EXHIBIT 99.2
TRANSACTION AGREEMENT
BETWEEN
CELSION CORPORATION
AND
BOSTON SCIENTIFIC CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms............................................1
SECTION 1.02 Definitions......................................................7
ARTICLE II
INITIAL SUBSCRIPTION
SECTION 2.01 Initial Subscription for Celsion Shares..........................9
SECTION 2.02 Initial Closing..................................................9
SECTION 2.03 Initial Closing Deliveries.......................................9
SECTION 2.04 Application of Proceeds..........................................10
ARTICLE III
SECOND SUBSCRIPTION
SECTION 3.01 Second Subscription for Celsion Shares...........................10
SECTION 3.02 Second Closing...................................................11
SECTION 3.03 Second Closing Deliveries........................................11
ARTICLE IV
THIRD SUBSCRIPTION
SECTION 4.01 Third Subscription for Celsion Shares............................11
SECTION 4.02 Third Closing....................................................12
SECTION 4.03 Third Closing Deliveries.........................................12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CELSION
SECTION 5.01 Organization and Qualification of Celsion........................13
SECTION 5.02 Subsidiaries.....................................................13
SECTION 5.03 Capital Stock of Celsion.........................................13
SECTION 5.04 Authority of Celsion.............................................14
SECTION 5.05 No Conflict......................................................14
SECTION 5.06 Governmental Consents and Approvals..............................14
SECTION 5.07 Financial Information; SEC Filings...............................15
SECTION 5.08 Absence of Undisclosed Liabilities...............................15
SECTION 5.09 Absence of Certain Changes or Events.............................15
SECTION 5.10 Material Contracts...............................................16
SECTION 5.11 Compliance with Law..............................................17
SECTION 5.12 Governmental Licenses............................................17
SECTION 5.13 Litigation.......................................................17
SECTION 5.14 Intellectual Property............................................17
SECTION 5.15 Real Property....................................................18
SECTION 5.16 ERISA............................................................18
SECTION 5.17 Taxes............................................................19
SECTION 5.18 Insurance........................................................19
SECTION 5.19 Brokers..........................................................19
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BSC
SECTION 6.01 Organization and Authority of BSC................................19
SECTION 6.02 No Conflict......................................................20
SECTION 6.03 Governmental Consents and Approvals..............................20
SECTION 6.04 Investment.......................................................20
SECTION 6.05 Brokers..........................................................21
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01 Conduct of Business prior to Third Closing.......................21
SECTION 7.02 Conduct of Business prior to Exercise of Option..................22
SECTION 7.03 Rights Agreement.................................................23
SECTION 7.04 Board Observation Rights.........................................23
SECTION 7.05 Celsion Employees................................................24
ARTICLE VIII
OPTION TO PURCHASE
SECTION 8.01 Grant of the Option..............................................24
SECTION 8.02 Exercise of the Option...........................................24
SECTION 8.03 Option Exercise Price............................................25
ARTICLE IX
MATCHING RIGHTS AND RIGHTS OF FIRST OFFER
SECTION 9.01 Matching Right...................................................26
SECTION 9.02 Right of First Offer.............................................26
SECTION 9.03 Access to Information............................................27
SECTION 9.04 Survival of Rights...............................................27
ARTICLE X
REGISTRATION RIGHTS
SECTION 10.01 Restriction on Sale of Celsion Shares............................27
SECTION 10.02 Restrictive Legend...............................................27
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SECTION 10.03 Demand Registration..............................................28
SECTION 10.04 Piggy-Back Registration..........................................29
SECTION 10.05 Blackout Periods.................................................30
SECTION 10.06 Registration Procedures..........................................30
SECTION 10.07 Expenses.........................................................34
SECTION 10.08 Rule 144 Information.............................................34
SECTION 10.09 Indemnification and Contribution.................................34
SECTION 10.10 Limitations on Registration of Other Securities..................37
ARTICLE XI
CONFIDENTIALITY
SECTION 11.01 Confidentiality..................................................37
SECTION 11.02 Release from Restrictions........................................38
SECTION 11.03 Public Announcements and Publications............................38
ARTICLE XII
CONDITIONS TO CLOSING
SECTION 12.01 Conditions to Obligations of Celsion.............................38
SECTION 12.02 Conditions to Obligations of BSC.................................39
SECTION 12.03 Conditions to Obligations of BSC for Initial Closing.............39
SECTION 12.04 Conditions to Obligations of BSC for Second Closing..............40
ARTICLE XIII
INDEMNIFICATION
SECTION 13.01 Survival of Representations and Warranties.......................40
SECTION 13.02 Indemnification by Celsion.......................................40
SECTION 13.03 Indemnification by BSC...........................................41
SECTION 13.04 Enforcing Indemnification Claims.................................41
SECTION 13.05 Adjustment to Subscription Amount................................42
ARTICLE XIV
TERM AND TERMINATION
SECTION 14.01 Termination......................................................42
SECTION 14.02 Effect of Termination............................................43
ARTICLE XV
MISCELLANEOUS
SECTION 15.01 Expenses.........................................................43
SECTION 15.02 Notices..........................................................43
SECTION 15.03 Headings.........................................................44
SECTION 15.04 Severability.....................................................44
SECTION 15.05 Entire Agreement.................................................45
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SECTION 15.06 Further Action...................................................45
SECTION 15.07 Assignment.......................................................45
SECTION 15.08 Amendment........................................................45
SECTION 15.09 Governing Law and Venue..........................................45
SECTION 15.10 Counterparts.....................................................46
SECTION 15.11 Waiver...........................................................46
SECTION 15.12 No Third Party Beneficiaries.....................................46
SECTION 15.13 Specific Performance.............................................46
SECTION 15.14 Agreement........................................................46
SECTION 15.15 WAIVER OF JURY TRIAL.............................................47
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TRANSACTION AGREEMENT
This TRANSACTION AGREEMENT is entered into as of January 20, 2003, by
and between CELSION CORPORATION, a Delaware corporation having a principal place
of business at 00000-X Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Celsion"),
and BOSTON SCIENTIFIC CORPORATION, a Delaware corporation having a principal
place of business at Xxx Xxxxxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("BSC").
WHEREAS, Celsion is engaged in the business of applying its proprietary
focused heat technology to the development and commercialization of treatments
for cancer and other conditions, including a chronic prostate enlargement
condition, known as benign prostatic hyperplasia ("BPH");
WHEREAS, subject to receiving FDA pre-marketing approval for
commercialization, Celsion desires to commence marketing its medical treatment
system for BPH and BSC desires to receive exclusive rights to market and
distribute such system, on the terms and conditions set forth in a Distribution
Agreement, the form of which is attached hereto as Exhibit A (the "Distribution
Agreement");
WHEREAS, BSC desires to subscribe for and purchase shares ("Celsion
Shares") of Common Stock, par value $0.01 per share, of Celsion ("Celsion Common
Stock") and Celsion desires to issue Celsion Shares to BSC, upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, agreements and covenants set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Celsion and BSC hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings:
"Action" means any claim, action, suit, arbitration, inquiry, proceeding
or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. For purposes of this definition, "control" (including the terms
"controlled by" and "under common control with"), with respect to the
relationship between or among two or more Persons, means the possession,
directly or indirectly or as trustee, personal representative or executor, of
the power to direct
or cause the direction of the affairs or management of a Person, whether through
the ownership of voting securities, as trustee, personal representative or
executor, by contract, credit arrangement or otherwise.
"AMEX" means The American Stock Exchange, LLC.
"BPH 800" has the meaning given such term in the Distribution
Agreement.
"BPH Assets" has the meaning given such term in the Asset Purchase
Agreement.
"BPH Business" has the meaning given such term in the Asset Purchase
Agreement.
"BPH Intellectual Property" has the meaning given such term in the
Asset Purchase Agreement.
"BPH Material Contracts" has the meaning given such term in the Asset
Purchase Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by Law to be closed in Columbia,
Maryland or Boston, Massachusetts.
"Celsion IP Agreements" means (a) licenses of Intellectual Property by
Celsion to any third party, (b) licenses of Intellectual Property by any third
party to Celsion and (c) agreements between Celsion and any third party
relating to the development or use of Intellectual Property.
"Closing" means the Initial Closing, the Second Closing or both, as
the context requires.
"Closing Date" means the Initial Closing Date, the Second Closing Date
or both, as the context requires.
"Confidential Information" means all nonpublic proprietary information
and materials (whether or not patentable), disclosed by Celsion or BSC (the
"Disclosing Party" to the other (the "Receiving Party"), irrespective of the
manner in which the Disclosing Party disclosed such information, in
furtherance of this Agreement, including, but not limited to, substances,
formulations, techniques, methodology, software, equipment, data, reports,
correspondence, know-how, manufacturing documentation and sources of supply,
as well as the existence of this Agreement.
"Control Units" has the meaning given such term in the Distribution
Agreement.
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"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Exhibit B, dated as of the date hereof, delivered by Celsion to BSC in
connection with this Agreement.
"Encumbrance" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any
kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all effective rules and regulations promulgated thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all effective rules and regulations promulgated thereunder.
"FDA" means the United States Food and Drug Administration, or any
successor entity.
"FDA Approval Date" means the date on which Celsion receives FDA
pre-marketing approval for commercialization of BPH 800 for treatment of BPH.
"Financial Statements" means the audited balance sheet and statement
of income, as of and for the twelve months ended September 30, 2000, 2001 and
2002 for Celsion.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time, applied on a consistent basis.
"Governmental Authority" means any United States or non-United States
federal, national, supranational, state, provincial, local, or similar
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Indebtedness" means, with respect to any Person, (a) all indebtedness
of such Person, whether or not contingent, for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services, (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person under acceptance, letter of credit or similar
3
facilities, (g) all Indebtedness of others referred to in clauses (a) through
(f) above guaranteed directly or indirectly in any manner by such Person, and
(h) all Indebtedness referred to in clauses (a) through (f) above secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Encumbrance on property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness.
"Initial Subscription Trading Value" shall equal (x) the average
closing price of Celsion Common Stock on the AMEX as reported by Bloomberg
Analytics (or, if unavailable, as reported by Reuters) under the equity ticker
symbol "CLN" (or such other symbol as shall be assigned to the Celsion Common
Stock) for the 30 consecutive trading days ending on the second trading day
prior to the Initial Closing Date, multiplied by (y) 1.2.
"Intellectual Property" means all intellectual property rights,
including (i) United States and non-United States patents and patent
applications, divisions, continuations, continuations-in-part, reissues or
extensions thereof, (ii) trademarks, whether registered or unregistered and
applications for registration thereof, (iii) copyrights, whether registered or
unregistered and applications for registration thereof, and (iv) trade
secrets, know-how, technology, proprietary information and data, including,
without limitation, formulae, procedures, plans, methods, processes,
specifications, models, protocols, techniques and experimentation, and design,
testing and manufacturing data, and products, compositions and procedures.
"Launch Date" means the date of the first shipment of the Product to
BSC's customer or designated delivery point, as applicable, but in no event
shall the Launch Date be later than the ninetieth (90th) day after Celsion (a)
can demonstrate its ability to deliver the Products in the quantity and of the
quality set forth in Article 3 and Section 4.07 of the Distribution Agreement
and (b) has satisfied the requirements of Section 2.08 of the Distribution
Agreement.
"Law" means any United States or non-United States federal, national,
supranational, state, provincial, local or similar statute, law, ordinance,
regulation, rule, code, order, requirement or rule of law.
"Leased Real Property" means the real property leased by Celsion as
tenant, together with, to the extent leased by Celsion, all buildings and
other structures, facilities or improvements located thereon, all fixtures,
systems, equipment and items of personal property of Celsion attached or
appurtenant thereto and all easements, licenses, rights and appurtenances
relating to the foregoing.
"Liabilities" means any and all debts, liabilities and obligations,
including, without limitation, those arising under any Law, Action or
Governmental Order and those arising under any contract, agreement, commitment
or undertaking.
