Exhibit 10.1
LEUKOSITE, INC.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of the 1st day of July, 1998
by and between LEUKOSITE, INC., a Delaware corporation with its principal office
at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"), and the
several purchasers named in the attached EXHIBIT A (individually, a "PURCHASER"
and collectively, the "PURCHASERS").
WHEREAS, the Company desires to issue and sell to the Purchasers, and
the Purchasers, severally, desire to purchase from the Company, an aggregate of
1,967,169 shares (the "SHARES") of the authorized but unissued shares of common
stock, $.01 par value per share, of the Company (the "COMMON STOCK"), all upon
the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "AFFILIATE" of a party means any corporation or other
business entity controlled by, controlling or under common control with, such
party. For this purpose "CONTROL" shall include direct or indirect beneficial
ownership of more than fifty percent (50%) of the voting power or economic
interest in such corporation or other business entity.
(b) "CLOSING" shall have the meaning set forth in Section 2.2
of this Agreement.
(c) "CLOSING DATE" means the date of the Closing.
(d) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and all of the rules and regulations promulgated thereunder.
(e) "REGISTRATION RIGHTS AGREEMENT" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
-2-
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
2. PURCHASE AND SALE OF SHARES.
2.1 PURCHASE AND SALE. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to issue and sell to
each Purchaser, and each Purchaser, severally, hereby agrees to purchase from
the Company, at the Closing, the number of shares of Common Stock set forth
opposite the name of such Purchaser under the heading "NUMBER OF SHARES TO BE
PURCHASED" on EXHIBIT A hereto, at a purchase price of $6.00 per share. The
aggregate purchase price payable by each Purchaser for the number of shares of
Common Stock that such Purchaser is hereby agreeing to purchase is set forth
opposite the name of such Purchaser under the heading "PURCHASE PRICE" on
EXHIBIT A hereto. The aggregate purchase price payable by the Purchasers to the
Company for all of the Shares shall be $11,803,014.
2.2 CLOSING. The closing of the transactions contemplated
under this Agreement (the "CLOSING") shall take place at the Boston offices of
Xxxxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 at 10:00 a.m.
on July 1, 1998 or at such other location, date and time as may be agreed upon
between the Purchasers and the Company. At the Closing, the Company shall
deliver to each Purchaser a single stock certificate, registered in the name of
the Purchaser, representing the number of shares of Common Stock purchased by
such Purchaser, against payment of the purchase price therefor by wire transfer
of immediately available funds to such account or accounts as the Company shall
designate in writing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each of the Purchasers as follows:
3.1 INCORPORATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect upon the Company. The Company has all requisite corporate power
and authority to carry on its business as now conducted and to carry out the
transactions contemplated hereby.
-3-
3.2 CAPITALIZATION. The authorized capital stock of the
Company consists of (i) 25,000,000 shares of Common Stock, of which 9,901,998
shares are outstanding on the date hereof and (ii) 5,000,000 shares of preferred
stock, of which no shares are outstanding on the date hereof. Except as set
forth in SCHEDULE 3.2 hereto, there are no existing options, warrants, calls,
preemptive (or similar) rights, subscriptions or other rights, agreements,
arrangements or commitments of any character obligating the Company to issue,
transfer or sell, or cause to be issued, transferred or sold, any shares of the
capital stock of the Company or other equity interests in the Company or any
securities convertible into or exchangeable for such shares of capital stock or
other equity interests, and there are no outstanding contractual obligations of
the Company to repurchase, redeem or otherwise acquire any shares of its capital
stock or other equity interests.
3.3 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered by
the Company, each of this Agreement and the Registration Rights Agreement shall
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such may be limited
by bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally and by general equitable principles. The Company has all
requisite corporate power to enter into this Agreement and the Registration
Rights Agreement and to carry out and perform its obligations under the terms of
this Agreement and the Registration Rights Agreement.
3.4 VALID ISSUANCE OF THE SHARES. The Shares being purchased
by the Purchasers hereunder will, upon issuance pursuant to the terms hereof, be
duly authorized and validly issued, fully paid and nonassessable and not subject
to any encumbrances, preemptive rights or any other similar contractual rights
of the stockholders of the Company or others.
