Exhibit 3
[*] indicates that a confidential portion of the text of this agreement has been
omitted.
------------------------------------------------------------------------
INVESTMENT AGREEMENT
dated as of November 26, 2001
by and among
XOMA LTD.,
a Bermuda company
and
MILLENNIUM PHARMACEUTICALS, INC.,
a Delaware corporation
and
mHOLDINGS TRUST,
a Massachusetts business trust
------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION; DEFINITIONS
SECTION 1.1. Interpretation.......................................1
SECTION 1.2. Definitions..........................................2
ARTICLE II
PURCHASE AND SALE OF NOTE AND SHARES
SECTION 2.1. Purchase and Sale....................................6
SECTION 2.2. Closing Dates........................................7
SECTION 2.3. Transactions at Each Closing.........................8
SECTION 2.4. Limitations on the Obligations of Purchaser..........9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Company.......10
SECTION 3.2. Representations and Warranties of the Purchasers....16
ARTICLE IV
COVENANTS AND ADDITIONAL AGREEMENTS
SECTION 4.1. Ordinary Course.....................................19
SECTION 4.2. Further Actions.....................................19
SECTION 4.3. Further Assurances..................................20
SECTION 4.4. [*].................................................20
SECTION 4.5. Selling Restrictions................................20
SECTION 4.6. Standstill Agreement................................21
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Page
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1. Each Party's Obligations............................23
SECTION 5.2. Conditions to the Obligations of the Company........23
SECTION 5.3. Conditions to the Obligations of the Purchasers.....24
ARTICLE VI
TERMINATION
SECTION 6.1. Termination.........................................26
SECTION 6.2. Effect of Termination...............................28
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification of the Purchasers...................28
SECTION 7.2. Indemnification of the Company......................29
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Governing Law.......................................29
SECTION 8.2. Assignment..........................................29
SECTION 8.3. Amendments..........................................30
SECTION 8.4. Notices.............................................30
SECTION 8.5. Public Announcements................................31
SECTION 8.6. No Strict Construction..............................32
SECTION 8.7. Headings............................................32
SECTION 8.8. No Implied Waivers; Rights Cumulative...............32
SECTION 8.9. Confidentiality.....................................32
SECTION 8.10. Severability........................................32
SECTION 8.11. Execution in Counterparts...........................33
SECTION 8.12. No Third Party Beneficiaries........................33
SECTION 8.13. Specific Enforcement................................33
SECTION 8.14. Cooperation.........................................33
SECTION 8.15. Expenses and Remedies...............................33
SECTION 8.16. Transfer of Shares..................................33
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SCHEDULE 3.1(m) - CERTAIN INTELLECTUAL PROPERTY MATTERS
EXHIBIT A - [*]
EXHIBIT B - FORM OF CONVERTIBLE PROMISSORY NOTE
EXHIBIT C - FORM OF OPINION FROM XXXXXXXXXXX X. XXXXXXXX, VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY OF THE COMPANY
EXHIBIT D - FORM OF OPINION FROM XXXXXXX XXXX & XXXXXXX, SPECIAL COUNSEL
TO THE COMPANY
EXHIBIT E - FORM OF OPINION FROM XXXXXX XXXXXX & XXXXXXX, SPECIAL COUNSEL
TO THE COMPANY
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INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement") is made as of November 26, 2001
(the "Effective Date") by and among XOMA LTD., a Bermuda company (the
"Company"), MILLENNIUM PHARMACEUTICALS, INC., a Delaware corporation
("Millennium"), and mHOLDINGS TRUST (the "Trust"), a business trust organized
under the laws of the Commonwealth of Massachusetts and an indirect,
wholly-owned subsidiary of Millennium. The Trust and Millennium are hereinafter
collectively referred to as the "Purchasers" and each as a "Purchaser".
W I T N E S S E T H
WHEREAS, XOMA (US) LLC, a wholly-owned subsidiary of the Company, and
Millennium are parties to a Development and License Agreement, executed as of
November 26, 2001 (the "Development and License Agreement");
WHEREAS, the Purchasers wish to purchase from the Company, and the Company
wishes to sell to the Purchasers, common shares of the Company, USD $0.0005 par
value per share ("Common Shares") and a convertible promissory note in the form
attached hereto as Exhibit B (the "Note");
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth herein, the Company and the Purchasers, intending to become legally
bound, hereby agree as follows:
ARTICLE I
INTERPRETATION; DEFINITIONS
SECTION 1.1. Interpretation. As used in this Agreement, unless the context
otherwise requires:
(a) any reference to the Company and its Subsidiaries means the
Company and each of its Subsidiaries;
(b) words of any gender include all genders;
(c) words using the singular or plural number also include the plural
or singular number, respectively; and
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(d) the terms "hereof", "herein", and "hereby" and derivative or
similar words refer to this entire Agreement.
SECTION 1.2. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall have the meaning set forth in the Development and License
Agreement.
"Agreement" is defined in the recitals to this Agreement.
"Applicable Period" means the period from the date of this Agreement
through the Fifth Closing Date and thereafter for so long as the Purchasers
continuously beneficially own Shares representing in the aggregate four percent
(4%) or more of the outstanding Common Shares.
"Business Day" means any day on which banking institutions are open in
Berkeley, California, New York, New York and Boston, Massachusetts.
"Closing" or "Closings" means any or all of the First Closing, Second
Closing, Third Closing, Fourth Closing and/or Fifth Closing as the context
requires.
"Common Shares" is defined in the recitals to this Agreement.
"Company" is defined in the recitals to this Agreement.
"Company Bye-laws" is defined in Section 3.1(a).
"Company Charter" is defined in Section 3.1(a).
"Company Intellectual Property Rights" is defined in Section 3.1(m).
"Company SEC Documents" is defined in Section 3.1(f).
"Company Share Plans" is defined in Section 3.1(d).
"Confidential Information" is defined in Section 8.9.
"Contract" is defined in Section 3.1(c)(i).
"Development and License Agreement" is defined in the recitals of this
Agreement.
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"Effective Date" is defined in the recitals of this Agreement.
"Event of Default" is defined in the Note.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute and the rules and regulations of the SEC
promulgated thereunder, all as the same shall be in effect from time to time.
"Fifth Closing" is defined in Section 2.2(e).
"Fifth Closing Average Price" is defined in Section 2.1(e).
"Fifth Closing Date" is defined in Section 2.2(e).
"Fifth Closing Shares" is defined in Section 2.1(e).
"Fifth Purchase Price" is defined in Section 2.1(e).
"First Closing" is defined in Section 2.2(a).
"First Closing Date" is defined in Section 2.2(a).
"First Purchase Price" is defined in Section 2.1(a).
"Fourth Closing" is defined in Section 2.2(d).
"Fourth Closing Average Price" is defined in Section 2.1(d).
"Fourth Closing Date" is defined in Section 2.2(d).
"Fourth Closing Shares" is defined in Section 2.1(d).
"Fourth Purchase Price" is defined in Section 2.1(d).
"GAAP" means United States generally accepted accounting principles.
"Governmental Entity" is defined in Section 3.1(c)(ii).
"Lien" is defined in Section 3.1(c)(i).
"Losses" is defined in Section 7.1(a).
"Material Adverse Effect" on or with respect to an entity (or group of
entities taken as a whole) means any state of facts, event, change or effect
that has had, or would rea-
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sonably be expected to have, a material adverse effect on (a) the business
(including, without limitation, clinical development programs), properties,
results of operations or financial condition of such entity (or, if with respect
thereto, of such group of entities taken as a whole), excluding, however, any
such effect caused by economic, tax, or other matters of general applicability,
or, by matters generally affecting the industry in which the such entity and its
subsidiaries conduct business (in each case, however, only to the extent the
entity or group of entities is not affected disproportionately), or (b) the
ability of such entity (or group of entities) to consummate the transactions
contemplated under this Agreement, or the Registration Rights Agreement.
"Material Contract" is defined in Section 3.1(j)(i).
"Millennium" is defined in the introductory paragraph of this Agreement
"Note" is the convertible promissory note in the form attached hereto as
Exhibit B to be issued by the Company to the Purchasers at the First Closing.
"Permit" is defined in Section 3.1(c)(i).
"Permitted Liens" means those Liens (A) securing debt that is reflected on
the balance sheets or the notes thereto contained in the Company SEC Documents
filed with the SEC and publicly available prior to the date hereof, (B) for
taxes not yet due or payable or being contested in good faith and for which
adequate reserves have been established in accordance with GAAP, (C) that
constitute mechanics', carriers', workmens' or like liens, liens arising under
original purchase price conditional sales contracts and equipment leases with
third parties entered into in the ordinary course, (D) incurred or deposits made
in the ordinary course of business consistent with past practice in connection
with workers' compensation, unemployment insurance and social security,
retirement and other legislation and (E) constituting easements, covenants,
declarations, rights or way, encumbrances, or similar restrictions in connection
with real property owned by the Company or any of its Subsidiaries that do not
materially impair the use of such real property by the Company and any of its
Subsidiaries, and in the case of Liens described in clause (B), (C), (D) or (E)
that individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
"Person" means any individual, partnership, joint venture, corporation,
limited liability company, trust, unincorporated organization, government or
department or agency of a government or other entity.
