Securities Purchase Agreement - Pharmion Corp. and Celgene Corp.
PHARMION CORPORATION
SECURITIES PURCHASE AGREEMENT
Dated as of April 8, 2003
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Table of Contents
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Page
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1. Sales of Securities; Authorization....................................1
1.1 Sale of Securities...............................................1
1.2 Authorization....................................................1
2. The Closing...........................................................1
3. Representations of the Company........................................2
3.1 Organization and Standing........................................2
3.2 Capitalization...................................................2
3.3 Subsidiaries, Etc................................................3
3.4 Securityholder Lists and Agreements..............................4
3.5 Issuance of Securities...........................................4
3.6 Authority for Agreement; No Conflict.............................4
3.7 Governmental Consents............................................5
3.8 Litigation.......................................................5
3.9 Financial Statements; Liquidity..................................5
3.10 Absence of Undisclosed Liabilities...............................6
3.11 Taxes............................................................6
3.12 Property and Assets..............................................6
3.13 Intellectual Property............................................7
3.14 Insurance........................................................8
3.15 Material Contracts and Obligations...............................8
3.16 Compliance.......................................................9
3.17 Absence of Changes...............................................9
3.18 Employees........................................................9
3.19 ERISA...........................................................10
3.20 Books and Records...............................................10
3.21 Permits.........................................................10
3.22 Environmental Matters...........................................11
3.23 U.S. Real Property Holding Corporation..........................12
3.24 No Preemptive Rights or Rights of First Refusal.................12
3.25 Related-Party Transactions......................................12
3.26 Disclosures.....................................................12
4. Representations of the Purchaser.....................................13
4.1 Investment......................................................13
4.2 Authority.......................................................13
4.3 Experience......................................................13
4.4 Limitations on Disposition......................................13
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5. Conditions to the Obligations of the Purchaser.......................14
5.1 Accuracy of Representations and Warranties......................14
5.2 Performance.....................................................14
5.3 Amendment of the Investors' Rights Agreement....................14
5.4 Amendment to License Agreement..................................14
5.5 Opinion of Counsel..............................................14
5.6 Certificates and Documents......................................14
5.7 Other Matters...................................................15
6. Conditions to the Obligations of the Company.........................15
6.1 Accuracy of Representations and Warranties......................15
6.2 Payment of Purchase Price.......................................15
6.3 Other Stockholder Signature Page................................15
7. Covenants of the Company.............................................15
7.1 Other Indebtedness; Restricted Payments.........................15
7.2 No Impairment...................................................16
7.3 Notification of Certain Matters.................................16
7.4 Inspection Rights...............................................17
7.5 Compliance......................................................18
7.6 Insurance.......................................................19
7.7 Maintenance.....................................................19
7.8 Taxes...........................................................19
7.9 Preservation of Corporate Existence.............................19
8. Transfer of Securities...............................................19
8.1 Restricted Securities...........................................19
8.2 Requirements for Transfer.......................................20
8.3 Legend..........................................................20
8.4 Rule 144A Information...........................................20
9. Miscellaneous........................................................21
9.1 Successors and Assigns..........................................21
9.2 Indemnification.................................................21
9.3 Survival of Representations and Warranties......................21
9.4 Brokers.........................................................22
9.5 Severability....................................................22
9.6 Specific Performance............................................22
9.7 Governing Law...................................................22
9.8 Choice of Forum.................................................22
9.9 Notices.........................................................22
9.10 Complete Agreement..............................................23
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9.11 Amendments and Waivers..........................................23
9.12 Pronouns........................................................23
9.13 Counterparts; Facsimile Signatures..............................23
9.14 Delays or Omissions.............................................23
9.15 Section Headings................................................23
9.16 Disclosure......................................................23
EXHIBITS
Exhibit A - Form of Convertible Promissory Note
Exhibit B - Form of Warrant
Exhibit C - Company Disclosure Schedule
Exhibit D - List of Securityholders
Exhibit E - 1 Non-Disclosure and Assignment of Inventions Agreement
Exhibit E - 2 List of Key Employees
Exhibit E - 3 Non-Competition and Non-Solicitation Agreement
Exhibit F Amendment to Investors' Rights Agreement
Exhibit G Amendment No. 2 to License Agreement
Exhibit H Opinion of Counsel to Pharmion Corporation
Exhibit I Form of Other Stockholder Signature Page
Exhibit J Form of Subordination Agreement
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EXECUTION COPY
PHARMION CORPORATION
SECURITIES PURCHASE AGREEMENT
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This Agreement dated as of April 8, 2003 is entered into by
and among Pharmion Corporation, a Delaware corporation (the "Company"), and
Celgene Corporation, a Delaware corporation (the "Purchaser").
In consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Sales of Securities; Authorization.
1.1 Sale of Securities.
Subject to the terms and conditions of this Agreement, at the
Closing (as defined in Section 2) the Company will sell and issue to the
Purchaser, and the Purchaser will purchase, (i) the Senior Convertible
Promissory Note in the principal amount of $12,000,000, substantially in the
form attached hereto as Exhibit A (the "Note") and (ii) a warrant to purchase
shares of the Company's common stock, $0.001 par value per share (the "Common
Stock"), substantially in the form attached hereto as Exhibit B (the "Warrant"
and together with the Note, the "Securities") for an aggregate purchase price of
$12,000,000 (the "Purchase Price"). The Purchase Price shall be paid by wire
transfer of immediately available funds to the account of the Company in
accordance with the wire instructions provided by the Company prior to the
Closing.
1.2 Authorization.
The Company has, or before the Closing will have, duly
authorized the sale and issuance, pursuant to the terms of this Agreement, of
the Securities and the shares of Common Stock initially issuable upon conversion
of the Note and exercise of the Warrant.
2. The Closing.
Subject to the terms and conditions of this Agreement, the
closing (the "Closing") of the sale and purchase of the Securities under this
Agreement shall take place at the offices of Willkie Farr & Gallagher, 787
Seventh Avenue, New York, New York (or remotely via the exchange of documents
and signatures) at 10:00 a.m. on the date of this Agreement (the "Closing
Date"). At the Closing, the Company shall deliver to the Purchaser (i) the Note,
dated the Closing Date and registered in the name of the Purchaser and (ii) the
Warrant, dated the Closing Date and registered in the name of the Purchaser,
each against full payment to the Company of the Purchase Price. If at the
Closing any of the conditions specified in Section 5 shall not have been
fulfilled or waived, as provided in Section 5, the Purchaser shall, at its
election, be relieved of all of its obligations under this Agreement without
thereby waiving any other rights it may have by reason of such failure or such
non-fulfillment.
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3. Representations of the Company. Except as otherwise stated in
Exhibit C hereto (the "Company Disclosure Schedule"), the Company hereby
represents and warrants to the Purchaser that the statements contained in this
Section 3 are true, complete and correct as of the date of this Agreement. The
Company Disclosure Schedule shall be arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this Section 3, and the
disclosures in any paragraph of the Company Disclosure Schedule shall qualify
only the corresponding paragraph of this Section 3, unless otherwise specified.
3.1 Organization and Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has full corporate power and authority to conduct
its business as presently conducted and as presently proposed to be conducted by
it and to enter into and perform this Agreement and to carry out the
transactions contemplated by this Agreement. The Company is duly qualified to do
business as a foreign corporation and is in good standing in the States of
Colorado and Kansas and in every other jurisdiction in which the failure to so
qualify would have a material adverse effect on the business operations,
prospects, assets, properties or condition (financial or otherwise) of the
Company or any Subsidiary (as defined in Section 3.3) (a "Company Material
Adverse Effect"). Each such other jurisdiction is listed in Section 3.1 of the
Company Disclosure Schedule. The Company has furnished to the Purchaser true and
complete copies of its Charter (as defined in Section 3.2) and By-laws, each as
amended and/or restated to date and presently in effect. The Company has at all
times complied with all provisions of its Charter and By-laws and is not in
default under, or in violation of, any such provision.