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"Licensed Intellectual Property" means Intellectual Property licensed
to Celsion pursuant to the Celsion IP Agreements.
"Material Adverse Effect" means any circumstance, change or effect
that, individually or in the aggregate with all other circumstances, changes
or effects: (a) is materially adverse to the business, assets, results of
operations, the financial condition or prospects of Celsion or (b) is
materially adverse to the ability of Celsion to consummate the transactions
contemplated by this Agreement, except (i) any change resulting from the
announcement or pendency of any transactions contemplated by this Agreement or
(ii) any change resulting from conditions generally affecting the industry in
which Celsion operates provided such conditions do not disproportionately
affect Celsion or from changes in general economic conditions.
"Net Revenue" shall equal the aggregate of (a) the gross revenue
received by Celsion, directly or indirectly through third party distributors,
including BSC, from the sale and distribution of the Products during the
relevant Year in each jurisdiction where Products are sold and distributed,
less (b) (i) trade and/or quantity discounts actually allowed, (ii) sales,
value added or other excise taxes and import duties of a similar nature paid
and invoiced to customers, (iii) amounts repaid or credited by reason of
purchase chargebacks or rebates, and (iv) charges for freight, insurance,
handling and transportation separately invoiced during the corresponding Year
and in the corresponding jurisdiction, expressed in US dollars using the
average rate of currency exchange reported by Bloomberg L.P. for such
corresponding Year.
"New Product Transactions" means any transaction (including, without
limitation, sale, investment, license, distribution or similar arrangement)
with respect to the development, marketing, distribution, sale or
commercialization of any products, technologies or Intellectual Property
rights of Celsion, other than the BPH Business and the BPH Assets.
"Note" means the convertible promissory note, dated December 26, 2002,
issued by Celsion to BSC.
"Note Amount" means the outstanding principal amount of the Note and
any unpaid accrued interest on the Note as of the Initial Closing Date.
"Owned Intellectual Property" means Intellectual Property owned by
Celsion.
"Owned Real Property" means the real property owned by Celsion,
together with all buildings and other structures, facilities or improvements
located thereon, all fixtures, systems, equipment and items of personal
property of Celsion attached or appurtenant thereto and all easements,
licenses, rights and appurtenances relating to the foregoing.
5
"Option Exercise Period" means the period commencing on the Launch
Date through to the earlier of (a) the last day of the fifth Year and (b) the
date of termination of the Distribution Agreement.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA, and to which
Celsion may have liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Person" means an individual, partnership, joint venture, corporation,
limited liability company, trust, unincorporated organization or other entity.
"Product" has the meaning given such term in the Distribution
Agreement.
"Registrable Securities" means (a) the shares of Celsion Common Stock
issued pursuant to this Agreement and (b) any securities issuable or issued or
distributed in respect of any of the shares of Celsion Common Stock identified
in clause (a) by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger, consolidation
or otherwise. For purposes of this Agreement, (i) Registrable Securities shall
cease to be Registrable Securities when a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act by
the SEC and such Registrable Securities have been disposed of pursuant to such
effective Registration Statement and (ii) the Registrable Securities shall not
be deemed to be Registrable Securities at any time when the entire amount of
such Registrable Securities proposed to be sold by BSC in a single sale
constitute less than 1% of the then outstanding shares of Celsion Common Stock
and are or, in the opinion of counsel satisfactory to Celsion and BSC, each in
their reasonable judgment, may be, so distributed to the public pursuant to
Rule 144 (or any successor provision then in effect) under the Securities Act
in any three month period or any such Registrable Securities have been sold in
a sale made pursuant to Rule 144 of the Securities Act.
"Registration Statement" means the Demand Registration Statement, the
Piggy-Back Registration Statement and/or the Shelf Registration Statement, as
the case may be.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"Second Subscription Trading Value" shall equal (x) the average
closing price of Celsion Common Stock on the AMEX (or such other stock
exchange, interdealer quotation system or other market as then may be the
primary market for transactions in the Celsion Common Stock in the United
States) as reported by Bloomberg Analytics (or, if unavailable, as reported by
Reuters) under the equity ticker symbol "CLN" (or such other symbol as shall
be assigned to the Celsion Common Stock) for the 30 consecutive trading
6
days commencing on the first trading day after the FDA Approval Date,
multiplied by (y) 1.2.
"Securities Act" means the Securities Act of 1933, as amended, and all
effective rules and regulations promulgated thereunder.
"Stub Period" means the period commencing on the date hereof through
to and including the Launch Date.
"Subscription" means the Initial Subscription, the Second Subscription
and the Third Subscription or any of them, as the context requires.
"Subscription Amount" means the aggregate of the Initial Subscription
Purchase Price, the Second Subscription Purchase Price and the Third
Subscription Purchase Price.
"Taxes" means all income, gross receipts, gains, sales, use,
employment, franchise, profits, excise, property, value added and other taxes,
fees, stamp taxes and duties, assessments or charges of any kind, together
with any interest and penalties, additions to tax or additional amounts
imposed by any taxing authority with respect thereto.
"Tax Returns" means any and all returns and reports required to be
filed with a Governmental Authority with respect to Taxes.
"Third Subscription Trading Value" shall equal (x) the average closing
price of Celsion Common Stock on the AMEX (or such other stock exchange,
interdealer quotation system or other market as then may be the primary market
for transactions in the Celsion Common Stock in the United States) as reported
by Bloomberg Analytics (or, if unavailable, as reported by Reuters) under the
equity ticker symbol "CLN" (or such other symbol as shall be assigned to the
Celsion Common Stock) for the 30 consecutive trading days ending on the second
trading day prior to the Third Closing Date, multiplied by (y) 1.2.
"Transaction Documents" means this Agreement, the Distribution
Agreement, and any other document or agreement to be entered into, executed or
delivered pursuant to this Agreement.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"Year" means the one-year period beginning on the first day after the
Launch Date and ending on the anniversary thereof, and each successive
one-year period thereafter.
SECTION 1.02 Definitions.
The following terms have the meanings set forth in the Sections set
forth below:
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Definition Location
---------- --------
"Asset Purchase Agreement".............................. 8.02(b)
------------------------
"Blackout Period"....................................... 10.05
---------------
"Board"................................................. 7.04
-----
"BPH"................................................... Recitals
---
"BSC"................................................... Preamble
---
"BSC Indemnified Parties"............................... 13.02
-----------------------
"BSC Representative".................................... 7.04
------------------
"Celsion"............................................... Preamble
-------
"Celsion Common Stock".................................. Recitals
--------------------
"Celsion Employees"..................................... 7.05
-----------------
"Celsion Indemnified Parties"........................... 13.03
---------------------------
"Celsion Preferred Stock"............................... 5.03
-----------------------
"Celsion SEC Reports"................................... 5.07(b)
-------------------
"Celsion Shares"........................................ Recitals
--------------
"Demand Registration"................................... 10.03(a)
-------------------
"Demand Registration Statement"......................... 10.03(a)
-----------------------------
"Demand for Registration"............................... 10.03(c)
-----------------------
"Disclosing Party"...................................... 1.01 in definition of "Confidential Information"
----------------
"Distribution Agreement"................................ Recitals
----------------------
"Final Option Notice"................................... 8.02(b)
-------------------
"Indemnified Party"..................................... 13.04
-----------------
"Indemnifying Party".................................... 13.04
------------------
"Initial Closing"....................................... 2.02
---------------
"Initial Closing Date".................................. 2.02
--------------------
"Initial Subscription".................................. 2.01
--------------------
"Initial Subscription Purchase Price"................... 2.01
-----------------------------------
"Loss".................................................. 13.02
----
"Material Contracts".................................... 5.10(a)
------------------
"Maximum Number of Securities".......................... 10.04(c)
----------------------------
"Offeror"............................................... 9.01
-------
"Option"................................................ 8.01
------
"Option Exercise Price"................................. 8.03
---------------------
"Piggy-Back Registration"............................... 10.04(a)
-----------------------
"Piggy-Back Registration Statement"..................... 10.04(a)
---------------------------------
"Preliminary Option Notice"............................. 8.02(a)
-------------------------
"Purchase Disclosure Schedule".......................... 8.02(a)
----------------------------
"Receiving Party"....................................... 1.01 in definition of "Confidential Information"
---------------
"Rights Agreement"...................................... 7.03
----------------
"Second Closing"........................................ 3.02
--------------
"Second Closing Date"................................... 3.02
-------------------
"Second Subscription"................................... 3.01
-------------------
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"Second Subscription Purchase Price".................... 3.01
----------------------------------
"Securities Laws"....................................... 6.04(d)
---------------
"Shelf Registration".................................... 10.03(b)
------------------
"Shelf Registration Statement".......................... 10.03(b)
----------------------------
"Third Closing"......................................... 5.02
-------------
"Third Closing Date".................................... 5.02
------------------
"Third Party Claims".................................... 13.04
------------------
"Third Subscription".................................... 5.01
------------------
"Third Subscription Purchase Price"..................... 5.01
---------------------------------
ARTICLE II
INITIAL SUBSCRIPTION
SECTION 2.01 Initial Subscription for Celsion Shares.
Subject to the terms and conditions set forth in this Agreement, at
the Initial Closing, Celsion shall issue and sell to BSC, and BSC agrees to
purchase from Celsion, such number of Celsion Shares which shall be equal to
$5,000,000 (the "Initial Subscription Purchase Price") divided by the Initial
Subscription Trading Value, rounded down to the next whole number (such issue
and sale, the "Initial Subscription").
SECTION 2.02 Initial Closing.
Subject to the terms and conditions set forth in this Agreement, the
Initial Subscription shall take place at a closing (the "Initial Closing") to
be held at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx at 10:00 A.M. New York time on the later to occur of (a) January 21,
2003, and (b) the fifth Business Day following the satisfaction or waiver of
all conditions to the obligations of the parties set forth in Sections 12.01,
12.02 and 12.03 (other than those which by their nature are to be satisfied at
the Initial Closing) or at such other place or at such other time or on such
other date as the parties hereto may mutually agree upon in writing (the day
on which the Initial Closing takes place being the "Initial Closing Date").
SECTION 2.03 Initial Closing Deliveries.
(a) At the Initial Closing, Celsion shall deliver or cause to be
delivered to BSC:
(i) a certificate or certificates evidencing the number
of Celsion Shares required by the Initial
Subscription in the name of BSC;
(ii) a receipt for the Initial Subscription Purchase
Price;
(iii) a duly executed counterpart to the Distribution
Agreement; and
(iv) the opinion required to be delivered pursuant to
Section 12.03(b).
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(b) At the Initial Closing, BSC shall deliver or cause to be
delivered to Celsion:
(i) the amount equal to the result of (A) the Initial
Subscription Purchase Price, less (B) the Note
Amount, by wire transfer in immediately available
funds to an account or accounts designated by
Celsion two Business Days prior to the Initial
Closing;
(ii) the Note, duly endorsed, for cancellation; and
(iii) a duly executed counterpart to the Distribution
Agreement.
SECTION 2.04 Application of Proceeds.
Celsion shall reserve such amount of proceeds from the Subscription
Amount as shall be sufficient to ensure that the progress of manufacturing the
Control Units will enable Celsion to meet BSC's initial stocking order for
Control Units under the Distribution Agreement and otherwise satisfy the
requirements for launch, continued supply of the Products and other
requirements set forth in this Agreement and the Distribution Agreement and
Celsion acknowledges and agrees that the minimum expenditure requirements
through the first anniversary of the Launch Date are estimated to be $*.(1)
ARTICLE III
SECOND SUBSCRIPTION
SECTION 3.01 Second Subscription for Celsion Shares.