"Principal Trading Market" is defined in Section 2.1(b).
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"Purchase Price" means any or all of the First Purchase Price, Second
Purchase Price, Third Purchase Price, Fourth Purchase Price or Fifth Purchase
Price.
"Purchasers" is defined in the recitals to this Agreement.
"Purchasers' Indemnifiable Losses" is defined in Section 7.1(a).
"Purchasers' Indemnitees" is defined in Section 7.1(a).
"Registration Rights Agreement" is defined in Section 5.3(e)(i).
"SEC" means the Securities and Exchange Commission.
"Second Closing" is defined in Section 2.2(b).
"Second Closing Average Price" is defined in Section 2.1(b).
"Second Closing Date" is defined in Section 2.2(b).
"Second Closing Shares" is defined in Section 2.1(b).
"Second Purchase Price" is defined in Section 2.1(b).
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the SEC promulgated
thereunder, all as the same shall be in effect from time to time.
"Shares" means the Second Closing Shares, the Third Closing Shares, the
Fourth Closing Shares, the Fifth Closing Shares and any Common Shares issued to
the Purchasers upon conversion of the Note.
"Subsidiary" means, as to any Person, any corporation or other business
entity at least a majority of the shares of stock or other interests of which
having general voting power under ordinary circumstances to elect a majority of
the Board of Directors of such corporation or other business entity
(irrespective of whether or not at the time stock or other investments of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency) is, at the time as of which the determination is
being made, owned by such Person, or one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries.
"Third Closing" is defined in Section 2.2(c).
"Third Closing Average Price" defined in Section 2.1(c).
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"Third Closing Date" is defined in Section 2.2(c).
"Third Closing Shares" is defined in Section 2.1(c).
"Third Purchase Price" is defined in Section 2.1(c).
"Trading Day" means any day on which the Principal Trading Market for the
Common Shares is open for trading.
"Trust" is defined in the recitals to this Agreement.
"Voting Securities" means at any time shares of any class of share capital
of the Company which are then entitled to vote generally in the election of
directors.
ARTICLE II
PURCHASE AND SALE OF NOTE AND SHARES
SECTION 2.1. Purchase and Sale.
(a) First Closing. Subject to the terms and conditions of this Agreement,
on the First Closing Date, as defined in Section 2.2(a) below, the Company shall
issue and sell the Note to the Purchasers, and the Purchasers shall purchase the
Note from the Company, for an aggregate purchase price of Five Million Dollars
(USD $5,000,000) (the "First Purchase Price").
(b) Second Closing. Subject to the terms and conditions of this Agreement
and subject to adjustment under Section 2.1(f) below, on the Second Closing
Date, as defined in Section 2.2(b) below, the Company agrees to issue and sell
to the Purchasers, and the Purchasers agree to purchase from the Company, for an
aggregate purchase price of Seven Million Five Hundred Thousand Dollars (USD
$7,500,000) (the "Second Purchase Price"), a number of Common Shares (the
"Second Closing Shares") equal to [*].
(c) Third Closing. Subject to the terms and conditions of this Agreement,
and subject to adjustment pursuant to Section 2.1(f) below, on the Third Closing
Date, as defined in Section 2.2(c) below, the Company agrees to issue and sell
to the Purchasers, and the Purchasers agree to purchase from the Company, for an
aggregate purchase price of Seven Million Five Hundred Thousand Dollars (USD
$7,500,000) (the "Third Purchase Price"), a number of Common Shares (the "Third
Closing Shares") equal to [*].
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(d) Fourth Closing. Subject to the terms and conditions of this Agreement,
and subject to adjustment pursuant to Section 2.1(f) below, on the Fourth
Closing Date, as defined in Section 2.2(d) below, the Company agrees to issue
and sell to the Purchasers, and the Purchasers agree to purchase from the
Company, for an aggregate purchase price of Fifteen Million Dollars (USD
$15,000,000) (the "Fourth Purchase Price"), a number of Common Shares (the
"Fourth Closing Shares") equal to [*].
(e) Fifth Closing. Subject to the terms and conditions of this Agreement,
and subject to adjustment pursuant to Section 2.1(f) below, on the Fifth Closing
Date, as defined in Section 2.2(e) below, the Company agrees to issue and sell
to the Purchasers, and the Purchasers agree to purchase from the Company, for an
aggregate purchase price of Fifteen Million Dollars (USD $15,000,000) (the
"Fifth Purchase Price"), a number of Common Shares (the "Fifth Closing Shares")
equal to [*].
(f) [*].
(g) Notwithstanding the foregoing or any other provisions of this
Agreement, in connection with any Closing, the Company shall have the right to
elect to not issue and sell to the Purchasers any Shares as provided in Sections
2.1(b) through (e) above. In the event that the Company so elects not to issue
and sell Shares to the Purchasers at a particular Closing, or in the event that
a particular Closing shall not have occurred prior to or on the latest date set
forth or otherwise referred to in Section 2.2(a), (b), (c), (d) or (e),
whichever is applicable (as may be extended by the written consent of both
Purchasers or pursuant to Section 5.3(a) hereof or Section 3(a) of the
Registration Rights Agreement), then the Purchasers shall have no obligations
under this Agreement with respect to such Closing, unless the failure of such
Closing to occur results from a failure of either Purchaser to fulfill any
obligation under this Agreement.
SECTION 2.2. Closing Dates. Subject to the terms and conditions of this
Agreement:
(a) The closing of the purchase and sale of the Note hereunder (the
"First Closing") shall be held at the offices of the Purchasers' counsel,
at 10:00 a.m., Boston time, on a date that is mutually agreeable to the
parties but in any event within five (5) Business Days after all of the
conditions set forth in Article V have been satisfied or waived. The date
of the First Closing is hereinafter referred to as the "First Closing
Date".
(b) The closing of the purchase and sale of the Second Closing Shares
hereunder (the "Second Closing") shall be held at the offices of the
Purchasers' counsel, at 10:00 a.m., Boston time, on [*] (or, if such date
is not a Business Day, then the first preceding Business Day), unless the
parties otherwise consent in writing, or as
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adjusted pursuant to Section 5.3(a). The date of the Second Closing is
hereinafter referred to as the "Second Closing Date."
(c) The closing of the purchase and sale of the Third Closing Shares
hereunder (the "Third Closing") shall be held at the offices of the
Purchasers' counsel, at 10:00 a.m., Boston time, on [*] (or, if such date
is not a Business Day, then the first preceding Business Day), unless the
parties otherwise consent in writing, or as adjusted pursuant to Section
5.3(a). The date of the Third Closing is hereinafter referred to as the
"Third Closing Date."
(d) The closing of the purchase and sale of the Fourth Closing Shares
hereunder (the "Fourth Closing") shall be held at the offices of the
Purchasers' counsel, at 10:00 a.m., Boston time, on [*] (or, if such date
is not a Business Day, then the first preceding Business Day), unless the
parties otherwise consent in writing, or as adjusted pursuant to Section
5.3(a). The date of the Fourth Closing is hereinafter referred to as the
"Fourth Closing Date."
(e) The closing of the purchase and sale of the Fifth Closing Shares
hereunder (the "Fifth Closing") shall be held at the offices of the
Purchasers' counsel, at 10:00 a.m., Boston time, on [*] (or, if such date
is not a Business Day, then the first preceding Business Day), unless the
parties otherwise consent in writing, or as adjusted pursuant to Section
5.3(a). The date of the Fifth Closing is hereinafter referred to as the
"Fifth Closing Date."
SECTION 2.3. Transactions at Each Closing.
(a) On the First Closing Date, subject to the terms and conditions of this
Agreement (i) the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase, the Note; and (ii) the Company shall deliver to
Millennium the Note, issued in the name of the Trust against payment of the
First Purchase Price by wire transfer of immediately available funds to an
account or accounts previously designated by the Company no less than five (5)
Business Days prior to the First Closing Date.
(b) On the Second Closing Date, subject to the terms and conditions of this
Agreement, (i) the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase, the Second Closing Shares; and (ii) the Company shall
deliver to Millennium a certificate representing the Second Closing Shares,
registered in the name of the Trust against payment of the Second Purchase Price
by wire transfer of immediately available funds to an account or accounts
previously designated by the Company no less than five (5) Business Days prior
to the Second Closing Date.