3.2 Capitalization. The authorized capital stock of the
Company (immediately prior to the Closing) consists of:
(a) 100,000,000 shares of Common Stock, of which:
(i) 3,457,958 shares are issued and outstanding, of
which 589,958 have been issued as a result of the exercise of options granted
under the Pharmion Corporation 2000 Stock Incentive Plan (the "Employee Plan")
and 160,000 have been issued as a result of the exercise of options granted
under the Pharmion Corporation Amended and Restated 2001 Non-Employee Director
Stock Option Plan (the "Director Plan");
(ii) 5,160,450 shares have been reserved for
issuance upon the exercise of outstanding options granted under the Employee
Plan;
(iii) 5,281,592 shares have been reserved for future
option grants and other incentive awards under the Employee Plan;
(iv) 470,000 shares have been reserved for issuance
upon the exercise of outstanding options granted under the Director Plan;
(v) 870,000 shares have been reserved for future
option grants and other incentive awards under the Director Plan; and
(b) 71,000,000 shares of Preferred Stock, $0.001 par
value per share, of which:
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(i) 5,069,792 shares have been designated Series
A-1 Preferred Stock (which are convertible into 5,069,792 shares of Common
Stock), all of which are issued and outstanding;
(ii) 12,843,473 shares have been designated Series
A-2 Preferred Stock (which are convertible into 12,843,473 shares of Common
Stock), all of which are issued and outstanding;
(iii) 33,000,000 shares have been designated Series B
Preferred Stock (which are convertible into 33,000,000 shares of Common Stock),
31,071,769 of which are issued and outstanding; and
(iv) 20,000,000 shares have been designated Series C
Preferred Stock (which are convertible into 20,000,000 shares of Common Stock),
19,138,755 of which are issued or outstanding.
All of the issued and outstanding shares of Common Stock and
Preferred Stock have been duly authorized and validly issued and are fully paid
and nonassessable. Except as provided in (A) this Agreement, (B) (i) the Amended
and Restated Investors' Rights Agreement (as further amended as described below,
the "Investors' Rights Agreement"), (ii) the Amended and Restated Right of First
Refusal and Co-Sale Agreement and (iii) the Amended and Restated Voting
Agreement, each by and among the Company and various of its shareholders, each
dated as of November 30, 2001, and each as further amended by the Series C
Omnibus Amendment Agreement, dated as of October 11, 2002 (such agreements as
amended, the "Ancillary Agreements"), or (C) the Third Restated Certificate of
Incorporation as amended to and including the date hereof (the "Charter"), (i)
no subscription, warrant, option, convertible security or other right of
whatever nature (contingent or otherwise) to purchase or acquire any shares of
capital stock of the Company is authorized or outstanding, (ii) the Company has
no obligation (contingent or otherwise) to issue any subscription, warrant,
option, convertible security or other such right or to issue or distribute to
holders of any shares of its capital stock any evidences of indebtedness or
assets of the Company, (iii) the Company has no obligation (contingent or
otherwise) to purchase, redeem or otherwise acquire any shares of its capital
stock or any interest therein or to pay any dividend or make any other
distribution in respect thereof, and (iv) there are no outstanding or authorized
stock appreciation, phantom stock or similar rights with respect to the Company.
All of the issued and outstanding shares of capital stock of the Company have
been offered, issued and sold by the Company in compliance with applicable
federal and state securities laws.
3.3 Subsidiaries, Etc. Section 3.3 of the Company
Disclosure Schedule sets forth (a) the name and jurisdiction of organization of
each corporation, partnership, trust, limited liability company, or other
non-corporate business enterprise which the Company owns, controls or has any
direct or indirect interest in (each being hereinafter referred to as a
"Subsidiary") and (b) with respect to each Subsidiary, (i) the number of shares
of authorized, issued and outstanding capital stock, or other indicia of
ownership ("Ownership Units"), of each class of its capital stock or Ownership
Units, and (ii) the names and the number of shares of capital stock or Ownership
Units held by each holder thereof. Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has full
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corporate power and authority to conduct its business as presently conducted and
as presently proposed to be conducted by it. Each Subsidiary is duly qualified
to do business and is in good standing under the laws of each jurisdiction in
which the failure to so qualify would have a material adverse effect on the
business operations, prospects, assets, properties or condition (financial or
otherwise) of such Subsidiary. All of the issued and outstanding shares of
capital stock or Ownership Units of each Subsidiary are duly authorized, validly
issued, fully paid, nonassessable and are held of record and beneficially by
either the Company or another Subsidiary, free and clear of any restrictions on
transfer (other than restrictions under the Securities Act of 1933, as amended
(the "Securities Act"), and state securities laws), claims, security interests,
options, warrants, rights, contracts, calls, commitments, equities and demands.
There are no outstanding or authorized options, warrants, rights, agreements or
commitments to which the Company or any Subsidiary is a party or which are
binding on any of them providing for the issuance, disposition or acquisition of
any capital stock or Ownership Units of any Subsidiary, including, without
limitation, indebtedness or securities convertible into, or exchangeable for,
any such capital stock or Ownership Interests. There are no outstanding stock
appreciation, phantom stock or similar rights with respect to any Subsidiary.
There are no voting trusts, proxies or other agreements or understandings with
respect to the voting of any capital stock or Ownership Units of any Subsidiary.
No Subsidiary is in default under or in violation of any provision of any of its
organizational instruments.
3.4 Securityholder Lists and Agreements. Attached as
Exhibit D is a true and complete list of the securityholders of the Company,
showing the number of shares of Common Stock, Series A-1 Preferred Stock, Series
A-2 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or other
securities of the Company held by each securityholder as of the date of this
Agreement and, in the case of options, warrants and other convertible
securities, the exercise price and expiration date thereof and the number and
type of securities issuable thereunder. Except as set forth in Section 3.4 of
the Company Disclosure Schedule, there are no agreements, written or oral,
between the Company and any holder of its securities, or, to the best of the
Company's knowledge, among any holders of its securities, relating to the
acquisition (including without limitation rights of first refusal, anti-dilution
or preemptive rights), disposition, registration under the Securities Act, or
voting of the capital stock of the Company.
3.5 Issuance of Securities. The issuance, sale and
delivery of the Securities in accordance with this Agreement, and the issuance
and delivery of the shares of Common Stock issuable upon conversion or exercise
of the Securities, have been, or will be prior to the Closing, duly authorized
by all necessary corporate action on the part of the Company, and all such
shares have been, or will be prior to the Closing, duly reserved for issuance.
The Securities when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, and the shares of Common Stock
issuable upon conversion or exchange of the Securities, when issued upon such
conversion in accordance with their respective terms, will be duly and validly
issued, fully paid and nonassessable.
3.6 Authority for Agreement; No Conflict. The execution,
delivery and performance by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable in accordance with its terms. The
execution
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and performance of the transactions contemplated by this Agreement and
compliance with its provisions by the Company will not (a) conflict with or
violate any provision of the Charter or By-laws of the Company, (b) require on
the part of the Company any filing with, or any permit, authorization, consent
or approval of, any court, arbitrational tribunal, administrative agency or
commission or other governmental or regulatory authority or agency (each of the
foregoing is hereafter referred to as a "Governmental Entity"), (c) conflict
with, result in a breach of, constitute (with or without due notice or lapse of
time or both) a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, or require any
notice, consent or waiver under, any contract, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement or mortgage for borrowed
money, instrument of indebtedness, Security Interest (as defined below) or other
arrangement to which the Company is a party or by which the Company is bound or
to which the Company's assets are subject, (d) result in the imposition of any
Security Interest upon any assets of the Company or (e) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company or any
of its properties or assets. For purposes of this Agreement, "Security Interest"
means any mortgage, pledge, security interest, encumbrance, charge, or other
lien (whether arising by contract or by operation of law).
3.7 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Entity is required on the part of the Company in
connection with the execution and delivery of this Agreement, the offer,
issuance, sale and delivery of the Securities, the issuance and delivery of the
shares of Common Stock issuable upon conversion or exchange of the Securities or
the other transactions to be consummated at the Closing, as contemplated by this
Agreement, except such filings as shall have been made prior to and shall be
effective on and as of the Closing and such filings required to be made after
the Closing under applicable federal and state securities laws, all of which
filings are specified in Section 3.7 of the Company Disclosure Schedule. Based
on the representations made by the Purchaser in Section 4 of this Agreement, the
offer and sale of the Securities to the Purchaser will be in compliance with
applicable federal and state securities laws.