Subject to the terms and conditions set forth in this Agreement, at
the Second Closing, Celsion shall issue and sell to BSC, and BSC agrees to
purchase from Celsion, such number of Celsion Shares which shall be equal to
$* (or as may be reduced pursuant to this Section 3.01, the "Second
Subscription Purchase Price") divided by the Second Subscription Trading
Value, rounded down to the next whole number (such issue and sale, the "Second
Subscription"); provided, however, that in the event that such number of
Celsion Shares to be issued and sold to BSC under the Second Subscription
would result in the aggregate number of Celsion Shares held by BSC immediately
following the Second Closing to exceed *% of all Celsion Common Stock (x)
outstanding immediately prior to the Initial Closing or (y) outstanding
immediately after the Second Closing, (a) the number of Celsion Shares to be
issued and sold to BSC under the Second Subscription shall be reduced to equal
the
---------------------------
(1)* Material has been omitted and filed separately with the Commission.
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highest number of Celsion Shares which can be issued and sold to BSC and
not result in the aggregate number of Celsion Shares held by BSC immediately
following the Second Closing to exceed *% of all Celsion Common Stock (x)
outstanding immediately prior to the Initial Closing or (y) outstanding
immediately after the Second Closing, and (b) the Second Subscription Purchase
Price shall equal (i) the number of Celsion Shares calculated in paragraph
(a), multiplied by (ii) the Second Subscription Trading Value. (2)
SECTION 3.02 Second Closing.
Subject to the terms and conditions set forth in this Agreement, the
Second Subscription shall take place at a closing (the "Second Closing") to be
held at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx at 10:00 A.M. New York time on the later of (a) the second trading
day following the period of 30 consecutive trading days commencing on the
first trading day after the FDA Approval Date and (b) the fifth Business Day
following the satisfaction or waiver of all conditions to the obligations of
the parties set forth in Sections 12.01, 12.02 and 12.04 (other than those
which by their nature are to be satisfied at the Second Closing) or at such
other place or at such other time or on such other date as the parties hereto
may mutually agree upon in writing (the day on which the Second Closing takes
place being the "Second Closing Date").
SECTION 3.03 Second Closing Deliveries.
(a) At the Second Closing, Celsion shall deliver or cause to be
delivered to BSC:
(i) a certificate or certificates evidencing the number of
Celsion Shares required by the Second Subscription in
the name of BSC; and
(ii) a receipt for the Second Subscription Purchase Price.
(b) At the Second Closing, BSC shall deliver or cause to be delivered to
Celsion, the Second Subscription Purchase Price by wire transfer in immediately
available funds to an account or accounts designated by Celsion two Business
Days prior to the Second Closing.
ARTICLE IV
THIRD SUBSCRIPTION
SECTION 4.01 Third Subscription for Celsion Shares.
Subject to the terms and conditions set forth in this Agreement, at the
Third Closing, Celsion shall issue and sell to BSC, and BSC agrees to purchase
from Celsion, such number
-----------------
(2)* Material has been omitted and filed separately with the Commission.
11
of Celsion Shares which shall be equal to $* (or as may be reduced pursuant to
this Section 4.01, the "Third Subscription Purchase Price") divided by the Third
Subscription Trading Value, rounded down to the next whole number (such issue
and sale, the "Third Subscription"); (3) provided, however, that in the event
that such number of Celsion Shares to be issued and sold to BSC under the Third
Subscription would result in the aggregate number of Celsion Shares held by BSC
immediately following the Third Closing to exceed *% of all Celsion Common Stock
(x) outstanding immediately prior to the Initial Closing or (y) outstanding
immediately after the Third Closing, (a) the number of Celsion Shares to be
issued and sold to BSC under the Third Subscription shall be reduced to equal
the highest number of Celsion Shares which can be issued and sold to BSC and not
result in the aggregate number of Celsion Shares held by BSC immediately
following the Third Closing to exceed *% of all Celsion Common Stock (x)
outstanding immediately prior to the Initial Closing or (y) outstanding
immediately after the Third Closing, and (b) the Third Subscription Purchase
Price shall equal (i) the number of Celsion Shares calculated in paragraph (a),
multiplied by (ii) the Third Subscription Trading Value.
SECTION 4.02 Third Closing.
Subject to the terms and conditions set forth in this Agreement, the
Third Subscription shall take place at a closing (the "Third Closing") to be
held at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx at 10:00 A.M. New York time on the later to occur of (a) the Launch Date,
and (b) the fifth Business Day following the satisfaction or waiver of all
conditions to the obligations of the parties set forth in Sections 12.01 and
12.02 (other than those which by their nature are to be satisfied at the Third
Closing) or at such other place or at such other time or on such other date as
the parties hereto may mutually agree upon in writing (the day on which the
Third Closing takes place being the "Third Closing Date").
SECTION 4.03 Third Closing Deliveries.
(a) At the Third Closing, Celsion shall deliver or cause to be delivered
to BSC:
(i) a certificate or certificates evidencing the number of
Celsion Shares required by the Third Subscription in the
name of BSC; and
(ii) a receipt for the Third Subscription Purchase Price.
(b) At the Third Closing, BSC shall deliver or cause to be
delivered to Celsion, the Third Subscription Purchase Price by wire transfer in
immediately available
12
------------------------------------
(3)* Material has been omitted and filed separately with the Commission.
funds to an account or accounts designated by Celsion two Business Days prior to
the Third Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CELSION
Celsion hereby represents and warrants to BSC as follows:
SECTION 5.01 Organization and Qualification of Celsion.
Celsion is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all necessary corporate
power and authority to own, operate or lease the properties and assets now
owned, operated or leased by it and to carry on the business as it has been and
is currently conducted. Celsion is duly licensed or qualified to do business and
is in good standing in each jurisdiction in which the properties owned or leased
by it or the operation of its business makes such licensing or qualification
necessary or desirable, and all such jurisdictions are set forth in Section 5.01
of the Disclosure Schedule. True and correct copies of Celsion's Certificate of
Incorporation and By-Laws are attached hereto as Exhibit C, each as in effect on
the date hereof.
SECTION 5.02 Subsidiaries.
There are no corporations, partnerships, joint ventures, associations or
other entities in which Celsion owns, of record or beneficially, any direct or
indirect equity interest or any right (contingent or otherwise) to acquire the
same. Celsion is not a member of (nor is any part of its business conducted
through) any partnership.
SECTION 5.03 Capital Stock of Celsion.
As of January 17, 2003, the authorized capital stock of Celsion consists
of (i) two hundred million (200,000,000) shares of Celsion Common Stock and (ii)
one hundred thousand (100,000) shares of Preferred Stock, par value $0.01 per
share ("Celsion Preferred Stock") and, as of the date hereof, there are 101,
687,922 shares of Celsion Common Stock, 1156.97 shares of Series A 10%
Convertible Celsion Preferred Stock and 1588.11 shares of Series B 8%
Convertible Celsion Preferred Stock issued and outstanding. In addition, there
are 15,000 shares of Celsion Preferred Stock designated as "Series C Junior
Participating Preferred Stock," of which no shares are issued and outstanding as
of the date hereof. All of the outstanding shares of Celsion's capital stock are
duly and validly issued, fully paid and nonassessable. None of the issued and
outstanding shares of capital stock of Celsion was issued in violation of any
preemptive rights. Except as set forth in Section 5.03 of the Disclosure
Schedule, as of the date hereof, there are no options, warrants, subscriptions,
calls, convertible securities or other rights, agreements, arrangements or
commitments relating to the capital stock of Celsion or obligating Celsion to
issue or sell any shares of capital stock of, or any other equity interest in,
Celsion. Except
13
as set forth in Section 5.03 of the Disclosure Schedule, there are no
outstanding contractual obligations of Celsion to repurchase, redeem or
otherwise acquire any shares of capital stock of Celsion or make any investment
(in the form of a loan, capital contribution or otherwise) in any other Person.
Upon consummation of the transactions as contemplated by this Agreement, the
Celsion Shares purchased by BSC will have been duly and validly issued, fully
paid and nonassessable, the issuance of those Celsion Shares is not subject to
preemptive or other similar rights, and upon registration of those Celsion
Shares in the name of BSC in the records of Celsion, BSC will own those Celsion
Shares free and clear of all Encumbrances.
SECTION 5.04 Authority of Celsion.
Celsion has all necessary corporate power and authority to enter into
the Transaction Documents, to carry out its obligations thereunder and to
consummate the transactions contemplated thereby. The execution and delivery of
the Transaction Documents by Celsion, the performance by Celsion of its
obligations thereunder and the consummation by Celsion of the transactions
contemplated thereby have been duly authorized by all requisite action on the
part of Celsion. The Transaction Documents have been, or upon their execution
shall be, duly executed and delivered by Celsion, and each Transaction Document
constitutes, or upon its execution shall constitute, legal, valid and binding
obligations of Celsion enforceable against Celsion in accordance with their
respective terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws relating to or
affecting the rights of creditors generally (including, without limitation,
fraudulent conveyance laws) and (ii) the exercise of judicial discretion in
accordance with general principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or in equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance, or injunctive
relief.
SECTION 5.05 No Conflict.
Except as set forth in Section 5.05 of the Disclosure Schedule, the
execution, delivery and performance of the Transaction Documents by Celsion do
not and will not (a) violate, conflict with or result in the breach of any
provision of Celsion's Certificate of Incorporation and By-Laws, (b) conflict
with or violate (or cause a Material Adverse Effect as a result of) any Law or
Governmental Order applicable to Celsion, or any of its assets, properties or
businesses, or (c) conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any rights
of termination, amendment, acceleration, suspension, revocation or cancellation
of, or result in the creation of any Encumbrance on any of the Celsion Shares
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
Celsion is a party or by which any of the Celsion Shares or any of such assets
or properties is bound or affected.
SECTION 5.06 Governmental Consents and Approvals.
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The execution, delivery and performance of the Transaction Documents by
Celsion do not and will not require any consent, approval, authorization or
other order of, action by, filing with or notification to, any Governmental
Authority.
SECTION 5.07 Financial Information; SEC Filings.
(a) The Financial Statements fairly present in all material respects, in
accordance with GAAP consistently applied, the financial condition and results
of operation of Celsion as of the date thereof and for the periods set forth
therein, except for the absence of footnotes and as otherwise noted therein.
(b) Celsion has filed all forms, reports, statements and other documents
required to be filed by it with the SEC pursuant to the Exchange Act since
January 1, 2000, including (i) its Annual Reports on Form 10-K for the fiscal
years ended September 30, 2000, 2001 and 2002, respectively and (ii) all other
forms, reports and other registration statements (other than Annual Reports on
Form 10-K) required to be filed by Celsion with the SEC pursuant to the Exchange
Act since January 1, 2000 (the forms, reports and other documents referred to in
clauses (i) and (ii) above being, collectively, the "Celsion SEC Reports"). The
Celsion SEC Reports, including any financial statements or schedules included or
incorporated by reference therein, (i) were prepared in accordance with and
complied in all material respects with either the requirements of the Securities
Act or the Exchange Act, as the case may be, and (ii) did not, at the time they
were filed, or, if amended, as of the date of such amendment, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. The
audited financial statements contained in the Celsion SEC Reports were prepared
in accordance with GAAP as in effect as of the dates of such filings, applied on
a consistent basis during the periods involved (except as may be stated in the
notes thereto) and fairly present, in all material respects, the financial
position, results of operations and cash flows of Celsion, as of the dates and
for the periods referred to therein.
SECTION 5.08 Absence of Undisclosed Liabilities.
Celsion has no Liabilities other than Liabilities (a) reflected or
reserved against on the Financial Statements or (b) incurred since September 30,
2002 in the ordinary course of business, consistent with past practice, of
Celsion.
SECTION 5.09 Absence of Certain Changes or Events.
(a) Except as set forth in Section 5.09(a) of the Disclosure Schedule,
since September 30, 2002 until the date hereof, (i) Celsion has conducted its
businesses in the ordinary course of business, consistent with past practice and
(ii) Celsion has not taken any action that, if taken after the date hereof,
would constitute a breach of any of the covenants set forth in Section 7.01 or
7.02.