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(c) On the Third Closing Date, subject to the terms and conditions of this
Agreement, (i) the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase, the Third Closing Shares; and (ii) the Company shall
deliver to Millennium a certificate representing the Third Closing Shares,
registered in the name of the Trust against payment of the Third Purchase Price
by wire transfer of immediately available funds to an account or accounts
previously designated by the Company no less than five (5) Business Days prior
to the Third Closing Date.
(d) On the Fourth Closing Date, subject to the terms and conditions of this
Agreement, (i) the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase, the Fourth Closing Shares; and (ii) the Company shall
deliver to Millennium a certificate representing the Fourth Closing Shares,
registered in the name of the Trust against payment of the Fourth Purchase Price
by wire transfer of immediately available funds to an account or accounts
previously designated by the Company no less than five (5) Business Days prior
to the Fourth Closing Date.
(e) On the Fifth Closing Date, subject to the terms and conditions of this
Agreement, (i) the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase, the Fifth Closing Shares; and (ii) the Company shall
deliver to Millennium a certificate representing the Fifth Closing Shares,
registered in the name of the Trust against payment of the Fifth Purchase Price
by wire transfer of immediately available funds to an account or accounts
previously designated by the Company no less than five (5) Business Days prior
to the Fifth Closing Date.
SECTION 2.4. Limitations on the Obligations of Purchaser. Notwithstanding
the foregoing, the Purchasers shall not be obligated to purchase the Shares at
the Second, Third, Fourth or Fifth Closings to the extent, but only to the
extent, that:
(a) the sale of such Shares would require the Company to obtain
shareholder approval of the sale; or
(b) the total number of Shares to be purchased at any such Closing,
plus the total number of Shares previously purchased pursuant hereto and
still owned by the Purchasers as of such Closing (including Shares obtained
through conversion of the Note) and acquired pursuant to this Agreement,
would equal or exceed 9.9 percent (9.9%) of the outstanding Common Shares
as of the date of such Closing; provided, however, that upon the occurrence
of such event, Millennium agrees to purchase from the Company a
non-convertible, unsecured note with commercially reasonable terms and
conditions to be negotiated at such time for the portion of the applicable
Purchase Price that would cause the occurrence of the event specified in
this subsection 2.4(b).
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For the avoidance of doubt, it is understood that the foregoing limitations
may only apply in part and that the Purchasers shall be required to purchase any
portion of the Second, Third, Fourth or Fifth Closing Shares to which such
limitations do not apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchasers as follows:
(a) Corporate Organization. The Company is a company duly organized,
validly existing and in good standing under the laws of Bermuda. Each
Subsidiary is duly organized and validly existing and, if applicable, is in
good standing, under the laws of the jurisdiction of its organization. Each
of the Company and its Subsidiaries is duly qualified or licensed and, if
applicable, is in good standing as a foreign entity, in each jurisdiction
in which the properties owned, leased or operated, or the business
conducted, by it require such qualification or licensing, except for any
such failure so to qualify or be in good standing which, individually or in
the aggregate, would not have a Material Adverse Effect on the Company and
its Subsidiaries, taken as a whole. The Company and each of the
Subsidiaries has the requisite power and authority to carry on its business
as it is now being conducted. The Company has heretofore made available to
the Purchasers complete and correct copies of the Memorandum of Continuance
of the Company (the "Company Charter") and the Bye-laws of the Company (the
"Company Bye-Laws") and the comparable organizational documents of each of
its Subsidiaries, each as amended to date and currently in full force and
effect.
(b) Corporate Authority; Authorization; Enforceability. The Company
has the requisite company power and authority to execute, deliver and
perform this Agreement and the Registration Rights Agreement, and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement, the Note and the Registration
Rights Agreement, the issuance and sale by the Company of the Note and the
Shares, and the performance by the Company of the other transactions
contemplated hereby and thereby have been duly authorized by the Company's
Board of Directors, and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or the Registration
Rights Agreement or for the Company to consummate the transactions so
contemplated herein and therein. The Note being issued at the First Closing
has been duly authorized by all necessary corporate action on the part of
the Company and a sufficient number of authorized but unissued Common
Shares have been reserved by appropriate
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action in connection with the conversion of the Note. The Shares being
issued at the Second, Third, Fourth and Fifth Closings and upon conversion
of the Note have been duly authorized by all necessary corporate action on
the part of the Company. This Agreement, the Note and the Registration
Rights Agreement are valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
assuming that this Agreement and the Registration Rights Agreement are
valid and binding agreements of each Purchaser, subject as to enforcement
of remedies to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting generally the enforcement of
creditors' rights and subject to a court's discretionary authority with
respect to the granting of a decree ordering specific performance or other
equitable remedies and except that rights to indemnity may be limited by
public policy.
(c) No Violations; Consents and Approvals.
(i) Assuming the representations and warranties of the Purchasers
in Section 3.2 hereof are true and correct, neither the execution,
delivery or performance by the Company of this Agreement, the Note, or
the Registration Rights Agreement nor the consummation by the Company
of the transactions contemplated hereby or thereby (A) will result in
a violation or breach of the Company Charter or the Company Bye-laws
or (B) will result in a violation or breach of (or give rise to any
right of termination, revocation, cancellation or acceleration under),
or constitute a default (with or without due notice or lapse of time
or both) under, or result in the creation of any lien, mortgage,
charge, encumbrance or security interest of any kind (a "Lien") upon
any of the properties or assets of the Company or any of its
Subsidiaries under, (1) any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, or material contract, agreement,
obligation, instrument, offer, commitment, understanding or other
arrangement (each a "Contract") or of any material license, waiver,
exemption, order, franchise, permit or concession (each a "Permit") to
which the Company or any of its Subsidiaries is a party or by which
any of their properties or assets may be bound, or (2) any judgment,
order, decree, statute, law, regulation or rule applicable to the
Company or any of its Subsidiaries, except in the case of clause (B),
for violations, breaches, defaults, rights of cancellation,
termination, revocation or acceleration or Liens that would not,
individually or in the aggregate, have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole.
(ii) Assuming the representations and warranties of the
Purchasers in Section 3.2 hereof are true and correct, no consent,
approval, order or authorization of, or registration, declaration or
filing with, any government or any court, administrative agency or
commission or other governmental authority or agency, federal, state,
local or foreign (a "Governmental Entity"), is required to be obtained
or made by the Com-
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pany in connection with the execution, delivery or performance by the
Company of this Agreement, the Note or the Registration Rights
Agreement or the consummation by the Company of the transactions
contemplated hereby or thereby, other than (w) the listing of the
Shares on a Principal Trading Market, (x) registration of the resale
of the Shares under the Securities Act as contemplated by the
Registration Rights Agreement, (y) as may be required under applicable
state securities or "blue sky" laws, and (z) the consent of the
Bermuda Monetary Authority to the issuance of the Note and the Shares
(which consent has already been obtained subject to the requirement
that the Common Shares are listed on an appointed stock exchange as
defined in Section 2(1) of the Companies Xxx 0000 of Bermuda). The
current Principal Trading Market is an appointed stock exchange as
defined in Section 2(1) of the Companies Xxx 0000 of Bermuda.
(d) Share Capital. The authorized share capital of the Company
consists of (a) 135,000,000 Common Shares, USD $0.0005 par value per share,
of which 70,104,855 shares were issued and outstanding on November 15,
2001, all of which were duly authorized, and validly issued and are fully
paid and nonassessable, and (b) 1,000,000 preference shares, USD $0.05 par
value per share, of which as of November 15, 2001 (i) 135,000 shares were
designated Series A Preference Shares, none of which were outstanding, and
(ii) 7,500 shares were designated Series B Preference Shares, none of which
were outstanding. As of the close of business on November 15, 2001, there
were outstanding under the Company's share option plans (collectively, the
"Company Share Plans"), options to acquire an aggregate of 4,219,144 Common
Shares (subject to adjustment on the terms set forth therein), and an equal
number of Common Shares are reserved for future issuance under the Company
Share Plans. Except as set forth above, or disclosed in the Company SEC
Documents, no capital shares are reserved for future issuance. There are no
preemptive or similar rights on the part of any holders of any class of
securities of the Company or of any of its Subsidiaries to acquire any of
the Shares. Except for the Common Shares, the Company has outstanding no
bonds, debentures, notes or other obligations or securities the holders of
which currently have the right to vote with the shareholders of the Company
on any matter. Except as set forth above or disclosed in the Company SEC
Documents as of the date of this Agreement, there are no securities
convertible into or exchangeable for, or options, warrants, calls,
subscriptions, rights, contracts, commitments, arrangements or
understandings of any kind to which the Company or any of its Subsidiaries
is a party or by which any of them is bound obligating the Company or any
of its Subsidiaries contingently or otherwise to issue, deliver or sell, or
cause to be issued, delivered or sold, additional capital shares or other
Voting Securities of the Company or of any of its Subsidiaries. Except as
disclosed in the Company SEC Documents there are no outstanding agreements
of the Company or any of its Subsidiaries to repurchase,
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redeem or otherwise acquire any capital shares of the Company or any of its
Subsidiaries.