3.5 FINANCIAL STATEMENTS. The Company has furnished to each
Purchaser its audited Statements of Income, Stockholders' Equity and Cash Flows
for each of the fiscal years ended December 31, 1996 and 1997, its audited
Consolidated Balance Sheet as of December 31, 1997, its unaudited Statements of
Income, Stockholders' Equity and Cash Flows for the period from January 1, 1998
to March 31, 1998, and its unaudited Balance Sheet as of March 31, 1998. All
such financial statements are hereinafter referred to collectively as the
"FINANCIAL STATEMENTS". The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved, and fairly present, in all material respects,
-4-
the financial position of the Company and the results of its operations as of
the date and for the periods indicated thereon, except that the unaudited
financial statements may not be in accordance with generally accepted accounting
principles because of the absence of footnotes normally contained therein and
are subject to normal year-end audit adjustments which, individually and in the
aggregate, will not be material. Since March 31, 1998, there has been no
material adverse change (actual or threatened) in the assets, liabilities
(contingent or other), affairs, operations, prospects or condition (financial or
other) of the Company.
3.6 SEC DOCUMENTS. The Company has furnished to each
Purchaser, a true and complete copy of the Company's Annual Report on Form 10-K
for the year ended December 31, 1997, the Company's Quarterly Report on Form
10-Q for the three months ended March 31, 1998, and any other statement, report,
registration statement (other than registration statements on Form S-8) or
definitive proxy statement filed by the Company with the SEC during the period
commencing March 31, 1998 and ending on the date hereof. The Company will,
promptly upon the filing thereof, also furnish to each Purchaser all statements,
reports (including, without limitation, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K), registration statements and definitive proxy
statements filed by the Company with the SEC during the period commencing on the
date hereof and ending on the Closing Date (all such materials required to be
furnished to each Purchaser pursuant to this sentence or pursuant to the next
preceding sentence of this Section 3.6 being called, collectively, the "SEC
DOCUMENTS"). As of their respective filing dates, the SEC Documents complied in
all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading, as of
their respective filing dates.
3.7 CONSENTS. Except for (i) the filing and effectiveness of
any registration required to be filed by the Company under the Securities Act in
connection with the exercise by one or more Purchasers of their rights under the
Registration Rights Agreement and (ii) any required state "blue sky" law filings
in connection with the transactions contemplated under such registration
statement, all consents, approvals, orders and authorizations required on the
part of the Company in connection with the execution, delivery or performance of
this Agreement and the Registration Rights Agreement and the consummation of the
transactions contemplated herein and therein have been obtained and will be
effective as of the Closing Date.
-5-
3.8 NO CONFLICT. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or By-laws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Company or its respective
properties or assets.
3.9 BROKERS OR FINDERS. The Company has not dealt with any
broker or finder in connection with the transactions contemplated by this
Agreement, and the Company has not incurred, and shall not incur, directly or
indirectly, any liability for any brokerage or finders' fees or agents
commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
3.10 NASDAQ NATIONAL MARKET. The Common Stock is listed on the
Nasdaq National Market System, and there are no proceedings to revoke or suspend
such listing.
3.11 ABSENCE OF LITIGATION. There is no pending (or to the
best of the Company's knowledge, threatened) action, suit, proceeding or
investigation against the Company or any of its direct or indirect subsidiaries.
3.12 NO UNDISCLOSED LIABILITIES. Since March 31, 1998, the
Company has incurred no liabilities or obligations, fixed or contingent, matured
or unmatured or otherwise, except for liabilities or obligations that,
individually or in the aggregate, do not or would not have a material adverse
effect on the financial condition or business of the Company and its direct or
indirect subsidiaries.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
severally for itself, and not jointly with the other Purchasers, represents and
warrants to the Company as follows:
4.1 AUTHORIZATION. All action on the part of such Purchaser
and, if applicable, its officers, directors, managers, shareholders and/or
partners necessary for the authorization, execution, delivery and performance of
this Agreement and the Registration Rights Agreement and the consummation of the
transactions contemplated herein and therein has been taken. When executed and
delivered, each of this Agreement and the Registration Rights Agreement will
constitute the legal, valid and binding obligation of such Purchaser,
-6-
enforceable against such Purchaser in accordance with its terms, except as such
may be limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally and by general equitable principles. Such Purchaser
has all requisite power and authority to enter into each of this Agreement and
the Registration Rights Agreement and to carry out and perform its obligations
under the terms of this Agreement and the Registration Rights Agreement.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. Such Purchaser is
acquiring the Shares being purchased by it hereunder for its own account for
investment and not for resale or with a view to distribution thereof in
violation of the Securities Act.
