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Exhibit 10.2
FORM OF NOVEMBER
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 3rd day of November, 1995, between
T Cell Sciences, Inc. (the "Company"), a corporation organized under the laws
of the State of Delaware with its principal offices at 115 Fourth Avenue,
Needham, Massachusetts 02194, and the purchaser whose name and address is set
forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Stock
Purchase Agreement, the Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms
and conditions of this Stock Purchase Agreement, the Company has authorized the
sale of up to 2,500,000 shares of common stock, par value $.001 per share of
the Company (the "Common Stock"). The Company reserves the right to sell more
than 2,500,000 shares of Common Stock prior to the date of the filing of the
Registration Statement (as defined in Section 3). The shares of Common Stock,
and the Additional Shares (as defined in Section 7.2) are referred herein
collectively as the "Shares".
SECTION 2. Agreement to Sell and Purchase Shares.
(a) At the Closing Date (as defined in Section 3), the Company will
sell to the Purchaser, and the Purchaser will buy from the Company, upon the
terms and conditions hereinafter set forth, ________ shares of Common Stock at
the purchase price per Share (the "Stock Purchase Price") equal to $2.50, for
an aggregate stock purchase price of $__________ (the "Aggregate Stock Purchase
Price")
(b) The Company proposes to enter into a similar form of Stock
Purchase Agreement ("Other Stock Purchase Agreements") with certain other
investors (the "Other Purchasers"). The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Stock Purchase Agreement and the Other Stock Purchase Agreements are
hereinafter sometimes collectively referred to as the "Agreements." The
Company may enter into Other Stock Purchase Agreements with Other Purchasers
prior to the Closing Date which may differ from this Stock Purchase Agreement
with respect to pricing or other terms. If such material differences are
present in the Other Stock Purchase Agreements executed by Other Purchasers
prior to the Closing Date, the Company will notify the Purchaser by
distributing a supplemental Private Placement Memorandum disclosing such terms.
SECTION 3. Delivery of Shares on the Closing Date.
(a) The commitment for the purchase and sale of the
shares of Common Stock (the "Commitment Date") shall occur on approximately
November 3, 1995 at a time and place specified by the Company. On or prior to
the Commitment Date, the Purchaser shall have executed both the Stock Purchase
Agreement and the Registration Statement Questionnaire. The Commitment Date
shall be prior to the time that the registration statement to be filed by the
Company pursuant to Section 7.1 (the "Registration Statement") is declared
effective. The completion of the transaction contemplated hereby (the "Closing
Date") shall be when the
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following have occurred: (i) the Company has prepared and filed a Registration
Statement on Form S-3 within five (5) business days of the Commitment Date
relating to the Shares; (ii) the Purchaser has placed the Aggregate Stock
Purchase Price for the number of shares of Common Stock, as set forth in
Section 2 above, in a mutually agreeable escrow account (the "Escrow Account");
and (iii) the Company shall have delivered to the Escrow Account one or more
certificates for the shares of Common Stock to be issued to the Purchaser on
the Closing Date. On the Closing Date, there shall be released from the Escrow
Account to the Purchaser one or more certificates registered in the name of the
Purchaser representing the number of shares of Common Stock as provided in
Section 2 above, and all funds in the Escrow Account shall be released to the
Company, pursuant to the Company's instructions attached hereto as Exhibit 1.
Stock certificates evidencing the shares of Common Stock will be delivered to
each Purchaser on the Closing Date with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO (I) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT OR
(II) RULE 144 OR 144A UNDER SUCH ACT OR ANY OTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER SUCH ACT RELATING TO DISPOSITION OF SECURITIES."
The name(s) in which the stock certificates are to be registered are set forth
in the Stock Certificate Questionnaire attached hereto as part of Appendix I.
(b) The Company's obligation to complete the purchase and
sale of the shares of Common Stock and deliver such stock certificate(s) to the
Purchaser on the Closing Date shall be subject to the following conditions, any
one or more of which may be waived by the Company: (i) execution by the
Purchaser of a Stock Purchase Agreement (including the Stock Certificate
Questionnaire in Appendix I) and the Registration Statement Questionnaire, (ii)
delivery by the Purchaser of the Aggregate Stock Purchase Price for the number
of shares of Common Stock purchased as set forth in Section 2 above, to the
Escrow Account; (iii) release to the Company of such funds held in the Escrow
Account in the full amount of the Aggregate Stock Purchase Price for number of
shares of Common Stock set forth in Section 2; and (iv) the accuracy of the
representations and warranties made by the Purchasers and the fulfillment of
those undertakings of the Purchasers to be fulfilled prior to the Closing Date.