3.8 Litigation. There is no action, suit or proceeding,
or governmental inquiry or investigation, pending, or, to the best of the
Company's knowledge, any basis therefor or threat thereof, against the Company
or any Subsidiary, which questions the validity or legality of this Agreement or
the right of the Company to enter into any such agreement, or which might
result, either individually or in the aggregate, in a Company Material Adverse
Effect, nor is there any litigation pending, or, to the best of the Company's
knowledge, any basis therefor or threat thereof, against the Company or any
Subsidiary by reason of the past or present employment relationships of any of
the Company's or any Subsidiary's employees, the past, current or proposed
activities of the Company or any Subsidiary, or negotiations by the Company with
possible investors in the Company. Neither the Company nor any Subsidiary is
subject to any outstanding judgment, order or decree.
3.9 Financial Statements; Liquidity.
(a) The Company has furnished to the Purchaser a complete
and correct copy of the audited balance sheet of the Company at December 31,
2001 and December 31, 2002 and
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the related audited statements of operations and cash flows for the respective
fiscal years then ended (collectively, the "Financial Statements"). The
Financial Statements are complete and correct, are in accordance with the books
and records of the Company and present fairly the financial condition and
results of operations of the Company at the dates and for the periods indicated,
and have been prepared in accordance with U.S. generally accepted accounting
principles ("GAAP") consistently applied.
(b) The Company reasonably believes that it has the
financial resources, without giving effect to the proceeds of the Senior
Convertible Promissory Notes hereunder, to conduct the business of the Company
and its Subsidiaries, as presently conducted and as proposed to be conducted,
during the twelve-month period ending March 31, 2004.
3.10 Absence of Undisclosed Liabilities. Neither the
Company nor any Subsidiary has any liability (whether known or unknown and
whether absolute or contingent), except for contractual liabilities incurred in
the ordinary course of business which are not required by GAAP to be reflected
on a balance sheet and which contractual liabilities would not, either
individually or in the aggregate, result in a Company Material Adverse Effect.
3.11 Taxes.
The amount shown on the Financial Statements as provision for
taxes is sufficient in all material respects for payment of all accrued and
unpaid federal, state, county, local and foreign taxes for the period then ended
and all prior periods and any other taxes payable by the Company howsoever
arising. The Company has filed or has obtained presently effective extensions
with respect to all federal, state, county, local and foreign tax returns which
are required to be filed by it, such returns are true and correct and all taxes
shown thereon to be due have been timely paid with exceptions not material to
the Company. Federal income tax returns of the Company have not been audited by
the Internal Revenue Service, and no controversy with respect to taxes of any
type is pending or, to the best of the Company's knowledge, threatened. The
Company has withheld or collected from each payment made to its employees the
amount of all taxes required to be withheld or collected therefrom and has paid
all such amounts to the appropriate taxing authorities when due. Neither the
Company nor any of its stockholders (with respect to the Company) has ever filed
(a) an election pursuant to Section 1362 of the Internal Revenue Code of 1986,
as amended (the "Code"), that the Company be taxed as an S Corporation or (b) a
consent pursuant to Section 341(f) of the Code relating to collapsible
corporations. To the best of the Company's knowledge, without inquiring as to
any direct or indirect changes in the ownership structure of stockholders of the
Company that are investment funds, the Company's net operating losses for
federal income tax purposes, as set forth in the Financial Statements, are not
subject to any limitations imposed by Section 382 of the Code, and consummation
of the transactions contemplated by this Agreement or by any other agreement,
understanding or commitment, contingent or otherwise, to which the Company is a
party or by which it is otherwise bound will not have the effect of limiting the
Company's ability to use such net operating losses in full to offset such
taxable income.
3.12 Property and Assets.
The Company and each Subsidiary has good title to, or a valid leasehold
interest in, all of its material properties and assets, and none of such
properties or assets is subject to any Security
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Interest other than those the material terms of which are described in the
Company Disclosure Schedule.
3.13 Intellectual Property.
(a) The Company and each Subsidiary owns, free and clear
of all Security Interests, or has the valid right to use, all Intellectual
Property (as defined below in this Section 3.13) used by it in its business as
currently conducted or as currently proposed to be conducted. No other person or
entity (other than licensors of software that is generally commercially
available on reasonable terms, licensors of Intellectual Property under the
agreements disclosed pursuant to paragraph (d) below and non-exclusive licensees
of the Company's Intellectual Property in the ordinary course of the Company's
business) has any rights to any of the Intellectual Property owned or used by
the Company and, to the best of the Company's knowledge, no other person or
entity is infringing, violating or misappropriating any of the Intellectual
Property that the Company owns or to which it has obtained exclusive licenses.
For purposes of this Agreement, "Intellectual Property" means all (i) United
States and foreign patents and patent applications, and any divisional,
continuation, continuation in part, reissue, renewal or re-examination patent
issuing therefrom (including any foreign counterparts), (ii) copyrights and
registrations thereof, (iii) mask works and registrations and applications for
registration thereof, (iv) computer software, including any and all software
implementations of algorithms, models and methodologies, whether in source code
or object code, (v) databases and compilations, including any and all data and
collections of data, whether machine readable or otherwise, (vi) technology
supporting any Internet site(s) operated by or on behalf of the Company, (vii)
trade secrets and other confidential business information, whether patentable or
unpatentable and whether or not reduced to practice, know-how, technology,
proprietary processes, techniques, methodologies, formulae, algorithms, models,
user interfaces, research and development information, copyrightable works,
financial, marketing and business data, pricing and cost information, business
and marketing plans and customer and supplier lists and information, inventions,
source code, object code, and, with respect to all of the foregoing, related
confidential documentation, (viii) trademarks, service marks, trade names,
domain names and applications and registrations therefor, (ix) all
documentation, including user manuals and training materials relating to any of
the foregoing and descriptions, flow-charts and other work product used to
design, plan, organize and develop any of the foregoing, and (x) other
proprietary rights relating to any of the foregoing.
(b) To the best of the Company's knowledge, none of the
activities or business conducted by the Company or any Subsidiary infringes,
violates or constitutes a misappropriation of (or in the past infringed,
violated or constituted a misappropriation of) any Intellectual Property of any
other person or entity and none of the activities or business presently proposed
to be conducted will infringe, violate or constitute a misappropriation of any
Intellectual Property, in existence on the date of this Agreement, of any other
person or entity. Neither the Company nor any Subsidiary has received any
complaint, claim or notice alleging any such infringement, violation or
misappropriation, and to the knowledge of the Company, there is no basis for any
such complaint, claim or notice.
(c) Section 3.13(c) of the Company Disclosure Schedule
identifies with respect to the Company and each Subsidiary each (i) patent that
has been issued or assigned to it
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with respect to any of its Intellectual Property, (ii) pending patent
application that it has made with respect to any of its Intellectual Property,
(iii) copyright, trademark or service mark registration or application with
respect to its Intellectual Property, (iv) domain name registration or
application with respect to its Intellectual Property and (v) mask work
registration or application with respect to its Intellectual Property.
(d) Section 3.13(d) of the Company Disclosure Schedule
hereto identifies each agreement (other than employee and consultant agreements
concerning assignment of inventions) with a third party pursuant to which the
Company or any Subsidiary obtains rights to Intellectual Property material to
the business of the Company or any such Subsidiary as currently conducted or as
currently proposed to be conducted (other than software that is generally
commercially available on reasonable terms) that is owned by a party other than
the Company or any Subsidiary. Except as set forth on Section 3.13(d) of the
Company Disclosure Schedule, other than license fees for software that is
generally commercially available on reasonable terms, neither the Company nor
any Subsidiary is obligated to pay any royalties or other compensation to any
third party in respect of its ownership, use or license of any of its
Intellectual Property.
(e) The Company and each Subsidiary has taken and shall
take all reasonable precautions and actions (i) to protect its rights in its
Intellectual Property and (ii) to maintain the confidentiality of its trade
secrets, know-how and other confidential Intellectual Property. To the best of
the Company's knowledge, there have been no acts or omissions by the officers,
directors, shareholders, employees, independent contractors or other agents of
the Company or any Subsidiary, which could materially compromise the rights of
the Company or any Subsidiary in its Intellectual Property, including without
limitation the Company's or any Subsidiary's ability to apply for or enforce
appropriate legal protection of its Intellectual Property.
