Exhibit 10.50
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
This Offshore Securities Subscription Agreement
("Agreement") is
executed in reliance upon the transaction exemption afforded by
Regulation S
("Regulation S") as promulgated by the Securities and Exchange
Commission
("SEC"), under the Securities Act of 1933, as amended ("1933 Act").
This Agreement has been executed by the undersigned in
connection with
the private placement of Convertible Preferred Stock, Series C
(hereinafter
referred to as the "Preferred Shares") of Xoma Corporation, a
corporation
organized and existing under the laws of the State of Delaware,
U.S.A., NASDAQ
National Market Symbol "XOMA" (hereinafter referred to as the
"COMPANY"). The
Preferred Shares being sold pursuant to this Agreement have not
been registered
under the 1933 Act and may not be offered or sold in the United
States or to
U.S. persons, other than distributors (as such terms are defined in
Regulation
S), unless the Preferred Shares are registered under the 1933 Act,
or an
exemption from the registration provisions of the 1933 Act is
available. The
terms on which the Preferred Shares may be converted into common
stock (the
"Shares") and the other terms of the Preferred Shares are set forth
in ANNEX I
annexed hereto. This subscription and, if accepted by the COMPANY,
the offer and
sale of Preferred Shares and the Shares issuable upon conversion
thereof
(collectively the "Securities"), are being made in reliance upon
the provisions
of Regulation S ("Regulation S") under the 0000 Xxx.
The undersigned
NAME:
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ADDRESS:
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if applicable, a [Corporation][Partnership][Trust] organized under
the laws
of __________, a non USA jurisdiction (hereinafter referred to as
the
"PURCHASER")
hereby represents and warrants to, and agrees with, the COMPANY as
follows:
1. AGREEMENT TO SUBSCRIBE;
a. SUBSCRIPTION AMOUNT. The undersigned hereby subscribes
for
$_________________ in liquidation preference of Preferred
Shares.
b. FORM OF PAYMENT. The PURCHASER shall pay the purchase
price
for the Preferred Shares by delivering good funds in
United
States Dollars to the escrow agent identified in the
Joint
Escrow Instructions attached hereto as ANNEX II (the
"Escrow
Agent"). Delivery of such funds to the COMPANY by the
Escrow
Agent shall be made against delivery by the COMPANY of
one or
more certificates for the Preferred Shares in accordance
with
this Agreement. Promptly following notice by the Escrow
Agent
of payment from the PURCHASER of the subscription price
for
the Preferred Shares, the COMPANY shall determine whether
to
accept such subscription and, if so accepted, shall
deliver
one or more certificates for the Preferred Shares to the
Escrow Agent. By signing this Agreement, the PURCHASER
and the
Company each agrees to all of the terms and conditions
of, and
becomes a party to, the Joint Escrow Instructions
attached
hereto as ANNEX II, all of the provisions of which are
incorporated herein by this reference as if set forth in
full.
c. METHOD OF PAYMENT. Payment of the purchase price for
the Preferred
Shares shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For Further Credit to A/C# 6371415554
for credit to the account of Xxxxxxx &
Xxxxxx,
Attorneys
Escrow Account: ITF Closing A/C
Not later than five (5) business days after acceptance
and
execution of this Agreement by the COMPANY, the
PURCHASER
shall deposit with the Escrow Agent the aggregate
subscription
price for the Preferred Shares.
2. SUBSCRIBER REPRESENTATIONS; ACCESS TO INFORMATION;
INDEPENDENT
INVESTIGATION.
a. OFFSHORE TRANSACTION. PURCHASER represents and
warrants to
COMPANY as follows:
(i) PURCHASER is not a U.S. person as that term is
defined
under
Regulation S.
(ii) PURCHASER is outside the United States
as of the date of the execution and delivery
of this Agreement.