(c) The Purchaser's obligation to accept delivery of such
stock certificates(s) and to pay for the shares of Common Stock evidenced
thereby on the Closing Date shall be subject to the following conditions, any
of which may be waived by the Purchaser: (i) the preparation and filing by the
Company of the Registration Statement on Form S-3 as required by Section 7.1
hereto, (ii) the accuracy in all material respects as of the Closing Date of
the representations and warranties made by the Company herein as if made on the
Closing Date; (iii) the fulfillment in all material respects of those
undertakings of the Company to be fulfilled prior to the Closing Date; (iv)
release from the Escrow Account to the Purchaser, against receipt by the
Company of the Aggregate Stock Purchase Price simultaneously released from the
Escrow Account, of the certificates for the number of shares of Common Stock as
provided in Section 2; and (v) receipt by the Purchasers of an opinion of
counsel to the Company, dated as of the Closing Date and addressed to the
Purchaser, in substantially the form attached hereto as Exhibit 2. The
Purchaser's obligations hereunder are expressly not conditioned on the purchase
by any or all of
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the Other Purchasers of the shares of Common Stock that they have agreed to
purchase from the Company.
SECTION 4. Representations, Warranties and Covenants. The Company
hereby represents and warrants to, and covenants with, the Purchaser as
follows:
4.1 Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
conduct its business as currently conducted.
4.2 Authorized Capital Stock. As of October 18, 1995, the
authorized capital stock of the Company consisted of (a) 50,000,000 shares of
Common Stock, $.001 par value per share, of which 17,142,890 shares were
validly issued and outstanding, fully paid and non-assessable and with respect
to which warrants to purchase 211,816 shares were outstanding; (b) 1,163,102
shares of Class B Preferred Stock, $2.00 par value per share, of which no
shares were issued and outstanding; and (c) 3,000,000 shares of Class C
Preferred Stock, $.01 par value per share, of which no shares were issued and
outstanding. As of October 18, 1995, 8,446 shares of Common Stock were held in
the treasury of the Company. When issued and delivered to the Purchaser by the
Company against payment of the consideration set forth herein, the shares of
Common Stock and the Additional Shares (as defined herein), if any, will be
validly issued, fully paid and non-assessable.
There are no preemptive rights of any stockholder of the Company, as
such, to acquire the Shares. The Common Stock is authorized for trading on the
Nasdaq National Market and no suspension of trading in the Common Stock is in
effect.
4.3 Due Execution, Delivery and Performance of the Agreements.
The Company's execution, delivery and performance of the Agreements (a) have
been duly authorized under Delaware law by all requisite corporate action by
the Company, (b) will not violate any law or the Certificate of Incorporation
or By-laws of the Company or any provision of any material indenture, mortgage,
agreement, contract or other material instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their properties or assets is bound as of the date hereof, and (c)
will not result in a breach of or constitute (upon notice or lapse of time or
both) a default under any such indenture, mortgage, agreement, contract or
other material instrument or the creation or imposition of any lien, security
interest, mortgage, pledge, charge or other encumbrance, of any material nature
whatsoever upon any properties or assets of the Company or any of its
subsidiaries. Upon their execution and delivery, and assuming the valid
execution thereof by the respective Purchasers, the Agreements will constitute
valid and binding obligations of the Company, enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification and contribution agreements of the Company in
Section 7.5 hereof may be legally unenforceable.
4.4 Additional Information. The Company represents and warrants
that the information contained in the following documents, which the Company
has furnished to the Purchaser, taken as a whole, does not contain any untrue
statement of material fact or omit to state any material
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fact necessary in order to make the statements therein not misleading as of the
respective final dates of the documents.
(a) the Company's Annual Report to Stockholders on Form
10-K for the fiscal year ended December 31, 1994
(without exhibits);
(b) the Company's Quarterly Reports on Form 10-Q for the
three-month periods ended March 31, 1995 and June 30,
1995;
(c) Notice to Shareholders and Proxy Statement for its
Annual Meeting of Shareholders held May 18, 1995; and
(d) the Company's Current Reports on Form 8-K dated April
7, 1995 and May 18, 1995.
4.5 No Material Change. There has been no material adverse change
in the financial condition or business or results of operations of the Company
since June 30, 1995.
