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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2) *
CERUS CORPORATION
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON SHARES, $0.001 PAR VALUE PER SHARE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
157085 10 1
- --------------------------------------------------------------------------------
(CUSIP Number)
Jan Stern Reed
BAXTER INTERNATIONAL INC.
One Baxter Parkway
Deerfield, Illinois 60015
847.948.2212
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 20, 1999
-------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[_].
NOTE: Schedules filed in paper format should include a signed original and five
(5) copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
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CUSIP No. 157085 10 1
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1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above
Persons (entities only)
BAXTER INTERNATIONAL INC.
I.R.S. Identification Number: 36-0781620
BAXTER HEALTHCARE CORPORATION
I.R.S. Identification Number: 36-2604143
________________________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [_]
(b) [_]
________________________________________________________________________________
3) SEC Use Only
________________________________________________________________________________
4) Source of Funds (See Instructions)
WC
________________________________________________________________________________
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
________________________________________________________________________________
6) Citizenship or Place of Organization
DELAWARE
________________________________________________________________________________
(7) Sole Voting Power
-0-
----------------------------------------------------------
Number of Shares
Beneficially Owned (8) Shared Voting Power
by Each Reporting 1,680,337
Person With
-----------------------------------------------------------
(9) Sole Dispositive Power
-0-
-----------------------------------------------------------
(10) Shared Dispositive Power
1,680,337
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,680,337
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [_]
________________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11)
14.3%
________________________________________________________________________________
(14) Type of Reporting Person (See Instructions)
CO
________________________________________________________________________________
Page 2 of 5 Pages
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This Amendment No. 2 to Schedule 13D (the "Amendment") relates to the holdings
of Baxter Healthcare Corporation, a Delaware corporation ("Purchaser"), of
1,680,337 shares (the "Shares") of common stock, $0.001 par value per share
("Common Stock"), of Cerus Corporation, a Delaware corporation (the "Company").
The Amendment amends and supplements the previously filed Schedule 13D, as
amended, as follows:
ITEM 4. PURPOSE OF TRANSACTION.
The following is hereby added to the end of Item 4:
Purchaser and the Company are parties to a Development, Manufacturing and
Marketing Agreement effective as of April 1, 1996 and amended and restated
effective as of June 30, 1998, (the "Red Cell Agreement"), which provides among
other things that Purchaser may be required to purchase shares of Common Stock
of the Company from time to time upon the occurence of certain events specified
therein. The last such milestone occurred in March 1999, and resulted in an
obligation of Purchaser to purchase 62,912 shares of Common Stock of the Company
on April 1, 1999, at a price of $31.79 per share.
On December 20, 1999, Purchaser and the Company entered into a new agreement
wherein Purchaser agreed to purchase 390,000 shares of Common Stock at $25.00
per share, subject to certain closing conditions.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Except as set forth herein, neither Purchaser, Parent, nor, to the best of the
knowledge of Purchaser and Parent, any director or executive officer of
Purchaser or Parent beneficially owns any other shares of Common Stock of the
Company.
(a) Purchaser and Parent beneficially own an aggregate of 1,680,337
shares of Common Stock, which constitute approximately 14.3% of the
total number of presently outstanding shares of Common Stock.
(b) Purchaser and Parent share the power to vote and dispose of the
Shares.
(c) As described in Item 4 above, Purchaser and Parent have entered into
an agreement to acquire 390,000 shares of Common Stock at $25.00 per
share, subject to certain closing conditions.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS OR ARRANGEMENTS WITH RESPECT TO ISSUER SECURITIES.
The following is hereby added to be the penultimate paragraph of Item 6:
The Company and Purchaser have entered into an agreement to acquire 390,000
shares of Common Stock at $25.00 per share, subject to certain closing
conditions.
Page 3 of 5 Pages
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ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
EXHIBIT 7.1 Development, Manufacturing and Marketing Agreement effective as of
April 1, 1996 and amended and restated effective as of June 30,
1998 by and between Baxter Healthcare Corporation and Cerus
Corporation (incorporated by reference to Exhibit 10.32 of the
Current Report on Form 8-K filed by Cerus Corporation (Commission
File No. 000-27937) on July 22).
EXHIBIT 7.2 Development, Manufacturing and Marketing Agreement dated as of
December 13, 1993 by and between Baxter Healthcare Corporation and
Cerus Corporation (incorporated by reference to Exhibit 10.17 to
Registration Statement on Form S-1 (No. 333-11341) filed by Cerus
Corporation (Commission File No. 000-21937)).