(f) All of the Company's and each Subsidiary's
Intellectual Property has been created by employees of the Company or such
Subsidiary within the scope of their employment by the Company or such
Subsidiary or by independent contractors of the Company or such Subsidiary, each
of whom has executed agreements expressly assigning all right, title and
interest in such Intellectual Property to the Company or such Subsidiary. No
portion of the Company's or any Subsidiary's Intellectual Property was jointly
developed with any third party. To the best of the Company's knowledge, no other
person or entity (including without limitation any prior employer of any
employee of the Company or any Subsidiary) has any right to, or interest in, any
of the Intellectual Property that is material to the business of the Company or
such Subsidiary as currently conducted or as currently proposed to be conducted
(other than software that is generally commercially available on reasonable
terms).
3.14 Insurance. Each of the Company and each Subsidiary
maintains valid policies of workers' compensation insurance and of insurance
with respect to its properties and business of the kinds and in the amounts not
less than is customarily obtained by corporations of established reputation
engaged in the same or similar business and similarly situated, including,
without limitation, insurance against loss, damage, fire, theft, public
liability and other risks, as well as directors and officers liability
insurance.
3.15 Material Contracts and Obligations. Section 3.15 of
the Company Disclosure Schedule sets forth a list of all material agreements or
commitments of any nature
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(whether written or oral) to which the Company and each Subsidiary is a party or
by which it is bound, including without limitation (a) any agreement which
requires future expenditures by the Company or any Subsidiary in excess of
$50,000 or which might result in payments to the Company or any Subsidiary in
excess of $50,000, (b) any employment or consulting agreement, employee benefit,
bonus, pension, profit-sharing, stock option, stock purchase or similar plan or
arrangement, (c) any distributor, sales representative or similar agreement, (d)
any agreement with any current or former stockholder, officer or director of the
Company or any Subsidiary, or any "affiliate" or "associate" of such persons (as
such terms are defined in the rules and regulations promulgated under the
Securities Act), including without limitation any agreement or other arrangement
providing for the furnishing of services by, rental of real or personal property
from, or otherwise requiring payments to, any such person or entity, (e) any
agreement under which the Company or any Subsidiary is restricted from carrying
on any business anywhere in the world, (f) any agreement relating to
indebtedness for borrowed money or the extension of credit, whether or not
currently funded, (g) any agreement for the disposition of a material portion of
the Company's or any Subsidiary's assets (other than for the sale of inventory
in the ordinary course of business) and (h) any agreement for the acquisition of
the business or securities or other ownership interests of another party,
whether such acquisition is completed or pending. Each such agreement or
contract is valid, binding and in full force and effect. Neither the Company,
nor, to the best of the Company's knowledge, any other party thereto, is in
default of any of its obligations under any agreement or contract listed on the
Company Disclosure Schedule, except for defaults that would not have a Company
Material Adverse Effect.
3.16 Compliance. Each of the Company and each Subsidiary
has, in all material respects, complied with all laws, regulations, orders and
all industry accepted prescription safety standards applicable to its present
and proposed business except where the failure to so comply would not have a
Company Material Adverse Effect and has all approvals, permits and licenses
required to operate its business in the manner presently operated, except for
defaults that would not have a Company Material Adverse Effect. To the best of
the Company's knowledge, no material expenditures will be required in order to
comply with any existing statute, law or regulation. There is no term or
provision of any mortgage, indenture, contract, agreement or instrument to which
the Company or any Subsidiary is a party or by which it is bound, or, to the
best of the Company's knowledge, of any provision of any state or federal
judgment, decree, order, statute, rule or regulation applicable to or binding
upon the Company or any Subsidiary, which materially adversely affects or, so
far as the Company may now foresee, in the future is reasonably likely to result
in or have a Company Material Adverse Effect. To the best of the Company's
knowledge, no employee of the Company is in violation of any material term of
any contract or covenant (either with the Company, a Subsidiary or with another
entity) relating to employment, patents, assignment of inventions, proprietary
information disclosure, non-competition or non-solicitation.
3.17 Absence of Changes. Since December 31, 2002, there
has been no material adverse change in the business, prospects, condition
(financial or otherwise), or results of operations of the Company or any
Subsidiary.
3.18 Employees. All current and former employees of the
Company or any Subsidiary who have or have had access to confidential or
proprietary information of the Company or such Subsidiary have executed and
delivered non-disclosure and assignment of
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inventions agreements in the form of Exhibit E-1, and all such agreements are in
full force and effect. All employees of the Company or any Subsidiary who
provide services to the Company or such Subsidiary which are material to the
Company's or such Subsidiary's success ("Key Employees") are listed on Exhibit
E-2. All Key Employees have executed and delivered non-competition and
non-solicitation agreements in the form of Exhibit E-3, and all such agreements
are in full force and effect. The Company has no knowledge that any employee of
the Company or any Subsidiary has plans to terminate his or her employment
relationship with the Company or such Subsidiary. Except as set forth in Section
3.18 of the Company Disclosure Schedule, all employees of the Company or any
Subsidiary are engaged by the Company or such Subsidiary on a full-time basis.
Each of the Company and each Subsidiary has complied in all material respects
with all applicable laws relating to wages, hours, equal opportunity, collective
bargaining, workers' compensation insurance and the payment of social security
and other taxes and, to the knowledge of the Company and its Subsidiaries, no
charges or complaints with respect to or relating to the Company or any
Subsidiary are threatened or pending before the National Labor Relations Board,
the Equal Employment Opportunity Commission or any corresponding state, local or
foreign agency. None of the employees of the Company or any Subsidiary is
represented by any labor union, and there is no labor strike to the knowledge of
the Company or other concerted labor trouble by employees of the Company or any
Subsidiary (including, without limitation, any union organizational drive) and,
to the best of the Company's knowledge, none is threatened. Section 3.18 of the
Company Disclosure Schedule sets forth a list of all agreements of which the
Company has knowledge between any Key Employee or officer of the Company or any
Subsidiary and a previous employer of such person that contains non-competition
or non-solicitation covenants. The Company has delivered copies of any such
agreements to the Purchasers. To the knowledge of the Company, no employee of
the Company or any Subsidiary is obligated under any contract (including any
license, covenant or commitment of any nature) or subject to any judgment,
decrees or administrative agency of which the Company has knowledge, that would
conflict or interfere with (i) the performance of the employee's duties as an
employee, director or officer of the Company or each Subsidiary, or (ii) the
Company's or any such Subsidiary's business as conducted or proposed to be
conducted.
3.19 ERISA. Section 3.19 of the Company Disclosure
Schedule lists all employee benefit plans (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
maintained by the Company or any Subsidiary. Each of such employee benefit plans
complies in all material respects with (i) all applicable requirements of ERISA
and (ii) all applicable requirements of the Code.
3.20 Books and Records. The minute books of the Company
and each Subsidiary contain complete and accurate records of all meetings and
other corporate actions of its stockholders and its Board of Directors and
committees thereof, each of which has been attested to by the appropriate
officer or officers. The stock ledger of the Company is complete and reflects
all issuances, transfers, repurchases and cancellations of shares of capital
stock of the Company.
3.21 Permits. Section 3.21 of the Company Disclosure
Schedule sets forth a list of all material permits, licenses, registrations,
certificates, orders or approvals from any Governmental Entity ("Permits")
issued to or held by the Company and each Subsidiary. Such listed Permits are
the only Permits that are required for the Company or any Subsidiary to
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conduct its business as presently or proposed to be conducted, except for those
the absence of which would not have a Company Material Adverse Effect. Each such
Permit is in full force and effect and, to the best of the knowledge of the
Company, no suspension or cancellation of such Permit is threatened and there is
no basis for believing that such Permit will not be renewable upon expiration.