15
(b) Except as set forth in Section 5.09(a) of the Disclosure Schedule,
since September 30, 2002 until the date hereof, there has not been with respect
to Celsion any event or development or change which has resulted or would
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10 Material Contracts.
(a) Section 5.10(a) of the Disclosure Schedule lists each of the
following contracts and agreements (including oral agreements) of Celsion (such
contracts and agreements, together with all leases of Leased Real Property and
any subleases thereof, being the "Material Contracts"):
(i) any contract evidencing Indebtedness, including
promissory notes and letters of credit, of $50,000 or
more;
(ii) any purchase, production, sales, agency, distribution,
advertising, consulting or outsourcing contract with
annual payments in excess of $25,000;
(iii) any contract related to the manufacturing of the
Products;
(iv) any Celsion IP Agreement, including patent, copyright
and trademark licenses and co-ownership, cooperation and
coexistence agreements;
(v) any collaboration, research and development contract and
any other contract relating to scientific and clinical
relationships;
(vi) all contracts and agreements with any Governmental
Authority;
(vii) any contract limiting the freedom of Celsion to engage
in any line of business or to compete with any other
Person or restricting or purporting to restrict the
ability of Celsion to engage in any type of business or
to operate in any geographic area;
(viii) any contract granting to any Person a right of first
refusal or option or similar right to purchase or
acquire any of the properties, rights and assets of
Celsion;
(ix) any material contract containing termination or other
provisions triggered by a change in control of Celsion;
(x) any contract pursuant to which any Person has a current
or future right to representation on the Board of
Directors of Celsion;
(xi) any contract containing restrictions with respect to the
payment of dividends or other distributions with respect
to any Celsion capital stock; and
16
(xii) all other contracts and agreements, whether or not made
in the ordinary course of business, which are material
to Celsion or the conduct of its business, or the
absence of which would have a Material Adverse Effect.
(b) Each Material Contract is a valid and binding agreement of
Celsion, is in full force and effect and constitutes the entire agreement with
respect to the subject matter relating to such Material Contract. Upon
consummation of the transactions contemplated by this Agreement, each Material
Contract shall continue in full force and effect without penalty or other
adverse consequence. Celsion is not in breach of, or default under, any Material
Contract.
(c) To the knowledge of Celsion, no other party to any Material
Contract is in breach thereof or default thereunder and Celsion has not received
any notice of termination, cancellation, breach or default under any Material
Contract.
(d) Celsion has made available to BSC true and complete copies
of all Material Contracts.
SECTION 5.11 Compliance with Law.
Celsion has complied, in all material respects, with all Laws
and Governmental Orders applicable to Celsion. Except as set forth in Section
5.11 of the Disclosure Schedule, Celsion has not received written notice from
any third party, including any Governmental Authority, alleging that Celsion has
been or is in violation or potentially in violation of any applicable Law or
Governmental Order or otherwise may be liable thereunder.
SECTION 5.12 Governmental Licenses.
Celsion holds all requisite governmental licenses, permits and
other approvals to own and hold under lease its properties, assets and rights
and to conduct its business substantially as conducted by it. No suspension or
cancellation of any such licenses, permits or approvals is pending or, to the
knowledge of Celsion, threatened.
SECTION 5.13 Litigation.
Except as set forth in Section 5.13 of the Disclosure Schedule, as of
the date hereof, there is no Action by or against Celsion pending before any
Governmental Authority (or, to the knowledge of Celsion, threatened to be
brought by or before any Governmental Authority).
SECTION 5.14 Intellectual Property.
(a) Section 5.14(a) of the Disclosure Schedule sets forth a true and
complete list of (i) all patents and patent applications, registered trademarks
and trademark applications, registered copyrights and copyright applications,
and domain names included in the Owned Intellectual Property, (ii) all Celsion
IP Agreements, other than commercially available off-the-
17
shelf computer software licensed pursuant to shrink-wrap or click wrap licenses
that is not material to Celsion's business, and (iii) other Owned Intellectual
Property material to Celsion's business.
(b) Celsion is the exclusive owner of the entire right, title and
interest in and to the Owned Intellectual Property, and has a valid license to
use the Licensed Intellectual Property in connection with its business as
currently conducted or, with respect to the BPH Business, as contemplated to be
conducted. Celsion is entitled to use all Owned Intellectual Property and
Licensed Intellectual Property in the continued operation of its business
without limitation, subject only to the terms of the Celsion IP Agreements, as
the case may be. The Owned Intellectual Property and the Licensed Intellectual
Property have not been adjudged invalid or unenforceable in whole or in part,
and, to the knowledge of Celsion, are valid and enforceable.
(c) To the knowledge of Celsion, the conduct of its business as
currently conducted does not infringe or misappropriate the Intellectual
Property of any third party, and no Action alleging any of the foregoing is
pending, and no unresolved, written claim has been threatened or asserted
against Celsion alleging any of the foregoing. To the knowledge of Celsion, no
person is engaging in any activity that infringes the Owned Intellectual
Property.
(d) No Owned Intellectual Property is subject to any outstanding decree,
order, injunction, judgment or ruling restricting the use of such Intellectual
Property or that would impair the validity or enforceability of such
Intellectual Property.
(e) The consummation of the transactions contemplated by this Agreement
will not result in the termination, loss or impairment of any of the Owned
Intellectual Property or the rights of Celsion under the Celsion IP Agreements.
(f) Celsion has taken all necessary steps in accordance with industry
standards to maintain the security, confidentiality and value of their
technology, trade secrets and other confidential Intellectual Property material
to Celsion's business, including, without limitation, all tangible embodiments
thereof.
SECTION 5.15 Real Property.
(a) Celsion has no Owned Real Property.
(b) Section 5.15(b) of the Disclosure Schedule lists, as of the date
hereof: (i) the street address of each parcel of Leased Real Property, (ii) the
identity of the lessor, lessee and current occupant (if different from lessee)
of each such parcel of Leased Real Property, and (iii) the current use of each
such parcel of Leased Real Property.
SECTION 5.16 ERISA.
No condition exists or event or transaction has occurred with respect to
any Pension Plan, which might result in the incurrence by Celsion of any
material liability, fine
18
or penalty other than a non-defaulted obligation to make a contribution under
Section 302 of ERISA. Celsion has no contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA. Celsion has no
material Liabilities under Title IV of ERISA and no circumstance exists that
would give rise thereto.
SECTION 5.17 Taxes.
All Tax Returns required to be filed by or with respect to Celsion have
been timely filed (taking into account any extension of time to file granted to
or obtained on behalf of Celsion). All Taxes shown to be payable on such Tax
Returns have been paid. No deficiency for Taxes has been asserted or assessed in
writing by a taxing authority against Celsion.
SECTION 5.18 Insurance
All assets, properties and risks of Celsion are, and for the
past three years have been, covered by valid and, except for insurance policies
that have expired under their terms in the ordinary course, currently effective
insurance policies (including product liability and general liability insurance)
issued in favor of Celsion, in such types and amounts and covering such risks as
are consistent with customary practices and standards of companies engaged in
businesses and operations similar to those of Celsion.
SECTION 5.19 Brokers.
Except for Xxxx Xxxxx Xxxx Xxxxxx Incorporated, no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Celsion.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BSC
BSC hereby represents and warrants to Celsion as follows:
SECTION 6.01 Organization and Authority of BSC.
BSC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all necessary
corporate power and authority to enter into the Transaction Documents, to carry
out its obligations thereunder and to consummate the transactions contemplated
thereby. The execution and delivery by BSC of the Transaction Documents, the
performance by BSC of its obligations thereunder and the consummation by BSC of
the transactions contemplated thereby have been duly authorized by all requisite
corporate action on the part of BSC. Each Transaction Document has been, or upon
its execution shall be, duly executed and delivered by BSC, and shall
constitute,
19
legal, valid and binding obligations of BSC, enforceable against BSC in
accordance with their respective terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws
relating to or affecting the rights of creditors generally (including, without
limitation, fraudulent conveyance laws) and (ii) the exercise of judicial
discretion in accordance with general principles of equity, regardless of
whether such enforceability is considered in a proceeding at law or in equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance,
or injunctive relief.
SECTION 6.02 No Conflict.
The execution, delivery and performance by BSC of the
Transaction Documents do not and will not (a) violate, conflict with or result
in the breach of any provision of the Certificate of Incorporation or By-laws of
BSC, (b) conflict with or violate any Law or Governmental Order applicable to
BSC or (c) conflict with, or result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, amendment, acceleration, suspension, revocation or cancellation of,
any note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which BSC is a
party, which would adversely affect the ability of BSC to carry out its
obligations under, and to consummate the transactions contemplated by, the
Transaction Documents.
SECTION 6.03 Governmental Consents and Approvals.
The execution, delivery and performance by BSC of the
Transaction Documents do not and will not require any consent, approval,
authorization or other order of, action by, filing with, or notification to any
Governmental Authority.
SECTION 6.04 Investment.
(a) BSC is fully aware of: (i) the highly speculative nature of
the investment in the Celsion Shares; (ii) the financial risks involved in such
investment; and (iii) the lack of liquidity of the Celsion Shares.
(b) BSC is an "accredited investor" as defined under Rule 501 of
Regulation D promulgated under the Securities Act. By reason of its business or
financial experience, BSC is capable of evaluating the merits and risks of this
investment.
(c) BSC understands and acknowledges that, in reliance upon the
representations and warranties made thereby herein, the Celsion Shares are not
being registered with the SEC under the Securities Act or being qualified under
the securities or "blue sky" laws of any state or other jurisdiction
(collectively, the "Securities Laws"), but instead are being issued under an
exemption or exemptions from the registration and qualification requirements of
the Securities Act or Securities Laws, which impose certain restrictions BSC
ability to transfer the Celsion Shares.
20
(d) BSC understands that it may not transfer any of the Celsion
Shares unless such Celsion Shares are registered under the Securities Act and
applicable Securities Laws or BSC provides an opinion of counsel reasonably
satisfactory to Celsion that exemptions from such registration requirements are
available.
(e) BSC understands that the stock certificates, or other
instruments representing any of the Celsion Shares may bear legends
substantially similar to the following:
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS RESTRICTED BY THE TRANSACTION AGREEMENT, DATED JANUARY 20,
2003, BETWEEN THE CORPORATION AND BOSTON SCIENTIFIC
CORPORATION, ON FILE AT THE OFFICES OF THE CORPORATION. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH
LAWS.
SECTION 6.05 Brokers.
No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of BSC.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01 Conduct of Business prior to Third Closing.
Except as expressly provided in this Agreement, from and after
the date of this Agreement and until the Third Closing Date, Celsion shall
conduct and maintain its businesses in the ordinary course of business,
consistent with past practice and without limiting the generality of the
foregoing, without the prior written consent of BSC (which consent shall not be
unreasonably withheld, conditioned or delayed), Celsion shall not:
(a) amend its Certificate of Incorporation or Bylaws;
(b) except as set forth in Section 7.01(b) of the Disclosure
Schedule, (i) declare, set aside or pay any dividend or other distribution
(other than in cash), with respect to any shares of any class or series of
capital stock of Celsion or (ii) redeem,
21
purchase or otherwise acquire directly or indirectly any shares of any class or
series of capital stock of Celsion, or any instrument or security which consists
of or includes a right to acquire such shares or interests;
(c) sell, lease, license, mortgage or otherwise dispose of any
properties or assets, real, personal or mixed, having a fair market value in
excess of $250,000 individually or $1,000,000 in the aggregate, other than (i)
sales made in the ordinary course of business consistent with past practice or
(ii) sales of obsolete or other assets not presently utilized in its business;
(d) make any change in its accounting principles, practices or methods,
other than as may be required by GAAP, Law or any Governmental Authority;
(e) organize any new subsidiary (except a wholly-owned subsidiary) or
acquire (including by merger, consolidation or acquisition of stock or assets or
any other business combination) any interest in any other Person or any division
thereof or any material amount of assets;
(f) modify, amend or terminate any Material Contract or waive, release
or assign any material rights or claims under a Material Contract, except in the
ordinary course of business and consistent with past practice;
(g) enter into any contract that would constitute a Material Contract,
other than in the ordinary course of business consistent with past practice;
(h) pay, discharge or satisfy any of its claims, Liabilities or
obligations, other than the payment, discharge or satisfaction in the ordinary
course of business and consistent with past practice;
(i) cancel any Indebtedness owed to it or waive any claims;
(j) make, revoke or change any express or deemed election, change any
method of Tax accounting or settle or compromise any liability with respect to
Taxes of Celsion;
(k) authorize, or make any commitment with respect to, any single
capital expenditure in excess of $250,000;
(l) authorize any of, or commit or agree to take any of, the actions
referred to in the paragraphs (a) through (k) above.
