NEITHER THIS WARRANT NOR THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED, MORTGAGED OR OTHERWISE CONVEYED, DISPOSED OF
OR ENCUMBERED UNLESS THEY ARE SO REGISTERED, UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND, IF REQUESTED BY THE COMPANY, AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY IS DELIVERED TO THE COMPANY TO THE EFFECT
THAT SUCH REGISTRATION IS NOT UNDER THE CIRCUMSTANCES REQUIRED OR UNLESS THE
WARRANT OR SUCH SHARES ARE SOLD PURSUANT TO RULE 144 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT AND ANY SHARES ISSUED OR
ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 9 OF THIS WARRANT AND IN SECTION 7 OF THAT
CERTAIN SECURITIES PURCHASE AGREEMENT DATED DECEMBER 18, 1997, AND NO TRANSFER
OF THIS WARRANT AND/OR SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT
EFFECTED IN COMPLIANCE WITH ALL OF SUCH RESTRICTIONS ON TRANSFER. COPIES OF
SUCH SECURITIES PURCHASE AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS WARRANT AND/OR SUCH SHARES TO THE
SECRETARY OF LEUKOSITE, INC.
No. ______ Dated: December 18, 1997
LEUKOSITE, INC.
COMMON STOCK PURCHASE WARRANT
THIS IS TO CERTIFY THAT, for value received, GENENTECH, INC., a Delaware
corporation ("Genentech"), is entitled, subject to the terms and conditions set
forth below, to purchase from LEUKOSITE, INC., a Delaware corporation
("LeukoSite"), at any time or from time to time after 9:00 A.M., Boston,
Massachusetts time, on December 18, 1999 (the "Initial Exercise Date") and
prior to 5:00 P.M., Boston, Massachusetts time, on the Expiration Date (as
defined in Section 1 below), any or all of 250,000 shares (the "Initial Warrant
Shares") of common stock, $0.01 par value per share, of LeukoSite, at a
purchase price per share equal to $16.22 (the "Initial Exercise Price"). The
number and character of the Initial Warrant Shares and the Initial Exercise
Price are subject to adjustment as provided herein.
This Common Stock Purchase Warrant (as amended and in effect from time to
time, this "Warrant") is being issued pursuant to that certain Securities
Purchase Agreement, dated as of the date hereof (as amended and in effect from
time to time, the "Securities Purchase Agreement"), between LeukoSite and
Genentech. A copy of the Securities Purchase Agreement is on file at the
principal office of LeukoSite.
1. DEFINITIONS. As used in this Warrant, the following terms shall have
the respective meanings set forth below or elsewhere in this Warrant as
referred to below:
"Affiliate" shall mean, with respect to any Person, any other Person
controlled by, controlling or under common control with such Person.
"Collaboration Agreement" shall mean that certain Development
Collaboration and Licensing Agreement, dated as of the date hereof, between
LeukoSite and Genentech, as amended and in effect from time to time.
"Common Stock" shall mean common stock, $0.01 par value per share, of
LeukoSite.
"Company" shall mean LeukoSite and/or any Person that shall succeed to,
or assume the obligations hereunder of, LeukoSite.
"Exercise Date" shall have the meaning set forth in Section
2.2 hereof.
"Exercise Price" shall mean Initial Exercise Price, as adjusted from time
to time pursuant to the terms of this Warrant.
"Expiration Date" shall mean December 18, 2007.
"Fair Market Value" shall mean (i) the last reported sale price per share
of Stock on the Nasdaq-NMS or any national securities exchange in which such
Stock is quoted or listed, as the case may be, on the date immediately
preceding the Exercise Date or, if no such sale price is reported on such date,
such price on the next preceding business day in which such price was reported,
or (ii) if such Stock is not quoted or listed on the Nasdaq-NMS or any national
securities exchange, the fair market value of a share of such Stock, as
determined in good faith by the Board of Directors of the Company.
"Holder" shall mean Genentech.
"Nasdaq-NMS" shall mean The National Association of Securities Dealers'
Automated Quotation National Market System.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Prohibited Transferee" shall mean any Person that, immediately after the
acquisition of any Shares or any interest therein by such Person, its
Affiliates or nominees, directly or indirectly owns or holds of record or
beneficially securities of the Company representing (or convertible into or
exercisable or exchangeable for other securities of the Company that represent)
at least fifteen percent (15%) of the voting power of all voting securities of
the Company that are outstanding immediately after such acquisition.