3.22 Environmental Matters.
(a) Each of the Company and each Subsidiary has complied
in all material respects with all applicable Environmental Laws (as defined
below in this Section 3.22(a)). There is no pending or, to the knowledge of the
Company, threatened civil or criminal litigation, written notice of violation,
formal administrative proceeding, or investigation, inquiry or information
request by any Governmental Entity, relating to any Environmental Law involving
the Company or any Subsidiary. For purposes of this Agreement, an "Environmental
Law" means any foreign, federal, state or local law, statute, rule or regulation
or the common law relating to the protection of human health or the environment,
including without limitation CERCLA (as defined below in this Section 3.22(a)),
the Resource Conservation and Recovery Act of 1976, and any statute, regulation
or order pertaining to (i) treatment, storage, disposal, generation or
transportation of Materials of Environmental Concern (as defined below in this
Section 3.22(a)); (ii) air, water or noise pollution; (iii) groundwater or soil
contamination; (iv) the release or threatened release into the environment of
Materials of Environmental Concern, including without limitation, emissions,
discharges, injections, spills, escapes or dumping of pollutants, contaminants,
or chemicals; (v) the protection of wildlife, marine life and wetlands,
including without limitation all endangered and threatened species; (vi) storage
tanks, vessels, abandoned or discarded barrels, containers and other closed
receptacles; (vii) health and safety of employees and other persons including,
for example, as regulated by the Occupational and Health Act (42 U.S.C. ss.1801
et seq.); and (viii) manufacture, processing, use, distribution, treatment,
storage, disposal, transportation or handling of Materials of Environmental
Concern. As used in this Section 3.22, the terms "release" and "environment"
shall have the meaning set forth in the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"). For purposes of
this Agreement, "Materials of Environmental Concern" means any chemicals,
pollutants or contaminants, hazardous substances (as such term is defined under
CERCLA), solid wastes and hazardous wastes (as such terms are defined under the
federal Resource Conservation and Recovery Act of 1976), toxic materials, oil or
petroleum and petroleum products, or any other material subject to regulation
under any Environmental Law.
(b) Neither the Company, any Subsidiary, nor, to the best
knowledge of the Company, any third party has released any Materials of
Environmental Concern into the environment at any parcel of real property or any
facility formerly or currently owned, operated or controlled by the Company or
any Subsidiary. The Company is not aware of any releases of Materials of
Environmental Concern at parcels of real property of facilities that are not
owned, operated or controlled by the Company or any Subsidiary that could
reasonably be expected to have an impact on the real property or facilities
owned, operated or controlled by the Company or such Subsidiary.
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(c) The Company is not aware of any material
environmental liability of the solid and hazardous waste transporters and
treatment, storage and disposal facilities that have been utilized by the
Company or any Subsidiary.
(d) Set forth in Section 3.22(d) of the Company
Disclosure Schedule is a list of all environmental reports, investigations and
audits of which the Company has knowledge and has in its possession, custody or
control (whether conducted by or on behalf of the Company or a third party, and
whether done at the initiative of the Company or directed by a Governmental
Entity or other third party) issued or conducted since the inception of the
Company relating to premises currently or previously owned or operated by the
Company or a Subsidiary. Complete and accurate copies of each such report, or
the results of each such investigation or audit, have been provided to special
counsel for the Purchaser.
3.23 U.S. Real Property Holding Corporation. Neither the
Company nor any Subsidiary is now and has never been a "United States Real
Property Holding Corporation" as defined in Section 897(c)(2) of the Code and
Section 1.897-2(b) of the Regulations promulgated by the Internal Revenue
Service. The Company has filed with the Internal Revenue Service all statements,
if any, with its U.S. income tax returns, which are required under Treasury
Regulation ss.1.897-2(h).
3.24 No Preemptive Rights or Rights of First Refusal. The
sale of the Securities is not, and the subsequent conversion or exercise of the
Securities into Common Stock will not be, subject to any preemptive rights or
rights of first refusal that have not been properly waived or complied with.
3.25 Related-Party Transactions.
(a) No employee, consultant, officer, shareholder,
director or affiliate (as defined in the rules and regulations promulgated under
the Securities Act) of the Company, or, in the case of any of the foregoing who
are individuals, any member of his or her immediate family, or any affiliate of
any of the foregoing, is indebted to, or owns an interest in the property,
technology or licenses of, the Company. The Company is not indebted (or
committed to make loans or extend or guaranty credit) to any of the foregoing,
other than for (i) the payment of salary and/or performance bonuses for services
rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the
Company, and/or (iii) other standard employee benefits made generally available
to all employees or to similarly situated persons.
(b) To the best of the Company's knowledge, none of such
persons has any direct or indirect ownership interest in any firm or corporation
that competes with the Company, except that such persons may own stock in
publicly traded companies (not exceeding one percent of such companies'
outstanding capital stock) that may compete with the Company.
3.26 Disclosures. Neither this Agreement nor any Exhibit
or Schedule hereto, nor any report, certificate, document or instrument
furnished to the Purchaser or its agents in connection with the transactions
contemplated by this Agreement, when read together, contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading.
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4. Representations of the Purchaser. The Purchaser represents and
warrants to the Company as follows:
4.1 Investment. The Purchaser is acquiring the
Securities, and the shares of Common Stock into which the Securities may be
converted or exchanged, for the Purchaser's own account for investment and not
with a view to, or for sale in connection with, any distribution thereof, nor
with any present intention of distributing or selling the same; and, except as
contemplated by this Agreement and the Exhibits hereto, the Purchaser has no
present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof. The Purchaser
is an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D promulgated under the Securities Act.
4.2 Authority. The Purchaser has full power and authority
to enter into and to perform this Agreement in accordance with its terms. The
Purchaser represents that it has not been organized, reorganized or
recapitalized specifically for the purpose of investing in the Company.
4.3 Experience. The Purchaser has carefully reviewed the
representations concerning the Company contained in this Agreement and has made
detailed inquiry concerning the terms and conditions of the Securities and the
purchase and sale of Securities contemplated hereby, the Company, its business
financial condition, operations, assets and its personnel. The officers or
representatives of the Company have made available to the Purchaser any and all
written information which it has requested and have answered to the Purchaser's
satisfaction all inquiries made by the Purchaser; and the Purchaser has
sufficient knowledge and experience in finance and business that it is capable
of evaluating the risks and merits of its investment in the Company and the
Purchaser is able financially to bear the risks thereof (including a complete
loss of its investment).
4.4 Limitations on Disposition. The Purchaser recognizes
that no public market exists for the Securities, and none may exist in the
future. The Purchaser understands that it must bear the economic risk of this
investment indefinitely unless its Securities are registered pursuant to the
Securities Act or an exemption from such registration is available, and unless
the disposition of such Securities is qualified or registered under applicable
state securities laws or an exemption from such qualification or registration is
available, and that the Company has no obligation or present intention of so
registering the Securities. The Purchaser further understands that there is no
assurance that any exemption from the Securities Act will be available, or, if
available, that such exemption will allow it to transfer any or all the
Securities, in the amounts, or at the times it might propose. The Purchaser
understands that at the present time Rule 144 promulgated under the Securities
Act by the Securities and Exchange Commission ("Rule 144") is not applicable to
sales of the Securities because the Company is not subject to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the information concerning the Company specified in Rule 144 is not
publicly available. The Purchaser further acknowledges that the Company is not
presently under any obligation to register under Section 12 of the Exchange Act
or to make publicly available the information specified in Rule 144 and that it
may never be required to do so.
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5. Conditions to the Obligations of the Purchaser. The obligation
of the Purchaser to purchase the Securities at the Closing is subject to the
fulfillment, or the waiver by Purchaser, of each of the following conditions on
or before the Closing:
5.1 Accuracy of Representations and Warranties. Each
representation and warranty contained in Section 3 shall be true on and as of
the Closing Date with the same effect as though such representation and warranty
had been made on and as of that date.
5.2 Performance. The Company shall have performed and
complied with all agreements and conditions contained in this Agreement required
to be performed or complied with by the Company prior to or at the Closing.
5.3 Amendment of the Investors' Rights Agreement. An
amendment to the Investors' Rights Agreement, substantially in the form attached
hereto as Exhibit F, shall have been executed by the Company, Purchaser, Patrick
Mahaffy, Judith Hemberger, Penn T Limited ("Penn") and holders of a majority of
the Series A Registrable Securities and 55% of the Senior Preferred Registrable
Securities outstanding (not including Founders' Stock) (as such terms are
defined in the Investors' Rights Agreement).