EXHIBIT 7.3 Purchase Agreement dated December 20, 1999 by and between Baxter
Healthcare Corporation and Cerus Corporation
Page 4 of 5 Pages
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S I G N A T U R E
After reasonable inquiry and to the best of my knowledge and belief, each of the
undersigned corporations certifies that the information set forth in this
statement is true, complete and correct.
Dated: December 22, 1999
BAXTER HEALTHCARE CORPORATION
By: /s/ Jan Stern Reed
-------------------
Jan Stern Reed
Secretary
BAXTER INTERNATIONAL INC.
By: /s/ Jan Stern Reed
------------------
Jan Stern Reed
Secretary
Page 5 of 5 Pages
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EXHIBIT 7.3
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 20/th/ day of December, 1999, by and
among Cerus Corporation ("Company"), a corporation organized under the laws of
the State of Delaware, with its principal offices at 2525 Stanwell Drive, Suite
300, Concord, California 94520, 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 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 Agreement, the Company has authorized the sale of up to
1,000,000 shares (the "Shares") of common stock, par value $0.001 per share (the
"Common Stock"), of the Company.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing
-----------------------------------------
(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, the number of Shares (at the purchase price) shown below:
<TABLE>
<CAPTION>
Price Per
Number to Be Share In Aggregate
Purchased Dollars Price
------------ --------- ----------
<S> <C> <C>
390,000 $25.00 $9,750,000
</TABLE>
The Company proposes to enter into a similar form of purchase
agreement with certain other investors (the "Other Purchasers") and expects to
complete sales of the Shares to them. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agent" shall mean Prudential Vector Healthcare Group, a unit of Prudential
Securities Incorporated.
SECTION 3. Delivery of the Shares at the Closing. The completion of
-------------------------------------
the purchase and sale of the Shares (the "Closing") shall occur as soon as
practicable and as agreed by the parties hereto following notification by the
Securities and Exchange Commission (the "Commission") to the Company of the
Commission's willingness to declare effective the registration statement to be
filed by the Company pursuant to Section 7.1 hereof (the "Registration
Statement") at a place and time (the "Closing Date") to be agreed upon by the
Company, and the Placement Agent and of which the Purchasers will be notified by
facsimile transmission or otherwise.
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At the Closing, the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as designated by the Purchaser in writing, representing the number of
Shares set forth in Section 2 above. 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. The Company's obligation to complete the
purchase and sale of the Shares and deliver such stock certificate(s) to the
Purchaser at the Closing shall be subject to the following conditions, any one
or more of which may be waived by the Company: (a) receipt by the Company of
same-day funds in the full amount of the purchase price for the Shares being
purchased hereunder; (b) completion of the purchases and sales under the
Agreements with all of the Other Purchasers; and (c) 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. The
Purchaser's obligation to accept delivery of such stock certificate(s) and to
pay for the Shares evidenced thereby shall be subject to the following
conditions: (a) the Commission has notified the Company of the Commission's
willingness to declare the Registration Statement effective on or prior to the
75/th/ day after the date such Registration Statement was filed by the Company;
(b) the accuracy in all material respects of the representations and warranties
made by the Company herein and the fulfillment in all material respects of those
undertakings of the Company to be fulfilled prior to Closing and (c) the
issuance and sale to the Purchaser shall be legally permitted by all laws and
regulations to which the Company and the Purchaser are subject. The Purchaser's
obligations hereunder are expressly not conditioned on the purchase by any or
all of the Other Purchasers of the Shares that they have agreed to purchase from
the Company.
SECTION 4. Representations, Warranties and Covenants of the Company.
---------------------------------------------------------
The Company hereby represents and warrants to, and covenants with, the Purchaser
as follows:
(a) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Confidential Private Placement Memorandum, including all
exhibits and supplements thereto and all documents incorporated by reference
therein (the "Memorandum") and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company.
(b) The Company does not own or control, directly or indirectly, any
interest in any other corporation, association, or other business entity.
(c) The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by it
which is material to the business of the Company, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Memorandum or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company; and any real property and buildings held under lease by the Company are
held by it under valid, subsisting and enforceable leases with such exceptions
as are not material and do not
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interfere with the use made and currently proposed to be made of such property
and buildings by the Company except as described in or contemplated by the
Memorandum.
(d) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Memorandum.
