Exhibit 2
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT, dated as of July 21, 1999 (this "Agreement"),
by and among XOMA LTD., a Bermuda company (the "Company"), with an office
located at 2910 Seventh Street, Berkeley, California 94710, and the buyers
listed on Schedule A hereto (each a "Buyer" and collectively the "Buyers").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of this Agreement,
the Buyers wish to purchase Common Shares (such capitalized term and all other
capitalized terms used in this Agreement having the respective meanings provided
in Section 1) and the Company wishes to sell Common Shares to the Buyers as
provided in this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the terms "Agreement," "Buyers" and
"Company" shall have the respective meanings assigned to such terms in the
introductory paragraph of this Agreement; provided, however, that, when
referring to a time or period before January 1, 1999, or when the context so
requires, the term "Company" shall refer to Xoma Corporation, a Delaware
corporation and the predecessor of XOMA Ltd.
(b) All the agreements or instruments herein defined shall mean such
agreements or instruments as the same may from time to time be supplemented or
amended or the terms thereof waived or modified to the extent permitted by, and
in accordance with, the terms thereof and of this Agreement.
(c) The following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Action" means an action, suit, proceeding, inquiry or investigation before
or by any court, public board or body, arbitrator or governmental agency.
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the subject Person; for purposes
of this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Closing Date" means the date and time of the issuance and sale of the
Shares.
"Common Shares" means the Common Shares, U.S. $.0005 par value, together
with the related Preference Share Purchase Rights.
"Permitted Transferee" means any Person (1) who is an "accredited investor"
as defined in Regulation D under the Securities Act ("Regulation D") and who is
designated a non-resident of Bermuda for Bermuda Exchange Control purposes, (2)
who is to be assigned rights under this Agreement and the Registration Rights
Agreement and (3) who is either (A) an Affiliate of the beneficial owner of the
Shares to be transferred or (B) a Person as to whom the Company shall have
consented to such transfer and assignment, such consent not to be unreasonably
withheld (it being understood that a proposed assignment by a Buyer to a
competitor or potential competitor of the Company or a Person which the Company
determines in good faith is accumulating or is likely to accumulate ownership of
Common Shares for hostile or unfriendly purposes may constitute a basis for
withholding such consent).
"Person" means an individual, partnership, corporation, limited liability
company, trust, incorporated organization, unincorporated association or joint
stock company.
"Preference Share Purchase Rights" means the Preference Share Purchase
Rights issued or issuable pursuant to the Amended and Restated Shareholder
Rights Agreement, dated as of October 27, 1993 and amended and restated as of
December 31, 1998, by and between the Company and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent.
"Purchase Price" means $5.75 per share.
"Registration Rights Agreement" means the Registration Rights Agreement to
be entered into between the Company and the Buyers in the form attached hereto
as Annex I.
"SEC Reports" means (1) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 (the "1998 10-K"), (2) the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1999, (3)
the Company's definitive proxy statement for its special meeting of stockholders
dated November 30, 1998, (4) the
-2-
Company's Current Reports on Form 8-K dated January 6, 1999, January 29, 1999
(as amended by Amendment No. 1 thereto on Form 8-K/A), and July 1, 1999 and (5)
the Company's definitive proxy statement for its 1999 Annual Meeting of
Shareholders, in each case as filed with the Securities and Exchange Commission
("SEC").
"Shares" means 3,024,086 Common Shares.
"Trading Day" means a day on whichever of (w) the national securities
exchange, (x) the Nasdaq National Market, (y) the Nasdaq SmallCap Market or (z)
such other securities market, which at the time constitutes the principal
securities market for the Common Shares, is open for general trading of
securities; provided, however, that if there shall be no principal securities
market for the Common Shares, "Trading Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in The City of New York are
authorized or required by law or executive order to remain closed.
2. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE.