5.4 Amendment to License Agreement. Amendment No. 2 to
the License Agreement, dated as of November 16, 2001, as amended (by Amendment
No. 1 to License Agreement dated March 3, 2003), by and among Pharmion GmbH, the
Company and the Purchaser, substantially in the form set forth on Exhibit G,
shall have been executed and delivered by each of the parties thereto and be in
full force and effect.
5.5 Opinion of Counsel. The Purchaser shall have received
an opinion from Willkie Farr & Gallagher, counsel for the Company, dated the
Closing Date, addressed to the Purchaser, and reasonably satisfactory in form
and substance to the Purchaser substantially in the form set forth on Exhibit H.
5.6 Certificates and Documents. The Company shall have
delivered to the Purchaser:
(a) The Charter in effect as of the Closing Date,
certified by the Secretary of State of the State of Delaware;
(b) Certificates, as of the most recent practicable
dates, as to the corporate good standing of the Company issued by the Secretary
of State of the State of Delaware, the Secretary of the State of Colorado, the
Secretary of State of the State of Kansas and each other jurisdiction listed in
Section 3.1 of the Company Disclosure Schedule;
(c) The By-laws of the Company, certified by its
Secretary or Assistant Secretary as of the Closing Date;
(d) A certificate of the Secretary or Assistant Secretary
of the Company, dated as of the Closing Date, certifying as to:
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(i) the signatures and titles of the officers of
the Company executing this Agreement; and
(ii) resolutions of the Board of Directors and
stockholders of the Company, authorizing and approving all matters in connection
with this Agreement and the transactions contemplated hereby.
(e) A certificate, executed on behalf of the Company by
the President of the Company, dated the Closing Date, certifying to the
fulfillment of the conditions specified in Sections 5.1 and 5.2 of this
Agreement.
5.7 Other Matters. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchaser, and the Purchaser shall
have received all such counterpart originals or certified or other copies of
such documents as they may reasonably request.
6. Conditions to the Obligations of the Company. The obligations
of the Company under Section 1.1 of this Agreement are subject to fulfillment,
or the waiver by the Company, of each of the following conditions on or before
the Closing:
6.1 Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser contained in Section 4 shall be
true on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date.
6.2 Payment of Purchase Price. The Company shall have
received payment in full from the Purchaser by wire transfer of the Purchase
Price.
6.3 Other Stockholder Signature Page. The Purchaser shall
have executed and delivered to the Company an "Other Stockholder Signature
Page," substantially in the form attached hereto as Exhibit I, to that certain
Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of
October 11, 2002, by and among the Company and its shareholders, with respect to
the transactions contemplated hereby.
7. Covenants of the Company. From and after the date of this
Agreement, and thereafter so long as the Note remains outstanding, the Company
will duly perform and observe, for the benefit of the Purchaser, each and all of
the covenants and agreements hereinafter set forth.
7.1 Other Indebtedness; Restricted Payments.
(a) From and after the Closing, (i) neither the Company
nor any Subsidiary shall (A) create, incur, assume or directly or indirectly
guarantee or in any other manner become directly or indirectly liable for any
Indebtedness (as hereinafter defined) that is pari passu with, or senior in
right of payment to, the Notes or that is secured by any assets or properties of
the Company or any Subsidiary; or (B) directly or indirectly, create, incur,
assume or suffer to exist any Security Interest with respect to any of their
respective properties or assets; and (ii) the
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Company and each Subsidiary shall prior to creating, incurring, assuming or
issuing a guarantee of any Indebtedness, obtain from the proposed obligee of
such Indebtedness, a subordination agreement (or provide in the instruments
evidencing such Indebtedness clauses) substantially in the form attached hereto
as Exhibit J. Notwithstanding the foregoing, the Company shall have the right to
incur and suffer to exist: (x) Indebtedness that is secured by any accounts
receivable of the Company or any Subsidiary which Indebtedness shall not exceed
50% of the aggregate accounts receivable in existence from time to time, and (y)
any Purchase Money Indebtedness (as hereinafter defined). For the purposes of
this Section 7.1(a), "Indebtedness" shall mean indebtedness for borrowed money
or for the deferred purchase price of property or services or which is evidenced
by a note, bond, debenture or similar instrument, and "Purchase Money
Indebtedness" shall mean any Indebtedness incurred for the acquisition of
intellectual property rights, property, plant or equipment used or useful in the
business of the Company or any of its Subsidiaries.
Purchaser hereby acknowledges having been advised by the
Company that, substantially simultaneously with its execution and delivery of
this Agreement, the Company will enter into a substantially similar agreement
with Penn T Limited pursuant to which it will issue to Penn T Limited and Penn T
Limited will purchase a promissory note in the principal amount of $2,000,000 of
like tenor to the Note, but subject to the subordination provisions set forth in
Exhibit J, which agreement and promissory note will otherwise contain terms that
are no more favorable to Penn T Limited than the terms of this Agreement and the
Note.
(b) From and after the Closing, neither the Company nor
any Subsidiary shall declare or pay any dividend or other distribution in
respect of its capital stock (other than dividends or distributions payable
solely in shares of capital stock of the Company), or purchase, redeem or
otherwise acquire or retire for value any capital stock of the Company or any
Subsidiary; provided, however, that this restriction shall not apply to the
repurchase of shares of capital stock from employees, officers, directors,
consultants or other persons performing services for the Company or any
Subsidiary pursuant to agreements under which the Company has the option to
repurchase such shares at cost upon the occurrence of certain events, such as
the termination of employment, or through the exercise of any right of first
refusal; provided, further, however, that such permitted repurchases shall not
exceed the limits contained in Section 8(a)(v) and Section 8(b)(v) of Article IV
of the Charter, as the same may be amended from time to time.
(c) The provisions of this Section 7.1 shall terminate
and be of no further force or effect upon the conversion or indefeasible
repayment in full of the Note and all accrued interest thereon and any and all
expenses or liabilities relating thereto.
7.2 No Impairment. The Company will not take or permit
any action, or cause or permit any Subsidiary to take or permit any action, that
impairs or adversely affects the rights of the Purchaser under this Agreement,
the Note or the Warrant.
7.3 Notification of Certain Matters. The Company shall
deliver to the Purchaser the following notices, in each case under the
circumstances and in accordance with the procedures as described herein:
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(a) Notice of Default or Event of Default. Promptly, and
in any event within five days after becoming aware of the existence of any
default or Event of Default (as defined in Section 6 of the Note) or that any
notice has been given or any action has been taken with respect to a claimed
default or Event of Default under the Note or that any notice has been given or
any action has been taken with respect to a claimed default or Event of Default
of the type referred to in Section 7 of the Note, a written notice specifying
the nature and period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(b) Notices from Governmental Entity. Promptly, and in
any event within five days of receipt thereof, copies of any notice to the
Company or any Subsidiary from any federal or state Governmental Entity relating
to any order, ruling, statute or other law or regulation that could reasonably
be expected to have a Company Material Adverse Effect;
(c) Liquidity. Promptly, and in any event within ten
days, (i) after there is a reasonable likelihood that the Company's financial
resources shall not be sufficient to conduct the business of the Company and its
Subsidiaries, as then presently conducted and as then proposed to be conducted,
for the ensuing twelve-month period, or (ii) after the Company becomes aware
that its cash on hand, including readily marketable securities, is less than the
then outstanding principal amount of the Note; and
(d) Requested Information. With reasonable promptness,
such other data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any Subsidiary,
including, without limitation, copies of all notices and other materials
provided to members of the Board of Directors of the Company, or relating to the
ability of the Company to perform its obligations hereunder and under the Note
as from time to time may be reasonably requested by the Purchaser, provided,
however, that the Company reserves the right to exclude any information that any
executive officer of the Company or the Company's counsel, in their sole
discretion, determines could adversely affect or jeopardize the attorney-client
privilege between the Company and its counsel, or is necessary to protect highly
confidential or competitively sensitive information (of the Company or of third
parties).