4.6 Approvals. No authorization, approval or consent of any
governmental body or the stockholders of the Company is required to be obtained
by the Company for the issuance and sale of the Shares as contemplated by this
Stock Purchase Agreement.
4.7 Absence of Litigation. Except as disclosed in the documents
referred to in Section 4.4, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of the Company or any of its subsidiaries, threatened against or
affecting the Company or any of its subsidiaries, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
properties, business, condition (financial or other), results of operations or
prospects of the Company and its subsidiaries taken as a whole or the
transaction contemplated by this Stock Purchase Agreement or any of the
documents contemplated hereby or which would adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under this Stock Purchase Agreement or any of such other documents.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser represents and warrants to, and
covenants with, the Company that: (i) the Purchaser, taking into account the
personnel and resources it can practically bring to bear on the purchase of the
shares of Common Stock contemplated hereby, is knowledgeable, sophisticated and
experienced in making, and is qualified to make decisions with respect to
investments in securities presenting an investment decision like that involved
in the purchase of shares of Common Stock, including investments in securities
issued by the Company and investments in development stage companies, and has
requested, received, reviewed and considered all information it deems relevant
in making an informed decision to purchase the shares of Common Stock; (ii) the
Purchaser is acquiring the Shares pursuant to this Stock Purchase Agreement in
the ordinary course of its business and for its own account for investment only
and with no present intention of distributing any of such Shares in violation
of the Securities Act of 1933, as amended (the "Securities Act") or in any
arrangement or understanding with any other persons regarding the distribution
of such Shares in violation of the Securities Act (this representation and
warranty not limiting the Purchaser's right to sell pursuant to the
Registration
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Statement or in a transaction not in violation of Section 5(a)(iii) hereof or,
other than with respect to any claims arising out of a breach of this
representation and warranty, the Purchaser's right to indemnification under
Section 7.5); (iii) the Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except in
compliance with the Securities Act and the rules and regulations promulgated
thereunder; (iv) the Purchaser has completed or caused to be completed the
Registration Statement Questionnaire and the Stock Certificate Questionnaire,
both attached hereto as Appendix I, for use in preparation of the Registration
Statement and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the effective date of the Registration
Statement; (v) the Purchaser has, in connection with its decision to purchase
the number of shares of Common Stock set forth in Section 2 above, relied
solely upon the representations and warranties of the Company contained herein;
(vi) the Purchaser is an "accredited investor" within the meaning of Rule 501
of Regulation D promulgated under the Securities Act; and (vii) that the
Purchaser will hold the Shares for a period of thirty (30) days following the
Closing Date.
(b) The Purchaser hereby covenants with the Company not
to make any sale of the Shares without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied or otherwise
complying with the Securities Act, and the Purchaser acknowledges and agrees
that the Shares are not transferable on the books of the Company unless the
certificate submitted to the transfer agent evidencing the Shares is
accompanied by (1) a separate certificate (i) in the form of Appendix II
hereto, (ii) executed by an officer of, or other authorized person designated
by, the Purchaser, and (iii) to the effect that (A) the Shares have been sold
in accordance with the Registration Statement and (B) the requirement of
delivering a current prospectus has been satisfied; or (2) an opinion of
counsel reasonably satisfactory to the Company stating that registration is not
required under the Securities Act. The Purchaser acknowledges that there may
occasionally be times when the Company must suspend the use of the prospectus
forming a part of the Registration Statement until such time as an amendment to
the Registration Statement has been filed by the Company and declared effective
by the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Securities Exchange Act of 1934, as
amended; provided, however, that such suspension shall not be for a period of
more than two (2) trading days at any time or more than ten (10) trading days
in any one (1) year period. The Purchaser hereby covenants that it will not
sell any Shares pursuant to said prospectus during the period commencing at the
time at which the Company gives the Purchaser written notice of the suspension
of the use of said prospectus and ending the earlier of two (2) trading days
after such notice or occurrence or the date on which the Company gives the
Purchaser written notice that the Purchaser may thereafter effect sales
pursuant to said prospectus.
(c) The Purchaser further represents and warrants to, and
covenants with, the Company that (i) the Purchaser has full right, power,
authority and capacity to enter into this Stock Purchase Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Stock
Purchase Agreement, and (ii) upon the execution and delivery hereof, this Stock
Purchase Agreement shall constitute a valid and binding obligation of the
Purchaser enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' and contracting parties' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such
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enforceability is considered in a proceeding in equity or at law) and except as
the indemnification and contribution agreements of the Purchaser in Section 7.5
hereof may be legally unenforceable.