4.3 INVESTOR STATUS; ETC. Such Purchaser certifies and
represents to the Company that it is an "Accredited Investor" as defined in Rule
501 of Regulation D promulgated under the Securities Act and was not organized
for the purpose of acquiring any of the Shares. Such Purchaser's financial
condition is such that it is able to bear the risk of holding the Shares for an
indefinite period of time and the risk of loss of its entire investment. Such
Purchaser has been afforded the opportunity to ask questions of and receive
answers from the management of the Company concerning this investment and has
sufficient knowledge and experience in investing in companies similar to the
Company in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company.
4.4 SHARES NOT REGISTERED. Such Purchaser understands that the
Shares have not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue to be held
by such Purchaser unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration. The Purchaser
understands that the exemptions from registration afforded by Rule 144 (the
provisions of which are known to it) promulgated under the Securities Act depend
on the satisfaction of various conditions, and that, if applicable, Rule 144 may
afford the basis for sales only in limited amounts.
4.5 NO CONFLICT. The execution and delivery of this Agreement
and the Registration Rights Agreement by such Purchaser and the consummation of
the transactions contemplated hereby and thereby will not conflict with or
result in any violation of or default by such Purchaser (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the organizational documents of such
Purchaser or (ii) any agreement or instrument, permit, franchise, license,
-7-
judgment, order, statute, law, ordinance, rule or regulations, applicable to
such Purchaser or its respective properties or assets.
4.6 BROKERS. Such Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 CONSENTS. All consents, approvals, orders and
authorizations required on the part of such Purchaser in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
Closing Date.
4.8 INVESTMENT REPRESENTATIONS.
(a) HealthCare Ventures V, L.P., as to itself, represents and
warrants to the Company that: (i) it is a Delaware limited partnership, (ii) it
was not formed for the specific purpose of acquiring any of the Shares, (iii) it
has assets in excess of $5,000,000, (iv) its principal office is located in New
Jersey and (v) the principal office of its general partner, HealthCare Partners
V, L.P., is located in New Jersey.
(b) Xxxxxxxx Ventures International Life Sciences Fund L.P. 1,
as to itself, represents and warrants to the Company that: (i) it is a Delaware
limited partnership, (ii) it was not formed for the specific purpose of
acquiring any of the Shares, (iii) it has assets in excess of $5,000,000, (iv)
its principal office is located in New York, and (v) the principal office of its
general partner, Xxxxxxxx Venture Managers, Inc., is located in New York.
(c) Xxxxxxxx Ventures International Life Sciences Fund L.P. 2,
as to itself, represents and warrants to the Company that: (i) it is a Delaware
limited partnership, (ii) it was not formed for the specific purpose of
acquiring any of the Shares, (iii) it has assets in excess of $5,000,000, (iv)
its principal office is located in New York, and (v) the principal office of its
general partner, Xxxxxxxx Venture Managers, Inc., is located in New York.
(d) Xxxxxxxx Ventures International Life Sciences Trust, as to
itself, represents and warrants to the Company that: (i) it is a Bermudan unit
trust, (ii) it was not formed for the specific purpose of acquiring any of the
Shares, (iii) its purchase of the Shares is being directed by a person who has
such knowledge and experience in financial and business matters that she, he or
it is capable of evaluating the merits and risks of the prospective investment,
(iv) it has assets in excess of $5,000,000, (v) its principal office is located
in
-8-
Bermuda, and (v) the principal office of its trustee, Codan Trust Company
Limited, is located in Bermuda.
(e) Rho Management Trust II, as to itself, represents and
warrants to the Company that: (i) it is a New York trust, (ii) it was not formed
for the specific purpose of acquiring any of the Shares, (iii) its purchase of
the Shares is being directed by a person who has such knowledge and experience
in financial and business matters that she, he or it is capable of evaluating
the merits and risks of the prospective investment, (iv) it has assets in excess
of $5,000,000, (v) its principal office is located in New York, and (vi) the
principal office of its trustee is located in New York.
(f) Perseus Capital, LLC, as to itself, represents and
warrants to the Company that: (i) it is a Delaware limited liability company,
(ii) each of its constituent members is an "accredited investor" as such term is
defined in Rule 501(a) promulgated under the Securities Act, (iii) its principal
office is located in Washington, DC, and (iv) the principal office of its
manager is located in Washington, DC.