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(iii) PURCHASER is purchasing the Preferred
Shares for its own account and not on behalf
of any U.S. person, and PURCHASER is the
sole beneficial owner of the Preferred
Shares, and has not pre-arranged any sale
with purchasers in the United States.
(iv) PURCHASER represents and warrants and
hereby agrees that all offers and sales of
the Preferred Shares prior to the expiration
of a period commencing on the date of the
receipt of funds by the COMPANY and ending
40 days thereafter shall only be made in
compliance with the safe harbor contained in
Regulation S, pursuant to registration
provisions under the 1933 Act or pursuant to
an exemption from registration, and all
offers and sales after the expiration of the
40-day period shall be made only pursuant to
such registration or to such exemption from
registration.
(v) PURCHASER acknowledges that the purchase
of the Preferred Shares involves a high
degree of risk , is aware of the risks and
further acknowledges that it can bear the
economic risk of the purchase of the
Preferred Shares, including the total loss
of its investment.
(vi) PURCHASER understands that the
Preferred Shares are being offered and sold
to it in reliance on specific exemptions
from the registration requirements of U.S.
securities laws and that the COMPANY is
relying upon the truth and accuracy of the
representations, warranties, agreements,
acknowledgements and understandings of
PURCHASER set forth herein in order to
determine the applicability of such
exemptions and the suitability of PURCHASER
to acquire the Preferred Shares.
(vii) PURCHASER is sufficiently experienced
in financial and business matters to be
capable of evaluating the merits and risks
of its investments, and to make an informed
decision relating thereto.
(viii) In evaluating its investment,
PURCHASER has consulted its own investment
and/or legal and/or tax advisors.
(ix) PURCHASER understands that in the view
of the SEC the statutory basis for the
exemption claimed for this transaction would
not be present if the offering of Preferred
Shares, although in technical compliance
with Regulation S, is part of a plan or
scheme to evade the registration provisions
of the 1933 Act. PURCHASER is acquiring the
Preferred Shares for investment purposes and
has no present intention to sell the
Preferred Shares
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in the United States or to a U.S. Person or
for the account
or benefit of a U.S. Person either now or
after the
expiration of the Restricted Period.
(x) PURCHASER is not an underwriter of, or dealer
in, the
Securities, and PURCHASER is not
participating, pursuant
to a contractual agreement, in the
distribution of the
Securities.
(xi) During the Restricted Period (as
hereinafter defined), neither PURCHASER nor
any of its affiliates will, directly or
indirectly, maintain any short position in
the Securities of the COMPANY.
b. CURRENT PUBLIC INFORMATION. PURCHASER acknowledges
that PURCHASER
has been furnished with or has acquired copies of the
COMPANY's
most recent Annual Report on the Form 10-K filed with
the SEC and
the Forms 10-Q and 8-K filed thereafter (collectively
the "SEC
Filings").
c. INDEPENDENT INVESTIGATION; ACCESS. PURCHASER
acknowledges that PURCHASER, in making the decision
to purchase the Preferred Securities subscribed for,
has relied upon independent investigations made by it
and its representatives, if any, and PURCHASER and
such representatives, if any, have, prior to any sale
to it, been given access and the opportunity to
examine all material publicly available, books and
records of the COMPANY, all material contracts and
documents relating to this offering and an
opportunity to ask questions of, and to receive
answers from the COMPANY or any person acting on its
behalf concerning the terms and conditions of this
offering. PURCHASER and its advisors, if any, have
been furnished with access to all publicly available
materials relating to the business, finances and
operation of the COMPANY and materials relating to
the offer and sale of the Preferred Preferred
Securities which have been requested. PURCHASER and
its advisors, if any, have received complete and
satisfactory answers to any such inquiries.
d. NO GOVERNMENT RECOMMENDATION OR APPROVAL. PURCHASER
understands that no federal or state agency has passed
on or made
any recommendation or endorsement of the Securities.
e. ENTITY PURCHASERS. If PURCHASER is a partnership,
corporation or
trust, the person executing this Agreement on its
behalf
represents and warrants that:
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(i) He or she has made due inquiry to determine the
truthfulness
of the representations and warranties made
pursuant to this
Agreement.