"Property" shall have the meaning set forth in Section 4.2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean (i) Common Stock, (ii) capital stock of LeukoSite
(other than Common Stock) or any other Person or any other securities of
LeukoSite or any other Person that the Holder is entitled to receive, or
receives, upon exercise of this Warrant, in lieu of or in addition to Common
Stock, and/or (iii) capital stock of LeukoSite (other than Common Stock) or any
other Person or any other securities of LeukoSite or any other Person that may
be issued in replacement of, substitution, exchange or redemption for, or upon
reclassification or conversion of, Common Stock or any other Stock, in each
case whether as a result of a reorganization, reclassification, merger,
consolidation, sale of substantially all of the assets of LeukoSite or
otherwise.
"Warrant Shares" shall mean (A) at 9:00 A.M. on the Initial Exercise
Date, the Initial Warrant Shares and (B) at any time after 9:00 A.M. on the
Initial Exercise Date, the total number and kind of shares of Stock for which
this Warrant is exercisable at such time, after giving effect to the number of
shares of Stock previously purchased by the Holder pursuant to any and all
exercises of this Warrant prior to such time and after giving effect to all
adjustments provided for in Sections 3 and 4 hereof prior to such time.
2. EXERCISE OF WARRANT.
2.1 METHOD OF EXERCISE.
(a) Subject to and upon all of the terms and conditions set forth in
this Warrant, the Holder may exercise this Warrant, in whole or in part with
respect to any Warrant Shares, at any time and from time to time during the
period commencing on the Initial Exercise Date and ending on the Expiration
Date, by presentation and surrender of this Warrant to the Company at its
principal office, together with (i) a properly completed and duly executed
subscription form, in the form attached hereto, which subscription form shall
specify the number of Warrant Shares for which this Warrant is then being
exercised, (ii) if requested by the Company, a duly executed instrument or
certificate, in form and substance satisfactory to the Company, pursuant to
which the Holder makes such representations and warranties to the Company, and
provides or confirms such information concerning the Holder, as the Company may
reasonably request in order to confirm compliance with applicable securities
laws, (iii) payment of the aggregate Exercise Price payable hereunder in
respect of the number of Warrant Shares being purchased upon exercise of this
Warrant, and (iv) if applicable, the payment of any transfer taxes required to
be paid by the Holder pursuant to Section 2.7 hereof. Payment of such aggregate
Exercise Price and any such transfer taxes shall be made in cash or by money
order, certified or bank cashier's check or wire transfer (in each case in
lawful currency of the United States of America).
(b) Notwithstanding anything expressed or implied in this Warrant
(including, without limitation, Section 2.1(a) above) to the contrary, prior to
any exercise by the Holder of this Warrant, the Holder shall make a
determination as to whether any such proposed exercise requires, prior to the
consummation thereof, that filings under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or the rules and regulations promulgated
thereunder (said Act and said rules and regulations being referred to herein,
collectively, as the "HSR Act"), be made. If the Holder shall make the
determination that any such proposed exercise requires, prior to the
consummation thereof, that filings under the HSR Act be made, then the Holder
shall give prompt written notice of such determination to the Company and such
written notice shall state the portion, if any, of the Warrant Shares
originally subject to such proposed exercise that could be exercised without
having to make any filings under the HSR Act (the "Non-HSR Warrant Shares"),
and the portion of Warrant Shares originally subject to such proposed exercise
that require, prior to the consummation of such proposed exercise, that filings
under the HSR Act be made (the "HSR Warrant Shares"). In the event that the
Holder shall give such written notice to the Company, the proposed exercise of
the Non-HSR Warrant Shares shall be consummated pursuant to, and in accordance
with, the provisions of Warrant, and, notwithstanding anything in this Warrant
to the contrary, the proposed exercise of the HSR Warrant Shares shall not be
consummated unless and until (i) the Holder gives written notice to the Company
that the Holder desires to cause to be made the filings required under the HSR
Act in order to effect the proposed exercise of the HSR Warrant Shares (the
"HSR Filing Notice"), (ii) such filings required under the HSR Act are made and
(iii) the waiting period under the HSR Act with respect to such proposed
exercise shall have expired or been subject to early termination. Upon receipt
by the Company of the HSR Filing Notice, the Company and the Holder (x) shall
cooperate, and shall use commercially reasonable efforts to cause their
respective ultimate parent entities (if any) to cooperate, in preparing the
filings required under the HSR Act in order to effect the proposed exercise of
the HSR Warrant Shares and (y) shall cooperate, and shall use commercially
reasonable efforts to cause their respective ultimate parent entities (if any)
to cooperate, in preparing all supplemental material that is required to
accompany such filings, and both parties shall coordinate, and shall use
commercially reasonable efforts to cause their respective ultimate parent
entities (if any) to coordinate, the making of such filings so that such
filings are made concurrently. The Company and the Holder shall perform their
respective obligations under this Section 2.1(b) with reasonable care and in
good faith. It is hereby understood that the provisions of this Section 2.1(b)
shall be applied with respect to any Warrant Shares more than once such that
any categorization of such Warrant Shares as HSR Warrant Shares shall not
preclude any later categorization of the same shares as Non-HSR Warrant Shares.