(e) Subsidiaries. The Company has no Subsidiaries other than XOMA
Limited, a United Kingdom company, XOMA (US) LLC, a Delaware limited
liability company, XOMA (Bermuda) Ltd., a Bermuda company, XOMA Technology
Ltd., a Bermuda company and XOMA Ireland Limited, an Irish company, all of
which are wholly-owned by the Company. All of the outstanding shares of
capital stock of each Subsidiary are owned by the Company free and clear of
all Liens, other than Permitted Liens.
(f) SEC Filings. The Company has timely filed all reports, schedules,
forms, statements and other documents required to be filed by it with the
SEC under the Securities Act and the Exchange Act since December 31, 2000
(the "Company SEC Documents"). As of its filing date, each Company SEC
Document filed, as amended or supplemented, if applicable, (i) complied in
all material respects with the applicable requirements of the Securities
Act or the Exchange Act, as applicable, and (ii) did not, at the time it
was filed, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were
made, not misleading, provided that no representation or warranty is made
as to information contained in or omitted from any registration statement
or prospectus filed pursuant to the Securities Act in reliance upon and in
conformity with information furnished to the Company by any underwriter or
selling shareholder specifically for inclusion therein.
(g) Absence of Certain Events and Changes. Except as disclosed in the
Company SEC Documents filed with the SEC and publicly available prior to
the date hereof, or in Company press releases (including joint press
releases) released publicly prior to the date hereof, or as otherwise
contemplated or permitted by this Agreement, since December 31, 2000, there
has not been any event or change which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole, or any material change in
the Company's accounting policies, principles or methods not required by
GAAP.
(h) Compliance with Law. Except as disclosed in the Company SEC
Documents, each of the Company and its Subsidiaries is in compliance with
all statutes, laws, regulations, rules, judgments, orders and decrees of
all Governmental Entities applicable to it that relate to its respective
business, and neither the Company nor any of its Subsidiaries has received
any notice alleging noncompliance except, with reference to all the
foregoing, where the failure to be in compliance would not, individually or
in the aggregate, have a Material Adverse Effect on the Company and its
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Subsidiaries, taken as a whole. Each of the Company and its Subsidiaries
has all Permits that are required in order to permit it to carry on its
business as it is presently conducted, except where the failure to have
such Permits would not, individually or in the aggregate, have a Material
Adverse Effect on the Company and its Subsidiaries, taken as a whole. All
such Permits are in full force and effect and the Company and its
Subsidiaries are in compliance with the terms of such Permits, except where
the failure to be in full force and effect or in compliance would not
individually or in the aggregate, have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole.
(i) Litigation. Except as disclosed in the Company SEC Documents filed
with the SEC and publicly available prior to the date hereof or in press
releases (including joint press releases) released publicly prior to the
date hereof by the Company or in press releases by others which are
provided to the Purchasers by the Company prior to the date hereof, and
except for applications and proceedings relating to regulatory approval of
new drugs or the granting of patents, (i) there are no civil, criminal or
administrative actions, suits, proceedings, or governmental investigations,
pending or, to the knowledge of the Company, threatened, against the
Company or any of its Subsidiaries that individually or in the aggregate,
are likely to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole, and (ii) there are no outstanding
judgments, orders, decrees, or injunctions of any Governmental Entity
against the Company or any of its Subsidiaries, that, insofar as can
reasonably be foreseen, individually or in the aggregate, in the future
would have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole, and (iii) to the knowledge of the Company, no product
liability claims have been asserted in a writing given to the Company or
any of its Subsidiaries or threatened against the Company or any of its
Subsidiaries, taken as a whole, with respect to products or product
candidates developed, tested, manufactured, marketed, distributed or sold
by the Company or any of its Subsidiaries.
(j) Contracts.
(i) The Company has filed as exhibits to the Company SEC
Documents all material agreements required to be filed under the rules
and regulations of the SEC. Such agreements are referred to herein as
"Material Contracts." The Company has received no written notice and
otherwise has no knowledge that any other party to a Material Contract
intends to request an amendment to such Material Contract which could
reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole, or to terminate such
Material Contract.
-15-
(ii) All Material Contracts are legal, valid, binding, in full
force and effect and enforceable against the Company or its Subsidiary
party thereto and, to the knowledge of the Company, each other party
thereto. To the knowledge of the Company, there does not exist under
any Material Contract any material violation, breach or event of
default, or event or condition that, after notice or lapse of time or
both, would constitute a material violation, breach or event of
default thereunder, on the part of any of the Company or its
Subsidiaries or, to the knowledge of the Company or any of its
Subsidiaries, any other Person.
(k) Taxes. The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof (or
has obtained valid extensions) and has paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company which has had,
nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company, could reasonably be expected to have,
a Material Adverse Effect.
(l) Status of Shares. At each Closing or conversion of the Note, as
applicable, the Shares then being issued will have been validly issued and,
assuming payment therefor has been made, will be fully paid and
nonassessable, and; the issuance of such Shares will not be subject to
preemptive rights of any other Person. The Shares will be eligible for
listing on a Principal Trading Market prior to issuance of such Shares at
Closing.
(m) Intellectual Property. To the Company's knowledge, except as set
forth on Schedule 3.1(m), (i) the Company and its Affiliates have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights and licenses
(collectively, the "Company Intellectual Property Rights") which are
necessary for use in connection with their business as presently conducted
and which the failure to do so could reasonably be expected to have a
Material Adverse Effect and (ii) there is no existing infringement by
another Person of any of the Company Intellectual Property Rights which are
necessary for use in connection with the Company's and its Affiliates'
business as presently conducted, which infringement could reasonably be
expected to have a Material Adverse Effect.
(n) Brokers or Finders. No agent, broker, investment banker or other
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
(o) Financial Statements and Related Matters. Each of (i) the
unaudited balance sheet for the Company as of September 30, 2001 and the
related statements of income and cash flows for the 9-month period then
ended, and (ii) the audited balance sheets and statements of income and
cash flows for the fiscal years ended December
-16-
31, 2000 and 1999 (including in all cases the notes thereto, if any), in
each case as filed with the SEC, is accurate and complete in all material
respects, is consistent with the Company's books and records (which, in
turn, are accurate and complete in all material respects), presents fairly
the Company's financial condition and results of operations as of the times
and for the periods referred to therein, has been prepared in accordance
with GAAP consistently applied and, with respect to unaudited financial
statements, is subject to normal year-end adjustments that are not expected
to be material in amount. The Company agrees to provide the Purchasers with
updated financial statements at the Second Closing Date, Third Closing
Date, Fourth Closing Date and Fifth Closing Date for the most recent
quarterly reporting periods for which a filing has been made under the
Exchange Act (including the notes thereto, the "Updated Financial
Statements").
(p) Other Indebtedness. Except as disclosed or reflected in the
financial statements contained in the Company SEC Documents, the Company
has no outstanding material indebtedness. Indebtedness means all
obligations of the Company for borrowed money evidenced by notes, bonds,
debentures or similar instruments, for which interest charges are
customarily paid, other than accounts payable and accrued obligations
incurred in the ordinary course of business consistent with past practice.
SECTION 3.2. Representations and Warranties of the Purchasers. Each
Purchaser hereby represents and warrants to the Company as follows:
(a) Organization. Each Purchaser is duly organized and validly
existing and in good standing under the laws of its jurisdiction, with all
requisite power and authority to own, lease and operate its properties and
to conduct its business as now being conducted.
(b) Authority; Authorization; Enforceability. Each Purchaser has the
requisite corporate or trust power and authority to execute, deliver and
perform its obligations under this Agreement and the Registration Rights
Agreement and to consummate the transactions contemplated hereby and
thereby. All necessary corporate or trust action required to have been
taken by or on behalf of each Purchaser by applicable law or otherwise to
authorize the approval, execution, delivery and performance by each
Purchasers of this Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated hereby or thereby have been
duly authorized, and no other proceedings on its part are or will be
necessary to authorize this Agreement and the Registration Rights Agreement
or for it to consummate such transactions. This Agreement and the
Registration Rights Agreement are valid and binding agreements of the
Purchasers, enforceable against the Purchasers in accordance with their
respective terms, assuming that this Agreement and Registration Rights
Agreement are
-17-
valid and binding agreements of the Company, subject as to enforcement of
remedies to applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting generally the enforcement of creditors' rights
and subject to a court's discretionary authority with respect to the
granting of a decree ordering specific performance or other equitable
remedies and except that rights to indemnity may be limited by public
policy.