(ii) He or she is duly authorized (if the
undersigned is a trust, by the trust
agreement) to make this investment and to
enter into and execute this Agreement on
behalf of such entity.
3. COMPANY REPRESENTATIONS.
a. REPORTING COMPANY STATUS. The COMPANY is a
reporting issuer as defined by Rule 902 of Regulation
S. The COMPANY is in full compliance, to the extent
applicable, with all reporting obligations under
either Section 12(b), 12(g) or 15(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The COMPANY has registered its
common stock pursuant to Section 12 of the Exchange
Act and the common stock trades on NASDAQ.
b. OFFSHORE TRANSACTION. The COMPANY has not offered
these
securities to any person in the United States or to
any U.S.
person as that term is defined in Regulation S.
c. NO DIRECTED SELLING EFFORTS. In regard to this
transaction, the COMPANY has not conducted any
"direct selling efforts" as that term is defined in
Rule 902 of Regulation S nor has the COMPANY
conducted any general solicitation relating to the
offer and sale of the within securities to persons
resident within the United States or elsewhere.
d. TERMS OF PREFERRED SHARES. The COMPANY will issue
the Preferred Shares in accordance with the terms of
ANNEX I attached hereto and a Certificate of
Designation will be filed by the COMPANY with the
Secretary of State of the State of Delaware promptly
after acceptance of one or more subscription
agreements.
e. LEGALITY. The COMPANY has the requisite corporate
power and
authority to enter into this Agreement and to sell and
deliver the
Preferred Shares; this Agreement and the issuance of
the Preferred
Shares have been duly and validly authorized by all
necessary
corporate action by the COMPANY; this Agreement been
duly and
validly executed and delivered by and on behalf of the
COMPANY, and
is
a valid and binding agreement of the COMPANY,
enforceable against
it in accordance with its terms, except as
enforceability may be
limited by general equitable principles, bankruptcy,
insolvency,
fraudulent conveyance, reorganization, moratorium or
other laws
affecting creditors rights generally.
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f. NON-CONTRAVENTION. The execution and delivery of
the Agreement and the consummation of the issuance of
the Preferred Securities and the consummation of the
transactions contemplated by this Agreement by the
COMPANY do not and will not conflict with or result
in a breach by the COMPANY of any of the terms or
provisions of, or constitute a default under, the
Certificate of Incorporation or by-laws of the
COMPANY, or any material indenture, mortgage, deed of
trust, or other material agreement or instrument to
which the COMPANY is a party or by which it or any of
its properties or assets are bound or (assuming that
the representations and warranties of the PURCHASER
in Section 2 hereof, and the representations and
warranties of the distributor to the COMPANY, are
true and correct), any existing applicable U.S. law,
rule, or regulation or any applicable decrees,
judgment or order of any U.S. court, federal or state
regulatory body, administrative agency or other U.S.
governmental body having jurisdiction over the
COMPANY or any of its properties or assets, the
conflict, breach, violation or default of or under
which would have a material adverse effect on the
COMPANY's business or financial condition.
g. FILINGS. The COMPANY undertakes and agrees to make all
necessary
filings in connection with the sale of the Preferred
Shares as
required by United States laws and regulations or of
any domestic
securities exchange or trading market.
h. ABSENCE OF CERTAIN CHANGES. Since March 31, 1995,
there has been
no material adverse development in the assets,
liabilities,
business, properties, operations, financial condition
or results
of operations of the COMPANY, except as disclosed in
the SEC
filings.