(a) Subscription. In consideration of the representations, warranties,
covenants and agreements contained in this Agreement, each of the Buyers hereby
agrees to purchase from the Company the number of Shares set forth opposite such
Buyer's name on Schedule A hereto, and the Company hereby agrees to issue and
sell to each of the Buyers the number of Shares set forth opposite such Buyer's
name on Schedule A hereto at the Purchase Price per share, upon the terms and
conditions of this Agreement.
(b) Form of Payment. On the Closing Date, each of the Buyers shall pay an
amount equal to the Purchase Price multiplied by the number of Shares set forth
opposite such Buyer's name on Schedule A hereto by delivering immediately
available funds in United States Dollars to the Company in exchange for delivery
by the Company of a certificate for the number of Shares set forth opposite such
Buyer's name on Schedule A hereto, issued in the name of such Buyer.
(c) Method of Payment. Payment for the Shares shall be made by wire
transfer of funds to:
Wells Fargo Bank, NA
ABA #: 121000248
WFB Acct#: 4296-914674
Payable To: XOMA Ltd.
-3-
3. BUYERS' REPRESENTATIONS, WARRANTIES, ETC.
Each of the Buyers represents, warrants and covenants to the Company,
severally and not jointly, as follows:
(a) Purchase for Investment. Such Buyer is purchasing the Shares for its
own account for investment only and not with a view towards the public sale or
distribution thereof;
(b) Accredited Investor. Such Buyer is an "accredited investor" as that
term is defined in Rule 501 of the General Rules and Regulations under the
Securities Act of 1933 (the "1933 Act") by reason of Rule 501(a);
(c) Reoffers and Resales. All subsequent offers and sales of the Shares by
such Buyer shall be made pursuant to registration of the Shares under the 1933
Act or pursuant to an exemption from registration;
(d) Company Reliance. Such Buyer understands that the Shares are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and each Buyer's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of each Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of such Buyer to acquire the
Shares;
(e) Information Provided. Such Buyer and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Shares which
have been requested by such Buyer; such Buyer and its advisors, if any, have
been afforded the opportunity to ask questions of the Company and have received
satisfactory answers to any such inquiries; without limiting the generality of
the foregoing, such Buyer has had the opportunity to obtain and to review the
SEC Reports; and such Buyer understands that its investment in the Shares
involves a high degree of risk;
(f) Absence of Approvals. Such Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Shares;
(g) Subscription Agreement. Such Buyer has all requisite power and
authority, corporate or otherwise, to execute, deliver and perform its
obligations under this Agreement and the other agreements executed or to be
executed by such Buyer in connec-
-4-
tion herewith and to consummate the transactions contemplated hereby and
thereby; this Agreement has been duly and validly authorized, executed and
delivered on behalf of such Buyer and is a valid and binding agreement of such
Buyer enforceable in accordance with its terms, subject as to enforceability to
general principles of equity and to bankruptcy, insolvency, moratorium and other
similar laws affecting the enforcement of creditors' rights generally;
(h) Approvals. If such Buyer's principal executive offices are located
outside the United States, the purchase of the Shares by such Buyer pursuant to
this Agreement does not require any governmental or regulatory approval, consent
or filing on the part of such Buyer or, to the knowledge of such Buyer, on the
part of the Company, under the securities or similar laws of the jurisdiction in
which such Buyer's principal executive offices are located; and
(i) Absence of Brokers, Finders, Etc. No broker, finder or similar Person
is entitled to any commission, fee or other compensation by reason of the
transactions contemplated by this Agreement other than Sutro & Co. Incorporated
and Arnhold and S. Bleichroeder, Inc. (together the "Placement Agents"), and any
such Buyer who enters into such arrangement with such Person shall pay, and
indemnify and hold harmless the Company from, any claim made against the Company
by any other Persons not referred to in such disclosure for any such commission,
fee or other compensation which is ultimately determined by a final
nonappealable decision of a court of competent jurisdiction to be the obligation
of such Buyer and not of the Company.