SECTION 7.02 Conduct of Business prior to Exercise of Option.
Except as expressly provided in this Agreement, from and after the date
of this Agreement and until the earlier of (a) the date of the Final Option
Notice and (b) the end of the Option Exercise Period, Celsion shall conduct and
maintain its BPH Business in the ordinary course of business, consistent with
past practice and without limiting the generality
22
of the foregoing, without the prior written consent of BSC (which consent shall
not be unreasonably withheld or delayed), Celsion shall not:
(a) sell, lease, license, mortgage or otherwise dispose of any BPH
Asset, other than (i) sales made in the ordinary course of business consistent
with past practice or (ii) sales of obsolete or other assets not presently
utilized in the BPH Business;
(b) modify, amend, terminate or cause to be terminated any BPH Material
Contract or waive, release or assign any material rights or claims under a BPH
Material Contract, except in the ordinary course of business and consistent with
past practice;
(c) (i) fail to perform any filing, recording or other act, or pay any
fee or Taxes to maintain and protect its interest in the BPH Intellectual
Property, or (ii) permit any item of BPH Intellectual Property to become
abandoned or dedicated to the public, to be disclaimed or to lapse;
(d) enter into any contract that would constitute a BPH Material
Contract, other than in the ordinary course of business consistent with past
practice;
(e) enter into any contract relating to the manufacture of the Product,
unless such contract is assignable without the prior consent of the manufacturer
to BSC upon execution of the Option;
(f) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization,
other than for the purpose of internal restructuring;
(g) authorize, or make any commitment with respect to, any single
capital expenditure for the BPH Business in excess of $250,000; and
(h) authorize any of, or commit or agree to take any of, the actions
referred to in the paragraphs (a) through (g) above.
SECTION 7.03 Rights Agreement.
As soon as practicable after the Initial Closing Date, Celsion shall
amend the Rights Agreement, dated August 15, 2002, between Celsion and American
Stock Transfer & Trust Company (the "Rights Agreement") to provide that the
ownership by BSC of Celsion Shares in accordance with and to the extent provided
by this Agreement will not result in BSC being deemed an Acquiring Person (as
such term is defined in the Rights Agreement) or result in the occurrence of a
Stock Acquisition Date or a Flip-In Event (as such terms are defined in the
Rights Agreement) or result in the occurrence of an event described in Section
13(a) of the Rights Agreement, or otherwise as may be necessary.
SECTION 7.04 Board Observation Rights.
23
Celsion shall give one individual designated, from time to time, by BSC,
and approved by Celsion in its reasonable discretion (the "BSC Representative")
written notice of each meeting of the Board of Directors of Celsion (the
"Board") and each committee thereof at least at the same time and in the same
manner as notice is given to the directors (which notice shall be promptly
confirmed in writing), and Celsion shall permit the BSC Representative to attend
as an observer all meetings of the Board and all committees thereof. The BSC
Representative shall receive all written materials and other information
(including without limitation copies of meeting minutes) given to directors in
connection with such meetings at the same time such materials and information
are given to the directors. If Celsion proposes to take any action by written
consent in lieu of a meeting of the Board or of any committee thereof, Celsion
shall give written notice thereof to the BSC Representative prior to the
effective date of such consent describing in reasonable detail the nature and
substance of such action. Celsion shall cause each of its subsidiaries to
provide to the BSC Representative the same rights with respect to such
subsidiary (including, without limitation, relating to notice of and attendance
at meetings of the board of directors of such subsidiary) as provided by Celsion
to BSC hereunder. The BSC Representative may, from time to time, designate an
alternate individual to replace the BSC Representative in his or her absence at
any meeting referred to in this Section 7.04.
SECTION 7.05 Celsion Employees.
As soon as practicable after the date hereof but in any event prior to
the Second Closing Date, Celsion shall cause all directors, officers, employees
and consultants of Celsion (collectively "Celsion Employees") to execute and
deliver to Celsion agreements prohibiting the use or disclosure of Celsion's
confidential or proprietary information and assigning to Celsion all right,
title and interest in and to all inventions, including all Intellectual Property
therein, conceived of, reduced to practice or otherwise made by any Celsion
Employee at any time during, and within the scope of, their employment or other
appointment with Celsion, in each case to the greatest extent permitted by
applicable Law.
ARTICLE VIII
OPTION TO PURCHASE
SECTION 8.01 Grant of the Option.
Celsion hereby grants to BSC the exclusive right and option to require
Celsion, at any one time during the Option Exercise Period, to sell the BPH
Business and the BPH Assets to BSC for the Option Exercise Price, upon the terms
and conditions set forth in this Agreement (the "Option").
SECTION 8.02 Exercise of the Option.
(a) BSC may, from time to time during the Option Exercise Period, give
written notice (the "Preliminary Option Notice") to Celsion that BSC proposes to
exercise the Option and, Celsion shall, within 15 Business Days after receipt of
the Preliminary
24
Option Notice, deliver to BSC a disclosure schedule containing the information
required by the Asset Purchase Agreement (such disclosure schedule, the
"Purchase Disclosure Schedule").
(b) At any time during the period beginning on the date of BSC's receipt
of the Purchase Disclosure Schedule and ending 15 Business Days thereafter, BSC
may exercise the Option by providing written notice (the "Final Option Notice")
thereof to Celsion. The Final Option Notice shall constitute an irrevocable
offer by BSC to exercise the Option and purchase from Celsion the BPH Business
and the BPH Assets and, upon receipt of the Final Option Notice, Celsion shall
be obligated to sell to BSC the BPH Business and the BPH Assets, upon the terms
and subject to the conditions set forth in the Asset Purchase Agreement attached
hereto as Exhibit D (the "Asset Purchase Agreement"). Upon the delivery of the
Final Option Notice, the Asset Purchase Agreement shall be deemed to be
immediately effective and the Purchase Disclosure Schedule shall be deemed to be
the Purchase Disclosure Schedule to the Asset Purchase Agreement.
(c) In addition to its obligation to deliver the Purchase Disclosure
Schedule, Celsion shall, during the period from the date of Celsion's receipt of
the Preliminary Option Notice until the closing of the transactions contemplated
by the Asset Purchase Agreement, (i) afford BSC and its representatives access
to those officers, directors, employees, agents, accountants and counsel of
Celsion who have any knowledge relating to the BPH Business and the BPH Assets
and (ii) furnish to BSC and its representatives such financial and operating
data and other information and documentation regarding the BPH Business and the
BPH Assets, in each case as BSC may from time to time reasonably request.
SECTION 8.03 Option Exercise Price.
(a) The "Option Exercise Price" shall equal (i) if the Option is
exercised during the Stub Period, $*,(ii) if the Option is exercised during
the first or second Year after the Launch Date, the amount equal to (A) the Net
Revenue for the 12-month period ending on the date of the Final Option Notice,
multiplied by (B) *, or (iii) if the Option is exercised during the third,
fourth or fifth Year after the Launch Date, the amount equal to (A) the Net
Revenue for the 12-month period ending on the date of the Final Option Notice,
multiplied by (B) *;(4) provided, however, that in the event that the Option
Exercise Price calculated under paragraph (ii) or (iii) above shall equal an
amount less than $*, then the Option Exercise Price shall be deemed to be equal
to $*; provided further, however, that the Option Exercise Price as calculated
pursuant to paragraph (i), (ii) or (iii) above shall be subject to adjustment as
set forth in Section 8.03(a) of the Disclosure Schedule.
--------------------------
(4)* Material has been omitted and filed separately with the Commission.
25
(b) Within ten Business Days of each quarter commencing after the Launch
Date, Celsion shall furnish BSC with a statement of the calculation of Net
Revenue for each of the three preceding months.
(c) Upon reasonable notice to Celsion, BSC shall have the right to
conduct an audit, not more than twice per Year, through its auditor, Ernst &
Young LLP (or, if such firm shall decline or is unable to act, such other
accounting firm mutually acceptable to Celsion and BSC), of the calculation of
Net Revenue, and to examine the records and books of account of Celsion in
connection therewith. BSC shall bear the full cost and expense of any such
audit.
ARTICLE IX
MATCHING RIGHTS AND RIGHTS OF FIRST OFFER
SECTION 9.01 Matching Right.
If Celsion receives an unsolicited written offer in good faith from a
third party (the "Offeror") to enter into a New Product Transaction, Celsion
shall notify BSC of such offer and provide BSC with the right to accept such
offer on the same terms and conditions as are stated in the offer. Celsion's
notice to BSC shall set forth the name of the Offeror, the price and other terms
of the offer and any other information that is material to consideration of the
proposed New Product Transaction. BSC may elect to enter into the New Product
Transaction on the same terms and conditions as are set forth in the offer by
giving written notice to Celsion within 30 days after receiving notice from
Celsion. If BSC fails to respond, or notifies Celsion that it elects not to
match the terms of the third party offer, within such 30 day period, then
Celsion may proceed to consummate the proposed New Product Transaction with the
Offeror.
SECTION 9.02 Right of First Offer.
If Celsion desires to enter into a New Product Transaction, Celsion
shall provide BSC with the right to make a written offer in good faith for such
New Product Transaction. If BSC fails to make such an offer within 45 days after
receiving notice of the New Product Transaction from Celsion or, having made an
offer, fails to enter into such New Product Transaction within 45 days after
making such an offer, Celsion shall have the right to enter the New Product
Transaction with another Person; provided, however, that Celsion shall not enter
such New Product Transaction with such other Person if the terms and conditions
of such New Product Transaction are more favorable to such other Person than the
terms originally offered by BSC; provided further, however, that if the terms
and conditions of such New Product Transaction are more favorable to such other
Person than the terms most recently offered by BSC, Celsion shall provide BSC
with the right to enter into such New Product Transaction on such more favorable
terms and conditions by giving notice to Celsion within 15 Business Days after
receiving notice of such more favorable terms and conditions from Celsion.
26
SECTION 9.03 Access to Information.
Celsion shall, during the 30 day period specified in Section 9.01 and
each 45 day period specified in Section 9.02, (i) afford BSC and its
representatives access to those officers, directors, employees, agents,
accountants and counsel of Celsion who have any knowledge relating to the
relevant New Product Transaction and (ii) furnish to BSC and its representatives
such financial and operating data and other information and documentation
regarding the relevant New Product Transaction, in each case as BSC may from
time to time reasonably request in order for BSC to determine whether to
exercise its rights under Section 9.01 or 9.02, as the case may be.
SECTION 9.04 Survival of Rights.
BSC's rights under Sections 9.01 and 9.02 shall survive until the
earlier of: (a) the end of the seventh Year, (b) the date on which BSC fails to
hold at least * percent of the aggregate number of Celsion Shares it purchased
pursuant to the Subscriptions, (c) the end of the fifth Year, if the
Distribution Agreement is terminated prior to the fifth Year, and (d) the
termination of this Agreement: (i) pursuant to Section 14.01(a) (unless
otherwise agreed), (ii) by Celsion pursuant to Section 14.01(b), (ii) by Celsion
pursuant to Section 14.01(c), or (iv) by BSC pursuant to Section 14.01(d).(5)
ARTICLE X
REGISTRATION RIGHTS
SECTION 10.01 Restriction on Sale of Celsion Shares.