7.4 Inspection Rights. The Company shall permit the
representatives of the Purchaser:
(a) Prior to Closing. Prior to the Closing, at the
expense of the Purchaser, to visit and inspect any of the offices or properties
of the Company or any Subsidiary, to examine all their respective books of
account, records, reports and other papers not contractually required of the
Company or such Subsidiary to be kept confidential or secret, to make copies and
extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers and independent public accountants,
consultants and advisors, (and by this provision the Company authorizes said
accountants, consultants and advisors, to discuss the affairs, finances and
accounts of the Company and each Subsidiary), all at such times and as often as
may be requested.
(b) No Default. After the Closing, if no default or Event
of Default then exists, at the expense of the Purchaser and upon reasonable
prior notice to the Company, to visit the principal executive office of the
Company, to discuss the affairs, finances and accounts of the Company and any
Subsidiary with the Company's officers, and (with the consent of the
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Company, which consent will not be unreasonably withheld) its independent public
accountants, consultants and advisors, and (with the consent of the Company,
which consent will not be unreasonably withheld) to visit the other offices and
properties of the Company and each Subsidiary, all at such reasonable times and
as often as may be reasonably requested in writing; and
(c) Default. After the Closing, if a default or Event of
Default then exists, at the expense of the Company to visit and inspect any of
the offices or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective officers and independent public accountants,
consultants and advisors (and by this provision the Company authorizes said
accountants, consultants and advisors, to discuss the affairs, finances and
accounts of the Company and any and each Subsidiary), all at such times and as
often as may be requested.
(d) Confidentiality. As to so much of the information and
other material furnished under or in connection with this Agreement (whether
furnished before, on or after the date hereof, including without limitation
information furnished pursuant to Section 7.4 hereof) as constitutes or contains
confidential business, financial or other information of the Company or any
Subsidiary, the Purchaser covenants for itself and its directors, officers,
employees, agents and advisors (collectively "Representatives") that it will
maintain the confidentiality of such information and it will use due care to
prevent its Representatives from disclosing such information to persons other
than other Representatives to whom such information must necessarily be
disclosed in connection with Purchaser's investment in the Note and Warrant and
any other transactions or dealings between Purchaser and the Company; provided,
however, that the Purchaser may disclose or deliver any information or other
material disclosed to or received by it if such information or other material
(i) is or becomes available to the public other than as a result of a breach of
this Section 7.4(d), (ii) was or becomes available to the Purchaser on a
non-confidential basis from a source other than the Company or any of its
Subsidiaries (whether before or after disclosure by the company or any of its
Subsidiaries), provided that to the Purchaser's knowledge such source is not
prohibited from disclosing such information to the Purchaser by contractual,
legal or fiduciary obligation to the Company or any of its Subsidiaries or (iii)
is independently developed by the Purchaser without violating its obligations
hereunder or (iv) is required to be disclosed or delivered by law, regulation or
judicial or administrative order. For purposes of this Section 7.4(d), "due
care" means at least the same level of care that the Purchaser would use to
protect the confidentiality of its own sensitive or proprietary information.
This obligation shall survive any termination of this Agreement.
7.5 Compliance. The Company will and will cause each
Subsidiary to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations could not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
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7.6 Insurance. The Company will and will cause each
Subsidiary to maintain, with financially sound and reputable insurers, insurance
with respect to their respective properties, businesses and products against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
7.7 Maintenance. The Company will and will cause each
Subsidiary to maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section 7.7 shall not
prevent the Company or any Subsidiary from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such discontinuance
could not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
7.8 Taxes. The Company will and will cause each
Subsidiary to file all tax returns required to be filed in any jurisdiction and
to pay and discharge all taxes shown to be due and payable on such returns and
all other taxes, assessments, governmental charges, or levies imposed on them or
any of their properties, assets, income or franchises, to the extent such taxes
and assessments have become due and payable and before they have become
delinquent and all claims for which sums have become due and payable that have
or might become a lien on properties or assets of the Company or any Subsidiary,
provided that neither the Company nor any Subsidiary need pay any such tax or
assessment or claims if (i) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or such Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes and assessments in
the aggregate could not reasonably be expected to have a Company Material
Adverse Effect.
7.9 Preservation of Corporate Existence. The Company will
at all times preserve and keep in full force and effect its corporate existence.
The Company will at all times preserve and keep in full force and effect the
corporate existence of each Subsidiary (unless merged into the Company or a
Subsidiary) and all rights and franchises of the Company and each Subsidiary
unless, in the good faith judgment of the Company, the termination of or failure
to preserve and keep in full force and effect such corporate existence, right or
franchise could not, individually or in the aggregate, have a Company Material
Adverse Effect.
8. Transfer of Securities.
8.1 Restricted Securities. "Restricted Securities" means
(i) the Securities, (ii) the shares of Common Stock issued or issuable upon
conversion or exchange of the Securities, and (iii) any other shares of capital
stock of the Company issued in respect of such shares (as a result of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events); provided, however, that shares of Common Stock which are Restricted
Securities shall cease to be Restricted Securities (x) upon any sale pursuant to
an effective registration statement under the Securities Act, Section 4(1) of
the Securities Act or Rule 144 under the Securities Act
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or (y) at such time as they become eligible for sale under Rule 144(k) or
Regulation S under the Securities Act.
8.2 Requirements for Transfer.
(a) Restricted Securities shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act, or (ii) the Company first shall have been furnished with an
opinion of legal counsel, reasonably satisfactory to the Company, to the effect
that such sale or transfer is exempt from the registration requirements of the
Securities Act.
(b) Notwithstanding the foregoing, no registration or
opinion of counsel shall be required for a transfer by the Purchaser to an
affiliate (as such term is defined in the Securities Act) of the Purchaser.
8.3 Legend. Each instrument representing Restricted
Securities issued to the Purchaser shall bear the following legends
substantially in the form set forth below:
(a) In the case of the Note:
"This note and the securities issuable upon its
conversion have not been registered under the
Securities Act of 1933, as amended (the "Act"), or
any state securities law, and may not be transferred
except pursuant to an effective registration under
the Act or in a transaction which, in the opinion of
counsel reasonably satisfactory to the Company,
qualifies as an exempt transaction under the Act and
the rules and regulations promulgated thereunder."
(b) In the case of the Warrant:
"This warrant and the securities issuable upon its
exercise have not been registered under the
Securities Act of 1933, as amended (the "Act"), or
any state securities law, and may not be transferred
except pursuant to an effective registration under
the Act or in a transaction which, in the opinion of
counsel reasonably satisfactory to the Company,
qualifies as an exempt transaction under the Act and
the rules and regulations promulgated thereunder."
The foregoing legends shall be removed from the instrument
representing any Restricted Securities, at the request of the holder thereof, at
such time as such Registrable Securities become eligible for resale pursuant to
Rule 144(k) under the Securities Act or have been registered under the
Securities Act.
8.4 Rule 144A Information. The Company shall, at all
times during which it is neither subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, nor exempt from reporting pursuant to
Rule 12g3-2(b) under the Exchange Act, upon the written request of the
Purchaser, provide in writing to such Purchaser and to any prospective
transferee
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of any Restricted Securities of the Purchaser the information concerning the
Company described in Rule 144A(d)(4) under the Securities Act.
9. Miscellaneous.
9.1 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement, and the rights and obligations
of the Purchaser hereunder, may be assigned by the Purchaser to any person or
entity to which the Note and/or Warrant are transferred by the Purchaser, and
such transferee shall be deemed a "Purchaser" for purposes of this Agreement;
provided that the transferee provides written notice of such assignment to the
Company and agrees in writing to be bound by the terms hereof to the same extent
as if the original Purchaser. The Company may not assign its rights under this
Agreement.