(c) Notwithstanding anything expressed or implied in this Warrant
(including, without limitation, Section 2.1(a) above) to the contrary, in no
event shall the Holder be entitled to exercise this Warrant at any time after
the termination of the Collaboration Agreement pursuant to Section 12.6
thereof. This Warrant shall terminate and be of no force or effect from and
after any such termination of the Collaboration Agreement, except for the
provisions of Section 9 hereof which shall survive the termination of this
Warrant.
2.2 EFFECTIVENESS OF EXERCISE; OWNERSHIP. Each exercise of this Warrant
by the Holder shall be deemed to have been effected immediately prior to the
close of business on the date upon which all of the requirements of Section 2.1
hereof with respect to such exercise shall have been complied with in full
(each such date, an "Exercise Date"). On the applicable Exercise Date with
respect to any exercise of this Warrant by the Holder, the Company shall be
deemed to have issued to the Holder, and the Holder shall be deemed to have
become the holder of record and legal owner of, the number of Warrant Shares
being purchased upon such exercise of this Warrant, notwithstanding that the
stock transfer books of the Company shall then be closed or that certificates
representing such number of Warrant Shares being purchased shall not then be
actually delivered to the Holder.
2.3 DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable
after the exercise of this Warrant, and in any event within thirty (30) days
thereafter, the Company, at its expense, will cause to be issued in the name of
and delivered to the Holder, a certificate or certificates for the number of
Warrant Shares purchased by the Holder on such exercise, plus, in lieu of any
fractional share to which the Holder would otherwise be entitled, cash equal to
such fraction multiplied by the Fair Market Value on the applicable Exercise
Date.
2.4 SHARES TO BE FULLY PAID AND NONASSESSABLE. All Warrant Shares issued
upon the exercise of this Warrant shall be validly issued, fully paid and
nonassessable, free of all liens, taxes, charges and other encumbrances or
restrictions on sale (other than those set forth herein) and free and clear of
all preemptive rights.
2.5 FRACTIONAL SHARES. No fractional shares of Stock or scrip
representing fractional shares of Stock shall be issued upon the exercise of
this Warrant. With respect to any fraction of a share of Stock called for upon
any exercise hereof, the Company shall make a cash payment to the Holder as set
forth in Section 2.3 hereof.
2.6 ISSUANCE OF NEW WARRANTS; COMPANY ACKNOWLEDGMENT. Upon any partial
exercise of this Warrant, the Company, at its expense, will forthwith issue and
deliver to the Holder a new warrant or warrants of like tenor, registered in
the name of the Holder, exercisable, in the aggregate, for the balance of the
Warrant Shares. Moreover, the Company shall, at the time of any exercise of
this Warrant, upon the request of the Holder, acknowledge in writing its
continuing obligation to afford to the Holder any rights to which the Holder
shall continue to be entitled after such exercise in accordance with the
provisions of this Warrant; provided, however, that if the Holder shall fail to
make any such request, such failure shall not affect the continuing obligation
of the Company to afford to the Holder any such rights.