(e) The shares of Common Stock outstanding prior to the issuance of
the Shares to be sold by the Company have been duly authorized and are validly
issued, fully paid and non-assessable. Except as set forth in the Memorandum,
the Company does not have outstanding any options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible securities
or obligations. All outstanding shares of capital stock and options and other
rights to acquire capital stock have been issued in compliance with the
registration and qualification provisions of all applicable securities laws and
were not issued in violation of any preemptive rights, rights of first refusal
or other similar rights.
(f) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive rights, rights of first refusal or similar rights
which have not been waived or satisfied.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene any
provision of applicable law or the certificate of incorporation or bylaws of the
Company, or any agreement or other instrument binding upon the Company that is
material to the Company, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company, and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Shares.
(i) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business, prospects or
operations of the Company from that set forth in the Memorandum.
(j) Subsequent to the respective dates as of which information is
given in the Memorandum, except as contemplated in the Memorandum and except as
such as may have occurred in the ordinary course of the Company's business or
operations, (i) the Company has not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction in
each case not in the ordinary course of business; (ii) the Company has not
purchased any of its outstanding capital stock other than unvested shares from
former employees, directors or consultants nor declared, paid or otherwise made
any dividend or distribution of any
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kind on its capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock, short-term debt or
long-term debt of the Company, except in each case as described in or
contemplated by the Memorandum.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company is a party or to which any of the properties of
the Company is subject that might prevent or might reasonably be expected to
materially and adversely affect the transactions contemplated by this Agreement
and are not so described in the Memorandum. Also, there are no regulations,
contracts or other documents that are required to be described in the Memorandum
that are not described.
(l) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Memorandum, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Memorandum, will not be an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(n) There is no owner of any securities of the Company who has any
rights, not effectively satisfied or waived, to require registration of any
shares of capital stock of the Company in connection with the filing of the
Registration Statement or the sale of any shares thereunder.
(o) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged; the Company has not been
refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition, financial or otherwise,
or the earnings, business or operations of the Company, except as described in
or contemplated by the Memorandum.
(p) The Company (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "Environmental
Laws"), (ii) has received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business and (iii) is in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company.
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(q) To the best of the Company's knowledge, costs and liabilities
associated with its compliance with Environmental Laws as currently in effect
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties) would not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the
Company.
(r) Except as otherwise disclosed or contemplated in the Memorandum,
the Company owns or possesses adequate licenses or other rights to use all
patents, copyrights, trademarks, service marks, trade names, technology and
know-how necessary (in any material respect) to conduct its business in the
manner described in the Memorandum, the Company is not obligated to pay a
royalty, grant a license, or provide other consideration to any third party in
connection with its patents, copyrights, trademarks, service marks, trade names,
or technology, except that the Company has entered into a Memorandum of
Understanding with Emory University relating to certain patent rights owned by
Emory University that may pertain to the Company's ACIT program and, except as
disclosed in the Memorandum, the Company has not received any notice of
infringement or conflict with (and the Company does not know of any infringement
or conflict with) asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names, technology or know-how which
could reasonably be expected to result in any material adverse effect upon the
Company and, except as disclosed in the Memorandum, the discoveries, inventions,
products or processes of the Company referred to in the Memorandum do not, to
the best knowledge of the Company, infringe or conflict with any right or patent
of any third party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party, known to the Company
which could reasonably be expected to have a material adverse effect on the
Company. Other than Baxter, the Consortium of Plasma Sciences, LLC and the U.S.
Government as summarized in the Memorandum, no third party, including any
academic or governmental organization, possesses rights to the Company's
patents, copyrights, trademarks, service marks, trade names, or technology
which, if exercised, could enable such third party to develop products
competitive to those of the Company or could have a material adverse effect on
the ability of the Company to conduct its business in the manner described in
the Memorandum.
(s) The Company possesses all consents, approvals, orders,
certificates, authorizations and permits issued by and has made all declarations
and filings with, all appropriate federal, state or foreign governmental or
self-regulatory authorities and all courts and other tribunals necessary to
conduct its business and to own, lease, license and use its properties in the
manner described in the Memorandum, and the Company has not received any notice
of proceedings related to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, or failure to obtain or
file would result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company, except as
described in or contemplated by the Memorandum.
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's
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general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(u) No material labor dispute with the employees of the Company
exists, except as described in or contemplated by the Memorandum, or, to the
best knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors that could result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company.
(v) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida), relating to issuers doing
business with Cuba.