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Stock Purchase
Agreement, all covenants, agreements, representations and warranties made by
the Company and the Purchaser herein and in the certificates for the shares of
Common Stock delivered pursuant hereto shall survive the execution of this
Stock Purchase Agreement, the delivery to the Purchaser of the shares of Common
Stock being purchased and the payment therefor.
SECTION 7. Registration of the Shares; Compliance with the Securities
Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) prepare and file with the Commission within five (5)
business days of the Commitment Date a Registration
Statement on Form S-3 (the "Registration Statement")
to enable the sale of the Shares by the Purchaser
from time to time through the automated quotation
system of the Nasdaq National Market System or in
privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary
information from the Purchaser, to cause the
Registration Statement to become effective as soon as
possible after filing thereof;
(c) promptly prepare and file with the Commission such
amendments and supplements to the Registration
Statement and the prospectus used in connection
therewith as may be necessary to keep the
Registration Statement effective for a period not
exceeding the third anniversary of the Closing Date
as is required for the intended method of
distribution, or such shorter period which will
terminate when all the Shares covered by such
Registration Statement have been sold pursuant to
such Registration Statement or withdrawn;
(d) promptly furnish to the Purchaser with respect to the
Shares registered under the Registration Statement
(and to each underwriter, if any, of such Shares)
such number of copies of the Registration Statement
and any amendment thereof and of prospectuses and
preliminary prospectuses in conformity with the
requirements of the Securities Act and such other
documents as the Purchaser may reasonably request, in
order to keep the Purchaser apprised of the progress
of the registration process and to facilitate the
public sale or other disposition of all or any of the
Shares by the Purchaser;
(e) promptly file documents required of the Company for
normal blue sky clearance in states specified in
writing by the Purchaser and reasonably required by
the Purchaser in order to resell its Shares,
provided, however, that the Company shall not be
required to qualify to do business or consent to
service of process in any jurisdiction in which it is
not now so qualified or has not so consented;
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(f) promptly inform the Purchaser when any stop order by
the Commission has been issued with respect to the
Purchaser's Shares and use its best efforts to
promptly cause such stop order to be withdrawn; and
(g) bear all expenses in connection with the procedures
in paragraphs (a) through (f) of this Section 7.1 and
the registration of the Shares pursuant to the
Registration Statement, other than fees and expenses,
if any, of counsel or other advisors to the
Purchaser.
A questionnaire related to the Registration Statement to be completed
by the Purchaser is attached hereto as part of Appendix I.
7.2 Penalty for Delay of Registration Statement's Effective Date.
In the event the Registration Statement has not become effective by January 1,
1996, for each thirty (30) day period during which the Shares remain
unregistered, the Company shall issue to the Purchaser within three (3) trading
days of the end of each such 30-day period, additional shares of Common Stock
equal to 3% of the total number of shares purchased by such Purchaser (the
"Additional Shares") or a cash payment equal to the average high and low sales
prices of the Common Stock on the Nasdaq National Market on the last trading
day in such 30-day period multiplied by the number of Additional Shares
issuable; provided, however, that in no event will the number of Shares issued
pursuant to the Agreements in the aggregate exceed 19.9% of the total number of
shares of Common Stock outstanding on the Closing Date (the "Maximum
Percentage"), and if such number of Shares to be issued pursuant to the
Agreements in the aggregate does exceed the Maximum Percentage, the Company
shall pay the Purchaser a cash payment equal to the average high and low sales
prices of the Common Stock on the Nasdaq National Market on the last trading
day in such 30-day period multiplied by the number of Additional Shares which
would have resulted in exceeding the Maximum Percentage.
7.3 Exchange of Legended Certificates. Following the effective
date of the Registration Statement, unless at such time a stop order is imposed
by the Commission or the effectiveness of the Registration Statement is for any
other reason suspended as permitted by Section 5(b) herein, all requirements
with respect to legends on the certificates evidencing the Shares will cease to
apply on the sale thereof, and certificated Shares without legends will be
available to the Purchaser within three (3) trading days after the Company's
receipt of a request for such unlegended certificates and Purchaser's surrender
of the legend certificate to the Company's transfer agent.
7.4 Transfer of Shares. The Purchaser agrees that it will not
effect any disposition of the Shares or its right to purchase the Shares that
would constitute a sale within the meaning of the Securities Act except as
contemplated in the Registration Statement referred to in Section 7.1 or
pursuant to an exemption from registration under the Securities Act. The
Purchaser agrees that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Purchaser or
its Plan of Distribution.