BSC acknowledges that the Celsion Shares shall be issued pursuant to an
exemption from registration under the Securities Act, have not been registered
under the Securities Act and, therefore, cannot be resold unless they are
registered under the Securities Act or unless an exemption from such
registration is available.
SECTION 10.02 Restrictive Legend.
(a) Each certificate representing Celsion Shares shall be stamped or
otherwise imprinted with a legend substantially in the following form:
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED BY THE TRANSACTION
---------------------
(5)* Material has been omitted and filed separately with the Commission.
27
AGREEMENT, DATED JANUARY 20, 2003, BETWEEN THE
CORPORATION AND BOSTON SCIENTIFIC CORPORATION, ON
FILE AT THE OFFICES OF THE CORPORATION. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH
ACT OR SUCH LAWS.
(b) Celsion shall, at the request of BSC, remove from each certificate
evidencing Celsion Shares the legend described in Section 10.02(a) if in the
opinion of counsel reasonably satisfactory to Celsion the securities evidenced
thereby may be publicly sold without registration under the Securities Act.
SECTION 10.03 Demand Registration.
(a) After receipt of a written request from BSC requesting that Celsion
effect a registration (a "Demand Registration") under the Securities Act
covering all or part of the Registrable Securities which specifies the intended
method or methods of disposition thereof, Celsion shall, as expeditiously as is
possible, but in any event no later than sixty (60) days (excluding any days
which occur during a permitted Blackout Period under Section 10.05 below) after
receipt of a written request for a Demand Registration, file with the SEC, and
use its reasonable best efforts to cause to be declared effective, a
registration statement (a "Demand Registration Statement") relating to all
shares of Registrable Securities which Celsion has been so requested to register
by BSC for sale, to the extent required to permit the disposition (in accordance
with the intended method or methods thereof, as aforesaid) of the Registrable
Securities so registered, provided, however, that the aggregate number of the
Registrable Securities requested to be registered (i) constitute at least 20% of
the Registrable Securities issued pursuant to this Agreement or (ii) include all
Registrable Securities which remain outstanding at such time.
(b) Any Demand Registration Statement may be required by BSC to be in an
appropriate form under the Securities Act (a "Shelf Registration Statement")
relating to any or all of the Registrable Securities in accordance with the
methods and distribution set forth in the Shelf Registration Statement and Rule
415 under the Securities Act (the "Shelf Registration"). Any such demand to file
a Shelf Registration Statement shall require the use of two Demand for
Registration requests.
(c) BSC shall be entitled to an aggregate of three registrations of
Registrable Securities pursuant to this Section 10.03 (each, a "Demand for
Registration"); provided that a registration requested pursuant to this Section
10.03 shall not be deemed to have been effected for purposes of this Section
10.03(c) unless (i) it has been declared effective by the SEC, (ii) it has
remained effective for the period set forth in Section 10.06(a), and (iii) the
28
offering of Registrable Securities pursuant to such registration is not subject
to any stop order, injunction or other order or requirement of the SEC (other
than any such stop order, injunction, or other requirement of the SEC prompted
by the act or omission of BSC).
(d) Notwithstanding anything to the contrary contained herein, Celsion
shall not be required to prepare and file (i) more than two Demand Registration
Statements in any twelve-month period, or (ii) any Demand Registration Statement
within 90 days following the date of effectiveness of any other Registration
Statement.
SECTION 10.04 Piggy-Back Registration.
(a) If Celsion, proposes to file on its behalf and/or on behalf of any
holder of its securities (other than a holder of Registrable Securities) a
registration statement under the Securities Act on any form (other than a
registration statement on Form S-4 or S-8 or any successor form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to employees of Celsion pursuant to any employee benefit plan,
respectively) for the registration of Celsion Common Stock (a "Piggy-Back
Registration"), it will give written notice to BSC at least 20 days before the
initial filing with the SEC of such piggy-back registration statement (a
"Piggy-Back Registration Statement"), which notice shall set forth the intended
method of disposition of the securities proposed to be registered by Celsion.
The notice shall offer to include in such filing the aggregate number of shares
of Registrable Securities as BSC may request.
(b) If BSC desires to have its Registrable Securities registered under
this Section 10.04, it shall advise Celsion in writing within ten days after the
date of receipt of such offer from Celsion, setting forth the amount of such
Registrable Securities for which registration is requested. Celsion shall
thereupon include in such filing the number or amount of Registrable Securities
for which registration is so requested, subject to paragraph (c) below, and
shall use its reasonable best efforts to effect registration of such Registrable
Securities under the Securities Act.
(c) If the Piggy-Back Registration relates to an underwritten public
offering and the managing underwriter of such proposed public offering advises
in writing that, in its opinion, the amount of Registrable Securities requested
to be included in the Piggy-Back Registration in addition to the securities
being registered by Celsion would be greater than the total number of securities
which can be sold in the offering without having a material adverse effect on
the distribution of such securities or otherwise having a material adverse
effect on the marketability thereof (the "Maximum Number of Securities"), then:
(i) in the event Celsion initiated the Piggy-Back Registration,
Celsion shall include in such Piggy-Back Registration first, the
securities Celsion proposes to register and second, the
securities of all other selling security holders, including BSC,
to be included in such Piggy-Back Registration in an amount
which together with the securities Celsion proposes to register,
shall not exceed the Maximum Number of Securities, such amount
to be allocated among such selling security
29
holders on a pro rata basis (based on the number of securities
of Celsion held by each such selling security holder);
(ii) in the event any holder of securities of Celsion initiated the
Piggy-Back Registration, Celsion shall include in such
Piggy-Back Registration first, the securities such initiating
security holder proposes to register, second, the securities of
any other selling security holders, including BSC, in an amount
which together with the securities the initiating security
holder proposes to register, shall not exceed the Maximum Number
of Securities, such amount to be allocated among such other
selling security holders on a pro rata basis (based on the
number of securities of Celsion held by each such selling
security holder) and third, any securities Celsion proposes to
register, in an amount which together with the securities the
initiating security holder and the other selling security
holders propose to register, shall not exceed the Maximum Number
of Securities.
(d) Celsion will not hereafter enter into any agreement, which is
inconsistent with the rights of priority provided in paragraph (c) above.
(e) BSC's rights of registration under this Section 10.04 shall not
apply to any Piggy-Back Registration proposed to be filed during the first nine
months following the date hereof.
SECTION 10.05 Blackout Periods.
Celsion shall have the right to delay the filing or effectiveness of a
Registration Statement required pursuant to Sections 10.03 or 10.04 hereof
during no more than two periods aggregating to not more than 90 days in any
twelve-month period (a "Blackout Period") in the event that (i) Celsion would,
in accordance with the advice of its counsel, be required to disclose in the
prospectus information not otherwise then required by Law to be publicly
disclosed and (ii) in the judgment of Celsion's Board of Directors, there is a
reasonable likelihood that such disclosure, or any other action to be taken in
connection with the prospectus, would materially and adversely affect or
interfere with any financing, acquisition, merger, disposition of assets (not in
the ordinary course of business), corporate reorganization or other similar
transaction involving Celsion; provided, however, that Celsion shall delay
during such Blackout Period the filing or effectiveness of any Registration
Statement required pursuant to the registration rights of the holders of any
securities of Celsion. Celsion shall promptly give BSC written notice of such
determination containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay.
SECTION 10.06 Registration Procedures.
30
If Celsion is required by the provisions of Section 10.03 or 10.04 to
use its reasonable best efforts to effect the registration of any of its
securities under the Securities Act, Celsion will, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect
to such securities and use its reasonable best efforts to cause such
Registration Statement promptly to become and remain effective for a period of
time required for the disposition of such securities by the holders thereof but
not to exceed 30 days (except with respect to a Shelf Registration Statement
which shall remain effective for a period not to exceed 180 days); provided,
however, that before filing such registration statement or any amendments
thereto, Celsion shall furnish the representatives of BSC copies of all
documents proposed to be filed, which documents shall be subject to the review
of such representatives. Celsion shall not be deemed to have used its reasonable
best efforts to keep a Registration Statement effective during the applicable
period if it voluntarily takes any action that would result in BSC not being
able to sell its Registrable Securities during that period, unless such action
is required under applicable Law;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such Registration Statement until the
earlier of such time as all of such securities have been disposed of in a public
offering or the expiration of 30 days (except with respect to the Shelf
Registration Statement, for which such period shall be 90 days);
(c) furnish to BSC such number of conformed copies of the applicable
Registration Statement and each such amendment and supplement thereto (including
in each case all exhibits), and of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as BSC may reasonably request;
(d) use its reasonable best efforts to register or qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
BSC shall reasonably request, and to keep such registration or qualification in
effect for so long as such Registration Statement remains in effect (provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business, subject itself to taxation in or to
file a general consent to service of process in any jurisdiction wherein it
would not but for the requirements of this paragraph (d) be obligated to do so;
and provided, further, that the Company shall not be required to qualify such
Registrable Securities in any jurisdiction in which the securities regulatory
authority requires that BSC submit any shares of its Registrable Securities to
the terms, provisions and restrictions of any escrow, lockup or similar
agreement(s) for consent to sell Registrable Securities in such jurisdiction
unless BSC agrees to do so), and do such other reasonable acts and things as may
be required of it to enable BSC to consummate the disposition in such
jurisdiction of the securities covered by such Registration Statement;
31
(e) furnish, at the request of BSC, if the method of distribution is by
means of an underwriting, on the date that the shares of Registrable Securities
are delivered to the underwriters for sale pursuant to such registration, or if
such Registrable Securities are not being sold through underwriters, on the date
that the registration statement with respect to such shares of Registrable
Securities becomes effective, (i) a signed opinion, dated such date, of the
independent legal counsel representing Celsion for the purpose of such
registration, addressed to the underwriters, if any, and if such Registrable
Securities are not being sold through underwriters, then to BSC making such
request, as to such matters as such underwriters or BSC, as the case may be, may
reasonably request; and (ii) letters dated such date and the date the offering
is priced from the independent certified public accountants of Celsion,
addressed to the underwriters, if any, and if such Registrable Securities are
not being sold through underwriters, then to BSC and, if such accountants refuse
to deliver such letters to BSC, then to Celsion (i) stating that they are
independent certified public accountants within the meaning of the Securities
Act and that, in the opinion of such accountants, the financial statements and
other financial data of Celsion included in the Registration Statement or the
prospectus, or any amendment or supplement thereto, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act and (ii) covering such other financial matters (including information as to
the period ending not more than five Business Days prior to the date of such
letters) with respect to the registration in respect of which such letter is
being given as such underwriters or BSC, as the case may be, may reasonably
request and as would be customary in such a transaction;
(f) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make earnings statements
satisfying the provisions of Section 11(a) of the Securities Act generally
available to BSC no later than 45 days after the end of any twelve-month period
(or 90 days, if such period is a fiscal year) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in an
underwritten public offering, or (ii) if not sold to underwriters in such an
offering, beginning with the first month of Celsion's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statements shall cover said twelve-month periods;
(h) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange or quotation system on which
Celsion Common Stock is then listed;
(i) give written notice to BSC:
(i) when such Registration Statement or any amendment thereto has
been filed with the SEC and when such Registration Statement or
any post-effective amendment thereto has become effective;
32
(ii) of any request by the SEC for amendments or supplements to such
Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or the initiation
of any proceedings for that purpose;
(iv) of the receipt by Celsion or its legal counsel of any
notification with respect to the suspension of the qualification
of Celsion Common Stock for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
and
(v) of the happening of any event that requires Celsion to make
changes in such Registration Statement or the prospectus in
order to make the statements therein not misleading (which
notice shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been made);
(j) use its reasonable best efforts to prevent the issuance or obtain
the withdrawal of any order suspending the effectiveness of such Registration
Statement at the earliest possible time;
(k) furnish to BSC, without charge, at least one copy of such
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if BSC so requests in writing, all
exhibits (including those, if any, incorporated by reference);
(l) upon the occurrence of any event contemplated by Section 10.06(i)(v)
above, promptly prepare a post-effective amendment to such Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to BSC, the prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If Celsion notifies BSC in
accordance with Section 10.06(i)(v) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then BSC shall
suspend use of such prospectus and use its reasonable best efforts to return to
Celsion all copies of such prospectus (at Celsion's expense) other than
permanent file copies then in BSC's possession, and the period of effectiveness
of such Registration Statement provided for above shall be extended by the
number of days from and including the date of the giving of such notice to the
date BSC shall have received such amended or supplemented prospectus pursuant to
this Section 10.06(l);
(m) make reasonably available for inspection by representatives of BSC,
any underwriter participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by such
representative or any such underwriter
33
all relevant financial and other records, pertinent corporate documents and
properties of Celsion and cause Celsion's officers, directors and employees to
supply all relevant information reasonably requested by such representative or
any such underwriter, attorney, accountant or agent in connection with the
registration; and
(n) use reasonable best efforts to procure the cooperation of Celsion's
transfer agent in settling any offering or sale of Registrable Securities,
including with respect to the transfer of physical stock certificates into
book-entry form in accordance with any procedures reasonably requested by BSC or
the underwriters.