(c) Conflicting Agreements and Other Matters. Neither the execution
and delivery of this Agreement and the Registration Rights Agreement nor
the performance by each Purchaser of its obligations hereunder (including
without limitation the purchase by the Purchasers of the Note and the
Shares) or thereunder will (i) conflict with, result in a breach of the
terms, conditions or provisions of, constitute a default under, result in
the creation of any Lien upon any of the properties or assets of the
Purchasers pursuant to, or (ii) require any consent, approval or other
action by or any notice to or filing with any Government Entity pursuant
to, the organizational documents or agreements of the Purchasers or any
agreement, instrument, order, judgment, decree, statute, law, rule or
regulation by which the Purchasers are bound except for filings after each
Closing under Section 13(d) of the Exchange Act.
(d) Acquisition for Investment. (i) The Purchasers are acquiring the
Note and the Shares for their own account for the purpose of investment and
not with a view to or for sale in connection with any distribution thereof,
and the Purchasers have no present intention to effect, or any present or
contemplated plan, agreement, undertaking, arrangement, obligation,
indebtedness, or commitment providing for, any distribution of the Note or
the Shares, (ii) the Purchasers are "accredited investors" as defined in
Rule 501(a) under the Securities Act, (iii) the Purchasers have carefully
reviewed the representations concerning the Company contained in this
Agreement, and (iv) the Purchasers have sufficient knowledge and experience
in finance and business that they are capable of evaluating the risks and
merits of their investment in the Company and able financially to bear the
risks thereof.
(e) Reoffers and Resales. All subsequent offers and sales of the Note
and the Shares by each Purchaser shall be made pursuant to registration of
the Shares under the 1933 Act or pursuant to an exemption from
registration.
(f) Company Reliance. Each Purchaser understands that the Note and the
Shares are being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy
of, and each Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understand-
-18-
ings of each Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of each Purchaser to
acquire the Shares.
(g) Information Provided. Each Purchaser and its advisors have been
furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of
the Note and the Shares which have been requested by such Purchaser; each
Purchaser and its advisors have been afforded the opportunity to ask
questions of the Company and have received satisfactory answers to any such
inquiries; without limiting the generality of the foregoing, each Purchaser
has had the opportunity to obtain and to review the Company SEC Documents;
and each Purchaser understands that its investment in the Notes and the
Shares involves a high degree of risk.
(h) Absence of Approvals. Each Purchaser understands that no United
States federal or state agency or any other government or governmental
agency has passed or made any recommendation or endorsement of the Notes or
the Shares.
(i) Financial Capability. Each Purchaser presently has and will have
the financial capacity and the necessary capital to perform its obligations
hereunder. Each Purchaser has, or has available to it, sufficient funds to
satisfy all of its financial obligations under this Agreement. Each
Purchaser will promptly notify the Company of any event or circumstance
which could be reasonably be expected to hinder its ability to perform its
obligations hereunder.
(j) Brokers or Finders. No agent, broker, investment banker or other
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from the Purchasers in connection with any of the
transactions contemplated by this Agreement.
(k) SEC Filings. Millennium has timely filed all reports, schedules,
forms, statements and other documents required to be filed by it with the
SEC under the Securities Act and the Exchange Act since December 31, 2000
(the "Millennium SEC Documents"). As of its filing date, each Millennium
SEC Document filed, as amended or supplemented, if applicable, (i) complied
in all material respects with the applicable requirements of the Securities
Act or the Exchange Act, as applicable, and (ii) did not, at the time it
was filed, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were
made, not misleading, provided that no representation or warranty is made
as to information contained in or omitted from any registration statement
or prospectus filed pursuant to the Securities Act in reliance upon and in
conformity with information furnished to Millennium by any underwriter or
selling shareholder specifically for inclusion therein.
-19-
ARTICLE IV
COVENANTS AND ADDITIONAL AGREEMENTS
SECTION 4.1. Ordinary Course. During the period from the date of this
Agreement and continuing until the First Closing Date, the Company will conduct
its business in the ordinary course in substantially the same manner as
presently conducted.
SECTION 4.2. Further Actions.
(a) Each of the Company and the Purchasers shall use commercially
reasonable efforts to take or cause to be taken all actions, and to do or cause
to be done all other things, necessary, proper or advisable in order to fulfill
and perform its obligations, and satisfy all conditions precedent, in respect of
this Agreement, the Note and the Registration Rights Agreement, or otherwise to
consummate and make effective the transactions contemplated hereby and thereby.
(b) Each of the Company and the Purchasers shall, as promptly as
practicable, (i) use commercially reasonable efforts to make, or cause to be
made, all filings and submissions required under any law applicable to it or any
of its Subsidiaries, and give such reasonable undertakings as may be required in
connection therewith, and (ii) use commercially reasonable efforts to obtain or
make, or cause to be obtained or made, all Permits necessary to be obtained or
made by it or any of its Subsidiaries, in each case in connection with this
Agreement, the Note and the Registration Rights Agreement, the sale and transfer
of the Note and the Shares pursuant hereto and the consummation of the other
transactions contemplated hereby or thereby.
(c) Each of the Company and the Purchasers shall coordinate and cooperate
with the other party in exchanging such information and supplying such
reasonable assistance as may be reasonably requested by such other party in
connection with the filings and other actions contemplated by this Agreement,
the Note and the Registration Rights Agreement.
(d) At all times prior to the Fifth Closing Date, or the earlier
termination of this Agreement, the Company and each Purchaser shall promptly
notify each other in writing of any fact, condition, event or occurrence that is
reasonably likely to result in the failure of any of the conditions contained in
Article V to be satisfied at the relevant Closing, promptly upon becoming aware
of the same.
(e) [*].
(f) [*].
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SECTION 4.3. Further Assurances. The Company shall, from time to time,
execute and deliver such additional instruments, documents, conveyances or
assurances and take such other actions as shall be reasonably necessary, or
otherwise reasonably be requested by the Purchasers, and render effective the
consummation of the transactions contemplated hereby and thereby, or otherwise
to carry out the intent and purposes of this Agreement.
SECTION 4.4. [*].
SECTION 4.5. Selling Restrictions.
[*].
(f) The selling restrictions set forth in this Section 4.5 shall terminate
and the Purchasers shall have the right, directly or indirectly, to sell,
transfer or otherwise dispose of any Shares without regard to any selling
restrictions set forth in this Section 4.5 in the event that:
(i) the Company has entered into (A) a merger agreement in which the
holders of the Voting Securities would cease to hold a majority of the
voting securities of the surviving corporation, (B) an agreement to sell
all or substantially all its assets, or (C) an agreement to be acquired,
business combination, consolidation or any such similar transaction, in
each case with any Person other than a wholly-owned subsidiary of the
Company; provided, however, the limitation shall (1) continue if (x) the
merger agreement is with a majority-owned subsidiary of the Company and the
Company is to be the surviving corporation in the merger or (y) the
majority of the directors of the Company, who have held that position for
at least nine (9) months prior to the entering into of the merger agreement
continue as the directors of the surviving company after the merger or (2)
be reinstated if such merger agreement or other agreements referred to in
the foregoing clause (A), (B) or (C) is subsequently terminated or the
transactions contemplated thereunder are not consummated;
(ii) a tender or exchange offer (other than a tender or exchange offer
that the Company's Board of Directors has recommended be rejected) is made
by any Person (other than an Affiliate of, or any Person acting in concert
with a Purchaser) to acquire Voting Securities which, if added to the
Voting Securities (if any) already owned by such Person, would result, if
consummated in accordance with its terms, in the
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beneficial ownership by such Person of more than 50% of the total voting
power of all Voting Securities then outstanding, provided that the
limitation shall be reinstated if such tender or exchange offer is
withdrawn or terminated without such Person acquiring such 50% ownership
level; or
(iii) a tender or exchange offer, which the Company's Board of
Directors has not approved or recommended, is made by any Person (other
than an Affiliate of, or any Person acting in concert with, a Purchaser) to
acquire Voting Securities which, if added to the Voting Securities (if any)
already owned by such Person, would result, if consummated in accordance
with its terms, in the beneficial ownership by such Person of more than 50%
of the total voting power of all Voting Securities then outstanding and the
Purchasers, upon the advice of legal counsel and financial advisors,
reasonably believe in good faith, taking into account the conditions of the
offer, that such tender or exchange offer will result in Voting Securities
being purchased, provided that the limitation shall be reinstated if such
tender or exchange offer is withdrawn or terminated without such Person
acquiring such 50% ownership level.
SECTION 4.6. Standstill Agreement.