7.5 Indemnification and Contribution. For the purpose of this
Section 7.5:
(a) the term "Selling Shareholder" shall include the
Purchaser, its officers, directors, trustees, any
affiliate of such Purchaser and each person, if any,
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who controls the Selling Shareholder within the
meaning of the Securities Act;
(b) the term "Registration Statement" shall include any
final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement
referred to in Section 7.1;
(c) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any
omission or alleged omission to state in the
Registration Statement a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to
which such Selling Shareholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of any failure by the Company to fulfill
any undertaking included in the Registration Statement and the Company will
reimburse such Selling Shareholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, provided, however, that the Company shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, any such untrue statement or
omission made in such Registration Statement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Selling Shareholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Shareholder to comply with the
covenants and agreements contained in Sections 5(b) or 7.4 hereof respecting
sale of the Shares or any statement or omission in any Prospectus that is
corrected in any subsequent Prospectus that was delivered to the Purchaser
prior to the pertinent sale or sales by the Purchaser.
The Purchaser agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses,
claims, damages or liabilities to which the Company (or any such officer,
director or controlling person) may become subject (under the Securities Act or
otherwise), insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon, any failure
to comply with the covenants and agreements contained in Sections 5(b) or 7.4
hereof respecting sale of the Shares, or any untrue statement of a material
fact contained in the Registration Statement on the effective date thereof if
such untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Purchaser specifically for use in
preparation of the Registration Statement, provided, however, that such
Purchaser shall not be liable in any such case to the extent that the Purchaser
has furnished in writing to the Company information expressly for use in such
Registration Statement or any amendment thereof or supplement thereto which
corrected or made not misleading, information previously furnished to the
Company prior to the filing of the Registration Statement, and if thereafter,
has notified the Company of such information
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immediately upon its occurrence or the Purchaser's knowledge of its occurrence.
The Purchaser will reimburse the Company (or such officer, director or
controlling person), as the case may be, for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim. In no event shall the liability of the Purchaser
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder upon the sale of the Shares giving rise to such indemnification
obligation.
Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.5, such
indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall be entitled to
participate therein, and, to the extent it shall wish, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified person.
After notice from the indemnifying person to such indemnified person of its
election to assume the defense thereof, such indemnifying person shall not be
liable to such indemnified person for any legal expenses subsequently incurred
by such indemnified person in connection with the defense thereof, provided,
however, that if there exists or shall exist a conflict of interest that would
make it inappropriate, in the opinion of counsel to the indemnified person, for
the same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall be
entitled to retain its own counsel at the expense of such indemnifying person;
provided, however, that no indemnifying person shall be responsible for the
fees and expenses of more than one separate counsel for all indemnified
parties.
If the indemnification provided for in this Section 7.5 from the
indemnifying person is unavailable to an indemnified person hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying person, in lieu of indemnifying such indemnified
person, shall contribute to the amount paid or payable by such indemnified
person as a result of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying person and indemnified persons in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of
such indemnifying person and indemnified persons shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact, has been made by, or
relates to information supplied by, such indemnifying person or indemnified
persons, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in this Section 7.5, any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7.5, no Purchaser
shall be required to contribute any amount in excess of the dollar amount of
the proceeds received by such Purchaser upon the sale of the Shares giving rise
to such contribution obligation. No person guilty of
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fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
7.6 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of
the Shares shall cease and terminate as to any particular number of the Shares
when such Shares shall have been effectively registered under the Securities
Act and sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Shares or at
such time as an opinion of counsel satisfactory to the Company shall have been
rendered to the effect that such conditions are not reasonably necessary in
order to comply with the Securities Act.
7.7 Information Available. So long as the Registration Statement
is effective covering the resale of Shares owned by the Purchaser, the Company
will furnish to the Purchaser:
(a) as soon as practicable after available (but in the
case of the Company's Annual Report to Shareholders,
within one hundred twenty (120) days after the end of
each fiscal year of the Company), one copy of (i) its
Annual Report to Shareholders (which Annual Report
shall contain financial statements audited in
accordance with generally accepted accounting
principles by a national firm of certified public
accountants), (ii) if not included in substance in
the Annual Report to Shareholders, its Annual Report
on Form 10-K, (iii) its Quarterly Reports to
Shareholders, (iv) if not included in substance in
its Quarterly Reports to Shareholders, its quarterly
reports on Form 10-Q, and (v) a full copy of the
particular Registration Statement covering the Shares
(the foregoing, in each case, excluding exhibits);
(b) upon the reasonable request of the Purchaser, all
exhibits excluded by the parenthetical to
subparagraph (a)(v) of this Section 7.7 and all other
information that is made available to shareholders;
and
(c) upon the reasonable request of the Purchaser, an
adequate number of copies of the prospectuses to
supply to any other party requiring such
prospectuses;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss all information relevant for disclosure in the Registration Statement
covering the Shares and will otherwise cooperate with any Purchaser conducting
an investigation for the purpose of reducing or eliminating such Purchaser's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters.