2.7 PAYMENT OF TAXES AND EXPENSES; CLOSING OF BOOKS. Notwithstanding
anything to the contrary expressed or implied in this Warrant, the issuance of
certificates for Warrant Shares upon exercise hereof shall be made without
charge to the Holder for any issuance tax in respect thereof, provided that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder. Also notwithstanding anything to the contrary
expressed or implied in this Warrant, the Company will at no time close its
stock transfer books against the transfer of the Warrant Shares issued or
issuable upon the exercise of this Warrant in any manner which interferes with
the timely exercise of this Warrant.
2.8 EXPIRATION. Subject to the provisions of Section 2.1(c) hereof, this
Warrant and the Holder's rights hereunder, to the extent not previously
exercised, shall expire as of 5:00 P.M., Boston, Massachusetts time, on the
Expiration Date.
3. ADJUSTMENTS FOR STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. In the
event that, at any time and from time to time after the Initial Exercise Date,
the Company shall (a) issue additional shares of Common Stock as a dividend or
other distribution on outstanding shares of Common Stock, (b) subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock or (c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then, in each such event, (x) the Exercise
Price shall, simultaneously with the happening of such event, be adjusted by
multiplying the then current Exercise Price by a fraction, (i) the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event, and (ii) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Exercise Price then in effect, and
(y) the number of Warrant Shares shall be adjusted by increasing or decreasing,
as the case may be, the number of shares of Common Stock included within the
Warrant Shares by the percentage increase or decrease in the total number of
shares of Common Stock outstanding immediately after such event over the total
number of shares of Common Stock outstanding immediately prior to such event
and the result so obtained shall be the number of shares of Common Stock
included in the Warrant Shares then in effect. The Exercise Price and the
Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described in this Section 3.
4. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION OR MERGER.
4.1 REORGANIZATION, CONSOLIDATION OR MERGER. In case that, at any time or
from time to time after the Initial Exercise Date, the Company shall (a) effect
a reorganization, (b) consolidate with or merge into any other Person, or (c)
transfer all or substantially all of its properties or assets to any other
Person under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, the Holder, on the exercise of this Warrant
as provided in Section 2 hereof at any time or from time to time after the
consummation of such reorganization, consolidation or merger or (subject to the
limitations on exercise set forth in Section 4.2 below) the effective date of
such dissolution, as the case may be, shall receive, in lieu of the Warrant
Shares issuable on such exercise immediately prior to such consummation or such
effective date, as the case may be, the stock and other securities and property
(including cash) to which the Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if the
Holder had so exercised this Warrant immediately prior thereto, all subject to
successive adjustments thereafter from time to time pursuant to, and in
accordance with, the provisions of Section 3 hereof and this Section 4.
4.2 DISSOLUTION. In the event of any dissolution of the Company following
the transfer of all or substantially all of its properties or assets at any
time after the Initial Exercise Date, the Company shall retain for a period of
at least thirty (30) days after the effective date of such dissolution the
stock and other securities and property (including cash, where applicable)
(collectively, the "Property") receivable by the Holder pursuant to Section 4.1
hereof upon exercise of this Warrant at any time after the effective date of
such dissolution. If the Holder fails to exercise this Warrant within the
thirty (30) day period following the Holder's receipt of written notice of the
effective date of such dissolution, then such Property shall be distributed pro
rata to those Persons who were stockholders of record of the Company on the
effective date of such dissolution or as otherwise provided by the Company.
4.3 CONTINUATION OF TERMS. Upon any reorganization, consolidation, merger
or transfer (and any dissolution following any such transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable upon the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the effective
date of dissolution following any such transfer, as the case may be, and shall
be binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the Person acquiring all or substantially all of
the properties or assets of the Company, whether or not such Person shall have
expressly assumed the terms of this Warrant.
5. OFFICER'S CERTIFICATE AS TO ADJUSTMENTS. In each case of any
adjustment or readjustment in the number and kind of Warrant Shares issuable
hereunder from time to time, or the Exercise Price, the Company, at its
expense, will promptly cause an officer of the Company to compute such
adjustment or readjustment in accordance with the terms of this Warrant and
prepare a certificate setting forth such adjustment or readjustment and showing
the facts upon which such adjustment or readjustment is based. The Company will
forthwith mail a copy of each such certificate to the Holder.