(w) Ernst & Young LLP, who have expressed their opinion with respect
to the consolidated financial statements to be incorporated by reference from
the Company's Annual Report on Form 10-K for the year ended December 31, 1998
into the Registration Statement and the Prospectus which forms a part thereof,
are independent accountants as required by the Securities Act and the rules and
regulations promulgated thereunder (the "Rules and Regulations").
(x) The Company has not distributed and will not distribute prior to
the Closing Date any offering material in connection with the offering and sale
of the Shares other than the Memorandum or any amendment or supplement thereto.
The Company has not in the past nor will it hereafter take any action
independent of the Placement Agent to sell, offer for sale or solicit offers to
buy any securities of the Company which would bring the offer, issuance or sale
of the Shares, as contemplated by this Agreement, within the provisions of
Section 5 of the Securities Act, unless such offer, issuance or sale was or
shall be within the exemptions of Section 4 of the Securities Act.
(y) The Company represents and warrants that the information
contained in the following documents, which the Company has furnished to the
Purchaser, or will furnish prior to the Closing, is or will be true and correct
in all material respects as of their respective final dates:
(a) the Company's Current Report on Form 8-K filed with the
Commission on November 12, 1999;
(b) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 (without exhibits);
(c) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30,
1999;
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(d) the Company's Proxy Statement for the 1999 Annual Meeting of
Stockholders;
(e) the Registration Statement;
(f) the Memorandum, including all addenda and exhibits thereto
(other than the Appendices); and
(g) all other documents, if any, filed by the Company with the
Securities and Exchange Commission since September 30, 1999
pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(z) Prior to the Closing, Cooley Godward LLP, counsel to the Company,
will deliver its legal opinion in customary form to the Placement Agent. Such
opinion shall also state that each of the Purchasers may rely thereon as though
it were addressed directly to such Purchaser.
(aa) Prior to the Closing, {__________}, patent counsel for the
Company, will deliver its legal opinion in customary form to the Placement
Agent. Such opinion shall state that each of the Purchasers may rely thereon as
though it were addressed directly to such Purchaser.
(bb) At the Closing, the Company will deliver to Purchaser a
certificate executed by the Chairman of the Board or President and the chief
financial or accounting officer of the Company, dated the Closing Date, in
customary form to the effect that the representations and warranties of the
Company set forth in this Section 4 are true and correct in all material
respects as of the date of this Agreement and as of the Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions
herein on its part to be performed or satisfied on or prior to such Closing
Date.
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 is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company, and has
requested, received, reviewed and considered all information it deems relevant
in making an informed decision to purchase the Shares; (ii) the Purchaser is
acquiring the number of Shares set forth in Section 2 above in the ordinary
course of its business and for its own account for investment (as defined for
purposes of the Hart-Scott-Rodino Antitrust Improvement Act of 1976 and the
regulations thereunder) only and with no present intention of distributing any
of such Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares; (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 Act and the Rules and
Regulations; (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
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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 set forth in Section 2 above, relied solely
upon the Memorandum and the documents included therein and the representations
and warranties of the Company contained herein; and (vi) the Purchaser is an
"accredited investor" within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act.
(b) The Purchaser hereby covenants with the Company not to make any
sale of the Shares without satisfying the prospectus delivery requirement under
the Securities Act, and the Purchaser acknowledges and agrees that such Shares
are not transferable on the books of the Company unless the certificate
submitted to the transfer agent evidencing the Shares is accompanied by a
separate officer's 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, the Securities Act and the Rules and
Regulations and any applicable state securities or blue sky laws and (B) the
requirement of delivering a current prospectus has been satisfied. 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
Exchange Act (a "Suspension Period"). The Company shall use reasonable efforts
to minimize the length of any Suspension 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 at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to said prospectus. The Purchaser further covenants to
notify the Company promptly of the sale of all of its Shares.
(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 Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this 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
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Purchaser in Section 7.3 hereof may be
legally unenforceable.
SECTION 6. Survival of Representations, Warranties and Agreements.
------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
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SECTION 7. Registration of the Shares; Compliance with the Securities
----------------------------------------------------------
Act.