4. COMPANY REPRESENTATIONS, WARRANTIES, ETC.
The Company represents, warrants and covenants to each Buyer that:
(a) Organization and Authority. The Company is a company duly organized and
validly existing under the laws of Bermuda, and has all requisite power and
authority to (i) own, lease and operate its properties and to carry on its
business as described in the SEC Reports, and (ii) to execute, deliver and
perform its obligations under this Agreement, the Registration Rights Agreement
and the other agreements to be executed and delivered by the Company in
connection herewith, and to consummate the transactions contemplated hereby and
thereby. The Company is duly qualified to do business as a foreign corporation
and is in good standing in all jurisdictions wherein such qualification is
necessary and where failure so to qualify could reasonably be expected to have a
material adverse effect on the business, properties, operations, condition
(financial or other) or results of operations of the Company. The Company has no
subsidiaries or equity investment in any Person other than XOMA Limited, a
United Kingdom company, XOMA (US) LLC,
-5-
a Delaware limited liability company, XOMA (Bermuda) Ltd., a Bermuda company,
XOMA Technology Ltd., a Bermuda company and XOMA Ireland Limited, an Irish
company, all of which are wholly-owned by the Company.
(b) Capitalization. The authorized capital stock of the Company consists of
(a) 70,000,000 Common Shares of which 51,746,426 Common Shares were outstanding
on July 19, 1999, all of which are fully paid and nonassessable; and (b)
1,000,000 preference shares, U.S. $.05 par value, of which as of July 19, 1999
(i) 650,000 shares are designated Series A Preference Shares, none of which are
outstanding, and (ii) 7,500 shares are designated Series B Preference Shares,
none of which are outstanding. On the Closing Date (x) there will be no material
increase from July 19, 1999 in the number of Common Shares outstanding and (y)
no issuances of preference shares will have occurred since July 19, 1999. As of
July 20, 1999, the Company had outstanding options, warrants and similar rights
entitling the holders to purchase 5,987,965 Common Shares. On the Closing Date,
the Company will issue warrants to issue 150,000 Common Shares to the Placement
Agents. Other than as set forth in the preceding two sentences, the Company does
not have outstanding any securities (or obligations to issue any such
securities) convertible into, exchangeable for or otherwise entitling the
holders thereof to acquire Common Shares, except as disclosed in the SEC
Reports. The Company has duly reserved from its authorized and unissued Common
Shares the full number of shares required for (a) all options, warrants,
convertible securities and other rights to acquire Common Shares which are
outstanding and (b) all Common Shares and options and other rights to acquire
Common Shares which may be issued or granted under the stock option and similar
plans which have been adopted by the Company. No holder of any of the Company's
securities has any rights, "demand," "piggy-back" or otherwise, to have such
securities registered by reason of the intention to file, filing or
effectiveness of the Registration Statement.
(c) Concerning the Shares and the Common Shares. The Shares have been duly
authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and non-assessable. There are no
preemptive or similar rights of any shareholder of the Company or any other
Person to acquire any of the Shares. The Company has duly reserved a sufficient
number of Common Shares for issuance of the Shares, and such shares shall remain
so reserved. The Common Shares are listed for trading on the Nasdaq National
Market.
(d) Subscription Agreement; Registration Rights Agreement. This Agreement,
the Registration Rights Agreement and the other agreements and instruments
contemplated hereby and thereby have been duly and validly authorized by the
Company, this Agreement has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery hereof and thereof by the
Buyers, this Agreement is,
-6-
and the Registration Rights Agreement and such other agreements, when executed
and delivered by the Company, will be, valid and binding obligations of the
Company enforceable against it in accordance with their respective terms,
subject as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and except that rights to indemnity and contribution
may be limited by public policy.
