of the Company to deliver copies of prospectuses or
preliminary prospectuses to the Investor shall be subject to the receipt by
the Company of reasonable assurances from the Investor that the Investor
will comply with the applicable provisions of the Securities Act and of
such other securities or blue sky laws as may be applicable in connection
with any use of such prospectuses or preliminary prospectuses;
(e) take all reasonable actions necessary to ensure that the Shares
are listed and available for quotation on The Nasdaq National Market;
(f) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Investor; provided,
however, that the Company shall not be required to qualify to do business
or consent to service of process in any jurisdiction in which it is not now
so qualified or has not so consented;
(g) bear all expenses in connection with the procedures in paragraph
(a) through (f) of this Section 2.1 and the registration of the Shares
pursuant to the Registration Statement; and
(h) advise the Investor promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the SEC delaying or
suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will
promptly use commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal at the earliest possible moment if
such stop order should be issued.
The Company understands that the Investor disclaims being an underwriter,
but any determination by the SEC that the Investor is an underwriter shall not
relieve the Company of any obligations it has hereunder.
2.2 Transfer of Shares After Registration; Suspension.
(a) The Investor hereby agrees that it will not effect any disposition
of the Shares that would constitute a sale within the meaning of the
Securities Act except as contemplated in the Registration Statement
referred to in Section 2.1 and as described below or as otherwise permitted
by law, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Investor
or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company
shall (i) if deemed necessary by the Company, prepare and file from time to
time with the SEC a post-effective amendment to the Registration Statement
or a supplement to the related prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other required
document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and so that, as thereafter delivered to purchasers of the
Shares being sold thereunder, such prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; (ii) provide
the Investor copies of any documents filed pursuant to this Section
2.2(b)(i); and (iii) inform the Investor that the Company has complied with
its obligations in this Section 2.2(b)(i) (or that, if the Company has
filed a post-effective amendment to the Registration Statement which has
not yet been declared effective, the Company will notify the Investor to
that effect, will use commercially reasonable efforts to secure the
9
effectiveness of such post-effective amendment as promptly as possible and
will promptly notify the Investor pursuant to this Section 2.2(b)(i) when
the amendment has become effective).
(c) Subject to paragraph (d) below, in the event (i) of any request by
the SEC or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related prospectus or for
additional information; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (iv) of any event or circumstance which, upon the advice of its
counsel, necessitates the making of any changes in the Registration
Statement or prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or
any omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the
case of the prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; then the
Company shall promptly deliver a certificate in writing to the Investor
(the "Suspension Notice") to the effect of the foregoing and, upon receipt
of such Suspension Notice, the Investor will refrain from selling any
Shares pursuant to the Registration Statement (a "Suspension") until it
receives copies of a supplemented or amended prospectus prepared and filed
by the Company, or until it is advised in writing by the Company that the
current prospectus may be used, and has received copies of any additional
or supplemental filings that are incorporated or deemed incorporated by
reference in any such prospectus. In the event of any Suspension, the
Company will use its commercially reasonable efforts to cause the use of
the prospectus so suspended to be resumed as soon as reasonably
practicable.
(d) Provided that a Suspension is not then in effect, the Investor may
sell the Shares under the Registration Statement; provided, however, that
it arranges for delivery of a current prospectus to the transferee of such
Shares. Upon receipt of a request therefor, the Company has agreed to
provide an adequate number of current prospectuses to the Investor and to
supply copies to any other parties requiring such prospectuses.
(e) In the event of a sale of the Shares by the Investor pursuant to
the Registration Statement, the Investor must also deliver to the Company's
transfer agent, with a copy to the Company, a Certificate of Subsequent
Sale substantially in the form attached hereto as Exhibit A so that the
Shares may be properly transferred. Assuming timely delivery to the
Company's transfer agent of one or more stock certificates representing the
Shares in proper form for transfer and assuming compliance by the Investor
with the terms of this Deed, the Company's transfer agent will issue and
make appropriate delivery of one or more stock certificates in the name of
the buyer so as to permit timely compliance by the Investor with applicable
settlement requirements.
2.3 Indemnification.
(a) Definitions. For the purpose of this Section 2.3:
(i) the term "Selling Stockholder" shall include the Investor and
each person, if any, who controls the Investor within the meaning of
Section 15 of the Securities Act, including any officer, director,
trustee or Affiliate of the Investor;
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to
the Registration Statement referred to in Section 2.1; and
(iii) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged
omission to state in the Registration Statement a material
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fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(b) Indemnification by the Company. To the extent permitted by law,
the Company agrees to indemnify and hold harmless the Selling Stockholder
from and against any losses, claims, damages or liabilities to which such
Selling Stockholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon,
(i) any untrue statement of a material fact contained in the Registration
Statement, or (ii) any failure by the Company to fulfill any undertaking
included in the Registration Statement, and the Company will reimburse such
Selling Stockholder for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such
action, proceeding or claim; provided, however, that the Company shall not
be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Selling
Stockholder specifically for use in preparation of the Registration
Statement or the failure of the Selling Stockholder to comply with its
covenants and agreements contained in the Deed respecting the sale of the
Shares or any statement or omission in any prospectus that is corrected in
any subsequent prospectus that was delivered to the Investor prior to the
pertinent sale or sales by the Investor; provided however, that the Selling
Stockholder shall be entitled to be indemnified in any such case for any
statement or alleged statement in or omission or alleged omission from such
Registration Statement, preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, in
which such statement or omission has been corrected, in writing, by the
Investor and delivered to the Company at least ten (10) days before the
sale or sales from which such loss occurred. The Company shall reimburse
the Selling Stockholder for the amounts provided for herein upon receipt of
written demand providing evidence of such expenses.