(a) During the Applicable Period, except as permitted by Section 4.6(b) or
(c), the Purchasers and their Affiliates will not (and will not assist or
encourage others to) directly or indirectly in any manner:
(i) acquire, or agree to acquire, directly or indirectly, alone or in
concert with others, by purchase, gift or otherwise, any direct or indirect
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange
Act) or interest in any securities or direct or indirect rights, warrants
or options to acquire, or securities convertible into or exchangeable for,
any securities of the Company;
(i) make, or in any way participate in, directly or indirectly, alone
or in concert with others, any "solicitation" of "proxies" to vote (as such
terms are used in the proxy rules of the SEC promulgated pursuant to
Section 14 of the Exchange Act); provided, however, that the prohibition in
this subparagraph (ii) shall not apply to solicitations exempted from the
proxy solicitation rules by Rule 14a-2 under the Exchange Act as such Rule
is in effect as of the date hereof;
(ii) form, join or in any way participate in a "group" within the
meaning of Section 13(d)(3) of the Exchange Act with respect to any voting
securities of the Company;
(iii) acquire or agree to acquire, directly or indirectly, alone or in
concert with others, by purchase, exchange or otherwise, (i) any of the
assets, tangible or intangible, of the Company or (ii) direct or indirect
rights, warrants or options to acquire any assets of the Company, except
for such assets as are then being offered for sale by the Company;
(iv) enter into any arrangement or understanding with others to do any
of the actions restricted or prohibited under clauses (i), (ii) or (iii) of
this Section 4.6(a); or
(v) otherwise act in concert with others, to seek to offer to the
Company or any of its shareholders any business combination, restructuring,
recapitalization or similar transaction to or with the Company or otherwise
seek in concert with others, to control, change or influence the
management, board of directors or policies of the Company or nominate any
person as a director of the Company who is not nominated by the then
incumbent directors, or propose any matter to be voted upon by the
shareholders of the Company.
(b) Nothing herein shall prevent the Purchasers from purchasing any
securities of the Company pursuant to the terms of this Agreement (including
through exercise of its rights under Section 4.5 hereof) and Purchaser shall not
be treated as having breached any covenant in this Agreement solely as a result
of such purchase.
(c) This Section 4.6 shall terminate and the Purchasers and their
Affiliates shall have the right to acquire any securities of the Company without
regard to the limitation on share ownership set forth in this Section 4.6 in the
event that:
(i) the Company has entered into (A) a merger agreement in which the
holders of the Voting Securities would cease to hold a majority of the
voting securities of the surviving corporation, (B) an agreement to sell
all or substantially all its assets, or (C) an agreement to be acquired,
business combination, consolidation or any such similar transaction, in
each case with any Person other than a wholly-owned subsidiary of the
Company; provided, however, the limitation shall continue if (1) the merger
agreement is with a majority-owned subsidiary of the Company and the
Company is to be the surviving corporation in the merger, or (2) the merger
agreement or other agreements referred to in the foregoing clause (A), (B)
or (C) is subsequently terminated or the transactions contemplated
thereunder are not consummated; or
-22-
(ii) a tender or exchange offer (other than a tender or exchange offer
that the Company's Board of Directors has recommended be rejected) is made
by any Person or 13D Group (as hereinafter defined) (other than an
Affiliate of, or any Person acting in concert with, a Purchaser) to acquire
Voting Securities which, if added to the Voting Securities (if any) already
owned by such Person or 13D Group, would result, if consummated in
accordance with its terms, in the beneficial ownership by such Person or
13D Group of more than 50% of the total voting power of all Voting
Securities then outstanding, provided that the limitation shall be
reinstated if such tender or exchange offer is withdrawn or terminated
without such Person or 13D Group acquiring such 50% ownership level, and
provided further, notwithstanding the termination or withdrawal of any such
tender or exchange offer, any securities of the Company acquired by the
Purchasers or their Affiliates following the making of such tender or
exchange offer and prior to such termination or withdrawal may be retained;
or
(iii) it is publicly disclosed or a Purchaser otherwise learns that
Voting Securities representing more than 50% of the total voting power of
all Voting Securities then outstanding are beneficially owned by any Person
or 13D Group (other than an Affiliate of, or any person acting in concert
with, a Purchaser); or
(iv) a proxy contest (or similar incident) is made by any Person or
13D Group (other than an Affiliate of, or any Person acting in concert with
a Purchaser) to elect individuals who at the beginning of any calendar year
did not constitute the majority of the members of the Board of Directors of
the Company then in office and the Purchasers, upon the advice of legal
counsel and financial advisors, reasonably believe in good faith that such
proxy contest will result in the election of individuals who will
constitute a majority of members of the Board of Directors of the Company,
but who did not, at the beginning of the calendar year, constitute the
majority of the members of the Board of Directors of the Company then in
office, provided that the limitation shall be reinstated if such proxy
contest or similar incident is terminated or withdrawn without affecting
the change in the Board of Directors referred to above and provided further
that, notwithstanding the termination or withdrawal of any such proxy
contest or similar incident, any securities of the Company acquired by the
Purchasers or their Affiliates following initiation of such proxy contest
or similar incident and prior to such termination or withdrawal may be
retained.
(d) As used herein, the term "13D Group" shall mean any group of Persons
formed for the purpose of acquiring, holding, voting or disposing of Voting
Securities which would be required under Section 13(d) of the Exchange Act and
the rules and regulations thereunder (as now in effect and based on present
legal interpretations thereof) to file a statement on Schedule 13D with the SEC
as a "person" within the meaning of Section 13(d)(3) of the Exchange Act.
Ownership of Voting Securities under Section 4.6(c) above and Section
-23-
4.5(d) above shall be determined in accordance with Rule 13d-3 of the Exchange
Act as currently in effect.
(e) Nothing herein shall prevent the Purchasers from acquiring securities
of another operating entity, including without limitation a biotechnology or
pharmaceutical company, that beneficially owns any of the Company's securities.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1. Each Party's Obligations. The obligations of the Company and
each Purchaser to consummate the transactions contemplated to occur at each
Closing shall be subject to the satisfaction prior to each Closing of each of
the following conditions, each of which may be waived only if it is legally
permissible to do so:
(a) Approvals. All material authorizations, consents, orders or
approvals of, or regulations, declarations or filings with, or expirations
of applicable waiting periods imposed by, any Governmental Entity
(including, without limitation, any foreign antitrust filing) necessary for
the consummation of the transactions contemplated hereby, shall have been
obtained or filed or shall have occurred.
(b) No Litigation, Injunctions or Restraints. No statute, rule,
regulation, executive order, decree, temporary restraining order,
preliminary or permanent injunction or other order enacted, entered,
promulgated, enforced or issued by any Governmental Entity or other legal
restraint or prohibition preventing the consummation of the transactions
contemplated by this Agreement shall be in effect.
SECTION 5.2. Conditions to the Obligations of the Company. The obligations
of the Company to consummate the transactions contemplated to occur at each
Closing shall be subject to the satisfaction or waiver thereof prior to each
Closing of the following condition:
The representations and warranties of the Purchasers that are qualified as
to materiality shall be true and correct, and those that are not so qualified
shall be true and correct in all material respects, as of the date of this
Agreement and as of the time of each Closing as though made at and as of such
time, except to the extent such representations and warranties expressly relate
to an earlier date (in which case such representations and warranties that are
qualified as to materiality shall be true and correct, and those that are not so
qualified shall be true and correct in all material respects, on and as of such
earlier date), and the Com-
-24-
pany shall have received a certificate signed by an authorized officer of each
of the Purchasers to such effect.
SECTION 5.3. Conditions to the Obligations of the Purchasers. The
obligations of the Purchasers to consummate the transactions contemplated to
occur at each Closing shall be subject to the satisfaction or waiver thereof
prior to each Closing of each of the following conditions:
(a) Representations and Warranties. The Purchasers shall have received
a certificate signed by (i) the chief executive officer, president or
senior vice president, operations of the Company and (ii) the chief
financial officer of the Company describing the extent to which the
representations and warranties of the Company set forth in this Agreement
that are qualified as to materiality are true and correct, and those that
are not so qualified are true and correct in all material respects, as of
the date of this Agreement and as of the time of each Closing as though
made at and as of such time, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties that are qualified as to materiality are
true and correct, and those that are not so qualified are true and correct
in all material respects, on and as of such earlier date). At each of the
Second Closing, Third Closing, Fourth Closing and Fifth Closing, in such
certificate the chief executive officer, president or senior vice
president, operations and chief financial officer of the Company shall also
represent and warrant that the Updated Financial Statements for the
applicable period, are accurate and complete in all material respects,
consistent with the Company's books and records (which, in turn are
accurate and complete in all material respects), present fairly the
Company's financial condition and results of operations as of the times and
for the periods referred to therein, have been prepared in accordance with
GAAP consistently applied and, with respect to unaudited financial
statements, are subject to normal year-end adjustments that are not
expected to be material in amount. If the events or information disclosed
in the certificate described in the first sentence of this Section 5.3(a)
could, in the reasonable judgment of the Company's chief executive officer
or board of directors after consultation with Company counsel, indicate
that there has occurred an event or circumstance that is required to be
publicly disclosed pursuant to the rules of the Principal Trading Market or
applicable Federal or state securities laws, [*], unless the Company
subsequently advises the Purchasers in writing that the circumstances
surrounding such event or information have changed such that, in the
reasonable judgment of the Company's chief executive officer or board of
directors, after consultation with Company counsel, disclosure will no
longer be required, in which case such Closing shall be held no later than
five (5) Business Days thereafter. The disclosure of any other Material
Adverse Effect in the certificate referenced above shall not be deemed a
failure of a Closing condition.