(e) Non-contravention. The execution and delivery by the Company of this
Agreement and the other documents contemplated by this Agreement and the
consummation by the Company of the issuance of the Shares as contemplated by
this Agreement, and the other transactions contemplated by this Agreement and
the Registration Rights Agreement do not and will not, with or without the
giving of notice or the lapse of time, or both (i) result in any violation of
any terms of the Memorandum of Continuance or Bye-Laws of the Company, (ii)
conflict with or result in a breach by the Company of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company pursuant to, any indenture, mortgage, deed
of trust or other material agreement or instrument to which the Company is a
party or by which the Company or any of its properties or assets is bound or
affected, or (iii) (assuming the representations and warranties of the Buyers in
Section 3 hereof and the Placement Agents in their representation letters dated
the date hereof are true and accurate) violate or contravene any applicable law,
rule or regulation or any applicable decree, judgment or order of any court,
federal, state or other regulatory body, administrative agency or other
governmental body of the United States or Bermuda having jurisdiction over the
Company or any of its properties or assets, which conflict, breach, violation or
default could reasonably be expected to have a material adverse effect on the
validity or enforceability of this Agreement, the Registration Rights Agreement
or the issuance of the Shares or the transactions contemplated by this
Agreement.
(f) Approvals. Assuming the representations and warranties of the Buyers in
Section 3 hereof and of the Placement Agents in their representation letters
dated the date hereof are true and accurate, no authorization, approval or
consent of, or filing with, any court, governmental body or regulatory agency is
required to be obtained or made by the Company for (1) the execution, delivery
and performance by the Company of this Agreement, the Registration Rights
Agreement and the other agreements and instruments contemplated hereby and
thereby and (2) the issuance and sale of the Shares as contemplated by this
Agreement, other than (w) the listing of the Shares on the Nasdaq National
Market, (x) registration of the resale of the Shares under the 1933 Act as
contemplated by the Registration Rights Agreement, (y) as may be required under
applicable state securities
-7-
or "blue sky" laws and (z) filing of one or more Forms D with respect to the
Shares as required under Regulation D.
(g) Information Provided. The written information provided by or on behalf
of the Company to the Buyers in connection with the transactions contemplated by
this Agreement, including, without limitation, the written information referred
to in Section 3(e) of this Agreement, does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are made,
not misleading, it being understood that, for purposes of this Section 4(g), any
statement contained in such information shall be deemed to be modified or
superseded for purposes of this Section 4(g) to the extent that a statement in
any document included in such information which was prepared or filed with the
SEC on a later date modifies or replaces such statement, whether or not such
later prepared or filed statement so states. The Company has not filed any
reports with the SEC under the Securities Exchange Act of 1934 (the "1934 Act")
since December 31, 1998 other than the SEC Reports.
(h) Absence of Certain Changes. Except as disclosed in the SEC Reports,
since December 31, 1998, there has been no material adverse change in the
business, properties, operations, condition (financial or other) or results of
operations of the Company. Except as and to the extent disclosed, reflected or
reserved against in the financial statements of the Company and the notes
thereto included in the SEC Reports, to the knowledge of the Company, the
Company has no material liabilities, debts or obligations, whether accrued,
absolute, contingent or otherwise. Subsequent to December 31, 1998, to the
knowledge of the Company, the Company has not incurred any liabilities, debts or
obligations of any nature whatsoever which are individually or in the aggregate
material to the Company, other than those incurred in the ordinary course of its
business or disclosed in the SEC Reports.
(i) Absence of Certain Proceedings. Except as described in the SEC Reports
and except for applications and proceedings relating to regulatory approval of
new drugs or the granting of patents, there is no Action pending or, to the
knowledge of the Company, threatened against the Company, in any such case
wherein an unfavorable decision, ruling or finding would have a material adverse
effect on the business, properties, condition (financial or other) or results of
operations of the Company or the transactions contemplated by this 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 Agreement or any of such other documents.
-8-
(j) SEC Filings. The Company has timely filed all required forms, reports
and other documents required to be filed with the SEC under the 1934 Act since
January 1, 1998. All of such forms, reports and other documents complied as to
form, when filed, in all material respects, with all applicable requirements of
the 1934 Act.