4. EXPIRATION OF RESTRICTED PERIOD.
a. Promptly following the delivery by PURCHASER of the
subscription
price in accordance with Section 1(c) hereof, the COMPANY will
determine
whether to accept such subscription and, if so accepted, will
prepare and
issue one or more certificates for the Preferred Shares registered
in such
name or names as specified by the PURCHASER and cause the same to
be delivered
to the Escrow Agent. The COMPANY's transfer agent will be
instructed to issue
one or more certificates for the Shares without restrictive legend
upon
conversion of the Preferred Shares, registered in the name of the
holder of
Preferred Shares in accordance with this Agreement who converts any
Preferred
Shares or its nominee and in such denominations to be specified by
the such
holder in connection with such conversion. The COMPANY warrants
that no
restriction or instruction other than these instructions and a
"stop transfer"
restriction on the COMPANY's stock ledger relating to the Preferred
Shares until
the end of the forty (40) day Restricted Period applicable under
Regulation S
will be imposed by the COMPANY or given by the COMPANY to its
transfer agent for
the Shares and that the Preferred Shares and
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the Shares shall otherwise be freely transferable on the books and
records of
the Company as and to the extent provided in this Agreement.
Nothing in this
Section shall affect in any way the PURCHASER's obligations and
agreement to
comply with all applicable securities laws and PURCHASER's
representations and
warranties set forth herein.
b. In connection with the exercise of conversion rights
relating to the Preferred Shares, if the Preferred Shares and the
Shares have
not been registered under the 1933 Act prior to such conversion,
PURCHASER or
any subsequent holder of the Preferred Shares shall, in addition to
any other
requirement imposed by the terms of the Preferred Shares as set
forth in the
Certificate of Designation, be required to complete, sign and
furnish to the
COMPANY a conversion certificate in the form attached hereto as
Exhibit 1 to
ANNEX I. PURCHASER acknowledges that the COMPANY is under no
obligation to
register the Preferred Shares or the Shares issuable upon
conversion thereof
under the 1933 Act.
c. If, soley as a result of the COMPANY'S wrongful
refusal to
honor PURCHASER'S instruction, or willful refusal or failure to
transfer or
issue the Shares, PURCHASER incurs any loss (other than any
consequential,
indirect, incidential or special damages), the COMPANY shall
reimburse PURCHASER
for such loss unless PURCHASER shall have breached any of its
representations,
warranties or covenants set forth in this Agreement, or otherwise
taken or
omitted to take actions, which actions or omissions constitute
gross negligence,
bad faith or willful misconduct.
5. EXEMPTION; RELIANCE ON REPRESENTATION. PURCHASER
understands that
the offer and sale of the Preferred Shares is not being registered
under the
1933 Act. The COMPANY is relying on the rules governing offers and
sales made
outside the United States pursuant to Regulation S. Rules 901
through 904 of the
Regulation S govern this transaction.
6. CLOSING DATE AND ESCROW AGENT. The date of the issuance of
the
Preferred Shares and the sale of the Preferred Shares as evidenced
by receipt by
the COMPANY of PURCHASER's purchase funds (the "Closing Date")
shall be no later
than ten (10) business days after execution hereof by all parties
or such other
mutually agreed to time. PURCHASER shall, within five (5) days
after acceptance
and execution of this Agreement by the COMPANY, deliver the
necessary funds as
indicated in Paragraph 1 to the Escrow Agent. Preferred Shares will
be delivered
to the Escrow Agent at the instructions of the COMPANY. PURCHASER
agrees that
the Escrow Agent has no liability as a result of any fraudulent or
unlawful
conduct of any other party, and agrees to hold the Escrow Agent
harmless.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. PURCHASER
understands
that COMPANY'S obligation to sell the Preferred Shares is
conditioned upon:
a. The receipt and acceptance by the COMPANY of this
Agreement as
evidenced
by execution of this Agreement by the President or any
Vice President
of the COMPANY. The acceptance of funds by the
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COMPANY shall be deemed to be constructive acceptance of
this
Agreement;
b. Delivery to the Escrow Agent by PURCHASER of good funds
as payment in
full for the purchase of the Preferred Shares; and
c. The accuracy on the Closing Date of the
representations and warranties of PURCHASER contained
in this Agreement and the performance by PURCHASER on
or before the Closing Date of all covenants and
agreements of PURCHASER required to be performed on
or before the Closing Date.