SECTION 10.07 Expenses.
All expenses incurred in connection with each registration pursuant to
Sections 10.03 and 10.04, excluding underwriters' discounts and commissions, but
including without limitation all registration, filing and qualification fees,
word processing, duplicating, printers' and accounting fees (including the
expenses of any special audits or "comfort" letters required by or incident to
such performance and compliance), listing fees, messenger and delivery expenses,
all fees and expenses of complying with state securities or blue sky laws, fees
and disbursements of counsel for Celsion, shall be paid by Celsion, except that
BSC shall bear and pay the (i) underwriting commissions and discounts applicable
to securities offered for its account in connection with any registrations,
filings and qualifications made pursuant to this Agreement and (ii) any fees and
expenses incurred in respect of counsel or other advisors to BSC.
SECTION 10.08 Rule 144 Information.
With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable
Securities to the public without registration, at all times after 90 days after
any Registration Statement covering securities of Celsion shall have become
effective, Celsion agrees to use reasonable best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) file with the SEC in a timely manner all reports and other documents
required of Celsion under the Exchange Act; and
(c) furnish to BSC forthwith upon request a written statement by Celsion
as to its compliance with the reporting requirements of such Rule 144 and of the
Exchange Act, a copy of the most recent annual or quarterly report of Celsion,
and such other reports and documents so filed by Celsion as BSC may reasonably
request in availing itself of any rule or regulation of the SEC allowing BSC to
sell any Registrable Securities without registration.
SECTION 10.09 Indemnification and Contribution.
34
(a) Celsion shall indemnify and hold harmless BSC, each of its directors
and officers, each Person who participates in the offering of such Registrable
Securities, including underwriters (as defined in the Securities Act), and each
Person, if any, who controls BSC or a participating Person within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based on any untrue or alleged untrue
statement of any material fact contained in such registration statement on the
effective date thereof (including any prospectus filed under Rule 424 under the
Securities Act or any amendments or supplements thereto) or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse BSC, BSC's directors and officers, such
participating or controlling Person for any legal or other expenses reasonably
incurred by them (but not in excess of expenses incurred in respect of one
counsel for all of them unless there is an actual conflict of interest between
any indemnified parties, which indemnified parties may be represented by
separate counsel) in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that Celsion shall not be
liable to BSC, BSC's directors and officers, any participating or controlling
Person in any such case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
BSC, BSC's directors and officers, any participating or controlling Person. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of BSC, BSC's directors and officers, any participating or
controlling Person, and shall survive the transfer of such securities by BSC.
(b) BSC shall indemnify and hold harmless Celsion, each of its directors
and officers, each Person, if any, who controls Celsion within the meaning of
the Securities Act, and each agent and any underwriter for Celsion (within the
meaning of the Securities Act) against any losses, claims, damages or
liabilities, joint or several, to which Celsion or any such director, officer,
controlling person, agent or underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement on the effective date thereof (including any
prospectus filed under Rule 424 under the Securities Act or any amendments or
supplements thereto) or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by or on behalf of BSC expressly for use in connection with such registration;
and BSC shall reimburse any legal or other expenses reasonably incurred by
35
Celsion or any such director, officer, controlling person, agent or underwriter
(but not in excess of expenses incurred in respect of one counsel for all of
them unless there is an actual conflict of interest between any indemnified
parties, which indemnified parties may be represented by separate counsel) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the liability of BSC hereunder
shall be limited to the aggregate proceeds received by BSC in connection with
any such registration under the Securities Act.
(c) If the indemnification provided for in this Section 10.09 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. If the allocation provided in this paragraph (c) is
not permitted by applicable Law, the parties shall contribute based upon the
relevant benefits received by Celsion from the initial offering of the
securities on the one hand and the aggregate proceeds received by BSC from the
sale of securities on the other.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10.09(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No party guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from the other
party who was not guilty of such fraudulent misrepresentation.
(d) Any Person entitled to indemnification hereunder agrees to give
prompt written notice to the indemnifying party after the receipt by the
indemnified party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the
indemnified party intends to claim indemnification or contribution pursuant to
this Agreement; provided, that the failure so to notify the indemnified party
shall not relieve the indemnifying party of any liability that it may have to
the indemnifying party hereunder unless such failure is materially prejudicial
to the indemnifying party. If notice of commencement of any such action is given
to the indemnifying party as above provided, the indemnifying party shall be
entitled to participate in and, to the extent it may wish, to assume the defense
of such action at its own expense,
36
with counsel chosen by it and reasonably satisfactory to such indemnified party.
The indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be paid by the indemnified party unless (i) the indemnifying
party agrees to pay the same, (ii) the indemnifying party fails to assume the
defense of such action, or (iii) the named parties to any such action (including
any impleaded parties) have been advised by such counsel that either (A)
representation of such indemnified party and the indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct or (B) there are one or more legal defenses available to it which are
substantially different from or additional to those available to the
indemnifying party. No indemnifying party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld.
(e) The agreements contained in this Section 10.09 shall survive the
transfer of the Registrable Securities by BSC and sale of all the Registrable
Securities pursuant to any registration statement and shall remain in full force
and effect, regardless of any investigation made by or on behalf of BSC, BSC's
directors or officers or any participating or controlling Person.
SECTION 10.10 Limitations on Registration of Other Securities.
From and after the date of this Agreement, Celsion shall not, without
the prior written consent of BSC, enter into any agreement with any holder or
prospective holder of any securities of Celsion giving such holder or
prospective holder any registration rights the terms of which are as or more
favorable taken as a whole than the registration rights granted to BSC hereunder
unless Celsion shall also give such rights to BSC hereunder.
ARTICLE XI
CONFIDENTIALITY
SECTION 11.01 Confidentiality.
During the term of this Agreement and for the period of five years
thereafter, the Receiving Party shall maintain Confidential Information in
confidence, and shall not disclose, divulge or otherwise communicate such
Confidential Information to others, or use it for any purpose, except pursuant
to, and in order to carry out, the terms and objectives of this Agreement. The
Receiving Party hereby shall exercise every reasonable precaution to prevent and
restrain the unauthorized disclosure of such Confidential Information by any of
its directors, officers, employees, consultants, subcontractors, or agents. Upon
termination of this Agreement, Celsion and BSC hereby shall return to the other,
upon demand, all Confidential Information in its possession or, upon demand, to
destroy such Confidential Information and provide a certificate to the other of
such destruction.
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SECTION 11.02 Release from Restrictions.
The provisions of Section 11.01 shall not apply to any Confidential
Information disclosed hereunder that:
(a) is lawfully disclosed to the Receiving Party by an independent,
unaffiliated Person rightfully in possession of the Confidential Information and
under no confidentiality or fiduciary obligation not to make disclosure;
(b) becomes published or generally known to the public through no fault
or omission on the part of the Receiving Party;
(c) is developed independently by the Receiving Party without access to
the Confidential Information of the Disclosing Party;
(d) is legally required to be disclosed to the FDA; or
(e) a Receiving Party is legally compelled to disclose; provided,
however, that the Receiving Party shall provide prompt written notice of such
requirement to the Disclosing Party so that the Disclosing Party may seek a
protective order or other remedy or waive compliance with Section 11.01; and
provided further that in the event that such protective order or other remedy is
not obtained or the Disclosing Party does not waive compliance with Section
11.01, the Receiving Party shall be permitted to furnish only that portion of
such Confidential Information that is legally required to be provided and the
Receiving Party shall exercise its reasonable best efforts to obtain assurances
that confidential treatment shall be accorded such information.
SECTION 11.03 Public Announcements and Publications.
No press release related to this Agreement or the transactions
contemplated herein, or any other announcement or communication relating to the
subject matter of any Transaction Document shall be issued or made without the
consent of the other party, except any public disclosure which Celsion or BSC in
its good faith judgment believes is required by Law (in which case the party
making the disclosure will use its commercially reasonable efforts to consult
with the other party prior to making any such disclosure).
ARTICLE XII
CONDITIONS TO CLOSING
SECTION 12.01 Conditions to Obligations of Celsion.
The obligations of Celsion to consummate a Subscription shall be subject
to the fulfillment, at or prior to the relevant Closing, of each of the
following conditions:
38
(a) the representations and warranties of BSC contained in this
Agreement (i) if subject to any limitations as to "materiality", shall be true
and correct at and as of the relevant Closing Date with the same force and
effect as if made at and as of such time (except to the extent expressly made as
of an earlier date, in which case as of such earlier date), and (ii) if not
subject to any limitations as to "materiality", shall be true and correct in all
material respects at and as of the relevant Closing Date with the same force and
effect as if made at and as of such time (except to the extent expressly made as
of an earlier date, in which case as of such earlier date); and
(b) BSC shall have performed in all material respects all of its
obligations required to be performed by it under this Agreement at or prior to
the relevant Closing Date.
SECTION 12.02 Conditions to Obligations of BSC.
The obligations of BSC to consummate a Subscription shall be subject to
the fulfillment, at or prior to the relevant Closing, of each of the following
conditions:
(a) the representations and warranties of Celsion contained in this
Agreement (i) if subject to any limitations as to "materiality" or "Material
Adverse Effect", shall be true and correct at and as of the relevant Closing
Date with the same force and effect as if made at and as of such time (except to
the extent expressly made as of an earlier date, in which case as of such
earlier date), and (ii) if not subject to any limitations as to "materiality" or
"Material Adverse Effect", shall be true and correct in all material respects at
and as of the relevant Closing Date with the same force and effect as if made at
and as of such time (except to the extent expressly made as of an earlier date,
in which case as of such earlier date);
(b) Celsion shall have performed in all material respects all of its
obligations required to be performed by it under this Agreement at or prior to
the relevant Closing Date;
(c) no event or development or change shall have occurred which,
individually or in the aggregate, have, or could have, a Material Adverse
Effect; and
(d) no Action shall have been commenced or threatened against either
Celsion or BSC seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement which, in the reasonable, good faith
determination of BSC, is likely to render it impossible or unlawful to
consummate such transactions. For the purposes of this Section 12.02(d) only,
the term "Action" shall not include any lawsuit primarily alleging Intellectual
Property infringement or misappropriation commenced by a third party against
Celsion.
SECTION 12.03 Conditions to Obligations of BSC for Initial Closing.