- ---
7.1. Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) as soon as practicable, prepare and file with the Commission
the Registration Statement on Form S-3 relating to the sale
of the Shares by the Purchaser from time to time through the
automated quotation system of the Nasdaq National Market or
the facilities of any national securities exchange on which
the Company's common stock is then traded or in privately-
negotiated transactions;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Purchasers, to cause the Commission to
notify the Company of the Commission's willingness to
declare the Registration Statement effective within 75 days
after the Registration Statement is filed by the Company;
(c) 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 until the earlier of (i)
twenty-four months after the effective date of the
Registration Statement or (ii) the date on which the Shares
may be resold by the Purchasers without registration by
reason of Rule 144(k) under the Securities Act or any other
rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement (and to each
underwriter, if any, of such Shares) such reasonable number
of copies of prospectuses and such other documents as the
Purchaser may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares
by the Purchaser; provided, however, that the obligation of
-------- -------
the Company to deliver copies of prospectuses to the
Purchaser shall be subject to the receipt by the Company of
reasonable assurances from the Purchaser that the Purchaser
will comply with the applicable provisions of the Securities
Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser;
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; and
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<PAGE>
(f) bear all expenses in connection with the procedures in
paragraphs (a) through (e) 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 advisers to the Purchaser or the Other Purchasers
or underwriting discounts, brokerage fees and commissions
incurred by the Purchaser or the Other Purchasers, if any.
7.2. Transfer of Shares After Registration. 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, and 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.
7.3. Indemnification. For the purpose of this Section 7.3:
---------------
(i) the term "Purchaser/Affiliate" shall include the Purchaser
and any affiliate (within the meaning of Rule 144 under the
Securities Act of 1933, as amended) such Purchaser; and
(ii) 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.
(a) The Company agrees to indemnify and hold harmless each of the
Purchasers and each person, if any, who controls any Purchaser within the
meaning of the Securities Act, against any losses, claims, damages, liabilities
or expenses, joint or several, to which such Purchasers or such controlling
person may become subject, under the Securities Act, the Exchange Act, or any
other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, including the prospectus, financial statements and schedules, and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A,
or pursuant to Rule 434, of the Rules and Regulations, or the prospectus, in the
form first filed with the Commission pursuant to Rule 424(b) of the Regulations,
or filed as part of the Registration Statement at the time of effectiveness if
no Rule 424(b) filing is required (the "Prospectus"), or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state in any of them a material fact required to be stated therein
or necessary to make the statements in any of them, in light of the
circumstances under which they were made, not misleading, or arise out of or are
based in whole or in part on any inaccuracy in the representations and
warranties of the Company contained in this Agreement, or any failure of the
Company to perform its obligations hereunder or under law, and will reimburse
each
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<PAGE>
Purchaser and each such controlling person for any legal and other expenses
as such expenses are reasonably incurred by such Purchaser or such controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action; provided,
--------
however, that the Company will not be liable in any such case to the extent that
- -------
any such loss, claim, damage, liability or expense arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Purchaser expressly for use
therein, or (ii) the failure of such Purchaser to comply with the covenants and
agreements contained in Sections 5(b) or 7.2 hereof respecting sale of the
Shares, or (iii) the inaccuracy of any representations made by such Purchaser
herein or (iv) any statement or omission in any Prospectus that is corrected in
any subsequent Prospectus or prospectus supplement that was delivered to the
Purchaser prior to the pertinent sale or sales by the Purchaser.
(b) Each Purchaser will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Purchaser) insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any failure to comply with the covenants and agreements
contained in Sections 5(b) or 7.2 hereof respecting the sale of the Shares or
(ii) the inaccuracy of any representation made by such Purchaser herein or (iii)
any untrue or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Purchaser expressly
for use therein, and will reimburse the Company, each of its directors, each of
its officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action.