-25-
(b) Updated Financial Statements. Not less than two (2) weeks prior to
each of the Second, Third, Fourth and Fifth Closings, the Company shall
provide each Purchaser with Updated Financial Statements. In addition, the
Company shall provide such supplemental schedules as may be required to
cause the representations and warranties of the Company set forth in this
Agreement to be true and correct on the date of the relevant Closing.
(c) Development and License Agreement. The Development and License
Agreement shall have become effective in accordance with the terms and
conditions thereof, and no material, uncured breach by the Company shall
have occurred, and there shall have been no termination of the Development
and License Agreement or the Registration Rights Agreement for cause by the
Purchasers.
(d) Principal Trading Market Listing. The Common Shares shall continue
to be listed on a Principal Trading Market as of the date of each Closing.
Trading in the Company's securities shall not have been suspended, other
than a temporary suspension of trading to provide for an orderly market.
Prior to any Closing, the Company shall have received Principal Trading
Market approval for quotation of the Shares to be issued at such Closing,
subject only to official notice of issuance.
(e) Registration of Shares.
(i) The Company shall have executed and delivered the
Registration Rights Agreement between the Company and the Purchasers
of even date herewith (the "Registration Rights Agreement").
(ii) Prior to the Second Closing, the Company shall have caused
the Shares to be issued upon conversion of the Note and the Second
Closing Shares to be registered for resale by the Purchasers pursuant
to an effective registration statement on Form S-3 and meeting the
requirements set forth in the Registration Rights Agreement.
(iii) Prior to the Third Closing, the Company shall have caused
the Third Closing Shares to be registered for resale by the Purchasers
pursuant to an effective registration statement on Form S-3 and
meeting the requirements set forth in the Registration Rights
Agreement.
(iv) Prior to the Fourth Closing, the Company shall have caused
the Fourth Closing Shares to be registered for resale by the
Purchasers pursuant to an effective registration statement on Form S-3
and meeting the requirements set forth in the Registration Rights
Agreement.
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(v) Prior to the Fifth Closing, the Company shall have caused the
Fifth Closing Shares to be registered for resale by the Purchasers
pursuant to an effective registration statement on Form S-3 and
meeting the requirements set forth in the Registration Rights
Agreement.
(f) Opinion of the Company's Counsel. The Purchasers shall have
received an opinion dated as of each Closing (and as of conversion of the
Note) of each of (x) Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General
Counsel and Secretary of the Company, in substantially the form attached as
Exhibit C, and (y) Xxxxxxx Xxxx & Xxxxxxx, special counsel to the Company,
in substantially the form attached as Exhibit D, and (z) Xxxxxx Xxxxxx &
Xxxxxxx, special counsel to the Company, in substantially the form attached
as Exhibit E.
(g) Performance of Obligations of the Company. The Company shall have
performed or complied in all material respects with all obligations and
covenants required to be performed or complied with by the Company under
this Agreement and the Registration Rights Agreement and the Purchasers
shall have received a certificate signed by the chief executive officer and
chief financial officer of the Company to such effect.
(h) Corporate Proceedings, Approvals. All corporate proceedings and
approvals of the Company in connection with the transactions contemplated
under this Agreement, the Note, and the Registration Rights Agreement and
all documents and instruments incident thereto, shall have been obtained,
and the Purchasers and its counsel shall have received all such documents
and instruments, or copies thereof, certified or requested, as may be
reasonably requested.
(i) Conversion or Repayment of Note. Prior to or at the Second
Closing, the Note and all accrued interest thereon shall have been
converted to Common Shares or repaid in accordance with the terms set forth
therein.
ARTICLE VI
TERMINATION
SECTION 6.1. Termination. This Agreement may be terminated at any time
prior to the Fifth Closing:
(a) by mutual written consent of the Purchasers and the Company;
-27-
(b) by the Purchasers or the Company, if there shall be any statute,
law, regulation or rule that makes consummating the transactions
contemplated hereby illegal or if any court or other Governmental Entity of
competent jurisdiction shall have issued judgment, order, decree or ruling,
or shall have taken such other action restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated hereby and
such judgment, order, decree or ruling shall have become final and
non-appealable;
(c) by the Purchasers:
(i) if the Development and License Agreement has been terminated
for any reason, or if the Company shall have failed to perform in any
material respect any of its obligations hereunder or under the
Registration Rights Agreement, or shall have breached in any respect
any representation or warranty contained herein qualified by
materiality or shall have breached in any material respect any
representation or warranty not so qualified, and the Company has
failed to perform such obligation within 30 days of its receipt of
written notice thereof from the Purchasers, and such failure to
perform shall not have been waived in accordance with the terms of
this Agreement;
(ii) if any of the conditions set forth in Section 5.1 or 5.3
shall become impossible to fulfill (other than as a result of any
breach by the Purchasers of the terms of this Agreement) and shall not
have been waived in accordance with the terms of this Agreement;
(iii) if the Common Shares shall no longer be listed on any
Principal Trading Markets; or
(iv) if an Event of Default other than pursuant to Section 8(d)
thereof shall have occurred under the Note.
(d) by the Company:
(i) if the Development and License Agreement has been terminated
for any reason, or if the Purchasers shall have failed to perform in
any material respect any of their obligations hereunder or shall have
breached in any respect any representation or warranty contained
herein qualified by materiality or shall have breached any material
respect any representation or warranty not so qualified, and the
Purchasers have failed to perform such obligation or cure such breach,
within 30 days of its receipt of written notice thereof from the
Company, and such failure to perform shall not have been waived in
accordance with the terms of this Agreement; or
-28-
(ii) if any of the conditions set forth in Section 5.1 or 5.2
shall become impossible to fulfill (other than as a result of any
breach by the Company of the terms of this Agreement) and shall not
have been waived in accordance with the terms of this Agreement.
SECTION 6.2. Effect of Termination. In the event of termination of this
Agreement by either the Company or the Purchasers as provided in Section 6.1,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of the Purchasers or the Company, other than
the provisions of Section 4.4, this Section 6.2 and Section 8.9, except to the
extent that such termination results from the breach by a party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement, as to which breaches the parties shall retain any and all rights
attendant thereto.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification of the Purchasers.
(a) The Company covenants and agrees to indemnify and hold harmless each of
the Purchasers, their Affiliates (other than the Company and any of its
Subsidiaries), and their respective officers, directors, partners, employees,
agents, advisers and representatives (collectively, the "Purchasers'
Indemnitees") from and against, and pay or reimburse the Purchasers' Indemnitees
for, any and all claims, demands, liabilities, obligations, losses, costs,
expenses, fines or damages (whether absolute, accrued, conditional or otherwise
and whether or not resulting from third party claims), including interest and
penalties with respect thereto and all expenses incurred in the investigation or
defense of any of the same or in asserting, preserving or enforcing any of their
respective rights hereunder (collectively, "Losses"), resulting from or based on
(or allegedly resulting from or based on) any breach by the Company of any
representation, warranty, covenant or obligation of the Company hereunder. The
Losses described in this Section 7.1(a) are herein referred to as "Purchasers'
Indemnifiable Losses". The Company shall reimburse the Purchasers' Indemnitees
for any legal or other expenses incurred by such Purchasers' Indemnitees in
connection with investigating or defending any such Purchasers' Indemnifiable
Losses as such expenses are incurred.
(b) In the event of any such claim against any Purchaser Indemnitee, the
Purchasers shall promptly notify the Company in writing of the claim and the
Company shall manage and control, at its sole expense, the defense of the claim
and its settlement. The Purchaser Indemnitees shall cooperate with the Company
and may, at their option and expense, be represented in any such action or
proceeding. The Company shall not be liable for any set-
-29-
tlements, litigation costs or expenses incurred by the Purchaser Indemnitees
without the Company's written authorization.
SECTION 7.2. Indemnification of the Company.