(k) Absence of Brokers, Finders, Etc. No broker, finder or similar Person
is entitled to any commission, fee or other compensation by reason of the
transactions contemplated by this Agreement other than the Placement Agents, and
the Company shall pay, and indemnify and hold harmless the Buyers from, any
claim made against the Buyers by the entity or entities referred to in such
disclosure and any other Person for any such commission, fee or other
compensation.
(l) No Solicitation. No form of general solicitation or general advertising
was used by the Company or, to its knowledge, any other Person acting on behalf
of the Company, in respect of or in connection with the offer and sale of the
Shares. Neither the Company nor, to its knowledge, any Person acting on behalf
of the Company has, either directly or indirectly, sold or offered for sale to
any Person any of the Shares, and neither the Company nor any person authorized
to act on its behalf will sell or offer for sale any Common Shares or solicit
any offers to buy any Common Shares, so as thereby to cause the issuance or sale
of any of the Shares to be in violation of Section 5 of the 1933 Act.
5. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
(a) Transfer Restrictions. The Company and the Buyers acknowledge and agree
that (1) except as provided in the Registration Rights Agreement with respect to
the resale of the Shares, the Shares have not been and are not being registered
for resale under the 1933 Act, and the Shares may not be transferred unless (A)
subsequently registered for resale thereunder or (B) (i) transferred to a
Permitted Transferee and (ii) the Buyer desiring such transfer shall have
delivered to the Company an opinion, reasonably satisfactory in form, scope and
substance to the Company, of counsel reasonably satisfactory to the Company
(which shall include, but not be limited to, counsel who represented the Buyers
or the Placement Agents in connection with the negotiation and execution of this
Agreement) to the effect that the Shares to be sold or transferred may be sold
or transferred pursuant to an exemption from such registration; (2) any resale
of the Shares made in reliance on Rule 144 promulgated under the 1933 Act may be
made only in accordance with the terms of Rule 144 and further, if Rule 144 is
not applicable, any such resale of Shares under circumstances in which the
seller, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the 1933 Act, may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC
thereunder; and (3) neither the Company nor any other Person is under any
obligation to
-9-
register the Shares (other than registration of the resale of the Shares
pursuant to the Registration Rights Agreement) under the 1933 Act or to comply
with the terms and conditions of any exemption thereunder (other than pursuant
to Section 5(d) hereof and pursuant to the Registration Rights Agreement).
(b) Restrictive Legend.
(1) The Buyers acknowledge and agree that until such time as the Shares
have been registered for resale under the 1933 Act as contemplated by the
Registration Rights Agreement, the certificates for the Shares may bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for the Shares):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
acquired for investment and may not be resold, transferred or assigned
in the absence of an effective registration statement for the
securities under the Securities Act of 1933, as amended, or an opinion
of counsel that registration is not required under said Act.
(2) Once the Registration Statement required to be filed by the Company
pursuant to Section 2 of the Registration Rights Agreement has been declared
effective, thereafter (i) upon request of a Buyer the Company will promptly (but
in no event later than three Trading Days after receipt of such Buyer's legended
certificates by the Company) substitute certificates without restrictive legend
for certificates for any Shares issued prior to the date such Registration
Statement is declared effective by the SEC which bear such restrictive legend
and remove any stop-transfer restriction relating thereto and (ii) the Company
shall not place any restrictive legend on certificates for any Shares issued or
impose any stop-transfer restriction thereon.
(c) Form D. The Company agrees to file a Form D with respect to the Shares
as required under Regulation D and to provide a copy thereof to each Buyer
promptly after such filing. Each Buyer agrees to cooperate with the Company in
connection with such filing and, upon request of the Company, to provide all
information relating to such Buyer reasonably required for such filing.
(d) Authorization for Trading. Within five days after the Closing Date, the
Company shall file a notification for listing of additional shares with the
Nasdaq National Market relating to the Shares and shall provide evidence of such
filing to the Buyer.