6. NOTICES OF RECORD DATE. In the event of
(a) any taking by the Company of a record of the holders of Common Stock
for the purpose of determining the holders thereof who are entitled to receive
any shares of Common Stock as a dividend or other distribution or pursuant to a
stock split, or
(b) any reorganization of the Company or any transfer of all or
substantially all the assets of the Company to or consolidation or merger of
the Company into any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or stock split, and stating the
amount and character of such dividend, distribution or stock split, and (ii)
the date on which any such reorganization, transfer, consolidation, merger,
dissolution, liquidation or winding-up is to take place, and the time, if any
is to be fixed, as of which the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable on such reorganization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
ten (10) days prior to the date specified in such notice on which any such
action is to be taken.
7. EXCHANGE OF WARRANT. Subject to the provisions of Section 9 hereof (if
and to the extent applicable), this Warrant shall be exchangeable, upon the
surrender hereof by the Holder at the principal office of the Company, for new
warrants of like tenor, each registered in the name of the Holder. Each of such
new warrants shall be exercisable for such number of Warrant Shares as the
Holder shall direct, provided that all of such new warrants shall represent, in
the aggregate, the right to purchase the same number of Warrant Shares which
may be purchased by the Holder upon exercise of this Warrant at the time of its
surrender.
8. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. RESTRICTIONS ON TRANSFER; COMPLIANCE WITH SECURITIES ACT; MECHANICS OF
TRANSFER.
9.1. CONTRACTUAL RESTRICTIONS ON TRANSFER OF WARRANT. Notwithstanding
anything expressed or implied in this Warrant (including, without limitation,
Section 9.3 hereof) to the contrary, the Holder shall not sell, assign,
transfer, pledge, mortgage, hypothecate or otherwise convey, dispose of or
encumber all or any portion of the Warrant or any interest therein to any
Affiliate of the Holder or any Prohibited Transferee unless such Affiliate or
Prohibited Transferee, as the case may be, agrees in writing to be bound by all
of the terms and conditions of this Section 9 and Sections 6 and 7 of the
Securities Purchase Agreement to the same extent as the Holder has agreed to be
bound or unless the Company shall consent in writing to any such sale,
assignment, transfer, pledge, mortgage, hypothecation or other conveyance,
disposition or encumbrance. The restrictions on transfer set forth in this
Section 9.1 shall not apply to the sale (other than to an Affiliate of the
Purchaser) of all or any portion of the Warrant in the public market pursuant
to a "brokers' transaction" (as defined under subsection (g) of Rule 144.)
9.2. CONTRACTUAL RESTRICTIONS ON TRANSFER OF WARRANT Shares.
Notwithstanding anything expressed or implied in this Warrant (including,
without limitation, Section 9.3 hereof) to the contrary, the Holder shall not
sell, assign, transfer, pledge, mortgage, hypothecate or otherwise convey,
dispose of or encumber any of the Warrant Shares or any interest therein to any
Affiliate of the Holder or any Prohibited Transferee unless such Affiliate or
such Prohibited Transferee, as the case may be, agrees in writing to be bound
by all of the terms and conditions of this Section 9 and Sections 6 and 7 of
the Securities Purchase Agreement to the same extent as the Holder has agreed
to be bound or unless the Company shall consent in writing to any such sale,
assignment, transfer, pledge, mortgage, hypothecation or other conveyance,
disposition or encumbrance. The restrictions on transfer set forth in this
Section 9.2 shall not apply to (i) the sale of any Warrant Shares to any
Prohibited Transferee pursuant to an underwritten public offering registered
under the Securities Act, (ii) the sale (other than to an Affiliate of the
Holder) of any Warrant Shares in the public market pursuant to a "brokers'
transaction" (as defined under subsection (g) of Rule 144.) and (iii) any hedge
position established by the Holder.