SECTION 8. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so mailed and shall be
delivered as addressed as follows:
11
(a) if to the Company, to:
T Cell Sciences, Inc.
115 Fourth Avenue
Needham, Massachusetts 02194
Attn: Pamela A. Hay, Esq.
(b) with a copy mailed to:
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109
Attn: Stuart M. Cable, Esq.
or to such other person at such other place as the
Company shall designate to the Purchaser in writing;
and
(c) if to the Purchaser, at its address as set forth at the
end of this Stock Purchase Agreement, or at such other
address or addresses as may have been furnished to the
Company in writing.
SECTION 9. Changes. This Stock Purchase Agreement may not be modified
or amended except pursuant to an instrument in writing signed by the Company
and the Purchaser.
SECTION 10. Headings. The headings of the various sections of this
Stock Purchase Agreement have been inserted for convenience of reference only
and shall not be deemed to be part of this Stock Purchase Agreement.
SECTION 11. Severability. In case any provision contained in this
Stock Purchase Agreement should 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.
SECTION 12. Governing Law. This Stock Purchase Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts and the federal law of the United States of America.
SECTION 13. Counterparts. This Stock Purchase Agreement may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties.
12
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
T CELL SCIENCES, INC.
By:_____________________________________
Print or Type: Alan W. Tuck, President and
Chief Executive Officer
PURCHASER.:
________________________________________
Name of Individual representing
Purchaser (if an Institution):
________________________________________
Title of Individual representing
Purchaser (if an Institution):
________________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser:
________________________________________
Address:________________________________
Telephone:______________________________
Fax:____________________________________
13
APPENDIX I
(one of two)
T CELL SCIENCES, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Stock Purchase Agreement, please provide
us with the following information:
1. The exact name that your Shares are
to be registered in (this is the name
that will appear on your stock
certificate(s)). You may use a
nominee name if appropriate: _____________
2. The relationship between the Purchaser
of the Shares and the Registered Holder
listed in response to item 1 above: _____________
3. The mailing address of the Registered
Holder listed in response to item 1 above: _____________
_____________
_____________
_____________
4. The Social Security Number or Tax
Identification Number of the Registered
Holder listed in response to item 1 above: _____________
5. The address, telephone and fax number of
your escrow agent, and the name of a
contact person: _____________
A-1
14
APPENDIX I
(two of two)
T CELL SCIENCES, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the
Registration Statement, please state your or your organization's name exactly
as it should appear in the Registration Statement:
2. Please provide the following information, as of _____________
1995:
(1) (2)
Number of Shares Number of shares
which are being if any, which will
included in the be owned after
Registration completion of sale
Statement (if all of Shares included
purchased, put all) in the Registration
Statement
3. Have you or your organization had any position, office or other
material relationship within the past three (3) years with the Company or its
affiliates other than as disclosed in the Prospectus included in the
Registration Statement?
______ Yes ______ No
If yes, please indicate the nature of any such relationship below:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
A-2
15
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
THE UNDERSIGNED, [an officer of, or other person duly authorized by]
_________________________ [fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on
______________ [date] in accordance with registration statement number
______________ [fill in the number of or otherwise identify registration
statement] and the requirement of delivering a current prospectus and current
annual and quarterly reports by the Company has been complied with in
connection with such sale.
Print or Type:
Name of Purchaser
(Individual or
Institution) _____________________________
Name of Individual
representing
Purchaser (if an
Institution): _____________________________
Title of Individual
representing
Purchaser (if an
Institution): ____________________________
Signature by:
Individual Purchaser or
Individual representing
Purchaser: ____________________________
A-3
16
Exhibit 1
WIRE INSTRUCTIONS
Mellon Bank Pittsburgh
ABA: 043000261
Account #: 1011730
Account name: Merrill Lynch
For further credit: T Cell Sciences, Inc.