9.2 Indemnification.
(a) The Company agrees to indemnify the Purchaser and
each officer, director, employee, agent, partner, stockholder and affiliate of
the Purchaser (collectively, the "Indemnified Parties") for, and hold each
Indemnified Party harmless from and against: (i) any and all damages, losses,
claims and other liabilities of any and every kind, including, without
limitation, judgments and costs of settlement, and (ii) any and all
out-of-pocket costs and expenses of any and every kind, including, without
limitation, reasonable fees and disbursements of counsel for such Indemnified
Parties (all of which expenses periodically shall be reimbursed as incurred), in
each case, arising out of or suffered or incurred in connection with any of the
following: (a) any misrepresentation or any breach of any warranty made by the
Company herein or in the Note or Warrant, (b) any breach or non-fulfillment of
any covenant or agreement made by the Company herein or in the Note or Warrant
and (c) any claim relating to or arising out of a violation of applicable
federal or state securities laws by the Company or any Subsidiary in connection
with the sale of the Securities by the Company to the Purchaser.
(b) The Company shall have the right, but not the
obligation, to conduct the defense of any action or claim and all negotiations
for the settlement or compromise thereof with counsel of its own choice
reasonably satisfactory to the Indemnified Parties; provided that (i) any
settlement negotiated by the Company involves no cost or liability to any of the
Indemnified Parties and includes an unconditional release of all Indemnified
Parties from all liability with respect to such claim or action, (ii) any
Indemnified Party shall have the right to retain their own counsel, with the
fees and expenses to be paid by the Company if the Company elects not to defend
against such action or claim, or if in such Indemnified Party's reasonable
judgment there exists any actual or potential conflict of interest between the
Company and such Indemnified Party and (iii) in the absence of any conflict, any
of the Indemnified Parties shall have the right at any time to participate in
and join the defense of any action or claim at the expense of such Indemnified
Party.
9.3 Survival of Representations and Warranties. All
agreements, representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the closing of the transactions
contemplated hereby.
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9.4 Brokers. The Company represents and warrants to the
Purchaser that it has not retained a finder or broker in connection with the
transactions contemplated by this Agreement. The Purchaser represents and
warrants to the Company that it has not retained a broker in connection with the
transactions contemplated by this Agreement. Each party hereto will indemnify
and save the other party harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
9.5 Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
9.6 Specific Performance. In addition to any and all
other remedies that may be available at law in the event of any breach of this
Agreement, the Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
9.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Delaware
(without reference to the conflicts of law provisions thereof).
9.8 Choice of Forum. The parties hereby submit to the
jurisdiction of the federal or state courts located within the City of New York,
State of New York, for the conduct of any suit, action or proceeding arising out
of or relating to this Agreement. The Company hereby agrees that the Purchaser
may effect service of process upon the Company by delivery (other than by
telecopier) in the manner provided for the giving of notices under Section 9.9
hereof.
9.9 Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) five business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or if sent overseas, on the
tenth business day, (ii) one business day after being sent via a reputable
overnight courier service guaranteeing next business day delivery, or if sent
overseas on the second business day after being sent, (iii) at the time of
delivery thereof to the receiving party if delivered by hand and (iv) at the
time that receipt thereof has been acknowledged by electronic confirmation or
otherwise, if sent by telecopier, in each case to the intended recipient as set
forth below:
If to the Company, at Pharmion Corporation, 2525 28th Street,
Boulder, CO 80301, Attention: Chief Executive Officer, or at such other address
or addresses as may have been furnished in writing by the Company to the
Purchaser, with a copy to Willkie Farr & Gallagher, 787 Seventh Avenue, New
York, NY 10019-6099, Attention: Peter H. Jakes, Esq.;
If to the Purchaser, at Celgene Corporation, 7 Powder Horn
Drive, Warren, NJ 07059, Attention: Chief Executive Officer, or at such other
address or addresses as may have been furnished to the Company in writing by the
Purchaser, with a copy to Proskauer Rose LLP, 1585 Broadway, New York, NY
10036-8299, Attention: Robert A. Cantone, Esq.
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Any party may give any notice, request, consent or other
communication under this Agreement using any other means (including, without
limitation, personal delivery, messenger service, telecopy, first class mail or
electronic mail), but no such notice, request, consent or other communication
shall be deemed to have been duly given unless and until it is actually received
by the party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
9.10 Complete Agreement. This Agreement (including its
Exhibits and Schedules) constitutes the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter.
9.11 Amendments and Waivers. Except as otherwise expressly
set forth in this Agreement, any term of this Agreement may be amended or
terminated and the observance of any term of this Agreement may be waived with
respect to all parties to this Agreement (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the Purchaser. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
9.12 Pronouns. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
9.13 Counterparts; Facsimile Signatures. This Agreement
may be executed in any number of counterparts each of which shall be deemed to
be an original, and all of which shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
9.14 Delays or Omissions. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach, default or noncompliance by another party under this Agreement, shall
impair any such right, power or remedy, nor shall it be construed to be a waiver
of any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on the Purchaser's part of any breach, default or noncompliance under
this Agreement, or any waiver on the Purchaser's part of any provisions or
conditions of the Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or otherwise afforded to any party, shall be cumulative and not
alternative.
9.15 Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
9.16 Disclosure. Except to the extent required by
applicable law, regulation or judicial or administrative order, neither the
Company nor the Purchaser shall publish any press
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release or make any comparable broadly disseminated public announcement
(including website postings) with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other party hereto.
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Executed as of the date first written above.
COMPANY:
PHARMION CORPORATION
By: /s/ Patrick J.Mahaffy
-------------------------
Name: Patrick J. Mahaffy
Title: President and CEO
PURCHASER:
CELGENE CORPORATION
By:
-------------------------
Name:
Title:
Securities Purchase Agreement Signature Page
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EXHIBIT H
---------
Opinion of Counsel
------------------
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has full corporate power and authority to conduct its business as presently
conducted, to enter into and perform the Agreement and to carry out the
transactions contemplated by the Agreement.
(b) The authorized and outstanding capital stock of the Company
(immediately prior to the Closing) is as set forth in Section 3.2 of the
Agreement. All of the issued and outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable. To the
best of such counsel's knowledge, except as set forth in Exhibit C to the
Agreement or as provided in the Agreement, (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) to purchase or
acquire any shares of capital stock of the Company is authorized or outstanding,
(ii) the Company has no obligation (contingent or otherwise) to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any shares of its capital stock any evidences
of indebtedness or assets of the Company, and (iii) the Company has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any shares of its capital stock or any interest therein or to pay any dividend
or make any other distribution in respect thereof. No registration was required
under the Securities Act or under applicable state securities laws in connection
with the issuance and sale of the Securities.
(c) The Securities, and the shares of Common Stock issuable upon
conversion of the Note or exercise of the Warrant, have been duly authorized and
reserved for issuance by all necessary corporate action on the part of the
Company; and the Securities, when issued, sold and delivered against payment
therefor in accordance with the provisions of the Agreement, and the shares of
Common Stock issuable upon conversion or exercise of the Securities, when issued
upon such conversion or exercise, will be duly and validly issued, fully paid
and non-assessable.
(d) The execution, delivery and performance by the Company of the
Agreement has been duly authorized by all necessary corporate action and the
Agreement has been duly executed and delivered by the Company. The Agreement and
the consummation by the Company of the transactions contemplated thereby,
constitute the valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject (i) as to enforcement of
remedies to applicable bankruptcy, insolvency, reorganization 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. The execution and
delivery of the Agreement and the offer, issue and sale of the Securities
thereunder will not conflict with, or result in any breach of any of the terms,
conditions, or provisions of, or constitute a default under, the Certificate of
Incorporation or By-laws of the Company, or any indenture, lease, agreement, or
other instrument known to such counsel to which the Company is a party or by
which it or any of its properties are bound, or any decree, judgment or order
specifically naming the Company and known to such counsel.
<PAGE>
(e) Except as obtained and in effect at the Closing, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration, or filing with, any governmental authority (other than
filings required to be made after the Closing under applicable federal and state
securities laws, which filings shall be specified in such opinion) is required
on the part of the Company in connection with the execution and delivery of the
Agreement, or the offer, issue, sale and delivery of the Securities, or the
other transactions to be consummated at the Closing pursuant to the Agreement.
(f) Based on the representations of the Purchaser in Section 4,
the offer, issuance and sale of the Securities pursuant to the Agreement are
exempt from registration under the Securities Act.
(g) To the best of such counsel's knowledge, except as set forth
in the Company Disclosure Schedule, there is no action, suit or proceeding, or
governmental inquiry or investigation, pending or threatened against the
Company.