In addition to Section 12.02, the obligations of BSC to consummate the
Initial Subscription shall be subject to the fulfillment, at or prior to the
Initial Closing, of each of the following conditions:
39
(a) the Amendment to License Agreement, dated January 17, 2003, between
Celsion and MMTC, INC. shall be in full force and effect; and
(b) BSC shall have received from Xxxxxxx, Xxxxxxx and Xxxxxx, LLP a
legal opinion, addressed to BSC and dated the Initial Closing Date,
substantially in the form requested by BSC.
SECTION 12.04 Conditions to Obligations of BSC for Second Closing.
In addition to Section 12.02, the obligations of BSC to consummate the
Second Subscription shall be subject to the fulfillment, at or prior to the
Second Closing, of each of the following conditions:
(a) Celsion shall have received FDA pre-marketing approval for
commercialization of BPH 800 for treatment of BPH prior to November 1, 2003;
(b) Celsion shall have made sufficient progress, in the reasonable
opinion of BSC, in manufacturing the Control Unit such that the Product is in a
position to be launched within a commercially reasonable time period following
the FDA Approval Date; and
(c) Celsion shall have entered into an amendment to the Development and
Supply Agreement, dated December 11, 2001, between Catheter Research, Inc. and
Celsion, in form and substance satisfactory to BSC in its reasonable discretion.
ARTICLE XIII
INDEMNIFICATION
SECTION 13.01 Survival of Representations and Warranties.
The representations and warranties provided for in this Agreement shall
survive the Second Closing and remain in full force and effect until the second
anniversary of the Second Closing Date; provided, however, that the
representations and warranties made pursuant to Sections 5.01, 5.02, 5.03, 5.04,
5.19, 6.01 and 6.05 shall survive indefinitely. If written notice of a claim has
been given by the Indemnified Party to the Indemnifying Party prior to the
expiration of the applicable representations and warranties, then the relevant
representations and warranties shall survive as to such claim, until such claim
has been finally resolved.
SECTION 13.02 Indemnification by Celsion.
Celsion shall indemnify, defend, save and hold harmless, BSC and each of
its subsidiaries, shareholders, Affiliates, officers, directors, employees,
counsel, agents and representatives and each of their heirs, executors,
successors and assigns (collectively, the "BSC Indemnified Parties") against and
in respect of any and all Liabilities, losses, diminution in value, damages,
claims, costs and expenses, interest, awards, judgments and
40
penalties (including, without limitation, reasonable attorneys' and consultants'
fees and expenses) actually suffered or incurred by them (including, without
limitation, any Action brought or otherwise initiated by any of them)
(hereinafter a "Loss"), arising out of or resulting from:
(a) any breach or inaccuracy of any representation or warranty of
Celsion contained in this Agreement (it being understood that such
representations and warranties shall be interpreted without giving effect to any
limitations or qualifications as to "materiality" or "Material Adverse Effect"
set forth therein); and
(b) any breach by Celsion of any covenant or agreement contained in this
Agreement.
SECTION 13.03 Indemnification by BSC.
BSC shall indemnify, defend, save and hold harmless, Celsion and each of
its subsidiaries, shareholders, Affiliates, officers, directors, employees,
counsel, agents and representatives and each of their heirs, executors,
successors and assigns (collectively, the "Celsion Indemnified Parties") against
and in respect of any and all Losses, arising out of or resulting from:
(a) any breach or inaccuracy of any representation or warranty of BSC
contained in this Agreement (it being understood that such representations and
warranties shall be interpreted without giving effect to any limitations or
qualifications as to "materiality" set forth therein); and
(b) any breach by BSC of any covenant or agreement contained in this
Agreement.
SECTION 13.04 Enforcing Indemnification Claims.
Any Person entitled to indemnification under this Article XIII (the
"Indemnified Party") shall give the indemnifying party (the "Indemnifying
Party") notice of any matter which an Indemnified Party has determined has given
or could give rise to a right of indemnification under this Agreement, within
sixty (60) days of such determination, stating the amount of the Loss, if known,
and method of computation thereof, and containing a reference to the Section of
this Agreement in respect of which it elects to seek and recover
indemnification. The obligations and liabilities of the Indemnifying Party under
this Article XIII with respect to Losses arising from claims of any third party
which are subject to the indemnification provided for in this Article XIII
("Third Party Claims") shall be governed by and be contingent upon the following
additional terms and conditions: if an Indemnified Party shall receive notice of
any Third Party Claim, the Indemnified Party shall give the Indemnifying Party
notice of such Third Party Claim within thirty (30) days of the receipt by the
Indemnified Party of such notice; provided, however, that the failure to provide
such notice shall not release the Indemnifying Party from any of its obligations
under this Article XIII except to the extent that the Indemnifying Party is
materially prejudiced by such failure
41
and shall not relieve the Indemnifying Party from any other obligation or
liability that it may have to any Indemnified Party otherwise than under this
Article XIII. The Indemnifying Party shall be entitled to assume and control the
defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within five (5) days of the receipt of such notice from the Indemnified Party;
provided, however, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the judgment of the
Indemnified Party in its reasonable discretion for the same counsel to represent
both the Indemnified Party and the Indemnifying Party, then the Indemnified
Party shall be entitled to retain its own counsel in each jurisdiction for which
the Indemnified Party determines counsel is required, at the expense of the
Indemnifying Party. In the event that the Indemnifying Party exercises the right
to undertake any such defense against any such Third Party Claim as provided
above, the Indemnified Party shall cooperate with the Indemnifying Party in such
defense and make available to the Indemnifying Party, at the Indemnifying
Party's expense, all witnesses, pertinent records, materials and information in
the Indemnified Party's possession or under the Indemnified Party's control
relating thereto as is reasonably required by the Indemnifying Party. Similarly,
in the event the Indemnified Party is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnifying Party shall
cooperate with the Indemnified Party in such defense and make available to the
Indemnified Party, at the Indemnifying Party's expense, all such witnesses,
records, materials and information in the Indemnifying Party's possession or
under the Indemnifying Party's control relating thereto as is reasonably
required by the Indemnified Party. No such Third Party Claim may be settled by
the Indemnifying Party without the prior written consent of the Indemnified
Party, unless such settlement does not subject the Indemnified Party to any
monetary liability and includes a complete, unconditional release of the
Indemnified Party from all liabilities with respect to such claim or demand.
Nothing contained herein shall be construed as to release the Indemnified Party
from its obligations under any other provision contained in this Article XIII.
SECTION 13.05 Adjustment to Subscription Amount.
All amounts paid by Celsion or BSC, as the case may be, under this
Article XIII shall be treated as adjustments to the Subscription Amount for all
Tax purposes unless otherwise required by Law.
ARTICLE XIV
TERM AND TERMINATION
SECTION 14.01 Termination.
This Agreement may be terminated:
(a) by mutual written consent of Celsion and BSC;
42
(b) by Celsion or BSC, if the other party (i) files in any court
pursuant to any Law in any country a petition in bankruptcy or insolvency or for
reorganization or for an arrangement or for the appointment of a receiver or
trustee of such party or of its assets, (ii) proposes a written agreement of
composition for extension of its debts, (iii) is served with an involuntary
petition against it, filed in any insolvency proceeding, and such petition shall
not be dismissed within 60 days after filing thereof, (iv) is party to any
dissolution or liquidation, or (v) makes a general assignment for the benefit of
its creditors;
(c) by Celsion or BSC upon 60 days written notice to the other party in
the event that the other party shall have materially breached any of its
obligations, representations or warranties hereunder and shall not have cured
such breach prior to the expiration of such 60-day period; or
(d) by BSC, at any time if the Second Closing has not occurred by
November 1, 2003 or, following the Second Closing Date, at any time prior to the
Launch Date.
SECTION 14.02 Effect of Termination.
Termination of this Agreement shall not affect rights and obligations of
either party that may have accrued prior to the effective date of termination or
any obligation that by its nature or express terms survives termination. Without
limiting the foregoing, the provisions of Articles X, XI, XIII and XV shall
survive any expiration or termination of this Agreement.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01 Expenses.
Except as otherwise specified in this Agreement, all costs and expenses,
including, without limitation, fees and disbursements of counsel, financial
advisors and accountants, incurred in connection with this Agreement and the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
SECTION 15.02 Notices.
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to
have been duly given or made upon receipt) by delivery in person, by an
internationally recognized overnight courier service, by telecopy or registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 15.02):
(a) if to Celsion:
43
Celsion Corporation
00000-X Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: President and Chief Executive Officer
Facsimile No: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx and Xxxxxx, LLP
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to BSC:
Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Best
Facsimile No: (000) 000-0000
with a copy to:
Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile No: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile No: (000) 000-0000
SECTION 15.03 Headings.
The descriptive headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or interpretation
of the Agreement.
SECTION 15.04 Severability.
44
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
for so long as the economic or legal substance of the transactions contemplated
by this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated by
this Agreement are consummated as originally contemplated to the greatest extent
possible.
SECTION 15.05 Entire Agreement.
This Agreement, together with the other Transaction Documents and the
Note, constitute the entire agreement of the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and undertakings,
both written and oral, among the parties with respect to the subject matter
hereof and thereof.
SECTION 15.06 Further Action.
Each of the parties hereto shall use reasonable best efforts to take, or
cause to be taken, all appropriate action, do or cause to be done all things
necessary, proper or advisable under applicable Law, and execute and deliver
such documents and other papers, as may be required to carry out the provisions
of this Agreement and consummate and make effective the transactions
contemplated by this Agreement.
SECTION 15.07 Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigned. Neither
party may assign this Agreement without the prior written consent of the other
party, provided that BSC may assign its rights and obligations under this
Agreement without the approval of Celsion to an Affiliate of BSC. No assignment
by either party permitted hereunder shall relieve the applicable party of its
obligations under this Agreement.
SECTION 15.08 Amendment.
This Agreement may not be amended or modified except (a) by an
instrument in writing signed by, or on behalf of, Celsion and BSC or (b) by a
waiver in accordance with Section 15.11.
SECTION 15.09 Governing Law and Venue.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware. The parties unconditionally and irrevocably
agree and consent to the exclusive jurisdiction of the courts located in the
State of Delaware and waive any objection with respect thereto, for the purpose
of any action, suit or proceeding arising out of or
45
relating to this Agreement or the transactions contemplated hereby, and further
agree not to commence any such action, suit or proceeding except in any such
court.
SECTION 15.10 Counterparts.
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties in
separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 15.11 Waiver.
Either party to this Agreement may (a) extend the time for the
performance of any of the obligations or other acts of the other party, (b)
waive any inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered by the other party pursuant hereto
or (c) waive compliance with any of the agreements of the other party or
conditions to such party's obligations contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by
the party to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or condition of this
Agreement. The failure of any party to assert any of its rights hereunder shall
not constitute a waiver of any of such rights. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 15.12 No Third Party Beneficiaries.
This Agreement shall be binding upon and inure solely to the benefit of
the parties and their permitted assigns and nothing herein, express or implied,
is intended to or shall confer upon any other Person any legal or equitable
right, benefit or remedy of any nature whatsoever.
SECTION 15.13 Specific Performance.
The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or equity.
SECTION 15.14 Agreement.
All Schedules and Exhibits attached to this Agreement shall be deemed
part of this Agreement and incorporated herein, as if fully set forth herein.
46
SECTION 15.15 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE
PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 15.15.
47
IN WITNESS WHEREOF, Celsion and BSC have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
CELSION CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
BOSTON SCIENTIFIC CORPORATION
By: /s/ Xxxxxxxx X. Best
--------------------------------------
Name: Xxxxxxxx X. Best
Title: Chief Financial Officer
EXHIBIT A
DISTRIBUTION AGREEMENT
EXHIBIT B
DISCLOSURE SCHEDULE
EXHIBIT C
CELSION'S CERTIFICATE OF INCORPORATION AND BY-LAWS
EXHIBIT D
ASSET PURCHASE AGREEMENT