(g) Xxxxxxx, Xxxxx & Co., as to itself, represents and
warrants to the Company that: (i) it is a New York limited partnership, (ii) it
was not formed for the specific purpose of acquiring any of the Share, (iii) it
has assets in excess of $5,000,000, (iv) its principal office is located in New
York and (v) the principal office of its general partner is located in New York.
(h) Xxxxxxxx Venture Managers Limited ("SVML"), as to itself,
represents and warrants to the Company as follows:
(i) It is a Bermudan corporation; it was not formed
for the specific purpose of acquiring any of the Shares; it
has assets in excess of $5,000,000; it is not a "U.S. Person",
as such term is defined in Regulation S promulgated under the
Securities Act; and its principal office is located in
Bermuda.
(ii) It is acquiring the Shares being purchased by it
pursuant to this Agreement in its capacity as investment
manager of the Xxxxxxxx Ventures International Life Sciences
Fund Co-Investment Scheme (the "Xxxxxxxx Ventures
Co-Investment Scheme").
(iii) The Xxxxxxxx Ventures Co-Investment Scheme is
composed of 14 individuals, all of whom (i) are knowledgeable
and experienced in financial and business matters, and (ii)
are
-9-
experienced and have the capability of evaluating the merits
and risks of high risk, illiquid investments.
(iv) Of the 14 individuals who constitute the
Xxxxxxxx Ventures Co-Investment Scheme, 13 are not "U. S.
Persons", as such term is defined in Regulation S promulgated
under the Securities Act, and 1 individual is a resident of
the United States that is an "accredited investor", as such
term is defined in Regulation D promulgated under the
Securities Act.
(v) The decision to purchase the Shares being
purchased by it pursuant to this Agreement is being made by it
and not at the direction of any member of the Xxxxxxxx
Ventures Co-Investment Scheme. The members of the Xxxxxxxx
Ventures Co-Investment Scheme do not control SVML, and the
members of the Xxxxxxxx Ventures Co-Investment Scheme have no
investment decision-making authority or other investment
discretion as to what investments SVML or any other person
makes on behalf of the Xxxxxxxx Ventures Co-Investment Scheme.
In particular and without limitation, the members of the
Xxxxxxxx Ventures Co-Investment Scheme do not have any
investment decision-making authority or discretion as to
purchase of the Shares being purchased by SVML pursuant to
this Agreement.
(vi) The members of the Xxxxxxxx Ventures
Co-Investment Scheme do not have any power or authority to
vote any of the Shares purchased by SVML pursuant to this
Agreement, nor to direct the disposition of any of such
shares.
(i) Peretz Family Investment, as to itself, represents and
warrants to the Company that: (i) it is a New York limited partnership, (ii) it
was not formed for the specific purpose of acquiring any of the Shares, (iii) it
has assets in excess of $5,000,000, (iv) its principal office is located in New
York, and (v) the principal office of Xxxxxx Xxxxxx, its general partner, is
located in Massachusetts.
(j) Four Partners, as to itself, represents and warrants to
the Company that: (i) it is a New York partnership, (ii) it was not formed for
the specific purpose of acquiring any of the Shares, (iii) its purchase of the
Shares is being directed by a person who has such knowledge and experience in
financial and business matters that she, he or it is capable of evaluating the
merits and risks of the prospective investment, (iv) it has assets in excess of
$5,000,000 and (v) its principal office is located in New York.
-10-
(k) YK Capital L.P., as to itself, represents and warrants to
the Company that: (i) it is a California limited partnership, (ii) it was not
formed for the specific purpose of acquiring any of the Shares, (iii) either (x)
it has assets in excess of $5,000,000 or (y) each of its constituent partners is
an "accredited investor" as such term is defined in Rule 501(a) promulgated
under the Securities Act, (iv) its principal office is located in California and
(v) the principal office of its general partner is located in California.
(l) Xxxx Xxxxxx, as to himself, represents and warrants to the
Company that he is a resident of the State of New York, and further represents
and warrants to the Corporation that (i) his individual net worth, or joint net
worth with his spouse, exceeds $1,000,000, (ii) his individual income in each of
the two most recent years exceeded $200,000 and he has a reasonable expectation
of reaching the same income level in the current year, and/or (iii) his joint
income with his spouse in each of the two most recent years exceeded $300,000
and he has a reasonable expectation of reaching the same joint income level in
the current year.
5. CONDITIONS PRECEDENT.
5.1. CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO
CONSUMMATE THE CLOSING. The obligation of each Purchaser to consummate the
Closing and to purchase and pay for those Shares being purchased by it pursuant
to this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
(b) The Registration Rights Agreement shall have been executed
and delivered by the Company.