9.3. SECURITIES LAWS RESTRICTIONS ON TRANSFER. Notwithstanding anything
expressed or implied in this Warrant (including, without limitation, Section
9.1 or Section 9.2 hereof) to the contrary, the Holder shall not offer, sell,
assign, transfer, pledge, mortgage, hypothecate or otherwise convey, dispose of
or encumber this Warrant, any of the Warrant Shares or any interest in this
Warrant or in any of the Warrant Shares, except (i) pursuant to an effective
registration statement under the Securities Act, (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws and, if requested by the Company, upon delivery by the Holder
of an opinion of counsel (satisfactory to the Company as to such counsel and as
to the substance of such opinion) to the effect that the proposed offer, sale,
assignment, transfer, pledge, mortgage, hypothecation or other conveyance,
disposition or encumbrance is exempt from registration under the Securities Act
and applicable state securities laws or (iii) pursuant to Rule 144.
9.4. EFFECT OF VIOLATION OF TRANSFER RESTRICTIONS; PREVENTIVE MEASURES.
Any offer, sale, assignment, transfer, endorsement, pledge, mortgage,
hypothecation, or other conveyance or disposition of all or any portion of this
Warrant, any Warrant Shares or of any interest in this Warrant or any of such
Warrant Shares, in violation of this Section 9 shall be null and void. The
Company may make a notation on its records or give instructions to any of its
transfer agents in order to implement the restrictions on transfer set forth in
this Section 9. The Company shall not incur any liability for any delay in
recognizing any transfer of this Warrant or any of the Warrant Shares if and
only for so long as the Company reasonably believes that any such transfer may
have been or would be in violation of the provisions of the Securities Act,
applicable blue sky laws or this Section 9.
9.5. LEGENDS.
(a) Each certificate representing any Warrant Shares issued upon
exercise of this Warrant shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED, MORTGAGED OR OTHERWISE CONVEYED, DISPOSED OF OR ENCUMBERED
UNLESS THEY ARE SO REGISTERED, UNLESS AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE AND, IF REQUESTED BY LEUKOSITE, AN OPINION OF COUNSEL
(SATISFACTORY TO LEUKOSITE AS TO SUCH COUNSEL AND AS TO THE SUBSTANCE OF
SUCH OPINION) IS DELIVERED TO LEUKOSITE TO THE EFFECT THAT SUCH
REGISTRATION IS NOT UNDER THE CIRCUMSTANCES REQUIRED OR UNLESS SUCH
SHARES ARE SOLD PURSUANT TO RULE 144 PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 7 OF
THAT CERTAIN SECURITIES PURCHASE AGREEMENT DATED DECEMBER 18, 1997 AND IN
SECTION 9 OF THAT CERTAIN WARRANT DATED DECEMBER 18, 1997, AND NO
TRANSFER OF SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT EFFECTED
IN COMPLIANCE WITH ALL OF SUCH RESTRICTIONS ON TRANSFER. COPIES OF SUCH
SECURITIES PURCHASE AGREEMENT AND WARRANT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF SUCH SHARES TO THE
SECRETARY OF LEUKOSITE, INC."
(b) Each certificate representing any shares of Common Stock issued
from time to time upon exercise of this Warrant shall also bear any legend
required under any applicable state securities or blue sky laws.
9.6. SURVIVAL. The obligations of the Holder (and/or of any transferee of
any Warrant Shares issued from time to time upon exercise of this Warrant)
under this Section 9 shall, with respect to any Warrant Shares issued from time
to time upon exercise of this Warrant, survive the exercise, expiration or
other termination, or transfer, of this Warrant indefinitely.
10. GENERAL.
10.1. STATEMENT ON WARRANT. Irrespective of any adjustments in the
Exercise Price or the number or kind of Warrant Shares, this Warrant may
continue to express the same kind of Warrant Shares as are stated on the front
page hereof.
10.2. AUTHORIZED SHARES; RESERVATION OF SHARES FOR ISSUANCE. At all times
while this Warrant is outstanding, the Company shall maintain its corporate
authority to issue, and shall have authorized and reserved for issuance upon
exercise of this Warrant, such number of shares of Common Stock as shall be
sufficient to perform its obligations under this Warrant (after giving effect
to any and all adjustments to the number and kind of Warrant Shares purchasable
upon exercise of this Warrant).
10.3. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issuance or sale of securities, sale or
other transfer of any of its assets or properties, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder hereunder
against impairment. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any shares of Stock receivable
upon the exercise of this Warrant above the amount payable therefor on such
exercise, and (b) will take all action that may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares of Stock on the exercise of this Warrant.