Sub account #: 64M-07P26
17
EXHIBIT 2
______________, 1995
PURCHASER
Purchaser:
This opinion is furnished to you pursuant to Section ___ of that certain
Stock Purchase Agreement (the "Stock Purchase Agreements") dated as of
____________, 1995 by and between the purchasers (the "Purchaser") named therein
and T Cell Sciences, Inc. (the "Company"), relating to the offering and sale to
the Purchaser, subject to the terms and conditions set forth in the Stock
Purchase Agreement, of an aggregate of up to ______ shares of the Common Stock,
par value $.001 per share, of the Company (the "shares of Common Stock").
We have acted as counsel for the Company in connection with the
offering and sale of the shares of Common Stock. In such capacity, we have
examined the Private Placement Memorandum dated September 20, 1995, as amended
October 27, 1995 (the "Private Placement Memorandum"); signed copies of the
Registration Statement of the Company on Form S-3 (Registration No. 33-______)
and all exhibits thereto (the "Registration Statement"), as filed with the
Securities and Exchange Commission (the "Commission") on ____________, 1995
pursuant to the Securities Act of 1933, as amended (the "Securities Act"); the
Prospectus dated ____________, 1995 (the "Prospectus"); and signed copies of
the Stock Purchase Agreement.
We also have examined originals or copies of the following with respect
to the Company:
(a) the Company's Certificate of Incorporation (the "Certificate of
Incorporation"), certified by the Secretary of State of the State of
Delaware as of a recent date;
(b) the Company's By-Laws, as amended, certified by the Secretary of
the Company as in effect as of the date hereof;
(c) a certificate of the Secretary of State of the State of
Delaware, dated as of a recent date, certifying as to the Company's
legal existence and good standing;
(d) such records of the Company's corporate proceedings as we have
deemed relevant;
(e) a certificate of certain officers of the Company concerning the
outstanding capital stock of the Company and the payment therefor and
other matters; and
18
(f) a certificate of the Company's transfer agent concerning the
outstanding capital stock of the Company.
We have also examined and relied upon such other contracts, documents,
certificates and records as we deemed necessary for the purpose of this
opinion, including those delivered today at the closing of the sale of the
shares of Common Stock. In such examination, we have assumed the genuineness
of all signatures, the capacity, power and authority of all parties other than
the Company to execute and deliver all applicable documents, the authenticity
of all documents submitted to us as originals, the conformity to originals of
all documents submitted to us as certified or attested copies or photocopies
and the authenticity of the originals of such latter documents.
We express no opinion herein as to the accuracy, completeness,
fairness or compliance as to form of the statements contained in the Private
Placement Memorandum or the Stock Purchase Agreement. We are not passing in any
way on any financial statements or data, including the schedules or the notes
thereto, or any related statistics or computations referred to in the Private
Placement Memorandum, the Registration Statement or the Prospectus, and we
have not reviewed the financial records or books of account of the Company.
Whenever our opinion is indicated to be based on "the best of our
knowledge" or contains a similar qualification, it should be understood that
during the course of our representation of the Company we have not undertaken
any independent investigation to determine the existence or absence of facts.
The words "the best of our knowledge" and similar language used in certain of
the opinions expressed below are limited to the knowledge of the lawyers
within our firm who have had primary responsibility for the legal services
performed for the Company.
We are members of the Bar of the Commonwealth of Massachusetts, and we
express no opinion herein with respect to any law other than the laws of the
Commonwealth of Massachusetts and the United States of America and the
corporate laws of the State of Delaware as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in corporate good standing under the laws of the State of Delaware, with
full corporate power and authority to conduct its business as currently
conducted.
2. As of October 18, 1995, the authorized capital stock of the
Company consisted of (a) 50,000,000 shares of Common Stock, $.001 par value per
share, of which 17,142,890 shares were validly issued and outstanding, fully
paid and non-assessable and with respect to which warrants to purchase 211,816
shares were outstanding; (b) 1,163,102 shares of Class B Preferred Stock,
$2.00 par value per share, of which no shares were issued and outstanding; and
(c) 3,000,000 shares of Class C Preferred Stock, $.01 par value per share, of
which no shares were issued and outstanding. As of October 18, 1995, 8,446
shares of Common Stock were held in the treasury of the Company. The authorized
shares of the Company's Common
19
Stock have been duly authorized; the outstanding shares of its Common Stock
have been duly authorized and validly issued and are fully paid and
nonassessable; the shares of Common Stock to be sold by the Company pursuant to
the Stock Purchase Agreement have been duly authorized and will be validly
issued, fully paid and nonassessable when issued and paid for as contemplated
by the Stock Purchase Agreement; and no preemptive rights arising under the
Company's Certificate of Incorporation, and to the best of our knowledge, no
preemptive rights, registration rights, rights of first refusal or other
similar rights of stockholders arising under any agreement or instrument to
which the Company is a party or by which the Company may be bound, exist with
respect to any of the shares or the issue and sale thereof, other than those
that have been complied with or expressly waived prior to the date hereof by
the holders thereof.
