Exhibit 10.52
XOMA Corporation
2910 Seventh Street
Berkeley, California 94710
November 30, 1995
[Name and Address
of Purchaser]
Gentlemen:
Reference is made to the Offshore Securities
Subscription Agreement (the "Subscription Agreement"), dated as
of the date hereof, by and between you and XOMA Corporation
(the "Company"). In connection with the consummation of the
transactions contemplated by the Subscription Agreement and in
order to induce you to enter into the Subscription Agreement,
the Company hereby agrees with you as follows:
1. Capitalized terms used herein but not otherwise
defined are used with the meanings given to such terms in the
Subscription Agreement.
2. This letter agreement supplements and, in
certain instances, amends and supersedes the provisions of the
Subscription Agreement. In the event of any inconsistencies
between the provisions of the Subscription Agreement and this
letter agreement, the provisions of this letter agreement shall
control.
3. Notwithstanding the provisions of Sections 1(b),
4(a) and 6 of the Subscription Agreement, the delivery by
Purchaser of the purchase price for Purchaser's Debentures will
not be required to be made to the Escrow Agent until after the
Company has executed the Subscription Agreement and this letter
agreement.
4. Notwithstanding any other provisions of the
Subscription Agreement to the contrary, the maximum principal
amount of Debentures shall not exceed $6,500,000.
5. The 40-day restricted period referred to in the
Subscription Agreement will commence on the date hereof (which
shall be the Closing Date) and will expire on January 9, 1996
(which shall be 40 days after the Closing Date).
6. In addition to the Company's representations and
warranties set forth in Section 3 of the Subscription
Agreement, the Company hereby represents and warrants to
Purchaser as follows:
(a) The Company is a corporation, duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and is duly qualified as a
foreign corporation in all jurisdictions where the failure to
be so qualified would have a materially adverse effect on its
business, taken as a whole.
(b) Except as disclosed in the SEC Filings, there is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or, to the knowledge of the Company, threatened, against or
affecting the Company, or any of its properties, which would
have a material adverse effect on the condition (financial or
otherwise) or on the earnings, or business affairs of the
Company, or which might materially and adversely affect the
properties or assets thereof taken as a whole.
(c) The Company is not in default in the performance
or observance of any material obligation, agreement, covenant
or condition contained in any material indenture, mortgage,
deed of trust or other material instrument or agreement to
which it is a party or by which it or its property may be
bound; and neither the execution, nor the delivery by the
Company of, nor the performance by the Company of its
obligations under, the Subscription Agreement, this letter
agreement or the Purchaser's Debentures will conflict with or
result in the breach or violation of any of the terms or
provisions of, or constitute a default or result in the
creation or imposition of any lien or charge on any assets or
properties of the Company under any material indenture,
mortgage, deed of trust or other material agreement or
instrument to which the Company is a party or by which it is
bound or the Certificate of Incorporation or Bylaws of the
Company, or (assuming that the representations and warranties
of the Purchaser in Section 2 of the Subscription Agreement and
of the distributor to the Company are true and correct) any
U.S. statute or decree, judgment, order, rule or regulation of
any U.S. court or U.S.
-2-
governmental agency or body having jurisdiction over the Company
or its properties, the conflict of, breach, violation or default
of or under which would have a material adverse effect on the
Company's business or financial condition.
(d) None of the Company's filings with the
Securities and Exchange Commission since January 1, 1995
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading. The
Company has since January 1, 1995 timely filed all requisite
forms, reports and exhibits thereto with the Securities and
Exchange Commission.
7. For so long as any Purchaser's Debentures held
by the Purchaser remain outstanding, the Company covenants and
agrees with the Purchaser that:
(a) It will reserve from its authorized but unissued
shares of Common Stock a sufficient number of shares of Common
Stock to permit the conversion in full of the outstanding
Purchaser's Debentures, subject only to the limitation
described in Section 5 of the Debenture certificate.