(c) There shall have been no material adverse change (actual
or threatened) in the assets, liabilities (contingent or other), affairs,
operations, prospects or condition (financial or other) of the Company prior to
the Closing Date; and the Company shall have performed all obligations and
conditions herein required to be performed or observed by the Company on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay
-11-
the Closing, shall have been instituted before any court, arbitrator or
governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by the
Purchasers shall not be prohibited by any law or governmental order or
regulation. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby shall have been duly obtained or made
and shall be in full force and effect.
(f) All instruments and corporate proceedings of the Company
in connection with the transactions contemplated by this Agreement to be
consummated at the Closing shall be satisfactory in form and substance to such
Purchaser, and such Purchaser shall have received copies (executed or certified,
as may be appropriate) of all documents which such Purchaser may have reasonably
requested in connection with such transactions.
(g) The Purchasers shall have received from Xxxxxxx Xxxx LLP,
counsel to the Company, an opinion addressed to it, dated the Closing Date and
substantially in the form of EXHIBIT B hereto.
5.2. CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CONSUMMATE
THE CLOSING. The obligation of the Company to consummate the Closing and to
issue and sell to each of the Purchasers the Shares to be purchased by it at the
Closing is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of
such Purchaser shall be true and correct in all material respects on and as of
the Closing Date with the same force and effect as though made on and as of the
Closing Date.
(b) The Registration Rights Agreement shall have been executed
and delivered by each Purchaser.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or observed by the Purchasers on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
-12-
(e) The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of any other person with respect to any of the transactions
contemplated hereby shall have been duly obtained or made and shall be in full
force and effect.
(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company, and the
Company shall have received counterpart originals, or certified or other copies
of all documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. TRANSFER, LEGENDS.
6.1. TRANSFER OF SECURITIES. No Purchaser shall sell, assign,
pledge, transfer or otherwise dispose or encumber any of those Shares being
purchased by it hereunder, except (i) pursuant to an effective registration
statement under the Securities Act or (ii) pursuant to an available exemption
from registration under the Securities Act and applicable state securities laws
and, if requested by the Company, upon delivery by such Purchaser of either an
opinion of counsel of such Purchaser reasonably satisfactory to the Company to
the effect that the proposed transfer is exempt from registration under the
Securities Act and applicable state securities laws or a representation letter
of such Purchaser reasonably satisfactory to the Company setting forth a factual
basis for concluding that such proposed transfer is exempt from registration
under the Securities Act and applicable state securities laws. Any transfer or
purported transfer of the Shares in violation of this Section 6.1 shall be void.
The Company shall not register any transfer of the Shares in violation of this
Section 6.1. The Company may, and may instruct any transfer agent for the
Company, to place such stop transfer orders as may be required on the transfer
books of the Company in order to ensure compliance with the provisions of this
Section 6.1.
6.2. LEGENDS. To the extent applicable, each certificate or
other document evidencing any of the Shares shall be endorsed with the legend
set forth below, and each Purchaser covenants that, except to the extent such
restrictions are waived by the Company, it shall not transfer the shares
represented by any such certificate without complying with the restrictions on
transfer described in this Agreement and the legends endorsed on such
certificate:
-13-
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED,
SOLD, ASSIGNED, PLEDGED, TRANSFERRED OR OTHERWISED DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT
AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF EITHER AN OPINION OF
COUNSEL REASONABLE SATISFACTORY TO THE COMPANY THAT THE PROPOSED
TRANSFER IS EXEMPT FROM SAID ACT OR OF A REPRESENTATION LETTER SETTING
FORTH A FACTUAL BASIS FOR CONCLUDING THAT THE PROPOSED TRANSFER IS
EXEMPT FROM SAID ACT."
7. MISCELLANEOUS PROVISIONS.
7.1 RIGHTS CUMULATIVE. Each and all of the various rights,
powers and remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
7.2 PRONOUNS. All pronouns or any variation thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
7.3 NOTICES.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "CORRESPONDENCE") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed
as follows:
-14-
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(c) All correspondence to any Purchaser shall be sent to such
Purchaser at the address set forth in EXHIBIT A.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
7.4 CAPTIONS. The captions and paragraph headings of this
Agreement are solely for the convenience of reference and shall not affect its
interpretation.