(c) Indemnification by the Investor. To the extent permitted by law,
the Investor agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) and all other
selling stockholders listed in the Registration Statement from and against
any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon, (i) any failure to comply with the covenants and agreements
contained in this Deed respecting the sale of the Shares, or (ii) any
untrue statement of a material fact contained in the Registration Statement
if such untrue statement was made in reliance upon and in conformity with
written information furnished by or on behalf of the Investor specifically
for use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as
the case may be, for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such
action, proceeding or claim; provided however, that the Selling Stockholder
shall have no obligation to indemnify the Company in any such case for any
statement or alleged statement in or omission or alleged omission from such
Registration Statement, preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, in
which such statement or omission has been corrected, in writing, by the
Investor and delivered to the Company at least ten (10) days before the
sale or sales from which such loss occurred. The Investor shall reimburse
the Company and the other selling stockholders listed in the Registration
Statement for the amounts provided for herein upon receipt of written
demand providing evidence of such expenses.
(d) Notice of Claims, Etc. Promptly after receipt by any indemnified
person of a notice of a claim or the beginning of any action in respect of
which indemnity is to be sought against an indemnifying person pursuant to
this Section 2.3, such indemnified person shall notify the
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indemnifying person in writing of such claim or of the commencement of such
action, but the omission to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
under this Section 2.3 (except to the extent that such omission materially
and adversely affects the indemnifying party's ability to defend such
action) or from any liability otherwise than under this Section 2.3.
Subject to the provisions hereinafter stated, in case any such action shall
be brought against an indemnified person, the indemnifying person shall be
entitled to participate therein, and, to the extent that it shall elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any
legal expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if there
exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the
same counsel to represent both the indemnified person and such indemnifying
person or any Affiliate or associate thereof, the indemnified person shall
be entitled to retain its own counsel at the expense of such indemnifying
person; provided, however, that no indemnifying person shall be responsible
for the fees and expenses of more than one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no event shall
any indemnifying person be liable in respect of any amounts paid in
settlement of any action unless the indemnifying person shall have approved
the terms of such settlement; provided, however, that such consent shall
not be unreasonably withheld. No indemnifying person shall, without the
prior written consent of the indemnified person, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
person is or could have been a party and indemnification could have been
sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all
liability on claims that are the subject matter of such proceeding.
(e) Contribution. If the indemnification provided for in this Section
2.3 is unavailable to or insufficient to hold harmless an indemnified party
under paragraph (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative fault of the Company on the one
hand and the Investor, as well as any other selling stockholder under the
Registration Statement, on the other in connection with the statements or
omissions or other matters which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, in the case of an untrue statement,
whether the untrue statement relates to information supplied by the Company
on the one hand or an Investor or other selling stockholder on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The Company and
the Investor agree that it would not be just and equitable if contribution
pursuant to this paragraph (e) were determined by pro rata allocation (even
if the Investor and other selling stockholders were treated as one entity
for such purpose) or by any other method of allocation which does not take
into account the equitable considerations referred to above in this
paragraph (e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this paragraph (e) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and the Investor under
this Section 2.3 shall survive the completion of any offering of Shares in
a Registration Statement.
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3 RULE 144.
The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Company is not required to file such
reports, it will, upon the request of the Investor, make publicly available such
information as necessary to permit sales pursuant to Rule 144 under the
Securities Act), and it will take such further action as the Investor may
reasonably request, all to the extent required from time to time to enable the
Investor to sell the shares purchased hereunder without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
the Investor, the Company will deliver to it a written statement as to whether
the Company has complied with such information and requirements.
4 SUCCESSORS AND ASSIGNS.
The rights set forth in this Annex A may not be assigned by the Investor.
Without the necessity of the prior written consent of the Investor, but after
notice duly given and in compliance with Clause 8 of the Deed, the Company may
assign its rights and delegate its duties hereunder to any successor-in-interest
corporation in the event of a merger or consolidation of the Company with or
into another corporation, or any merger or consolidation of another corporation
with or into the Company that results directly or indirectly in an aggregate
change in the ownership or control of more than 50% of the voting rights of the
equity securities of the company, or the sale of all or substantially all of the
Company's assets. The terms and conditions of this Annex shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Annex A, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Annex A, except as expressly provided in this Annex A.
13
EXHIBIT A
Certificate of Subsequent Sale
Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
RE: Sale of Shares of Common Stock of OSI Pharmaceuticals, Inc. (the
"Company") pursuant to the Company's Prospectus dated ,
(the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all applicable securities laws,
applicable to the undersigned, including, without limitation, the Prospectus
delivery requirements of the Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner):
-------------------------------------------------------------------
Record Holder (e.g., if held in name of nominee):
-----------------------------------------------------------
Restricted Stock Certificate No.(s):
---------------------------------------------------------------------------
Number of Shares Sold:
--------------------------------------------------------------------------------
Date of Sale:
--------------------------------------------------------------------------------
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
By:
--------------------------------------------
Dated:
--------------------------------------------
Print Name:
----------------------------------------
Title:
--------------------------------------------
cc: Xxxxxx X. Xxx Xxxxxxxx
Vice President and Chief Financial Officer
OSI Pharmaceuticals, Inc.
00 Xxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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