10.4. NO RIGHTS AS STOCKHOLDER. The Holder shall not be entitled to vote
or to receive dividends or to be deemed the holder of Stock that may at any
time be issuable upon exercise of this Warrant for any purpose whatsoever, nor
shall anything contained herein be construed to confer upon the Holder any of
the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issuance or reclassification of stock,
change of par value or change of stock to no par value, consolidation, merger
or conveyance or otherwise), or to receive notice of meetings (except to the
extent otherwise provided in this Warrant), or to receive dividends or
subscription rights, until the Holder shall have exercised the Warrant and been
issued Warrant Shares in accordance with the provisions hereof.
10.5. NOTICES. Any notice, demand, request or other communication under
this Warrant shall be deemed to be sufficient if contained in a written
instrument delivered in person or duly sent by overnight courier service or by
first class, registered or certified mail, postage prepaid, or telecopied with
a confirmation copy by regular, certified or overnight mail, addressed or
telecopied, as the case may be, to the Company or the Holder at the address or
telecopier number, as the case may be, set forth below or such other address or
telecopier number, as the case may be, as may hereafter be designated in
writing by the addressee to the addressor:
LeukoSite, Inc.
215 First Street
Cambridge, MA 02142
Attention:President (one copy)
Chief Financial Officer (another copy)
Telecopier: (617) 621-9349
and a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attention: Justin P. Morreale, Esq.
Telecopier: (617) 951-8736
Genentech, Inc.
1 DNA Way
South San Francisco, CA 94080
Attention: Corporate Secretary
Telecopier: 650-952-9881
All of such notices, requests and other communications shall be deemed to
have been received: (i) in the case of personal delivery, on the date of such
delivery; (ii) in the case of overnight courier service, the business day
following the date of receipt by the overnight courier; (iii) in the case of
first class, registered or certified mail, on the earlier of (A) receipt
thereof or (B) the fifth business day after deposit in the mail; and (iv) in
the case of facsimile transmission, when confirmed by facsimile machine report.
10.6. AMENDMENT AND WAIVER. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and the Holder.
10.7. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the internal and substantive laws of the State of Delaware and
without regard to any conflicts of laws concepts which would apply the
substantive law of some other jurisdiction.
10.8. COVENANTS TO BIND SUCCESSOR AND ASSIGNS. All covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company shall bind its successors and assigns, whether so expressed or
not.
10.9. SEVERABILITY. In case any one or more of the provisions contained
in this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
10.10. CONSTRUCTION. The definitions of this Warrant shall apply equally
to both the singular and the plural forms of the terms defined. Wherever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The section and paragraph headings used herein are
for convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
[Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its corporate name by one of its officers thereunto duly authorized, all as of
the day and year first above written.
LEUKOSITE, INC.
By:__________________________
Christopher K. Mirabelli,
President
FORM OF SUBSCRIPTION
(To be executed upon exercise of Warrant)
To: LEUKOSITE, INC.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the attached Warrant for, and to exercise thereunder,
_______ shares of [common stock, $0.01 par value per share ("Common
Stock")/DESCRIBE OTHER STOCK], of LeukoSite, Inc., a Delaware corporation, and
tenders herewith payment of $__________, representing the aggregate purchase
price for such shares based on the price per share provided for in such
Warrant. Such payment is being made in lawful money of the United States by
certified or bank cashier's check or wire transfer.
Please issue a certificate or certificates for such shares of [Common
Stock/other Stock] in the following name or names and denominations and deliver
such certificate or certificates to the person or persons listed below at their
respective addresses set forth below:
If said number of shares of [Common Stock/other Stock] shall not be all
the shares of [Common Stock/other Stock] issuable upon exercise of the attached
Warrant, a new Warrant is to be issued in the name of the undersigned for the
balance remaining of such shares of [Common Stock/other Stock] less any
fraction of a share of [Common Stock/other Stock] paid in cash.
Dated: ____________, 19__ ____________________________________
NOTE: The above signature should correspond
exactly with the name on the face of the
attached Warrant or with the name of the
assignee appearing in the assignment form below.