(b) It will maintain the listing of its Common Stock
on the NASDAQ National Market System or a national securities
exchange, unless de-listed as a result of a merger,
consolidation or similar business combination involving the
Company and a company, whether publicly owned or privately
held, whose principal lines of business include the
development, manufacture, marketing or sale of products or
services in the health care industry and whose annual revenues
for its most recently completed fiscal year exceeded
$100 million (or the equivalent in foreign currency) or any
subsidiary or other affiliate of such a company.
(c) It will cause to be issued to the Purchaser upon
conversion of Purchaser's Debentures in accordance with the
provisions of the Subscription Agreement and the Debentures
unlegended certificates representing the shares of Common Stock
issuable upon such conversion and the Company will cause such
shares to be so issued without stop transfer instructions.
(d) The Company will use its commercially reasonable
efforts to cause its transfer agent to transmit the
certificates representing shares of Common Stock issuable upon
conversion of any Purchaser's Debentures (together with the
-3-
certificates representing the Purchaser's Debentures not so
converted) to the Purchaser via express courier within three
business days after the date the Company has received the
original Notice of Conversion and Purchaser's Debentures
certificate being so converted.
8. Registration. The Company agrees that (A) upon
demand by the Purchaser as a result of a statutory change or a
regulatory development by the U.S. Securities and Exchange
Commission (including, but not limited to, an amendment or
proposed amendment of Regulation S) which provides a reasonable
basis for concluding that the ability of the Purchaser to sell
the shares of Common Stock issuable upon conversion of the
Purchaser's Debentures (the "Underlying Shares") without
registration under the 1933 Act has been materially impaired or
(B) if upon conversion of Purchaser's Debentures effected by
the Purchaser pursuant to the terms of the Subscription
Agreement and the terms of the Purchaser's Debentures the
Company fails to issue certificates for the Underlying Shares
to the Purchaser bearing no restrictive legend in violation of
the terms of the Subscription Agreement and the Purchaser's
Debentures, then the Company shall be required, at the request
of the Purchaser and at the Company's expense, to effect the
registration of the Underlying Shares issuable upon conversion
of the Purchaser's Debentures under the Securities Act of 1933,
as amended (the "Act"), and relevant Blue Sky laws as promptly
as is reasonably practicable. The Company and the Purchaser
shall cooperate in good faith in connection with the furnishing
of information required for such registration and the taking of
such other actions as may be legally or commercially necessary
in order to effect such registration. The Company shall file a
registration statement within 30 days of Purchaser's demand
therefor and shall use its commercially reasonable efforts to
cause such registration statement to become effective as soon
as reasonably practicable thereafter and in any event within
120 days of the date of the initial filing thereof. Such
efforts shall include, but not be limited to, responding to all
comments received from the staff of the Securities and Exchange
Commission, providing Purchaser's counsel with a
contemporaneous copy of all written communications from and to
the staff of the Securities and Exchange Commission with
respect to such registration statement and promptly preparing
and filing amendments to such registration statement which are
responsive to the comments received from the staff of the
Securities and Exchange Commission. Once declared effective by
the Securities and Exchange Commission, the Company shall cause
such registration statement to remain effective until the
earlier of (i) the sale
-4-
by the Purchaser of all Underlying Shares registered or (ii)
120 days after the effective date of such registration statement.
In the event that the Company has not effected the registration
of the Underlying Shares issuable upon the conversion of the
Purchaser's Debentures under the Act and relevant Blue Sky Laws
within 150 days after the date of the Purchaser's demand therefor,
the Company shall pay to the Purchaser by wire transfer, as
liquidated damages for such failure and not as a penalty, an
amount in cash equal to $12,500, which amount shall be reduced
pro rata based on the relationship between either (x) the number
of Underlying Shares still held by the Purchaser at the time such
payment becomes due to which clause (A) above applies and the
aggregate number of Underlying Shares which would have been
issuable
to Purchaser if Purchaser had converted the entire aggregate
principal amount of Debentures originally purchased by the
Purchaser on the initial date on which Purchaser first
exercised its conversion rights with respect to such Debentures
or (y) the amount of Debentures still held by the Purchaser at
the time such payment becomes due which the Company has failed
to convert as described in clause (B) above and the aggregate
principal amount of Debentures originally purchased by the
Purchaser, as the case may be. Such payment shall be made to
Purchaser immediately upon expiration of the 150-day period
referenced in the preceding sentence if the registration of the
Underlying Shares is not effected by such date; provided,
however, that the payment of such liquidated damages shall not
relieve the Company from its obligations to register the
Underlying Shares pursuant to this provision.