8. CONDITION TO PURCHASER'S OBLIGATION TO PURCHASE. The
COMPANY understands
that PURCHASER'S obligation to purchase the Preferred Shares is
conditioned
upon:
a. Acceptance by PURCHASER of an Agreement for the sale of
Preferred
Shares;
b. Delivery of Preferred Shares to Escrow Agent as herein
set forth;
c. The accuracy on the Closing Date of the representations
and
warranties
of the COMPANY contained in this Agreement and the
performance by
the COMPANY on or before the Closing Date of all
covenants and
agreements of the COMPANY required to be performed on
or before
the Closing Date; and
d. Delivery to the Escrow Agent of an opinion of counsel
for the
COMPANY, dated the Closing Date and addressed to
PURCHASER, in the
form attached hereto as ANNEX III.
9. GOVERNING LAW. This Agreement shall be governed by and
construed under
the laws of the State of New York without giving effect to
principles governing
the conflicts of laws. A facsimile transmission of this signed
Agreement shall
be legal and binding on all parties hereto.
10. NOTICES. Any notice required or permitted hereunder shall
be given
in writing (unless otherwise specified herein) and shall be deemed
effectively
given upon personal devliery or three business days after deposit
in the United
States Postal Service, by registered or certified mail with postage
and fees
prepaid, addressed to each of the other parties thereunto entitled
at the
following addresses, or at such other addresses as a party may
designate by ten
days advance written notice to each of the other parties hereto.
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COMPANY: Xoma Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
ATT: General Counsel
PURCHASER: At the address set forth on the first page of
this
Agreement.
ESCROW AGENT: Xxxxxxx & Xxxxxx, Esqs.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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SIGNATURE(S) FOR INDIVIDUAL SUBSCRIBER(S)
IN WITNESS WHEREOF, the undersigned represents that the
foregoing
statements are true and correct and that he, she or they have
executed this
Offshore Securities Subscription Agreement this ----- day of
-------------,
1995.
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Printed Name Signature
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Printed Name Signature
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SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the
following
statements are true and correct and that it has caused this
Offshore Securities
Subscription Agreement to be duly executed on its behalf this -----
day of
------------------------, 1995.
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Printed Name of Subscriber
By: ---------------------------------
(Signature of Authorized Person)
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Printed Name and Title
Accepted this -------- day of the month of ----------------, 199--.
XOMA CORPORATION
By: -------------------------------------
Title: ------------------------------
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All correspondence and delivery of certificates and
confirmations
should be addressed to the above named person and sent by the
COMPANY to his
----- business ----- home address (check one).
Capacity of Subscriber (check one):
Individual ----------
Corporation ----------
Partnership ----------
Other ---------- (please
specify)
Ownership of Preferred Shares (check one):
Individual ----------
Joint Tenants, with right of
survivorship ----------*
Tenants in Common ----------*
Tenants in Entirety ----------*
Community Property ----------*
Country of Citizenship:
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Country of incorporation or formation:
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* If you are purchasing Preferred Shares with only your
spouse as
co-owner, both you and your spouse must sign the signature
page. If any
co-owner is not your spouse, all co-owners must sign the
signature
page.
Name of Purchaser Representative, if any:
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Address:
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Telephone:
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FULL NAME AND ADDRESS OF PURCHASER FOR REGISTRATION PURPOSES:
NAME:
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ADDRESS:
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TEL. NO.
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FAX. NO.
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CONTACT NAME:
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DELIVERY INSTRUCTIONS (IF DIFFERENT FROM REGISTRATION NAME):
NAME:
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ADDRESS:
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TEL. NO.
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FAX. NO.
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CONTACT NAME:
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SPECIAL
INSTRUCTIONS:
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