-10-
(e) Use of Proceeds. The proceeds of sale of the Shares will be used for
general working capital purposes and in the operation of the Company's business.
(f) Blue Sky Laws. On or before the Closing Date, the Company shall take
such action as and to the extent it shall be necessary or required to qualify,
or to obtain an exemption for, the Shares for sale to each Buyer pursuant to
this Agreement under such of the securities or "blue sky" laws of jurisdictions
as shall be applicable to the sale of the Shares pursuant to this Agreement. The
Company shall furnish copies of all filings, applications, orders and grants or
confirmations of exemptions relating to such securities or "blue sky" laws on or
prior to the Closing Date.
(g) Expenses. Each of the parties hereto shall pay all of their own costs
and expenses, including any and all legal and accounting fees, incident to the
negotiation, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby whether or not such transactions shall be
consummated.
6. CLOSING DATE
Subject to the satisfaction or waiver of the conditions set forth in
Sections 7 and 8, the Closing Date shall be 12:00 noon, New York City time, on
July 21, 1999, or such other mutually agreed day and time. The closing of the
sale of the Shares shall occur on the Closing Date at the offices of Cahill
Gordon & Reindel, 80 Pine Street, New York, New York 10005.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL AND ISSUE
Each Buyer understands that the Company's obligation to sell the Shares to
the each Buyer pursuant to this Agreement on the Closing Date is conditioned
upon the satisfaction of the following conditions precedent on or before the
Closing Date (any or all of which may be waived by the Company in its sole
discretion):
(a) The receipt and acceptance by the Company of this Agreement and the
Registration Rights Agreement in the form attached hereto as Annex I as
evidenced by execution of this Agreement and the Registration Rights Agreement
by the Company and delivery of executed counterparts of this Agreement and the
Registration Rights Agreement to each Buyer or its legal counsel;
(b) The accuracy on the Closing Date of the representations and warranties
of each Buyer contained in this Agreement as if made on the Closing Date and the
per-
-11-
formance by each Buyer on or before the Closing Date of all covenants and
agreements of each Buyer required to be performed on or before the Closing Date;
and
(c) On the Closing Date, no legal action, suit or proceeding shall be
pending or threatened which seeks to restrain or prohibit the transactions
contemplated by this Agreement.
8. CONDITIONS TO THE BUYERS' OBLIGATIONS TO PURCHASE
The Company understands that each Buyer's obligation to purchase the Shares
from the Company pursuant to this Agreement on the Closing Date is conditioned
upon the satisfaction of the following conditions precedent on or before the
Closing Date (any or all of which may be waived by such Buyer in its sole
discretion):
(a) The receipt and acceptance by each of the Buyers of this Agreement and
the Registration Rights Agreement in the form attached hereto as Annex I as
evidenced by execution of this Agreement and the Registration Rights Agreement
by the Buyers and delivery of executed counterparts of this Agreement and the
Registration Rights Agreement to the Company or its legal counsel;
(b) The accuracy on the Closing Date of the representations and warranties
of the Company contained in this Agreement as if made on the Closing Date and
the performance by the Company on or before the Closing Date of all covenants
and agreements of the Company required to be performed on or before the Closing
Date and receipt by such Buyer of a certificate, dated the Closing Date, of the
Chief Executive Officer or the Chief Financial Officer of the Company confirming
such matters;
(c) The receipt by such Buyer of a certificate, dated the Closing Date, of
the Secretary of the Company certifying (1) the Memorandum of Continuance and
Bye-Laws of the Company as in effect on the Closing Date, and (2) all
resolutions of the Board of Directors (and committees thereof) of the Company
relating to this Agreement and the transactions contemplated hereby;
(d) Receipt by such Buyer on the Closing Date of (i) an opinion of Cahill
Gordon & Reindel, counsel for the Company, dated the Closing Date, to the effect
set forth in Annex II attached hereto, (ii) an opinion of Christopher J.