9. The Company agrees that it will not, for a
period of 100 days following the Closing Date, incur any Senior
Debt during such period unless the Purchaser's Debentures will
rank pari passu in right of payment with such indebtedness for
such period or the Purchaser consents to such incurrence.
10. In addition to the provisions of Section 4(c) of
the Subscription Agreement, each party hereto hereby agrees to
indemnify, defend and hold the other party harmless from and
against any and all loss, liability, damage or expense
(including, but not limited to, reasonable attorneys' fees)
incurred or suffered by the other party as a result of a breach
of any representation, warranty, covenant or agreement made by
the breaching party to the other party as set forth in the
Subscription Agreement, the Debenture or this letter agreement
except to the extent such loss, liability, damage or expense
results from the gross negligence, willful misconduct or bad
-5-
faith of the party seeking indemnification. In order for a
party (the "indemnified party") to be entitled to any
indemnification provided for hereunder in respect of, arising
out of or involving a claim or demand made by any person, firm,
governmental authority or corporation against the indemnified
party (a "Third Party Claim"), such indemnified party must
notify the indemnifying party in writing, and in reasonable
detail, of the Third Party Claim as promptly as reasonably
possible after receipt by such indemnified party of notice of
the Third Party Claim; provided, however, that failure to give
such notification on a timely basis shall not affect the
indemnification provided hereunder except to the extent the
indemnifying party shall have been actually prejudiced as a
result of such failure. If a Third Party Claim is made against
an indemnified party, the indemnifying party shall be entitled
to participate in the defense thereof and to assume the defense
thereof with counsel selected by the indemnifying party and
reasonably satisfactory to the indemnified party and shall pay
the reasonable fees and expenses of such counsel related
thereto. Should the indemnifying party elect to assume the
defense of a Third Party Claim, the indemnifying party shall
not be liable to the indemnified party for legal fees and
expenses subsequently incurred by the indemnified party in
connection with the defense thereof. If the indemnifying party
assumes such defense, the indemnified party shall have the
right to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed
by the indemnifying party, it being understood, however, that
the indemnifying party shall control such defense. Subject to
the third preceding sentence, the indemnifying party shall be
liable for the reasonable fees and expenses of counsel employed
by the indemnified party for any period during which the
indemnifying party has not assumed the defense thereof. If the
indemnifying party chooses to defend any Third Party Claim, the
parties hereto shall cooperate in the defense or prosecution of
such Third Party Claim. Whether or not the indemnifying party
shall have assumed the defense of a Third Party Claim, the
indemnified party shall not admit any liability with respect
to, or settle, compromise or discharge, such Third Party Claim
without the indemnifying party's prior written consent (which
consent shall not be unreasonably withheld).
11. For purposes of Section 10 of the Subscription
Agreement and Section 4 of the Debenture, the Notice of
Conversion may be delivered to the Company by fax to the
following number: (510) 649-7571.
-6-
12. This letter agreement and the rights and
obligations of the parties hereunder shall be governed by,
interpreted and construed in accordance with the laws of the
State of New York applicable to contracts made and to be
performed entirely within such State.
13. This letter agreement may be executed in one or
more counterparts, each of which shall be an original but all
of which shall collectively constitute a single instrument.
Very truly yours,
XOMA CORPORATION
By: ______________________________
Name: John L. Castello
Title: Chairman of the Board,
President and Chief
Executive Officer
ACCEPTED AND AGREED:
[PURCHASER]
By: _________________________
Name:
Title:
-7-