3. All corporate action on the part of the Company, its directors and
shareholders necessary for the authorization, execution, delivery and
performance by the Company of the Stock Purchase Agreements, the consummation
by the Company of the transactions contemplated therein and the authorization
and issuance of the shares of Common Stock has been taken. The Stock Purchase
Agreement and the other documents to be delivered by the Company thereunder
constitute the valid and binding obligations of the Company, enforceable
against it in accordance with their terms, except (i) as such enforceability
may be limited by any principles of public policy with respect to enforcement
of any indemnification provisions contained therein or by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
generally the enforcement of creditors' rights, and (ii) to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought.
4. The execution, delivery and performance by the Company of the Stock
Purchase Agreements and the issuance of the shares of Common Stock will not (i)
result in any violation of or be in conflict with or constitute a default (or
an event which, with the lapse of time, or the giving of notice, or both will
constitute a default) under any term of the Company's Certificate of
Incorporation or By-Laws, or (ii) to the best of our knowledge, result in any
violation of or be in conflict with or constitute a default (or an event which,
with the lapse of time or the giving of notice, or both, will constitute a
default) under any term of any existing material mortgage, indenture, contract,
agreement, instrument, law, regulation, judgment, decree or order applicable to
the Company or to which the Company is subject, or (iii) to the best of our
knowledge, result in the creation of any mortgage, pledge, lien, encumbrance or
charge upon any of the properties or assets of the Company.
5. Assuming the accuracy of the representations and warranties made by
the Purchaser in the Stock Purchase Agreement, the Private Placement
Memorandum, the exhibits and appendices thereto (except for the financial
statements and schedules and statistical data, including the schedules and
notes to the financial statements included therein, as to which no statement is
made) comply as to form in all material respects with the requirements of
Regulation D promulgated by the Commission pursuant to the Securities Act, and
no registration under the Securities Act is required in connection with the
issuance and sale of the shares of Common Stock in accordance with the
exemption from registration provided under Regulation D.
20
6. No authorization, approval or consent of any governmental body,
regulatory agency, self-regulatory body or the stockholders of the Company is
required to be obtained by the Company for the issuance and sale of the Shares
as contemplated by the Stock Purchase Agreement; and
7. Except as disclosed in the documents referred to in Section 4.4
of the Stock Purchase Agreement, there is no action, suit, proceeding, inquiry
or investigation before or by any court, public board or body pending or, to
the best of our knowledge, threatened against or affecting the Company or any
of its subsidiaries, wherein an unfavorable decision, ruling or finding would
have a material adverse effect on the properties, business, condition
(financial or other), results of operations or prospects of the Company and its
subsidiaries taken as a whole or the transactions contemplated by the Stock
Purchase Agreement or any of the documents contemplated thereby or which would
adversely affect the validity or enforceability of, or the authority or ability
of the Company to perform its obligations under, the Stock Purchase Agreement
or any of such other documents.
Prior to ____________, 1995, we participated in conferences with
officers and other representatives of the Company at which the contents of the
Private Placement Memorandum, and related matters were discussed. There can be
no assurance that all possible material facts as to the Company were disclosed
in such conferences. We have not undertaken to verify independently the
statements made in the documents and conferences referred to above and
therefore are not passing upon or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the Private Placement
Memorandum but we hereby confirm to you, on the basis of the foregoing, that no
facts have come to our attention which lead us to believe that the Private
Placement Memorandum and the exhibits thereto (except for the financial
statements and schedules and statistical data, including the schedules and
notes to the financial statements included therein, as to which no statement is
made), as of its date and as of the date hereof, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
This opinion is rendered to you and is solely for your benefit in your capacity
as placement agent for the shares of Common Stock, and may not be relied upon
by you for any other purpose, or furnished to, quoted to or relied upon by any
other person for any purpose without our prior written consent.
Very truly yours,
GOODWIN, PROCTER & HOAR