7.5 SEVERABILITY. Should any part or provision of this
Agreement be held unenforceable or in conflict with the applicable laws or
regulations of any jurisdiction, the invalid or unenforceable part or provisions
shall be replaced with a provision which accomplishes, to the extent possible,
the original business purpose of such part or provision in a valid and
enforceable manner, and the remainder of this Agreement shall remain binding
upon the parties hereto.
7.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal and substantive laws of the
Commonwealth of Massachusetts and without regard to any conflicts of laws
concepts which would apply the substantive law of some other jurisdiction.
7.7 WAIVER. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or be construed as, a further or continuing waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
-15-
7.8 EXPENSES. The Company agrees to pay, in connection with
the preparation, execution and delivery of this Agreement and the Registration
Rights Agreement, the reasonable fees and expenses of one counsel to the
Purchasers.
7.9 ASSIGNMENT. The rights and obligations of any party hereto
shall inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of such party. This Agreement and the rights
and duties of each Purchaser set forth herein may be freely assigned or
delegated, as the case may be, in whole or in part, by such Purchaser to any
person to whom such Purchaser may transfer any of the Shares purchased or
acquired by such Purchaser; PROVIDED that the transfer complies with the terms
of Section 6 of this Agreement and the assigning party shall promptly notify the
Company in writing of such assignment and shall remain liable (both directly and
as guarantor) with respect to all obligations so assigned. In the event of any
assignment, the assignee shall specifically assume and be bound by the
provisions of the Agreement by executing and agreeing to an assumption agreement
reasonably acceptable to the Company.
7.10 SURVIVAL. The respective representations and warranties
given by the parties hereto, and the other covenants and agreements contained
herein, shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period of one year, without regard to any
investigation made by any party.
7.11 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, negotiations, understandings, representations
and statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the parties hereto.
-16-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above written.
LEUKOSITE, INC.
By:
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
PURCHASERS:
HEALTHCARE VENTURES V, L.P.
By: HealthCare Partners V, L.P.
as General Partner
By:
-----------------------------
Title: General Partner
RHO MANAGEMENT TRUST II
By:
-----------------------------------
Name:
Title:
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES FUND L.P. 1
By: Xxxxxxxx Venture Managers Inc.,
General Partner
By:
-----------------------------
Xxxxx Xxxxxxx, Vice President
-17-
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES FUND L.P. 2
By: Xxxxxxxx Venture Managers Inc.,
General Partner
By:
-----------------------------
Xxxxx Xxxxxxx, Vice President
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES TRUST
By: Codan Trust Company Limited, as Trustee
By:
-----------------------------
Title:
XXXXXXXX VENTURE MANAGERS LIMITED,
as Investment Manager for the Xxxxxxxx
Ventures International Life Sciences Fund
Co-Investment Scheme
By:
-----------------------------------
Xxxxx Xxxxxxx
Its:
PERETZ FAMILY INVESTMENT
By:
-----------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO.
By:
-----------------------------------
Name:
Title:
-18-
PERSEUS CAPITAL, LLC
By:
-----------------------------------
Name:
Title:
YK CAPITAL L.P.
--------------------------------------
Name:
Title:
XXXX XXXXXX
--------------------------------------
FOUR PARTNERS
By:
-----------------------------------
Name:
Title:
EXHIBIT A
PURCHASERS
Number of Shares
Purchaser to be Purchased Purchase Price
--------- --------------- --------------
HealthCare Ventures V, L.P. 479,167 $2,875,002
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Rho Management Trust II 479,167 $2,875,002
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx Ventures International Life
Sciences Fund L.P. 1 184,350 $1,106,100
x/x Xxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxx Ventures International Life 40,967 $245,802
Sciences Fund L.P. 2
c/o Xxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxx Ventures International Life
Sciences Trust 64,892 $389,352
x/x Xxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxx Ventures Managers 1,458 $8,748
Limited, as investment manager for
the International Life Sciences Fund
Co-Investment Scheme
c/o Xxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX 11, Bermuda
-2-
Peretz Family Investment 50,000 $300,000
x/x Xxxxxx Xxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx, Sachs & Co. 166,667 $1,000,002
Attn: Xxxxxx Xxxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Four Partners 33,334 $200,004
Attn: Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Perseus Capital, LLC 416,667 $2,500,002
The Army and Navy Club Building
0000 X Xxxxxx X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
YK Capital L.P. 50,000 $300,000
c/o Xxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxx Xxxxxx 500 $3,000
c/o ICM
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Total 1,967,169 $11,803,014
--------- -----------