(c) Promptly after receipt by an indemnified party under this Section
7.3 of notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 7.3 promptly notify the indemnifying party in writing
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 7.3 or to the extent it is
11
<PAGE>
not prejudiced as a result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be a conflict between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, which approval shall not be unreasonably
withheld, the indemnifying party will not be liable to such indemnified party
under this Section 7.3 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by such
indemnifying party in the case of paragraph (a), representing the indemnified
parties who are parties to such action) or (ii) the indemnified party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of action, in each of which cases the reasonable fees and expenses
of counsel (in the case of clause (ii), counsel selected by the indemnifying
party in its assumption of the defense) shall be at the expense of the
indemnifying party.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.3 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any losses, claims, damages, liabilities or expenses referred to
herein (i) in such proportion as is appropriate to reflect the relative fault of
the Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement which
resulted in such losses, claims, damages, liabilities or expenses or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative fault
referred to in clause (i) above but the relative benefits received by the
Company and the Purchaser from the placement of Common Stock, as well as any
other relevant equitable considerations. The respective relative benefits
received by the Company on the one hand and each Purchaser on the other shall be
deemed to be in the same proportion as the amount paid by such Purchaser to the
Company pursuant to this Agreement for the Shares purchased by such Purchaser
that were sold pursuant to the Registration Statement bears to the difference
(the "Difference") between the amount such Purchaser paid for the Shares that
were sold pursuant to the Registration Statement and the amount received by such
Purchaser from such sale. The relative fault of such Selling Stockholders and
each Purchaser shall be determined by reference to,
12
<PAGE>
among other things, whether the untrue or alleged statement of a material fact
or the omission or alleged omission to state a material fact or the inaccurate
or the alleged inaccurate representation and/or warranty relates to information
supplied by the Company or by such Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. 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 paragraph (c) of this
Section 7.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in paragraph (c) of this Section 7.3 with respect to the
notice of the threat or commencement of any threat or action shall apply if a
claim for contribution is to be made under this paragraph (d); provided,
--------
however, that no additional notice shall be required with respect to any threat
- --------
or action for which notice has been given under paragraph (c) for purposes of
indemnification. The Company and each Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7.3 were determined
solely by pro rata allocation (even if the Purchaser were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 7.3, no Purchaser shall be
required to contribute any amount in excess of the amount by which the
Difference exceeds the amount of any damages that such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of 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. The Purchasers' obligations to contribute pursuant to this
Section 7.3 are several and not joint.
7.4. 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 upon
the passage of twenty-four months from the effective date of the Registration
Statement covering such Shares or at such time as an opinion of counsel
satisfactory in form and substance to the Company shall have been rendered to
the effect that such conditions are not necessary in order to comply with the
Securities Act.
7.5. Information Available. So long as the Registration Statement is
---------------------
effective covering the resale of Shares owned by the Purchaser, the Company will
make available to the Purchaser:
(a) as soon as practicable after available (but in the case of
the Company's Annual Report to Stockholders, (i) within 120
days after the end of each fiscal year of the Company), one
copy of its Annual Report to Stockholders (which Annual
Report shall contain financial statements audited in
accordance with generally accepted accounting principles by
a national firm of certified public accountants), (ii) its
Annual Report on Form 10-K, (iii) its quarterly reports on
Form 10-Q, and (iv) 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, a reasonable
number of
13
<PAGE>
copies of the Prospectus to supply to any other party
requiring such Prospectus;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters, during
normal business hours and at such representative's reasonable convenience, to
discuss information relevant for disclosure in the Registration Statement
covering the Shares, subject to appropriate confidentiality limitations.
SECTION 8. Broker's Fee. The Purchaser acknowledges that the Company
------------
intends to pay to the Placement Agent a fee in respect of the sale of the Shares
to the Other Purchasers. Each of the parties hereto hereby represents that, on
the basis of any actions and agreements by it, there are no brokers or finders
entitled to compensation in connection with the sale of the Shares to the
Purchaser.
SECTION 9. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
Cerus Corporation
2525 Stanwell Dr., Suite 300
Concord, California 94520
Tel: (925) 603-9071, Ext. 110
Fax: (925) 603-9099
Attn: Stephen T. Isaacs
with a copy to:
Cooley Godward LLP
5 Palo Alto Square
Palo Alto, California 94306
Tel: (650) 843-5000
Fax: (650) 857-0663
Attn: Alan C. Mendelson, Esq.
or to such other person at such other place as the Company shall
designate to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may have
been furnished to the Company in writing.
SECTION 10. Changes. This Agreement may not be modified or amended
-------
except pursuant to an instrument in writing signed by the Company and the
Purchaser.
14
<PAGE>
SECTION 11. Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 12. Severability. In case any provision contained in this
------------
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 13. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware and the federal
law of the United States of America.
SECTION 14. Counterparts. This 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.
15
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
CERUS CORPORATION
By: /s/ Stephen T. Isaacs
---------------------
Name: Stephen T. Isaacs
Title: President and Chief Executive Officer
Print or Type:
Name of Purchaser
(Individual or Institution):
Baxter Healthcare Corporation
-----------------------------
Name of Individual representing
Purchaser (if an Institution):
Harry M. Jansen Kraemer, Jr.
----------------------------
Title of Individual representing
Purchaser (if an Institution):
President and Chief Executive Officer
--------------------------------------
Signature by:
Individual Purchaser or Individual
representing Purchaser:
/s/ Harry M. Jansen Kraemer, Jr.
----------------------------------
Address: One Baxter Parkway
-------------------
Telephone: 847/948-2000
------------
Telecopier: ______________________________
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