Margolin, Esq., the General Counsel of the Company, dated the Closing Date, to
the effect set forth in Annex III attached hereto, (iii) an opinion of Conyers
Dill & Pearman, Bermuda counsel to the Company, dated the Closing Date, to the
effect set forth in Annex IV attached hereto and (iv) an
-12-
opinion of Bryan Cave LLP, Arizona counsel to the Company, dated the Closing
Date, to the effect set forth in Annex V attached hereto; and
(e) On the Closing Date, no legal action, suit or proceeding shall be
pending or threatened which seeks to restrain or prohibit the transactions
contemplated by this Agreement.
9. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California.
(b) Counterparts. This Agreement may be executed in counterparts and by the
parties hereto on separate counterparts, all of which together shall constitute
one and the same instrument. A facsimile transmission of this Agreement bearing
a signature on behalf of a party hereto shall be legal and binding on such
party.
(c) Headings, etc. The headings, captions and footers of this Agreement are
for convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
(e) Amendments. No amendment, modification, waiver, discharge or
termination of any provision of this Agreement nor consent to any departure by
the Buyers or the Company therefrom shall in any event be effective unless the
same shall be in writing and signed by the party to be charged with enforcement,
and then shall be effective only in the specific instance and for the purpose
for which given.
(f) Waivers. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, or any course of dealings between the parties, shall not operate as a
waiver thereof or an amendment hereof.
(g) Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be delivered personally (which shall include telephone
line facsimile transmission with answer back confirmation) or by courier and
shall be effective upon receipt, if delivered personally or by courier, in the
case of the Company addressed to
-13-
the Company at its address shown in the introductory paragraph of this
Agreement, Attention: Legal Department (telephone line facsimile transmission
number (510) 649-7571), with a copy to Cahill Gordon & Reindel, 80 Pine Street,
New York, New York 10005, Attn: Geoffrey E. Liebmann, Esq. (telephone line
facsimile transmission number: (212) 269-5420) or, in the case of each of the
Buyers, at its address or telephone line facsimile transmission number shown on
the signature pages to this Agreement or such other address or telephone line
facsimile transmission number as a party shall have provided by notice to the
other party in accordance with this provision.
(h) Assignment. Prior to the Closing Date, none of the parties may assign
its rights and obligations under this Agreement. Any transfer of the Shares by
the Buyers after the Closing Date shall be made in accordance with Section 5(a).
After the Closing Date, each Buyer shall have the right to assign its rights and
obligations under this Agreement to Permitted Transferees in connection with any
transfer of such Buyer's rights under the Registration Rights Agreement in
compliance with the provisions of Section 7(e) of the Registration Rights
Agreement by notice of such assignment to the Company.
(i) Survival of Representations and Warranties. The respective
representations, warranties, covenants and agreements of the Buyers and the
Company contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall survive the delivery of payment
for the Shares and shall remain in full force and effect regardless of any
investigation made by or on behalf of them or any Person controlling or advising
any of them.
(j) Entire Agreement. This Agreement and its Schedules and Annexes set
forth the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings,
whether written or oral, with respect thereto.
(k) Further Assurances. Each party to this Agreement will perform any and
all acts and execute any and all documents as may be necessary and proper under
the circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its provisions.
(l) Public Statements, Press Releases, Etc. The Company and the Buyers
shall have the right to approve before issuance any press releases or any other
public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior
approval of the Buyers, to make any press release or other public disclosure
with respect to such transactions as is required by applicable law and
regulations (although the Buyers shall be consulted by the Company in connection
-14-
with any such press release or other public disclosure prior to its release and
shall be provided with a copy thereof).
-15-
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the
Buyers and the Company by their respective officers or other representatives
thereunto duly authorized as of the date first set forth above.
XOMA LTD.
By:
--------------------------------------
Name: Peter B. Davis
Title: Vice President, Finance and
Chief Financial Officer
Date:
---------------------------------------
By:
---------------------------------------
Name:
Title:
Date:
---------------------------------------
-16-