(a) The Purchasers, jointly and severally, covenant and agree to indemnify
and hold harmless each of the Company, its Affiliates (other than the Purchasers
and any of their Subsidiaries), and their respective officers, directors,
partners, employees, agents, advisers and representatives (collectively, the
"Company's Indemnitees") from and against, and pay or reimburse the Company's
Indemnitees for, any and all Losses resulting from or based on (or allegedly
resulting from or based on) any breach by a Purchaser of any representation,
warranty, covenant or obligation of the Purchasers hereunder. The Losses
described in this Section 7.2(a) are herein referred to as "Company's
Indemnifiable Losses". The Purchasers shall reimburse the Company's Indemnitees
for any legal or other expenses incurred by the Company's Indemnitees in
connection with investigating or defending any such Company's Indemnifiable
Losses as such expenses are incurred.
(b) In the event of any such claim against any Company Indemnitee, the
Company shall promptly notify the Purchasers in writing of the claim and the
Purchasers shall manage and control, at their sole expense, the defense of the
claim and its settlement. The Company Indemnitees shall cooperate with the
Purchasers and may, at their option and expense, be represented in any such
action or proceeding. The Purchasers shall not be liable for any settlements,
litigation costs or expenses incurred by the Company Indemnitees without the
Purchasers' written authorization.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Governing Law. This Agreement shall be construed and the
respective rights of the parties determined according to the substantive laws of
the State of New York notwithstanding the provisions governing conflict of laws
under such New York law to the contrary.
SECTION 8.2. Assignment. Neither the Company nor the Purchasers may assign
this Agreement in whole or in part without the consent of the other, except if
such assignment occurs in connection with the sale or transfer (by merger or
otherwise) of all or substantially all of the business and assets of the Company
or the Purchasers to which the subject matter of this Agreement pertains,
provided that the acquirer confirms to the other party in writing its agreement
to be bound by all of the terms and conditions of this Agreement.
Not-
-30-
withstanding the foregoing, either party may assign this Agreement to an
Affiliate, provided that such party shall guarantee the performance of such
Affiliate, and provided further that either party may assign its rights (but not
its obligations) pursuant to this Agreement in whole or in part to an Affiliate
of such party that is controlled by such party.
SECTION 8.3. Amendments. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all previous arrangements with respect to the subject matter hereof, whether
written or oral. The parties also acknowledge the simultaneous execution and
delivery of the Development and License Agreement, the Note and the Registration
Rights Agreement, none of which shall be superseded by this Agreement. Any
amendment or modification to this Agreement shall be made in writing signed by
both parties.
SECTION 8.4. Notices. Notices to the Company shall be addressed to:
XOMA LTD.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxxxx Xxxxxx & Xxxxxxx
Eighty Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Millennium shall be addressed to:
Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with copies (which shall not constitute notice ) to:
Hill & Xxxxxx
A Professional Corporation|
One International Place
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to the Trust shall be addressed to:
mHOLDINGS TRUST
c/o Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to:
Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either Party may change its address to which notices shall be sent by giving
notice to the other Party in the manner herein provided. Any notice required or
provided for by the terms of this Agreement shall be in writing and shall be (a)
delivered by hand, (b) sent by registered or certified mail, return receipt
requested, postage prepaid, (c) sent via a reputable overnight courier service,
or (d) sent by facsimile transmission, in each case properly addressed in
accordance with the paragraph above. The effective date of notice shall be the
actual date of receipt by the Party receiving the same.
SECTION 8.5. Public Announcements. The provisions of Section 14.1 of the
Development and License Agreement herein shall govern any and all public
statements with respect to the transactions contemplated by this Agreement.
-32-
SECTION 8.6. No Strict Construction. This Agreement has been prepared
jointly and shall not be strictly construed against either Party.
SECTION 8.7. Headings. The captions or headings of the sections or other
subdivisions hereof are inserted only as a matter of convenience or for
reference and shall have no effect on the meaning of the provisions hereof.
SECTION 8.8. No Implied Waivers; Rights Cumulative. No failure on the part
of the Company or the Purchasers to exercise, and no delay in exercising, any
right, power, remedy or privilege under this Agreement, or provided by statute
or at law or in equity or otherwise, shall impair, prejudice or constitute a
waiver of any such right, power, remedy or privilege or be construed as a waiver
of any breach of this Agreement or as an acquiescence therein, nor shall any
single or partial exercise of any such right, power, remedy or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power, remedy or privilege.
SECTION 8.9. Confidentiality. Each of the Purchasers and the Company shall,
and shall cause each of its Affiliates to, treat and hold as confidential all
information concerning the business and affairs of the other party disclosed to
it or of which it becomes aware in connection with this Agreement that is not
already generally available to the public (the "Confidential Information"), and
refrain from using any of the Confidential Information except in connection with
this Agreement. In the event that any party or its Affiliate is requested or
required (by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or similar
process) to disclose any Confidential Information, such party shall notify the
other party promptly of the request or requirement so that such other party may
seek an appropriate protective order or waive compliance with the provisions of
this Section 8.9. If, in the absence of a protective order or the receipt of a
waiver hereunder, any party is, on the advice of counsel, compelled to disclose
any Confidential Information to any tribunal or else stand liable for contempt,
such party may disclose the Confidential Information to the tribunal; provided
that such disclosing party shall use commercially reasonable efforts to obtain,
at the request of the other party, an order or other assurance that confidential
treatment shall be accorded to such portion of the Confidential Information
required to be disclosed as the party to whom such information relates shall
designate.
SECTION 8.10. Severability. If any provision hereof should be held invalid,
illegal or unenforceable in any respect in any jurisdiction, the parties hereto
shall substitute, by mutual consent, valid provisions for such invalid, illegal
or unenforceable provisions which valid provisions in their economic effect are
sufficiently similar to the invalid, illegal or unenforceable provisions that it
can be reasonably assumed that the parties would have entered into this
Agreement with such valid provisions. In case such valid provisions cannot be
agreed
-33-
upon, the invalid, illegal or unenforceable of one or several provisions of this
Agreement shall not affect the validity of this Agreement as a whole, unless the
invalid, illegal or unenforceable provisions are of such essential importance to
this Agreement that it is to be reasonably assumed that the parties would not
have entered into this Agreement without the invalid, illegal or unenforceable
provisions.
SECTION 8.11. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, and all of which counterparts, taken together,
shall constitute one and the same instrument.
SECTION 8.12. No Third Party Beneficiaries. No person or entity other than
the Purchasers, the Company and their respective Affiliates and permitted
assignees hereunder shall be deemed an intended beneficiary hereunder or have
any right to enforce any obligation of this Agreement.
SECTION 8.13. Specific Enforcement. The Purchasers, on the one hand, and
the Company, on the other, acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions hereof in any court of the
United States or any state thereof having jurisdiction, this being in addition
to any other remedy to which they may be entitled at law or equity.
SECTION 8.14. Cooperation. The Purchasers and the Company agree to take, or
cause to be taken, all such further or other actions as shall reasonably be
necessary to make effective and consummate the transactions contemplated by this
Agreement.
SECTION 8.15. Expenses and Remedies. Whether or not the Closings take
place, all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by the party incurring such
expense.
SECTION 8.16. Transfer of Shares. The Purchasers understand and agree that
the Note and the Shares have not been registered under the Securities Act or the
securities laws of any state and that they may be sold or otherwise disposed of
only in one or more transactions registered under the Securities Act and, where
applicable, such laws or as to which an exemption from the registration
requirements of the Securities Act and, where applicable, such laws is
available. The Purchasers acknowledge that except as provided in the
Registration Rights Agreement, the Purchasers have no right to require the
Company to register the Note or the Shares and understand and agree that each
certificate representing the Note or the Shares (other than, with respect to the
first legend, Shares that are no longer subject to the provisions of Section 3.6
and other than, with respect to the second legend, Shares which have
-34-
been transferred in a transaction registered under the Securities Act or exempt
from the registration requirements of the Securities Act pursuant to Rule 144
thereunder or any similar rule or regulation) shall bear the legends in
substantially the following form:
"THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED BY AN AGREEMENT ON FILE AT THE OFFICE OF THE COMPANY."
"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."
and the Purchasers agree to transfer the Note and the Shares only in accordance
with the provisions of such legends.
[The remainder of this page has intentionally been left blank.]
-35-
IN WITNESS WHEREOF, EACH PURCHASER and the COMPANY have each caused this
Agreement to be executed by its duly authorized representative as of the day and
year first above written.
XOMA LTD.
By:
-----------------------------------------
Name:
Title:
MILLENNIUM PHARMACEUTICALS, INC.
By:
-----------------------------------------
Name:
Title:
mHOLDINGS TRUST
By:
-----------------------------------------
Name:
Title:
SCHEDULE 3.1(m)
CERTAIN INTELLECTUAL PROPERTY MATTERS
[*]
EXHIBIT A
[*]
